Chapter 8: Child Custody 12 Family Law for the Paralegal 2nd Edition WilsonClass NameInstructor NameDate, Semester
LEARNING OBJECTIVES After this lecture, you should be able to:8.1 Identify various types of child custody. 12 Identify at least three jurisdictional issues that8.2 sometimes arise in child custody cases. Describe the primary standards that guide the8.3 courts when making child custody decisions, including the “best interests of the child”. Class Name Instructor Name Date, Semester Cont.
LEARNING OBJECTIVES After this lecture, you should be able to:8.4 List some of the major factors courts consider when making decisions about custody and 12 visitation. Describe the nature and purpose of parenting8.5 plans. Explain why parent education programs are8.6 important. Class Name Instructor Name Date, Semester Cont.
LEARNING OBJECTIVES After this lecture, you should be able to:8.7 Explain when and how custody and visitation 12 orders may be modified. Explain how custody and visitation orders may8.8 be enforced. Describe the rights of third parties in the custody8.9 context. Class Name Instructor Name Date, Semester Cont.
LEARNING OBJECTIVES After this lecture, you should be able to:8.10 Explain who speaks for the child in custody 12 matters. Describe the role of the paralegal in a custody8.11 case. Class Name Instructor Name Date, Semester
Learning ObjectiveAfter this lecture, you should be able to: Identify various types of child8.1 custody.
What are the various types of8.1 custody?• In traditional terms: – Physical custody: custody relating to where and with whom the child primarily resides (may be sole or joint) – Legal custody: custody relating to decision-making authority with respect to major issues affecting a child (may be sole or joint) – Sole award: an award made to one party only (may apply to physical or legal custody) – Joint award: an award made to both parents (may apply to physical or legal custody)• Many states have adopted new terminology that emphasizes parental cooperation and a child-centered focus, for example, by calling physical custody “residential responsibility” and legal custody “decision making responsibility.” 7
What are the most common8.1 types of custody awards?• Custody awards are tailored to the circumstances of each case. Absent evidence of unfitness, parents are generally considered to have equal rights to custody.• The two most common custodial arrangements are: – Joint legal custody, sole physical custody in one parent with reasonable rights of visitation in the other – Joint legal and physical custody• Although not favored, courts sometimes will award split custody when appropriate (each parent has legal and/or physical custody of one or more of the parties’ children). 8
Learning ObjectiveAfter this lecture, you should be able to: Identify at least three jurisdictional issues that8.2 sometimes arise in child custody cases.
What are some of the jurisdictional issues8.2 that arise in child custody cases?• Problems are minimal in cases in which the parents’ identities are known and they reside in the same state.• Problems are more likely to arise when: – The parents live in different states – One parent leaves the state where the parties had lived and takes the children with him or her without the other party’s consent – The parties file for custody in two different states – During a visit, a parent essentially kidnaps a child and takes him or her to another country – A parent seeks to modify an existing custody order in a state different from the state where the original order was entered 10
8.2 What are some of the jurisdictional issues that arise in child custody cases? (continued)• In resolving problems that arise, the courts refer to several key acts including the following three: – The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), adopted in all states, is designed to reduce jurisdictional conflicts between states, deter child abductions to other states, avoid relitigation of decisions in nonissuing states, and ensure that custody matters are heard in the state with the closest connection with the child by giving priority to home state jurisdiction. – The Parental Kidnapping Prevention Act (PKPA), the major federal child custody jurisdiction act, is designed not only to prevent parental kidnapping but also to maintain jurisdiction in one court over custody orders pertaining to a given child in interstate cases. 11
What are some of the jurisdictional issues8.2 that arise in child custody cases? (continued)• The Hague Convention on the Civil Aspects of International Child Abduction endorsed by more than fifty nations establishes administrative and judicial procedures to expedite the return of children who have been abducted or wrongfully retained and to facilitate the exercise of visitation rights across international borders. 12
Learning ObjectiveAfter this lecture, you should be able to: Describe the primary standards that guide the courts when8.3 making child custody decisions, including the “best interests of the child”.
