Archive for the 'Child Custody' Category

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.

Child Relocation Remains a Difficult Facet of Custody

Wednesday, November 11th, 2009

One of the most difficult and complicated issues to resolve in child custody cases happens when the custodial parent wants to move a child away from an easy visitation distance of the noncustodial parent.

As American society becomes increasingly mobile, as more and more women attain positions in the work force where transfers are frequent and indeed likely, and as more and more noncustodial parents find themselves saying goodbye to children, no jurisdiction has escaped the need to address this thorny custody issue. Courts, recognizing the effects a move has on children, struggle to craft evenhanded arrangements that are fair to both parents.

The relocation of children by the custodial parent (who is often the mother) to places removed from easy visitation by the noncustodial parent (who is often the father) has given rise to movements known as “fathers’ rights” — men who believe they are getting the short end of the stick in the arrangement.

Very often in these cases, the custodial mother asks a court for permission to relocate for the best of reasons — a new job or the prospects of a new marriage. The United States Supreme Court has long recognized that citizens have a right to travel in the nation, and many courts have been guided by this in deciding that a custodial parent has the right to relocate with a child. In many jurisdictions, therefore, the burden of proof is on the noncustodial parent, who must argue that the move is in bad faith. Many courts lean toward the custodial parent on the thinking that what is good for her (in most cases) is also good for the child.

In general, states evaluate relocation requests in ways that range from granting the relocating parent the right to move, to requiring that same parent to prove that the relocation is in the best interest of the child, to a combination of both. In dealing with relocation, some courts seem to be moving in the direction of the best interests standard.

Child Relocation: Here Today - Gone Tomorrow

Tuesday, November 11th, 2008

In the midst of a divorce mom may decide she needs to go to work and her best bet is in another state. She up and moves the children, starts her job and begins her new life. Dad is left in the state that the original divorce/custody papers are filed. What now?

Some states may require mom to move back to the original state pending custody resolution. Some states may even hold a hearing to determine if mom can relocate with the children, even if it is for the betterment of the family.

It is best to not relocate until you have custody resolved or at least both mom and dad agree on the relocation. Tearing a family apart even one state away can wreak havoc on the children. The courts will make their determination on relocation as to what is in the “best interest” of the children anyway so make sure moving isn’t being done for punishment.


Smoking - A Factor in Custody Awards?

Friday, October 17th, 2008

With some of the states recently passing legislation regarding smoking in public places, how does smoking affect custody? Courts have a “duty” to protect the innocent of a divorce - the children. Some courts liken parental smoking to child abuse and neglect.

Studies show that secondhand smoke can produce life-threatening issues in children.

Mom will no longer be around to make dad go outside to smoke. Living in his new one-room apartment, rather than a five-bedroom family home, dad may feel he has a right to smoke where he chooses, which includes the very living space his children will visit.

Make sure you check your local courts and laws dealing with parental smoking and how that could affect custody. If you have any concerns a little research goes a long way in protecting your children.

Trusting the Other Parent With Your Child

Wednesday, May 3rd, 2006

Trust is an important characteristic for any relationship. If you have trust, then you have the base for a good parenting relationship going forward. The trust needs to extend past the safety of your child to trusting that the other parent is trying hard to be a good parent, following your parenting plan, parenting values, morals, etc.

Often times trust does not exists between the parents, due to the marital breakdown. If this becomes your situation, do not be alarmed. Allow for the trust to recreate itself within the new parenting relationship. This is a new relationship you are building, so you should try to give the other parent an opportunity to gain your trust.

Strategies and Tactics to Establish Trust.

- Be on time for all meetings or visitation drop-offs and pick-ups.

- Return telephone calls promptly.

- Give straight forward and honest answers to questions asked about your child by the other parent.

- Cooperate (not necessarily agree) with the other parent as much as possible throughout the divorce process.

- Compliment the other parent on his or her parenting abilities or responsibilities.

In doing the above, you hope that these actions are reciprocated by the other parent. Please remember that trust is not something that is established overnight.

The Non-custodial Parent Becoming Uninvolved in Your Child’s Life

Monday, March 27th, 2006

Many custodial parents wish this to become true. Be careful what you wish for, especially when it has more of an affect on your life and your child’s that you can even begin to imagine. The last thing you should ever want is for the other parent to become uninvolved. Be glad that you and your child have the support of the other parent, even if it is minimal. All children deserve the opportunity, if possible, to have two parents growing up.

