Tag: primary residential parent

What Custody Arrangment is Best for the Children?

What Custody Arrangment is Best for the Children?

Any caring parent who has considered divorce has thought long and hard about how the divorce would affect the children.  There is little doubt that the traditional “nuclear family” is usually the best option for children; “nuclear family” meaning both parents in the home with the child.  In fact, scientific studies have routinely backed that up.  This report from the U.S. Department for Health and Human Services backed up the idea that the nuclear family was best for children.  Among the highlights of the report:

Children in nuclear families were generally less likely than children in nonnuclear families
• to be in good, fair, or poor health [Note: these three categories are considered “less than optimal”];
• to have a basic action disability;
• to have learning disabilities or attention deficit hyperactivity disorder;
• to lack health insurance coverage;
• to have had two or more emergency room visits in the past 12 months;
• to have receipt of needed prescription medication delayed during the past 12 months due to lack of affordability;
• to have gone without needed dental care due to cost in the past 12 months;
• to be poorly behaved;
• and to have definite or severe emotional or behavioral difficulties during the past 6 months.

Unfortunately, the nuclear family is not an option for divorcing couples.  This study published in the “Journal of Epidemiology & Community Health” completed earlier  in 2015 confirmed the U.S. Department of Health and Human Services report’s findings on the nuclear family.  It then went a step further and compared parenting arrangements in which the children spent a significant amount of time with both parents as compared to parenting plans where a child spends most of his time with only one parent.

Researchers said that they had expected the children residing primarily with one parent to benefit from that stability.  Indeed, that is a common expectation and basis for rulings from many family court judges.  The researchers were surprised to see that the data did not support that hypothesis.  On the contrary, their findings confirmed that children who spent a significant amount of time with both parents were better off in the long run.  The study looked at a range of psychosomatic issues, including loss of sleep, headaches, loss of appetite, depression, stress, and many others.

What the researchers found was that parental stability was far more important that housing stability.  The children who had close relationships with both parents fared much better than children who lived primarily with only one parent.  By far the children of the nuclear families in the study still fared the best and reported the fewest psychosomatic issues.  However, of the separated parent households, those children in a joint custody situation with a liberal timesharing schedule with both parents fared the better than those living with only or primarily with one parent.

This study should not be taken to mean that an equal timesharing schedule is going to work for everyone or that a schedule providing housing stability for your child will not work best for you.  Every case and family is different.  However, it does provide food for thought.  Regardless, parents who can put aside their anger and resentment of one another and work together for the best interests of the children is always the best arrangement.

Photo courtesy of aleksandra.kostina

What Can I Do If It Is Not Safe for My Child to Visit the Other Parent?

What Can I Do If It Is Not Safe for My Child to Visit the Other Parent?

A very scary scenario for a primary residential parent is when there is a situation with the other parent that may somehow endanger the children.  As we have previously discussed, generally, the primary residential parent has to do everything he/she can to make the child go to court ordered visitations.  If you fail to do that, you could be subject to contempt sanctions from the court.  Nothing in this article should be construed as encouraging anyone to disregard a valid court order.

Nevertheless, there are times when a parent believes there is good cause not to allow the child to visit wit the other parent.  Kentucky statute says that, “[g]ood cause not to comply with a provision of a decree or temporary order or injunction with respect to visitation shall include mutual consent of the parties, reasonable belief by either party that there exists the possibility of endangerment to the physical, mental, moral, or emotional health of the child, or endangerment to the physical safety of either party, or extraordinary circumstances as determined by the court.”  Usually these circumstances involve situations of severe substance abuse, criminal activity or a reckless disregard for the child’s health or well-being.

Keep in mind that this statute also says that a person who fails to comply with a valid order without good cause shall be found in contempt and appropriately sanctioned.  The court is also authorized to order the offending party to pay the other parent’s attorney fees and costs associated with the denial of visitation.

