South Carolina Family Law Blog : Spartanburg Divorce Lawyer & Attorney : Turnipseed, Brannon & Stevens Law Firm : South Carolina Family Law Serving Columbia, Charleston, Greenville, Hilton Head Island

Ruth Bettelheim in the Huffington Post and in an op-ed piece in the New York Times argues that we should have no-fault custody legislation.

Ms. Bettelheim’s correctly urges that custody battles are damaging to children. Indeed, most family law practioner’s would agree that children are the unintended victims in contested divorces, particularly when custody is in issue. As a result, most would agree that reducing family conflict and the acrimony of divorce would be beneficial to the children’s well-being.

As Ms. Bettelheim aptly points out, however, litigated custody battles have just the opposite effect; parents at war are forced to “do their utmost to demonstrate that they are the better parent — and that the other one is worse, unfit or even abusive.”

Her solution, however, to force parents to enter into binding mediation agreements that “could not be discarded or contested later if new disagreements were to arise” is untenable.

First, the needs of the children and their relationships with their parents change over time; parents must have an ability to address these changes with court intervention if necessary. Clearly, a parenting plan created when children were of pre-school age will not address the needs of teenagers.

Secondly, a non-modifiable custody plan would give little consequence to a parent who willfully violates a visitation schedule or attempts to alienate the children from the other parent.

Perhaps a better solution to lessening the pain inflicted from a contested custody battle would be to start with a presumption that both parents are fit and that some type of joint custody arrangement is warranted. In most cases, both parents want to be involved all facets of their children’s lives; decisions regarding the children’s health education and welfare should be shared. Likewise, children should be afforded sufficient time with both parents to create strong and lasting bonds.

Obviously, joint custody could never be an option in cases, where, for instance, there is evidence of abuse, abandonment or mental illness.

If sole custody was an option only in those cases where one of the parents was unable, unwilling or unfit to share custody, I am sure there would be far fewer custody fights, thereby achieving Bettelheim’s goal of “peace between parents” and an end to custody litigation.

Source: "Should There Be No Fault Child Custody Laws?" by Daniel Clement, published at his New York Divorce Report.

• Email This
• Print
• Comments (1)
• Trackbacks

Most everyone would agree that it is a good idea to shield children from most parental conflict. Nevertheless, there are many times during and after divorces when children get drawn into family disputes and end up in the middle, with both sides pulling on them. The following is a brief list of 5 "Don’ts" and a "Do" that may help avoid such situations.

1. Don’t ask the children to decide. In the heat of family disagreements, it may seem simple or fair to just let the children decide where they want to live, or what visitation schedule they want to follow, etc.; parents may feel that’s like having a neutral person make the decision. Unfortunately, that puts a lot of pressure on the children and sets them up for guilt feelings and/or angry parents.
2. Don’t disparage the other parent or his/her family. This can be by direct comments made to a child or it can be done indirectly, such as comments made to others, but overheard by a child. It can also include body language and gestures that indicate disapproval or other bad opinions of the other parent. A child will likely take such actions or words as an attack on him or her.
3. Don’t argue around the kids. Disagreements are normal, even in well-functioning, intact families. Discussions and arguments between adults should take place just between adults, if at all possible. The kids don’t need to be drawn in or manipulated by the situations.
4. Don’t ask the children about the other parent. It’s not necessary for you to know everything that goes on when your children are with the other parent. Children will often tell about things they enjoyed or about big events, good or bad. Children don’t like being grilled about what happens when they visit their other parent.
5. Don’t use the children as messengers. If you want to send a message to the other parent, talk directly by phone or in person, send a letter or send an email. Kids aren’t always dependable anyway. And if you send a message by the children and then the other parent reacts badly when the message is delivered, the children are likely going to feel that they caused the problem.

Finally, something you can Do:

Do take a co-parenting class, preferably with the other parent. There are several good classes available in this area in person and even on line. I recommend the "in-person" class because you can learn more and get specific questions answered.

If you can avoid the temptation to put your children in the middle of adult disputes, your children will be happier and you should have better relationships with them (and maybe the other parent as well). If both parents will take a co-parenting class, all of this advice may be unnecessary!

Source:  "How to Keep Your Child Out of the Middle" by Dick Price, published at his Divorce and Family Law in Tarrant County, Texas blog.

• Email This
• Print
• Comments
• Trackbacks

Note:  The following post was done by an attorney in Missouri, but it does an excellent job of explaining many of the terms commonly used with regard to child custody.  Many of the terms referenced below are used in other states, including South Carolina.  You should contact an attorney in your state to discuss the terms that apply there.

