Archive for the 'Child Custody' Category

Fighting Relocation

Tuesday, December 30th, 2014

Since the laws governing parental relocation vary from jurisdiction to jurisdiction, a parent trying to block the relocation of his or her children must understand and follow the detailed rules to prevent that relocation. The custodial parent who fails to follow the rules can loose custody. State laws may stipulate:

> The custodial parent seeking to relocate must modify the noncustodial parent well in advance. Many state laws specify the timelines for notification. Those same laws also provide specific instructions regarding the information included in the notification. In states that require notification, the other parent may also usually file an objection to the relocation or file a motion to prevent the relocation.

> Some states require not only notification, but consent of the other parent. In the event the both parents do not consent, the parent seeking to relocate must bring a motion seeking permission of the court. This often would include a request for a change in custody.

>In disputed cases, courts decide based on legal presumptions and burdens of proof. The particular legal presumptions and burdens of proof in each state dictate how a case should be presented and provide clues into the potential success or failure of a motion to relocate.

The noncustodial parent who maintains consistent contact of his or her children is a better position to object to relocation of a child by the other parent. The parent who remains actively involved in his or her child’s life – his schooling, medical care and extracurricular activities — can use these facts in support of his or her claims. A parent with limited involvement has a greatly diminished chance to contest the relocation.

The presumption whether to allow or disallow a relocation may depend and change based on the custodial situation.

For example, in many jurisdictions, when the custodial parent with primary physical custody seeks to relocate, the noncustodial parent faces a rebuttable presumption that move is permitted, but demonstrating that “the detrimental effect of the relocation outweighs the benefit of the change to the child” may rebut the presumption.

Detrimental effects include a diminution in the noncustodial parent’s from what it had been. As a result, for the noncustodial parent, involvement before the requested relocation can be critical. For noncustodial fathers, who often feel at a disadvantage in relocation battled, the fight may be in gaining joint custody from the outset. Every agreement that diminishes his role may have significant impact later in fighting relocation.

In a divorce, each parent’s intentions for the future should be established, particularly whether they have any intention of relocating. If it is established that the best interests of the children to remain in a certain school district as part of an initial divorce order, relocation may be significantly impaired in the future. Such restrictions must be considered in any divorce decree because a failure to address this issue may leave a parent exposed to potential relocation.

That presumption may change, however, if the parents share physical custody. In such cases, the presumption that exists is often to deny the relocation. Again, presenting evidence that the relocation is in the child’s best interest and that it will not interfere substantially with the nonmoving parent’s relationship to his or her child may rebut that presumption.

A Mother’s Rights in Child Custody

Wednesday, March 19th, 2014

The mother of the child has certain rights and obligations in a custody action, but all courts, in determining child custody, use the best interest of the child as the standard.

In many cases, the mother is granted physical custody of the child because the child is often more emotionally attached to her than the father, and mothers often receive custody in contested cases.

If a judge decides that it is not in the child’s best interest to grant sole custody to the mother, however, the court devises a custody regime that better suits the child and his or her needs.

When determining child custody and visitation schedules, the mother’s has the right

> to interact with her child or children during visitation;

> to schedule activities during times when she has custody;

> to be free from the father’s control, interruptions, or threats during visitation;

> to notify a judge or the police if the custody order is violated;

> to petition the court to enforce changes in a custody order or visitation schedule;

> to obtain an injunction in order to prevent the father from removing the child.

Because a mother’s rights in child custody often overlap with the duties and responsibilities of the father, both parents must cooperate in divorced parenting.

The Demand for Sons: Not Only in China

Thursday, December 8th, 2011

Many Americans recoil at reports from Asia where the preference for sons over daughters accounts for an imbalance of 80-million “missing” females from the normal number of male and female children. Yet while Americans may read with some horror the fate of female embryos and female infants in Asia, they may not realize that American parents, especially fathers, also favor boys over girls.

In “The Demand for Sons: Evidence from Divorce, Fertility and Shotgun Weddings,” published by the National Bureau of Economic Research, Gordon Dahl and Enrico Moretti argue that this parental preference affects divorce, child custody, marriage and shotgun weddings when the sex is known before, child support payments, and the decision of the parents not to have any more children.

Among other conclusions, Dahl and Moretti assert that:

> In “shotgun” marriages, those which follow pregnancy in an unmarried couple, data from California suggests that for those who have an ultrasound test, the first-time mothers of boys are much more likely to be married at the time the child is born. “The evidence suggests that fathers who find out the child will be a boy are more likely to marry their partner before delivery,” write Dahl and Moretti.

