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.
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.
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.
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.
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.
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.
Need help in handling your Family Court case on your own?
We have services that are specifically geared toward helping self-represented litigants like you understand the common mistakes that lead to the most disappointing outcomes. To find out more about our services, visit us at WWW.THEDIVORCESOLUTIONIST.COM and join our Facebook community HERE to get some helpful advice and some FREEBIES. Listen to our latest Podcast episode here.
Family Court is an experience. Once you find yourself in enthralled in the experience it is imperative that you prepare yourself. There are often more questions than answers and this causes even more tension. The way you speak, the attitude you present, the thoughts you share – these all play an integral part in how your case is received and how it is viewed from the court’s perspective. So I wanted to take time to share some things with you based on the various roles I played in the family law arena. So learn these family court practical tips here:
There’s a strategy to effective communication with anyone in Family Court, your ex or soon to be ex, lawyers, judges etc. The first thing, that I notice most people fail at, is LISTENING with objectivity. Way too often we focus on the lies, the put downs, etc. so we formulate a response while the other person is talking. This has been proven to be ineffective in custody and divorce cases. It’s not easy, especially when dealing with a manipulative, controlling opponent but it’s something you MUST learn to master if you want to prevail. Family law is the most volatile area of law, so it brings out a variety of emotions. But not being able to put emotions in check can ruin any intentions of reaching your goals. So let the lies be told, let the accusations flow and when it’s your turn you address them with a focused mindset.
One thing I do consistently to master this is anticipating the worse and practice my reaction. I do this as often as I need to until my body gives me the sign that it’s “OK”. It works!
Way too often Family Court litigants complain that the judge does not or did not listen to any of their major concerns when it came to their divorce or custody case. Although family court judges get the worst wrap in the judicial system, they are human. They can empathize with you if you learn to speak their “language”. There is a decorum and protocol that should be used when dealing with the court.
Here are some key tips:
It’s prudent to give a lot of attention to HOW you present your case in Family Court because things can backfire on you in an instant. (Read more here on what choosing your language carefully.) It is no secret that I focus primarily on strategy in my work to show Family Court Practical Tips to my clients. So, a large part of how I help clients has to do with “packaging” their case in a way that is going to increase their chances of getting the best outcomes.
So, your concerns, your interests, your objectives all need to be carefully prepared. Preparation, organization, formulation all plays an extremely role in how the case proceeds from beginning to resolution.
Take the time to carefully, I mean carefully map out how you will present your case. It takes knowledge, guidance, and persistence to be able to do this correctly. Come up with a strategy and stick to it. Be sure to include how you will carry out every step of the strategy. You can’t anticipate EVERYTHING, but you can keep an open mind and be ready to react when necessary if your strategic plan is rock solid.
There are tons of tips I can give that will help you get better outcomes in your case. I can focus on explaining the law but that’s not going to help you as much as giving tips on strategy.
If you would like a FREE 15 min consultation to discuss strategy in your divorce or custody case, click Here.
To commence any action the Petitioner, or person who is pursuing the action, must have the other party “served” with a copy of the Complaint. This is a requirement in any type of case where the other party is an individual or entity. Having someone served in a divorce or child custody case can be quite a challenge and considers several things. I want to address some of those things here to help facilitate the process in family law much smoother.
The US Constitution Due Process clause, particularly the Fourteenth Amendment, affords each citizen the right to live their life free and fair if certain measures are in place. The specific language that no one shall be “deprived of life, liberty or property without due process of law”. This basically means that “fairness” must be at the center of all government procedures with respect to its citizens. And the process of serving litigants in an action is one of those procedures that must use fairness and notice. The parties are deprived of fairness, if they are not put on notice or if they are unduly burdened by being sued in a jurisdiction that has no authority over them. The procedural rules the states implement regarding service of process address these issues.
Each state has its own procedural laws regarding service. The basic premise of each of them is to give the parties appropriate and adequate notice of legal action in court or administrative body, to exercise jurisdiction over them. The court, or administrative tribunal, cannot exercise jurisdiction over a person if the person was not properly served.