What are the 6 major approaches that have8.3 been used to guide custody decisions over the years?• Early approaches included the following gender- biased approaches: – Paternal preference: the common law doctrine that fathers had an absolute right to the care and custody of their children – Maternal preference: the concept that custody should be awarded to a mother over a father provided she is fit – Tender years doctrine: the doctrine holding that custody of very young children should be awarded to the mother as the natural custodian of young and immature children provided she is fit 14
What are the 6 major approaches that have been8.3 used to guide custody decisions over the years? (continued)• Contemporary gender-neutral approaches include the following: – Best interests of the child: the majority approach today, this standard focuses on the needs of the child over the rights or wishes of the parents; the states identify by statute or case law a series of “best interest factors” for courts to consider when making custody determinations (See Exhibit 8.1 on pages 257 and 258 of the text for an example of a best interests statute.) 15
What are the 6 major approaches that have been8.3 used to guide custody decisions over the years? (continued)• The primary caretaker presumption: the concept that the individual who has performed most of the significant parenting tasks for the child since birth or in the years preceding the divorce should be granted custody• The American Law Institute’s Approximation Rule: the rule that the custodial responsibilities of the parents at dissolution should be allocated in a manner that approximates the proportion of time each parent spent caring for the child when the family was intact (See Paralegal Application 8.2 on page 260 of the text for an example of typical caretaking activities considered.) 16
Learning ObjectiveAfter this lecture, you should be able to: List some of the major factors courts consider when making8.4 decisions about custody and visitation.
8.4 What are some of the factors courts consider when making decisions about custody and visitation?• Availability: This is a relevant factor because the courts consider whether or not parents are available to participate in activities with their children such as school and recreational activities, medical appointments, homework, daily routines, etc.• Stability: Courts strive to maintain as much stability and continuity in parenting arrangements as possible to avoid disruption for the child.• Gender: The public policy of virtually all states is that fit parents have equal custody rights regardless of gender. 18
What are some of the factors courts consider when8.4 making decisions about custody and visitation? (continued)• Race: The Equal Protection Clause of the Constitution prohibits the making of custody decisions based on racial bias. See Case 8.1 Palmore v. Sidoti (1984) on pages 262-263 of the text.• Religion: The majority of courts have affirmed each parent’s right to freedom of religion and to parent a child by providing religious exposure and instruction as he or she sees fit unless the child is being harmed.• Parental health or disability: Poor mental or physical health will not necessarily render a parent unfit. The courts will examine the “nexus” between the condition and the parent’s capacity to provide proper child care. 19
What are some of the factors courts consider when8.4 making decisions about custody and visitation? (continued)• Sexual activity: The majority view is that a parent’s sexual behavior or cohabitation should not play a role in a custody decision unless there is a connection between the behavior and the health and welfare of the child. Tolerance is higher for heterosexual relationships.• Parental lifestyle: Based on statutes and case law, moral character and conduct count under some circumstances. The critical question is does a behavior such as smoking harm the child as in the case of an asthmatic child. 20
What are some of the factors courts consider when8.4 making decisions about custody and visitation? (continued)•History of abuse: Every state provides by statute or case law•Child preference: Today children’s preferences may be•Parental cooperation: Courts will look at the extent to which 21
Learning ObjectiveAfter this lecture, you should be able to: Describe the nature and purpose8.5 of parenting plans.
What is the nature and purpose8.5 of a parenting plan?• A parenting plan is a written agreement in which the parents of a child lay out plans for taking care of their child/ren post separation or post divorce. It may be in the form of a document called a parenting plan or in the form of custody and child support exhibits in a separation/marital agreement.• When joint custody is not desirable or feasible, the parenting plan will typically address visitation arrangements with the noncustodial parent, unless it would pose a threat to the child’s health and welfare. 23
What is the nature of a visitation8.5 component in a parenting plan?• There are no fixed formulas for visitation provisions.• They are shaped primarily by the degree to which the parents are able to communicate about the children’s needs and schedules, appropriate parenting behaviors, and goals for the children’s welfare. They may reflect input from the children based on their ages and maturity levels.• Visitation schedules range from highly detailed provisions to flexible open-ended arrangements. Most fall in-between.• Agreements/plans may include a virtual visitation component (communication with children through the use of technology).• Most visitation is unsupervised but the courts may order supervised visitation in appropriate circumstances (e.g history of domestic abuse).• See an example of a detailed provision on pages 427-433 in Exhibits B and C of Exhibit 12.2 Sample Separation Agreement. 24
What are the goals of parenting8.5 plans?• Parenting plans are designed to: – Promote cooperative planning. – Minimize disputes and continued hostility over parenting issues. – Provide for the children’s care. – Maintain the child’s emotional stability. – Provide for the child’s changing needs as they grow and mature minimizing the need for modifications. – Set forth the authority and responsibilities of each parent with respect to the child. – Minimize the child’s exposure to harmful parental conflict. – Otherwise protect the child’s best interests. 25
Learning ObjectiveAfter this lecture, you should be able to: Explain why parent education8.6 programs are important.
What are parent education programs and8.6 what are their primary purposes?• Many states require divorcing/separating parents to complete a parent education program designed to sensitize them to the needs and feelings of their children who are impacted by their parents’ divorce.• The primary purposes of parent education programs are to: – Encourage parents to work cooperatively for the benefit of their children. – Help children through the difficult period of divorce and separation. – Reduce postdivorce litigation and court appearances. – Parents usually attend different sessions and waivers of participation may be obtained in limited circumstances such as when there is a history of abuse. 27
What topics does the curriculum of a parent8.6 education program commonly address?• The emotional effects of divorce on parents and children• What parents can do to help their children adjust• Communication and co-parenting skills• Developmental stages and needs of children• Factors that contribute to a child’s healthy adjustment• Techniques of problem solving and conflict resolution• Warning signs that children are having problems• Available community resources• The function and value of parenting plans 28
Learning ObjectiveAfter this lecture, you should be able to: Explain when and how custody8.7 and visitation orders may be modified.
When and how can custody and8.7 visitation orders be modified?• The usual process for modifying custody involves filing a Motion (Petition/Complaint) for modification of custody typically accompanied by a supporting affidavit in the court that has continuing jurisdiction followed by notice to the other party and a hearing in which each party has an opportunity to testify, call witnesses, and offer other evidence in support of their position.• Typically a party seeking to modify a custody order must show that: – There has been a substantial and material change in circumstances that affects the child’s welfare – The change has occurred since entry of the decree and was not foreseeable – The change warrants a modification of custody – The change will be in the child’s best interests 30
When and how can custody and visitation8.7 orders be modified? (continued)• Motions for modification are likely to be granted if: – the parties agree to modification. – it is clear that the initial allocation of parental rights and responsibilities is not working. – there is clear and convincing evidence that the child’s present environment is harming his or her physical, mental, or emotional health. – there is repeated, intentional, and unwarranted interference by one parent with the parenting rights and responsibilities of the other parent. – there is a change in one of the parent’s circumstances that significantly affects his or her fitness or availability as a parent.• Relocation cases present a special challenge. The trend is to permit them if satisfactory alternative parenting time can be arranged for the noncustodial parent, there are no bad faith motives for the move, and the relocation will be in the child’s best interest. 31
Learning ObjectiveAfter this lecture, you should be able to: Explain how custody and8.8 visitation orders may be enforced.
How are custody orders usually8.8 enforced?• When a parent fails to comply with court-ordered custody and visitation provisions, the wronged parent will usually file a complaint for contempt and potentially one for modification of both custody and child support as well.• The court may find the defendant parent in contempt and has the power to order them to pay a fine or go to jail or both. The court more likely will modify custody, impose conditions on visitation, award attorneys’ fees to the other party, and in especially egregious cases, deny visitation. 33
Learning ObjectiveAfter this lecture, you should be able to: Describe the rights of third8.9 parties in the custody context.
