The Diavorce Solutionist

Use Your Appearances as Part of Your Strategy, Part Two: The Family Court Status Conference

Last week I started a 3-part series on incorporating strategy in Family Court appearances. The goal is to show you how having a solid game plan enables you to position your case advantageously. Last week I focused on the first court appearance in custody or divorce, the Initial Conference. This week’s focus is on using the Family Court appearance that follows the Initial Conference, the Family Court Status Conference as part of creating your strategy.

What the Family Court Appearance Status Conference Is

A status conference, in divorce or custody, gives the parties the chance to update the court on what has occurred since additional documents have been filed, to follow up on how temporary orders are working, or to check-in whether certain conditions have been met. The court will want to know how things have been going with respect to visitation to see if things can be resolved without a trial. If at the last court appearance either of the parties was self-represented, the court will want to know if that party(ies) hired a lawyer.

If the judge ordered certain procedural things, like a drug/alcohol screening, a mental health evaluation, or a home investigation, it would follow up with whether those things have been done. Also, if a GAL has been appointed, then the court will want to know the status.

The Goal of the Family Court Status Conference

Family Court, like most other courts, has an interest in saving time and resources. This means that the judge will always aim to get the parties to settle their case.  Family Court appearance Status Conference in custody or divorce is slightly different than the Initial Conference. The court’s hope is that by employing the tactics or measures mentioned above, they will flush out the perceived issues from the real ones. A custodial parent who insists that the noncustodial parent is incapable of taking care of their child for more than a few hours may realize that that’s not a real concern. The court will examine resolution tactics outside of a trial, like mediation. If the court decides on an alternative dispute resolution, it will set dates for the parties to adhere to.

A Discovery plan might also be discussed at a status conference. This usually entails setting rules & restrictions on Discovery as well as a timeline for the exchange of Discovery.

The last major thing to be addressed in a status conference is overall scheduling. In addition to setting dates for mediation and Discovery, the court will also set a deadline for any motions or amendments to petitions. In addition, the court might establish a pretrial conference date and a trial date.

The process for the status conference might differ when both parties and one party is self-represented. The court will try to encourage pro se litigants to get an attorney at this stage of the case with the thinking that they’d be more inclined to settle.

Using this Family Court Status Conference Strategically

This is the time to use what you have gathered outside of the courtroom, because of the court’s directions, to your advantage. In other words, the orders the court issued, the procedures the judge directed, etc. all offer you vantage points that didn’t exist before. You might have had suspicions about some issues that question the other party’s “fitness” as a parent. Or questions about the safety conditions of the other party’s home. Or speculation about the mental or physical health of the other parent. Either way, the status conference is the ideal time to gauge the court’s position on these specific issues. If, for instance, you mentioned your concern about drug abuse and the judge ordered drug screenings, then this shows that the judge takes this issue seriously. How many times have you raised concerns in court that were dismissed by the judge, often I bet? But if the judge thinks the issue, you raise has some semblance of merit, they will respond accordingly.

The other strategic way to use the Status Conference is by incorporating the information you acquired to help you decide if you should settle or proceed to trial. At this stage of your case, there have been several discussions about settling at least a portion of your case. However, having the results of tests or investigations only helps you to make a much more informed decision when it comes to negotiations.

And last, if you are pro se (self-represented) you can learn a lot about the court process, the laws, and the local procedures at the status conference. You should always be on full alert, listening, watching, and taking mental notes.

In Conclusion

Every stage of your case offers some advantage as it progresses along. You might see going to court as a war zone, triggering all sorts of emotion, while I see it as an opportunity. Any time you are in an environment where you can learn the opposing party’s objective, you should see it as a potential advantage.

My new Pro Se Family Court Membership Program is the perfect solution to your custody or divorce situation.  Having a solid game plan that focuses on using strategy can make or break your case.  Interested in the details? Check here.
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Pandemic Parenting: Covid Impacts on Co-parenting, Custody, Visitation

So many people have been asking about pandemic parenting, co-parenting, custody, or visitation.  The real issues arise when one of the parties, or child, comes up with a positive test result.  Up until recently the thought of positive test results for many, especially children, was illusive.  But now with these new variants, that’s more of the reality for many.  Regardless, these times we are currently experiencing can’t compare to any other such time in our living history.  So the courts, like its constituents, are still trying to make sense of all of it.  Things like, to vaccinate or not vaccinate, to allow virtual school or in-school sessions, to enforce visits or suspend them…are all examples of issues plaguing the Family Court Law.