> Parents with girls are more likely to be divorced or separated than parents with boys. This likelihood, though diminishing in recent years, amounts to a 1 to 7 percent “higher probability of divorce.”

> Divorced fathers are 11 to 22 percent more likely to have custody of their sons in all-boy versus all-girl families.

> In families with at least two children, the probability of parents deciding on having another child is higher for all-girl families than for all-boy families.

Since at least 1941, men have told pollsters that they prefer a boy to a girl. Taking all the evidence together, Dahl and Moretti conclude that parents in the United States prefer sons.

New Divorce Reality: Fathers Win Custody

Monday, November 7th, 2011

According to Working Mothers Magazine, some 2.2 million divorced women in the United States do not have primary physical custody of their children, and an estimated 50 percent of fathers who seek custody in a disputed divorce are granted it.

The “new reality” of divorce is those women who are the primary earners in a marriage often see their husbands gain primary physical custody of their children when the marriage ends. Not long ago, Moms (working or stay at home) almost always got the kids in messy divorce wars because judges were swayed by the so-called “tender-years doctrine,” a presumption that mothers are the more suitable parents for children under seven. Many states have abolished this; moreover, women are poised to outnumber men in the work force for the first time in American history. The Great Recession has produced “a burgeoning crop of Mr. Moms.”

“Men are now able to argue that they spend more time with the kids than their working wives do,” says the veteran New York City divorce attorney Raoul Felder.

The percentage of fathers with primary custody will likely increase, which is one more example of shifting social views about parenting.

Kidnapping Is a Crime

Tuesday, January 4th, 2011

Thousands of children disappear each year and many are abducted by one parent after a bitter divorce, and many custodial parents fear that their former partner may kidnap a child.

Parental kidnapping is a crime. The wrongful removal or retention of a minor child is a breach of the other parent’s custody rights under the laws where the child is a habitual resident.

The victims of parental kidnapping have tools to reclaim these abducted children. The Parental Kidnapping Prevention Act (PKPA) requires states to cooperate with each other in returning kidnapped children when the child custody judgments of sister states are compatible with the act.

The Uniform Child Custody and Enforcement Act (UCCJEA), a uniform law regarding custody and visitation, is designed to discourage and prevent parental kidnapping, particularly when one parent moves during a divorce.

When the kidnapping crosses international borders, the rightful parent may turn to the Hague Convention on the Civil Aspects of International Abduction, which established procedures for dealing with international child abduction. This convention is now in force between the United States are some 50 countries.

A good place to start is the National Center for Missing and Exploited Children (NCMEC), which works through the Central Authority of the Hague Convention. NCEMC provides help to individuals, parents, and agencies in located and assisting in the return of missing children. The telephone numbers are 800-843-5678 or 800-826-7653.

Determining the Best Interests of the Child

Tuesday, December 28th, 2010

When parents dispute custody, courts frequently order custody evaluation. This frequently involves the appointment of a guardian ad litem (GAL), a mental health professional or a lawyer, who, for the purposes of the pending litigation, investigates and uses his or her own judgment in determining the best interest of the child. His or her nonbinding report carries great weight with the judge who must make the final decision.

Depending on court, the jurisdiction and the circumstances of the case, judges use GALs in disputed custody and visitation cases.

The evaluator assesses the rapport a child has with each parent, and a GAL may examine the way both parents and a child get along. An evaluator may visit the home of each parent, and he or she may contact teachers, doctors, and baby-sitters.

Sometimes parents resent a GAL because a custody evaluation can be very invasive, but it is wise to cooperate with the GAL.

A custody evaluator is neutral and does not take sides. He or she is throwing a cold eye on the quality of a parent-child relationship.

A Friction Point in Custody and Visitation

Monday, December 20th, 2010

When physical custody is split, very often the mother is the custodial parent and the father is the noncustodial parent who has visitation rights that are often spelled out in a parenting plan.

Visitation forces the former married spouses in contact, particularly when the noncustodial parent picks up and returns a child. And very often during these moments of contact, friction between the former spouses becomes explosive, and the former partners renew the battle, often in the presence of their children.

Visitation demands that both parents rise to the occasion. No parenting plan can anticipate every contingency that happens in the real world. That means that when Dad is a few minutes late returning the children Mom does not get on the telephone with her lawyer to make an issue of it. It means that if Dad has to work unexpectedly he does not wait until the last moment to tell Mom and the children that other arrangements have to be made.

Custody does not mean that Mom owns the child to the exclusion of Dad, and child support is not payment for the privilege of visiting a child. Both parents, the custodial and the noncustodial, are still parents to a child who loves them both indivisibly.

