The Diavorce Solutionist

Grandparents Rights

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

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

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


Best Interests of the Child Custody Each State


A Breakdown of States’ Visitation/Custody Laws

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

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

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

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

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

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

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

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

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

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

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

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

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

Virginia is unclear.

In Conclusion

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

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

15 Minute Free 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.

long-distance co-parenting

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

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


Best Interests of the Child Custody Each State 


Sharing Information in Long-Distance Co-Parenting

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

Communication

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

Scheduling

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

Flexibility

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

Making it Work

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

In conclusion

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

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

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

Legal Separation

Although most states have some form of “no-fault” as grounds, there are still instances where a legal separation is the best route to go when heading towards divorce. “No-fault” means that the parties do not need a “reason” to divorce, they can just allege irreconcilable differences (or some variation of) and that suffices. This negates the need to rely on a separation in a legal way as the reason to divorce. However, there are still some instances where a separation is advantageous no matter what grounds exist.


Divorce Therapy and its Implications


Legal Separation vs. Separation

There is a difference between a legal (formal) separation and just the parties merely living separate and apart. A legal separation is a when you have a written agreement (in some states it must be filed in court) stating the terms of your separation.  It usually includes provisions with respect to property division, spousal support and custody too.

A separation done legally does NOT end the marriage, it puts the world on notice that you are no longer identified as a married couple for financial, medical or other reasons.

When parties are just living apart with NO formal, written agreement there is no such notice and so the IRS, the Social Security Administration, and the like, will consider you married.

The Advantages of a Legal Separation

The main reason couples opt for separation in a legal way is take advantage of the financial benefits. They are the following:

  1. The parties can still file jointly when filing taxes.
  2. Any assets &/or debts that accumulate from the date of legal separation, will not be considered marital. This means each party will keep their assets and be responsible for their own debt.
  3. Either party may be qualified for social security benefits by meeting the 10 year requirement. Certain military benefits can remain intact.
  4. Health insurance benefits can continue for the parties.
  5. May meet certain religious requirements.

Such separations do not have an inherent end date.  They can remain intact until one or both parties die. However, reconciliation or actual divorce terminates the agreement.  The terms of the legal separation may be incorporated into the final divorce or the parties can agree to modify the terms upon divorce.

When it is NOT Advantageous

Sometimes the legal separation creates more problems than proceeding straight to divorce.  Also, unlike a divorce, this kind of separation may not get the same acknowledgment in a state different from the state it was created.

  1. Entering into a sexual relationships with another while there is a legal separation may arise to the crime of adultery in some states.
  2. Some states do NOT allow you to “incorporate” or “merge” it into the divorce. A separate action for divorce is necessary.
  3. Enforcement of legal separations can be an issue for either Family Court or Civil Court. Depending on which issues are sought for enforcement, either court may be more favorable. (Florida, is one of those states since it does not acknowledge it.
  4. The costs for filing it can be duplicative if a divorce follows.
  5. Mental and emotional anguish can be inevitable. Some parties feel like they are in limbo until an actual divorce happens.

The bottom line, have all of the information and facts before proceeding to legal separation. Although it is viewed as a step short of divorce, the parties should prepare as if they are actually going right to divorce.

In Conclusion

Explore all options when trying to decide which route to take when splitting up.  Gather info, research laws, speak with professionals, etc.

If you would like to discuss your divorce or custody case, please feel free to reach me.

Contact Us

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

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

Divorce Settlement Agreement

The divorce settlement agreement constitutes 75% or more of the contested divorce cases. Courts are set up to encourage litigants to settle all issues including property distribution, child custody, child and spousal support. Pretrial conferences, settlement conferences and mediation are all part of the program aimed to settle. Divorce settlement, however, does not always take enforcement into consideration. Enforcing settlements are usually another huge piece of the pie.


Dating During Divorce 


Divorce Settlement Agreement Strategies

From the filing of the first pleading, usually the complaint, the process proceeds on the settlement track. The complaint, ideally, lays out all of the details of the case some of which are not really material. The rules of procedure affords great latitude with respect to making allegations in the complaint. Then the opponent has the opportunity to respond with defenses and/or denials that the court can “strike”. This particular phase sets the stage for settlement when the case gets to initial conference.

