Child Custody Information

How to Protect Your Custodial Rights

Any parent who has gone through a divorce, separation or break-up knows full well that the issue child custody - of when they can spend time with their children - is not always resolved with the issuance of a Court Order or entering into an Agreement with the other parent. All too often, a parent’s time with the children is frustrated by the other parent, who, for whatever reason, fails and/or refuses to produce the children for custodial time. This behavior can have devastating effects on both the parent who has been denied access and his or her children.

By the time access is denied a parent, he or she may have little recourse. Even if the Courts are open at the time the other parent fails to produce the children, there is no guarantee that the necessary paperwork to file a Violation can be prepared immediately or that a Judge will be available to address the matter promptly. Anyone who has been through the Court system is aware that, from the time an application is filed, it may take weeks before the parties are actually scheduled to appear in Court to have the child custody issue resolved. During that time period, the other parent may continue to withhold custodial access.

This is not to say that there are not steps which you can take to protect yourself. As a general rule, avoid informal agreements with the other parent about your custodial time. You must insist that the terms of your agreement be formalized either in a written Court Order or an enforceable written Separation and Settlement Agreement. Without such formality, a Court will not be able to hold the other parent in violation of your informal agreement.

You should also ensure that the Order or Separation and Settlement Agreement contains as many specifics as possible. Avoid at all costs language that you will be entitled to time with the children as you and the other parent "shall mutually agree." This language provides you with no protections and, in the event of a disagreement, you will be left with no recourse other than to petition the Court for a specific schedule of access.

The Order or Separation and Settlement Agreement should provide specifics for both the days on which you will be entitled to access and the times when the children will be with you. For example, if you have agreed to alternate weekends with the other parent, the Order or Agreement should specify how a weekend is defined, such as from Friday until Sunday, and the times at which the children will be exchanged. To avoid confusion or disagreement, and the possible risk of missed custodial time, you should also provide specifics for how the children will be exchanged. If the other parent will be dropping the children off at your home at 5:00 p.m. on Friday, and you will be returning them at 5:00 p.m. on Sunday, specify these arrangements in the Order or Agreement. Remember, so long as there is no disagreement, you and the other parent can always agree upon alternate arrangements. The specific schedule outlined in the Order of Agreement will provide you with protections in the event that you do disagree with the other parent.

In structuring a custodial schedule, do not think only of your "regular" weekly access. Contemplate in advance other times during the year when you would like to spend time with the children. Holiday, birthdays, school breaks, vacation time and other special days should also be addressed in as much detail as possible.

In the event that the other parent threatens to withhold access, or if you anticipate such a problem, try to document the situation. For example, if you have exchanged e-mails or other written communications with the other parent in which he or she threatens to deprive you of access to the children, save the communications. If the threat is made verbally, make a note of exactly what was said and when the threat was made. Let your attorney know as soon as a threat is made so that, if necessary, you will be ready to quickly go into Court to enforce the terms of your Order or Agreement. By having documentation of the situation, you will also be better prepared to present your case to the Court.

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Children as Witnesses

If you are involved in or facing a child custody dispute, you are probably concerned about the impact of the court case on your child. It is often incorrectly assumed that if you go to Court, your child will be forced to decide between you and your spouse as parents or, worse yet, that your child will be called as a witness to testify at trial.

Although custody issues do directly concern your children, your children are not directly involved in the Court process. Courts take particular care not to subject children to the disputes and adult issues facing their parents. Special protections have been built into the system to protect children from being placed in the middle of a contentious child custody battle.

Even if you feel that the issues involved in the custody or visitation proceeding directly involve your children, they should not be brought to Court unless a Judge gives specific directions to do so. Children are rarely present in Court during custody disputes and are also rarely called as witnesses at trial, even if they have witnessed incidents alleged by one of the parents.

Some states have attorneys or advocates appointed to represent children in custody matters. It is the job of those individuals to represent the children and advocate for their best interests. If a child witnessed an incident that is at issue in the case, the attorney or advocate appointed to represent the child can question the child directly about what he or she observed.

Some Judges also hold what are known as in camera interviews with children. A request for such an interview does not guarantee that the Court will conduct it. If the Court does not believe that the interview is necessary, it can decline the request. However, even if a specific request was not made for an interview, the Court can Order that an in camera interview be held.

During an in camera interview, the child or children will come to Court to meet with the Judge assigned to the case.  The children may be accompanied by his or her appointed attorney or advocate and will meet privately with a Judge.  A Court reporter is usually present. At the interview the Judge will question the children about the case and discuss issues appropriate to the child . This process is designed to make the children as comfortable as possible under the circumstances.

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Mom or Dad: Who Gets Custody?

