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Custody Evaluations

Sun, 16 Nov 2008 19:07:25 GMT

It is not uncommon for divorced or separated parents to disagree over which parent should have custody of their children. When parents are fighting over custody of their children, one parent or the other may ask the judge to order a custody evaluation. The results of a custody evaluation can give the judge important information about the parents and the children, and also can make a recommendation as to what custody and visitation arrangements would be in the best interest of the children.

Custody evaluations are typically performed by professionals that routinely evaluate families and children for this purpose. Many custody evaluators are psychiatrists, psychologists, or other mental health professionals, who have expertise in treating families and children. Usually, either the two parents will come to an agreement as to which custody evaluator to choose, or, if you cannot agree, the court will order a certain person to perform the custody evaluation.

If you are ordered to participate in a custody evaluation, you can expect that the custody evaluator will want to interview you both individually and with your children, any persons who are living in your home, such as your new spouse or boyfriend, and your children by themselves. The custody evaluator will conduct similar interviews with your children’s other parent, and any other persons living in his or her home, as well. It is also common for a custody evaluator to make contact with other persons who have frequent contact with your children, such as school teachers, daycare providers, and counselors. Typically, you and the other parent will sign releases of information that will permit these other persons to speak freely with the custody evaluator about your children.

The custody evaluator is also likely to gather additional information about your family from resources other than interviews. You often will have to complete a lengthy questionnaire regarding your childhood, medical condition, work history, and criminal background, among other things. It is also common for you and your child’s other parent, and perhaps even your children, to undergo personality and/or psychological testing. All of this information is geared toward the custody evaluator’s ability to make a recommendation to the judge that is in the best interest of your children.

Because the information gathered by the custody evaluator is so extensive, it is important to be honest with him or her. If you are less than truthful with the custody evaluator, he or she is likely to discover the truth. Likewise, try to refrain from speaking negatively about your children’s other parent. While it is important that the custody evaluator know the reasons that you believe the children would be better off in your custody, it is also important that you not be overly critical or negative about the other parent.

You should also keep in mind that custody evaluations can be very expensive, often costing several thousand dollars, as well as very stressful. Unfortunately, there is nothing easy about revealing intimate details of your life to a stranger, and paying him or her a lot of money in order to do so. Nonetheless, the custody evaluator is often a crucial tool for the judge – and you - in resolving your custody fight.

What is a guardian ad litem?

Sun, 16 Nov 2008 20:44:22 GMT

A guardian ad litem is appointed by a court in order to represent the best interests of the child. Either parent can request that a guardian ad litem be appointed for their child, or the court can appoint a guardian ad litem for the child. While some states require that a guardian ad litem be an attorney, other states’ courts will appoint guardian ad litems who are not attorneys, but who have specialized training. A guardian ad litem’s role is to investigate and recommend the child custody and/or visitation arrangements that are in the best interest of the child.

The investigation performed by a guardian ad litem is typically not as extensive as that which would be performed by a custody evaluator, but will involve interviews with the parents, children, and any other relevant family members, caregivers, or teachers that have frequent contact with the child. The guardian ad litem is also likely to investigate the criminal background of both parents, as well as information related to any complaints that the parents have about one another. For instance, if mother is complaining that father should not visit with the children overnight because he is using drugs, the guardian ad litem can recommend that the court order drug testing for one or both parents. Likewise, if one parent is complaining that the other parent does not ensure that the child’s schoolwork is completed, or that the child gets to school on time, the guardian ad litem is likely to look at the child’s grade reports and attendance records, and perhaps follow up with school teachers or counselors.

Contact between a child and a guardian ad litem often depends on the age of the child. A guardian ad litem is more likely to simply observe younger children with each of their parents. On the other hand, older children will have the opportunity to speak with a guardian ad litem about their concerns, wants, and needs. While a guardian ad litem advocates for the children’s best interest, however, a guardian ad litem does not necessarily advocate for what the children want, which can be a major difference.

A guardian ad litem also has the power to submit written information to the court, make home visits, and subpoena and question witnesses during court hearings. In any child custody or visitation hearing, the guardian ad litem is an important witness, and will typically submit a written recommendation to the court prior to the hearing for everyone’s review. While the court is not required to follow the recommendation of the guardian ad litem, his or her recommendation can often carry a lot of weight with the judge.

