Sharing Major Decisions

Legal custody gives you the right to make the major decisions that will affect your child’s life.  Joint legal custody is a situation in which both parents share responsibility for those major decisions. These might include decisions about education, health and dental care, emergency care, religious practices, extracurricular activities, and more.

Family law courts determine custody (both physical and legal) based upon the best interests of the child. Most courts will presume that both parents are willing and capable of working together to make major decisions for their child’s health, education and welfare. If one party or the other would rather have sole legal custody (sole decision-making authority), the onus will be on that party to demonstrate to the court the reasons that sole legal custody would be in the best interests of the child.

Parents with joint legal custody do not necessarily need to be friendly but should be able to set aside their differences to make good decisions for their child. If parents have an extraordinarily high level of conflict or refuse to communicate with one another, the court may award sole legal custody to one parent (but may still require consultation with the other parent before making a major decision). If abuse, neglect, or violence involving the child or spouse has occurred, courts are unlikely to award joint legal custody.

Day-to-Day Decisions

Even in situations of joint legal custody, day-to-day decisions will be made by the parent with whom the children are at the time the decision is to be made. For example, a father with weekend visitation can decide what the children will eat and wear during that weekend. Both parents should be able to make emergency medical decisions for the child without consulting with the other parent if time and medical needs require immediate decisions. (The other parent should be notified of the medical situation as soon as practical.)

Inability to Agree

If one parent excludes the other from the decision-making process in a joint legal custody arrangement, the other parent can file a motion to enforce, a motion for contempt and/or a motion to modify custody based upon the refusal to abide by the custody order.

In the event that parents with joint legal custody cannot agree on a major decision involving their child’s health, education or welfare, they can seek the assistance of a mediator – a neutral third-party who will help the parties reach an appropriate compromise or decision. In some jurisdictions, the parties may ask the judge to enter his or her order regarding the disputed issue after hearing evidence and argument. This can be extremely time-consuming and expensive however. In order to avoid those costs, the court may appoint a special master or arbitrator to hear the matter. Other jurisdictions might appoint a case manager to handle or decided day-to-day disagreements in high conflict cases.

Specificity in Parenting Agreement

Court orders of joint legal custody are generally fairly broadly written, referencing the vague notion of the child’s “health, education and welfare” or some similar language. Parties can use parenting or settlement agreements to attain more specificity in the responsibilities attendant to joint legal custody.

Some of the issues which might be covered are the requirement to notify the other parent of non-emergency medical care; of the identity of the child’s teachers, day care providers, and health care providers;  and of any school, church or extracurricular activities to which parents are invited.

Parents are urged to approach the major decisions affecting their child’s life with the child’s best interests in mind – and not whether mom or dad “wins” a disagreement. The most successful joint legal custody situations do not require overly friendly exes – just mature parents who put their child’s needs first.

Related posts:

1. Types of Child Custody
2. Child Custody and Visitation
3. Shared Physical Custody

An Order for Protection (OFP) is a restraining Order that is sought where abuse or threats of abuse are alleged. Often, such proceedings are improperly used as a vehicle when divorce is contemplated to have a spouse removed from the family home and/or to seek advantage in a subsequent custody proceeding.  OFP’s may be effective for up to two years and also place a Respondent at risk since any alleged violation of the OFP’s provisions can result in criminal charges for a violation of a restraining Order. Only the Respondent is limited by the OFP, whereas, the Petitioner is not. In other words, if an Order for Protection limits contact between the parties, only the Respondent is limited and is required to hang up the phone or leave the area if the Petitioner is present or even if the Petitioner seeks to make contact.