If you have determined that you believe you have sufficient good cause to deny visitation, you should contact your attorney.  Many times parents believe there is good cause to deny visitation when it is actually more of a personality conflict between the parents instead of a danger to the child.  Also keep in mind that judges hear many cases with many horrible facts and often become very jaded.  What you believe to be a serious endangerment may not concern a judge at all.  Your attorney should be able to give you some guidance on your particular judge’s “rules of thumb.”

If your attorney agrees with you that there is a sufficient basis to deny the visitation, your next step is usually to file a notice with the court of an intent to deny the visitation.  This notice does not actually give you any authority, but it is primarily to provide some protection when the other parent files a contempt allegation against you.  You should not just rely on this notice and act unilaterally.  The best thing is to be proactive and follow that up with a motion asking the court to address the issue either by suspending the visitation or imposing safeguards to adequately protect the child during the visitation.  Understand, the court will do everything it can to encourage and allow both parents to spend time with the child.  Each case is different and you should discuss yours with your attorney before doing anything that might subject you to sanctions.

Photo courtesy of Alexandru Panoiu

How Do I Enforce My Visitation With the Children?

How Do I Enforce My Visitation With the Children?

Often when divorced parents fight about time spent with the children, it is not really time spent with the children that they are fighting about.  Instead, it is usually one (or sometimes both) of the parents using the children to get back at the other parent.  This often leads to the primary residential parent refusing to let the other parent visit with the children according to the schedule ordered by the court.  If you find yourself in that situation, what should you do?

When your ex is denying you visitation, before you hire a lawyer, write to your ex.  This can be by email, text message, or certified mail, but write to him/her in some manner in which you can show that the message got to him/her.  In that message, remind them about the visitation schedule.  Then describe the ways in which the other parent’s behavior is inconsistent with that schedule.  Keep your description limited to what you can observe and refrain from petty name calling, disparaging remarks, or what you believe the motivations for these behaviors.  In your message set out the specific time and place where you will be to visit with the children on the next scheduled visit in accordance with the court order.

Be at the appointed place and time.  If, after twenty minutes or so, the ex does not show, do not get mad or make a scene.  If the meeting place is at a business you might purchase something of nominal value and save the receipt or even bring a witness; something to prove you were there and on time.  Then write the ex a second message.  Again, just like before, confine your comments to behaviors you can observe and do not go into the ex’s possible motivations.  If the ex does not show at the second appointed time and place, then it is time to contact a lawyer.

The lawyer can file a motion for rule to show cause.  This is a motion that is filed when you believe the other party is violating the court’s order.  You are asking the court to order the other person to appear before the court and explain (or “show cause”) why he/she should not be held in contempt of court.  Sanctions from the court for contempt could be anything from a slap on the wrist, to fines, an award of attorney fees, and even jail time.  However, this is a court proceeding and the truth is whatever can be proven in court.  If you follow these steps you will have your proof and show the judge the truth.

Photo courtesy of potential past

Should I Move Out of The House or Will It Hurt My Case?

Should I Move Out of The House or Will It Hurt My Case?

You have decided it is over, maybe papers have been filed, all you want to do is be away from the other person.  But should you move out of the house?  I am asked that question with some regularity. Many people are scared that they might be accused of abandonment, but with the advent of Kentucky’s no-fault divorce system, that is no longer a concern.  Nevertheless, it does not necessarily mean that you should immediately move out.

