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

You hear your friends joke about it. You may take a ribbing at your bachelor/bachelorette party. Your parents may even ask about it in secret. It seems to be on everyone’s mind. The unspoken words that are on most engaged couples minds: “Prenuptial Agreement”. *GASP*

Often called a “pre-nup”, most people have a preconceived notion of what a prenuptial agreement is. It has the reputation of being a marriage killer. Many questions arise such as “Don’t they trust each other”? Or statements like, “Well that marriage won’t last—they got a pre-nup”. This is an entirely outdated way of thinking. There are many purposes of a prenuptial contract that this article will discuss.

Definitive Statistics?

We have all heard the statistic that 50% of marriages end in divorce. Are these statistics true? Where are these stats coming from? Is marriage not taken serious in this day and age? The bottom line is….it depends on many factors–sources of information, the regional area you reside in, economic situations, and many other circumstances. You can find an enormous amount of different statistics on any of these questions, but a better question would be “How many of these couples have a prenuptial agreement in place”? Or “How many of these couples planned for asset security with a prenuptial agreement”?

Purposes and Protections

There are many advantages for entering into a prenuptial contract before a marriage ceremony. The first reason is for the simple basis that couples do not want the law to dictate who gets what if the marriage dissolves. People want to feel in control of their personal assets as well as the splitting of their finances. A properly executed prenuptial agreement can safeguard assets, provide security to loved ones, keep a business in the family, or simplify divorce proceedings. Nowadays it is considered smart planning to have a sound pre-marriage agreement in place. This document should be as important as your Will, Power of Attorney, or any other legal document.

Second, a prenuptial agreement usually makes sense if a person remarries. Legal and monetary concerns are often very different than in one’s first marriage. You may have children from a previous marriage, support obligations, and own a home or other significant assets. In the event that something happens to you a signed pre-marriage agreement can make sure all assets are divided according to your requests.

Third, it can avoid Michigan’s Inheritance laws. Michigan law provides a spouse certain rights that can override the terms of a will. For example, the surviving spouse has an absolute right to elect against a will that does not provide for him or her and receive instead approximately one-fourth of the deceased spouse’s estate. These laws can get tricky, but an experienced Family Law attorney can help guide you through.

Fourth, if the person you are about to marry has substantial debt; it can protect you from the new spouse’s previous debt if the marriage falls apart. Many times a court does not determine which party owes what obligations when divorce proceedings occur. A proper prenuptial agreement can resolve these issues before they begin.

Finally, the most important reason for a prenuptial agreement may be to avoid alienating your children with a messy divorce. Many times parents, intentionally or not, end up using their children as leverage against each other. A sound agreement can help eliminate the factors involved with legal custody issues concerning children. Other grounds for a pre-nup include protecting earning potential or current earnings, ownership of a business, and saving legal costs. Plachta, Murphy & Associates always recommends counseling as an alternative to divorce. We do recognize, however, that some marriages ultimately dissolve and having a prenuptial agreement can help alleviate the stress that comes with this particular life transition.

Pre-nups are for Millionaires!

Wrong! Prenuptial agreements are for EVERYDAY people. They may be important to integrate into your estate plan. Family treasures or heirlooms that are near and dear to someone’s heart should stay in the correct family. Increasingly, middle class couples looking to start their life planning for their future have a reliable agreement in place as one of their important legal documents.

Caution Ahead?

The question on most people’s mind is “How do I approach my partner without coming off as someone who doesn’t think our marriage will last”? These are very cautious waters to navigate. Chances are your partner is thinking the very same thing. It is smart planning to have safeguards in place. Start talking about putting a prenuptial agreement in place as soon as wedding plans start to form. Being open and honest up front makes this touchy subject entirely manageable to not only approach, but get the ball rolling as well. Moreover, Plachta, Murphy & Associates can provide you with a checklist you may want to use as a discussion starter.

According to Family Law attorney Miles J. Murphy,

“Every effort should be made beforehand to prepare for a long lasting marriage, and that includes establishing mutually satisfactory rights regarding assets and debts to avoid future problems”.