The steps to serving a party in action include:
So, from a strategic standpoint, I am all about strategy in all the services I provide, knowing when to serve the other party takes careful thought. Of course, within the purview of your state’s procedural rules, there are times when you should plot out service. We know the reasons the legal reasons why a party should be served, but thinking about the practicality of serving them is important.
Opposing parties have a time limit to “answer” the Complaint they were served within a divorce or custody action. The clock starts from the time they are appropriately served and failure to respond within that time can lead to a default judgment. (Default judgment limits the ability to claim any defenses, counterclaiming.) So, if you want the case to move faster so that you can get a resolution faster, then ensuring effective service is prudent.
The other party has the right to raise defenses in their Answer or Response to your Complaint. If you know that the defenses, they plan on raising are time-sensitive then you would want to plan the service of your initial Complaint around that.
If you are concerned about your safety or the safety of your personal possessions and how service of process can jeopardize these, then you need to make special arrangements. Domestic violence officers, advocates, etc. can help you develop a plan to have the other party served while keeping you, your family, and/or your things safe.
Serving the opposing party is a must in family law matters and can make a difference in the overall outcome. You should consider the details of this aspect of the case before you start.
Child Custody Home Inspection: In child custody cases, the courts will have the home of each parent (or party seeking custody) inspected by the appropriate agency. Usually, the office of Child Protective Service (CPS) will be responsible for conducting the home inspection and reporting back to the court on it. The purpose of these inspections is to ensure that the home environment is safe and suitable for the child(ren) to spend any considerable amount of time there.
Depending on your particular jurisdiction, the term used may be “home study”, “home inspection”, “social study”, home evaluation” and so on. The overall objective is the same no matter the jurisdiction or the term used. The objective is to see the home environment and the child with each parent in that environment to see if the custody best interest’s standard factors are being met. Home inspections are different from custody evaluations. Custody evaluations are typically conducted by a mental health expert/professional. Home inspections, on the other hand, are usually done by social workers, child protection professionals and the like. Some custody evaluations include a home inspection component so the mental health professional may in fact have the interviews done in the home to cover both, however.
Best Interest of the Child Custody in Each State
Although a home visit by CPS is meant to be objective, as a parent you could (and should) use the opportunity to present your circumstances in the best possible way to help your case. Be careful of course as you do not want to be too obvious that you are trying to unduly influence the worker. Be cordial and welcoming, for example but do not overdo it. Show the worker your child(ren)’s favorite space, activity or item. Schedule the appointment at a time when you and your child(ren) are engaged in an activity that you both enjoy. Be sure that the space in clean; that you have adequate food; that safety measures are in place and that no one who does not live in the home is not present at the time.
Show the worker how you encourage learning; how you discipline; nurture their development; support them emotionally and foster a relationship with the other parent. You can ask the worker questions. You can offer to provide evidence of your being “fit” and/or of the other parent being “unfit”. However, the way you present anything must not come across as negative toward the other parent so be mindful.
Use this opportunity to give the worker what he/she needs in the event they are called a witness in your case. But again, be careful because it can work both ways you must be mindful of what you say and how you say it in custody cases. Focus on the best interests of your child(ren) no matter what. If you do not know what that is, ask before the worker shows up to your home.
What You Say In Family Court Matters
The court defers to home inspection reports significantly. The court will rarely find that these reports (the worker’s account of what he/she saw) lack credibility. If there are specific facts the court wants the worker to focus on, they might ask them to do a supplemental or follow up visit. In addition, either party can request a follow up visit if they believe that something important was left out or overlooked. The guardian ad litem (or child’s attorney, advocate) can also point out omissions in the report and request another visit.
If either party objects to what is in the report there is recourse. They the opportunity will more than likely must “impeach” the worker that conducted the inspection. If the objection is to something someone else said, then the party must impeach that individual. Challenging the truth of what someone else said to the worker may be considered “hearsay”. These third-person statements are subject to being precluded under hearsay evidence rules.
The worker that does the report is human too, they make mistakes. Although they are given considerable deference, you must voice your concern with their method, their facts, etc. if you have any.