In cases involving children, the Court must, either by agreement or by trial, set up some sort of custodial arrangement for the kids involved. There are many options available, all of which fit under a just a few legally recognized categories. There are as many if not more “definitions” of custody floating around out there that don’t actually mean anything legally. People usually have at least some idea of what it is that they are seeking in their minds, but they have trouble defining it. So here we go with a little Child Custody 101 to assist those with their initial case preparation:

• Legal Custody :: This is one of the two types of custody that must be determined by a Missouri Court in all cases. The legal aspect of custody means decision making and parental authority, basically. It means having the legal right to make (and participate in) any material decisions affecting the children. Included are the choice or change of school, college, camp, or comparable summer activity, special tutoring, music, sports, art, dance, and other cultural lessons, psychological or psychiatric treatment or counseling, doctors, and surgeons; notice of illness and injury; access to school and medical records; and all other material decisions affecting the health, education, and welfare of the children. Specifically, decisions regarding educational instruction, religious instruction, health care, discipline, and child care providers are included in the model parenting plan, but anything relevant to the children could be included in the definition. Legal custody can be granted to one or both parents, but the overwhelming preference is for joint legal custody.
• Physical Custody :: This is the second aspect of custody that must also be determined. Physical custody simply means the right to have actual physical possession of the children at a certain specified time. The preference is for joint physical custody, which only means that both parents have the right to physical possession of the children at certain times. The actual schedule can vary greatly, however, and this is where tailoring to the specific needs of the family is important. Joint physical custody could be an alternate weekend schedule, alternate weeks, holidays and spring break only, summertime only, 3 day/4 day, 5 day/2 day, 50/50, open ended, or whatever other schedule is appropriate for the case. Just as a note, in a 50/50 joint physical parenting schedule, reduced child support is still usually paid in some form or another.
• Joint Custody :: As discussed above, this is the preferred arrangement and will usually be awarded unless a physical or emotional danger to the child is demonstrated. The Court has to determine whether joint custody is appropriate as to both the legal and physical aspects of custody.
• Sole Custody :: This is the alternative to joint custody where only one parent is granted either all of the decision making rights (sole legal custody) or all of the physical parenting time with the other parent being excluded completely (sole physical custody), or both. Courts are reluctant to order either of these options unless it is shown to be in the children’s best interests, which usually means that physical or emotional danger to the children will occur under any other alternative. Also, as many times as I have seen it, there is no such thing as sole physical custody to one parent along with a parenting schedule for the other parent. If both parents are to see the children, whatever the schedule, that is joint physical custody by definition.
• Split Custody :: This is an arrangement where the children are “split up” between the two parents, meaning that some of the children reside with one parent while the other children reside with the other parent. This is not too common, but it does happen. Courts are usually reluctant to split up children except in the most unique of circumstances, but the parents can agree to such an arrangement if they feel it is best.
• Full Custody :: There is no definition of Full Custody in Missouri and it has no legal significance. When referring to this, people are talking about some combination of the above types of custody.
• Primary Custody :: This is no longer a legal definition in Missouri. Now it is called “residential address for education and mailing purposes.” It usually means the home where the children reside for the greater amount of time, and the home that is in the children’s school district. The parents are supposed to be equal so they are no longer referred to as the primary parent and the lesser parent.
• Visitation :: This is the time where you view the body before a funeral. So, if you are talking about your kids, call it something else, like “parenting time”.

Hopefully, this helps to clarify a little bit, but when it comes down to it, it is still just a bunch of words on paper. Put the children first, focus on what is best for them and what will really work with your family, and don’t get too wrapped up in the terminology.

Source:  "Full Custody, Joint Custody, Sole or Split? Or maybe 50/50. What do I really want and what exactly do these words mean in Missouri anyway?" by Mark Wortman, published at his Missouri Divorce & Family Law Blog.

• Email This
• Print
• Comments (1)
• Trackbacks

Custody Battle: Dad's Story – A new generation of fathers is fighting for custody – and a fair shake in court:

“Yes, but who’s going to cook them dinner?” When Ben Oshman got that question from a judge hearing his request for custody of his three kids, he was furious. Because whatever new challenges moms have these days, when it comes to custody, things haven’t changed much for dads—especially the gender-based stereotypes that render them the second most important parent.

But now, dads are fighting back, demanding custody where custody’s due. Their motivation is simple: “I wanted to have kids. I wanted to have the family,” says Oshman, who ended up getting joint custody of his three girls. To him, divorce “didn’t mean I should have to give up my family.”

A groundswell of support is rising up for dads seeking custody, as evidenced by the increasing number of groups like dads rights (dadsrights.org), Custody Warriors, and dadsdivorce.com. “Fathers increasingly want to be more deeply involved with their children”—a desire that doesn’t disappear after divorce, says Danny Guspie, executive director of Fathers resources international, a group that advises divorced dads. “When you see some dads have success, it encourages others.”

Thirty years ago, dads never litigated for custody, says Jeffery M. Leving, a Chicago lawyer at the forefront of the fathers’ rights movement. “Men didn’t place fatherhood at the top of their priorities. Now, if they face a divorce, their children are their main priority, and they will fight to avoid being kicked to the curb.”

Bottom line: dads say they’ve become better parents, so they deserve a better chance. “They’re demanding more fairness,” says Leving, “and sometimes they’re getting it.”

Philip Lerman is the author of Dadditude: How a Real Man Became a Real Dad.

Source:  "Custody Battle: Dad's Story" by Philip Lerman, published at Working Mother magazine. 