Although a guardian ad litem is appointed by the court, the court may order one or both parents to contribute to the cost of the guardian ad litem, which may be several hundred dollars. The cost for a guardian ad litem, however, is much less than would be paid for a custody evaluator.

How do I decide if I need a lawyer in a custody case?

Sun, 16 Nov 2008 20:49:31 GMT

Although hiring a good lawyer can be quite expensive, it is money well spent when it comes to child custody cases. A child custody battle usually occurs when parents separate or divorce, or when something happens to cause one parent to believe that the custodial parent is no longer the best parent to care for the children. Whatever the situation may be, it is important to take a child custody case seriously, and you can best do that by hiring an effective lawyer who has handled many child custody cases.

First, custody cases often involve a lot of information about you, your child’s other parent, and your child. Almost every detail about you and your family can come into play in a child custody case, as the judge’s goal is to decide what custody and visitation arrangement is in your child’s best interest. An attorney can help guide you through this information-gathering process, which is commonly known as discovery, and ensure that you are not revealing information that is not relevant to your custody case. An attorney can also help you better organize the information and present it in a format that is most favorable to you.

Next, an attorney can give you advice about how to best conduct yourself during a child custody case, which is likely to be very stressful and emotionally draining. Contact with your child’s other parent can become very strained, and the case is likely to also impact your child, which can make parenting more difficult. An attorney can advise you about taking actions that might be detrimental to your case. For instance, if you are wondering if it is okay to move out of state with your child in order to live with the boyfriend that you met online, your attorney can advise you whether doing so would negatively affect your custody case. Having an attorney on your side gives you a resource for asking questions before you take any actions that could cause the judge to view you negatively as a parent.

Furthermore, an attorney often can give you valuable advice about the judge, the custody evaluator, and the other attorney that can help you be better prepared for your case. For instance, if the other attorney is very aggressive in court, your attorney can prepare you for the type and intensity of questions that you might face from the other attorney during a court hearing. Your attorney also can advise you about whether you should spend the money on a custody evaluator or guardian ad litem, or whether you should take other important steps in order to strengthen your custody case.

Finally, an attorney is the best person to represent you, and your child’s interests, in court. If you are facing an extensive custody trial, and the other parent has hired an attorney, you will be at an extreme disadvantage if you attempt to represent yourself. Without specialized knowledge of the law, including the rules of evidence, you are unlikely to be able to adequately present your case to the court, which endangers your ability to obtain or maintain custody of your child.

An Explanation of Reasonable Visitation

Tue, 18 Nov 2008 02:11:06 GMT

“Reasonable visitation” is the term that many courts across the country use to give the non-custodial parent rights to visit with their children. The goal of using a vague as opposed to a specific visitation order is to promote cooperation between parents in setting up a visitation schedule. Another advantage to reasonable visitation is that it allows flexibility for the schedules of both parents and children. If the non-custodial parent works a different schedule every week, for instance, it may be difficult to set up a consistent visitation time. However, under a reasonable visitation order, the parents can work together to agree that the non-custodial parent should have the children on his or her days off work, or otherwise according to his or her work schedule.

Additionally, many states have developed uniform visitation or parenting time guidelines in order to help parents define reasonable visitation and set up a workable visitation schedule for their child. These guidelines tend to set forth a very detailed visitation schedule that clearly identifies the times and dates for regular weekly visitation, as well as for special visitation times such as during summer break, birthdays, and holidays. If parents cannot agree on how to divide the child’s Christmas break from school, for instance, then the parents can look to their state’s guidelines to see how it should be divided. The overall point of these guidelines, too, is to promote agreement and cooperation between parents as they work out a visitation schedule for their child. The courts in most states that have these guidelines will generally order the parents to comply with the guidelines, unless there is some reason that the guidelines are unworkable or inappropriate for a particular child. For example, if one parent is incarcerated, then standard state visitation guidelines simply will not work for that child.

