The Diavorce Solutionist

Making Strategic Decisions Based on the Phase of Your Family Court Case

There’s little disagreement amongst Family Court litigants that the Family Court cycle can seem neverending. If you ask most people going through the process, they will tell you that things seem to all morph into one big catastrophe. However, this is not completely accurate. The typical divorce or custody case goes through stages or phases while it moves through Family Court.  Identifying each of these stages can be challenging, especially if you’re the one enduring the torment that’s usually associated with it. 

But not only are there different phases of a typical divorce or custody case, the issues also vary based on the phase they’re in.  The parties’ issues might remain steady, but there are different parts of the court process that require a different type of attention at each stage. This means that as a litigant, you need to strategize differently based on the stage your case is in. 

We have identified each phase by referring to them as “lanes”.  There are four lanes on the superhighway to Family Court hell. They all lead to the same place but the bumps (challenges), the route (action), and the directions (decisions) all vary based on the specific lane(s) your case is in.  Although your case can be in two lanes at once, it is advisable to limit them to two.

Explanation of the Various Phases (Lanes)

Every Family Court starts with a choice or decision (Lane 1) stemming from an action or series of actions by either party. Once either, or both, parties choose to go the Family Court route, their freedom to choose much of what happens throughout the process gets limited. The court will take over and implement rules and guidelines on how the case will proceed (Lane 2). Then at some point, the court will seem to be apathetic while still dictating how things proceed, leaving many to question why they decided to get court involved in the first place (Lane 3). And last, your case will make it to the “finish” line (Lane 4), if there is every truly a finish line, you get to “reclaim” some of the control by opting to take your case to trial. 

Lane One: Decision Time, the Beginning of Your Family Court Experience

As mentioned, Lane 1 is the beginning. Either party is gearing up;  gathering info and resources and putting things together with the intention of getting help with their divorce or custody. At this stage, things like timing, logistics, resources and personal circumstances are are crucial. Knowing when to file your case, jurisdiction considerations, and wording your petitions are all pivotal. Understanding court processes, connecting with resources, and identifying helpful information early can give you a significant advantage as you lay the groundwork for your case.

Lane Two: Filing and Interaction, Getting the Ball Rolling in Family Court

Lane 2, considerations are a bit different in the sense that once the case has started, some foundational things will remain intact no matter what. The court process is already set so deviating from some parts of it are more difficult to do at this stage. Things like identifying the problems or issues, the “real” ones, are extremely key at this stage. In addition, understanding what leverage is and identifying your leverage as well as the other party’s is also very important.  This is also the phase where you begin to focus on creating a solid game plan, like making strategic choices about when to interact and engage with the opposing party, the court, and the mediators.

Lane Three: Positioning for the Future, In the Thick of Things in Your Divorce or Custody

If your case made it past the six-month mark, it didn’t settle, or wasn’t resolved in mediation, then chances are you’re headed to Lane 3. By this time, you should have amassed a wealth of resources and built a deep understanding of your case. No more walking around with your head in the clouds, you’re starting to see Family Court for what it really is. You see that judges can be completely biased, the laws are not always applied correctly, that lawyers get away with acting unethically and you’re exasperated by the ugly truth. This time is pivotal, because since it wasn’t settled before now, chances are your case is going to trial. That means that frustration is at an all-time high followed by immense fear.  No one wants to hear the big “t” word because thoughts of excessive fees, feelings of uncertainty, and visions of seeing your child(ren) living with the other parent are involved with trial. But this is the time to shift your focus to prepping for the opportunity to finally present all of the improprieties that occurred in your case, in one setting.  

Lane Four: Gearing Up for Your Family Court Trial or Appeal

And at last, if you’re in Lane 4 you made it to the “finish” line. This is the moment you have been waiting for, although you didn’t know it, the moment to finally tell your story.  You get to speak and not be ignored; you get to point out all the lies the other party has been telling that you didn’t get a chance to prove; you get to call the guardian ad litem out for their unprofessional way of handling their responsibilities and so on.  And although you are scared out of your mind, this is the time to bring it all home. Win or lose, this is the time to seek vindication and to make peace with everything that has haunted you throughout the process. Knowing your key players and leveraging the knowledge gained throughout the previous stages is crucial. You must meticulously plot out how to use the information and resources built up over time to strategically navigate the trial phase and secure a favorable outcome.

