When going through a custody dispute, whether from divorce or custody coming to an agreement in custody &/or visitation can be taxing.  A parenting plan, custody order or parenting agreement are all a part of custody matters.  It is a legal and binding document that addresses how each parent will split time, their rights & responsibilities when the child(ren) is with them and, sometimes, the consequences for breach. Although most states have a standard parenting plan it recommends, parents often have their own idea of how they’d like to coparent and split time. Parenting plans are necessary regardless of custody. However, the details of the various relevant topics vary according to the type of custody each party has. Sole custody situations have a slight variation in how parenting plans are approached.

Types of Parenting Plans

 Step Up Plan-

This plan is typically used in cases where the child is very young and the non-custodial parent has had little to no contact with the child.  This plan aims to gradually increase time or access between the NCP and the child.  The graduated time schedule is often based on the developmental stages of the child while allowing ample time for a bond to develop between them.

 

Joint Custody Plan-

This parenting plan gives both parents equal time and/or equal decision-making abilities.  This applies to joint legal custody, shared or 50/50 custody arrangements.

 

Sole Custody with Visitation Plan-

This plan usually only addresses a time schedule for access/visitation for the NCP parent.  When one parent has sole custody, they have full authority to make all decisions regarding the child’s day to day.

 

Long Distance Plan-

When the parents live a distance apart, this plan gives extra attention to things like the cost of travel, the means of transportation, etc. The access or visitation time is usually different than other more conventional plans. (Read here about long distance parenting.)


Long-Distance Co-Parenting

 

Common Provisions in Parenting Plans

 Most parenting plans cover some basis topics that apply to all families no matter what the dynamics (except for sole custody.) These include:

  

Controversial Provisions in Parenting Plans

            Although there are some pretty standard provisions in most plans, there are some that aren’t but parties routinely request them.  The policy issues behind parents coming up with plans that they can live with are based on efficiency.  The courts’ objective is to keep conflict to minimum so that litigants are not running back to court to help.  As a result, most judges will strongly urge AGAINST including things referred to as “morality clauses”.  These are provisions that focus on things that are of a moral interest.

There are also provisions that are not of a moral nature but that make enforcement of them nearly impossible. Although a plan is a court order and binding on the parties, enforcing it is entirely up to them no one is going to monitor them.

Here is the list:

 1.  Right of First Refusal, ordering that each parent uses the other as backup instead of a third person. There is not always practical depending on the circumstances.

2. No Paramour Exposure, limiting either parent from having a romantic interest around the child. This goes both ways, so the one supporting this usually is the one to want to change it.

3. No variations without Court Intervention, limiting ether parent from making adjustments to schedule amongst themselves. This can be expensive and create more conflict.

4. Child’s Choice to Visit, letting the child choose when & if they spend time with other parent. Younger children are not qualified to make this decision soundly.

5. Child Not Allowed to Call Others Mom or Dad, children can’t use any variation of Mom/Dad for stepparents. Children often decide on their own to call their stepparents Mom or Dad.

6. No Badmouthing the Other Parent, morally this should be an automatic. This is not a likely reason to seek Contempt if either violates.

7. Stepparents are Not to be Involved, stepparents are limited in the day to day of the child when the bio parent is exercising their visits. This is impractical and almost impossible, also may not be in the child’s best interests.

8. Custodial Parent to force Teens to Visit, forcing a teen to visit with the other parent when they refuse. This may be difficult to enforce since the child’s preference is a factor considered.

9. Parties to Agree on Visit Schedule, the parents are to agree, on their own, when visits will be exercised. This leaves the custodial parent with way too much power.

10. Relocation Geographic Limits Based on State, limiting or restricting the ability to relocate to within the current state. The limits should be based on miles because even within state relocations can cause issues with respect to visits.

 

    Things to Consider when Creating the Plan

These provisions are the reason why negotiating the plan details takes a lot of things to keep in mind.