• Email This
• Print
• Comments (2)
• Trackbacks

Family Court cases are difficult for adults, but they can be traumatic for children.  After seeing the effect these cases can have on children, Reggie Blackledge, a family law attorney in Collins, Mississippi, wrote the following poem to help adults understand the feelings that children experience when their parents are fighting in court.  I am pleased that Mr. Blackledge granted me permission to publish his poem on my blog, and I hope that you find it as meaningful as I do:

IT’S MY FAULT

I’m 8 years old and I don’t know how I got here.
As far back as I know they’ve been fussing.
At first they would just come out of a room with momma in tears.
Then it got so loud that I couldn’t get anywhere that I didn’t hear them cussing.

I’ve heard that a wife should love her husband, and a husband should love his wife.
That’s what I would keep telling myself when I hid.
But their fighting has been going on my whole life.
It must be something I did.

I try to concentrate when I’m in class, but the teacher’s words just start to fade.
Sometimes I just feel numb.
The teachers are worried about my grades.
I must really be dumb.

Now I live with momma and see daddy off and on.
Even with them living apart it’s still the same.
They may not see each other but when daddy calls me they fight on the phone.
I love them both and want it to stop. I must be to blame.

We went back to court today over what the judge called child custody.
As usual they yelled at each other in the hall.
I’m the child so this custody fight must be about me.
If they are fighting over me I must be the cause.

Court is over now and I’m trying not to think about what was said.
I need to sleep. I just want some rest.
Momma’s nerve pills are by her bed.
I’m so confused and upset.

They were bitter. I lay down on momma’s bed.
I remember my last thought
As I whispered out loud and sleepily said,
“This must all be my fault.”

By: A. Regnal Blackledge, Attorney at Law
Shoemake & Blackledge, PLLC
Collins, Mississippi 39428
www.shoemakeblackledge.com

• Email This
• Print
• Comments
• Trackbacks

Childhood obesity can lead to a host of health problems, including Type 2 diabetes, insulin resistance, hypertension, high cholesterol, sleep apnea and orthopedic problems.  Experts have begun to debate whether removing morbidly obese children from their parents will boost those children's chances for a healthier life.  

Other experts say that parents' share of responsibility in weight gain isn't always easy to judge and that it's unfair to blame solely the parents.  These experts point to other factors that influence a child's weight, such as genetic predisposition, socioeconomic status, environmental factors, and even children sneaking extra food behind their parents' backs.

You can read much more here about the debate over whether the State should remove obese children from their parents.  

Source: "Should Parents of Obese Kids Lose Custody?" by Gaelle Faure, published at Time.com.

• Email This
• Print
• Comments
• Trackbacks

Today, my law partner, Paul MacPhail, addresses the question: whether for child custody purposes, a parent can reside in more than one state?

Yes. Relying on a 1975 case, which held that “… a person may have only one domicile, but may have several residences”, the Court of Appeals in South Carolina has recently issued an opinion that a parent can be a resident of more than one state for purposes of determining what state can modify a custody order.

This is important because one of the factors for jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act asks for the court to determine if the child, the child’s parents, or any person acting as parent resides in the state where the last order pertaining to the child was issued.

In this case, the parent and child lived in South Carolina for several years after the last order was issued in Georgia, and the non-custodial parent (mother) had moved to Florida. Mother tried to register the Georgia order in South Carolina and then asked the court to modify the order. Father claimed that while Father and child were living in South Carolina, he also still maintained a residency in Georgia, so Georgia still had jurisdiction over the case.

The Court of Appeals agreed with Father. Even though Father and Child clearly resided in South Carolina, and had been living there for a number of years, Father had also remained a resident of Georgia, where he is registered to vote, owns real estate, holds a Georgia driver’s license, files his income taxes, and remains an enrolled student. Finally, on his student loan application Father listed his permanent city as North Augusta, South Carolina, but his state of legal residence as Georgia.

The case is Russell v. Cox, 2009-SC-0428.212, opinion number 4535, dated April 27, 2009, and you can read it HERE.

• Email This
• Print
• Comments (1)
• Trackbacks

A divorce is always a traumatic experience, one that involves mood swings, rampant emotions and difficult decisions. But the worst part is the fact that you may be separated from your child/children because you chose to split with your spouse. A battle for child custody is not something you can take lightly, especially if the future and wellbeing of your child depends on it. If you and your spouse are in the middle of a bitter battle for your offspring, consider the following points:

• Remember that it's about your kids: Although you may be mad at your spouse and want to get even, using your children is not the right or moral way to go about it. If you're seeking custody of your kids, it must be because you truly feel that you can offer them much more than your spouse can, in terms of financial and emotional support.
• Find a good lawyer: Although you may feel that you don't need one, a good lawyer, one you can trust, is an asset when you're in a child custody battle. Choose someone who is familiar, skilled and who is not in it just for the fees alone.
• Don't be complacent: You need to be careful about what you say, even casually, to people who are known to both you and your soon-to-be ex-spouse. A casual comment could come back to haunt you in the courtroom. Gather all the evidence that you'll need to prove your case in court and show that you are better positioned to provide for your child and give them a better future.
• Fight fair: It's not always the done thing, but throwing insults at your spouse and mud-slinging are not the way to go when you're in court fighting for custody of your children. Your kids don't need to hear what you and your spouse think of each other; it could affect their mental health and give them nightmares if they're really young and don't understand what's happening.
• Be prepared to accept visiting rights: In case you are not awarded custody, for the sake of your kids, be prepared to accept visitation rights and accept to the court's decision with dignity and decorum. The kids are already going to be torn apart by your decision to divorce, so don't make their lives more complicated by appealing the decision and prolonging the uncertainty.