Divorce Parents Are Still Parents

Tuesday, December 29th, 2009

Divorced parenting presents the former spouses with all manner of challenges that intact couples do not have to face. One of the most significant is that after a divorce, both former spouses must remember that in their dealings with each other, both of them are still equally the parents of their children.

Today, courts are very open to custody arrangements that cooperative parents negotiate, but if custody is disputed, very often the mother ends up as the custodial parent receiving child support and the father becomes the noncustodial parent paying it, and he visits his children under the terms and conditions of a schedule. This routine, though admittedly not perfect, permits both parents to be actively involved in the lives of their children.

However, what frequently happens is that the noncustodial father, even one who demonstrates good faith with prompt payment of child support, slowly drifts out the lives of his children. Moreover, the divorced father who remarries and has a second family with a new wife may move toward the vanishing point in the lives of his children from earlier marriage. When Dad drifts from the picture — for example, missing promised outings with his children or not showing up for school events — children frequently blame themselves.

Judges, social workers, family counselors, custody evaluators — all stress the need for both mother and father to be active parents of their children, who suffer terribly in the divorce of their parents and who frequently fantasize about their reunification.

Among the many reason to make a heroic effort to avoid a divorce war is that when the marriage is over, divorce parents must still work together to be good parents. By the same token, former spouses who continue the war after the peace treaty has been signed — that is, those who continue to fight with their former spouses about, for example, returning the children a few minutes late — make effective parenting very difficult.

Admittedly, divorce parenting is difficult. The noncustodial father is not physically present much of the time and thus he misses many of his children’s best moments because they happen spontaneously. And the custodial mother may become overburdened because she and she alone is with them all the time. However, this actually underscores the truth of divorced parenting: both parents are still equally the parents of their children.

Best Interest of the Child Sets the Gold Standard

Friday, December 11th, 2009

The movie Kramer v. Kramer poignantly depicts the heartbreak of a father trying to retain custody of his young son. Despite his superior competence as a parent (even after she won the case, the mother suddenly decides she is not equal to parenting), young Kramer loses custody to his wife when the judge decides that it would be in “the best interest” of the boy to be with her.

This phrase, the best interest of the child, sets the gold standard In marriage and family law and in divorce actions where judges sit like King Solomon and decide agonizing questions about the welfare of a child when one parent disputes the other.

Unlike the Biblical King Solomon, family court judges cannot suggest cutting a child in two as a means of finding the best parent.

This means a judge must assume the role of all-knowing parent in deciding the welfare of children, and as a practical matter, the judge has a great deal of discretion in deciding what is or is not in the best interest of a contested child. Statutes, case law and past practice may guide him or her, but in the end the judge decides.

In many jurisdictions, the best interest of the child means that in a custody dispute the child will end up with his or her mother. Unless a woman has demonstrated gross incompetence as a mother and parent, in most cases in most jurisdictions minor children in contested custody end up with their mother.

Smokers May Butt Out

Friday, November 20th, 2009

Courts have increasing been asked to consider the presence of a cigarette smoker in a child’s home — be it a parent, stepparent, or third party — in determining the best interest of the child in custody and visitation cases.

These cases typically involve situations where what is called “secondhand” smoke in the home poses a health hazard to children who have respiratory problems.

Courts have said that presence of secondhand smoke is one of many factors that may be considered in custody cases. In an 1999 Alabama case, an appeals court upheld the decision a lower court to transfer physical custody of a child to the father because his mother continued to smoke in the child’s presence despite the child’s history of asthma and severe respiratory infections.

Courts have also ordered parents to refrain from smoking in the presence of their children. In a 2002 Ohio case, In re Julie Anne, the court heard extensive evidence that the custodial mother and her live-in boyfriend exposed a child who had no pre-existing health problems that would be worsened by secondhand smoke. On its own motion, the court ordered that both the mother and the father not to smoke or allow “anyone else to smoke in the presence of the child.” In this case, the court found three separate authorities for its order: 1) the doctrine of parens patriae, which is the idea of the state as parent; 2) the best interests of the child; and 3) the United States Supreme Court. “[A] smoker has a right to privacy to treat his health in whatever manner he chooses, but this right does not include the right to inflict health-destructive secondhand smoke upon other persons, especially children who have no choice in the matter. A man’s home is his castle, but no one is allowed to hurt little children — even in his castle,” the court stated.

Courts now consider the smoking habits of parents in determining the best interest of the children, but at the same time have said that the mere fact that a parent smokes is not determinative. Instead the courts have ordered parents not to smoke in the presence of the children.