The Diavorce Solutionist

A lot of people are under the impression that some states are “mother states” or states that prefer mothers over fathers in custody matters.  This point of view infers that there are also “father states” where fathers are favored. These terms really annoy me because there are way too many factors that go into a custody determination, for either Moms or Dads to hang their hat on how the case will turn out.

Constitutional Safeguard vs. Having Father or Mother States

So way before all of the female liberation movement and such, women staying home to take care of the family was a “thing”.  Not that it is not now, but before the 1970s, it was much more widespread.  As a result, if there was a custody dispute, women were much more likely to get custody because of their role as the primary caretaker. At the same time, there were no challenges to the Constitutionality of laws that were gender-biased or courts that imposed gender bias on families.

However, today most father and mother states have custody laws that do not explicitly favor one over the other.  If they did, they would be challenged on the basis of sexual discrimination. Laws that explicitly discriminate against any gender are a violation of the Fourteenth Amendment of the US Constitution.  This, however, does not mean that some states’ laws are not discriminatory, it just means that they are indirect with it. So what they typically do is to lay out the criteria or pretexts that are “easier” to satisfy for one gender over the other.  For example, if one of the state’s primary best interest factors lists the availability of one parent to stay home and care for the child, this can certainly be viewed as discriminatory against fathers.

The Neutrality of the “Best Interests of the Child” Standard

Every father and mother states has its own set of factors that makes up what it considers the “best interests of the child custody”. The best interests of the child’s overall objective are to take a neutral position with respect to which parent should obtain custody.  It looks to which parent would provide for the child’s mental, intellectual, physical, and emotional well-being.  And although some father and mother states’ have factors that are partial to either parent, the underlying basis focuses on what’s best for the child.


Best Interests of the Child Custody Each State


States that do not have specific factors leave room for courts to interpret them the way they see fit.  This means that they have more latitude in how they consider which facts are more pertinent to meet the objective of the best interests of the child.  In these particular instances, they are able to favor one parent over the other.  So from the litigant’s perspective, it can appear to be a father or mother state.

This can be a very dangerous proposition, though, because either parent cannot focus on being the most “fit” parent because of their assumption.  The belief that you have the upper hand may actually cause you to be “lose” custody.

 Joint Custody as the Presumption

Some states have a presumption of joint custody being in the child’s best interests.  This negates the whole idea of mothers or fathers getting a favor, particularly in such father or mother states. The presumption of joint custody being the best route for the children puts the burden on either parent to make a case otherwise.  So, if the mother wants sole custody, while the father is fine with joint custody, the mother has the burden to overcome the presumption.  She must do this by showing that joint custody is not in alignment with the child’s well-being. She must prove that sole custody is better to meet the child’s emotional, intellectual and physical needs more than joint custody would.

Joint custody neutralizes the idea that either parent has an advantage over the other, and that’s exactly the legislature’s intention.

In Conclusion

The best way to prepare for a custody case is to do all the necessary research into your jurisdiction’s way of ruling.  However, this does not mean to presume anything will go in your favor based on facts that have nothing to do with the best interests standard.  Be prepared for the unexpected particularly where someone tells you that you’re in a “mother” or “father” state.

Need help in handling your Family Court case on your own?

We have services that are specifically geared toward helping self-represented litigants like you understand the common mistakes that lead to the most disappointing outcomes. To find out more about our services, visit us at WWW.THEDIVORCESOLUTIONIST.COM and join our Facebook community HERE to get some helpful advice and some FREEBIES.  Listen to our latest Podcast episode here.

Child Custody Home Inspection: In child custody cases, the courts will have the home of each parent (or party seeking custody) inspected by the appropriate agency. Usually, the office of Child Protective Service (CPS) will be responsible for conducting the home inspection and reporting back to the court on it. The purpose of these inspections is to ensure that the home environment is safe and suitable for the child(ren) to spend any considerable amount of time there.

What is a Child Custody Home Inspection?

Depending on your particular jurisdiction, the term used may be “home study”, “home inspection”, “social study”, home evaluation” and so on. The overall objective is the same no matter the jurisdiction or the term used. The objective is to see the home environment and the child with each parent in that environment to see if the custody best interest’s standard factors are being met. Home inspections are different from custody evaluations. Custody evaluations are typically conducted by a mental health expert/professional. Home inspections, on the other hand, are usually done by social workers, child protection professionals and the like. Some custody evaluations include a home inspection component so the mental health professional may in fact have the interviews done in the home to cover both, however.