Miles J. Murphy III, with the law firm of Plachta, Murphy & Associates, P.C. located in Grand Rapids, Michigan has more than 20 years of Family Law experience. He represents individuals and families in court throughout West Michigan. He is also a former member of the Kent County Family and Children’s Coordinating Council. Please feel free to visit us at www.pmalawpc.com, contact Miles directly at mmurphy@pmalawpc.com, or call 616-458-3994.

Related posts:

1. Prenuptial / Premarital Agreements
2. Prenuptial Agreements and the Amount of Support
3. Postmarital Agreements

A Qualified Domestic Relations Order or QDRO is a legal tool used to divide retirement accounts. Specifically, it is a court order signed by a judge, which directs the plan administrator of the husband’s or wife’s pension or 401(k) to distribute a portion of those funds to the other spouse. The transfer is accomplished without implicating any penalty or tax payment requirement.

If either spouse accumulated retirement benefits during the marriage, those benefits will be considered marital property (unless a valid prenuptial agreement indicates otherwise). Generally, unpaid retirement benefits accrued before the date of marriage will be considered non-marital or separate property. Non-marital property will not be divided in a divorce.

Likewise, social security benefits, federal railroad retirement benefits, and some government pensions are not considered distributable in a divorce action.

No QDRO is needed if the retirement savings are deposited in Individual Retirement Accounts (“IRAs”). If the parties’ retirement savings is held in a traditional pension (or “defined benefit plan”), a Employee Stock Option Plan (ESOP) or a 401(k) plan (or “defined contribution plan”), the law and the plan administrator will require a QDRO to accomplish the division of funds.

Due to federal regulation of pensions and 401(k)s, there are detailed requirements with which every QDRO must comply to be valid. With the assistance of a valid, approved QDRO, all or a portion of the retirement funds in a pension plan or 401(k) plan can be transferred from the plan participant spouse to the other spouse (now known as the “alternate payee”).

The receiving spouse will actually end up with his or her own separate account. If the participant spouse has a traditional pension, the plan administrator will establish a separate pension benefit for the receiving spouse. If the participant spouse has his or her retirement savings in a 401(k) plan, a portion of the plan funds will be rolled over into the receiving spouse’s IRA, with no tax and no penalty.

Many attorneys outsource the drafting of the QDRO because of the tedious requirements of federal law and of the various plan administrators. Before the judge signs the QDRO, the plan administrator will actually need to approve the language of the Order to ensure that it meets all of the plan’s requirements. If the QDRO doesn’t meet comply with certain laws, the participant spouse (the one who originally saved the money from his or her income) could be stuck with a tax liability on funds he or she transferred to an ex-spouse.

Related posts:

1. Dividing Retirement Funds
2. How are support orders enforced when the obligated spouse or parent moves out of state?
3. Domestic Partnership

A divorce proceeding is a stressful experience. It can be all the more distressing if you have hired the wrong lawyer for the case. You need to be careful while choosing a Suffolk County divorce attorney.

Many important things like the children’s custody rights, the property distribution, the alimony and spouse support are dependent on how the case is represented. This is what your attorney needs to know all about. Without an expert it is difficult to claim your rights and get them legally.

The first step to consider is the type of divorce case you are involved in. The common divorce cases are usually classified into three broad categories, negotiation cases, mediation cases and cases that involve divorce at a court of law.

You need to choose a lawyer who specializes in the type of divorce case that matches your case. Experience in handling a particular type of divorce case is necessary as it ensures the expertise of the attorney. Certain legal firms employ a number of divorce attorneys. If you opt for such a firm you can utilize the services of one of these attorneys.

It is a good idea to ask for referrals from your contacts. This helps in zeroing in on attorneys who have provided quality services to their clients. You can also have a look at the divorce attorneys working in Suffolk County from online sources.

The next step is to find at least five attorneys that you think would be suitable for the job. Make a note of the ways to contact them for consultation. But before you do so you need to know certain things. A little bit of ground work is necessary before you go for the consultation.

You need to give the lawyer a short synopsis of the marriage and the problems that led to the divorce. You also need to provide all details of the divorce proceeding. If you or your spouse has submitted any documents with the court you need to provide photocopies of those to the lawyer as well.

