mothers have an advantage in custody disputes

Do Mothers Have an Advantage in Custody Disputes?

mothers have an advantage in custody disputes

 

If you are going through a divorce, a primary concern is often your children and your child custody arrangements. It’s difficult for any parent to contemplate not having their children living with them all of the time, but it can be even more difficult for mothers who have a close bond with their children.

If you and your husband cannot come to custody terms that you both can sign off on, the court will need to decide the matter for you. While many people think that mothers have a natural advantage in such disputes, the truth is far more complicated. Understanding the basics related to child custody can help you navigate the process while standing up for your own parental rights.

Legal Custody

Custody is divided into two major concerns that include physical custody (related to with whom the children reside at any given time) and legal custody. It’s important to recognize that in the vast majority of divorces, both parents share legal custody, which refers to a parent’s rights to make important decisions on behalf of their children. These decisions include:

  • Matters related to your children’s health and well-being, such as medical care
  • Matters related to your children’s education
  • Matters related to your children’s religious upbringing

These are fundamental issues that shape your children’s lives, and it’s very likely that you and your divorced spouse will continue to make these important decisions together, although one parent is sometimes given tie-breaking authority.

Physical Custody

Physical custody relates to with whom your children reside primarily and to their visitation schedule with the other parent. While many people believe that mothers have an advantage when it comes to physical custody, this really isn’t an accurate assessment in many cases.

Do Mothers Have an Advantage in Custody Disputes?

The Court’s Stance

If you and your divorcing spouse cannot come to mutually acceptable terms regarding your children’s custody arrangements, the court will intervene and make a determination of how you will split custody rights.

The court will always favor what is in the best interest of your children, but this is obviously open to interpretation, and it’s important to remember that the court has considerable discretion in the matter. You obviously know your children in a way that the judge never can, and you know what’s best for them.

Courts often favor the status quo when making child custody decisions. In other words, if the mother has been the primary caregiver and she and the children are living in the family home while the case is pending, the judge may be hesitant to upset the balance and may be more inclined to award the mother primary custody.

This is generally more a function of how things are commonly arranged than it is a function of favoring the mother or of the mother having an advantage in the matter.

The Considerations at Hand

In determining child custody arrangements, the court is guided by the children’s best interests, but in the process, it takes a wide range of variables into consideration, including:

  • The emotional connections between each parent and the children
  • Each parent’s ability to provide the children with a loving home and a healthy life
  • Any criminal history
  • Any history of domestic abuse – either physical, emotional, or sexual
  • Any substance abuse issues
  • Any pertinent parental considerations that could affect the decision, such as age or disability
  • The location of each parent’s residence (who lives closer to the children’s school, for example)

None of these issues are gender-specific and, as such, the court’s decision cannot favor the mother. Many mothers, however, are already providing primary custodial care, and courts are not fond of dramatically disrupting children’s lives when they’re already going through the emotional challenge of divorce. After all, divorce is hard on everyone, but children are especially vulnerable.

Your Children’s Voices

Many parents wonder if their children’s preferences will guide – or should guide – the court’s custody decisions. The fact is that many judges will speak to your children privately (especially older children) and will take their preferences into careful consideration, but the decision is simply not up to your children.

The court is making determinations related to your children’s custody exactly because they are children who need custodial care. When your children are adults, they’ll make their own important decisions, but for now, those decisions must be made for them. Your children’s voices, nevertheless, may help guide the court’s ruling.

Reaching a Resolution

If you’re going through a divorce, emotions are inevitably running high. The stress and heartache of divorce leave many couples unable to reach mutually agreeable terms on many important issues. Both of you, however, naturally put your children first, and if you can find a way to hammer out custody arrangements that you can both live with, the court and its considerable discretion won’t need to be involved in the process.

Reaching a compromise with your children’s father can come in many forms. If you aren’t able to work together personally (which isn’t uncommon), your attorneys can attempt to negotiate an arrangement, and you can also address the issue via mediation – with the legal guidance of your respective divorce attorneys.

The post Do Mothers Have an Advantage in Custody Disputes? appeared first on Divorced Moms.

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Can Your Husband Seek Spousal Support?

husband seek spousal support

 

There are several concerns in divorce cases, depending on your circumstances. These can include child custody arrangements, child support, the division of your marital property, and spousal maintenance – also known as alimony.

While a spousal maintenance award is never a given and the issue doesn’t come into play in every case, there are divorces in which maintenance plays an important role.

Whether your husband can seek spousal support or not will depend on a variety of variables. Understanding the basics as they relate to spousal maintenance can help you make decisions that protect your rights throughout the divorce process.

Can Your Husband Seek Spousal Support?

Maintenance Awards

Spousal maintenance is generally predicated on financial disparity. If, for example, you are the primary breadwinner and your husband was the primary caregiver for your children throughout your marriage, he might be able to successfully seek alimony until he is able to begin working and supporting himself. There are, however, a number of considerations to take into account. Generally, the longer you were married and the greater the difference in earning ability and assets between the two of you, the greater the chance that your husband will be eligible to seek spousal support.

Will Your Husband Be Awarded Alimony?

Every divorce comes with its own highly specific financial circumstances, but the general rule is that if your husband lacks the means to provide for himself and is incapable of attaining appropriate employment right away, he might be awarded maintenance.