Best Interest of the Child Custody in Each State


How You Can Use the Inspection to Your Advantage

Although a home visit by CPS is meant to be objective, as a parent you could (and should) use the opportunity to present your circumstances in the best possible way to help your case. Be careful of course as you do not want to be too obvious that you are trying to unduly influence the worker. Be cordial and welcoming, for example but do not overdo it. Show the worker your child(ren)’s favorite space, activity or item. Schedule the appointment at a time when you and your child(ren) are engaged in an activity that you both enjoy. Be sure that the space in clean; that you have adequate food; that safety measures are in place and that no one who does not live in the home is not present at the time.
Show the worker how you encourage learning; how you discipline; nurture their development; support them emotionally and foster a relationship with the other parent. You can ask the worker questions. You can offer to provide evidence of your being “fit” and/or of the other parent being “unfit”. However, the way you present anything must not come across as negative toward the other parent so be mindful.

Use this opportunity to give the worker what he/she needs in the event they are called a witness in your case. But again, be careful because it can work both ways you must be mindful of what you say and how you say it in custody cases. Focus on the best interests of your child(ren) no matter what. If you do not know what that is, ask before the worker shows up to your home.


What You Say In Family Court Matters


The Weight Given to Reports in Child Custody Home Inspection

The court defers to home inspection reports significantly.  The court will rarely find that these reports (the worker’s account of what he/she saw) lack credibility. If there are specific facts the court wants the worker to focus on, they might ask them to do a supplemental or follow up visit.  In addition, either party can request a follow up visit if they believe that something important was left out or overlooked.  The guardian ad litem (or child’s attorney, advocate) can also point out omissions in the report and request another visit.

If either party objects to what is in the report there is recourse. They the opportunity will more than likely must “impeach” the worker that conducted the inspection.  If the objection is to something someone else said, then the party must impeach that individual. Challenging the truth of what someone else said to the worker may be considered “hearsay”.  These third-person statements are subject to being precluded under hearsay evidence rules.

The worker that does the report is human too, they make mistakes.  Although they are given considerable deference, you must voice your concern with their method, their facts, etc. if you have any.

In Conclusion

Home studies, or whatever they are referred to in your jurisdiction, are almost inevitable in child custody cases.  No need to dread them, to avoid them or try to manipulate them in any way.   You can use them to your advantage as long as you are prepared and informed on how to do that.

Need help in handling your Family Court case on your own? 

We have services that are specifically geared toward helping self-represented litigants like you understand the common mistakes that lead to the most disappointing outcomes. To find out more about our services, visit us at WWW.THEDIVORCESOLUTIONIST.COM and join our Facebook community HERE to get some helpful advice and some FREEBIES.  Listen to our latest Podcast episode here.

Family court has proven time and again that their agenda appears to be quite opposite of what many of us expect. Especially with respect to child custody and parenting time. The standard is the best interests of the child but that does not always seem to be match the outcome of court rulings. A lot of times parents think they are doing what falls in line with the best interests standards. However, to their dismay they find out that their efforts are often minimized, ignored or even, penalized by the system.

Parenting access is an improvement goal of family court. Parenting access is the time the noncustodial parent gets to spend with their child, to communicate with their child and be informed of important things in their child’s life. This article will address how Parenting access is factored in the child custody case.


“Good” and “Not so Good” Co-parenting is Still Coparenting


The Best Interests Standards in Child Custody

The best interests of the child in custody matters are the standard all the family courts use to decide what is best for children mental, physical, emotional, and intellectual well-being. There is no specific law, but each state has come up with its own set of factors to help it make its determination.

These factors examine the child’s circumstances as well as the circumstances of the parents when the issue is custody. The objective is to ensure that the child’s needs are not overlooked when weighed against the parents’ capabilities. Conversely, looking at the parents’ circumstances from a realistic perspective is just as important. For example, the parents’ mental and physical health are factored in just as the children are.

Parenting Access as a Child Custody Factor

Another factor the courts consider is each parent’s effort and participation in facilitating a nurturing relationship between the child and the other parent. This means taking measures to arrange time for the other parent to spend with the child, keeping the lines of communication open between the other parent and child and informing the other parent of major changes in the child’s life.

(See Delaware’s list of factors.)

From a practical standpoint, rearranging your schedule to accommodate the other parent, being inconvenienced by traveling a little further than usual, allowing the child to have phone or video calls and so on, are examples of fostering a nurturing relationship. Showing that you are on board with the other parent maintaining a loving relationship with your child typically carries more weight than any “flaws” they can bring up in court.