Many divorce lawyers offer the first consultation for free. However if you want to consult with an expert in the field you may have to pay for the initial consultation session as well. It is necessary to clarify this point before you go to meet the attorney.

Depending on how the case is presented, the New York court grants permanent or temporary separation. You need to discuss with your attorney which option you want and ask the case to be presented accordingly.

An experienced Suffolk County divorce attorney would be able to present your case in the right legal manner. With the help of the right lawyer maximizing or minimizing spousal support, getting the custody rights of children and tackling such aspects of the divorce becomes a hassle free experience.

An expert divorce attorney is well aware of the legal details and can approach your case in a specific manner. They are also capable of handling the paperwork associated with such a case. All you need to do is hire help from the right attorney and you need not bother about the case any more.

Mejias Milgrim Alvarado, P.C. is a Family Law Firm in Long Island, NY
http://www.mylongislandlawyers.com/

Related posts:

1. Nassau County Divorce Attorney: Specialists in Divorce Law
2. Finding Family Law & Divorce Help
3. Attorney-Client Retainer Agreements

In order to determine whether an award of California spousal support is appropriate the courts must consider the parties’ circumstances, looking to the standard of living established during the marriage, the needs of each party and the ability of one party to pay such support.

California state law requires a family court judge to consider 14 statutory factors when making a spousal support decision. While the statute outlines the factors and mandates that the court consider them, there is no test, calculation or formula to apply in determining the propriety of an award. Although each statutory factor must be considered, the court is not under any requirement to give each factor equal weight. As long as all factors are considered, the court maintains broad discretion in making its determination. [see: CA Family Code Section 4320-4326]

Statutory Factors

To reach a just and reasonable decision regarding California spousal support, courts must base their orders on the standard of living established during the marriage. They must then consider the following circumstances:

1. The extent to which the earning capacity of each party is sufficient to maintain the standard of living established during the marriage, taking into account all of the following:  (a)  The marketable skills of the supported party; the job market for those skills; the time and expenses required for the supported party to acquire the appropriate education or training to develop those skills; and the possible need for retraining or education to acquire other, more marketable skills or employment; (b)  The extent to which the supported party’s present or future earning capacity is impaired by periods of unemployment that were incurred during the marriage to permit the supported party to devote time to domestic duties.
2. The extent to which the supported party contributed to the attainment of an education, training, a career position, or a license by the supporting party.
3. The ability of the supporting party to pay spousal support, taking into account the supporting party’s earning capacity, earned and unearned income, assets, and standard of living.
4. The needs of each party based on the standard of living established during the marriage.
5. The obligations and assets, including the separate property, of each party.
6. The duration of the marriage.
7. The ability of the supported party to engage in gainful employment without unduly interfering with the interests of dependent children in the custody of the party.
8. The age and health of the parties.
9. Documented evidence of any history of domestic violence between the parties, including, but not limited to, consideration of emotional distress resulting from domestic violence perpetrated against the supported party by the supporting party, and consideration of any history of violence against the supporting party by the supported party.
10. The immediate and specific tax consequences to each party.
11. The balance of the hardships to each party.
12. The goal that the supported party shall be self-supporting within a reasonable period of time. Except in the case of a marriage of long duration, a “reasonable period of time” generally shall be one-half the length of the marriage. However, the court’s discretion to order support for a greater or lesser length of time is not limited, based on any of the other factors and the circumstances of the parties.
13. The criminal conviction of an abusive spouse shall be considered in making a reduction or elimination of a spousal support award.
14. Any other factors the court determines are just and equitable.

Spousal support can be modified and/or terminated after an initial order depending on the circumstances, the duration of the order or agreement of the parties.

Related posts:

1. 3 Biggest Myths About Spousal Support in California
2. Spousal Support / Alimony
3. California Divorce Laws

Nassau County is located in the State of New York. Divorce cases in Nassau County are therefore contested as per the divorce laws in the state by a Nassau County divorce attorney. The first requirement for the proper filing of a divorce case is that of residency. It is for the parties contesting the divorce to check whether their area of residence falls under the jurisdiction of the Supreme Court of the state. This is also a cause of concern for people who have just moved in to the state. The action of the annulment of a marriage can be initiated only when:

• The couple gets married in the state and one of them has been a resident of the state for a minimum period of a year before the filing of a divorce.
• Either or both the spouses have resided in New York as a married couple for a minimum one year period before the initiation of the divorce process.
• The cause of the divorce took place in the state and therefore either or both of the spouses are residents of the state at the time the case was filed.

As stated in the Consolidated Laws of New York- Domestic Relations Laws stated in Sections 230 and 231 of article 13, divorce cases can be filed if both the parties have stayed in the state for a minimum of a couple of years prior to the registration of the case. Divorce cases in Nassau County can be filed on various grounds. These include:

• Desertion for a continuous period of a year as per DRL §170.2
• Adultery as per DRL §170.4
• Harsh treatment meted out to any of the partners as per DRL §170.1
• Change of a separation judgment as per DRL §170.5

However, one cannot file a case for divorce on grounds of bad conduct. A case can only be filed in cases where it reaches an intolerable level of torture. No case for divorce in New York can be filed on grounds such as lack of communication between the couple, irreconcilable differences, no fault in particular, incompatibility or even by mutual consent. If the couple has a child, then ancillary issues crop up. The issues that are a cause of concern include the custody of the child, child support and child visitation.

All these grounds are applicable in case of a contested divorce where the validity of the grounds on which the divorce petition has been filed is examined by the jury and a decision on the case and subsequent equitable distribution of property is taken by the judge.

Some couples in Nassau County, New York opt for an uncontested divorce. In such a divorce case, the entire matter is sorted by the couple themselves and then the marital agreement papers are submitted to the court for approval. Uncontested divorce is less expensive and does not involve the legal hassles that are usually associated with a divorce procedure. All you need to do is to seek help from a Nassau County Divorce Attorney.

Related posts:

1. Know What to Look for in a Divorce Attorney
2. Attorney-Client Retainer Agreements
3. New York Divorce Laws

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 idea of divorce brings out strong emotions in most people. Feelings of failure, regret and fear all make the idea almost unbearable. On top of the pain of a broken marriage you now must deal with the emotional and financial stress of divorce. Many of the preconceived ideas we have about divorce focus on the few cases that actually go to trial. Over publicized celebrity divorces and TV shows rarely reflect the truth about a typical divorce. The truth is litigating a divorce can be outrageously expensive, but very few divorces will ever make it to trial.

The court does not have the time or resources to fully understand the intricacies of your family so they encourage private settlements. The court will likely order you to attend mediation, co-parenting classes and numerous hearings before you case may proceed to trial. Many people have embraced this trend toward private settlements and have hired attorneys and mediators to help them reach a settlement without court involvement. By choosing this path you can reduce the costs of your divorce and decide for yourself what best suits the needs of your family.

In recent years mediation has been used as an effective alternative to litigation in numerous areas of law including family law. I understand that during a divorce emotions are running high and sitting down face to face to resolve your marital issues may not be a pleasant idea. However a mediator can provide you with a safe environment to openly discuss your concerns and help you work toward a mutual agreement. In addition issues like child custody may further benefit from your willingness to mediate because your children are unique and decisions made by you can take into account their special needs.

Collaborative law offers another cost effective alternative to litigation. Collaborative law generally refers to settlement negotiations when both sides have agreed not to involve the court. With collaborative law each spouse may be represented by an attorney who negotiates on their behalf. The cost is higher than mediation but still may be significantly less expensive than litigating your divorce. Collaborative law may be appealing because each side may benefit from an attorney’s representation but it removes the threat and expense of litigation.

As a family law attorney I understand that there are many stresses put on families and marriages during these economically challenging times and often these stresses play a major factor in divorce. My goal in this article is to help those considering divorce and provide them with the information they need to resolve their family law issues. By fully exploring your options you can decide on an approach to divorce that fits your needs.

This article is meant only to provide information and is not intended as legal advice. If you have questions concerning your particular case you should make an appointment to talk to an attorney or mediator about your options.

Keith Dysart is a Family Law Attorney and Mediator in Santa Cruz, CA
http://www.dysartlawfirm.com/

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