Unfortunately the statistics show that after a divorce and/or separation has taken place that a large percentage of the non-custodial parents become at least partially uninvolved in the life of his or her child. Parental desertion can be caused by many different things, so it is tough to actually provide a perfect remedy for getting the uninvolved parent back on track.

Your child can overcome the trauma of losing a parent, so long as you continue to provide as much positive support as possible. Look to friends and relatives for any extra support you and your child may need. The experience of divorce and/or separation is tough enough on your child, let alone losing a relationship with a parent he or she loves. Do not expect to completely replace the shoes of the uninvolved parent, but keep working as hard as you can to do so!

Strategies and Tactics for the Uninvolved Parent

- Try to figure out what is causing the other parent to be uninvolved. Is it drugs/alcohol? a new relationship? health reasons, etc.?

- If you can narrow in on what the reason for the non-involvement is, try to reason with the non-involved parent, but be sure to always keep your child’s best interest in the forefront of all decisions.

- Do not criticize the estranged parent for not being involved. Criticism will only drive him or her father away. Do everything you can to say positive things to reinforce that your child wants him or her to be a part of the child’s life.

- Do not get down on yourself for not being able to do the job of two parents. If you allow yourself to get down, you will only be postponing your child’s recovery.

- Read a few books on “Single Parenting”. This will give you a lot of helpful tips that you won’t have to learn the hard way. There are so many great resources that will help you save time, energy, and money for your child.

The Best Interests Standard

Wednesday, February 15th, 2006

When a court is forced to make a decision on child custody, they primary focus of the court is to establish and arrangement that is in the best interest of the children. In making this decision, the court will often refer to a list of factors that are to be considered prior to making the final custody order. This list of factors does vary from state-to-state, but most states address the following:

(1) The realtionship each parent has had with the child;

(2) The ability each parent has to provide for the child on a daily basis;

(3) The current and future housing arrangement;

(4) The willingness of each parent to cooperate with the other to allow for an ongoing relationship with both parents;

(5) Any evidence of abuse;

(6) The age of the child;

(7) The child’s wishes;

(8) The education of the child;

Exploring Joint or Shared Physical Custody

Tuesday, January 31st, 2006

Physical custody is simply defined as the parent with whom the children will reside with. If a custody order is structured with a shared or joint physical custody arrangement, this means that the children will actually reside with both parents for a period of time that far out ways the typical overnight visitation schedule (50-50 or 60-40 etc.). This type of custody arrangement is not the norm, but more and more parents are exploring as an option, especially if they intend to live close to one another and within the same school district.

The courts are only willing to award a custody arrangement like this if it seems as though the parents can work together and it is deemed to be in the best interest of the children. You can only imagine how a shared or joint physical custody arrangement could be difficult on the children. The courts like to see a schedule in which the children live with each parent for a significant block of time. This way a routine will remain in tact for the children.

Before introducing this type of arrangement to your spouse or the courts, be sure to examine whether or not it is truly feasible. Also, do not get joint physical custody confused with joint legal custody which is a more common type of joint custody that is awarded.

Child Relocation

Thursday, January 26th, 2006

The topic of child relocation is one that comes up rather often.

Most states they have limited the freedom the primary custodial parent has to just freely move with the child(ren) upon his or her own will. The strict rules that are set in place to prevent relocation without permission are done so to protect the rights of the non-custodial or secondary resident parent. One must keep in mind that the other parent did not divorce his or her child(ren).

That being said, the courts do realize that all situations are very unique and this is why certain factors are addresses when a request to relocate is made. It is the job of the requestor or the moving parent to prove to the judge court that it is in the best interest of the child that the move takes place.

You should also keep in mind that the farther the distance the more difficult it will be to have the judge grant permission, especially if the other parent has been even somewhat consistent with the visitation schedule.

1. Whether the move would be likely to improve the general quality of life for both the residential parent and the child.

2. The extent to which visitation rights have been allowed and exercised.

3. Whether the primary residential parent, once out of the jurisdiction, will be likely to comply with any substitute visitation arrangements.

4. Whether the substitute visitation will be adequate to foster a continuing meaningful relationship between the child and the secondary residential parent.

5. Whether the cost of transportation is financially affordable by one or both parties.

6. Whether the move is in the best interests of the child.