In the event the parents are unable to either work out a suitable agreement on visitation or abide by the uniform visitation guidelines, it is up to the court to issue a visitation order or schedule for the child. A visitation order can range from fairly simple, such as deciding who is responsible for picking up and/or dropping off the children for visitation purposes, to very complex, such as setting forth dates and times of visitation in great detail. Whatever the order contains, however, it is important to remember that it is a court order that you should not violate. While there may be an emergency situation that alters a visitation schedule on an isolated occasion, you should generally stick to whatever the court has ordered in terms of visitation. If you don’t, then you can face serious consequences for failing to follow a court order.

What factors does the judge consider when he or she makes a decision about child custody?

Sat, 22 Nov 2008 01:46:13 GMT

In most states, the usual standard that judges use in deciding child custody is the “best interests of the child”. Depending on the state you’re in, the factors that actually make up the “best interests of the child” standard may vary. There is typically no one factor that guides a judge’s custody decision; rather, the judge makes a child custody decision based on a combination of several different factors that contribute to the “best interests of the child”.

Common factors that a judge considers in making a custody decision include:

the child’s age and sex
the parent’s lifestyle, stability, and health
the parent’s ability to financially provide basic necessities for the child
the child’s current living situation and routine, which might include child care providers, school, and extracurricular activities
the relationship between the child and parent
the child’s preference, once the child is above a certain age, which can vary from about 12 to 14 years of age
any special emotional or medical needs of the child
the emotional, social, and emotional impact on the child if a custody change occurred

It is possible that the judge might give more weight to one or more factors, depending in the circumstances of your case. For example, if father’s primary reason for wanting custody is that mother has moved ten times in the last two years, and the child has been repeatedly moved from school to school, thus affecting his academic performance, then the judge would definitely be evaluating factors such as mother’s lifestyle and stability, the impact of a change on the child, and the child’s educational situation.

Although many people think that once a child reaches a certain age, he or she can decide where to live, this is typically not true. Some states place more emphasis on a child’s custody preference than others, but it is extraordinarily rare that a judge would simply allow the child to make the decision as to where to live. Rather, a child’s preferences are simply one of many factors that the judge must take into account in making a custody determination. Furthermore, the weight that the judge gives to the child’s preferences may depend in large part on the child’s age. While a six-year-old may not be able to articulate a logical reason for his preference, a fifteen-year-old’s wishes may carry greater weight in a judge’s custody decision, depending on the circumstances and the reasons for the child’s preference.

While a parent’s gender historically was taken into account in some states, in terms of a preference for awarding custody of young children, in particular, to their mothers, no such preference exists today. A judge will assess the fitness of both parents to be the child’s custodian, without regard to the parent’s gender.

Finally, a judge often will call on a guardian ad litem, social worker, custody evaluator, or a mental health professional to investigate and evaluate the family in order to make a custody recommendation to the court. Because a judge is not an expert in the matter of child custody, he or she will often rely on these experts who not only specialized knowledge in the field, but also who have worked more closely with the family members, observed their interactions, and gathered relevant information.

What can I do if my ex-spouse wont let me see our child?

Sat, 22 Nov 2008 01:52:32 GMT

There may be nothing more frustrating then trying to see your child, only to have your ex-spouse prevent you from doing so. Due to the anger and hurt that accompanies the break up of any relationship, it is not uncommon for one or both parents to withhold visitation as a means of getting back at the other parent for something that he or she has done in the past. Not only does this sort of behavior violate the court’s orders on visitation, but, worst of all, it negatively impacts the child who is stuck in the middle of the dispute.

The first step in working out child visitation issues is to try and talk to your spouse about your visitation rights. If you approach the issue calmly and logically, you may be able to come to a truce with your ex-spouse, at least with regard to visitation, without having to go back to court.

Also, keep in mind that problems with visitation may be compounded by a lack of specifics in the visitation order. After all, if you are entitled to reasonable visitation with your child, who gets to decide what is reasonable? In this case, it may be hard to prove that your ex-spouse violated a court order, especially if the order isn’t very specific or clear to begin with. Therefore, the solution may be to ask the court for a more specific visitation order that resolves the problems that you are having with visitation. For example, if the argument between you and your ex-spouse always focuses on the time that the child should be returned to the custodial parent before bedtime on Sunday nights, then having the court issue an order setting that time for the parents, or coming to a set agreement with your ex-spouse about the time would probably resolve the issue.