Final Thoughts

Navigating the family court system can be overwhelming, but with the right strategies, you can take control, set the tone, and position yourself for success. Remember, everything you do at each stage has an impact on your case’s future, so strategic thinking and proactive planning are essential.

If you wish to discuss your options as a pro se (self-represented) party, please feel free to visit here.  If you are interested in our unique Pro Se Family Court Membership program, please find out more here.

Use Your Family Court Appearances as Part of Your Strategy, Part One: The Initial Conference

Once a divorce or custody case starts in Family Court there is usually a process in court. Unless the parties agree and filing the papers is just a formality, every case is set to proceed down the same path. The objective of that path is to facilitate the process by identifying issues, resolving issues, and getting a final determination. Each stage of the case has a specific goal and serves an exact purpose. To litigants, this process can seem confusing, unnecessary, and at times, prejudicial. But the process can be used to your advantage as a litigant if you would keep several things in mind. Strategy entails gathering information whenever and however you can, the court appearances are ideal in that sense.

The Initial Appearance

The Initial Conference itself is usually a brief meeting. Although all parties are required to appear, the way you appear is up to the court (via phone, video, or in-person.)

A final determination of anything asked for in the petition or motion is unlikely unless the parties agree to it. However, there are instances where temporary orders are issued depending on the parties’ requests, the immediate need, etc.

The Initial Conference is your first opportunity to gauge what the “real” issues of the case are. When crafting your strategic game plan, one of the principal elements is that you gain an understanding of where the opposing party stands. What this means, is that you need to know what their strengths and weaknesses are. You might think you know what they are, but you will get confirmation at the initial conference. The judge will want to know what the issues are and will more than likely, give some hints as to which issues are “real” issues.

In addition, the Initial Conference is your chance to familiarize yourself with the court process, the key players, and the judge’s demeanor. These are all key elements to focus on when creating your game plan too. Your case is not just about the parties, the law, and/or the lawyers. There is an entire process that and that entire process has a significant impact on the outcome of your case.

And last, you are giving the court to make its impression of you. You get to determine that. So many people are intimidated by the court process when you get to dictate how it goes. You must learn to be calm, focused, and prepared as you only get one chance to make a first impression.

How to Prepare for the Initial Conference

Preparing for the Initial Conference efficiently is important. However, being intentional in how you prepare is critical to the strategy for your case. In other words, plot every step or tactic you intend to use at the actual conference. Review the opposing party’s petition or motion to look for key things to focus on. You want to focus on these specific things to watch for credibility in statements, to check for consistency throughout the process, and to make notes for Discovery requests.

Next, you want to do as much research as you can before the actual conference. Research the laws, the procedural rules, the attorneys, and the judge. You might not find exactly what you expect, but you should look to see what’s out there.

And last, you should have a set of questions in your mind. You might get a chance to ask specific questions and that’s fine. But you should pay attention because although your questions might be unasked, you might still get answers to them.

After the Initial Conference

Once the conference is over, you should have a much clearer picture of what you need to do next. You should feel confident, determined, and empowered, not defeated. Remember, this is your opportunity to determine the direction you want your case to go in. Not let the antics of the opposing party distract or discourage you.

You should be able to fill in some key parts of your game plan.

In Conclusion

Too many litigants overlook the opportunities to take control of their case presented in the Initial Conference. They allow their emotions to take over and lose sight as a result. Every interaction, encounter, etc. is an opportunity to gain leverage. Take advantage of it.

 

If you wish to discuss your options as a pro se (self-represented) party, please feel free to visit here.  If you are interested in our unique Pro Se Family Court Membership program, please find out more here. 