How to Use Parenting Access Factor Effectively

As I mentioned above, everything does not always work out the way we intend them to in Family Court. Unfortunately, this happens in more cases than not. (Which is exactly why my services focus on strategy more than law, learn more here.) One of the main reasons people are highly disappointed in their custody outcome is because they fail to take the time to learn the courts ‘inner workings”. They do not learn the court’s language; it is rationale for its moves or its overall goals.

The parenting access factor is an important element with respect to the court’s goals. As I mentioned, the court has an interest in ensuring that the child has a healthy relationship with each parent. At the same token, if you are not mindful of how it intercepts with the other factors it can backfire.

Parenting access is an important factor, but it is not the only one. Most courts utilize a range of 8-12 factors to determine custody. Parenting access can be a specific factor on the list or can encompass a few of them. In other words, State A can look directly at the frequency of visits the custodial parent allows with the noncustodial parent. While State B can look at a combination of things that are not as direct but within context.

(Compare Virginia’s factors with Illinois’ factors to see how they differ in language.)

Because of the differences in how the states list their factors and how the courts examine them, litigants need to understand how they impact the final custody decision. Having clear insight on how the parenting access looks in the grand scheme of things is vital.

For instance, will allowing the child more time at the noncustodial parent’s home give the impression that the custodial parent does not want the child at home? Will encouraging communication between them support the other parent’s petition for joint custody? These are just some things to keep in mind, not as a deterrent but in planning and present your case.

In conclusion

Family Court is tricky with custody cases. If you take actions from a limited perspective, you could be shooting yourself in the foot.

If you wish to schedule a FREE 15min consultation to discuss my services in your custody matter, please feel free to do that here.

Family Court
Family Court Frequently Asked Questions

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As many of you know, I am quite active in the online space with my audience.  This is very helpful for me personally and professionally, as it allows me to stay current on the issues like the family court matters that are most important to my community.  On a personal level, I am able to connect with people from all over the world, which is rewarding itself.

One of the things that I do daily is encourage my audience to ask questions.  As a result, what I have noticed is that there is a lot of misinformation being circulated.  In addition, I realized that people tend to have the same concerns regardless of their location, status or position (in their case).  So I have decided to dedicate this week’s blog to those common questions, providing some clear answers.


Parent Education in Divorce or Custody Matters

Frequently Asked Questions

 1. Should I file a divorce or custody petition first?

Read my blog on this topic but the short answer is, it depends.  If you are seeking divorce on specific “grounds” like adultery then you should file first.  However, if your circumstances meet the requirements for a “no-fault” divorce, then it may not matter.  In situations where there is property and you are concerned that your ex/soon to be ex will hide it, then you may want to file first.  However, filing first does not guarantee better success, it may just afford you the opportunity to better prepare.

  1. Is there a difference in shared custody vs. joint custody vs. 50/50 custody?

Shared custody can be anything where the child(ren) split their time at both parents home.  However, that split can be anything above or below 50%.  Joint custody usually refers to joint legal but can include physical too. 50/50 custody usually means that the child(ren) spend equal time between both parents homes. I covered this topic at length here.

  1. How should I prepare for filing for divorce?

Preparing for divorce, whether you are filing or waiting to be served, should start as early as possible.  This does not mean that you should rush to give up on your marriage but it certainly means that you should start to take the necessary steps the moment you’re convinced that divorce is impending. Gather documents, i.e. deeds/lease agreements, financial statements, credit card statements, receipts, etc.; contact all providers i.e. medical/health, schools, insurance, etc.; change passwords; inventory possessions; records, etc.

  1. Should I work with an attorney?

Having a lawyer represent you in your divorce or custody case is not an absolute must.  In certain circumstances you should certainly have an attorney represent you, but even in these instances the extent to which they provide representation should be considered.  If there is a dispute over custody, alimony &/or property distribution then having a lawyer on your side can certainly help.  However, be wise about whom you choose to work with and be sure they are familiar with the nuanced issues of your case.

Note: Visit here to read more about alternative options.

  1. Can I use text messages, emails, etc. as evidence in my hearing or trial?

This is a very common question and requires as much attention as possible.  Yes, text messages, emails, etc. can be used in court for evidentiary purposes.  Although each state has their own rules with respect to how these are admitted, they are generally allowed to be used to prove or defend your position in court.

Note:  I did a video on this topic on my Facebook business page.