If talking to your spouse or reaching an agreement on any issue is next to impossible at this point, then it is time to turn to the court system for help. As is the case for anyone who violates a court order, your ex-spouse can be held accountable for failing to comply with the court’s visitation order. You or your lawyer can easily file documents with the court describing how your ex-spouse has violated the visitation order, and asking that the order be enforced.

Possible remedies for violating a visitation order, or any court order, may include an award of attorneys’ fees, a finding of contempt of court, an order for “make-up” visitation for visitation time that was missed, or even a jail sentence in some extreme circumstances.

Due to the importance of the enforcing your right to visit with your child, you should strongly consider consulting an attorney for help. Not only can your attorney file the appropriate documents with the court and effectively present your case to the court, but he or she may be able to work out an agreement with your ex-spouse in order to avoid going to court altogether. Sometimes, even when ex-spouses cannot reach an agreement, having an attorney involved in order to ease communication problems can help resolve the problem.

What should I do if I am dissatisfied with my lawyer in my custody case?

Mon, 24 Nov 2008 02:35:21 GMT

It is not uncommon, particularly in the area of family law, for a client to become frustrated and unhappy with his or her lawyer. After all, family law cases, and custody cases in particular, tend to be highly stressful, emotional, prolonged proceedings that are generally not a whole lot of fun for all parties involved. The negativity in such cases can be overwhelming, to the point that you might think that everyone is against you, including the one person who is supposed to be on your side – your lawyer.

If you become dissatisfied with your lawyer, the first thing that you should do is attempt to resolve your feelings directly with your lawyer. If you are feeling let down because the judge didn’t order what you expected, or if you are angry that a hearing didn’t go in your favor, it is important to have your lawyer explain the outcome to you. While you still might be upset with the outcome, you should at least give your lawyer a chance to explain why things happened as they did. There may be very valid reasons that things did not go in your favor, or to your satisfaction; while these reasons might be hard to stomach in some instances, they still may be weighty enough to have influenced the outcome of your case. The best way to discover the reasons behind the outcome, and the actions that you can take in order to avoid such a result in the future, is to simply ask your lawyer for an explanation.

There are some situations, however, when the lawyer -client relationship breaks down to the point that you can no longer have a civil conversation with your lawyer, or where you are still dissatisfied with the outcome of your case, despite your lawyer‘s explanations. In this case, if you believe that your lawyer has made a mistake or acted unethically with regard to your case, then you can report your lawyer’s behavior to your state agency that monitors the conduct of lawyers. You generally will need to file your complaint with that agency in writing; every state has different procedures for handling of such complaints.

Making a formal complaint against a lawyer can have very serious repercussions for the lawyer. In cases of true misconduct, the state agency governing lawyers’ conduct has various options for disciplining lawyers, including reprimands, suspensions, and even revocation of licenses to practice law in extreme circumstances. Therefore, you need to ensure that you really have a valid complaint against your lawyer before you file a formal complaint against him or her.

For instance, you need to ask yourself why you are so dissatisfied. The outcome of your custody case may or may not have had anything to do with the actions that your lawyer took, or didn’t take. Were your expectations too high? Did the lawyer act as a reasonable lawyer would in your custody case? Did you follow your lawyer’s recommendations in matters concerning your custody case? These are all questions that you might ask yourself as you consider the impact of your own actions, as opposed to the impact of your lawyer’s actions, on the outcome of your custody case, and whether your lawyer’s actions really merit a formal complaint.

What if my child doesnt want to visit with his or her other parent?

Mon, 24 Nov 2008 02:40:55 GMT

It’s time for your nine-year-old child’s weekend visit with your ex, and, as usual, she’s dragging her feet. “I don’t want to go!“ she whines as you attempt to pack her overnight bag and push her toward the waiting car. “Why do I have to go?” she cries, tears welling up in her big blue eyes.

Then there’s your fifteen-year-old son. When you ask him if he’s ready to go, he rolls his eyes and tells you he’s not going with dad this weekend. When you ask him why, he retorts, “I have plans this weekend,” and with that, he puts on his headphones and shuts his eyes. Meanwhile, your ex is impatiently honking the horn when no children have appeared within five minutes of his arrival.