This means that if your spouse is unemployed or simply doesn’t earn enough, if his portion of the marital assets aren’t sufficient to make up the difference, and if he doesn’t have the education, skills, or experience to obtain a job that would provide him with the necessary means to support himself – the court might look to you to help him move forward post-divorce with financial support.

It’s important to recognize, however, that alimony is very rarely a permanent proposition. Instead, alimony is a stopgap measure that will be used to help your ex find his financial footing after the divorce. Generally, the longer your marriage and the greater the financial disparity, the longer the alimony period.

Determining Spousal Maintenance

Every determination regarding alimony is specific to the individual situation, but there are some basics that almost universally apply. The court will take a variety of factors into careful consideration in determining whether alimony is appropriate and, if so, what its duration should be. These factors can include:

  • The duration of your marriage (having been married for ten years or more can play an important role)
  • The age and health status of both you and your husband
  • How your marital property was divided (each of your post-divorce assets)
  • The level of education each of you has (including your level of education now as compared to your level of education when you married)
  • Your earning capacity in relation to your husband’s earning capacity
  • The tax consequences related to your divorce
  • The contents of any premarital or postmarital contractual agreements (a prenup, for example)
  • The amount of time it will likely be necessary for your husband to become self-supporting at a level that’s comparable to the one you maintained as a married couple
  • Any contribution that your husband made to your education or to further your career during the course of your marriage
  • Any other circumstances that the court deems relevant

if the court determines that your husband is entitled to maintenance, it will then go about calculating the appropriate amount and duration, which will be predicated on your ability to pay while still satisfactorily supporting yourself.

What Does Maintenance Cover?

Maintenance can be a mechanism for making property division more equitable, a means of short-term support to help your ex-husband become financially self-sufficient, or a permanent support strategy for a spouse who has a limited ability to earn that cannot be rectified or who is outright unemployable (because of a disability, for example). Permanent maintenance is far less common than temporary maintenance.

When it comes to the division of marital property, there are instances when maintenance can help make the distribution more equitable. For example, if you own and manage a business that supported your family throughout your marriage, it can be very difficult to value and/or divide the business for divorce purposes.

If you keep the business, the court may award your ex-husband maintenance to help smooth out any disparity in the property division. Further, if your husband didn’t work or was underemployed during the course of your marriage, the court may award him temporary maintenance while he finds his way back into the work world and begins earning a sufficient salary.

Mitigating Circumstances

In most situations, there simply is no guarantee of maintenance. If the judge finds, for example, that your ex was taking advantage of your generosity by not working throughout the marriage, he or she could deny maintenance.

Further, if your husband’s marital misconduct – such as overly lavish spending or an extramarital affair – brought about the dissolution of your marriage, the judge can take that into consideration in determining whether maintenance is appropriate or not.

Perhaps more than any other divorce issues, the question of maintenance is highly specific to the situation at hand and often hotly contested. If you have maintenance concerns, you need the professional legal counsel of an experienced divorce attorney on your side.

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Child Support: Options For Enforcement Against The Non-Paying Parent

child support

 

Success!

You’ve received an Order from the Court that requires your Ex to pay you child support each month, as well as an Order that your Ex pay some percentage of costs for things like extracurricular activities and extraordinary medical expenses for your child. The long legal battle is over, and you can rest.

Then, a few months later, the inevitable happens.

Your Ex does not pay.

Now what?

Options For Enforcement Against The Non-Paying Parent

Fortunately, for those parents who have been awarded child support and/or reimbursement for extracurricular or extraordinary medical costs, the law provides several options for enforcement against the non-paying parent (“Obligor”).

Unfortunately, this process can be confusing, and many legal practitioners – and even Judges – struggle to understand which options apply in certain scenarios. (In any case, a party may seek a Citation for Contempt against a party that has failed to comply with a Court Order, but the focus of this article is enforcement, i.e.; how to get money in-hand).

To provide some guidance on enforcement options, the most common scenarios are addressed below:

My Ex has been ordered to pay a specific amount of child support each month and has not made the payment(s).

Under Colorado law, a child support payment is converted into an enforceable support judgment on the day that it is due and not paid, and immediately begins to accrue interest at a rate of 12%, compounded monthly. In cases where payments have not been made for many months or even years, the amount of interest owed on the unpaid child support can exceed several thousand dollars.

However, the operation of law that converts a missed payment into a support judgment does not magically deposit funds into your bank account. In order to obtain actual funds from the Obligor, you will need to file a “Verified Entry of Support Judgement” with the Court reflecting the timeframe at issue, the amount that should have been paid, the amount that was actually paid, and the interest accrued thereon.

Once this document is filed with the Court, you may seek enforcement against the Obligor’s employer, bank accounts, and property by way of liens or a Writ of Garnishment. There are pro’s and con’s to each method of enforcement, however, it is important to remember that support judgments are not dischargeable in bankruptcy.

While it may take some time to recover all of the funds owed to you, you will continue to accrue interest on the principal amount owed and the Obligor is unlikely to escape ultimately paying the judgment over time.

In the case of garnishment with an Obligor’s employer, you will begin receiving payments directly from the employer each time that the Obligor receives a paycheck. However, Colorado law sets limits for the percentage of earnings that may be garnished, so you may receive smaller payments towards the total amount owed until that amount is paid off.

When garnishing a bank account, you will be limited in the amount that you recover by how much money the Obligor has in the account. For instance, if you seek to recover $1,000.00, and the Obligor only has $100.00 in the account, you will only receive $100.00 until/unless the Obligor places more funds into the account in the future.