  1. Keep emotions out of it as much as possible.
  2. Focus on the needs of the child(ren).
  3. Remember that your child(ren) will be going through a tough adjustment period.
  4. Be reasonable. What works for one works for the other.
  5. Think short term and long term.
  6. Know what your state laws are.

 

In Conclusion

As parents, you are subject to continuous litigation no matter what.  However, if you can minimize the likelihood of being sued for contempt of court then it makes sense to.  A well thought plan does not mean one that oversteps in its application.  Sometimes, less is more.

If you need help developing a solid parenting plan, please feel free to visit my Unbundled Services page here.

Parent Education
Parent Education

I’m a big advocate for parents improving their knowledge, skills, aptitude to be the best parent they can be. Parent education comes in various forms and numerous methods. Some are much more advanced than others, but it doesn’t hurt to participate in the basic ones.

What is Parent Education?

Parent education is the training, informing, or preparing parents for the challenges of raising children. Although parent’s education is available to any parent at any point in their parenting journey, they don’t typically seek help until they are embroiled in a custody battle.

Parent education can help parents learn to communicate more effectively; use positivity more often; discipline without harshness and so on. Parenting education can address everything from emotional/behavioral techniques to financial skills, they vary.

Parent education can be delivered in the form of in-person classes, live stream workshops, recorded webinars, even self-study programs. They vary in their duration as well, some are several weeks while others can be as long as three months. (Read more here on the different types of parents education programs.)


Divorce Therapy and its Implications


Parent Education and Divorce or Custody

In many states, the courts require that parents participate in parent education programs when a divorce is filed or a Custody proceeding commenced. Approximately seventeen states have mandatory parent’s education when divorced is filed, whether contested or uncontested. (NJ, for example, has enacted the Parents Education Act, N.J.S.A. 2A:34-12.1 to 2A:34-12.8).

The courts have an objective in mandating or encouraging participation in parents education. They want to minimize conflict amongst parents and to ensure that the children receive adequate support from the parents during the very emotional process.

From the court’s perspective, there are advantages to the parents and the children of divorce where parenting education is incorporated. For the parents, they learn to resolve conflict on their own and not involve the courts. In addition, parents get a better understanding of their respective obligation to provide for their child(ren)’s financial needs. As for the children, they usually do better academically, transition to their new life easier, and behave appropriately in their environments. The court has a vested interest in children dealing with the divorce appropriately. Again, it keeps the parents out of court for Contempt or Modification petitions.

In some custody battles, it is advisable to parent education courses whether it’s mandatory or not.  In a case where one parent has a history of questionable discipline tactics, for instance, presenting evidence of parent education completion can allay the court’s concerns on this topic.

The Mechanics of Parent Education Programs

There is usually a fee the parents have to pay for the parent education program. The fees typically range from $25 to $100. (These fees can be waived in some instances.) Nonprofit organizations and associations are most often the providers of these programs. Each state has its process of accepting or approving the parents education programs.  However, most of them have clear requirements that the programs must meet to meet the standards for approval.

There can be consequences for either parent’s failure to participate or complete the parent’s education. Of course, where they are mandatory the consequences are harsher. Failure to adhere to the court’s requirements, depending on the reason, constitutes violating a court order. Sanctions for such violations range from a change in parenting time to delaying the final judgment or order of divorce.

In conclusion

Parents education resources are not hard to come by. In all instances where parents feel they can benefit from the insight they provide they should be sought out. The advantages of the programs far outweigh the costs in almost every case.

If you wish to speak to me about your custody or divorce please feel free to contact me for a FREE 15 min consultation.

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.

15 Minute Free Consultation

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 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.

15 Minute Free Consultation

best interests of the child

Each state has some sort of guidelines when it comes to deciding the best interests of the child.  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.

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guardian ad litem

 

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 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.

Contempt in Family Court
Making the best decisions

I’ve touched up contempt in family court several times in the past. But what is or is not contempt in family court matters is worth a lengthy discussion. It is defined as “the offense of being disobedient to or disrespectful toward a court of law and its officers…”.  (Wikipedia) This covers orders, rulings, decisions issued by a judge of court.  So basically when a party to an action is ordered or directed to act or not act and they do the opposite, they are acting in contempt.