In addition to possible criminal ramifications for a violation, the impact and effect of an Order for Protection should not be underestimated with regard to other proceedings. The Minnesota custody statute 518.17 includes a rebutable presumption that joint legal or physical custody is not in the best interests of the child if domestic abuse, as defined in section 518B.01, has occurred between the parents. That provision is often interpreted by courts as meaning that the person who is found to have committed an act of abuse, should not be granted custody. Similarly, the Domestic Abuse Statute also states in Subd. 17 that a finding of domestic abuse may impact a custody proceeding stating – “in a subsequent custody proceeding the court must consider a finding in a proceeding under this chapter or under a similar law of another state that domestic abuse has occurred between the parties.” In other words, you cannot later contest that domestic abuse has occurred if the Court makes such a finding as part of an Order for Protection proceeding. This is significant because, an Order for Protection contested hearing must occur very quickly (usually within 7 to 14 days). This provides little time to contact potential witnesses or to prepare a defense. Moreover, the Courts time to hear such matters is often limited and, all too often, Judges will limit the time allowed for the hearing or the limit the testimony given by witnesses. Such proceedings stand in stark contrast to divorce and custody proceedings where, often, experts are employed to investigate the facts in the form of custody evaluators, Guardian Ad Litems or psychologists.  Investigations in custody and divorce cases may span months where in an Order for Protection, a dispositive hearing occurs within weeks. Clearly, professional, experienced and aggressive preparation for an Order for Protection proceeding is necessary.

The stakes are high when an Order for Protection is sought. Any defense against an Order for Protection begins with the definition of “abuse” under the statute.  “Domestic abuse” is physical harm, bodily injury, assault, or the infliction of fear of imminent physical harm, bodily injury or assault, between family or household members. Minn.Stat. § 518B.01, subd. 2(a) (1992).  “[I]nfliction of fear” in the statute implies that the legislature intended that there be some overt action to indicate that appellant intended to put respondent in fear of imminent physical harm. Kass v. Kass, 355 N.W.2d 335, 337 (Minn.App.1984) (emphasis in original). An oral threat, depending on the words and the circumstances, can also demonstrate “infliction of fear of imminent physical harm.” Hall v. Hall, 408 N.W.2d 626, 628-29 (Minn.App.1987), pet. for rev. denied (Minn. Aug. 19, 1987).  An Order for Protection also requires more than a showing of past abuse. The petitioner must also show “present intention to do harm or inflict fear of harm.” Andrasko v. Andrasko, 443 N.W.2d 228, 230 (Minn.App.1989) (citing Bjergum v. Bjergum, 392 N.W.2d 604, 606 (Minn.App.1986)).

It can be argued that a petition is deficient on its face if it includes no allegations of conduct that arise to the level indicated by the statute. Being “deficient on its face” means the action can be dismissed without further hearing. If there is a possibility that the allegations rise to the level of abuse in the statute, an evidentiary hearing or trial before a Judge is held. In that proceeding, any allegations of abuse are refuted. Often, seeking to expose an ulterior motive for the allegations (eg. Seeking advantage in custody proceedings or divorce) become part of the defense. In that defense, the timing of the allegations often comes under fire. Did the parties discuss divorce before the Order for Protection was filed? Did they argue about who would live in the house or who would have custody? Were any preparations made for divorce before the filing?

It is also important to seek a limitation on the evidence presented including limiting testimony on older alleged incidents of abuse and challenging any documentary evidence.

Allegations of abuse that are old have limited value and can often be excluded. The case law in Minnesota has been consistent that past allegations of abuse may be insufficient to show that there is any present intent to inflict imminent physical harm. In the case of Kass v, Kass, 355 N.W.2d 335 (Minn. Ap. 1984), the Court of Appeals reversed an Order for Protection where the last incident of abuse occurred four years prior. Similarly, in Bjergum v. Bjergum, 392 N.W.2d 604 (Minn.App. 1986) the court concluded that allegations of abuse two years old were too remote to show a present intent to inflict imminent physical harm or to create a reasonable fear of that harm.  If no contemporary incidents are alleged, the Order for Protection may be dismissed.

Documentary evidence such as police reports, emails and other communications can also be challenged as lacking proper foundation and including only partial communications that present the communications out of context. Carefully crafting such objections in advance is often critical to the outcome of the case.

Where there is significant risk that a court will find that domestic abuse has occurred, it is often a well reasoned strategy to agree to the entry of restraining provisions without any findings that abuse occurred. Though such orders still can be detrimental in a custody or divorce proceeding and may still be enforced through criminal charges for violations, they do not carry the presumptive impact of an Order with findings in a custody proceeding. In some case, even more favorable resolutions may be negotiated, such as agreeing to an entry of an interim order in a divorce case while dismissing the Order for Protection altogether. The viability of such resolutions may depend on the strength of your arguments and defenses. As a result, you should always consult with experienced legal counsel as soon as possible in such matters.