 
Tagged

Choosing the Right Family Court Documents in Custody

I recently noticed that many Family Court litigants are clueless about filing and using the correct documents in their custody cases. There are different documents for diverse types of cases of course. But there are times when it is not just the type of case that matters, it is its purpose. There are petitions, complaints, responses, objections, oppositions, motions, show causes, cross-motions, cross-petition, and counterclaims. So, let’s discuss all family court documents in custody:

Type of Family Court Case

In Family Court, custody cases can go on forever.  In fact, they typically do.  If you are in court on custody once, you can almost bet on being back over the course of your child’s life until the age of majority.  So, there is a difference, for example, in an initial case for Custody or Visitation and a Modification or Contempt case. The difference affects how the case will proceed, which rules apply and how they apply.  So, an initial custody case might consist of the initial Complaint and maybe a Cross-Complaint as far as documents (pleadings). This is so because the parties are only trying to establish some sort of guidelines or parameters to co-parent.  It is not uncommon that the parties are unaware of all the issues that may become an issue later.

Strategic Plan in Divorce or Custody

Purpose of Family Court Documents in Custody

The other issue is what your objective is in the case.  If you are seeking to shed light on the lies, deception, and false statements, then you might need to file a Response or Opposition. If your intentions are to present your own version of the circumstances, then you might want to file a Cross-Petition or Cross-Motion.  But even further, if you have your own separate demands, then you should most certainly file a Cross-Motion or Cross-Petition in the custody or visitation case.

The document you file will still depend on the type of case, but your purpose for the document is important.

Procedure for Documents

Every single state has its own set of procedural rules when it comes to drafting, filing, and serving custody or visitation documents. They also have specific time frames and deadlines within which specific documents need to be filed. This is extremely important to know because it can affect how you choose to proceed. If you realize at some point in your case, that you should file a Cross-Petition what are your options?

Well, that depends on the point in which you realized it. Can you file a Cross-Petition at the time the case is scheduled for a hearing? If not, what can you do instead? These are all particularly important to know as you navigate your way through your case. You might not be able to, but you can ask for the court’s permission to file an Objection or Opposition. Or maybe you can get the court’s permission to extend the time for hearing/trial until you are able to have your Cross-Petition added to the court’s docket. The way you proceed is dictated by your court’s procedural rules as well as its administrative process.

How it All Comes into Play?

For those of you who do not know, my focus is always on the strategic aspect of custody cases.  My unique approach takes a bird’s eye view of each case and produces a precise plan to help litigants reach their goals.  This means that each of the elements I discussed above plays an important role.  Timing, wording, positioning, etc. all these interplay in how a case should be presented for court success.  So sometimes you might have missed a document filing deadline, but might be able to get on your side of the story another way. Therefore, it is critical to have these concepts in mind the moment you see yourself headed down this path.

In Conclusion

It is extremely important that you are aware of your local court procedures, how to navigate your way around the court (and the website), and that you learn the different forms and their use.  This knowledge can impact the overall outcome of your custody case.

If you wish to discuss your options as a pro se (self-represented) party, please feel free to visit here.  If you are interested in our unique Pro Se Family Court Membership program, please find out more here.

Tagged

SNEAK PEEK: NEW! Strategic Action Plan Workbook ONLY $27- Limited Time!

This strategic action plan workbook is 27 pages of extremely useful tips & resources; exercises; worksheets and MUCH MORE!!!

About the Family Court Strategic Action Plan Workbook:

Family Court parties are usually the most overwhelmed, disappointed and victimized of any other court venue.  For several reasons, people that are embroiled in a Family Court, either divorce or custody, case often feel like they are at their wits end fighting for their families.  One of the main reasons parties feel disappointed and discouraged is because of the lawyers failure to provide adequate representation.  Another major reason, is because the Family Court system is destructive to families.  The laws are often overlooked, the procedures are applies arbitrarily and the judges are extremely biased.  So what are the parties to do when they are forced to litigate their case in court in spite of all of these flaws?  What they should do is not give up….NEVER give up! They owe it to their children to speak up for them, to ensure that their well-being is not overlooked and to protect their future.

Your Support System, “Village”: Key Part of Your Strategic Plan

There is a saying “if you can’t beat them then join them”.  This is definitely applicable and justified in Family Court.  It’s a system that can’t “beat” because they have the power and the authority.  So you can “join” them or align with the court by learning to “play” by their rules. How do you do that? I’m glad you ask.  You need to use something that IS on your side….STRATEGY!  The judge and court have the law and power and authority……………..but you have STRATEGY!