Home studies, or whatever they are referred to in your jurisdiction, are almost inevitable in child custody cases. No need to dread them, to avoid them or try to manipulate them in any way. You can use them to your advantage as long as you are prepared and informed on how to do that.
Need help in handling your Family Court case on your own?
We have services that are specifically geared toward helping self-represented litigants like you understand the common mistakes that lead to the most disappointing outcomes. To find out more about our services, visit us at WWW.THEDIVORCESOLUTIONIST.COM and join our Facebook community HERE to get some helpful advice and some FREEBIES. Listen to our latest Podcast episode here.
As promised, I am working on Part Two of Frequently Asked Questions for family law-related matters. Every single day the family law community is faced with scenarios that look similar but have their own nuanced characteristics. So, although some questions are asked repeatedly, how and if they apply to a particular set of facts vary greatly.
I encourage my audience, and the family law population at large, to ask question after question in an effort to maintain a basic understanding of what is at risk in their divorce or custody. It does not matter if you refer to several sources, or even if the responses differ. It is important to gather as much information from various sources when enmeshed in a divorce or custody matter.
One of the things that I do daily encourage my audience to ask questions. As a result, what I have noticed is that there is a lot of misinformation being circulated. In addition, I realized that people tend to have the same concerns regardless of their location, status, or position (in their case). So, I have decided to dedicate this week’s blog to those common questions, providing some clear answers.
1. Should we try to resolve all issues ourselves to save time and money in divorce or custody?
An Uncontested Divorce is one where the parties either have no disagreement or have resolved/settled all issues so there are no disputes. In some instances, a divorce can start out as Contested (where there are disputed issues) and wind up in settlement early enough to be considered Uncontested. This is different than a divorce that settles via mediation, although some courts will allow mediated divorces to proceed as Uncontested. This saves tons of time and money depending on the issues involved. With respect to custody, resolving the disputed issues can also get the case over within months as opposed to years.
In most states, court-ordered child support is determined by statutory guidelines. One of the factors is typically included in the guidelines is custody. In cases where joint physical custody is awarded, child support is apportioned according to the time with each parent. For example, in 50-50 cases, in some states, neither parent pays child support to the other. However, in some states, the financial obligation of each parent is calculated based on their income (and other factors) and then the parent who has the highest obligation may be ordered to pay the other the difference in both of their child support award amounts.
Where Child Support & Custody Intersect
Once you file your initial petition for divorce or custody, it is your responsibility to “serve” the other party with a copy of the petition. This is how they are put on notice of the pending case. If you are unable to locate them, you must follow your jurisdiction’s procedures in either locating them or serving them another way. Most states will allow an alternate means for service. So instead of having the party served at a physical address, for instance, the court may allow the petitioner to place an ad in the local newspaper. The newspaper ad is considered “service by publication” as it puts the other party on notice of the suit.
There are alternatives to divorce or custody litigation, that do not entail the burden and overwhelm of trial in court. More than half of all family court cases settle, with only a small fraction making it to trial. Those options are mediation, collaborative divorce or Do it Yourself. Mediation is the option most often used, in some states it is mandatory. Mediation prices range from $2000 up to $10,000s. The costs associated with mediation makes it most attractive to many, but so does the quicker turnaround than litigation. If you want to explore least expensive options to divorce and custody, be sure to seriously consider mediation.
Some states have their own form of a parenting plan, parenting agreement, etc. If there is a custody case pending, then the parties will be required to enter into such agreement to make it an effective order. If there is no court case pending, then the parties are free to create one that works for them. The difference in the two, is in the former if either party chooses to change terms of the agreement, the other can seek Contempt. In the latter, neither party is obligated to stick to the plan because there may not be any consequences for them choosing not to.
(Feel free to sign up for our newsletter to get your FREE Parenting Plan template.)
Although there are tons of free resources on the internet, knowing which question to ask can make these resources useless. When you are enmeshed in a legal battle, particularly in Family Court, it is critical to have the right information. It is not advisable to trust your friends, family or even strangers to give you the appropriate answers to your legal questions. Having gone through the process helps, but it does not qualify them to give you legal advice since each case is quite different.