What are you supposed to do? There is no easy answer to this situation. As a custodial parent, part of your job is to foster a relationship between your children and your ex, no matter how difficult you might find it. Despite the reasons behind your break-up, experts agree that in the vast majority of circumstances, it is very important that children maintain good relationships with both parents, and that the parents work together to achieve that goal.

So, if your young child doesn’t feel like visiting, or doesn’t want to leave mom behind, you really need to encourage – and even require – that she visit with her dad as scheduled. Explain to your child that part of having your parents living apart is spending time with both parents, and that both of you love her equally and want to spend time with her. Therefore, it is really not fair to your ex, or your child, if you don’t make your child go along with the visitation order. Plus, if you are simply allowing your young child to not visit whenever she feels like it, you are allowing her to make a decision that belongs to an adult, not a child.

As a practical matter, you can be in trouble if you don’t comply with the court’s order on visitation. Your ex can ask the judge to hold you in contempt of court if you are intentionally not complying with the visitation order by not sending your child for visitation. The bottom line is that you are the parent, and you are responsible for your child’s actions. Thus, it is you who will be responsible, and who may have to answer to the court, if your child doesn’t visit as ordered.

Teenagers, on the other hand, present a whole different set of considerations. You cannot physically force a fifteen-year-old boy to visit with his father if he doesn’t want to. Threatening your teen with punishment or restricting his freedom is not likely to get what you want in this circumstance, either. The hard truth is that a teenager most likely would rather be with his friends than with you or your ex, and there is nothing exciting for your teen about spending a weekend with dad, away from home and those friends. Perhaps in recognition of this fact, the courts largely tend to hold the teenagers responsible for their behavior with respect to visitation, not the custodial parent. Because the custodial parent typically cannot make a teenager visit as ordered, then the court is unlikely to find the parent in contempt of court for failing to comply with the visitation order. Unfortunately, this leaves the non-custodial parent of a rebellious teenager largely without a remedy for enforcing his visitation order.

Do I need the other parents permission to move out of state with our child?

Mon, 24 Nov 2008 02:46:47 GMT

If you have custody of your child, you and your child should be able to move out of state without anyone else’s permission, right? Wrong! Most states have enacted laws that prohibit custodial parents from taking their children and moving out of state without notice to the court and/or the other parent. These laws are designed to prevent a custodial parent from removing a child from the state without the other parent’s knowledge, which can result in no visitation and/or contact between the non-custodial parent and child. Furthermore, failure to comply with these laws can result in very serious consequences for you and your child. Therefore, it is extremely important that you talk to a lawyer and become aware of your state’s laws regarding the relocation of a custodial parent BEFORE you move out of state.

The complexity of the different state laws concerning this issue varies. Some states require the custodial parent to take certain actions before moving out of state or even within the same state, if the new location is more than 50 – 70 miles away from the original location. These requirements range from formally notifying the court and the other parent in writing of the planned relocation, to the setting of a hearing for the purposes of determining whether custody, visitation, and child support ought to be modified in light of the move. The court may also make new arrangements for longer visitation time periods, depending on the distance involved, as well as the payments of the increased costs of visitation; if it is you who are moving out of state, then you may even be responsible for the transportation costs for visitation.

Whatever your state’s laws might be, it is essential that you follow the rules and comply with these requirements. If you don’t comply with these requirements, the court could order you to move back to the original state with your child, prohibit you from leaving the state with your child, order you to pay the other parent’s attorney fees, and even remove the child from your custody. As you can see, failure to comply with these laws can have very serious consequences.

Depending on the law in your state, you may think twice about your decision to move out of state, especially if it will result in you losing custody of your child. You’ll also want to carefully consider the reasons behind your desire to move out of state. While courts tend to be approving of valid, reasonable reasons for moving away, such as for employment purposes, courts aren’t typically impressed by other reasons, such as moving away from an established network of family and friends in order to live with a new boyfriend. Plus, the court will also consider the negative effects on the relationship between the child and the noncustodial parent that will result from the move. If the court gets the impression that you are moving simply to keep the noncustodial parent out of you and your child’s lives, then the court is unlikely to approve of your planned move.