Change to Child Custody Arrangements during Covid


Family Court Order vs Other Court Order Violations

Family court orders typically come about by examination of a confluence of things.  Laws, statutes and regulations are just a part of what comes into play. Social norms, public policy issues and bureaucratic influences also have a significant impact in family court decisions.  In other courts, criminal court for instance, the application of the law has a much bigger influence.  And as a result, acts of contempt are generally more explicit.  The court order is usually clear with respect to consequences for disobeying it.  Violating a criminal court order usually entails a fine and/or incarceration because the violation is usually against the court itself or public policy. In family court, on the other hand, no such clarity exists.

First off, making a “finding” that contempt actually happened is not as clear cut.  Non-compliance is usually the court’s finding, which is very different from contempt.  When someone violates a family court order by not paying child support or spousal support, not following a custody/visitation order or ignoring provisions in a divorce judgment they are not necessarily in violation against the court itself.  Their defiance is against the other party. Next, family court violations need to be examined in context, not on isolated bases. This too, makes them privy to being viewed as less egregious as criminal court violations.  And last, family court orders tend to include lots of provisions where execution is conditioned upon other provisions being executed.

Actual vs. Perceived Contempt in Family Court

As I mentioned, what may be thought of as contempt may in fact be viewed as violations, non-compliance, etc.  Although by definition there is no distinction, what matters is how the court views it.  The court is the factfinder and it will determine what rises to the level of contempt using a different level of scrutiny than it would in any other court.

Let’s examine a few scenarios to get some insight on how the court views violative behaviors.

  1. Court order directs that the non-custodial parent (NCP) pays the custodial parent (CP) $500 per month for child support.  After 3 months of missed payments, late payments or partial payments the CP seeks contempt against NCP.
  2. Court order states that the NCP is to exercise their visits with the child every Fri. eve at 6PM until Sunday afternoon at 4PM. In the past several months, CP repeatedly shows up to drop off an hour or two late.
  3. Court order, by way of Divorce Decree, orders that the Defendant is to turn over all personal property in their possession within 30 days of the Decree. 90 days have passed and Plaintiff still has not received any such property.

Although all of these scenarios clearly exhibit some violations, non-compliance and/or disobeying court orders, they rarely arise to the level of “contempt” in a family court setting.  However, when these acts are considered in context, reviewed in light of other issues in the case, a finding of contempt is possible.

Strategy
Strategy

Making a Case for  Contempt in Family Court

Although the elements of contempt are usually spelled out in some form, the courts usually use a less stringent standard of proof in family court.

The key to getting the court to make an actual contempt ruling requires a strategic approach.  You need to look at the violative behavior in with a look at the entire case. This means looking at past behaviors, considering the judges position of related issues, social norms, local practices, etc.

So when you are faced with a repeated nonpayment of support it makes sense to consider the NCP parent’s track record with paying, if there is an issue with ability to pay because of a change in employment, if the court had to reprimand NCP previously for nonpayment and so on.  Additionally, you should ask yourself “what is your judge’s history with this particular violative act”.

When the issue is with late drop-offs or early pickups, consider things like quality of visits, ability to makeup for lost time, the harm done to the children, etc. Again, what your judge’s views are on this issue, what the judge would say or do in this situation, etc. are also very important.

When you are faced with making a case for contempt, one great source to refer to is the actual order itself. Review it over and over again if necessary, to see if there are any “gray” areas of interpretation.  Read it from the other party’s perspective to see if there are any viable potential arguments they can make.  Read it to with a view from the judge’s viewpoint to see if their intent was clearly stated.

Sum it Up

In conclusion, understand that what you may perceive as a clear case of contempt may not be considered such by family court.  It is a good idea to think, plan and strategize on what your next move should be in the event of violations of your court order.