This post was contributed by Kimberly Peterson, who writes about online criminal justice degrees. She welcomes your feedback at KimPeterson2006@gmail.com.

• Email This
• Print
• Comments (1)
• Trackbacks

What happens when a married parent leaves with a child to a foreign country, and refuses to return?  It happened to David Goldman, and for 4 ½ years, he was not allowed to see his son. In that time, his wife divorced him in a foreign country, remarried, and died, leaving Mr. Goldman’s child in the custody of her surviving husband in a foreign country.  You can read much more about Mr. Goldman's struggle to assert his rights and the obstacles he had to overcome in doing so by clicking HERE.

Source:  "After bitter 4-year fight, he finally sees his son again. Dad has ‘beautiful’ reunion with boy whose mother abducted him to Brazil" by Mike Celizic, published at Today.MSNBC.com.  Thanks also to my law partner, Paul MacPhail, for his contribution to this post.

 

• Email This
• Print
• Comments (2)
• Trackbacks

In Austrailia, under the Shared Parental Responsibility Act, there is a presumption since 2006 that "equal shared parental responsibility" is in the best interests of a child.  Both parents are legally bound to jointly attempt to make "major long-term decisions" about their children's care, welfare and development."  This doesn't necessary mean that parenting time is always allocated fifty-fifty, but the Court is required to favorably consider whether the child should spend equal time with each of the parents.

At first glance, this might sound like a good idea, because it literally "splits the baby in half" and each parent is on equal footing.  In a perfect world where parents communicate well with each other, live very close to each other, and both genuinely focus on the child's best interests, then this scenario may, in fact, work well.  However, that is not the case in the vast majority of cases.

Perhaps even worse, Melbourne child psychologist Jennifer McIntosh believes that children in these split care situations risk developing higher than average levels of sadness, anxiety, clinginess and other mental health problems.  She also believes that equal-time parenting could be especially damaging for children under three.  You can read much more about this issue, including a case study by clicking HERE.

Source:  "Shared Parenting for Divorce Couples 'Harmful to Children'" by Matthew Fynes-Clinton, published in the The Courier-Mail (Queensland, Australia).

• Email This
• Print
• Comments
• Trackbacks

I recently had someone ask me (a) whether a mother can move her child away from South Carolina without letting the father know the child's whereabouts and (b) whether there would be any consequences for her doing so. 

My initial response was simply to shake my head in disbelief that someone could even ask such a question.  Will there be consequences for a mother taking a child away from its father and refusing to let the father know where the child is? YES -- unless the father simply does not care, there will certainly be repercussions for the mother's conduct. 

The father can choose to file a contempt action against the mother (if her move results in the father being denied his ordered visitation).  He can also file an action seeking a change of custody based not only on the mother moving the child outside of SC, but also upon her attempt to alienate him from his child.

• Email This
• Print
• Comments (1)
• Trackbacks

Question:  In South Carolina, if you live with a boyfriend/girlfriend while you are separated from your spouse, will it impact custody or visitation?

Answer:  Most judges take the position that living with your lover, particularly while you still married to someone else, creates an "immoral environment", which is not in the best interest of the children.  For that reason, it can be a huge factor in a custody or visitation case.

In situations like this, it is always better to discuss your circumstances with an experienced family law attorney before making any major decisions.  By doing so, you can find out what options are available to you based on the facts of your particular case and discuss what the impact of those options and avoid creating unnecessary obstacles or problems for yourself and/or your case.

• Email This
• Print
• Comments (5)
• Trackbacks

The following is a Guest Post from Ruth Folit, President of Chronicles Software, which explains how their program LifeJournal can be utilized to help you in your Family Court case:

Do you want to your win your divorce or custody case? Divorce lawyers tell us that keeping good notes is key to winning your case. When you tell your story in court—and the other side denies your allegations—your detailed, dated notes about your spouse’s or ex-spouse’s behavior will offer solid evidence that strengthens your case.

LifeJournal, journal software, is an easy and effective way to safely keep your notes.
LifeJournal, which runs on your Windows computer’s hard drive, lets you securely record and organize your notes. You can password protect your journals, making the journal private. Additionally, the files are encrypted, so that your can feel even more secure that others won’t be able to read your journal.

LifeJournal automatically enter the time and date of each new entry. LifeJournal lets you assign topics to entries, so you can quickly search for particular entries—by date, by topic, and more. You can print out a set of journal entries and give them to your lawyer.

You may also want to keep a journal for working out the emotional issues that often emerge during a divorce. However, divorce lawyers warn that it’s best not to include your personal writings with your notes that you’ll bring to court. LifeJournal has a solution. You can create two different journal writers, so that the two journals—the journal for court documentation and the journal for personal use—are separate.

You can start right now by downloading the program at www.lifejournal.com/download. Visit www.lifejournal.com to learn more about the program.