Finding & Using Resources

Although there are tons of free resources on the internet, knowing which question to ask can make these resources useless.  When you are enmeshed in a legal battle, particularly in Family Court, it is critical to have the right information.  It is not advisable to trust your friends, family or even strangers to give you the appropriate answers to your legal questions.  Having gone through the process helps, but it does not qualify them to give you legal advice since each case is very different.

I always recommend getting at least three (3) consultations from qualified attorneys in your jurisdiction so that you have a solid foundation to start your journey.  Most family law attorneys will provide a free consultation so cost should not be a deterrent.

In Conclusion

 Always, always, always ask questions and seek answers.  At the same time, use discernment to decide if the source is reliable.  There is an overwhelming amount of information relevant to divorce and custody so filtering is important as well.

If you wish to schedule a consultation to discuss how I can help you please feel free to so here.

child support

Child support and child custody intercepts at times, but that depends on several factors. In most states Child support is determined by statutory guidelines imposed by that state. Those guidelines usually takes into consideration parents’ income (either one or both), number of children, previous financial orders and some excepted expenses (like employment deductions). Some states also consider the custody arrangement.


Best Interests of the Child Custody Each State


The Purpose of Child Support

Child support is intended to provide financial support for children. That generally means that each parent contributes to providing all the basic needs of their child(ren), including medical and educational too.  Although the Child Support Standards Act is the federal law governing child support, each state has its own law with respect to parents financial obligations to their children. Most states statutes base their guidelines on cost of living among other things.

There are 3 models each state chooses from, which are as follows:

Income Shares Model– this is based on the premise that children should receive the same proportion of their parents income that they would have received if the parents loved together. Most states, 41 to be exact, use this model. (Get more details here on each states guidelines.)

Percentage of Income Model– sets out a percentage of ONLY the noncustodial parent’s income. The custodial parents income is NOT taken into consideration. There is the Flat Percentage and the Varying Percentage variations. Four states use the former, while two states use the latter.

Melson Formula-a more complicated (and rarely used) version of the Income Shares Model. This takes into account each parents needs as well as the children’s. Only 3 states use this one. (See Delaware’s child support law.)

Child Custody Impact on Child Support

There is a difference in joint custody, shared custody and 50/50 custody. (Read here for in depth discussion from one of my previous blog posts.) In cases where either parent has sole or primary custody the noncustodial parent pays child support pursuant to their state statute. However, with respect to shared or 50/50 custody, where the child(ren) spend equal time with both parents obligation varies based on which Model the state uses.

With respect to Income Shares Model, the parents combined incomes and the number of children results in a figure. That figure is then divided proportionately based on the amount of time the children lives with each parent.

In the Percentage of Income Model, custody and support usually takes a different approach. Typically, only the noncustodial parent’s income is used to calculate support obligation. However, in shared  or 50/50 custody arrangements, the custodial parent’s income is a factor. The custodial parent’s income is compared to the noncustodial’s income to determine which is the highest. The parent with the highest income pays child support.

Some states’ statutes allows for the court to use discretion in rendering a final support order. In these instances, shared or 50/50, or any variation of joint physical custody, can justify the court coming up with an amount different from the statutory calculation.

In conclusion

 You should definitely familiarize yourself with your state’s child support and child custody laws before attempting to negotiate any settlements.

If you would like to discuss the options I have to help you prepare your case for settlement, mediation or trial, please feel free to set up a free consultation. Visit my Home page for details about the services I offer.

Need help in handling your Family Court case on your own?

We have services that are specifically geared toward helping self-represented litigants like you understand the common mistakes that lead to the most disappointing outcomes. To find out more about our services, visit us at WWW.THEDIVORCESOLUTIONIST.COM and join our Facebook community HERE to get some helpful advice and some FREEBIES.  Listen to our latest Podcast episode here.

Child Custody & Abandonment

In child custody & abandonment situations (and child support too) biological parents can have their rights terminated by court. Even though the right to being a parent in the USA is a fundamental one , pursuant to the Fourteenth Amendment, states have the power to infringe on those rights. Of course Due Process, also afforded by the Fourteenth Amendment, applies making it a requirement that laws & procedures are fair.


Where Child Support & Custody Intersect


What is Child Custody & Abandonment?

Abandonment, with respect to custody, is when a parent voluntarily fails to have any sort of contact with their child and fails to provide financially for the child for a specified period. It is NOT parental alienation, which is willful interference with the non- custodial parent having contact with their child.

