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 found the post below from Brent Rose to be very interesting.  He makes a great point in a very unusual and compelling way.  I hope that this post makes my readers think about this issue as well.

There's something I like about both the NRA and the ACLU. I know they're such different organizations. One is considered very liberal, the other very conservative. But they have one thing in common: they don't sit back and expect their rights to simply be handed to them. They fight for their rights. If they think their rights are being abridged or abused, they take charge. They go public. They get angry. They sue.

I get upset when someone says, "My ex won't give me visitation!" Well, why do you expect your ex to give you your visitation. Do you think the NRA or the ACLU expects the government to just give them their rights? Visitation is a right. Sometimes rights have to be demanded. Sometimes you have to get angry. Sometimes you have to sue.

No, it's not that the other parent didn't give you visitation. You just didn't take it. You are as much a parent as the other person is. You have a right to visitation. The law is pretty simple: the other parent can't deny you visitation. If he or she does deny you visitation, you file an action to have your visitation determined by the court. And if the other parent still won't give you visitation after a judge orders it? Watch how quickly custody changes. Maybe you agree with NRA and/or the ACLU and maybe you don't, but there is something to be learned from them. Don't expect your rights to just be handed to you. Go to court and demand them.
Source:  "The Other Parent Won't Give You Visitation" by Brent Rose, published at The Orsini & Rose Florida Divorce and Family Law Blog.

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Question:  I have been divorced for several years.  My Divorce Decree states that neither party can have the persons of the opposite sex spend the night when the children are present.  My ex-husband now wants to move in with his girlfriend.  If he moves in with her, do I still have to send my children for visitation or can I withhold visitation until they get married?

Answer:  The old adage "two wrongs don't make a right" comes to mind.  If his girlfriend is there overnight when the children are there, he clearly is violating the Order and subject to being held in contempt of court.  However, if you refuse to send the kids and deny his visitation, you would be violating the Order as well and could possibly subject yourself to being held in contempt.  Your best course of action is to remind him about the prohibition on having overnight guests of the opposite sex and to immediately file a contempt action if he violates the Order.

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I previously posted how online resources can help parents better work together, which will benefit their children.  Online calendars, like Google Calendar, can help parents (whether living together or apart) keep track of their children's activity schedule, which can be hectic and change frequently.

Parents who are separated or divorced can track the child's physical custody (or visitation) schedule, as seen in this example.  Using the calendar in this manner helps both parents will know when the children will be with them on a given day, which helps them arrange transportation for the children's various activities.  The online calendar can also document which parent had the child on which day in case a dispute arises later.  As an added bonus, the calendars print out nicely (like in this sample).

Another (though less obvious) type of online resource that can assist separated parents are document / spreadsheet applications, such as Google Docs & Spreadsheets.  Parents have an obligation to pay certain expenses for their children, such as medical expenses that are not covered by insurance; day care costs; clothing and supplies; extracurricular activities; school lunches; etc.  It is surprising how often disputes arise because one parent claims that the other hasn't paid his/her share, only to have that parent claim that he/she never received the necessary information. 

By using an online spreadsheet (like this sample) to track this information, the parents can track the cost for any types of items, determine each parent's share, and show whether or not that amount has been paid.  Online documents could even be used as a type of journal to exchange necessary information in situations where the parents have severe communication problems.

By using these online resources, parents should be able to minimize or greatly reduce communication problems in the future.  Less friction between the parents should result in them having a better working relationship, which will certainly yield happier, better adjusted children.  Please share your thoughts on these (and other) online resources in the Comments section below.

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In child custody cases, parents often accuse each other of leaving the child inadequately supervised.  The allegations can be that the child was left home alone or left with someone who cannot properly supervise the child (such as relatives who are too old or too young).  Left Unsupervised: A Look at the Most Vulnerable Children, a 2003 study published by the non-profit research organization Child Trends addressed the large number of children are left without care and supervision by their parents.

Surprisingly, most States do not have regulations or laws about when a child is considered old enough to care for himself/herself or to care for other children.  Some states have guidelines or recommendations that are usually distributed through child protective services at the county level.  Similarly, reports of child neglect can be made to the S.C. Department of Social Services, though the response their tends to be very inconsistent and erratic.

As a practical matter, the difficulty in this area centers on the fact that every child is different.  Establishing a rule that a child must be X years old to stay home alone or supervise other children would not solve this problem, because some children are mature at an early age, some are immature, and many fall somewhere in the middle.  Wise parents base their decision about leaving his or her minor child unsupervised upon careful consideration of the child's maturity and emotional stability.

Family dynamics also must play a part in a parent's decisions about child care. Should a sibling be left in charge of younger siblings? If so, how old should that sibling be? How long should or could he/she be in charge? In some families, it would never work to leave one child in charge because of family dynamics, sibling rivalries, or other special challenges faced by one of more of the children.  The maturity and capabilities of the elected babysitter should be the controlling factors.