Maury D. Beaulier (http://www.divorceprofessionals.com/) is an attorney located in Minnesota who is highly regarding in cases of divorce and child custody. He has been described by clients as aggressive and affordable.

Related posts:

1. Modifying a Custody Order
2. How Can I Have My Child Support Order Modified?
3. Defense of Marriage Act (DOMA)

Shared physical custody (sometimes referred to as “equal” or “joint” physical custody) of children after a divorce has become more and more common over the last ten years or so. Still, joint physical custody is not generally the court’s default or most commonly-ordered custody determination.

Joint or shared physical custody means that each parent has significant periods of physical custody of the child – maybe not exactly 50/50 but something close to that ratio. The custodial schedule in such an arrangement might allow for monthly, weekly or other regular transitions between parents.

The courts will take a very close look at the total circumstances to determine if a shared custody arrangement would be in the best interest of the child. Historically, most courts felt that it was not in the best interest of a child to be alternated from parent to parent. The concern is that such a custody arrangement would be unstable and confusing for the child.

One circumstance when it is likely (but not required) that a judge would order shared physical custody is when the child’s parents are in agreement with the shared custody arrangement.

If  parents agree that shared physical custody is in the best interest of the child or children and they can successfully work out the details without much serious conflict, the court may very well defer to their parental judgment. Parents who can amicably reach such an accord are much more likely to make a shared custody situation workable for the family in the long run.

A detailed parenting agreement (sometimes known as a parenting plan) is essential to managing shared physical custody. Parents should consider school attendance areas (where will the children attend school now or in the future if they live in the different areas) and how to handle transportation to and from school and school activities. The agreement should probably even address responsibility for incidental expenses and how to deal with exchanges of clothing and other items.

In a shared custody situation, there may be an adjustment made to the child support calculation.You will need to consult the child support guidelines for your states.

The bottom line is that parents who want to split custody of the kids will need to work towards a negotiated settlement. Talk to your divorce attorney to see if this might be a realistic option for you.

Note that  joint legal custody is a separate custody concept, which grants parents shared authority to make decisions for the child, usually with respect to school, health and other life-impacting decisions – it is usually the presumed legal custody status for divorcing parents. An equal split of a child’s physical custody remains a bit more unusual. Read more about types of custody.

Related posts:

1. Types of Child Custody
2. Who Gets Custody?
3. Child Custody and Visitation

Jurisdiction

For every determination of child custody (both for original orders and subsequent modifications), the court must find that it meets the jurisdictional requirements of the Federal Parental Kidnapping Prevention Act (FPKPA) and the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). Both of these federal statutes help determine the proper forum for custody disputes if there is more than one state with an interest in the litigation.

Generally, the state that issued the initial custody order continues to have jurisdiction over that order for modification purposes. However, another state’s court might be allowed to modify the original order if neither the child nor a parent have a continued significant connection to the original state (i.e., they’ve moved away) or that state’s forum is more convenient that the original state’s forum for litigation.

Grounds For Modification Of Child Custody Orders

As noted above, the family court can modify an original custody and visitation order if it is in the best interests of the child. However, most state statutes require that the petitioning parent prove that a significant change of circumstances has occurred since the issuance of the original order such that the original order is no longer in the child’s best interests.

This requirement acts as a gatekeeper, theoretically prohibiting parties and courts from multiple custody modifications in the face of possibly trivial issues and supporting custodial stability. The courts of appeals rule that any custody modification without a showing of significant change in circumstances would be an abuse of discretion.

Commonly cited changes in circumstance include parent relocation, custodial interference or frustration, age of child, parent employment schedule change and, unfortunately, allegations of lack of fitness to appropriately parent. In the event that the moving parent alleges a threat to the child’s physical or emotional well-being, the court may appoint a guardian ad litem to investigate and represent the child in the proceedings.

Once the moving parent proves a significant and continuing change in circumstances, the court must still decide what is in the best interest of the child. The court will consider what is best for the child’s health, safety and welfare with a preference for regular (and frequent) contact with both parents.