Ruth Folit
www.lifejournal.com
rfolit@lifejournal.com

• Email This
• Print
• Comments
• Trackbacks

Question:  I have been told that since I am unmarried and live with my fiance', the Court will give custody of my child to her father who never sees her.  How can that be?

Answer:  First, you should be careful as to believing what "others" may tell you, as only your attorney can give you accurate advice specific to your particular case.  The things that your friends, co-workers, and/or family members may tell you (no matter how well intentioned they may be) may not necessarily be true or applicable to your case.

Now, if you are living with a boyfriend/finance' to whom you are not married, the Court will consider that to be an "immoral environment."  As such, it will be a factor, but it is only one of many factors that the Court will consider in a custody case.  In some cases it can be the determining factor, whereas in others it might not make as much of an impact on the outcome. 

The bottom line is that you should tell your attorney all of the facts of your case (both good and bad) so that he can then give you the appropriate advice.  Without knowing all of the facts of a particular case, it is virtually impossible to say how much of a factor any one item will or will not be (except for things such as child abuse or neglect).

• Email This
• Print
• Comments (2)
• Trackbacks

The following insightful article was originally published at The Orsini & Rose Divorce and Family Law Blog:

Question:  I was given sole custody. I know that means I have full control over where my child goes to school, goes to church, goes to the doctor, etc.  My ex has asked the school to send my child's grades to both of us, not just to me. How do I make the school send the grades only to me?

Answer:  My first question is, why would you want to deny your ex that information? Putting a block between your child and your ex will almost certainly backfire on you. Your child will most likely have a great difficulty understanding why you took a step, however small, to alienate him or her from your ex. Your may distrust your ex, fear your ex, even hate your ex, but your child probably doesn't. Your child, at any age, probably wants a relationship with your ex. I realize there are exceptions to this rule, especially at the older ages where children often become less attached to and dependent on their parents, but you should stay out of it. DON'T DO ANYTHING TO DISTANCE YOUR CHILD FROM YOUR EX unless you have a really, really, REALLY good reason. Like maybe a court order or a provable fear of harm to your child. Notice I said, "provable."

And most judges won't back you up if you try to keep grades from your ex.  Most state's judges are very reluctant to prohibit a parent from seeing the grades of his or her child. Judges do what they can to unite children with estranged parents, and they are very reluctant to do anything that separates children from their parents in any way unless there is evidence of child abuse or some other direct harm to the child.

But that doesn't really answer your question, does it? Despite my warning, if you want to keep the grades from your ex, you can probably get away with it. Show the principal your "sole custody" order, and the school will probably send the grades only to you from that point forward. Your ex may complain to the school, but most school officials would recommend to your ex that the matter be taken up in court. Then they'd continue to send the report cards only to you. Keeping grades from your spouse may be wrong, but you'd probably be successful. Now that I've answered the question, I can only hope you'll use your newfound knowledge for good, not evil.

Source:  "Can I Keep My Child's Grades Away From My Ex?" by Brent Rose, published at The Orsini & Rose Divorce and Family Law Blog.

• Email This
• Print
• Comments (2)
• Trackbacks

Hofstra Law Professor Joanna Grossman has taken a careful, scrutinizing look at the Britney Spears case and used it as a backdrop to discuss what everyone should know about family law cases in general and child custody cases in particular.  It is a very interesting read, and here are some of the lessons she discusses:

• Courts, not Divorcing Parents, Ultimately Decide Custody
• Parental Behavior Matters in Custody Battles
• The Paparazzi Are Not the Only Ones Watching Your Every Move

Source:  "Britney Spears: Why She Lost Visitation Rights, and What Her Case Teaches Us About Family Law" by Joanna Grossman, published at FindLaw.  Thanks also to John E. Harding for his post about this article at his California Divorce Blawg.

• Email This
• Print
• Comments (3)
• Trackbacks

I have previously written about how the Family Court considers a child's preference in custody cases.  On his new Minnesota Divorce and Family Law blog, Gerald Williams addressed this subject a few weeks ago, as follows:

If I had to name the question that comes up most often, it would be this one: how old does a child of divorced, separated or unmarried parents have to be to decide which parent the child wants to live with? In typical manner, the answer is not a simple one. There is no fixed age when a child celebrates a certain birthday and suddenly holds the trump card to influence a family court judge's decision regarding child custody. It is safe to say that a 3-year-old is too young to decide. And a 17-year-old with car keys and an attitude can wield a certain amount of control over where they spend the night.

It is the ages in the interim that make things more complicated. At some point between age three and seventeen, most youngsters gains sufficient maturity to express to a guardian ad litem or custody evaluator a preference to live with one or the other parent. The guardian ad litem or custody evaluator may pass that information on to the family court judge if it believed to be sufficiently reliable and not based on the undue influence of the "preferred parent." But that point in time is not the same for every child. Therefore, it is something that is considered on a case-by-case basis.

Moreover, in most cases, if the child expresses a reliable preference for one parent, there will be other factors that support placing the child in that parent's custody. The family court might be informed that the child has such a preference, but also that the "preferred parent" provides the child with a more stable home environment, has a significant other or extended family members with whom the child has a good relationship, and/or is more inclined to support the child's contact with the other parent.

