Child Custody and the Court

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One of the most difficult things to deal with when faced with divorce is the impact it will have on the children. The laws governing child custody vary in each state.  It is in the best interests of every parent to learn as much as possible before the child custody process begins.When parents cannot agree on their own about child custody issues, the case will go to court and a judge will decide the details of a custody agreement.  A custody order sets clear terms for when each parent can see and have the child with them.  If one parent does not honor the terms of the order, the other parent can file a petition with the court requesting that the court find the other party in contempt.  Local law enforcement may also help to enforce a custody order.

Filing for Child Custody

Most people don’t know what to expect with regards to a child custody case.  They may rely entirely upon their attorneys to advise them of the best approach with their specific case.  Personal character references will provide a positive overview of your personal lifestyle and parenting skills.  Your family and friends should be the first choice when considering a personal reference.  The reference letter should outline the qualities which make you an exceptional parent, such as your commitment to your child, a concern for their health and well-being, your interaction with their teachers and school, and any extracurricular activities that you help your child participate in.

Child Custody Hearing

The court hearing is always one of contention if you and your spouse are in dispute about child custody.  There are many things that you can do to help your case.  First off, do not show anger during your court hearing.  This will indicate to the Judge that you have harsh feelings which may transfer to the children.  Do not attempt to make monetary concerns a first priority.  Your top priority should be focused on the welfare of the children and what is in their best interest.


To prepare for a hearing, you need to be ready to present testimony to the court.  Some of the following information may prove helpful:

Testimony

Each party will present their side and ask questions of the other party.  Each parent should prepare a list of their main points and any questions they have for the opposing side.

Evidence

When presenting evidence, it’s advisable to hire an attorney so you can be sure that your evidence will be admissible in court.  The rules of evidence are very complicated and family law attorneys deal with this every day.  Gather evidence that shows why you are the better parent.  Photographs are extremely useful in showing abuse or neglect by the other parent.  Take pictures of your home and your child’s room so the judge can see you are able to provide a good home environment.  Your child’s report cards, school records and medical records will also be important. 

Witnesses

Each party is allowed to bring witnesses to testify on their behalf.  There are three types of witnesses that may prove relevant:

Character Witness

Character witnesses are used to demonstrate a parent’s skill and involvement with the children.  These often include friends, relatives, neighbors and teachers.

Expert Witnesses

These are individuals who are qualified to offer a professional opinion.  They may be asked for a custody recommendation.  Psychologists and other mental health professionals are considered expert witness and they are usually paid for their time to testify.

Impeachment Witnesses

An impeachment witness is used to show that the other parent or one of the witnesses lied.  An effective impeachment witness can call into question the entire testimony of a person shown to be a liar.

Process and Required Forms

Filling out child custody forms marks the beginning of a long process.  These forms can be both confusing and complicated.  Child custody is a legal term which is used to determine and describe the legal rights and practical relationship between the parent and their child.  Child custody includes numerous concepts that try to provide an understanding of the respective parents, and their rights and obligations.  There is a large range of child custody forms which are designed to cover every eventuality in custody situations.  These include:

  • Certification of applicant’s attorney
  • Child support worksheets
  • Pre-trial orders
  • Application for ex-parte temporary  custody order
  • Case management schedules
  • Request a visitation order
  • Modifying child support
  • Terminating child support
  • Reducing child support

Once you have filled out your custody forms, you can bring them to the clerk’s office of your local courthouse so they can be filed with the court.  If you have an amicable divorce proceeding and can agree on how to effectively parent the children, you may include the Child Parenting Plan which you can fill out yourself and bring before the court.  Child custody laws vary from state to state, therefore, the forms may be slightly different.  Most custody cases follow the same general procedure.  A case Is started by filing the original of a Petition To Establish Paternity, Custody and Time-Sharing and Child Support and Summons.  You need to file the documents in the state in which you reside and/or where the child resides.

Petition for Child Custody, the Summons, and the Response

You can file a Petition for Custody with the Family Court.  This petition requires that you tell the court the street address where the other parent lives.  The court needs this information in order to serve a copy of your petition and send information as the case progresses.

Child Custody Court Summons

A summons is designed to notify a person that he or she is being sued.  If the parents have agreed to the terms of custody, the respondent can waive service of the summons.  The petitioner must appear before the court and bring the signed waiver with him or her.

Response to the Summons

All states require the respondent to file a written response with the clerk of the court. This is usually 20 days after being served the Summons and Petition, or 60 days if the respondent is served out of state.  The respondent must have copies of their written response served on the petitioner or the petitioner’s attorney.  If the respondent fails to respond, he or she can be defaulted, which means that the case proceeds without them.  Once the other parent has an opportunity to file a response to your petition, the parties will often enter into mediation. 