Pandemic Parenting

Pro-vaccination vs Anti-vaccination Parents

It is no secret that most judges are very conventional in their view on vaccinations, the Covid vaccination is no different.  So in the past when a Family Court judge was presented with the issue of whether a minor child should be vaccinated when one of the parents opposed, the outcome was almost always predictable.  Judges would almost always override the opposing parent’s authority by ordering that the child gets a vaccination, except in rare instances. The reason judges have always been mostly pro-vaccination is that they relied on science, data & statistics to support their position.  The only exception was when the child’s treating doctors recommended against the vaccinations for medical reasons. Even then, the level of scrutiny was always above the norm.  Judges are almost in agreement that Covid vaccinations are the safest bet for all involved.

Virtual School vs. In School Session

This issue is a new phenomenon to some degree.  If either parent has sole legal custody, then this is not an issue, that parent gets to decide.  The only exception is if the other parent seeks to change or modify the sole legal custody order. In that case, the issue of in-school vs. virtual can actually serve as the basis for the modification. In the past, the issue that most resembled this one was homeschool vs. in school.  The courts in those cases were inclined to rule in favor of in school.  This started to change in the past few years when homeschooling became a viable option.  When the data showed that homeschooled children were actually doing better academically it became easier to influence the courts.

However, the issue with Covid is a little different.  Academics is not really the focus in these pandemic times, it’s about safety.  This makes this issue very tricky because it’s not necessarily the safety of the target child but of the entire school population.  Judges are forced to consider whether the parent’s “right” to send the child to school should be trumped by the safety of the public (school). Although judges are still obligated to apply the best interests factors (which vary from state to state) to help it make its determination.   But even with that in mind, they can’t ignore their duty to keep the public’s safety in mind even if they don’t state it.

Covid Positive: Suspend Visits vs. Enforce Visits

This is where things get very volatile.  If a parent (or their paramour) or a child tests positive, should the child stay where they are, return home, or do something else.  Better yet, what happens if the child is in a blended family and one of its members tests positive, how should visits happen then?  These are all very likely scenarios and have been happening a lot.  The courts are all over the place with this issue.  In New York, for instance, the courts are ordering that custody orders be exercised no matter what anyone’s (or their family members’) Covid status is.  This means that if the child has Covid or the parent who is supposed to have visited has it, the visits are to happen regardless.

The other scenario is whether a positive child who was exercising visits with a non-custodial parent should return to their home. Either way, the rationale is that both parents still have rights to their time with the child.  The courts have always taken the position that parents can take care of their sick child during their respective visitation times.  And them testing positive for Covid doesn’t change that.

The CDC, on the other hand, suggests quarantining and so are doctors who are treating the Covid positive parent/child.  They are recommending that the child not expose anyone else to the virus by leaving their environment.  So who should influence the judge more, the rights of the parents or the medical community? This is not really a “best interests” issue, as much as it is a public safety issue.  The child’s well-being might be affected if visits are suspended because of either way someone is missing out on their time.  But the time can be made up once the positively tested party is cleared.

Theory vs. Practice

In a practical sense, the only issue that might be worth going to court over is school.  In theory, to vaccinate or not to vaccinate is disputable. But what if the other parent gets the child vaccinated before court involvement?  You can’t unring a bell, meaning you can’t unvaccinated the child. So the issue then becomes one of Contempt.

The same with the visits, if the disputing parent decides to proceed to court it might be too late.  By the time the case gets in front of a judge, the visiting time has already passed.  So, again, the issue presented to the court would be about Contempt, Modification, or both. Either parent can conceivably seek to modify a current custody order based on how this issue was handled. The way the other parent exercised judgment, for example, deciding to ignore the doctor’s recommendations, can be considered in a modification case.

The school issue, on the other hand, is always a relevant one.  It’s the only one of these issues that can change at any time.  So, in other words, it hardly ever becomes a moot issue.  The judge’s decision has the propensity to take into account things that might happen in the future.  So it’s best to get the court involved at any time when Covid, or any other issue, has a direct impact on academic performance.

Final Thoughts on Pandemic Parenting

The courts are still all over the place on some pandemic parenting and other pandemic-related issues.  So I strongly urge Family Court parties to get a consultation from a local family law Attorney Family Court.