The first question is whether you will be asking the court to designate you as the primary residential parent for your children.  If so, you will want to stay with the children and maintain as much stability for them as possible.  Therefore, remaining in the home would be best.
If you believe that ultimately, you will want to keep the residence, it is usually a good idea for you to remain in the home.  Oftentimes, once one party moves out he/she establishes another residence, it is very easy for a court to see that the living situation is working and award the house to the party still residing in the house.  That is not to say it happens every time, but it often comes into the court’s decision making process.
If you have decided to leave, you need to think about the process rationally.  Leaving is going to most likely increase your emotional and financial stress.  Whether it is to escape domestic violence or you have simply decided that leaving is the best thing for you and your family, you need to approach this situation with a great deal of planning.  You will never have a better opportunity to prepare for your divorce case than when you are in the home.  Consider the following points:
  1. Figure out the finances.  If you are leaving you need to assess both parties’ incomes (or lack thereof), document that income, and work out a budget.  The last thing you need to do is stretch yourself too thin by renting a place you can barely afford and then get hit with a child support obligation.
  2. Prepare for co-parenting.  Help the children cope with mommy or daddy moving out.  Kentucky now requires some form of co-parenting class in divorces involving children.
  3. Itemize the property and debt.  You will never have a better opportunity to catalog the property that may be in dispute than when you are in the home.  Do it before you leave.  This includes the residence itself, intangible assets (financial records, stocks, bonds, etc.), business interests, and physical assets such as furniture, artwork, vehicles, etc.
  4. Marshal your resources.  Make sure you have access to as much money as possible.  Divorces are expensive and so it setting up your new place.  Talk with family and friends about helping you with loans/gifts.  Access bank accounts and credit accounts.  You may consider selling some items, but discuss this with your attorney first.
  5. Do not think that just because you have moved out that you can behave in any manner you like.  You need to assume you are being watched or that your actions will get back to your spouse.  It is best not to date or do anything that might make you look bad in court.  Talk with your attorney about possible dos and don’ts.

Moving out of the marital residence is an important decision that should not be taken lightly or without preparation.  Make sure you understand all of the relevant issues before you make a move.  Above all preparation is key.  Do not do anything without discussing it with your divorce lawyer.

Photo courtesy of Meathead Movers

What Do I Do When My Child Does Not Want to Visit the Other Parent?

What Do I Do When My Child Does Not Want to Visit the Other Parent?

Whether it is entered by the court or agreed upon by the parties, chances are there will be a visitation or timesharing schedule established as part of your child custody case.  This schedule sets out specific times when the child is to be with each parent.  This schedule is part of the divorce decree or child custody order and is enforceable by the court.

If you are the primary residential parent, it is incumbent upon you to encourage the child to go to these visits.  “Encourage” might be too light of a wording, because the court expects you to make the child go.  If you do not, it is not the child who gets punished.  Instead, the other parent can file a motion for contempt; sometimes called a motion for rule to show cause.  We have previously discussed these motions in terms of when one parent refuses to pay child support or bills as ordered in a divorce.  It works much the same way in the realm of child visitation.  One party files a motion with an accompanying affidavit alleging that the other parent is refusing to obey the child visitation order.  If the court determines that is true, the parent disobeying the order can be sanctioned from a “slap on the wrist” and a stern lecture from the judge all the way up to six months in jail.

If you are the primary residential parent and you have a valid concern that the child is seriously endangered by the visitation such as evidence of abuse (and I mean solid evidence not just a suspicion), you can refuse the visitation.  However, you cannot simply take a unilateral action.  You will still need to file a motion to terminate the visitation with the court.  The court will conduct a hearing and if the court does not believe there was a good faith basis to deny the visitation, you could still be held in contempt and/or the other parent will most likely be allowed to make up any time that was missed.  “Crying wolf” and alleging abuse where there is none may also form the foundation for a motion to modify the timesharing and asking the court to designate the other parent as the primary residential parent.

Things get tougher when the child gets older and becomes a teenager.  When the teenager decides she no longer wants to visit and has a life of her own it can make it difficult for the non-residential parent to maintain that relationship.  It still remains the obligation of the primary residential parent to push the child to attend the visitation.  Some judges are more lenient than others, but many judges are loathe to allow a child to begin to decide whether the court’s orders will be followed.  In situations where the residential parent cannot get the child to cooperate, the parent may be left with no choice but to file an action against the child as an out of control teen (also known as a status offender) and ask the court for assistance.  Many parents hesitate to do this for fear of creating a record for the child or even giving the other parent ammunition to take them back to court.

Another point to be aware of is the fact that visitation and child support are two totally separate issues.  If the other parent stops paying child support, that does not give you the right to stop visitations and vice versa.  Courts do not appreciate these sort of “self-help” remedies.

Photo courtesy of DeptfordJon