Abandonment can only occur when the biological parent is aware of the child being born. So a parent who seeks Abandonment where the other parent is unaware of the child even exists will have to first prove otherwise. In some states, the period of abandonment only starts from the moment the parent is made aware of the child’s existence.

Proving Abandonment

 Proving abandonment is not easy feat, not by a stretch. The courts are not sweet on the idea of depriving parents of such a basic right under most circumstances. The burden is on the parent seeking termination to prove that all the elements are met upon a preponderance of evidence.

Those elements include:

  1. That the non custodial had noticed of the child; and
  2. That they willfully chose to withhold contact; and
  3. They failed to provide any financial support; and
  4. Set period of continuous non-contact & support; and
  5. Termination is in the best interests of the child; and
  6. That a stepparent is ready to adopt the child.

These requirements vary from state to state.

Objections or Defenses to Abandonment                                          

Non-custodial parents may have some valid reasons for being absent or not providing for their child. As I stated above, instances where the custodial parent intentionally interferes with contact is one of them.  There are others, like lack of notice of the petition, having no knowledge of the child having been born or if he can prove that termination would not be in the child’s best interests.

A child born out of wedlock, where the father never acknowledged paternity or where paternity was never established, may also be a defense. Most states require that paternity be established first. If the father’s location is unknown, the court may require that the mother incorporate “due diligence” methods  in locating him.

Also, if there is not a “fit” stepparent ready to adopt the child, then chances are the court will not order the termination.

A Finding of Abandonment 

If all of the elements are met and the court believes that termination is in the best interests of the child, then the biological parent no longer has obligation to support the child.  Emotional, physical and financial support are no longer the responsibility of the terminated parent.  However, there are some exceptions with respect to the child’s rights to that parent’s entitlements, property, estate, etc.  In some states, adopted children may have legal rights to the possessions of their biological parent in the event of that parent’s death.

It is advisable to discuss, in depth, the legal ramifications of termination with all parties involved.

In Conclusion

Child abandonment is a very complicated issue and requires the assistance of an experienced attorney.

If you need assistance with your child custody matter, please feel free to contact me for a FREE 15 min. consultation.

Need help in handling your Family Court case on your own?

We have services that are specifically geared toward helping self-represented litigants like you understand the common mistakes that lead to the most disappointing outcomes. To find out more about our services, visit us at WWW.THEDIVORCESOLUTIONIST.COM and join our Facebook community HERE to get some helpful advice and some FREEBIES.  Listen to our latest Podcast episode here.

Co-parenting

Co-parenting can go as smoothly as the parties allow it to.  It doesn’t have to be complicated or have a lot of conflict. However, it does not mean that when parties disagree on issues that it is unsuccessful.  Co-parenting simply means that parents communicate effectively and collaborate on important decisions regarding their child(ren).  Disagreements, confusion, etc. are not necessarily nonexistent when parents co-parent successfully. Judges understand the nuances involved when faced with the challenges of coming up with a workable co-parenting agreement.


Long-Distance Co-Parenting


Signs of “Good” of Co-parenting

There is an underlying concept of what “good” or “favorable” co-parenting looks like and it’s based on several principles.  The principles center around maintaining the best environment for the mental, emotional, intellectual and physical development of the child(ren).  To ensure that these principles are given the utmost consideration there are some vital tips parents should keep in mind.

  1. Maintain clear boundaries. This means that each parent should keep in mind the things they have control over and those they do not.  Know your limits and have reasonable expectations.
  2. Set & keep a predetermined schedule. The more precise and exact the time, location, etc. the parenting schedule is the better it is for all involved.
  3. Be flexible. Setting a precise schedule does not mean that you need to firm and uncooperative when it comes to emergencies or unexpected/unforeseen events.  Life is full of these sort of things so it is important to remember that when co-parenting.
  4. Extend courtesies to each other. You don’t have to love each other anymore but treat the other parent the way you want them to treat you.  (In my Michelle Obama voice “they go low, you go high”.)
  5. Keep the kids out of it. This means the child(ren) should not be relaying messages, made to choose sides or witness any negativity about either parent.
  6. Communicate, communicate, communicate. Talking, texting, emailing, using an app, etc. whatever means or method you choose you should definitely communicate.  You don’t have to respond, especially if you’re tempted to respond negatively, but you should definitely include the other parent in the important things.
  7. Attend events without tension. You can share events, occasions, etc. without conflict.  (Of course if there’s a history of any sort of violence this may not be the best thing.) You can go in shifts, agree to stay in a certain area or similar, but you don’t have to anticipate tension when attending an event at the same time.
  8. Respect each parent’s role. Each parent has a role in their child’s life.  Never mind what you think of it, how important it is or how meaningful it is, it exists.  You should respect the other parent’s role no matter what.
  9. Check yourself. You have an obligation and a duty to keep yourself in line when it comes to co-parenting.  If you each do this then the other does not need to.
  10. It’s about your child(ren), not either of you. This is self-explanatory.