Alternatively, a lien against property is a viable option and may result in a lump-sum payment, however, you may not receive the funds until the property is sold or otherwise transferred.

My Ex has been ordered to pay a percentage share of extracurricular expenses and extraordinary medical expenses but has failed to do so.

A distinction has been made, however, between amounts owed that are “sum certain,” such as the set monthly amount of child support, and payment of expenses that may fluctuate over time. Most often, this situation presents itself in cases where a party is ordered to pay a percentage amount owed towards extracurricular or extraordinary medical expenses for a child.

For example, if an Order requires that a party contribute 50% of the cost of extracurricular or extraordinary medical expenses for a child, the actual dollar value of that amount may fluctuate from month to month. Certainly, there will be months when there are no extraordinary medical expenses, and other months when there may be significant expenses (perhaps a child has broken an arm). The same is true for extracurricular costs.

This issue becomes even more complicated when there is specific language in the Court’s Order regarding notice to the other party about the amount of the expense, timelines, and requirements for exchange of receipts and/or invoices, and whether the agreement of both parties is necessary for the expense to be reimbursable.

When dealing with this scenario, the very first step is to ensure that you have complied with all of the notification and exchange of documentation requirements necessary under your specific Court Order. If you have done so, then any failure by the opposing party to pay the amount owed will result in a support judgment, subject to the same interest and enforcement procedures as described in the previous section.

However, because the amount owed can be subject to debate (the other party may claim that you failed to provide documentation or notice as required, or may even dispute the actual amount spent or owed), you cannot simply file a Verified Entry of Support Judgment and immediately seek enforcement. Instead, you must file a “Motion for Entry of Support Judgment” and request that the Court enter an Order awarding you the support judgment and certifying the amount owed.

In this scenario, the Obligor has a due process right to file a Response with the Court, disputing the amount at issue and/or your compliance with the notice and documentation requirements, and may even request an evidentiary hearing regarding these issues. Unlike enforcement of a “sum certain” amount of child support owed, you cannot seek a Writ of Garnishment or enter a lien against property in this scenario until you have received an Order from the Court regarding your Motion for Entry of Support Judgment.

However, once you receive an Order granting your Motion, you may seek the same enforcement options described above.

My Ex has failed to pay both the monthly child support amount AND their contribution to extraordinary expenses.

In the case that your Ex has failed to pay both a “sum certain” amount of child support and has failed to pay their portion of extracurricular and/or extraordinary medical expenses, you will need to seek enforcement under both options outlined above.

You will need to file a Verified Entry of Support Judgment for the amounts owed and not paid as specific child support, and a Motion for Entry of Support Judgement for any amounts that would have been subject to debate or fluctuation over time and seeking a Court Order establishing the amount owed as a judgment.

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Why I Used a Paralegal Instead Of an Attorney During a Custody Dispute

custody dispute

 

When I moved to a new state and my ex showed up after 3 years of not seeing our children with a lawyer and a petition for custody of our younger son, I was lost. I was also broke, with no money to hire an attorney.

Being unfamiliar with the laws and procedures of my new state, I started doing my homework. I also began to worry because a custody case was far more legally treacherous than anything I’d done on my own before. I knew I needed help making sure I was filing the appropriate paperwork with the appropriate court.

Why I Used a Paralegal Instead Of an Attorney During a Custody Dispute

I found out, via my own personal experience, that a paralegal can be a valuable asset if you are not using an attorney. If you’re going through a divorce, but don’t want to break the bank, you might be asking yourself, can I use a paralegal instead of a divorce attorney? In most states, it is legal to use the services of a certified paralegal to help with the paperwork generated by the divorce process.

In some states independent paralegals have been given legal right to serve as “legal document preparers,” so if you have a motion to file or a petition to draw up, you are within your legal right to hire a paralegal.

Things Paralegals can do

Paralegals can legally prepare divorce forms for you, and they can tell you where those forms need to be filed. Paralegals can also tell you how to serve divorce forms to your spouse, and help you fill out state-specific forms for modifying child support or alimony.

Things Paralegals can’t do

Paralegals can’t give you legal advice. They also can’t go to court and advocate for you the same way a divorce attorney will. If you are experiencing a fairly simple, uncontested divorce, you can save money by using a paralegal instead of a divorce attorney.

If your divorce is highly conflicted, with issues such as a custody battle or large assets to split, a paralegal is not something you want to consider. Their knowledge of court procedure and state divorce laws are limited, which makes them less valuable in a high conflict situation.

How to Find a Paralegal

As with a divorce attorney, you should not contract with a paralegal without first doing research into their background. Check with your Better Business Bureau for any complaints, and ask prospective paralegals about their experience and education. Making sure your paralegal is qualified is imperative when using one in place of a divorce attorney.

Sometimes Paralegals Know More

If your divorce is highly conflicted with issues such as a custody battle or large assets to split a paralegal is not something you want to consider. Their knowledge of court procedure and state divorce laws are limited which makes them less valuable in a high conflict situation.

As with a divorce attorney, you should not contract with a paralegal without first doing research into his/her background. Check with your Better Business Bureau for any complaints. Ask about their experience and education. Experience and qualifications are imperative when choosing a paralegal!

In my case, the paralegal I found looked over the case paperwork, and help me get everything done appropriately for a small fee. Here is the kicker: My paperwork was in good order, and my ex’s attorney had filed the petition for custody with the wrong court.