As today’s families evolve, the picture of the "typical" family is ever changing. Gone are the days when it could be assumed that the mother stayed at home to provide primary care for the children while the father served as the family breadwinner. Until fairly recently, many states enforced a doctrine known as the "tender years presumption". Under this doctrine, it was presumed that the mother should be granted primary custody of the children. This is no longer the case. During a divorce or separation, it can no longer be assumed that the mother of the children will automatically be entitled to child custody. The law, like society, is ever evolving. Today, many states have laws that expressly declare custody litigation as "gender neutral".

This does not mean that father’s seeking custody of their children do not face special challenges. Judges and juries are human and bring to the table their own biases and prejudices. Preconceived notions of gender roles are all too common and fathers who have been through custody litigation often complain that they faced scrutiny and challenges that would not exist but for their gender. These biases can, however, go both ways. A mother can no longer assume that strictly because of gender, the father of her children does not stand a chance of obtaining custody of the children.

If you are a father considering seeking custody of your children, do not assume that you cannot obtain custody. However, you should assume that your battle may be uphill, and you must acknowledge that societal prejudices and biases exist. You will have to take special care to build your case and make it as strong as possible. It is critical that you retain an attorney who has obtained custody for a father in your county. Do not hire inexperienced counsel for this job.

A critical issue to either parent’s request for custody will be the parties’ history of caring for their children. It is often the case that the parent who was the primary custodial figure for the children prior to separation or divorce will continue to be the primary custodial parent. Another critical issue is often the role of child support in motivating a request for custody. Judge’s are particularly suspect of litigants who seek custody when it is apparent that their desire is really based upon a goal of reducing the child support that they might pay.

We advise fathers who have not been involved with the primary care of their children that they may have a case that they cannot win. This is particularly the case when there is a "stay at home" mom able to provide for the children’s daily needs. We also advise mothers who have been stay at home moms that they are more likely to retain their primary custodial role. This issue simply comes down to a court trying to maintain some semblance of "status quo" for the children during a time of upheaval.

However, simply because a father cannot win primary custody does not mean that a father cannot or should not work towards a more complete or even shared schedule with the children. It simply means that obtaining primary custody might be difficult or impossible. A more complete or shared schedule can be devised in almost every case and it can provide the children with quality time to build or maintain their much needed emotional bond to both parents.

Documentation is essential in any type of custody litigation. You should make note of facts which are integral to your case. Make note of days on which you provide care for the children, the types of activities you engage in with the children and the tasks you perform for them. If you typically take time off from work to provide transportation to and from medical and other necessary appointments or extracurricular activities, make note of this fact. Also work on compiling as much confirming documentation as possible. If your child’s school keeps records of the parents who attend parent-teacher conferences, obtain copies of those records. Anything which you can present to the Court to show your level of involvement in your child’s live will help. Remember, child custody litigation is fact based. You should carefully review with an attorney the facts of your case, and examine with him or her the possible documentation you can gather to support your bid for custody before you even set foot in a Court room.

You should never enter custody litigation with any assumptions regarding what the Court will do based on the gender of the litigants. If you are interested in obtaining custody of your children, be as prepared as possible to present your case to the Court. If your facts are weak, you should consider the trauma to all involved, including your children, and the cost of proceeding to "battle out" a custody issue.

If you are faced with a Judge who appears to have gender based biases, be patient and focus on educating the Judge. As human beings, Judges warm to litigants who are polite and prepared. Being unnecessarily combative with the Judge will not help your case. If it appears that the Judge is biased against you, build your case for a possible appeal. Remember, appellate courts can, and do, reverse decisions of trial courts. A loss at the trial level does not necessarily mean that your case is over.

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Interstate Custody Disputes: The UCCJEA

After a divorce or separation, it is becoming increasingly common for one or both parents to move to a different state. As any parent who has been through a break-up is well-aware, a divorce or move to a different state does not cut the ties with the other parent. Until your child is emancipated, issues will continue to arise such as where the child will live, how often he or she will see the other parent and how the child will be transported between the parents’ homes. If parents are unable to resolve these issues between themselves, litigation may be necessary. Custody and visitation cases involving parents who live in different states are known as "interstate" disputes. In such situations, confusion often arises as to which state has the authority to hear the case and issue an order of custody or visitation.

In 1997, a law was drafted by the National Conference of Commissioners on Uniform State Laws, to help determine which state should hear a custody or visitation dispute where the parties reside in different states. Known as the Uniform Child Custody Jurisdiction Enforcement Act (the "UCCJEA"), this law does not dictate how interstate custody and visitation cases should be decided. Rather, it provides guidelines for determining which State has "jurisdiction", or the authority to hear the case and issue an Order. The UCCJEA is not effective in every state. In order to be effective, it must be adopted by each State on an individual basis. As of this date, many states have enacted the UCCJEA and many more are in the process of doing so.