That gives the family court impetus to award custody to the "preferred parent" without resorting to the child's preference as a basis for the custody decision. Family court authorities and children's therapists are loathe to place a custody decision on the shoulders of the subject child. A child custody arrangement is required by law to be based upon the child's best interests as a whole, and if at all possible, the family court will avoid rendering a custody decision that can be said to be based primarily on the child's preference.

Source:  "Child Custody: Where Does The Kid WANT To Live?" by Gerald O. Williams, posted at his Minnesota Divorce and Family Law blog.

• Email This
• Print
• Comments (1)
• Trackbacks (1)

A psychological (or de facto) parent  can be defined as a person who has, on a day-to-day basis, undertaken a parental role through interaction, companionship, interplay, and mutuality, that fulfills a child’s physical and psychological needs and provides for a child’s emotional and financial support.

South Carolina has adopted a four-prong test for determining whether a person has become a psychological parent.  Specifically, in order to demonstrate the existence of a psychological parent-child relationship, one must show:

1. that the biological or adoptive parent(s) consented to, and fostered, the person's formation and establishment of a parent-like relationship with the child;
2. that the person and the child lived together in the same household;
3. that the person assumed obligations of parenthood by taking significant responsibility for the child’s care, education and development, including contributing towards the child’s support, without expectation of financial compensation; and
4. that the person has been in a parental role for a length of time sufficient to have established with the child a bonded, dependent relationship parental in nature.

In announcing this test, the Court of Appeals stated that [t]hese four factors ensure that a nonparent’s eligibility for psychological parent status will be strictly limited.  It also cautioned that psychological parents do not automatically have the right to demand custody in a dispute between the legal parent and psychological parent, as the limited right of the psychological parent cannot usually overcome the legal parent’s right to control the upbringing of his or her child.

The Court reasoned that once the bond between the psychological parent and child was established, it should not be unilaterally severed by the biological parent who fostered the relationship in the first place.  The standard to be applied is whether compelling circumstances exist to overcome the presumption that a fit, legal parent acts in the child’s best interest, and of course, visitation must actually be in the child’s best interest. The compelling circumstances standard encompasses a situation where, as here, a third party has attained psychological parent status.

You can read much more about the role and status of psychological parents in South Carolina in Middleton v. Johnson, 369 S.C. 585, 633 S.E.2d 162 (Ct. App. 2006).  This opinion includes a thorough discussion of this theory, including analysis of the decisions from other states.

• Email This
• Print
• Comments (2)
• Trackbacks

A mother who lost custody of her three children in a divorce has argued to the Washington Supreme Court that she should have had an attorney appointed to represent her.  The woman, who only has a ninth-grade education, attempted to get pro bono representation, but she was declined because of the complexity of her case.  As a result, she ended up representing herself, while her husband had an attorney.

Her appeal focuses on the open courts provision of the Washington state constitution includes an open courts provision, which says that justice in all cases should be administered openly, and justice shouldn’t be delayed.  The argument being made by the mother's appellate attorney is that "access" in this instance means "meaningful access," which requires a lawyer.

You can read much more about this novel theory in the article referenced below.  You can also follow this case, King v. King, No. 57831-6-1, at the Washington Supreme Court's website.

Source:  "Mom Wants State to Pay in Custody Battle" by Stephanie Francis Ward, published in the ABA Journal eReport.

• Email This
• Print
• Comments (1)
• Trackbacks

Too often in child custody cases, children are asked the following questions or subjected to these comments:

• "Who do you love more? 'Mommy' or 'Daddy?'"
• "Was mom's boyfriend there?"
• "Your father is always late on payments."

Children should never be put in the position of having to deal with "adult" issues.  Just because their parents can't get along, their childhood should not be ruined by such inappropriate conduct. 

Some judges require feuding parents to attend parenting classes to attempt to resolve (or sometimes prevent) such problems.  These classes vary widely in their format, but they generally aim to teach parents how to deal with each other while protecting their children and also to make parents realize how their actions can affect their children.

Even celebrities can benefit from these classes, as evidenced by the ugly child custody battle between Chicago Bear Brian Urlacher and his former lover.  Both parents in that case were ordered to attend a four-hour parenting class to help deal with the problems in their case.

Source:  "Urlacher Custody Judge: Take a Class" by Rummana Hussain, published at The Herald News.

• Email This
• Print
• Comments
• Trackbacks

I recently read an article which explained how parent-time schedules are handled in Utah.  I am going to list the factors considered there, because I believe that they are good, "common-sense" factors that can benefit parties here in South Carolina and everywhere.