From this point on, each meeting is pretty much centered around resolving anyboutstsnifng issues. In fact at times the judge will use persuasion to encourage the parties to settle. The judge will give a hint of suggestion of how he/she will rule should the case go to trial.

Also, the time lapse between conferences is strategically designed to give the parties the opportunity to negotiate settlement.

Pitfalls of Settlement

Although the courts maintains an environment conducive to settling, it’s not always the best way to proceed. Although it’s usually cost beneficial for all involved, it can set either of the party up for failure.

Negotiated settlements have inherent flaws, as much as they have advantages. First off, it’s imprudent to enter into settlement talks if discovery is not complete. The discovery phase is always tricky in divorce cases. One or both parties are often apprehensive about turning over financial, personal and health information to the other. It’s a rare instance where both parties fully disclose every fact, document or authorization related to the issues in divorce.

Second, as I mentioned above, sonetimes judges strongly urge resolution for reasons unrelated to the particular case. This can unduly influence either party to give in to these suggestions regardless of how fair they are.

Third, unavoidable distractions can also affect how successful settlement talks can go. Emotional and mental volatility are often the source of uneasiness

Enforcing Settlement
It’s no secret that coming to an agreement is entirely different than getting both sides to stick it. Especially in family law, people often find reasons to justify deviating from the terms of their settlements. Financial changes, remarriage/new baby, debt obligations etc. to name just a few reasons.

More than half of divorce settlement agreements wind up being hauled into court for enforcement, modification and/or contempt. The agreements do not come with a gatekeeper to monitor it’s execution so at times they are not worth the paper they are written on. Lawyers, mediators, parenting coordinators etc may try to help facilitate the execution of the agreement but they’re efforts are often futile.

Enforcing settlement agreements requires court intervention more often than not. Rarely is there ever an incentive for the violating party to voluntarily comply. So the opposing party must employ the court if they want to the terms of the agreement implemented.

In conclusion

A forced settlement is not better than any settlement at all no matter how much pressure you’re under. You would be cutting of your nose to spite your face. Coming to an agreement is not always a bad thing, it just requires a rational mind and tempered emotions.

If you would like to discuss how my consulting, coaching or Unbundled services can help you on your divorce or custody please schedule a free 15 minute consultation.

Contact Us

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

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

best interests of the child

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

Best Interests of the Child Standard Defined

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

Specific Factors: Mandatory vs. Discretionary

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

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

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

Variations of Statutes’ Definition

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

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


Code of Virginia – Best Interests of the Child


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

Impact on the Judge’s Determination

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

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

In Conclusion

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

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

Contact Us

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

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

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.

Uncontested Divorce

Uncontested divorce is a viable option for many in New Jersey.  In some states, although many have changed their laws, proceeding to divorce on the uncontested track requires specific steps.  New Jersey is a true “no fault” state thus making Uncontested Divorce much easier to accomplish.  No-fault means that the parties do not need to allege a “reason” for the divorce. (Read here to understand how “grounds” matter in divorce https://thedivorcesolutionist.com/should-you-file-first-in-your-custody-or-divorce-matter/


Should You File First in your Custody or Divorce Matter?


An Uncontested Divorce is where the parties agree on all of the terms of the divorce.  This means they agree to the “grounds” (which isn’t usually an issue in “no-fault” states like NJ), child custody/visitation, child or spousal support, property division & debt allocation.  Court intervention is not needed since the parties resolved all issues on their own.  The parties merely complete the appropriate forms, sign them, pay all associated fees and file with the court.  (Some courts require a hearing as part of procedure.) Even if the divorce started off with disputed issues, at any time the parties can consent and proceed on the Uncontested Track.

The fees for an Uncontested Divorce are usually a fraction of those for a Contested Divorce.   There are 4 options to get an Uncontested Divorce in New Jersey. They are as follows:

  1. A non-profit can handle it for you from inception to final order.  Although this method is usually free, each non-profit has its own guidelines and criteria applicants must meet to qualify. In addition, many have waitlists that go as long as a year before they can help.  (www.lsnj.org is the most popular)
  2. A document preparer completes the forms only, no further assistance is provided by them. The fees for this service usually range between $399 and $799.
  3. A lawyer can  handle the matter from inception to final order. Lawyers fees typically start at $1500 and go up to $3500, depending on other issues associated with the Uncontested Divorce.
  4. You can do it yourself. This method can be the most cost efficient but the most nerve wracking too if the litigants are not familiar with legalese and/or the court process. NJ actually has a self help page to make it more accessible https://njcourts.gov/selfhelp/selfhelp_divorce.html.

