Category: Child Custody
Questions/Answers
What is Legal Custody?
There are two forms of custody: Physical custody is the actual physical possession and control of a child (a person under 18 years old). It refers to the person with whom the child lives, either all of the time or part of the time. Legal custody is the right to make major decisions about the child, which typically include educational, religious, and medical decisions.
What does Parental Alienation have to do with my custody dispute?
Many divorcing couples often have co-parenting problems because one parent has hatred towards the other parent and wants sole control and custody of the child(ren). This parent will often times badmouth their former spouse in front of the child(ren), they refuse to share information about the child’s health, education and day to day activities. Welcome to the world of Parental Alienation and Parental Alienation Syndrome. Look on the Internet for a " Parental Alienation Consultant. " These experts can be found by visiting www.cspas.ca or www.parentalalienation.ca Retain the services of a P.A. consultant Cases involving parental alienation require court intervention to restore your parenting and visitation rights.
Is it a Law Guardian’s obligation to advocate the position of the child(ren) or to substitute their judgment?
In New York, a Law Guardian [LG] (attorney for the child(ren)) must advocate the position of their client(s). It is the same obligation as an attorney has to advocate for any adult private-paying client’s position. A LG cannot ’substitute their judgment’ for that of the child(ren) except (as a sample of instances) where the child (a) is too young to speak; (b) has impaired mental capacity; or (c) may not be too young to speak, but cannot accurately ascertain the reality of the particular challenges present in their case. Then the LG’s obligation would be to report to the Court the position of their client(s) but to also report that the LG is "substituting judgment" as the child(ren) aren’t fully understanding of the challenges in their particular case.
Child Custody in Maryland - Types of Custody
Legal custody carries with it the right & obligation to make long range decisions involving matters of major significance. Joint legal custody means that both parents have an equal voice in making those decisions. Physical custody, on the other hand, means the right and obligation to provide a home for the child and to make the day-to-day decisions required during the time the child is actually with the parent having such custody. Each type of custody can be broken down into either joint or sole. Joint legal custody means each parent has the right to share in longer-range decision-making including education, religious training, medical care & other significant matters. Sole legal custody gives that right to only one parent. Joint physical custody means that the children share their time between the parents.
Can the parenting coordinator change my custody arrangement?
Typically, a parenting coordinator does not modify the substantive terms of the parenting plan or custody arrangements. A parenting coordinator helps implement the existing parenting plan or custody arrangement and sometimes makes recommendations to the court.
Can there be a child-friendly divorce?
Over and over, parents question whether their children can fare well after divorce. As we have seen with our mediation clients for 25 years, our answer is unequivocally yes; children can thrive despite the end of their parents’ marriage. Child-friendly divorce occurs when the parents are able to put aside their differences for the sake of their children’s interests. If parents can provide a unified front, children feel that their parents are still in control. When parents can be respectful of, and to, their former spouse, children are not placed in the middle of disputes. Understanding the developmental stages that children go through, being able to see their children’s needs as distinct from their own needs, children are free to do the work of growing up. That is the essence of good parenting.
Do Guardians ad Litem have the same role in all States?
No. A GAL is appointed by the Court and the Order of appointment defines the GAL’s role. Each State has different requirements and qualifications for GALs. In some States, GALs are attorneys and act as attorneys for the minor children, make no recommendations and are "fact-finders" only. In some states, Courts can disregard the GAL’s recommendations, can accept and/or reject the GAL’s report, as with any witness; In some states, psychologists and trained social workers only are allowed to be GALs and their recommendations deal with the "best interest" criteria based upon psychological profiling, testing, interviewing, etc. Check your state’s requirements and the Order appointing the GAL. You have a right to object if a GAL appears to be unqualified and/or biased.
How can parents share custody?
When it comes to co-parenting, divorce agreements should plan for future new and changing circumstances. Change will happen, how a divorce couple parent after their divorce should be thought about and a planned problem solving technique in place.
Do Hague Convention countries have to comply with my custody order?
Actually, no country will just rubber stamp another country’s orders. Even the United States, or rather, the appropriate state, for example, will hold a hearing to determine if the other custody order is valid. The court will do this under the common law doctrine of “comity,” which is “the principle by which the courts of one jurisdiction may accede or give effect to the laws or decisions of another.”
How does the UCCJA work?
