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

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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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