The parent-time schedule is considered to be the minimum parent-time to which the noncustodial parent and the child shall be entitled, unless a parent can establish otherwise by a preponderance of the evidence that more or less parent-time should be awarded based upon any of the following criteria:

1. parent-time would endanger the child's physical health or significantly impair the child's emotional development;
2. the distance between the residency of the child and the noncustodial parent;
3. a substantiated or unfounded allegation of child abuse has been made;
4. the lack of demonstrated parenting skills without safeguards to ensure the child's well-being during parent-time;
5. the financial inability of the noncustodial parent to provide adequate food and shelter for the child during periods of parent-time;
6. the preference of the child if the court determines the child to be of sufficient maturity;
7. the incarceration of the noncustodial parent in a county jail, secure youth corrections facility, or an adult corrections facility;
8. shared interests between the child and the noncustodial parent
9. the involvement of the noncustodial parent in the school, community, religious, or other related activities of the child;
10. the availability of the noncustodial parent to care for the child when the custodial parent is unavailable to do so because of work or other circumstances;
11. a substantial and chronic pattern of missing, canceling, or denying regularly scheduled parent-time;
12. the minimal duration of and lack of significant bonding in the parents' relationship prior to the conception of the child; (m) the parent-time schedule of siblings;
13. the lack of reasonable alternatives to the needs of a nursing child; and
14. any other criteria the court determines relevant to the best interests of the child.

Source:  "Parent Time Schedules" by Gregory W. Stevens, published at his Utah Divorce & Family Law Blog.

• Email This
• Print
• Comments (2)

Question:  What is the Biggest Mistake Fathers Make in Paternity Cases?

Answer:   Delaying. Many fathers wait too long to legally establish paternity in the family court. While many fathers do not understand the importance of having the family court declare them the legal father of their child and delay on that basis, other fathers simply wait until the relationship with their child's mother goes south or a process server serves them (the father) with papers for child support, child custody and/or visitation. This results in substantial problems that could have been avoided by dealing with the issue under the applicable family laws right away.

Some of the problems delay in establishing paternity can cause include decreased chance of primary physical or joint custody, child support arrearages, an appearance of disinterest and the impression that the Arizona courts are not fair to fathers. Let me explain:

Child Custody and Visitation: The courts like consistency in a child's life. Thus, if a father does not does not have a court order declaring him to be the legal father, it is very likely that the mother has been allowed to prevail on disputed issues regarding those entities that require proof of a parent's legal rights to make decisions. Such entities include schools, daycares, medical facilities, the Office of Vital Records and the like. Thus, it is likely that when it comes to making its decision about legal custody, the family courts usually go with the perceived status quo.

Similarly, if a father does not have anything done officially in the courts to solidify his rights, the mother has complete control over visitation and it is very possible that the father will be having access to his child less than he would prefer. So, as with custody, the family court may opt for the status quo, meaning that the father will receive the [possibly minimal] visitation he received up to the time the family court became involved. Thus, establishing legal rights early can help prevent a negative status quo. Of course, many fathers have their children residing with them or while also living with the child's mother and that is a very relevant factor the court considers when determining child custody and visitation, regardless of when the family court officially declares paternity and visitation rights.

Child Support Arrearages (Arrears): At the time the family court establishes legal paternity (via an "Order of Paternity"), the family court almost always also establishes child support. Like it or not, the family court also routinely orders that child support be made retroactive to a certain date. How far back the family court can go in retroactively apply child support varies based on a case's particular facts but the normal rule of law is three years. Thus, if a father either paid nothing or underpaid pursuant to the Child Support Guidelines, the father will have to pay both his current support and the arrears. In addition, the court can order that the father pay costs associated with the child's birth and the mother's expenses related thereto. Therefore, it is best to legally establish paternity quickly to avoid having large child support arrearages and other amounts owed.

The Appearance of Disinterest: It is possible that when a father waits too long to officially request his legal rights to his child, a family court judge could see it as a sign of disinterest. This varies from situation to situation but in the case where a father does not live with his child, it looks better when the father shows enough interest to study up on his legal rights and initiate court proceedings to officialize custody and visitation (parental access), decision-making rights and child support. In particular, judges may see in negative terms a father's request for visitation and other legal rights done only after a mother brings an action in the family court to establish paternity and child support.

Unfairness to Fathers: There may a number of factors that make some believe that the family courts are not fair to fathers when it comes to child custody, child support and parenting time. Obviously, that is a big debate. However, my personal experience shows me that the perception is worse for those fathers who delay establishing paternity. As discussed above, delay can mean that mothers have an advantage over fathers.

Source:  "What is the Biggest Mistake Fathers Make in Paternity Cases?" by Trent Wilcox, published at his Arizona Divorce & Family Law blog.

• Email This
• Print
• Comments (4)

• Email This
• Print
• Comments (2)

Certain divorces or other family cases can benefit from the use of a private investigator.  Investigators can be very helpful in obtaining documentation regarding lifestyle, assets, income, roomates, friends, paramour and parents, including their criminal history, work history, demonstrating hidden affluence, locating and interviewing witnessess, and obtaining information regarding abuse or neglect.

The best way to select and hire an investigator is to find someone referred to you by a lawyer.  You can also look in the yellow pages, and remember that these investigators typically do more family work.  You should insist on an investigator who is licensed by the South Carolina Law Enforcement Division.  Beyond that, there are several advanced certifications which may distinguish one investigator from another, such as the national designation of Professional Licensed Investigator (PLI) or Certified Legal Investigator (CLI).

When hiring a private investigator, costs are always a consideration.  Costs for a private investigator in South Carolina can vary widely, but they are typically in the $50 to $75 per hour range.  You have the right to a written contract at the time you are contracting the service.  The average for an infidelity surveillance typically run about $1,500 to $2,500 to have a real chance of likely success.