All states have adopted the UCCJA. It sets out a standard by which a state court can determine whether it has jurisdiction (which is “the right and power to interpret and apply the law" in an area) over a particular child custody matter. If it decides that it does not have jurisdiction, the court will recognize a custody decree from another state’s court. The court will look at the child’s residence and his or her connections with the state in question. You can see that a uniform law in this area makes life a little easier for children of divorce and those seeking or having custody. You should be aware that the UCCJA will most likely be replaced by the UCCJEA (Uniform Child Custody Jurisdiction and Enforcement Act) in all states in the near future. Already, at least a dozen states have adopted the UCCJEA.
Would we be able to specify a joint custody arrangement in our agreement?
Yes, you may put that in the agreement, if you feel that it is in the best interest of the children. Many courts favor joint legal custody. If you plan to have joint physical custody, you may have a little more difficulty proving to a judge that this is right for the child(ren). Joint physical custody is an arrangement where the child(ren) actually lives with both parents for a specified period of time during each year. For example; The child(ren) live with the father each odd month and with the mother each even month. This may seem like a well thought out and negotiated arrangement, but the judge will question whether or not it is a healthy living arrangement. What is great, and content for the parents, may not be best for the child(ren).
What if we cannot agree on our child custody arrangement?
The court will decide for you. You should try to work it out. Negotiation is always better than imposition. If you leave it up to the court to decide, you are including the element of surprise. You can never tell what a judge may decide and you may discover that it is neither what you, your spouse, or your child(ren) desire. No one understands your family better than you and/or your spouse, so to leave the decision(s) up to a judge is often a regrettable option.
Can my spouse and I specify our child custody arrangement in our separation agreement?
For the most part, you may. Be aware that some states do not allow separation agreements regarding the issues of child custody. Other states require an additional agreement concerning custody, which is called “parenting plan agreements." In most cases you are permitted to outline the custody arrangements in the separation agreement and have the agreement incorporate or merge the parenting agreement, which further address the custody details.
Helpful Tips and Facts
Ideas for Co-Parenting Provisions
It is wise to try to anticipate some of the problems that may arise between you as you co-parent your children and craft a settlement agreement that includes provisions to help address these issues, such as: Homework completion; Ensuring the children are fed and bathed prior to return to the other parent; Telephone contact with the children; Bedtimes; Providing clothes; Sharing responsibility for extracurricular activities; Providing travel information; Requiring immediate information sharing regarding the children’s medical status and any other significant event; Agreement regarding the children’s exposure to parent dating and to significant others; Babysitters; and Transportation for parenting time.
Joint Custody- A 50%-50% Arrangement
The "5-2" pure joint physical custody may work like this: Overnights Mon./Tues with Parent A; Wed./Thurs. with Parent B; Alternating weekends including Fri./Sat./Sun. Each parent will have 5 day periods in alternating weeks which give a sense of stability/ home with each parent, without going too long without a either parent. It keeps the back-and-forth to a minimum. Children adjust to knowing for certain which day of the week belongs to which parent (i.e. a Tuesday field trip means Parent A, Friday spelling tests must be studied with Parent B, etc.) Pick up and drop off at school means less direct parent interaction in high-conflict cases. Each parent has time for employment and social obligations. Neither parent is the "visitor." Parents must live in reasonable proximity to one another to make this work.
Shared Schedule options
There are many ways to share physical custody. Children can be split evenly in their time through a schedule of alternating weeks, four days/three days, etc. One schedule that works well is for the parties to alternate weekends from Friday after school until Monday morning to school, and then have one parent have Monday and Tuesday each week, and the other parent have Wednesday and Thursday each week. This is a five day, five day, two day, two day schedule that has minimal flip flops of the children’s time and gives the children a sense of stability in a shared custody arrangement.
Settlement is always best
In child custody, settlement is always the best for all involved. Studies have shown that parties that settle their case usually obey the court orders more and feel more positive about the legal process in general (as opposed to a Judge in a black robe micromanaging their lives). So, I would suggest to those of you who are planning to stage a custody "battle," to attempt to settle their cases via mediation rather than spending their children’s tuition to the best of colleges on non stop litigation. I am not suggesting to give up--but to try and compromise for your children’s sake.
Minnesota Custody Factors - Part Two
(8) the permanence, as a family unit, of the existing or proposed custodial home; (9) the mental and physical health of all individuals involved, with exceptions; (10) the capacity and disposition of the parties to give the child love, affection, and guidance, and to continue educating and raising the child in the child’s culture and religion or creed, if any; (11) the child’s cultural background; (12) the effect on the child of the actions of an abuser, if related to domestic abuse that has occurred between the parents or between a parent and another individual; and (13) except in cases in which a finding of domestic abuse has been made, the disposition of each parent to encourage and permit frequent and continuing contact by the other parent with the child.