Parental Relocation

main article: parental relocation

If the non-custodial parent relocates to a distance which precludes the practical exercise of original parenting plan, he or she may ask the court to modify the parenting schedule to accomodate longer (though less frequent) visits. Mid-week overnights or even regular weekends may no longer be feasible if the non-custodial parent moves far enough away. The court may order increased spring or summer vacation time instead.

If the custodial parent decides to relocate, he or she must receive consent from the non-custodial parent or approval by the court. Either situation will likely warrant a modification of the custody and visitation order. The court will again consider increasing vacation time visitation and may even order the custodial parent to  bear the child’s travel costs. [read more...]

Custodial Interference

main article: custodial interference

In some high-conflict cases, one parent may behave in such a manner towards the other that custody, visitation and communication with the child is severely impeded. This frustration of the other parent’s rights may provide adequate grounds for a change in custody. As noted above, the court gives preference to a parenting schedule which allows both parents regular and frequent contact with the child. From the court’s perspective, if one party denies the other those rights, it is ultimately the child who suffers. Therefore, it may be in the child’s best interest to modify the original custody order. [read more...]

Child’s Preference

As children get older, they often offer their own opinion and preference as to which parent they might like to reside. In no state does the court allow the child to choose. The final determination of custody (original or modified) always lies with the court – based on the best interest of the child.

However, most states have rules which establish an age at which the court is required to consider the child’s preferences. In some states, that age is designated specifically. In others, the court must determine if the child is of sufficient age and capacity to form an intelligent opinion.

Effect of Custody Modification on Child Support

In some instances, a modification of custody and visitation will necessitate the modification of the child support order as well. Clearly, if primary physical custody is changed from one parent to the other, the newly-designated custodial parent will now receive child support. If visitation is substantially increased or decreased, that change may require an adjustment to child support as well, depending on the child support calculations of each specific state.

Related posts:

1. How Can I Have My Child Support Order Modified?
2. Shared Physical Custody
3. Order for Protection & Its Defense

• The Alabama courts do not have online forms for child custody.ou

Alaska

• Modifying Child Custody and Child Support Forms (Alaska Court System)
  • Visitation Plan & Child Support Worksheet – [PDF] (Alaska Court System)
  • Model Parenting Agreement [PDF] (Alaska Court System)
• Custody Complaint Packet (Custody for Unmarried Parents) (Alaska Court System)
• Modifying Child Custody or Child Support Forms (Alaska Court System)

Arizona

• A Guide for Planning for Parenting Time [PDF] (Arizona Supreme Court)

Arkansas

• Domestic Relations Cover Sheet [PDF] (Arkansas Judiciary)
  • Instructions
• Court Forms (Arkansas Supreme Court)

California

• Custody & Visitation Forms (California Courts)
• Online Guardianship forms filing (Superior Court of California)

Colorado

• Allocation of Parental Responsibilities (Colorado Judicial Branch)
  • Parenting Plan – MS Word | PDF
  • Motion to Modify Parenting Time – MS Word | PDF
• Grandparent Visitation (Colorado Judicial Branch)

Connecticut

• Custody/Visitation Application [PDF] (Connecticut Judicial Branch)
• Motion for Modification [PDF] (Connecticut Judicial Branch)

Delaware

• Custody/Visitation Forms (Delaware State Courts)
  • Petition for Custody [PDF] (Delaware State Courts)
  • Petition for Visitation [PDF] (Delaware State Courts)
  • Petition For Guardianship of a Minor [PDF] (Delaware State Courts)
  • Consent To Termination and Transfer of Parental Rights [PDF] (Delaware State Courts)

District of Columbia

• Complaint for Custody and/or Access to Children [PDF] (D.C. Bar Association)
• Motion to Modify Custody and/or Access to Children [PDF] (D.C. Bar Association)
• Motion for Temporary Custody and/or Access to Children [PDF] (D.C. Bar Association)
• Sample Parenting Plan [PDF] (D.C. Bar Association)