Temporary Custody Order

Granting of temporary custody until the court case is completed is often necessary.  A temporary child custody order can be established as part of the divorce petition, a restraining order (if your state allows this), or as a totally separate court order.  Parents are better off to reach an agreement regarding child custody to avoid a lengthy court battle.  They do this by negotiating a fair parenting agreement through mediation or alternative dispute resolution.  If the parents are unable to agree on child custody, a temporary child custody schedule may be ordered by the family court judge.

Temporary child custody is not a permanent custody determination.  Final custody is determined in either the divorce proceedings or during a custody trial.  Temporary orders place immediate control on both parties by the court. These orders are only filed when an agreement regarding child custody cannot be reached by the parents.  If you fail to follow these orders, you can be fined or jailed.

Court Considerations when Determining Child Custody

The court’s primary focus will be what is in the best interest of the child.  When considering the custody arrangements, the family court judge will note all of the arguments presented by both sides.  Every aspect of an individual’s life may be scrutinized in a child custody case.  There is no one factor that decides a custody case.  The importance of a particular factor may vary with each case and some of the most common factors include:

  • Employment status and the ability to financially provide for the child
  • The reasonable preference of the child if they are of sufficient age to express preference
  • Criminal history of both parents
  • Medical needs of the children, and the health of both parents
  • The quality of life, such as education while living with one parent or the other
  • The emotional bond between each parent and child
  • The ability of the parent to provide a safe home environment
  • Any history of mental illness, substance abuse, child abuse or neglect in either or both parents

Separating Siblings

In addition, the court must give weight to the impact of separating siblings.  Some situations arise where it may be in the best interest of the children to separate siblings.  However, split custody arrangements are not the norm.  The court also takes into consideration the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child. A parent’s refusal to communicate, cooperate, and compromise will hurt their custody claim.

The Child’s Best Interests

The best interest of the child is the primary consideration in any custody dispute and will prevail over the rights of either parent.  A child’s stated preferences often sway judges in custody cases.  The child’s wishes, however, cannot override the judge’s requirement to award custody in serving the child’s best interest, even after all of the factors are considered.  A court will also consider who the primary caregiver is, the moral characters of the parents, and the financial status of each parent.

Guardian Ad Litem and Child Testimony

In some cases, the child may have an attorney appointed by the court to lobby on their behalf.  These are often referred to as a “Guardian Ad Litem”.  Some judges prefer to have additional input from an unbiased professional.  They may be called to testify during a court hearing as an expert witness.

Some states permit the children to speak directly with the judge to share their thoughts on where they prefer to live.  This meeting is held in the judge’s chambers and includes the child, the judge, and a court reporter.  The parents are usually asked to stay in the courtroom.

In rare instances, children may be called as a witness.  They can be put on the witness stand for examination and cross-examination by both parties attorneys. 

Determining the Childs Best Interest

The Child’s Wishes

Some states allow children of sufficient maturity to have an impact upon the determination of custody and visitation.  The child must be able to formulate and express a reliable opinion and request as to his or her custody.  The child’s opinion may be considered, but it will not necessarily be the controlling factor.  Some jurisdictions have specific statutes that declare when a child reaches a particular age, the child must be allowed to choose their custodian. 

Health of the Parents

The physical and mental health of the parents is a consideration when determining custody of the children.  Problems that significantly interfere with the child’s well being may be relevant factors, such as the use of drugs or alcohol.  If they have a physical or mental ailment will also be examined.  Some state laws site mental illness as a condition that can lead to loss of custody or parental rights.  Custody loss rates for parents with mental illness range as high as 70 to 80 percent. 

Evidence of Drug/Alcohol Abuse

The abuse of drugs or alcohol by parents and other caregivers can have negative effects on the health, safety, and the well-being of the children.  Nearly every state has laws within their child protection statutes that address the issue of substance abuse by parents.  A parent in a child custody battle can file a motion to force the other party to submit to a drug test, leaving a judge to decide whether or not to grant it.  The judge may decide to independently order a drug test for you and/or the other parent seeking custody. 

Failing a drug test during your child custody dispute can be damaging to your case.  A judge will be reluctant to grant custody to a parent who uses drugs for fear the child may be exposed to illicit drug use.  If the parent neglects the child while under the influence, this can be construed as child abuse.  They judge may deny custody or only allowed supervised visitation.

Reversing a Judges Decision

The loss of custody or visitation due to drug or alcohol abuse can be reversed in many cases.  Judges are willing to re-examine the case if parents can show that they have changed by completing a drug or alcohol rehabilitation program, or have passed multiple drug tests.

