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.
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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.
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.
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.
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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Most Texas custody cases are between a child’s parents, but in some cases other family members may be involved. In a recent case, an uncle challenged a modification of the access and possession terms of a court order related to his brother’s child. Although the trial court expressed an intention to clarify the original order, the appeals court found it had improperly made a substantive change.
The child’s father is deceased. In 2016, the father’s brother filed suit to be named as the child’s primary conservator. The uncle and the mother ultimately reached an agreement, which was incorporated by the court’s order. The order gave primary possession to the uncle and periodic possession to the mother. The uncle had the right to request the mother undergo drug testing once a month. She was required to appear for drug testing at a designated location within 24 hours of the uncle sending notice. The uncle was prohibited from sending notice Friday through Sunday at 9:00 a.m. If the mother failed to appear within 24 hours, the results would be deemed positive. If the drug test results were positive or deemed positive, the mother’s periods of possession would be suspended until there was a further court order.
The mother moved to enforce the order a month after it was entered. She alleged the uncle did not make the child available to her during her time. She sought criminal and civil contempt, additional periods of possession, and attorney’s fees. She also asked the court to clarify the original order if it found any part of it was insufficiently specific to be enforced through contempt.
The trial court found the terms of the order were not sufficiently specific to be enforced by contempt. The court added language requiring the uncle provide notice of the drug test “at a reasonable time” and give the mother 24 hours notice to comply. The court found the uncle in violation of the original order by failing to give the child to the mother on two occasions. It also ordered him to pay $1,500 in attorney’s fees to the mother’s attorney.
The uncle moved for review of the attorney’s fees. The judge confirmed the award but also specified it would be enforceable as both a debt and as child support. The uncle appealed, arguing the court had not merely clarified the order but had made substantive changes to the terms.
A court may clarify a previous custody order, but may not generally modify a previous order unless certain conditions are met and the modification is in the child’s best interest. A clarification cannot make substantive changes to the order. Although a clarification can correct an error in the original judgment, it can only correct a clerical error, not a judicial error. The clarification, therefore, cannot correct an error resulting from judicial reasoning.
The appeals court found the original order’s “possession and access terms were specific, non-ambiguous, and could be enforced by contempt.” The order allowed the uncle to request a drug test once a month. It provided the method of the request and limited the times when he could request it. The appeals court found the trial court had used judicial reasoning to add the requirement that the uncle send the request within reasonable time that gives the mother 24 hours notice. The appeals court found the original text was unambiguous so the trial court did not have the authority to clarify.
The original order provided that a level of marijuana higher than 3.66 picograms would be deemed positive, but the modification added language limiting this provision to ingested marijuana. The appeals court found this was a substantive change. The original order was unambiguous.
The appeals court struck the language purporting to clarify the previous order.
The uncle also argued there was no evidence that the enforcement of the order was necessary for the child’s physical or emotional safety or welfare, which would be required to enforce the attorneys fee award as child support. The trial court did not find the uncle in contempt or enter a finding that enforcement of the original order was necessary to ensure the child’s health or welfare. There was no evidence supporting characterizing the fee award as child support so the appeals court struck that portion of the order.
This case serves as a reminder that a Texas trial court’s ability to change a custody order is limited. The court may not clarify an order by making a substantive change to its provisions, even if those provisions seem unfair. An experienced Texas custody attorney can help you seek or oppose a clarification or modification of a custody order. Call McClure Law Group at 214-692-8200 to schedule a consultation.
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Whether you are a parent going through a divorce or a child custody case in Texas, you need to be familiar with how a court will view your
case if you and your child’s other parent cannot settle in mediation.
The fact is that as long as you are not in a courtroom, what you and your
opposing party can agree to is pretty much how your case will be decided.
Meaning: if you all can settle on an arrangement for child custody a court
is likely to honor it because there is a presumption under the law that
as your child’s parents, you both have his or her best interests in mind.
On the other hand, if you cannot settle your case then it will head to
a courtroom where all of the power as far as decision making is taken
from you and your child’s other parent and placed in the hands of
a family court judge. This judge, while well meaning and bound to make
decisions based on the law in Texas, does not know you, your child or
the opposing party in your case. He or she will have a limited amount
of time to learn the facts and circumstances of your case and then apply
the law in a fair manner.
Best interests of your child
It is presumed that naming you and your child’s other parent as
joint managing conservators is in the best interests of your child. This is the starting point that
your judge will being their analysis from when it comes to awarding a
particular schedule of possession. However, once evidence begins to be
presented in a trial a judge can make different decisions regarding what
is actually in your child’s best interests.