Florida

• Family Law Financial Affidavit [PDF] (Florida Supreme Court)
• Family Law Financial Affidavit (Short Form) [PDF] (Florida Supreme Court)
• Uniform Child Custody Jurisdiction and Enforcement Affidavit [PDF] (Florida Supreme Court)
• Supplemental Petition to Modify Custody or Visitation and Other Relief [PDF] (Florida Supreme Court)
• Petition for Grandparent Visitation [PDF] (Florida Supreme Court)
• Department of Children and Family Services Release Form [PDF] (Sixth Judicial Circuit of Florida)

Georgia

• Visitation Schedule [PDF] (DeKalb County Superior Court)
• Modification of Visitation Packet (Fulton County Superior Court Family Division)

Hawaii

• Custody/Visitation Statement [PDF] (State of Hawaii Judiciary)
• Worksheet for Joint Custody/Extensive Visitation (with Child Support Guidelines Worksheet) [PDF] (State of Hawaii Judiciary)
• Guardianship Pro-Se Packet [PDF] (State of Hawaii Judiciary)

Idaho

• Instructions – Filing for Custody, Visitation & Support [PDF] (Idaho Supreme Court)
• Parenting Plan Agreement [PDF] (Idaho Supreme Court)
• Parenting Plan Agreement (3rd Judicial District)

Illinois

• Declaration Under Uniform Child Custody Jurisdiction Act [PDF] (Cook County Circuit Court)
• Request a Visitation Order [PDF] (Southern Illinois University School of Law)
• Enforce a Visitation Order [PDF] (Southern Illinois University School of Law)
• Modify a Visitation Order [PDF] (Southern Illinois University School of Law)
• Modify Custody Order [PDF] (Southern Illinois University School of Law)

Indiana

• Family Court Forms Packages (Indiana Supreme Court)
• Forms for Citizens (Indiana Judiciary)

Iowa

• The Iowa courts do not have online forms for child custody.

Kansas

• Court Forms (Shawnee County District Court)
  • Domestic Forms Packet [PDF]
• Court Forms (4th Judicial District)
  • Parenting Plan [PDF]
  • Motion to Enforce Visitation/Parenting Time [PDF]
• District Court Forms (Douglas County)
  • Temporary or Permanent Parenting Plan [PDF]
  • Motion to Appear and Show Cause for Failure to Comply with Visitation Order [PDF]

Kentucky

• Mediation and Family Court Forms (Kentucky Court of Justice)
  • Petition for Appointment of Guardian/Conservator for Minor [PDF]
  • Petition for Appointment as Guardian/Conservator for Minor [PDF]

Louisiana

• Family Court Forms (E. Baton Rouge)

Maine

• CV-063 Request for Mediation [PDF] (Pine Tree Legal Assistance/Maine Judicial Branch )
• Unmarried Parents’ Rights and Responsibilities Court Forms (Pine Tree Legal Assistance/Maine Judicial Branch )

Maryland

• Custody/Visitation packets (Maryland Judiciary)
  • Visitation with Children [PDF]
  • Changing Custody or Visitation [PDF]

Massachusetts

• Child Custody Forms (Massachusetts Trial Court Law Libraries)

Michigan

• Domestic Relations Forms (Michigan State Court Administrative Office)
  • Michigan Parenting Time Guideline [PDF] (State Court Admin. Office)

Minnesota

• Family Court Forms (Fourth Judicial District)
• Court Forms (Minnesota Judicial Branch)

Mississippi

• Visitation Guidelines [PDF] (Fifteenth Chancery Court District)

Missouri

• Family Access (Custody/Visitation) Forms (Missouri Judiciary)

Montana

• Changing Your Parenting Plan [MS Word] (Montana Courts)
• How to File for a Permanent Parenting Plan (Montana Courts)

Nebraska

• Nebraska Court Forms (Nebraska Supreme Court)

Nevada

• Petition to Establish Custody and Visitation [PDF] (Second Judicial District Court)
• Petition to Establish Visitation Only [PDF] (Second Judicial District Court)

New Hampshire

• Family Law Forms (New Hampshire Superior Court)
  • Petition for Custody and Support [PDF]

New Jersey

• How To Ask The Court To Change Or Enforce An Order In Your Case [PDF] (New Jersey Judiciary)