The Uncontested Divorce-NJ Workshop addresses all of the disadvantages of the 4 options mentioned above.  This workshop will help you by going through each step of the process with the assistance of an experienced family law professional.  At the same time, you will have the opportunity to ask questions about things you do not understand. So you won’t be overcome with frustration by doing it all alone.  And last, you will save yourself time and hundreds of dollars by signing up for the workshop.  (You are responsible for filing fees, etc.).  The cost of this workshop is only $99. 

There is no other lawyer, organization, business, etc. offering such a service.  This is the best way to gain your freedom, build confidence and have a piece of mind.

Sign up today as seats are limited.

Feb. 1, 2021 at 6PM EST on Facebook Live

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.

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.

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.

Dating During Divorce

Dating during divorce may not render you the best outcome in your situation. You can try to rationalize so many ways but the reality is you can’t unless it’s an Uncontested divorce and it’s near the end. I understand that in cases where the divorce has been dragging on for years, where your spouse cheated several times, where you get lonely, etc. But if you’re expecting a property distribution, spousal support or alimony and most importantly, child custody then hold off on having coffee with the “hot guy” may be wise.


When Legal Separation is the Better Route


Dating During Divorce Grounds

As I’ve discussed before, (for the discussion on no fault laws read here www.) most states have some form of “no fault” as divorce grounds. What that means is that neither spouse has to allege anything specific as their reason for divorce. However, there are instances where either spouse may want to use adultery as the basis for divorce. Adultery is when a married person has sexual intercourse with another person other than their spouse. The implications of adultery in a divorce can be catastrophic.

Spousal support, child custody and property distribution determinations are all impacted by alleging and proving adultery. Dating during divorce, no matter what stage the divorce is at, is in fact adultery. Doesn’t matter if the other spouse knows of the adulterous affair or even if both the parties are having an affair, it’s still adultery.

If the petitioning spouse chooses to use adultery as grounds, whether they can substantiate their claim or not, it can give that spouse the upper hand with respect to settlement negotiations.

Dating and Child Custody/Visitation

While the divorce is pending there is usually some form of temporary order for custody and visitation. And although the terms in the order can vary from case to case, some things are pretty customary. Customary provisions are usually based on what your particular jurisdiction’s considers the “norm”.

Many jurisdictions, upon either party’s request, can include what is called a “morality clause,”. This clause covers parents romantic or social life activities. The clauses usually imposes specific limitations with the intention to maintain some sense of decency while coparenting. Some of these clauses merely dictate at which point parents can introduce the kids to romantic partners. While others go as far as prohiting extended periods of time in partners’ presence or overnight visits.  Again, in some jurisdictions these clauses can be pretty routine while in others they are frowned upon. Either way, limits can be put on parents’ ability to see other people, even while the divorce is pending.

Dating and Alimony

Alimony or spousal support guidelines varies from state to state. The premise behind it though is pretty consistent amongst the states. The purpose is “to limit any unfair economic effects of a divorce by providing a continuing income to a non-wage-earning or lower-wage-earning spouse. Part of the justification is that an ex-spouse may have chosen to forego a career to support the family, and needs time to develop job skills to support themselves. Another purpose may be to help a spouse continue the standard of living they had during marriage despite changes to income, income tax, bonuses, taxable income, tax returns and etc.” (Source. Findlaw.com)

There is discretion with respect to which factors are given consideration. Weighing the discretionary factors determines who gets alimony, for how long and how much. However, most alimony awards are conditioned upon the awardee maintaining “unmarried” or “non-cohabitation” status. Although judges won’t sign off on an Agreement that terminates spousal support merely because the awardee is dating, if the dating lead to cohabitation they mpst certainly will.

Dating and Property Distribution

As stated earlier, if adultery is alleged and proven the courts can “punish” the adultering spouse by awarding a larger portion of marital assets.  Particularly in equitable distribution states, as opposed to community property states, the courts will compensate the offended spouse with a more favorable property award.

In sum, dating during divorce should be done with much careful thought. I know that matters of the heart can take on a life of it’s own. However, I suggest weighing the costs of having am indulgent heart.

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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.  

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.