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Step or Blended Family in Family Law

A step or blended family is a family that consists of parents and children who are not biologically related, the parents are remarried or cohabitating with someone other than the biological parent. Blended families make up almost half of all families in the US, according to Stepfamily.org. That means that a large amount of children are being raised in a home with one or more non-biological adult and children. This arrangement raises several family law related concerns, moreso than the mundane issues. Let’s take a look at how the various legal concepts apply to step families.

Coparenting in Step or Blended Families

Coparenting within a step or blended family is a little different than coparenting amongst solo parents.  Although coparenting amongst solo parents poses challenges, co-parenting amongst step families takes on a different set of challenges.  

Depending on how the custody agreement arose, whether it came to be as a result of a settlement (verbal or written), a court order or negotiations, the way coparenting happen looks different.  It is not uncommon to overlook custody provisions that specifically address stepparents’ rights and responsibilities. It’s obviously not because stepfamilies are rare.  Stepparents are not discussed in custody agreements because the courts don’t have jurisdiction over persons who are not parties to the action.  However, some parties are savvy enough to ask that specific provisions be included, making the parties themselves responsible for their partners compliance. One of the ones I see often is a provision that speaks to if and when the child can call the stepparent “Mommy” or “Daddy”.

What You Say in Family Court Matters

Additional provisions that may be included in custody agreements are; whether and to what extent the stepparent can discipline the child, if they can consent to medical treatment, if they are allowed to access school records or attend events, etc. Even if some of these NOT covered in the actual custody document, federal and state laws govern the rights of stepparents with respect to health and education. Stepparents cannot consent to medical treatment of a stepchild, even in emergency situations. They can transport the child to the hospital or medical appointments but need written consent to do more than that. Consent to treatment requires written consent from the parent/spouse who must have joint custody or legal custody.   

Same with respect to accessing school records or attending school events, consent (although written consent is not required it is recommended) from the parent/spouse is needed.  As for discipline, no specific laws address stepparent rights in the event the custody agreement fails to mention it. However, the extent to which a stepparent can discipline a stepchild relies solely with the biological parents (as long as it is within the legal confines of their state). Whatever rules the parents agreed to also extends to stepparents. Nonetheless, it is prudent to cover stepparent discipline in the custody agreement. Stepparents should be viewed as authority figures, of course, and should step into that role with confidence but boundaries should be established and maintained.

Custody/Visitation in Blended Families

There is a difference in step parents rights and responsibilities in sole custody arrangements.  In sole custody households, the biological parent does not have to confer with the other when making major decisions.  However, in joint custody, shared custody or 50/50 arrangements, this is not the case. (For a detailed explanation of the difference in custody arrangements go here  http://www.thedivorcesolutionist.com/will-the-court-award-sole-custody).  When consent is required in joint custody arrangements, there are times when that consent can be trumped by the other biological parent.  However, situations that do not need consent, still make copaStep or Blended Familyrenting amongst stepfamilies difficult. The issues that directly affect custody/visitation are communication, pickups and dropoffs, attendance at special events, household rules, etc. For the most part, stepparents are to adhere to the provisions of the custody agreement even though if they are not mentioned in the agreement.  Furthermore, stepparents should not meddle in communications or discussions between biological parents except in exigent circumstances. Particularly in high conflict custody arrangements, stepparents should keep their input or involvement to a minimum. Maintaining boundaries should be paramount to ensure coparenting goes smoothly.

Child Support or Financial Obligations in Blended Families

Child support guidelines applies to biological parents but can bring stepparents into the fold. The purpose of child support is to ensure that children have the benefit of maintaining the same or similar standard of living as if the parents were still living in the same household. However, this principle gets tricky in its application when children have the addition of a stepparent and their income. Although the courts cannot obligate stepparents to provide for children that are not biologically theirs (except in adoption) they cannot ignore the windfall uncalculated income provides. A payor non-custodial solo parent should not have to give up more than his/her proportionate share of income to a payee custodial remarried parent who has the financial advantage of another income in the household.  

What happens with child support in stepfamilies? Well, most courts will not “add” the stepparent’s income into the formula.  However, what they are permitted to do is to “consider” the stepparent’s income when deciding if they should deviate from the child support guidelines.  And where there a huge disparity in income, and thus standard of living, they will try to balance them out by applying its discretion. 

Conclusion

In sum, stepparents should take every aspect of the new family dynamics into account before taking on the role in a step or blended family.  Although having a custody agreement in place helps a lot, it is nearly impracticable to follow every provision to the letter.  Emotional bonding, physical conditions and financial limitations can make implementation even more challenging.  

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