The UCCJEA sets forth clear rules for determining jurisdiction in two separate situations: (1) where no prior order of custody or visitation has been issued (an "initial custody determination"), and (2) where a party is seeking to change a Court’s prior order (a "modification proceeding"). For initial custody determinations, the UCCJEA gives priority to the child’s home state. The state where the child resides when the custody proceeding begins or where a parent resides if the child is absent but has lived in the state within the previous six months, is considered the child’s home state. That state has the first right to entertain the custody dispute.

Once a state has made an initial custody determination, only that state will have the right to modify the order so long as a party to the original custody determination remains in that state. This is known as "continuing exclusive jurisdiction". Courts from other states are required to enforce the Order of the home state and must, except for in very limited situations, allow the home state to entertain any subsequent modification proceedings.

While other states must defer to the home state for purposes of modifying the initial custody order, they may have the right to issue an emergency temporary order. The UCCJEA allows other states to enter such orders if the children are in the state and have been abandoned or if the child is subjected to or threatened with mistreatment or abuse. Abuse is specifically defined to include, not just the abuse of the child, but also the abuse of a parent. If a court exercises emergency jurisdiction, and is aware of a simultaneous custody proceeding in another state or of an existing custody determination, the court must immediately communicate with the Court that issued the initial order.

The UCCJEA also provides a process to swiftly enforce child custody and visitation orders. This is particularly important in cases where visitation has been denied and a parent needs to move quickly to enforce his or her custodial rights. After an enforcement petition is filed, an order will be issued directing the other party to appear with or without the child If possible a hearing will be held on the next day after the order has been served. If the Court is concerned that the parent with physical custody will flee with or harm the child, the Court can issue a warrant to take possession of the child

If you are facing an interstate custody or visitation dispute, you should check with a local attorney to determine if the UCCJEA has been enacted in your state. If it has, much of the confusion over where to initiate the proceeding can be eliminated. 

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Custody Psychological Evaluations

If you are involved in litigation over custody or visitation of your children, you will quickly learn that the Judge is not the only player in your case. To assist the Court in reaching a decision, Judges routinely direct other professionals to meet with the children and evaluate the children, parties and any other relevant individuals.

One type of professional typically involved in contested child custody cases is a child psychologist or other mental health professional. Known commonly as a "psychological evaluation", the report which this professional prepares is actually a custody recommendation. After meeting with the children and any other relevant individuals which the professional deems crucial, such as the parties, their significant others and other individuals present in the homes of the parties and evaluating the parties and children for mental health problems, the mental health professional will prepare a recommendation for the Court.

Mental health professionals rarely work for free. When ordered, the Court must also consider how the evaluation and report will be paid. Depending on the credentials of the professional and the extensiveness of his or her report, the costs of the evaluation and report could be great. The costs of the report are generally divided between the parties in a manner which the Court deems fair and appropriate. You could be directed to pay the entire cost of the evaluation or only a percentage of the total cost.

If you are considering requesting the Court to order a psychological evaluation, or believe that there is a possibility that the Court will order the same, you should investigate local mental health professionals. Courts generally ask the parties to suggest the names of mental health professionals to prepare the evaluation and report. In addition to cost, you should consider factors such as the professional’s credentials, track record, whether or not the professional has testified at trial in the past and the frequency with which the professional prepares such reports. Many mental health professionals who routinely prepare evaluations and reports develop a reputation for deciding a certain way in different cases. While the reputation should never be relied upon to guarantee a favorable report, it could serve to assist you in reaching the decision of who to recommend to the Court.

Courts generally rely strongly upon the custody recommendation of the mental health professional. For that reason, you should speak with your attorney before you are evaluated. Your attorney will be able to prepare you for the evaluation and give you advice on how to present yourself, and your case, in the best possible manner.

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Parental Alienation Syndrome

by Dr. Reena Sommer

Author of Developing An Effective Parenting Plan

The Parental Alienation Syndrome (PAS) is the extreme end of custody battles gone bad in high conflict divorce cases. Parental Alienation Syndrome has only recently been recognized in the divorce literature as a phenomenon occurring with sufficient frequency and with particular defining characteristics as to warrant recognition. Today, the Parental Alienation Syndrome (PAS) as a byproduct of custody battles is attracting the attention of divorcing parents,social service agencies, doctors, teachers, clergy, divorce attorneys and divorce courts. As well, it is an issue that has fueled considerable debate with respect to the validity of its existence. Opponents and critics of the Parental Alienation Syndrome (PAS) continue to argue that it does not exist simply because of its absence from the DSM-IV. This argument which might have face validity, neglects this extremely salient counter argument: