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Modifying a Visitation Order

Tue, 14 Oct 2008 21:44:11 GMT

There are two major types of child custody. The first is legal custody, which involves the ability to make decisions about the rearing of a child. This can include medical care, education, and other important decisions. The other is physical custody, which is the right to have a child living with you. In cases where one parent is granted sole physical custody, the other parent’s right to visit that child is defined in a custody and visitation order. When circumstances make it necessary to change visitation, the custody order must be revised.

While a number of circumstances may require modification of a visitation order, courts usually only modify an order if it is is the child's best interest. The convenience of the parents is generally considered less important than the welfare of the child, but may also be a factor.

Here are some of the common reasons for modification:

Changes in circumstances of a child. As children grow older, they can become involved in new and different activities, which may require a modification of the visitation roder. For instance, a visitation order made when a child is a toddler may not still be appropriate as the child grows into grade school, middle school, or high school and gets involved in extracurricular activities.

Emergencies concerning the child. Emergencies can be a compelling reason to modify a visitation order. Child abuse and the risk of physical or emotional harm creates an urgent need to change visitation rights. Other emergencies, such as hospitalization, can also require modification of visitation rights.

Positive improvements for the child. These generally follow from changes in circumstance. If one parent is able to show that they would provide a better education or living environment than the other parent, they can argue that custody or visitation should be modified.

Child's need for a stable home environment. Courts consider stability to be one of the most important parts of a child’s best interest. A stable environment that provides better living conditions or circumstances is always an important factor.

Changes in circumstances of a parent. If either the custodial or the noncustodial parent moves, particularly if out of state, the move may render an existing visitation order impractical or impossible. In these cases, the court may need to modify the custody order accordingly.

Requests to modify visitation must be filed with the court that last handled any orders regarding the children. Any person affected by the visitation order may request a modification.

For more information on visitation orders, contact a family law attorney today.

The Best Interests of the Child Standard and Grandparent Visitation

Wed, 14 May 2008 22:09:33 GMT

If you are a grandparent and do not get along with your grandchild’s parents, do you have a right to see your grandchild even if the parents do not consent? Prior to 2000 the answer was a resounding yes. But now it is complicated.

Prior to 2000 many states had statutes allowing grandparents to petition a court for a visitation order with their grandchildren if the parents would not allow it. In 2000 the Supreme Court required some states to rewrite their visitation laws because they trampled on the parents’ constitutional rights.

Supreme Court Rule

In Troxel v. Granville the Court struck down a state ruling that gave grandparents the right to visitation over the objection of the child’s parent. The court held that a state may not force a parent to allow grandparent visitations because it violates the parent’s “fundamental rights and liberty interests … to make decisions concerning the care, custody and control of their children” under the Fourteenth Amendment. The court ruled that states may allow visitation in certain circumstances, but it may not create a right to visitation in all situations.

In Troxel, the trial judge allowed visitation because the parent had not shown that visitation by the grandparents would harm the children. In overturning the trial court’s decision, the Supreme Court ruled that there is a presumption that “a fit parent makes decisions in the best interest of their child.” After the ruling some state legislatures had to revisit their grandparent visitation statutes to comply with the new rule. Statutes had to be rewritten because grandparents must now prove that the parent’s decision to refuse visits is not in the child’s best interest.

California’s Two Step Test

For example, in California if a parent is deceased the grandparent may be granted visitation if the court finds it is in the best interests of the child. But if both parents are alive but separated or divorced a court must go through a two step analysis before granting visitation rights to the grandparent. Family Code Section 3104 requires a court to find: 1) a pre-existing relationship between the child and grandparent and that visitation is in the child’s best interest to keep that relationship going, and 2) the child’s interest in their relationship with a grandparent outweighs the parent’s interest in exercising their parental authority over their child.

Options

What can grandparents do to ensure visitation with their grandchildren without having to resort to a court order? Some states require divorcing parents to attend a mediation session for child visitation prior to a court hearing. The purpose is for the parents to come to an agreement with a professional mediator rather than having the judge decide it. Though grandparents usually cannot attend the mediation, the parents can include the issue of grandparent visitation in the mediation session. If it is agreed to it becomes part of the visitation order.

An experienced family law attorney can tell you if your state allows grandparent visitation orders and the requirements for having one granted.

How to Establish Paternity

Wed, 26 Aug 2009 02:06:50 GMT

With steadily rising numbers of children being born out of wedlock, and a society that no longer stigmatizes having children outside of a marriage, paternity courts are overrun with unmarried litigants seeking to establish paternity, custody, visitation, child support and related matters regarding their children. Fortunately, paternity court is not the only means of establishing paternity, and family laws are changing to accommodate the reality of unmarried parents and their children.

In general, state laws provide for both voluntary and involuntary paternity proceedings. In order to ease the establishment of paternity, many states in recent years have provided a mechanism by which a putative father, or the alleged father of a child born out of wedlock, can voluntarily establish paternity by executing a sworn paternity affidavit or acknowledgement, which, when completed, establishes the father as the legal father of the child. Many couples who are unmarried, but intend to reside together with their child as a family unit, choose to execute such an affidavit or acknowledgment and/or otherwise place the father’s name on the child’s birth certificate, thus obviating the need for formal paternity proceedings in court. The downside to paternity affidavits, however, is when the parents’ relationship sours, and while paternity has been established, there are no formal court orders regarding custody, visitation, and/or child support. In this case, the family must visit the family court in order to establish applicable court orders regarding their child(ren).

All states laws also provide for the establishment of paternity through formal court proceedings, whether it is on a voluntary or involuntary basis. Typically, if paternity has not been otherwise established by affidavit or acknowledgment, the parties are given the opportunity to undergo genetic testing, or DNA testing, in order to determine whether a putative father is the biological father of a child. Given the accuracy of DNA testing, participating in a DNA test usually resolves the issue of whether a putative father is in fact the biological father of the child. The parties then would proceed to a court hearing at which paternity is established, and orders are issued regarding custody, visitation, child support, and/or other related issues.

Additionally, many states presume that if a child is born during a marriage, then the husband is the father of the child. In some states, this presumption can be rebutted by undergoing DNA testing, which can conclusively prove otherwise. However, in other states, there is no DNA testing or other method to disprove paternity that is legally available if a child was born during an intact marriage, even if all parties concerned know that the husband is not the biological father of the child. This can lead to non-biological fathers being responsible for the needs of the children, including the legal duty to pay child support in some instances.

A similar situation arises when a putative father signs the paternity affidavit or acknowledgement, while at the same time realizing that he is not, or at least might not be the biological father of the child. Likewise, a putative father might rely on the mother’s assertions that he is the only possible biological father of the child in choosing to sign the informal documents needs to establish paternity. In many jurisdictions, such a father is the legal father of the child, even if it is later proven or alleged that he is not the child’s biological father. In these cases, there may be no legal recourse for a legal father who is in fact not a biological father, and who is bound to legally support the child throughout his or her minority.

Mom, Dad, Steve and Amy: How much visitation can little Johnny take?

Wed, 30 Apr 2008 17:28:20 GMT

A divorce is always contentious when a couple has to split property they acquired together. It becomes even more contentious when children are involved. When children are involved in a divorce and the parents cannot come to a decision, the court must decide what is in the best interests of the child. The courts decision about what is best comes in a custody and visitation order. But what should happen if the couple divorcing is a child’s parent and the child’s stepparent? Does the stepparent have any right to visitation or custody along with the biological parent?

Fit Parent Wins

It is very rare for a stepparent to be given custody of a stepchild. The general rule is that if the natural parent is a “fit” parent they will retain custody. The courts rarely look to whether the stepparent may be a fit parent as well. However, stepparents are granted visitation rights in some states.