I always recommend getting at least three (3) consultations from qualified attorneys in your jurisdiction so that you have a solid foundation to start your journey. Most family law attorneys will provide a free consultation so cost should not be a deterrent.
Always, always, always ask questions and seek answers. At the same time, use discernment to decide if the source is reliable. There is an overwhelming amount of information relevant to divorce and custody, so filtering is important as well.
If you wish to schedule a consultation to discuss how I can help you, please feel free to do so here.
Need help in handling your Family Court case on your own?
We have services that are specifically geared toward helping self-represented litigants like you understand the common mistakes that lead to the most disappointing outcomes. To find out more about our services, visit us at WWW.THEDIVORCESOLUTIONIST.COM and join our Facebook community HERE to get some helpful advice and some FREEBIES. Listen to our latest Podcast episode here.
Family law attorney gets the worst wrap in the legal field. Let’s be honest, they can be the most difficult to work with in divorce and custody cases. They often come across as unemotional, they barely recall important facts, they fail to communicate effectively and they totally ignore your wishes at times.
Data reports that more than half of family law clients are disappointed in their attorney’s services. Also, with respect to the overall profession, family law attorneys are hated more than any other specialty. Despite these statistics though, working with the right attorney on your divorce or custody case can get you favorable results.
You get to dictate how your case is handled. That’s right you have the right to determine which moves your attorney makes on your behalf. I bet you did not know that huh. Well…technically you do but there’s a caveat. Most competent attorneys will not give you complete authority, afraid that you make foolish decisions. They do have ethical obligations to give you the necessary legal information to make informed decisions. And when they do, and you insist on deciding against it, they can withdraw from your case.
So although it is your right, it may not be the wisest thing to do. Why, you ask, would an attorney take issue with his or her client exercising their right? Well because the attorney’s job would be pointless if they didn’t. Attorneys have egos and a client who goes against their own lawyer’s advice bruises their egos. Just kidding. The real reason is multifaceted but the bottom line is they have an obligation to you, the system and the bureaucrats that oversee the legal process.
What You Say in Family Court Matters
Most attorneys have objectives that go way beyond providing you with the best representation. Of course it’s important that do their best to get you the results discussed. But it doesn’t end there attorneys have ethical obligations, professional aspirations, track records to establish & maintain, etc. So if they anticipate anyone or anything that will interfere with these, they might think twice. In plain English, you have a responsibility to your lawyer too.
At the top of the list is honesty, you owe it to yourself and your case to be honest with your family law attorney. If you can’t be candid with your divorce or family law attorney then you can’t be trusted. Your divorce attorney has the fate of your future in their hands so it’s imperative that you tell the truth about everything that matters. Cooperation is next, you must be willing and able to work as a team with your lawyer to see favorable results. Communication is also important, keeping the lawyer in the loop with what is going on helps them to prepare for the necessary next steps.
To get the help you need you need to understand what your rights are but also what your responsibilities are too. It’s extremely important to find the right lawyer for your situation, there’s no doubt about that. However, you put all responsibility on the lawyer, you must do your part too. It is prudent for you to have a clear discussion about the expectations, the process, the outcome, etc. Although this discussion should be had very early in the attorney-client relationship, all is not lost if it happens any time after. The point is, be upfront, ask questions, be clear, be cooperative.
In conclusion
How your divorce or custody case proceeds in court is up to you. Don’t be so quick to blame your lawyer for what goes “wrong” in your case. Before you “hate” or badmouth them for what they are not doing, ask yourself if you did your part. It takes teamwork to get through these sort of situations.
Need help in handling your Family Court case on your own?
We have services that are specifically geared toward helping self-represented litigants like you understand the common mistakes that lead to the most disappointing outcomes. To find out more about our services, visit us at WWW.THEDIVORCESOLUTIONIST.COM and join our Facebook community HERE to get some helpful advice and some FREEBIES. Listen to our latest Podcast episode here.