Thanks to the paralegal, we slowed down the process a bit, and when I did show up in court, all of my documents were properly filed and in order. Help can come from unexpected places. If you aren’t able to hire an attorney but need to use the court to protect your legal rights, a paralegal can guide you through the process and alleviate a lot of stress and anxiety.

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Can I Modify My Child Custody Agreement Myself, Without Going to Court?

modify child custody agreement

 

As an experienced Somerset, NJ divorce and family law attorney, I can tell you that the answer is yes, of course! But I don’t advise it, because when you and your ex alter your child custody arrangements on your own, you are creating more problems than you are solving.

Who suffers? Ultimately, your children.  Read on to find out how you can best protect your children and your parental rights.

Can I Modify My Child Custody Agreement?

The Child Custody Agreement

How a child custody agreement is reached varies by state, but in general, it is negotiated as part of your divorce and a court decree is entered setting forth the child custody terms. When parents agree on what living and legal arrangements are best for their children, the process goes smoothly.

When parents disagree, this is where the court steps in, attorneys negotiate, and a compromise is reached. Most often, compromise satisfies neither party and there are continuing ill feelings. But at least there is a court order in place, and either you or your ex could ask the court to step in if one of you fails to comply with it.

Generally, the initial child custody agreement will establish who has physical and legal custody, and whether there is joint custody shared between the parents or one parent has sole custody.

Physical vs Legal Custody

In most states, legal and physical custody are different rights. The child lives primarily with the parent who has physical custody. Either parent or both may have the right to make decisions for the child, and this is called legal custody.

When parents are married, both have physical and legal custody of their children.  When married parents divorce, these rights must be either divided or shared.

Joint Custody vs. Sole Custody

These are what they say they are:  where children live with both parents, this is called Joint Custody. In this situation, both parents as a practical matter often retain joint legal custody.

Sole Custody is the term for when one parent has both physical and legal custody of a child. Usually, for the other parent to lose these rights, there is a hearing and the judge will make that determination based upon factors that vary by state.

Asking the Court to Alter The Child Custody Agreement

Parents who change the terms of child custody through the courts are doing the most they can to protect their rights as parents because the court issues an order memorializing those changes.  Thereafter, the new child custody terms can be enforced by the court should one party fail to keep to them.

Altering the Terms of Child Custody on Your Own

Of course, you and your ex can agree to change the child custody arrangement outside of court.  It’s quick, easy (assuming you both agree), and cheap in that there no attorney fees or court filing fees. But beware of the following pitfalls of changing the child custody agreement on your own:

The court will not and cannot enforce your new child custody terms.

If your ex wakes up one day and decides not to stick to the new child custody arrangement, there is nothing you can do about it. Only a court order is legally binding on your ex. There is no way to enforce your informal agreement with your ex.

Your ex can get the court to enforce the terms of the original child custody agreement.

You might be acting in good faith and sticking to the changes you and your ex worked out.  But your ex could still haul you in front of the judge and demand that the court enforce the original child custody order.  That would be well within his rights, and the court would find that you are the party who violated the order.

Changes in child custody may work out at first, but if you allow one informal change, where does it end?

It is common for an ex to take advantage of the situation when you are willing to make informal changes, either planned or on-the-fly.  Your life could become a hell of variables and resentment, with your ex constantly demanding little changes to the child custody schedule and you feeling powerless to say no because you allowed such changes in the past.

In short, making informal changes to child custody might seem convenient and harmless at the time but you end up laying the groundwork for future conflict between you and your ex. Didn’t you go through the pain of divorce to end that conflict? Your children also suffer, not only from the revived conflict between you but from the uncertainty in their parenting schedule. Parents who remain civil, a calm, stable environment, and a predictable schedule all help children heal from divorce.

Let the court help you and your children, and your ex, move forward in an orderly and predictable way by memorializing any needed change to a child custody agreement with a court order.

The post Can I Modify My Child Custody Agreement Myself, Without Going to Court? appeared first on Divorced Moms.

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Child Support Custody And Visitation

Guidelines The Court Uses To Determine Child Support, Custody, And Visitation

Child Support Custody And Visitation

When going through a divorce with minor children or determining paternity, one of the many decisions you will need to make is how much time each parent will spend with the minor children.

It is important to note that the amount of time spent with the children can also affect child support.

The goal of any agreement affecting children should be to protect the children’s best interest.

However, due to the emotional nature and financial implications of custody and visitation, many parents struggle to reach an agreement.

In the event parents are unable to find an agreeable solution the Court will intervene and create child custody and visitation orders based on several factors, including the children’s best interest.

Once the Court determines child custody and visitation, it will then use guidelines dictated by statutes and a child support worksheet to determine which spouse owes the other child support.

Determining Child Support, Custody, And Visitation

Child Support

In California, both parents are financially responsible for minor children. However, child support can be ordered to help provide for the children’s housing, clothing, food, extracurricular activities, and other needs.

Child support is based on several factors including each parent’s gross income, mandatory deductions, tax deductions, amounts paid for healthcare, time spent with each parent and more.

Most often, the higher-earning parent will pay child support as they have more disposable income. For families who have 50/50 or close to equal timeshare with the children, the parent who claims the minor children as dependents could be ordered to pay the other parent support.

With so many factors and variables in determining support, it is important to speak with a professional to review all available options and develop the best child support agreement for you and your children.