Minnesota Custody Factors - Part One
"The best interests of the child" means all relevant factors to be considered and evaluated by the court including but not limited to: (1) the wishes of the child’s parent or parents as to custody; (2) the reasonable preference of the child, if the court deems the child to be of sufficient age to express preference; (3) the child’s primary caretaker; (4) the intimacy of the relationship between each parent and the child; (5) the interaction and interrelationship of the child with a parent or parents, siblings, and any other person who may significantly affect the child’s best interests; (6) the child’s adjustment to home, school, and community; (7) the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity;
Texas Jurisdictional Period
When a custodial parent leaves the State of Texas with the child or children, it is important for the non-custodial parent who is filing for custody or suit affecting parent child relationship, to make sure that the filing is made within six (6) months of the date of exit, otherwise Texas courts may lose jurisdiction to hear or make a ruling on the matter.
What you should expect the Guardian ad Litem to do
The Guardian ad litem should zealously advocate for the child, who is their client. This involves a complete investigation of the situation and extensive interviews of the child, the parties, teachers, ministers, neighbors, counselors. They should order background checks, review medical and counseling records of the child and parties. They should go to IEPs, and meetings at DCS and etc. regarding the child. They should be able to present what the child desires and what is the child’s best interests. The child should know the GAL and feel comfortable to call him or her when needed. Check your state’s rules to see if your GAL is properly representing your child.
Michigan Standard for Best Interest of Children
In Michigan, and perhaps in other jurisdictions, the Court shall use a "best interests of the child" standard in deciding custody and parenting time(visitation). There are roughly twelve factors the Court will look at in determining the "best interests of the child." Some of these factors are the capacity of each party to provide love, affection, and emotional ties to the child; the capacity of each party to provide for the child’s necessities such as food, clothing, etc.; the length of time the child has remained in a stable home environment; the moral fitness of the parties; the mental and physical health of the parties; and if the child is old enough, the child’s preference.
Custody in Texas
In Texas, the term "custody" is not used in the Texas Family Code. The term used in Texas is "conservatorship". Conservatorship defines the rights and duties of each parent in raising their children. One specific and important right is the right to determine the primary residence of the children. This "primary conservator" is what most people would call the person with "custody". To see other rights and duties of parents visit http://tlo2.tlc.state.tx.us/statutes/fa.toc.htm - Chapter 151.
Child Custody Ideas - Nesting
This is for parents who are really focused on the best interest of the children and need to save money. This is YOUR divorce, not your kid’s. Why should they suffer just because the two of you are getting divorce. They don’t want to move and they don’t want to go stay at mom or dad’s new place. They want to be in their own room, in their own neighborhood, close to their friends. So the two of YOU move in and out of the house when it is your turn to be with the kids. When you are not in the big house, you are at the shared bachelor pad. This can be an inexpensive studio or one bedroom flat that is shared by the parents. You need to have rules about not leaving tell tale items that belong to lovers. This saves a LOT of money since no one has to rent or buy a new place that is big enough to accommodate the kids.
Joint Custody Ideas
If you are looking at joint custody arrangements, how about the popular 5/2 2/5. This is a very stable and predictable way of child sharing that insures no more than 5 days will ever go by without seeing the children. One parent takes each Monday and Tuesday while the other parent takes each Wednesday and Thursday then have every other weekend which will either be Friday, Saturday, Sunday, Monday and Tuesday to one parent and then Wednesday, Thursday, Friday, Saturday and Sunday to the other parent. The children always know where they are that day and there are fewer transitions.
Appoint a Special Master (go to person) for disputed issues re: kids
Instead of running to court when issues come up in the future, build into your divorce agreement a back door to avoid court. Is there a couple who has already successfully raised their children, whose opinion you trust? That would be the perfect Special Master to use when kid disputes arise in the future. This is an honor most people would gladly accept. When issues come up, the parents go to the Special Master, explain their positions and leave it to the Special Master to give their best advice which would be followed by the parents.