Stepparent’s Rights

Some state laws specifically grant stepparents the right to petition for visitation during a divorce while other states grant the ability to “all interested third parties” and some others have no legal provision for visitation. Utah may be about to join the list of states that grant stepparents the right to visitation. The state senate has passed a bill that will allow stepparents to ask the court for visitation. The legislature is creating the law because of a state Supreme Court decision last year.

In Jones v. Barlow the Supreme Court of Utah ruled that a woman could not file for custody or visitation with her former same-sex partner’s child because Utah law does not extend any rights to non-biological parents. The legislature recognized that this ruling would extend to stepparents as well as gay couples. If passed, the new law will extend custody and visitation to persons who have a “court-sanctioned” relationship with the child, which includes stepparents.

Best Interest of the Child

In some cases, stepparents may not be too concerned with having custody or visitation rights with their stepchild granted. But the law does not distinguish between a stepparent who has only known the child for a short period of time and a stepparent who has been in a child’s life for as long as the child can remember. Should a stepparent that effectively took the place of that child’s natural mother or father be treated the same as a stepparent who came into a child’s life at 15 and left at 17? It is up to the court to decide.

The custody and visitation order is supposed to be made in the child’s best interest. The power to decide the child’s best interest is vested in a judge who hears the facts and observes the family during the divorce case. While Utah’s law may grant stepparents well deserved rights, it also creates the legal conclusion that visitation with a gay former stepparent cannot be in a child’s best interest. Judges are usually given discretion to determine what is in the child’s best interest. This law will take away a judge’s options.

For more information about about child custody and visitation, contact a family law attorney today.

Can Parental Rights be Terminated When a Parent is Incarcerated?

Wed, 30 Apr 2008 18:09:04 GMT

When can a parent’s rights over their child be terminated by the state? The government may not take a child away from a parent simply because they do not agree with the parent’s decisions. The state must show that the parent is unfit and that severing the relationship is in the best interests of the child. One of the ways a court may find a parent is unfit is if they abandoned their child. If a parent is incarcerated can that be considered the same as child abandonment?

Termination

In Arkansas, if a parent is incarcerated “for a period of time which would constitute a substantial period of the juvenile's life” the Department of Human Services may petition the court to terminate the parent’s rights. The court must decide if the parent’s prison sentence is substantially long enough to warrant severing their parental rights, the most drastic step the court can take. If a child is less than a year old though what is a substantial period of their life?

Lindemood v. DHS

Last summer in Lindemood v. Department of Human Services the Department petitioned the court to terminate a father's rights because he had been in jail for the entirety of his 1 year old son’s life and the child was “99.99% likely to be adopted”. In adoption proceedings parents have the right to object and their rights usually must be terminated in the adoption order if the court allows the adoption.

Last week the Department’s request was denied by the Arkansas Court of Appeals. The court ruled that the Department’s standard for determining the level of parental involvement in the child’s life was faulty. The Department should look at the child’s age and what a parent can do to be in their child’s life during that time period. The court ruled that DHS held Lindemood to the same standard that a parent of an older child would be subjected to, when it should have held him to a standard of a parent of a 1 year old child.

Acting as a Parent

The court recognized that since his son was an infant during his incarceration there was little that Lindemood could do to establish a parental relationship with him; his child could not read letters from him, understand the meaning of a gift, or participate in a phone call with his dad. The court ruled that Lindemood’s attempts to make contact with his son’s maternal grandparents, and both the Department and the court to fight the termination were enough actions to indicate he wanted to be involved in his son’s life.

Because our society has always placed a high priority on not interfering with a parent’s upbringing of their children, the Supreme Court has ruled that parents have an implied constitutional right to be left alone by the government. In Arkansas, the state Supreme Court has ruled this right requires “clear and convincing evidence” before a parent is found unfit. This case shows that the right to be a parent to your child is so fundamental that even an incarcerated parent, who has already lost many rights, may still retain that right.

for more information about parental rights, contact a family lawyer today.

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