Imputing Income

If you or the other parent is unemployed or underemployed, the Court can still order child support. In either situation, the Court will review employment records and education history to determine if gainful employment is feasible and determine what their earning capacity may be.

The Court may also consider other factors, including the length of time you have been out of work and the current state of the job market.

If the Court finds one parent is underemployed or willfully not working, the Court could assign income to that parent based on previous salary or current earning capabilities determined by work or educational experience.

The assignment of income, also known as imputing income, can result in Court-ordered child support.

If a parent fails to meet their financial obligation and does not pay child support as ordered, arrears will accrue, and the parent could face additional penalties.

State Disbursement Unit (SDU)

In the past, child support was paid directly to the receiving parent. When a child support order dictated automatic deductions, the paying parent’s (payor’s) employer would withhold the amount ordered and send it directly to the other parent.

However, in 1996 the federal government passed the Personal Responsibility and Work Reconciliation Act, requiring states to create a centralized location where parents pay child support. The creation of State Disbursement Units facilitated payment by collecting child support and distributing to the receiving parent.

When a child support order utilizes SDUs to facilitate payment through employers, payors can have up to 50 percent of their wages deducted.

In addition to facilitating payment, the 1996 Act changed how payment was distributed if a payor had more than one child support order.

Prior to the implementation of the SDUs, child support orders were prioritized by date. For instance, if a payor had orders to pay child support for children from a previous relationship and for the most recent relationship, and the amount ordered for the first relationship more than 50 percent of their income, the first family would get the full amount while the second family would receive partial payment or nothing.

After 1996, a paying parent’s child support amount can change based upon how much the payor parent earns or if there are other child support orders or arrearages are owed by the payor parent.

The SDUs can adjust the distribution of child support to ensure all children receive support. This can result in a reduction of child support received if the amount owed for all orders exceed 50 percent of the payor’s income.

However, the original amount ordered is still due and arrearages will build up unless the paying parent pays the difference directly to the SDU.

Child Custody and Visitation

California recognizes two types of custody: legal custody and physical custody.  Legal custody refers to the ability to make decisions that affect the child’s health, welfare, and safety. Legal decisions include what doctors the child sees, what school the child attends, participation in religious activities, when the child can get a driver’s license, and more.

If one parent has sole legal custody, they are not obligated to consult the other parent when making decisions.

However, if parents have joint legal custody, they will both be able to make decisions. Ideally, both parents would communicate and agree on any decisions that affect their children.

Physical custody refers to the time spent with each parent and where the child resides. Joint physical custody, when children live with both parents, is the most common arrangement and the goal of California Courts.

However, it is not the best solution for all families, especially if domestic or substance abuse is an issue. If one parent has primary or sole custody, the other “non-custodial” parent has visitation.

Visitation schedules can vary depending on the relationship between parents and their children and work or school schedules. Common visitation schedules are unsupervised visits every other weekend, bi-weekly visits, alternating major holidays, or supervised visits once a week.

It is highly suggested that both parents work together to create a parenting plan detailing visitation, pick up/drop off times and more.  If you are unable to reach an agreement, a family law attorney can help you create a parenting plan that not only benefits the children but considers the parents’ schedules. In the event, you are unable to come to an agreement the Court can hear your concerns and create custody and visitation orders.

However, court orders will dictate the amount of time each parent spends with the children, which can result in orders that neither you nor the other parent agree with and have financial ramifications for many years.

Custody Disagreements

In some cases, the parents may not be able to come to a custody agreement. Regardless of how you feel about your spouse, you should not bring your children into the argument.

Nor should you try to dissuade your children from seeing the other parent. The Courts will consider this when making a custody decision.

In most cases, the Court will not let a child testify as to which parent the child wishes to stay with as it is not fair to make the child choose.

When determining custody, the Court will review several factors such as the amount of time each parent spends with the children, domestic violence issues, substance abuse, involvement in educational or extracurricular activities, and general care.

Child Custody Evaluations

In some situations, the Court may order a child custody evaluation to help resolve a custody dispute. If ordered, the court can appoint an evaluator, or the parents can choose a private evaluator.

In either situation, both parties are responsible for the cost of the evaluator. The evaluator’s role is not to treat patients, but to provide an objective evaluation with informed opinions to help the Court determine the most appropriate custody outcome. The evaluator will conduct an investigation and interviews to decide which parent can provide the best situation for their children.

Evaluators weigh several factors to make their decision, including reviewing interactions between parents and their children, if the parents allow contact or visits with the other parent, and how the children behave in front of each parent.

Spoiling a child will not get you extra points!  Once the evaluator has completed their investigation, they will submit their opinion to the Court for consideration.

An Attorney for the Child

In addition to a child custody evaluation, or in place of an evaluation, the Court may appoint an attorney for the child, referred to as Minor’s Counsel.

The role of Minor’s Counsel is to protect and advocate for the child’s best interest. As with the evaluator, both parties share in the cost of the child’s attorney. While the Minor’s Counsel generally has wide discretion in their investigation, it often involves multiple interviews with the children, and sometimes the parents.

Upon conclusion of their findings, Minor’s Counsel will present their recommendation and the children’s wishes to the Court for consideration when creating orders.

Following Court Orders

Parents who fail to follow court orders can be in contempt of the Court, resulting in fines or worse.