New Mexico

• Parenting Plan And Child Support Obligation (New Mexico Supreme Court)
• Nomination of Kinship Guardian (New Mexico Supreme Court)
• Petition for Grandparent Visitation [PDF] (First Judicial District Court)

New York

• Family Court Forms (New York Courts)
• Parenting Plan [PDF] (Supreme Court of the State of New York)

North Carolina

• SelfServe Center Forms (26th Judicial District)
  • Introduction to Custody, Visitation & Support [PDF]
  • Custody or Visitation Instructions [PDF]
  • Custody or Visitation Flowchart [PDF]
  • Custody, Visitation and Support Complaint [PDF]

North Dakota

• Self Represented Visitation Assistance Forms (North Dakota Supreme Court)
  • Instructions
  • Motion, Brief and Notice of Motion for Visitation Assistance [PDF] (North Dakota Supreme Court)

Ohio

• Domestic Relations Court Forms (Clermont County)
  • Shared Parenting Plan [PDF]

Oklahoma

• Forms (Oklahoma Supreme Court Network):
  • Guardianship Review Form [MS DOC]
  • Plan for the Care of Ward [MS DOC]
  • Motion for Inclusion in Child Visitation Registry [MS DOC]
  • Motion for Enforcement of Non-Custodial Parent Visitation Rights [MS DOC]

Oregon

• Parenting Time/Plan Enforcement (Office of the Oregon State Court Administrator )
• Custody Enforcement (Office of the Oregon State Court Administrator )
• Registration of Out-of-State Child Custody and Parenting Time Judgments (Office of the Oregon State Court Administrator )

Pennsylvania

• Civil Forms (Warren County)
  • Complaint for Custody, Partial Custody or Visitation [PDF]
  • Petition to Modify Custody, Partial Custody or Visitation [PDF]
• Family Court Forms (Fifth Judicial District of Pennsylvania)
  • Complaint for Primary Custody (II-1) [PDF]
  • Complaint for Shared Custody (II-2) [PDF]

Rhode Island

• Family Court Forms (Judiciary of Rhode Island)

South Carolina

• Non-Custodial Parent’s Application for Child Support Services [PDF] (South Carolina Department of Social Services)
• Affidavit for Citation for Contempt of Court (Visitation – For use by Custodial Parent) [PDF] (South Carolina Judicial Department)
• Affidavit for Citation for Contempt of Court (Visitation – For use by Non-Custodial Parent) [PDF] (South Carolina Judicial Department)

South Dakota

• Visitation Guidelines (South Dakota Unified Judicial System)

Tennessee

• Temporary Parenting Plan [PDF] (Shelby County Chancery Court)
  • Temporary Parenting Plan [MS DOC] (Tennessee Bar Association)
• Permanent Parenting Plan [PDF] (Shelby County Chancery Court)
  • Parenting Plan [MS DOC] (Tennessee Bar Association)

Texas

• Domestic Relations Forms (Travis County Law Library)

Utah

• Utah State Court Forms (Utah State Courts)
  • Split Custody Worksheet and Instructions [PDF]
  • Sole Custody Worksheet and Instructions [PDF]
  • Joint Physical Custody Worksheet and Instructions [PDF]

Vermont

• Affidavit of Child Custody [PDF] (Vermont Judiciary)

Virginia

• Pro Se Divorce Brochure [PDF] (Circuit Court of Fairfax County)
  • Agreement to Mediate [PDF] (Virginia Judiciary)

Washington

• Domestic Relations Forms (Washington Courts)
  • Parenting Plan [PDF]
  • Petition for Modification/Adjustment of Custody Decree/Parenting Plan/Residential Schedule [PDF]

West Virginia

• Family Court Forms (West Virginia Supreme Court of Appeals)
  • Family Court Parenting Plan | Parenting Plan Instructions [PDF]

Wisconsin

• Proposed Parenting Plan [PDF] (Waukesha County)
• Visitation Rights of Other Persons [PDF] (Waukesha County)

Wyoming

• Child Custody and Modification packet [PDF] (Supreme Court of the State of Wyoming)

Related posts:

1. Do I Have To Keep Paying Child Support if My Child Is Emancipated By the Court?
2. Book Review: Your Right to Child Custody, Visitation and Support
3. Child Custody and Visitation

If you are a grandparent or caretaker of a child, you may be faced with a challenge to your right to see that child at some time in the future. This often happens when the child’s parents divorce or when one parent dies and the grandparents and caretakers are sometimes left out of the visitation loop.