What are the rights of third parties8.9 in the custody context?• Nearly 14 million children in the United States live with parties other than their parents and that number continues to grow. Those parties include surrogate parents, de facto parents, psychological parents, and foster parents among others.• There are two competing views regarding the custodial and visitation rights of third parties: – The view that biological parents have a presumptive right to custody of their children and to parent them as they see fit. – The view that it is in the best interests of children to be placed with whichever adult will provide the healthiest and most stable environment for the child. 35
8.9 Which “third parties” most often petition for custody and/or visitation and with what results?• Standing of third parties to seek custody or visitation is usually established by statute or case law.• The categories of individuals who most often petition are the following: – Unmarried fathers – Step-parents – Grandparents – Co-parents 36
8.9 Which “third parties” most often petition for custody and/or visitation and with what results? (continued)• Unmarried fathers: – Unmarried fathers do not have the same rights and obligations as married fathers. – Many unmarried fathers have tried but been “thwarted” in their efforts to be fathers to their children and they have become in effect third parties while other fathers have knowingly failed to acknowledge fatherhood in a timely manner.• The states vary in their approaches to unmarried fathers ranging from setting a fixed window within which fathers must establish paternity to an approach tailored to the facts of individual cases. 37
8.9 Which “third parties” most often petition for custody and/or visitation and with what results? (continued)• Step-parents: – It is estimated that 1 in 4 children will live with a step-parent before reaching the age of majority. – The law is unclear and inconsistent with respect to the rights of step- parents. – The majority view is that a step-parent’s rights flow from marriage to the child’s parent and do not survive divorce. – A minority of states impose financial obligations on step-parents in limited circumstances such as when they have voluntarily supported their step- children.• A limited number of states afford step-parents standing to petition for custody and visitation in some circumstances often struggling to find legal theories to support their efforts to play a role in their stepchildren’s lives.• See Case 8.3 McAllister v. McAllister (2010) on pages 282-283, a case in which a stepfather was granted visitation rights. 38
8.9 Which “third parties” most often petition for custody and/or visitation and with what results? (continued)• Grandparents: – In 2009, nearly 12% of all children were living in households with at least one grandparent present. – Under common law, grandparents had no standing to petition for custody or visitation of their grandchildren. – Now legislatures in every state provide standing for grandparents to petition for custody and visitation rights in some circumstances.• However, after the Supreme Court’s decision in Troxel v. Granville (2000) (see Case 8.4 on pages 284-285 of the text), presumptive validity must be given to a fit parent’s objection and the grandparent must establish more than that visitation will be in the child’s best interest. They must essentially show that refusal to grant visitation will cause significant harm to the child’s health, safety, and welfare. 39
8.9 Which “third parties” most often petition for custody and/or visitation and with what results? (continued)• Co-parents: – A co-parent is a person who is engaged in a nonmarital relationship with the legal parent of a child and who regards himself or herself as a parent rather than as a legal stranger to the child. – Some co-parents adopt the child to protect their rights and obligations with consent of the legal parent. – Co-parents rely on a variety of legal theories to maintain a relationship with a child they have helped raise after the relationship with the child’s legal parent has ended.• Decisions are mixed in cases involving same-sex co- parents. Many states deny standing as parents but afford third party status as a person with a significant relationship to the child (like a grandparent). See Case 8.5 Mullins v. Picklesmeier (2010) on pages 287-288. 40
Learning ObjectiveAfter this lecture, you should be able to: Explain who speaks for the child8.10 in custody matters.
Who speaks for the child in8.10 custody matters? • Those who “speak for” children include the following: • Guardian ad litem (GAL): – A GAL is a neutral evaluator appointed by the court (often at the request of one or both parents) to assess the interests of the children whose custody is in dispute. – The guardian may be an attorney, social worker, or a psychologist. – The primary role of the GAL is to examine the child’s situation as fully as possible and make a recommendation to the court. • Court Appointed Special Advocates (CASA): – A CASA volunteer is a court-appointed volunteer advocate who works one-on-one with abused and endangered children. 42
Learning ObjectiveAfter this lecture, you should be able to: Describe the role of the8.11 paralegal in a custody case.
What is the role of the paralegal8.11 in a custody case? • The major task performed include: – Researching the law governing custody actions in the jurisdiction – Scheduling and participating in interviews as assigned – Gathering information and documentation as requested (See Paralegal Application 8.6 Information Gathering in a Contested Custody Case on page 291) – Drafting formal discovery materials and conducting informal discovery as directed – Drafting correspondence, pleadings, motions, affidavits etc. involving custody matters – Drafting parenting plans/custody exhibits – Assisting in preparation for hearings and trials etc. – Coordinating communication with experts, parenting coordinators, GALs, CASA volunteers, etc. 44
Chapter Summary8.1 Identify various types of child custody. 12 Identify at least three jurisdictional issues that8.2 sometimes arise in child custody cases. Describe the primary standards that guide the8.3 courts when making child custody decisions, including the “best interests of the child”. Class Name Instructor Name Date, Semester Cont.
Chapter Summary8.4 List some of the major factors courts consider when making decisions about custody and 12 visitation. Describe the nature and purpose of parenting8.5 plans. Explain why parent education programs are8.6 important. Class Name Instructor Name Date, Semester Cont.
Chapter Summary8.7 Explain when and how custody and visitation 12 orders may be modified. Explain how custody and visitation orders may8.8 be enforced. Describe the rights of third parties in the custody8.9 context. Class Name Instructor Name Date, Semester Cont.
Chapter Summary8.10 Explain who speaks for the child in custody 12 matters. Describe the role of the paralegal in a custody8.11 case. Class Name Instructor Name Date, Semester