Parents of children who refuse to visit the other parent according to their visitation orders can also be held in contempt and face financial fines or even jail.

However, the success of contempt charges depends on several factors, including the child’s age and the concept of parental control. If your children are refusing to see their other parent, it is imperative you contact a family law attorney as soon as possible.

An experienced attorney can listen to your situation, advise the proper course of action to protect parental rights, and against contempt charges.

The Best Outcome

Even if you and your spouse cannot get along, it is better if you are able to create a parenting plan with the help of your attorneys.

The focus of any agreement should always be protecting the best interest of your children.

Consistent, cordial communication with your co-parent can help you and your children transition to the new family dynamic.

Additionally, discussing decisions surrounding the children’s health, safety, and welfare together can help avoid the stress of costly court appearances. In the event an agreement can’t be reached, an experienced family law attorney can help you protect your children and your parental rights.

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What Does a Judge Taking Into Consideration When Deciding “The Best Interest Of The Child?”

best interest of the child

 

The judge considers many factors in determining child custody during divorce. Most important is “the best interests of the child.” To determine best interests, the judge may look at the following factors:

When Deciding The “Best Interest Of The Child?”

Home Environments. This refers to the respective environments offered by you and your spouse. The court may consider factors such as the safety, stability, and nurturing found in each home.

Emotional Ties. The emotional relationship between the child and each parent may include the nature of the bond between the parent and child and the feelings shared between the child and each parent.

Age, Sex, and Health of the Child and Parents. Louisiana no longer ascribes to the “tender years” doctrine, which formerly gave a preference for custody of very young children to the mother. If one of the parents has an illness that may impair the ability to parent, it may be considered by the court. Similarly, the judge may look at special health needs of a child.

Effect on the Child of Continuing or Disrupting an Existing Relationship. This factor might be applied in your case if you stayed at home for a period of years to care for your child, and awarding custody to the other parent would disrupt your relationship with your child.

Attitude and Stability of Each Parent’s Character. The court may consider your ability and willingness to be cooperative with the other parent in deciding who should be awarded custody. The court may also consider each parent’s history, which reflects the stability of his or her character.

Moral Fitness of Each Parent, Including Sexual Conduct. The extent to which a judge assesses the morals of a parent can vary greatly from judge to judge. Sexual conduct will ordinarily not be considered unless it has harmed your child or your child was exposed to sexual conduct.

Capacity to Provide Physical Care and Satisfy Educational Needs. Here the court may examine whether you or the other parent is better able to provide for your child’s daily needs such as nutrition, health care, hygiene, social activities, and education. The court may also look to see whether you or your spouse has been attending to these needs in the past.

Preferences of the Child. The child’s preference regarding custody will be considered if the child is of sufficient age of comprehension, regardless of chronological age, and the child’s preference is based on sound reasoning. Louisiana, unlike some other states, does not allow a child to choose the parent he or she wishes to live with. Rather, the court may consider the well-reasoned preferences of a child, at any age. Typically, the older the child, the greater the weight given to the preference. However, the child’s reasoning is also important.

Health, Welfare, and Social Behavior of the Child. Every child is unique. Your child’s needs must be considered when it comes to deciding custody and parenting time. The custody of a child with special needs, for example, may be awarded to the parent who is better able to meet those needs.

The judge may also consider whether you or your spouse has fulfilled the role of primary care provider for meeting the day-to-day needs of your child.

One tool to assist you and your attorney in establishing your case as a primary care provider is a chart indicating the care you and the other parent have each provided for your child. The clearer you are about the history of parenting, the better job your attorney can do in presenting your case to the judge.

Look at the activities below to help you review the role of you and your spouse as care providers for your child.

Parental Roles Chart

Activity Mother  Father
Attended prenatal medical visits
Attended prenatal class
Took time off work after child born
Got up with child for feedings
Got up with child when sick at night
Bathed child
Put child to sleep
Potty-trained child
Prepared and fed meals to child
Helped child learn numbers, letters, colors, etc.
Helped child with practice for music, dance lessons, sports
Took time off work for child’s appointments
Stayed home from work with sick child
Took child to doctor visits
Went to pharmacy for child’s medication
Administered child’s medication
Took child to therapy
Took child to optometrist
Took child to dentist
Took child to get haircuts
Bought clothing for child
Bought school supplies for child
Transported child to school
Picked child up after school
Drove car pool for child’s school
Went to child’s school activities
Helped child with homework and projects
Attended parent-teacher conferences
Helped in child’s classroom
Chaperoned child’s school trips and activities
Transported child to daycare
Communicated with daycare providers
Transported child from daycare
Attended daycare activities
Signed child up for sports, dance, music
Bought equipment for sports, music, dance
Transported child to sports, music, dance
Attended sports, music, dance practices
Attended sports games, music, dance recitals
Coached child’s sports
Transported child from sports, music, dance
Know child’s friends and friends’ families
Took child to religious education
Participated in child’s religious education
Obtained information and training about special needs of child.
Comforted child during times of emotional upset

Domestic Violence. Domestic violence is an important factor in determining custody, as well as parenting time and protection from abuse during the transfer of your child to the other parent. If domestic violence is a concern in your case, be sure to discuss it in detail with your attorney during the initial consultation so that every measure can be taken to protect the safety of you and your children.

The post What Does a Judge Taking Into Consideration When Deciding “The Best Interest Of The Child?” appeared first on Divorced Moms.