I recently suggested to a group member that she refrain from referring to her child as property in case of child custody. Her post had a part where she said “keep my child all to myself.  She was asking for advice on whether she should let the Dad sign the birth certificate when their child was born. She wondered if his rights would be trumped by hers is she didn’t. Well she didn’t like what I said but I was only trying to help her avoid unnecessary headaches later on. There are advantages to keeping the Father’s name section blank, no doubt about that. But some of those benefits cease to exist when he seeks to enforce his rights.

Fundamental rights as parents

child custodyChildren born out of unmarried relationships are not chattel, no more than ones born out of marriage are. They don’t belong to either parent over the other like s piece of property. They may be one or both parents’ responsibility but certainly not their possession. In this country, all parents have fundamental rights and one of them is access to their blood related child. To have those rights infringed upon or terminated requires isn’t easy. It entails a process that goes beyond just opting out of have dad sign the birth certificate. Not to say that abusive parents’ rights trumps their child’s safety or well-being. But they are certainly entitled to due process before those rights can be taken away.


Should You File First in your Custody or Divorce Matter? 


In most states children born outside of marriage are the legal custody of the parent who has the child with them. In most cases this is the mother but can be the father too. Their laws expressly state that “legal custody is with the mother who gave birth of that child until the child reaches age 18.” However, what this implies is that the mother can make any and all decisions for the child.  And although this is true, the father can fight this at any time.

“Presumed” legal custody meaning & implications

When the mother has legal custody as a result of unmarried status, this is “presumed” custody. Presumed is “a legal inference that must be made in light of certain facts.” So that means that the fact that mom delivered the baby and has baby with her, that her having custody can be inferred.  This is different than if a court of competent jurisdiction had determined she had custody. In other words, presuming custody did not involve an assessment of her being “fit” enough to have custody.

Rights with “presumed” legal custody

A parent who has presumed custody has some rights, until the other parent challenges them. All decisions with respect to medical, educational, residence, etc. are totally up to the presumed parent. A parent with presumed custody can get a passport for the child, can relocate without limitations, can choose homeschool over in person, and so on. However, if that parent seeks government assistance of any kind other issues may arise.

The problems surface when Dad decides that he wants to have more inclusion or thinks he can do a better job. So, whether he’s on the birth certificate or not, he can challenge custody. As long as he knows he’s the father and decides to exercise his rights, all of Mom’s sole authority ends.

Having presumed custody does not mean you have to deny the father of access to the child. In fact, facilitating and fostering some type of involvement may work in everyone’s best interest. However, it is important to note that allowing the father to have contact before paternity is established can be tricky.

Disputing “presumed” legal custody

Presumptions can be rebutted. Inferring something exists because of the facts available only means that anyone can prove otherwise. In custody situations, Dad can rebut the presumption of legal custody by proving that he has rights as the father. To do this he must establish paternity in one of two ways. First, he can sign an Acknowledgment of Paternity, where both parents must complete and sign a form from his local government agency. The other method is done by filing a petition in court and having a judge order a DNA test which results in an Order of Paternity.

Once the father establishes paternity his right to visits, decision making and custody are all up for debate.   His rights as Dad automatically take effect and he is entitled to almost everything that Mom is entitled to.  The courts will level the playing field so to speak. So a mother who has had presumed legal custody will not be given more consideration in court just because paternity was never established. Conversely, a father will not be at a disadvantage because he was not on the birth certificate or because he never sought paternity until the court proceeding.

Conclusion

In sum, unless your child was created by an anonymous sperm donor, both parents have equal rights to access to their child.  Our legal system sees both parents involvement as a necessary component to their children’s growth and well-being.  This is the starting point in all cases, whether that is the case for every parent is to be determined by the courts.

Schedule your FREE 15-minute consultation with me if you would like to discuss affordable options for divorce or child custody.

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pro se divorce

Pro Se Divorce or Pro Se Child Custody – Which is better?