What sort of evaluation does a judge make as to what is (or is not) in
your child’s best interests? First of all, the judge would likely
want to do a review of the home environments of both you and your child’s
other parent. This often times meaning have an amicus attorney or attorney
ad litem conduct a review of the home environments and to compile a report
for the judge so that he or she can make a more informed decision.
Next, what your strong-suits when it comes to parenting and what are your
weaknesses? What are those of your child’s other parent? Do you
and your child’s other parent work well when it comes to co-parenting
or are you unable to stand the sight of the other? Your jobs and your
financial stability are also considered, although to a lesser extent when
yours and that of the other parent are similar.
What a court will look to when making its ultimate determination as to
child custody
Judges in Texas are empowered by the Texas Family Code to use their judgment
to a great extent when making this decision. The law will guide him or
her but in large part your judge’s own notions and opinions on the
subject will be key.
I will note that if your child is over the age of 12 and you file a motion
to have him or her speak to the judge about their own wishes as to where
they want to reside primarily a judge must consider their opinion. How
much the judge considers it is left up to that judge.
The current and future needs of your child (emotional, educational, financial,
etc.) are considered along with your and your opposing party’s abilities
to provide for your child’s needs. How stable is the home that you
are living in and what do your habits and past actions in the realm of
parenting indicate as far as your ability to provide the sort of environment
that is conducive to raising a successful and happy child in today’s world.
There are other factors that will present themselves in your trial, but
since they vary significant on a case to case basis I won’t attempt
to discuss them here. Suffice it to say that a judge will consider a great
number of factors when determining custody and conservatorship issues.
Sole custody of your child
A judge can award you or your child’s other parent a
sole managing conservatorship. This means that your child would live primarily with that parent. This
is how it would work under a joint managing conservatorship as well, but
the major difference is that the sole managing conservator would be in
the driver’s seat as far as making decisions for your child in regard
to important subjects like education and health care matters.
Joint custody of your child
Joint custody is much preferred by judges and, as we just finished discussing,
is the presumptive choice for judges to order in a child custody or divorce
case. Not only does it encourage parents to both have a long lasting and
committed relationship with their child but it also allows parents to
split the responsibility of sharing rights and duties as to that child.
I think in my years of practicing family law that this is most underrated
aspect of parenting. Most parents focus on time and de-emphasize the rights
and duties aspects of parenting. Ask any parent who feels left out of
the conversation when it comes to making important decisions and that
person will tell you how hard it is to be an effective parent without
this right.
Drawing a distinction between rights/duties and time with your child
As a parent there are really two, main aspects to your ability to parent
your child. The first is being able to spend time with your child and
have him or her in your possession. Quality time is what most people like
to call this. Evenings spent watching a movie in the living room, early
morning breakfasts enjoying a sunrise together or playing catch in the
backyard. These are familiar images for a lot of families and are what
I think most clients in a family law case think about when considering
what it means to be a parent and what is being fought for and over in
a family law case.
I will again emphasize, however, just how important it is to have the legal
right to make decisions on behalf of your child. Where your child attends
school, what kind of religion he or she practices, the sort of medical
care he or she receives and many other decisions are just the sort of
life changing issues that I am talking about when I talk about rights
and duties of parenting.
While you or I may commonly refer to this as legal custody of your child
it is actually called conservatorship in the Texas Family Code. Ironically
enough, despite how frequently it is used by the general public and attorneys
alike, the word custody does not actually appear in the Texas Family Code
even one time.
Using the parenting class as an opportunity to learn more about your child
and your family
Most Texas counties will require you to go through a mandatory course on
parenting. It may seem a little demeaning for a court to demand that you
attend a course on parenting after you have been a parent for years. I
understand this may seem like a waste of your time, but I have had more
than a few parents tell me that it really did open their eyes on how to
resolve conflict, work with the other parent after a family law case and
how to maximize the time that you do have with your child.
More on the subject of child custody will be posted in tomorrow’s blog
If you are interested in the information contained in today’s blog
post then you will want to stick around until tomorrow when we conclude
this mini-series of child custody issues in Texas family law cases. If you have any questions in the meantime
I suggest that you contact the Law Office of Bryan Fagan, PLLC. One of our licensed family law attorneys can meet with you six days a
week for a free of charge consultation. We can answer your questions and
address your concerns in a comfortable and pressure-free environment.