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child custody & vacation

Child Custody & Vacation: How Can Travel Plans Affect Your Custody Agreement?

child custody & vacation

 

Traveling as a family isn’t very complicated. As a duo, you were able to decide on the best location, dates, budget, meals, and packing strategy. In a divorce, traveling with children is a whole new ballgame. Suddenly your plans require extra steps and the law can get involved.

Traveling plans affect custody agreements in a variety of ways. Depending on traveling plans, custody agreements are subject to modification. If you have concerns about your custody agreement and are in search of a divorce lawyer, please refer to your local directory and get the answers you need regarding child custody.

Local lawyers will fight for you and your child’s best interest and will provide you with unique and individualized attention. While there are little-to-no ways of avoiding traveling issues between you and your ex, there are steps that can be taken to ease the process.

Please consider the following step by step maneuvers when dealing with child custody and vacation:

Have a Written Agreement

Needless to say, upon divorce there must be a written document in place that addresses child custody arrangements. There are no defined rules for custody and you and your partner are allowed to modify pre-established agreements. Within this agreement, should be a section designated to special occasion custody circumstances. When undergoing a divorce, it is critical to have in writing, under what circumstances one parent is allowed to travel with the child.

Can the child and parent leave the country? Will they be unsupervised? Is the other parent allowed contact with the child during the vacation? All these concerns and more must be addressed in writing to avoid disputes and serious legal complications.

What is a Controlling Document?

Specific conditions related to travel should be included in a controlling document. There are basic provisions that should be clarified within the document, such as whether the parent must be notified if the parent is taking the child out-of-state.

More specific issues should be clarified as well. If one parent has pre-decided custody for a certain holiday, but the other parent wishes to take the child on vacation during the same holiday, the protocol for those circumstances must be made clear.

Who is allowed to travel with the child and parent and who is not? This should also be included in the document. Who will provide proper travel gear for the children and who will store this equipment? Is the child allowed to miss school days for vacation time? All of which must be addressed in advance. An important issue that must be decided upon divorce is which parent will store travel papers and official documents and how soon must they provide the other parent with that information.

Travel Rules

If your ex successfully takes the children on vacation and then begins violating your previous agreements, you are allowed to sue them for breach of contract. If your ex does not allow you to speak to the children on vacation, you can file a motion with the court and have your former spouse held in contempt of a court order. This notifies your ex that if they continue to breach the agreement, you will take legal action – just because they are not physically reachable, they will face consequences.

Don’t Wait, Contact A Divorce Lawyer Who Can Provide Assistance

There is no way to completely prepare for every possible scenario that may occur upon traveling. The more issues you and your ex are able to address and reach consensus on prior, the better. If you are in search of a qualified divorce lawyer and want legal guidance on custody issues, contact a legal team to schedule a meeting with a passionate professional today and ease your custody concerns.

The post Child Custody & Vacation: How Can Travel Plans Affect Your Custody Agreement? appeared first on Divorced Moms.

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equal parenting

 6 Things Fathers Should Think About if They Want Equal Parenting

equal parenting

 

Before and during the divorce process each parent has the same legal right to custody of a child. Mothers and fathers are on legal standing until one or the other gives up or is denied full custody rights.

What does this mean? It is complicated! Even more complicated if you don’t know your state’s child custody laws. Bottom line, until you have signed a custody agreement or a judge has handed down a custody opinion, each parent has the same legal rights when it comes to where a child lives, who the child lives with and anything regarding the child.

I’ve found that most fathers do not have a clear understanding of their legal divorce rights where the children are involved. And in most cases will give up custody out of fear of losing in court due to a gender “bias.” Which is a myth perpetuated by men’s rights organizations. A father has as much chance of winning custody if he pursues custody as a mother.

For example, I received an email from a father who was separated from his wife. He wrote, “My wife moved out with our children, and is refusing to allow me to visit with them. I found out the other day that my youngest daughter had been hospitalized for a minor illness and I wasn’t informed. What should I do?”

It is heartbreaking to hear from a father who, for some reason has come to the belief that his wife has more legal rights over the children. This father has the legal right to pack his children up and bring them home. He has the legal right to contact school personnel, pediatricians and anyone else who may have contact with the child and let them know he is being denied his legal rights and demand to be notified of anything concerning his children.

The longer he allows his wife to make the rules about how or if he can parent his children, the more likely he is to lose an extensive amount of parenting time with his children in divorce court. In my opinion, this is the biggest mistake fathers make during the divorce process. They do not take the necessary steps needed to retain equal parenting time or full custody of their children.

According to DivorcePeers.com, the majority of child custody cases are not decided by the courts.

  • In 51 percent of custody cases, both parents agreed — on their own — that mom becomes the custodial parent.
  • In 29 percent of custody cases, the decision was made without any third party involvement.
  • In 11 percent of custody cases, the decision for mom to have custody was made during mediation.
  • In 5 percent of custody cases, the issue was resolved after a custody evaluation.
  • Only 4 percent of custody cases went to trial and of that 4 percent, only 1.5 percent completed custody litigation.

What do the above statistics tell us about fathers and child custody?

For some reason, the vast majority of fathers are behaving in a way that is not in their best interest or the best interest of their children. Fathers may be giving up equal or shared custody because they’ve heard there is a gender bias, that mothers always win custody. They may give up more custody because they’ve been taught that “children need their mother.”