Religion

When the court is called upon to resolve disputes about the religious upbringing of their children, they attempt to balance competing concerns.  The courts must protect an individual’s First Amendment right to the free exercise of religion as well as the right to raise the child as they wish.  When making decisions about custody and visitation, the courts must also protect the best interests of the child.

Most courts apply one of the following legal standards when deciding these types of cases:

Actual or Substantial Harm

The court will restrict a parent’s right if that parent’s religious practices cause actual or substantial harm to the child. 

Risk of Harm

The court may restrict a parent’s rights if that parent’s religious practices might harm the child in the future.

No Harm Required

The custodial parent’s right to influence the religious upbringing his or her child is considered exclusive.  If the custodial parent objects to the non-custodial parent’s religious activities, that’s the end of it.  The court will defer to the custodial parent’s wishes.

More states have tried to keep religious disputes out of court by ordering mediation.  Judges are reluctant to take on these disputes as the risk violating the separation of church and state.

Who Can Provide a Stable Home?

All children need a daily routine schedule and a stable home environment where they can feel safe, loved and cared for.  A daily routine is important as it provides a positive influence for the child’s present and future well-being.  The capacity of the parent to provide the child with food, clothing, medical care, and the opportunity for extracurricular activities will also be taken into consideration.  The judge will also examine the ability and willingness of each parent to provide a child with guidance, education, and special needs.  Another factor to consider is the permanence and stability of the family unit where the child will live and if the child has enjoyed a consistency of school, friends, and other relationships.  Judges are reluctant to uproot a child from their primary residence is that has been the status quo since the separation or divorce.  Each parent’s plan for the best interests of the child naturally complements the stability of a parent’s home environment and the parent’s involvement in the child’s life and well-being.

Evidence of Child Abuse

The court must consider any history of abuse by a parent or any other person seeking custody.  The court may require substantial independent corroboration including written reports by law enforcement agencies, or child protective services.  A parent who neglects or abuses a child is seen as unfit to have custody and may be limited in visiting with the child.  When there are allegations of abuse, whether it is physical, mental, sexual, or emotional, a child welfare agency may intervene.  If the case involves serious abuse, criminal charges may be filed.

Relatives, neighbors and any others who have witnessed abusive acts may give oral testimony of what they have observed in a custody hearing.  Medical records may provide evidence of physical or sexual abuse.  Evidence of domestic violence directed at the other parent or siblings may also be introduced if it shows a pattern of behavior or lack of remorse.

There must be real evidence of abuse before a court should act.  Evidence of emotional harm may include stuttering or bed wetting.  Hostility between a parent and a child can also be construed as evidence of emotional harm.  Supporting testimony of an expert witness, such as a counselor, a teacher, or a child psychologists may be necessary to establish potential harm.

If a parent has abused or threatened to abuse a child, the court may limit the amount of visitation or restrict it by curtailing the number of hours of visitation, barring overnight visits, or requiring the presence of a third-party during visitation.  The amount and quality of the restrictions may be proportional to the severity of the abuse.

"Primary Caretaker" During Marriage or Relationship

Most family courts allow a preference for the parent who can demonstrated that he or she was the child’s primary caretaker during the course of marriage, or assumed that role if the parents are unmarried.  The primary caretaker factor became important as psychologists began to place importance of the bond between a child and his or her primary caretaker.  This emotional bond can be important to the child as they pass through various stages of development.

What is a "Primary Caretaker"?

The duties that indicate that a parent is the primary caretaker may include the following:

  1. Planning and preparing the child’s meals
  2. Bathing, grooming and dressing the child
  3. Purchasing, cleaning and care of the child’s clothes
  4. Providing regular medical care and dental visits
  5. Arranging social interactions and extracurricular activities
  6. Attending to the night-time needs such as putting the child to bed or attending to them in the middle of the night when necessary
  7. Waking the child in the morning and getting them ready for school
  8. Assisting with homework on a regular basis
  9. Disciplining, educating, teaching and providing guidance

Additional factors may include ensuring that the child has the opportunity to interact with friends and relatives during birthdays, holidays and other special events.

Determining Which Parent is the Primary Caretaker

When determining which parent has been the primary caretaker, family courts focus on direct care-taking responsibilities.  This is the parent who cared for the child on a day-to-day basis, such as taking the child to and from school, taking them to the doctor or dentist, helping with schoolwork and being involved in the child’s school.  The parent who can establish their role as the primary caretaker are usually favored for custody.

Effect of Affair or Non-Marital Sexual Relationship

In most states, affairs or non-marital sexual relations are not a factor when determining custody.  However, it if can be proven that the relationship has harmed the child, this could affect the decision of the court.  If the parent’s sexual relationship has placed the child in an embarrassing situation or caused significant stress to the child, this may be considered a negative factor.