In every family law case, whether divorce or child custody/visitation case, there are issues of both law and fact.  Private investigators can help make the facts become clearer.  Solid, verifyable facts can affect the outcome of cases. Even the greatest attorney in the world wants facts on their side, and hiring a private investigator may be the best way to get those facts brought to light.

Source:  This article was adapted from the article "Hiring a Private Investigator For Your Texas Divorce or Texas Family Law Case" by Sean Y. Palmer, published at his Texas Family Law Resource blog.

• Email This
• Print
• Comments (9)

A woman in San Antonio, Texas, has been charged with using MySpace to recruit two people to kidnap her son from his father.  The mother and father were not married, but they have two children together. The younger son, 1 year old, lives with his mother, while the older one (age 2) lives with his father and paternal grandparents.

The mother set up a MySpace page with the heading "I want my son back," and she allegedly offered $500 to anyone who would help her kidnap the boy from her estranged boyfriend.  Two people agreed to the scheme, and the mother sent a text-messaged her ex-boyfriend's sister, claiming that she was planning to stop by with something for the boy, to make sure he would be where the kidnappers could get at him.

On Saturday night, the two kidnappers took the screaming 2-year-old boy from his home, with the child's father chasing after them.  Shortly thereafter, they met the mother at a nearby convenience store and exchanged the boy for the money.  Police were able to locate the boy and return him to his father, though the child is reportedly still shaken by this incident.  The mother, her aunt, and both kidnappers have all been charged with felony criminal charges.

Source:  "Mom Is Accused of Hatching Kidnap of Tot on MySpace" by Vianna Davila and Vincent T. Davis, published in the Express-News and "Woman Allegedly Arranged Kidnap on MySpace" published by United Press International.

• Email This
• Print
• Comments

There is a growing trend of attorneys and law firms "branding" themselves by representing only mothers or fathers in family law cases.  The Wall Street Journal published an article last week on this subject, with particular attention to firms that are catering to men.  Some of these firms market themselves as "A Partner Men Can Count On" or the "Divorced Guys' Guys."

My question is whether this approach truly benefits the client?  I believe that by limiting oneself to only representing one gender, attorneys lose the ability to analyze cases from different points of view.  In fact, whenever I handle a contested case, I spend a great deal of time looking at my client's case from the opposing party's perspective to analyze its strengths and weaknesses.  One of the things that enables me to do this effectively is because I represent both men and women.

Randy Kessler, a noted family lawyer in Atlanta, Georgia, believes that firms who only represent one gender can make judges skeptical of their arguments: "It is much better to have a reputation for representing each client based on the facts of their case, regardless of their gender."  I agree with Mr. Kessler's assessment.

Source:  "Law Firms Pitch Themselves As the Divorced Guy's Guys" by Ann Carrns, published in the Wall Street Journal. Thanks to Diana L. Skaggs for her post on this subject at her Divorce Law Journal.

• Email This
• Print
• Comments

Lawyers Weekly USA recently published an excellent article on parental alienation syndrome (PAS).  "Parental Alienation: The Latest Weapon in Nasty Divorces" takes an inside look at the various aspects of PAS from the perspectives of those involved in the legal system.  The article features interviews with psychologist Richard Gardner and several divorce attorneys: Steve Pradell of Anchorage, Alaska; Susan Gallagher of Minneapolis, Minnesota; Michael R. Walsh of Orlando, Florida; Patrick O'Reilly of Buffalo, New York; and me, Ben Stevens.

Some of the quotes from me in this article are:

• Although parental alienation has become a common weapon in custody cases around the country, proving it can be a tall order.  "It's like everything else in a custody case - it all comes down to what you can prove at trial. A lot of bad things happen, but they're very difficult to prove," said Ben Stevens of Stevens MacPhail in Spartanburg, S.C.
• But the heart of any parental alienation case is the expert testimony, according to Stevens.  "Take the child to a mental health professional and let him do testing," he suggested. "Then you've got an expert witness to come and say, 'In my expert opinion, this is what's going on.'"
• Third-party witnesses can also be a powerful weapon in court.  "Try to line up witnesses that would have had the opportunity to see [the parent] interact with the child. Teachers, scout leaders, dance teachers, karate teachers - people who see them during times when parents let their guard down and can say, 'I've never seen Dad say anything bad about Mom or Mom say anything bad about Dad,'" Stevens suggested.
• "I encourage my clients to act reasonably, assume anything they do or say could be shown to the judge - or better yet, that the judge is standing there watching," said Stevens. "I don't know if that's great advice or I've just had good clients, but I haven't had many alienation claims alleged against my clients."
• Stevens is also careful to take cases he believes in strongly.  "It's not worth it to me to deal with clients who are acting deliberately," he said. "If they're going to do that to their child's parent, I'm going to have a problem with them at some point."

The other attorneys interviewed in the article make interesting points, and some even disagree with  me on certain issues.  I strongly suggest that you read this article and consider all of the points raised by the various contributors.  You can read the full text of the article by clicking HERE.

Source:  "Parental Alienation: The Latest Weapon in Nasty Divorces" by Amy Johnson Conner, published at Lawyers Weekly USA.

• Email This
• Print
• Comments (10)