Here is the truth, you don’t know if there is a true gender bias in the divorce court system if you don’t go to court and fight for equal time with your children. And children need fathers just as much as they need mothers.

If you are a father who wishes to have equal parenting time with your children you are doing yourself a grave injustice if you give up without a fight.

If your attorney tells you, you don’t have a chance at equal parenting time with your children, look for another attorney. Don’t hire an attorney until you find one who tells you he will help you fight for that time you deserve as a father. And, don’t buy into the argument that the courts are biased in favor of women until you’ve proven to yourself that it is true.

6 Things Fathers Should Think About if They Want Equal Parenting Time After Divorce

  1. Do not allow your wife to dictate when, where and how often you will see your children. Document every time your ex keeps you away from your children and then use the court system to hold her accountable for interfering in your parenting time.
  2. Immediately hire an attorney or file a pro se petition with the court to establish equal parenting time with your children.
  3. Do not allow what you hear on father’s rights websites to dissuade you from attempting to gain equal parenting time or full custody. Just because one man was not able to obtain equal time or full custody of his children does not mean you won’t. You don’t go to work and do your job based on what others tell you, you are and are not capable of doing, do you? Then, don’t give up on your children based on what a few angry men say online.
  4. Do not let the financial cost associated with a child custody battle keep you from fighting. Which is more important, saving money for a child’s college education or fathering your child during their informative years and beyond?

Society still views mothers as caretakers and fathers as providers. I believe that one reason fewer men fight for equal time with their children has to do with their fear of legal fees and being left financially strapped and unable to provide for their children. When it’s all said and done, your time is the most important thing you can provide for your children. Don’t let money fears stop you from providing them with time with their father.

  1. Do not agree to less time with your child without first going through the mediation process or, if push comes to shove a full out custody battle.
  2. Do what you know, in your heart is right for you and your children. Don’t allow your head to become muddied with opinions from naysayers or those who’ve been there before you. When it comes to time with your children, you must let your heart lead what actions you choose to take.

I can’t tell a father what his chances of winning in a custody battle are. I can tell a father that if you aren’t willing to exert your legal rights your chance of winning equal or full custody with your children is zero. The questions you have to ask yourself is; how important is this issue to me? How important is it to my children?

If it is important then don’t allow fear of the myth of a “gender biased” court system keep you from pursuing your right to parent your children.

The post  6 Things Fathers Should Think About if They Want Equal Parenting appeared first on Divorced Moms.

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The "Best Interest" Doctrine Fails Our Children

How The “Best Interest” Doctrine Fails Our Children

The "Best Interest" Doctrine Fails Our Children

 

During divorce, a judge will use a doctrine known as “the best interest of the child” to determine issues such as child custody and visitation of any minor children. It is a subjective, discretionary test, in which all circumstances affecting the child are taken into account. The word discretionary is important because, although states have laws defining what is meant by “best interest” of a child a judge has great leeway in determining the above issues.

For example, in the state of Tennessee custody and visitation provisions state, “In taking into account the child’s best interest, the court shall order a custody arrangement that permits both parents to enjoy the maximum participation possible in the life of the child consistent with the factors set out in subdivisions (a)(1)-(10), the location of the residences of the parents, the child’s need for stability and all other relevant factors.”

Those “other relevant factors” are:

  1. The love, affection and emotional ties existing between the parents or caregivers and the child;
  2. The disposition of the parents or caregivers to provide the child with food, clothing, medical care, education, and other necessary care and the degree to which a parent or caregiver has been the primary caregiver;
  3. The importance of continuity in the child’s life and the length of time the child has lived in a stable, satisfactory environment.
  4. The stability of the family unit of the parents or caregivers;
  5. The mental and physical health of the parents or caregivers;
  6. The home, school and community record of the child;
  7. The reasonable preference of the child, if twelve (12) years of age or older;
  8. Evidence of physical or emotional abuse to the child, to the other parent or to any other person; the court shall include in its decision a written finding of all evidence, and all findings of facts connected to the evidence. In addition, the court shall, where appropriate, refer to any issues of abuse to the juvenile court for further proceedings;
  9. The character and behavior of any other person who resides in or frequents the home of a parent or caregiver and the person’s interactions with the child; and
  10. Each parent’s or caregiver’s past and potential for future performance of parenting responsibilities, including the willingness and ability of each of the parents and caregivers to facilitate and encourage a close and continuing parent-child relationship between the child and both of the child’s parents, consistent with the best interest of the child.

How The “Best Interest” Doctrine Fails Our Children

As you can see, the majority of the factors used by a judge to decide custody and visitation arrangements are quite subjective. A judge’s personal feelings and opinions are more than likely what will determine a case, not a true legal standing in family law.

When the application of “best interest of the child” ends up being based on nothing more than judicial discretion it only makes sense that those who argue the need for a new standard in determining these legal issues may be the ones who are, in reality, the only ones concerned with the “best interest of the child.”

The standard is supposed to promote uniformity and take into account the rights of a child to a loving relationship with both parents. Instead, it is often criticized because it is easily manipulated by family court judges. Some who argue against the “best interest” doctrine say that it is nothing more than an excuse for the courts to interfere with private family issues and has little to do with the welfare of children.

Regardless of the broad discretion given to judges and the potential for its abuse the underlying goal of the “best interest” standard in family law shouldn’t be ignored. It is, after all, all we have at this time in family law that attempts to advance the rights and welfare of our children.

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