“Not So Good” but Effective Coparenting

As I stated above, effective co-parenting can still exist despite all of the elements mentioned.  Of course, studies have shown that low conflict co-parenting rears emotionally and mentally stable children.  However, children are not doomed because they were not raised by “ideal” co-parents.

I want to highlight the fact that I am not referring to “parallel parenting” where each parent don’t communicate and raise their children in two separate households with hardly any interaction with each other.  That is very different from the “not so good” co-parenting I am referring to.   That being said, let’s explore co-parenting situations where all the elements I discussed are not present.

  1. You won’t agree on EVERYTHING. And it’s perfectly ok.  How many times did you actually agree when you were together?
  2. Things happen. It’s life, surprises come up that should not turn your entire world upside down if you have to change things around.
  3. Biting the bullet, so to speak, won’t kill you. Choose your battles wisely, some things are best left unsaid or not responded to.  There will times when the other parent tries to ruffle your feathers, be the bigger person.
  4. Keeping a record of interactions is wise. It is not problematic to keep some sort of diary/journal of all interactions like pickup and/or drop off just to maintain some organization.
  5. Short conversations or exchanges are not antagonistic. Being civil sometimes means keeping the conversations to a few words or phrases and that’s it.
  6. Different parenting styles is acceptable. No need to parent the same way, in fact, it’s more beneficial if you don’t.  You should have the same intentions but don’t have be identical in your means of acquiring them.
  7. You are are not obligated to feel comfortable being in their presence. It is not wrong if you opt out of attending certain events because you don’t want to be in the same room.
  8. Sharing is not always caring. Keeping some things, that are not important, between you and your child and/or your new significant other is not detrimental.
  9. Having a new significant other is not a bad thing. Many people think dating or having a live-in paramour looks bad to the other parent and/or the court.  This is not necessarily the case as long as they don’t pose a risk to the child(ren).
  10. Your kids having issues with either or both of you it totally fine. Kids can be manipulative and controlling, so they will push your buttons this should not affect your co-parenting.

In conclusion

Co-parenting may look different for each family, this is totally acceptable.  Every single family has it’s own set of issues, expectations, etc.  So if your co-parenting relationship seems unique because of any of these reasons it’s ok. Try to focus on your overall objective, that is to ensure that your child(ren)’s well-being is paramount.

If you would like to speak with me about the services I provide please feel free to schedule a FREE 15 min. consultation here.

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Grandparents Rights

Since 2000, grandparents’ rights to visitation and/or custody has been ruled “unconstitutional” in many states.  This landmark case (Troxel v. Granville) established that state laws that mandated grandparents rights to visitation & custody violated parents’ rights to due process.  As a result, although most states have some laws on the books granting grandparents rights, some of these same states are reconsidering these laws.

There is nothing more fundamental than having the right to raise your family without interference. Of course this can be debated, given the expansive authority states have to remove children from their homes without “proven” abuse.  However, from a legislative perspective the right to rear your family without being forced to allow others access is priority.

Consequently, most states that allow grandparents access to their grandchildren condition that access upon the family being not “intact”.  In other words, unless the parents divorce or separate, die or get their rights terminated grandparents have no grounds to get visitation.  Custody law is an entirely different beast, unless the parents give up their rights or they are both deceased, grandparents have a harder time getting custody.


Best Interests of the Child Custody Each State


A Breakdown of States’ Visitation/Custody Laws

 States have an interest in implementing some means of allowing grandparents access to their grandchildren, despite the debate about constitutionality.  Since the 1970s states have acknowledged the significance of grandparents (and caretakers) in the lives of children and have enacted laws accordingly.  However, since Troxel, many states have tailored their laws or principles around the finding that grandparents’ rights to access to grandchildren was not a fundamental one.

Arizona, Arkansas, Connecticut, Idaho, Kansas, Kentucky, Maryland, Montana, New Jersey, New York, North Carolina, North Dakota, Oklahoma, Oregon, Rhode Island, Wisconsin and Wyoming-all allow visits as long as they are in the best interests of the child or if they served in a parental role with the child.  The status of the parents is not a consideration.

