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

Birthdays and holidays can be especially problematic for newly divorced parents who share custody of their children. Naturally, it will take some time for your family to adjust to the new parenting arrangement. Avoiding confusion, ambiguity and the resulting conflict is essential to maintaining healthy relationship with your children. Emily Doskow at Nolo has written an excellent article outlining 10 tips for recently divorced parents seeking to enjoy holidays without conflict and disappointment.

1. Be Flexible

Where your children are concerned, the best present you can give your child is to head off conflict about special days like birthdays and holidays. The collaborative rule for you in this situation is adjust your agreements to fit your kid’s needs.

For example, if the kids express a strong desire to spend a holidays or birthday with your ex, understand the importance of allowing them to do just that, regardless of whose time it is “officially.”

2. Be Proactive and Plan Ahead

Always keep in mind that your new family arrangements require much more planning than when everyone was living under the same roof. One way to avoid disappointment is to communicate early and often with the children and your ex. Give your children’s mom plenty of time to think about your proposals and to respond. And keep in mind that pushiness usually produces more resistance than cooperation.

3. Be Kind and Generous

Especially during holidays, keep any bitterness you still feel over the divorce between you and your ex. If you can’t say anything nice, just smile. Avoid putting the children in the awkward position of taking sides. Be as generous as you can with your kids about their relationships with their ex and the rest of the family. Encourage them to talk about the gifts they received and activities they engaged in with other family members they see over the holidays. Let them know they can show happiness with both parents. Help your children shop for the other parent, as well as their sibling, grandparent, or stepparent.

4. Keep Your Word

Be particularly careful to follow through on whatever promises you make related to the holidays. It’s extra important to keep promises to your kids around holiday times — the holidays are a big deal for kids.

5. Include the Kids In Your Planning

Whenever it’s reasonable, let your children help make the choices about when and where to celebrate the holidays, and with whom. But before asking their opinions, make it clear that all plans must be cleared with everybody involved. This will help teach your kids to be part of the collaboration between you and your ex.

6. Create Two Holidays or Birthdays

Having two holiday or birthday celebrations for the children — one at your house, one at Mom’s — is often a positive solution for extended families. Just make sure that the plans you make are collaborative and that they are made well in advance. This arrangement reinforces for the kids that they have two homes and cements new family rituals and holiday customs.

7. Avoid the Indulgence Trap

Many divorced parents, especially dads, are still reeling from their personal hurt and guilt over the divorce. They may be overwhelmed by these feelings and respond to the children’s pain with too much money or too many gifts. Try to stay away from this unhealthy dynamic with your kids.

8. Take Care of Yourself If You’re Alone

Holiday time can trigger a resurgence of memories and melancholy feelings, especially if you are surrounded by couples and families. As holidays or birthdays approach, if you know you’re not going to get to see your kids, be sure to make your own special plans for the day.

9. Build New Family Traditions

Divorced parents, especially dads, often make the mistake of trying to duplicate exactly the pre-divorce family traditions. But you’ll be much happier and more satisfied if you create your own traditions for your new family.

10. Nurture Your Blended Family at the Holidays

If you remarry or get into a committed relationship and your new partner has children, they will undoubtedly have their own ideas about how to celebrate holidays and birthdays. Discuss with your new partner ways that you can bring together the children from both sides of the family, and get all the kids involved with planning what you’ll do together and incorporating everyone’s traditions.

Birthdays and holidays are special times for you and your kids. Communicate clearly and stay calm and flexible, and your extended family will have something to celebrate.

Source:  "10 Tips for Divorced Parents" by Hugh W. Barrow, published at the Kentucky Family Law Blog.

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What happens when one parent wants to change custody after there is already an existing child custody order?  I have received several inquiries on this topic recently, which is very common this time of year, since school resumes in a few weeks.

In these cases, the parent wanting the change has basically two options, depending on the circumstances of each particular case:

• If both parents agree that custody should be changed from parent A to parent B, the best solution is usually to pursue a child custody agreement.  This process generally involves having an attorney draft a written agreement, which both parents then review.  If it meets with everyone's approval, the parents then sign it, and a hearing is scheduled to ask the Court to approve the agreement.  An Order is issued, which incorporates the agreement into it and most importantly, makes it enforcible if either parent attempts to violate its terms.
• If the parents do not agree, then the non-custodial parent will need to file an action asking the Family Court to change custody of the child.  Typically, the parent seeking custody must prove that there has been a significant or substantial change of circumstances since the parties were last before the Court on this issue.  Next, the Court must determine if the change of custody is in the best interest of the child.  As I have discussed previously on this blog, the Court takes many factors into consideration as part of its analysis, including the child's preference.

Of course, as I noted above, child custody cases are very fact specific, and each case is different.  If you are facing this situation, the best thing you can do for yourself and your child is to seek the advice of an experienced, qualified family law attorney who can help you analyze your case and determine what steps, if any, you should take.

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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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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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In the past, most states provided that custody of children of "tender years" (about five and under) had to be awarded to the mother when parents divorced. In most states, this rule has either been rejected entirely or relegated to the role of tie-breaker if two otherwise fit parents request custody of their preschool children. No state now requires that a child be awarded to the mother without regard to the fitness of both parents. Most states require their courts to determine custody on the basis of what's in the children's best interests, without regard to the parent's gender.

As it turns out, many divorcing parents agree that the mother will have custody after a separation or divorce and that the father will exercise reasonable visitation. This sometimes happens because the parents agree that the mother has more time, a greater inclination, or a better understanding of the children's daily needs. But it can also be because fathers presume that mothers will be awarded custody or because the mother is more tenacious in seeking custody.

If you are a father and want to ask the court for physical custody, do not let gender stereotypes stop you. If both you and the mother work full-time, and the kids have after-school care, you may be on equal footing. In fact, if you have more flexible hours than the mother, you could have a leg up. In any event, the judge will look at what's best for the children. So if you think that you should have primary custody and that you can persuade the judge that it's in the kids' best interests, you should go ahead and ask for custody. If you present yourself as willing and able to parent, it will go a long way towards challenging any lingering prejudice against you as a father.

Copyright 2005 Nolo

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No. Courts frequently award at least partial custody to both parents, called "joint custody." Joint custody takes at least one of three forms:

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