Issues to Negotiate in Custody
In establishing a parenting plan, here are nine basic areas divorcing couples must negotiate, regardless of who has custody: 1. Basic time sharing 2. Contact and physical visitation 3. Family birthdays 4. Holidays and "special" days 5. Religion 6. School 7. Activities 8. Going out 9. Privileges and discipline
Custody Does Not Translate to Ownership
Physical custody does not mean that the custodial parent owns the child, nor is it a license to exclude the noncustodial parent from visiting.
Developing a Parenting Plan
A good comprehensive parenting plan does not make physical custody into a weapon against the noncustodial parent because in a good plan the noncustodial parent is always be encouraged to visit his or her children.
The Custodial Parent Minimal Requirements
At a minimum, the custodial parent must 1. have a suitable place to live 2. provide adequate supervision when no one is at home 3. maintain reasonable discipline 4. give nurturing and affection
Legal Child Custody
Legal custody means having the right to make decisions about the welfare of the children -- where they go to school, the religious upbringing, friends and routines. Courts generally prefer both parents have joint legal custody.
If a Judge Decides Custody...
If a judge decides custody, he or she will not award it based on the idea of one parent being more deserving. The judge will decide it based on how the welfare of the child is best served -- the best interest of the children.
Reaching an Agreement on Custody
Young children suffer enormous sadness in a divorce. Anything that alleviates this is worth the effort. Most courts require conciliation between two parents in hopes a settlement or agreement will be reached, thus eliminating the need for the court to make a ruling. The court makes sure every effort to reach an agreement has been exhausted before deciding on the future of a child.
Cohabitation During a Custody Dispute Case
If you are trying to gain custody or visitation rights of your child you should limit yourself from dating and especially cohabitating. Cohabitation during this time will enhance the fact that you have deserted your family and will hurt your chances at gaining custody or liberal visitation rights.
Joint Physical Custody as An Option
Many divorcing parents believe a joint physical custody arrangement is an ideal solution until actually exploring what is involved to do it successfully. The court will always look at what is best for the child, and if living in two households seems too overwhelming and disruptive to daily routines, a judge will not even consider it. Keep in mind that joint does not necessarily mean it has to be 50-50 time and judges prefer blocks of overnights versus the child changing houses every other night.
Making a Case as the Better Parent
This is the basis of any custody case, but watch your step. Stating neglectful actions taken by the other parent, like forgetting sunscreen, or keeping the child up late at night, will only open up a can of worms. If you have ammunition use it, but do not take cheap shots when a grenade can be thrown back at you.
Contacting the Guardian Ad Litem
Most lawyers will highly recommend that as a parent in a custody dispute case, the guardian ad litem is off limits as far as making verbal or written contact with during a pending custody case. The guardian is a third party involved in the case, and he or she should only be contacted (if needed) by a parent’s lawyer. Many parents make the mistake of contacting the guardian and making some sort of plea, only to realize that he or she is not involved in the decision making.
The Court Appointed Gaurdian
The courts will often appoint a guardian for the children during a custody dispute case. This is done to help ensure the children are represented in a fashion that is in their best interests. Many parents are shocked when they realize just how much control the court has over their children once a custody case proceeds to trial. This loss of control can be very emotional and can get the best of many parents who for the first time truly realize just how unpredictable a custody ruling can potentially be.
The Gold Standard
In marriage and family law and in divorce actions, the phrase "in the best interests of the child" is the gold standard of care taken by courts in protect children. This means a judge has to assume the role of all-knowing parent in deciding the welfare of children.
Asking Your Child to Choose
A child should never be put in a position to choose one parent over the other because he or she may not want to make this decision and as well as not realize his or her own best interests. If a child is mature enough and offers to make a choice, then it should at least be considered.
Children’s Wishes
Keep in mind that not all states consider the wishes of a child when it comes to awarding custody. If child’s wishes are considered it is only at a certain age and at the discretion of the court. If a child is old enough, but does not appear to be mature enough, his or her wishes will not be considered.
Judges Will Not Make Many Changes
If the court must decide on custody issues, it will attempt to maintain a lifestyle and living environment that is as close to what existed prior to the divorce as possible, for example, ordering the children remain in the marital home and attend the same school. There are many factors that weigh on any custody decision, but these factors need to be significant enough to influence a drastic ruling.
Custody and Jurisdiction Across Statelines
When parents live in different states, courts resolve custody fights under the terms of the UCCJEA, a law designed to prevent parental kidnapping.
Before You Exit the Marital Home
Abandonment of the family home almost always hurts a parent’s chance to be awarded physical custody of a child upon divorce