Alabama, Indiana, Massachusetts, Michigan, Minnesota, Missouri, Nebraska, Nevada, New Hampshire, New Mexico, Ohio, South Carolina, South Dakota, Utah, Vermont   -there are conditions to grandparents being able to sue for visitation, mainly that the parents are divorce/legal separation (or going through one), deceased. Minnesota, New Mexico, Pennsylvania & West Virginia adds a provision that allows visitation where the child lived with the grandparent(s) for at least one year and the child is removed by a parent.  Missouri adds all of these conditions as well as if they were denied visits by the parents. Texas courts require all of these conditions, plus if the parent(s) is (are) incompetent or incarcerated.

Alaska,  there are conditions to grandparents being able to sue for visitation, mainly that the parents are divorce/legal separation (or going through one), deceased or their rights being terminated.

California, Colorado, Georgia  if the family is intact then grandparents have no rights to visitation.  *Some states have exceptions.

Delaware, is the most liberal in that it’s law allows “anyone” to sue for visitation.

Florida, passed a law in 2015 that allows grandparents visitation in very limited circumstances.

Hawaii, Washington and Tennessee courts have both ruled that grandparents rights statutes/laws are unconstitutional.

Illinois is distinct in that the grandparents must show that “unreasonable visitation” with children under 1 year old.

Iowa and Louisiana, limits actions for grandparents visitation to instances where the parent of the child (the grandparent’s child) is deceased.  This allows the grandparents to stand in the deceased parent’s shoes so to speak.

Maine has the “Grandparents Visitation Act”, where grandparents can seek visitation if one of the child’s parents is deceased.

Maryland, grandparents can seek visitation if they can prove either parent is unfit or if there are exigent circumstances.

Mississippi, the grandparents have to be the parents of the noncustodial parent, a deceased parent of the child or of a parent whose had rights terminated.

Virginia is unclear.

In Conclusion

Grandparents who want to pursue some sort of visitation with their grandchildren should almost opt for maintaining a relationship with the parents.  Not that they don’t have a chance in court with getting a favorable decision regarding visitation.  The reality is that the criteria they must meet can be almost insurmountable where the parents object.

If you wish to schedule a free consultation with me to discuss your grandparent’s rights, please feel free to do that here.

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long-distance co-parenting

Co-parenting can be challenging when both parents live within the same state or certain distance of each other. However, during long-distance co-parenting, it can complicate things ever more so. Particularly when the parties have joint custody, mainly joint legal, it can cause major problems with enforcement.

Co-parenting Agreements or parenting plans for long-distance parents usually look different than for those who within a 50 mile radius of each other for example. Between scheduling time, facilitating visits, staying on the loop amongst a few things, the agreement needs to address all of these things in more detail.


Best Interests of the Child Custody Each State 


Sharing Information in Long-Distance Co-Parenting

The Agreement or plan should go in depth about how the long-distance parent can stay informed of doctor visits, medical decisions, school events, school reports, etc. So using email, co-parentings apps, text messages etc. are a good means. In addition, the noncustodial parent should have the contact information for school personnel, medical providers and whomever has regular contact with the children with respect to education, health and extracurricular activities. The custodial parent should provide these to the other parent without any lapses.

Communication

Video chatting and phone calls should also take place on a different schedule than if both parents live close by. The actual schedule for these should take into consideration any time differences as well as the parties schedule. Of course the age of the child should be considered but allowances should be made for the circumstances as well.

Scheduling

Travel may be a huge obstacle for the noncustodial parent when it comes to exercising visits. So when it comes to planning visits the logistics of travel should be priority. Inclement weather, means of transportation, costs to travel etc. should be factored in when creating the Agreement or plan.Also work and school schedules can certainly make long-distance visits formidable. Careful planning is necessary with respect to choosing vacation, mapping out school breaks and such. It is important to stick to schedules as much as practicable so that other planned visits are not thrown off.

Flexibility

The one thing that is paramount to any long-distance co-parenting relationship working is parties flexibility.  Things happen when parents are local let alone when there is distance between them. As I mentioned above, weather, schedule conflicts, sickness etc. can interfere with even the well planned out visits.If the noncustodial chooses not to exercise their visits or maintain contact that’s one thing. On the other hand, when exercising visits is out of their control the custodial parent’s willingness to work around will be looked at favorably by the court.