Attorneys, judges, legal personnel all think pro se divorce or pro se child custody litigants are insane. Even with Uncontested Divorce, they believe that taking the risk of botching the child custody or child support terms is too high. For those of you who need clarity, a pro se litigant is:

“someone who argues his/her own case in a lawsuit, rather than having a lawyer represent him/her and do the legal work for him/her. “Pro se” is Latin for ‘on behalf of oneself’.”

Why Pro Se?

Now that you know what the “professionals” think about you handling your divorce or child custody case pro se, let’s explore if YOU should. There are several reasons why people choose to represent themselves. First, the cost of divorce can bankrupt you really quick. I spoke with women who said that they have spent upwards of $200,000 in legal fees for their divorce. Yes….you read that correctly. When you factor in the cost of financial experts, guardian ad litem fees, etc. it is conceivable. Next, the emotional toll many people endure is enough to lead them to the pro se route. And let’s be honest, the fisticuffs come out blazing when allegations of abuse, disputes over money and battles over custody arise. Last, the need to get it over with so that one or both parties can move on in their lives. That usually means moving onto a new relationship, journey or lifestyle. 


Will the Court Award Sole Custody 


Is Pro Se for You?

The question still remains though, is pro se representation advantageous for you? Every situation is different so don’t be influenced by your neighbors’ story. You must look at every single detail of your circumstances from a strategic standpoint. Yes the law is significant too but strategy is key. That means looking at how the law applies to your strengths as well as your weaknesses of your case. In addition, you must weigh the strengths and weaknesses of your ex’s or soon to be ex’s case and analyze them together.

In instances where there are no children and/or no property, pro se divorce or pro se child custody is often a no brainer. However, when there are children then you must examine the ramifications of any potential custody agreements and how it will affect child support. The same with respect to assets or liabilities, you must consider the possible outcomes of any split or distribution. Knowing the law is not all there is to it, you must know the exceptions too. 

 

Let’s look at some scenarios:

Scenario #1: Mr. & Mrs. X are going through a split and they both want sole custody.  Neither of them have issues with being “fit” or “unfit” so the decision will come down to several factors but one factor takes precedence. If they reside in a “presumed” joint custody state, where the courts will assume that joint custody is in the best interests of the child, then fighting for sole custody will inevitably require a trial. Not a good idea to try this without the help of experienced legal professionals. 

Scenario #2: Mr. & Mrs. Z, Mrs. Z was a stay at home mom for 10 years while Mr. Z worked full time and provided for the family during that time. Mrs. Z is asking for joint custody with a parenting arrangement that fits both parties’ schedules, child support (based on their state’s statutory guidelines) and a split of the proceeds of the marital home. Although this may seem impossible to many, this scenario has the potential to be resolved amicably amongst the parties.  

 

The Possible Consequences

No matter how well prepared you are, how skilled you are at presenting your case or how knowledgeable you are with the laws, there’s a very good chance that your case will lead to nefarious consequences. Why? Simply because you are not an attorney. 

Pro se litigants generally turn the courts off because they have low and negative expectations of pro se litigants. As a result, courts often just put up mental and emotional barriers at the very mention of “pro se litigant”. Right, wrong or indifferent, this is the reality. What happens though is that they focus more on the “wrongs” so much that they overlook the merits of the case.

Not to mention, if your court renders an unfavorable decision or order on your case in your pro se action, you are stuck with if for the most part.  Your only recourse is an appeal, which is very expensive and time-consuming.

 

What are your options?

So with the explosion of legal resources on the internet everyone thinks they can handle any legal matter on their own. There might be some credence to this thinking but you must still choose wisely. There are great options available to help pro se litigants now. Some of these include divorce consultants-strategists (like myself); document preparers (we offer these as well), paralegal support services, etc. Even though these options are widely available now, you should still use discernment.  Other viable options are your state’s free resources, nonprofit organizations like Legal Aid and limited service attorneys to name a few.  Whatever option you decide on, it is crucial to understand exactly what you might be risking in the process. 

 

In summary

The bottom line is this, being pro se is not an automatic catastrophe, just don’t rush to decide. Do your research. Get consultations. Make a fully informed decision.