To help parents ensure that their children are safe, the University of Michigan Health System has compiled an excellent resource Babysitter Safety - What Parents and Sitters Need to Know.  This website includes the following types of information:  how to choose a babysitter, things to tell the sitter before you leave, information sitters should have, resources for sitters, the dangers of leaving kids home alone, information about problems associated with sibling sitters, and more.

Source:  "Home Alone: Child Care and Babysitter Issues" by Jeanne M. Hannah, published at her Updates in Michigan 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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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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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 widowed father lost his bid Monday to have the Supreme Court decide whether grandparents should have court-ordered visits with his son.

The justices refused to get involved in the dispute between Shane Fausey, a federal-prison guard in Pennsylvania, and his dead wife's mother.

Cheryl Hiller won rulings in Pennsylvania courts giving her regular visits with Fausey's son, Kaelen, over the father's objection.

Grandparents do not have to prove that being kept away would be harmful to their grandchildren in order to get court-ordered visitation, the Pennsylvania Supreme Court said.

Fausey said the court ruling violated his constitutional right to make parenting decisions.

The Supreme Court has never answered that constitutional question and state courts are divided on the issue. Twelve states prohibit courts from ordering grandparent visitation unless it can be shown that the child would be harmed by their absence, Fausey's lawyers said in court papers.

The case is Fausey v. Hiller, 06-863.

Source:  "Court Won't Review Grandparents Case" published in The New York Times.  Thanks to Grant D. Griffiths for his post about this article.

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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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At a quick glance, "internet visitation" might sound like a great idea -- a parent is able to see and speak with his/her child in situations where more traditional visitation is not possible. However, I would certainly hope that no one believes that talking through a computer is comparable to actual face to face time with a child. No matter how real the talking pictures may seem, it is not the same as being able to take your child to a ball game, attend a school play, or just watch your child play in a park. Further, there is a legitimate concern that judges might allow the allure of "internet visitation" to make them more likely to allow a parent to move with the child away from the other parent.

Grant D. Griffiths of the Kansas Family and Divorce Law Blog has a good discussion about his related concern. Robert Ambrogi's Lawsites blog also has a post on this topic, in which he provides a link to InternetVisitation.org, a comprehensive site about this concept.

Here is the Iowa Family Law blog's post on Wisconsin's "internet visitation" bill

The Wisconsin legislature passed this "internet visitation" bill into law yesterday. Allow commonly referred to as "internet visitation," the bill essentially codifies many standard decretal provisions that allow for telephone contact between the custodial and non-custodial parent. The following summary is from the Wisconsin Legislative Reference Bureau:


This bill provides that, if the court grants periods of physical placement to both parents, the court may grant to a parent a reasonable amount of electronic communication at reasonable hours during the other parent's periods of physical placement with the child. Electronic communication is defined as time during which a parent and his or her child communicate by using various types of communication tools, such as the telephone, electronic mail, instant messaging, and video conferencing or other wired or wireless technologies via the Internet. The basis for granting electronic communication is whether it is in the child's best interest and whether equipment for providing electronic communication is reasonably available to both parents. Electronic communication may be used only to supplement, and not as a substitute or replacement for, the physical placement that a parent has with the child. The bill provides that a parenting plan that a party files with the court before a pretrial conference when legal custody or physical placement is contested must include any electronic communication a parent is requesting and must indicate whether equipment for providing electronic communication is reasonably available to both parents. The bill also provides that, if a parent is proposing to move with the child and the other parent objects to the move, the court may not use the availability of electronic communication as a factor in support of a modification of physical placement or a refusal to prohibit the parent from moving with the child.

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Can a Court consider religious practices and training when the practices alienate a child from one parent? The Alabama Supreme Court addressed this issue in Snider v. Mashburn and found that the trial court was not precluded from considering the effect on the child of parenting practices simply because those practices were based on religious beliefs.

In this case, the mother remarried and submitted herself to the religious views and control of her new husband, who moved the family from Alabama to rural Indiana. The mother and step-father acted in ways that the trial court found had alienated the children from not only their father but from both parent's extended family. The mother claimed that the change in custody was improper, as the actions she and the step-father had taken were grounded in their religious beliefs.

The Court could not agree on whether the trial court had placed improper restrictions on the mother's religious instruction during visitation. The majority found that the order "when read fairly and objectively" merely prohibited the mother from disparaging the father in religious teaching and thus did not infringe on her free exercise of religion. The dissent disagreed and stressed the important role of religious freedom in the upbringing of children.

You can read more detail and analysis about this interesting decision in the Birmingham News article, the Family Law Prof Blog, and Lee's Divorce and Family Law Blog.

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Too many times, parents continue to fight with each other even after they have been to Court. One of the main problems faced by non-custodial parents is that of being denied their Court-ordered visitation with their children. Lee Borden, an attorney in Alabama, offers some good tips for parents faced with this situation. In addition to the suggestions Lee offers, I have found that it can be helpful to take a witness with you to verify the custodial parent's failure to comply with the Court Order. Also, if the exchange takes place at a business, it is a good idea to purchase a item of nominal value and obtain a receipt to verify that you were present at the designated place and time.

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