Making it Work

With today’s technology there’s no reason why long distance co-parenting should be near impossible. Between apps for communication, note taking, calendaring and so there’s a plethora of ways to make it happen smoothly. In addition, Skype, social media, text messaging makes staying in touch a feasible task.The parties should make an effort to discuss and agree on which tools will be used. Exploring what works for both parents based on their family’s specific needs is the key. The tools chosen should be included in the agreement but again flexibility is necessary.

In conclusion

“Normal” co-parenting is not impossible when parents live some distance apart. With careful planning, consistency and flexibility co-parenting with distance in between is doable.
If you would like to discuss how we can help you in your co-parenting, custody or visitation case please feel free to schedule a free 15 minute consultation.

Need help in handling your Family Court case on your own?

We have services that are specifically geared toward helping self-represented litigants like you understand the common mistakes that lead to the most disappointing outcomes. To find out more about our services, visit us at WWW.THEDIVORCESOLUTIONIST.COM and join our Facebook community HERE to get some helpful advice and some FREEBIES.  Listen to our latest Podcast episode here.

best interests of the child

Each state has some sort of guidelines when it comes to deciding the best interests of the child custody.  The best interests of the child is the standard courts use to determine custody & visitation.  Even though these standards follow basic principles across all states, the factors used to make this determination varies from state to state.  This explains why the outcome in your case may look significantly different than the outcome in a case very similar to yours, both within the same state and across states.

Best Interests of the Child Standard Defined

Although there is no definitive standard definition of “the best interests of the child” there is a general principle.  That general principle is “…fostering and encouraging the child’s happiness, security, mental health and emotional development.” Currently, every state has specific factors to help its courts make custody determinations. However, how the courts uses and weighs these factors varies from state to state.

Specific Factors: Mandatory vs. Discretionary

The states’ specific factors all center around these principles, they all have a variation and/or an extension of the following:

  1. Emotional ties and relationships between the child and their parents, siblings and family members;
  2. The parents’ capacity to provide a safe home, with adequate food, clothing and medical care;
  3. The mental and physical needs of the child;
  4. The mental and physical health of the parents;
  5. The presence of domestic violence

Some states require that some or all of their specific factors to be considered, leaving little room for discretionary guidelines. Other states, on the other hand, have rules that give them permission to use discretion in applying their specific factors in addition to factors not expressly stated.

Variations of Statutes’ Definition

Most states have “shall” in their statutes, which makes adhering to the specific factors a requirement.  Like Virgina, for example, every one of its ten factors must be considered by the States with statutes that state “shall” with respect to consideration of its specific factors leave the courts with little discretion.  The courts have little wiggle room to consider factors outside of the specified factors, unless the statute says so.

In Virginia, for instance, the courts MUST consider all ten of its factors when making custody determinations. So in other words, every custody case in this state will be scrutinized using every single one of its 10 factors no matter what. This means that a case where parents are making allegations of medical neglect, educational inadequacies, inappropriate living conditions that the courts do NOT have to consider these allegations when applying the factors because these are not explicitly listed in the state’s statute.


Code of Virginia – Best Interests of the Child


However, in Connecticut, it’s  Gen. Stat. Section 46b-56( c) lists 15 factors. It reads in part “…the court shall consider the best interests of the child, and in doing so, may consider but shall not be limited to, one or more of the following factors.”  Some of the factors are the temperament and developmental needs of the child; the wishes of the child’s parents; the willingness and ability of the parents to coparent, amongst several others.  So even though it lists specific factors, the courts are not obligated to make its determination based on these factors. Connecticut courts can use factors that are NOT even on the list at all.

Impact on the Judge’s Determination

The weight of the factors, the use of the factors and the discretion with respect to both renders different outcomes for every case.  The states where courts have more discretion in considering its factors are more likely the ones with inconsistent decisions.  This can be an advantage to some, and a nightmare for others.

If you know for certain what factors the judge must consider, it is easier for you to prepare your case.  However, where the judge is not mandated to follow any specific guidelines, it is much harder to pre-determine what to focus your attention on.

In Conclusion

It is imperative to conduct thorough research before filing for custody.  If you can get a list of factors with an understanding of how they apply, then you are sure to put yourself in a much more advantageous position.

Feel free to contact me to discuss options for your divorce or custody case.

Contact Us

Need help in handling your Family Court case on your own?

We have services that are specifically geared toward helping self-represented litigants like you understand the common mistakes that lead to the most disappointing outcomes. To find out more about our services, visit us at WWW.THEDIVORCESOLUTIONIST.COM and join our Facebook community HERE to get some helpful advice and some FREEBIES.  Listen to our latest Podcast episode here.