Effect of Homosexual Relationships on Custody Decisions

The impact of a parent’s homosexual relationships regarding custody decisions dramatically from state to state.  Some states treat homosexual and heterosexual relationships equally and don’t consider the relationship to be a significant factor unless specific harm to the child is shown.  A homosexual parent seeking custody may have a more favorable outcome in states that allow gay marriage.  The courts cannot deny or restrict custody based solely on a parent’s sexual orientation.  Typically, they use the following four rationales in determining custody by a parent in a same-sex relationship:

  • Will the child be stigmatized or harassed because of their parents sexual orientation?
  • Will exposure to their parent’s homosexual relationship affect the child’s own sexual orientation?
  • Will granting custody to a homosexual parent affect the moral well-being of the child?
  • Some states justify their decisions by asserting that state sodomy statutes criminalize oral or anal sex.

Any decision against awarding custody to parents in same sex relationships may bring unwanted judicial scrutiny.

One Parent Undermining Child's Relationship with Other Parent

The courts favor an on-going healthy relationship between the child and both of the parents.  In a situation where one parent tries to undermine the child’s relationship with the other parent, this will be viewed as a negative factor.  A court may grant custody to the parent who fosters an open and positive relationship with the other parents, unless it can be proven that the other parent has been abusive or has harmed the child.

Religious Considerations

Courts are constitutionally forbidden to interfere with religious freedom or to take judicial action preferring one religion over another.  However, in some cases, family court judges are more likely to award custody of children to parents who hold religious beliefs similar to their own, even if more relevant considerations would lead to a different outcome.  Because religious bias on the part of a judge is violation of the First Amendment, parents affected by such rulings have a strong case on appeal. 

The courts are also faced with a dilemma when a child custody dispute involves parents of different faiths or beliefs.  The legal complexities surrounding the issues of religious differences require attorneys to consider what type of evidence to present to either prove or defend competing contentions of this nature.

The Child Custody Evaluation

Each child custody case is decided on a number of relevant factors pertaining to the welfare of the child.  Many states favor joint custody based on the belief that a child will benefit from regular contact with both parents.  The court will normally favor the parent who will best maintain stability in the child’s life.  Whenever possible, a judge will try to maintain a child’s school, community and religious ties. 

What is a Child Custody Evaluation?

A custody evaluation is often the best way to determine what is best for the child and make recommendations to the court regarding child custody and visitation.  The court follows the recommendations in the evaluation in over 90% of custody cases.

The child custody evaluation is a written report drafted by a neutral professional about each of the parents and each of the children.  This report summarizes what each parent’s ideas are regarding what is best for the children.  It examines information from teachers, counselors, doctors and other people who have had regular contact with your children.  A recommendation is made in the report as to the custody and visitation plan that would be best for the children.  The judge and respective attorneys each receive a copy of this report.

A full evaluation takes about three months to complete and can only be done when so ordered.  The evaluator spends time interviewing the parents, and observing the children with each of the parents and other household members.  After the evaluation is complete, the parents are always encourage to write their own parenting agreement.

How Does the Court Use the Evaluation?

The goal of the evaluation is to provide the court with objective information and recommendations about the family in order to assist the judge in issuing order in highly contested custody disputes.  When formulating their recommendation, the evaluator analyzes the family dynamics and how they affect the children.  They search for the solution that serves the best interests of the children.

This evaluation may be conducted by the staff of the family court services, or by a private mental health practitioner.  They are often useful in cases where there have been concerns about the behavior of either parent in such a manner as to physically or emotionally harm the child.  If the child has an adjustment or behavior problem which requires special consideration may be another reason for the evaluation.

The Final Custody Judgment

Once the court enters the final child custody and visitation order, any person desiring a change to that order must ask the court for a modification of child custody order.  If there has been a substantial change in circumstances, the court may consider revising its previous order.

Enforcement of the Child Custody Order

Having a custody and visitation order is not a foolproof guarantee that you will always be able to have custody of or visitation with your children.  Your ex-partner may interfered with your rights and prevent you from seeing your children.  There are many ways to deal with this situation.  The first time it happens, you should try to communicate with him or her and point out that they are going against a court order and there may be consequences for their actions.  You should always keep your attorney apprised of any incidents involving a violation of your custody and visitation order.  Keep a documented report of each time this occurs and make sure your communication with the other parent is done in writing, and not just by leaving a voicemail message.

If you are still having problems with visitation, you should contact the Family Services Office in the court where the visitation orders were made.  If a parent does not obey court orders, he or she may be held in contempt of court.  If found in contempt, the offending parent may have to pay court costs and attorney fees and they may be ordered to allow the parent to make up the missed visitation time and in some cases, they may spend time in jail.

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