What is STRATEGY and how does it even apply to your Family Court case?  It is the practical and tactical steps you take to achieve your specific goal.  Strategy can apply to any aspect of life where you set goals, aspirations, missions, etc. It’s a matter of  deciding that you will do whatever it takes to achieve success by reaching those goals.  You do have goals in mind with respect to your Family Court case, right?  I mean you are not blindly going through the process without a desired outcome are you?  Well, even if you have been up til this point, it’s time to change that.  You need to approach this aspect of your life as if your life depended on it, because in all reality this is YOUR LIFE!

Strategy is where the practical and the legal overlap.   There is a practical path to get through the process in addition to the legal one.  The problem is that lawyers are only concerned with the legal path.  And the practical side is often overlooked or misguided because litigants need guidance here too.  So, what typically happens in this instance. The parties wind up being forced to settle or getting slammed at trial and feeling victimized by the whole ordeal.  No one wins in Family Court, but not everybody has to lose it all either. But had a solid strategy been developed, followed and revised when necessary, the outcome would have been different.

That’s what this Workbook helps the user to develop, strategy.  It provides information and exercises that will help the user develop a strategy using a step by step process.

It Includes:

This is ideal for ANYONE going through Family Court, divorce or custody case, that would like to approach the process from a proactive stance.   Whether self-represented or represented by an attorney, this Workbook will supplement anything you’ve been using to help you navigate your case.  As a first step or supplement to what you’re already doing, this is a very valuable resource for any Family Court litigant.

If you wish to discuss your options as a pro se (self-represented) party, please feel free to visit here.  If you are interested in our unique Pro Se Family Court Membership program, please find out more here. 

Tagged

Family Court Legal Terms, Commonly Used & Misused, Explained-PT I

Family Court is a very nuanced place, compared to other courts.  It has its own way of implementing procedural rules, of applying the law, or enforcing litigants’ rights. Family court Custody legal terms and phrases, that are often misused by non-legal professionals. Knowing what to say, or not say, is also important. (Read more here on this topic.)

One of the major complaints litigants have is that they don’t understand the “legalese” or “legal jargon” often spoken in court.  Because of this they miss deadlines, file the wrong documents, or worse, violated court orders… unintentionally of course.

It is no secret that some terms are used interchangeably, both correctly and incorrectly so, and compounds things.  Particularly for the pro se litigant, trying to figure out the “right” way to use a word often misused only complicates things even more.

This article will compare some of the most familiar terms and how they differ in meaning despite their interchangeable use.

Family Court Legal Terms Often Confused

Acknowledgement of Paternity vs. Order of Filiation

Acknowledgement of Paternity is a statement (provided by the state by way of a form) where the parents of a child agree that the man that signs it is the biological father.  This form is usually used when the unmarried parties did not acknowledge paternity at the time of the child’s birth/

Order of Filiation is when the court issues a document naming the father as a result of either party bringing a Petition for Paternity on its own or in a custody case.

Access vs. Visitation

Access is the term used in some jurisdictions for parenting time. Same as visitation, it is used interchangeable with access and parenting time in custody cases.

 

Adjournment vs Continuance

Adjournment is when a court reschedules a court date that was originally scheduled for motion, conference, etc.

Continuance is when a court date, usually a hearing or trial, is rescheduled by either party or court.

Admissable Evidence vs. Allowable Evidence

Admissable Evidence is evidence that meets the rules of evidence of a court and can be used in trial.

Allowable Evidence is any evidence that may be allowed because it does not necessarily violate any rules of evidence.

Affidavit vs Under Oath

Affidavit is a written statement made under oath, the person states that they are telling the truth but only in the document.

Under Oath means that the person swearing that they are telling the truth can be in writing or in person.

 

Arrears vs. Judgment of Support

Arrears is the unpaid and overdue child support or spousal support.

Judgment of Support is when action was taken by the court to reduce the unpaid child or spousal support to make either of them executable or attachable.  It can be levied against or attached to the debtor’s assets or income.

 

Attorney for Child vs. Guardian ad Litem

Attorney for Child is a licensed attorney who represents the child in court in custody or abuse cases.

Guardian Ad Litem is someone is trained to represent the child in court, not necessarily a licensed attorney.

Contempt of Court vs. Violation of a Court Order

Contempt of Court can be civil or criminal in nature.  It is up to the laws of the state to determine if the violation of court order can be considered criminal or civil or both.  The punishment for either can range from monetary fines, to a change in custody/visitation to imprisonment.

Violation of a Court Order does not necessarily arise to the level of contempt.  It is usually something that is menial or immaterial, as thus goes unpunished.

Custodial Parent vs. Guardian

Custodial Parent is the parent that has the child live with them a majority of the time.  They can be considered the custodial parent because the parents were never married and the child lives with one parent.  The court can also issue an order naming one parent as the custodial parent as well. The custodial parent can be legally determined in a custody case.

Guardian is ANY party who the child lives with for a period of time or who has authority over a child for a period of time.  A person can be a guardian on a temporary or permanent. The parents can give another person guardianship or the court can order that a person be the guardian in a custody case or a temporary guardianship case.

Default vs Inquest

 Default is when a Respondent (Defendant) party fails to respond to a petition or complaint or fails to respond within the specified time.

Inquest where the Respondent (Defendant) fails to show up in court for a hearing or trial and the Petitioner (Plaintiff) presents evidence and proceeds in the case without them.

In Conclusion

It is always advisable to familiarize yourself with the legalese of Family Court legal terms before you proceed in any case.  The progression of your case and its overall outcome are dependent on this. There are several online resources that make it easier to understand.

Feel free to contact me for a FREE 15-minute consultation here. 

Join my Facebook Group for more support and resources here.

Tagged

Family Court Frequently Asked Questions

Family Court
Family Court Frequently Asked Questions

[booking startmonth=’2021-6′]

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.

Tagged

Divorce Therapy and its Implications

Divorce therapy
Divorce therapy

Are you looking for divorce therapy?

May is Mental Health Awareness Month.

Therapy is something often recommended in divorce, and certainly custody matters. Therapy can take place in many forms and settings, but the focus should be on mental and emotional support. Whether you go to divorce therapy, family therapy, co-parenting therapy or individual therapy (for your and/or your children) it helps to have professional support along the way. (Divorce coaches are another option many are using to help get through the emotional and mental strife that accompanies divorce.)

Child Custody & Abandonment

Types of Therapy in Divorce

There are stages of grief in divorce that include anger, sadness, guilt, fear, depression and shock/disbelief.  (Read more about divorce grief here.)

Having an experienced professional can help you stay focused on the important issues while managing your emotions.  Furthermore, you’re more likely to accomplish your goals if you have someone to help you to see things for what they really are. A lot of truths about yourself are likely to be discovered in therapy.

Individual therapy is usually the route divorcing parties opt for. Individual therapy allows you address pre-existing mental health issues adequately.  Additionally, it allows you to concentrate on your own feelings without feeling obligated to consider your spouse’s needs. To many this is much more beneficial than trying to candidly  discuss feelings while the source of those feelings is present.

Couples therapy is another option in divorce. This route is more laser focused than individual therapy. However, couples divorce therapy can lead to individual therapy if the parties choose. Couples therapy entails both parties talking about and working through their concerns with respect to their divorce. Child custody, visitation, property distribution, as well as communication, disagreements, etc. are all valid topics to discuss here.

Both parties have the opportunity to express their feelings openly to help them understand what happened, to prepare them for post divorce and to help the children get through it successfully.

Family therapy provides a unique opportunity for intervention for the entire family.  Family therapy can take place during or after divorce/custody. It allows the children to express their own feelings and concerns about the break up of the family. Children usually have their own range of emotions to deal with, including guilt, fear, etc. and can benefit from dealing with them in a family therapy setting.

NOTE: This article is limited to therapy in divorce actions, not specifically for custody cases. The topic of therapy and custody will be explored in the upcoming weeks.

The Implications of Therapy in Divorce Court

Although therapy has its advantages, the courts’ perspective on therapy varies greatly. Therapy can a help or hindrance as far as the court is concerned.

Procedurally, having the parties actively involved in mental health services can place a burden on the court’s agenda. Most courts give their cases a time allotment for it to remain on its active calendar. Depending on the depth of Therapy services the parties receive, the case can drag on longer. Also, depending on what the parties are treated for, their ability to comprehend everything that is going on can be jeopardized.

Substantively, the parties receiving therapeutic services  may affect the court’s decision with respect to fault (or grounds), alimony (employability) and certainly custody. (Therapy and custody will be discussed in the upcoming weeks.) With respect to fault, if you are not in a no-fault state (most are no-fault) and use emotional distress or mental cruelty as the basis for Divorce participating in therapy can substantiate that. As for alimony, most states have factors that include the emotional &/or physical health to determine the amount and duration. Same with property distribution (especially in equitable distribution states) a factor that many courts take into consideration is the parties’ wellbeing.

Either way, these things should not deter you from getting help. If you are having trouble working through your emotions, or a hard time understanding what’s going on or can’t seem to focus on your objectives then you should certainly work with a mental health professional.

If you are interested in learning more about how I can help you prepare or defend your divorce or custody case for success in Family Court, feel free to contact me to schedule a FREE Consultation. 

Tagged

Child Custody & Abandonment

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.

Tagged

Guardian ad Litem vs. Judge In-Camera Contested Custody

Guardian Ad Litem VS

Contested custody cases requires the use of “unconventional” methods with respect to gathering facts to help it made rulings.  The parties to the custody action can appear pro se, where they speak for themselves, or by their family lawyers.  But children’s interests must also be given considerable consideration with respect to custody and visitation.  This is routinely accomplished by the use of a guardian ad litem as their voice or by them speaking directly with the judge.

Collaborating with Your Family Law Attorney

GAL as Child’s Voice

GALs are typically used as the voice of the child in contested child custody and visitation cases.  The guardian ad litem is supposed to be an impartial, objective person who represents the child in high conflict custody cases. (The ABA standards for GALS Statutory Provisions For Guardians ad Litem )They are responsible for advocating the “best interests of the child” standards for their client.  They are often appointed by the court, either at its discretion or either party’s request, to report to the court the best interests of the child. They are lawyers, social workers or any other qualified professional appointed by the court.  They use several measures to gather evidence, explore allegations and to report to the court based on these.

Judge In-Camera Interviews 

The alternative to a GAL reporting to the court, the court can speak directly with the child(ren) in custody cases.  In some instances, the judge can conduct an “in camera” interview where he/she speak directly to the child in closed court (or in judges’ chambers) with a recorder or court reporter present.  The thing with in camera though, is that judges are reluctant to conduct these. They’re reasoning is that children are fragile and should be shielded from the dissension involved with custody battles. In fact, there are very few instances where a judge would voluntarily subject a child to the emotional and mental turmoil of litigation.

Guardian Ad Litem vs. Judge In Camera

Each state has a age limit for when a child can express their preference with respect to which parent they would like to live with.  Children under 12, generally, do not have a “say” and thus the GAL is most often the sole source used to help the court to make it’s determination. Children 12 or older, on the other hand, may have the option to speak for themselves.  Even though older children can speak for themselves,  the extent to which they are permitted varies. The amount of weight given to the child’s preference, varies from state to state and from case to case.

Advantages to Either Option

In some instances, it’s beneficial to opt for a GAL, as opposed to an in-camera, no matter the age of the child. For example, in custody cases where there are allegations of alienation or manipulation then a GAL may be best suited to speak on the child’s behalf.  The GAL will take the time to meet with the child; speak with each parent and/or their attorney  (if they deem it necessary); talk to teachers, medical and mental health professionals who have worked with the child; review necessary reports, notes, etc. and whatever else they need to devise an adequate report for the court.

However, in cases where in cameras are permitted then this is the better option in other cases.  In cameras, however time constraints is a big issue.  In addition, the attorneys’ input is limited as they are usually only allowed to submit a list of questions to ask the child in lieu of their actual presence.  The GAL is the only other person permitted in the in-camera, as their job is to ensure that their client’s rights are not violated by the court. The major advantage of in camera interviews though is that the whole proceeding is recorded and the parties have access to the minutes of the recording.  This can a major strategic advantage for either side when preparing for trial.  GALs do not have to record any such interviews with their clients and therefore, are not required to make any such recordings available.

In conclusion

The point is that in some cases the parties don’t have a choice, they must rely on the input of a GAL instead of an in camera.  And although they might have the option to avoid both, they should understand the limitations and benefits.

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.

Tagged

Collaborating with Your Family Law Attorney

Family law attorney gets the worst wrap in the legal field. Let’s be honest, they can be the most difficult to work with in divorce and custody cases. They often Family Law Attorneycome across as unemotional, they barely recall important facts, they fail to communicate effectively and they totally ignore your wishes at times.

Data reports that more than half of family law clients are disappointed in their attorney’s services. Also, with respect to the overall profession, family law attorneys are hated more than any other specialty.  Despite these statistics though, working with the right attorney on your divorce or custody case can get you favorable results.

You have Rights as a Client

You get to dictate how your case is handled. That’s right you have the right to determine which moves your attorney makes on your behalf. I bet you did not know that huh. Well…technically you do but there’s a caveat.  Most competent attorneys will not give you complete authority, afraid that you make foolish decisions. They do have ethical obligations to give you the necessary legal information to make informed decisions. And when they do, and you insist on deciding against it, they can withdraw from your case.

So although it is your right, it may not be the wisest thing to do. Why, you ask, would an attorney take issue with his or her client exercising their right? Well because the attorney’s job would be pointless if they didn’t. Attorneys have egos and a client who goes against their own lawyer’s advice bruises their egos. Just kidding. The real reason is multifaceted but the bottom line is they have an obligation to you, the system and the bureaucrats that oversee the legal process.

What You Say in Family Court Matters 

Your Attorney Expects Things of You

Most attorneys have objectives that go way beyond providing you with the best representation.  Of course it’s important that do their best to get you the results discussed.  But it doesn’t end there attorneys have ethical obligations, professional aspirations, track records to establish & maintain, etc.  So if they anticipate anyone or anything that will interfere with these, they might think twice.  In plain English, you have a responsibility to your lawyer too.

At the top of the list is honesty, you owe it to yourself and your case to be honest with your family law attorney. If you can’t be candid with your divorce or family law attorney then you can’t be trusted. Your divorce attorney has the fate of your future in their hands so it’s imperative that you tell the truth about everything that matters. Cooperation is next, you must be willing and able to work as a team with your lawyer to see favorable results.  Communication is also important, keeping the lawyer in the loop with what is going on helps them to prepare for the necessary next steps.

Meeting in the Middle

To get the help you need you need to understand what your rights are but also what your responsibilities are too. It’s extremely important to find the right lawyer for your situation, there’s no doubt about that. However, you put all responsibility on the lawyer, you must do your part too.  It is prudent for you to have a clear discussion about the expectations, the process, the outcome, etc.  Although this discussion should be had very early in the attorney-client relationship, all is not lost if it happens any time after.  The point is, be upfront, ask questions, be clear, be cooperative.

In conclusion

How your divorce or custody case proceeds in court is up to you. Don’t be so quick to blame your lawyer for what goes “wrong” in your case. Before you “hate” or badmouth them for what they are not doing, ask yourself if you did your part.  It takes teamwork to get through these sort of situations.

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.

Tagged

We would love to stay connected.

Join our email list to stay in touch to get deals, discounts, tips, etc.

 
The Diavorce Solutionist

Work with an experienced family law professional that can get you the results you want. With a unique method of focusing on Strategy, not just law, you will get the guidance, support and information that will help you navigate the process successfully. Don’t waste another dime or minute on doing things the way you have been.

Quick Links

Ways We Can Help

Contact

  • +1- (862) 800-7850
  • tracey@thedivorcesolutionist.com
Copyright © 2023 The Divorce Solutionist.