However, all states have some sort of grandparent visitation statute to provide legitimate parties a means of claiming a legal right to visitation with the child in question.

These statutes are restrictive in some states, providing only for grandparents and not for other caretakers such as stepparents and foster parents. In addition, some statutes limit court-ordered access to situations when the nuclear family unit has been dissolved, such as in the case of divorce or death.

Other states, however, offer more permissive statutes that include secondary caretakers in addition to grandparents and also eliminate the requirement of the dissolution of the family unit before a claim can be made.

In all cases, the “best interests of the child” is the standard used to determine whether such visitation should be granted.

This type of so-called “third party” visitation has been challenged by parents claiming that it violates their natural right to raise their child as they see fit.

In 2000, the U.S. Supreme Court considered a Washington case called Troxel v. Granville, 530 U.S. 57 (2000). In that case, the grandparents (parents of the deceased father of the children) sued to have certain visitation rights – even though the mother had not denied visitation, instead suggesting slightly less visitation time. The U.S. Supreme Court found that the Washington visitation statute unconstitutionally infringed on parents’ fundamental right to rear their children as they see fit. The justices acknowledged that grandparent visitation could be important to a child but decided that the language of the Washington statute was just too broad and that some deference has to be given to the child-rearing decisions of a fit parent.

Following the Troxel case and state-level litigation that followed, several states had to revise their grandparent visitation statutes to make sure they were enforceable.

In order to make a claim for grandparent or caretaker visition, you will need to petition the family court and request a hearing. The court would then consider whether or not your request is in the best interests of the child after considering all of the circumstances and evidence.

To determine whether or not you can make such a claim, you need to consult an attorney and/or your state’s laws regarding grandparent and caretaker visitation.

Related posts:

1. The Rights of the Second Parent
2. Book Review: Unmarried Parents’ Rights
3. Legal Rights And Benefits of Marriage

Even despite the most stringent orders, many parents still face the frustrating and frightening experience of their children being kidnapped by an ex-spouse. Such a situation becomes even more dismaying when that spouse takes the child out of the country, creating a judicial nightmare in securing the child’s return.

To address the rising number of international child abductions, several countries united together and signed a treaty known as The Hague Convention on the Civil Aspects of International Child Abduction.

The Hague Convention basically provides a venue for one parent to solicit the return of their child when the child has been wrongfully taken out of the country. Under this treaty, each “contracting state” has set up a Central Authority (or command post) that acts as the contact point for other countries seeking relief. Once an application has been made from the child’s home country (usually by the complaining parent), the Central Authority in the suspected country must do everything in its power to determine the whereabouts of the child and secure his voluntary return.

This treaty can be enacted even if there is nocustody order in effect. A cause of action may be brought as long as:

• The petitioning parent had custody of the child (sole or joint ) either by a custody order or operation of the law, known as du jure. This means that the petitioning parent had been acting in a custodial manner or that custody was assumed and agreed to in practice;
• The child was habitually a resident of the country from where he was abducted; and
• At the time of the wrongful removal, the petitioning parent was exercising his or her custodial rights.

The Hague Convention provides some defenses to such a petition including the claim that the petitioning parent knew the child’s whereabouts and did not act for more than a year. In addition, the court may refuse to return the child if the petitioning parent was not exercising his or her custodial rights voluntarily or if returning the child would causephysical or emotional harm to the child. And if the child has reached an age of reasonable maturity, the child’s documented desire to stay in the new country can also be enough to have the petition for return denied.

These are what is known as “affirmative defenses”, meaning that it is the responsibility of the abducting parent to prove their claim of defense.

The Hague Convention only works when both the residence country and the country to which the child was taken have agreed to the treaty. It can also not be used on children that are 16 years of age or older.

This treaty is not designed to settle custody disputes but rather to keep the dispute in the residence country where both parents have a opportunity to exercise their custodial rights.

To learn more about whether the Hague Convention applies for you, and how to enact it, contact a Family Law Attorney in your area.

Related posts:

1. Custodial Interference
2. Can I Claim My Child as a Dependent Now That I'm Divorced or Separated?
3. What Happens When The Custodial Parent Moves Away?

Custodial interference (also called custody interference) refers to the taking or keeping of a child from the custodial parent with the intent to interfere with that parent’s rightful physical custody.

In other words, when a non-custodial parent does not return his or her child to the custodial parent from a scheduled visitation, or when the custodial parent refuses to allow visitation with the non-custodial parent in violation of the court’s order. It can also occur when the parents have joint physical custody – in this case, even though the parent taking the child has physical custody rights to the child, he or she is still interfering with the other parent’s scheduled custodial rights.

Charging a Parent with Custodial Interference

Custodial interference is a crime in most states and can be punishable by jail time. Depending on your state’s laws, different circumstances can bring varying charges and different penalties. For example, some states treat custodial interference as a misdemeanor unless the child was removed out of state. In that case, the charge becomes a felony. Other states have additional penal provisions for taking the child out of the country. In certain situations, custodial interference can escalate to a state or federal charge of parental kidnapping.

Defending Against Charges

Many states also allow certain defenses to custodial interference. Imminent harm, for example, is a commonly accepted defense. In this instance, the parent removing the child claims to have interfered with normal custody rules because he or she fears for the child’s safety. Other defenses can include mutual consent and the belief that, if he or she did not take the child, the other parent would remove the child from the court’s jurisdiction (i.e. out of state or out of the country). Failure to receive court-ordered child support is not usually a valid defense against a custodial interference charge.

Some states also recognize the child’s wishes, typically when the child is at least 14 years of age and may waive the charge of custodial interference if the child states that he or she did not return to the other parent on their own accord.

Still other states will not apply the interference charge if the child is sixteen years of age or older and there are yet other states that will not file charges if the child is returned before the arrest warrant is issued.

Related posts:

1. What Happens When The Custodial Parent Moves Away?
2. Parental Alienation
3. Modifying a Custody Order

To satisy the first requirement, the party seeking presumed parent status must have physically taken the child into his home. There is no hard and fast rule (known as a “bright line rule” in law) on how many times the child was in the party’s home or for what length of time. Each determination will be made by the court on a case by case basis.

However, the court will take into consideration whether the party’s efforts to take the child into his/her home were thwarted by the other parent. In one example, the court awarded a man presumed parent status where he attempted several times to bring the child into his home, but the mother always refused his requests.

To satisfy the second requirement, a party must openly hold the child out as his/her own. For example, sending out birth announcements, referring to the child as “son” or “daughter” to others, and including the child in a will or other estate planning documents.

The determination of presumed parent is very fact intensive so be prepared to provide detailed evidence to the court.

Related posts:

1. Types of Child Custody
2. Child Custody and Visitation
3. Children, Custody, Child Support, and Other Parenting Issues

When significant custody issues are in dispute during a divorce the court may order a court appointed expert to conduct a custody evaluation. The court often relies solely on the evaluator’s report when making its custody determination. The custody evaluation will consist of interviews with both parents and the children, and may also consist of one or more home visits. Here are some tips to prepare for a custody evaluation:

Tip #1: During the interview with the custody evaluator always refer to the children as “our” children not “my” children. By using the term “our” children you will appear less alienating and more respectful of the other parent’s relationship with the children.

Tip #2: If you are having a home visit be sure that pictures are displayed of the children with the other parent. A good room to place this picture is in the child’s bedroom. Of course the hope is that these pictures are already close by. Placing the pictures more prominently can be a good way to emphasize your acceptance of the children’s relationship with the other parent.

Tip #3: During the interview with the evaluator focus on the children. Try not to discuss too many personal issues between you and the other parent unless the evaluator specifically asks you. Never bad mouth the other parent or call them names during your interview. In fact, if you have a few nice things to say about the other parent, do so. You will appear to be the more reasonable and cooperative parent.

Related posts:

1. Tips for Strengthening A Blended Family
2. Types of Child Custody
3. Child Custody and Visitation