Understanding Child Custody Laws

Note: Child Custody Laws differ from state to state and country to country. Always check with your local laws to get the most current information.

What kinds of laws apply to child custody?

When it comes to child custody Laws, there are a few states that have all the procedures laid out for the separating parents and their children. The judges must follow these guidelines to assist in determining the custody of the children during and after a divorce. There aren’t many federal laws that apply to children’s custody, with the exception of transporting across different state lines. However, some states may also have different laws that deal with jurisdiction between other states, but not all states. So if one parent lives in one state and the parent and children in another, the state where the children reside will have more influence. Of course, you must take into consideration which state the separation and custody papers where filed.

What is the purpose of child custody laws?

Child custody Laws are designed with interest of the children as the first priority. Child custody laws are designed to prevent custody going to abusers of drugs or alcohol. Laws are also in place that prevents the children from going to an environment where there is clear mental or physical abuse. Most states prefer joint custody between the parents, where both parents can be a functional part of raising the children. The parents would share both physical and legal custody of the children.

Physical Vs. Legal Custody

It’s really important to understand these two distinctions in the child custody laws. Physical custody is where the children are residing. When a child lives a large portion of time with one parent, that parent has what is known as physical custody. Often times during the summer months children leave one parent to live in the house of the other. During those situations, physical custody moves from one parent to the other.

Legal custody is the right and responsibility to make important decisions regarding health, education, and well-being issues. Often both physical custody and legal custody are with the same parent, unless the parents have joint custody. During those situations, the court may decide that where the children reside at the time that that parent can determine what is best for the children at the time. However, it would be wise to have a consensus between the parents.

Again, research the child custody laws of your state or province to determine what the best solution is for you during these trying times. Always have the children’s best interest when making these decisions.

Home Evaluation

At the time of evaluation, you should prepare for a home safety check. All the residents of the home should make themselves available for the interview and guests should leave within 10 minutes of the arrival of the evaluator. The evaluator may ask for references of people you know, it would be better if you can furnish these immediately. There are special considerations offered by courts in cases where there is a history regarding domestic violence, abuse, etc.

Joint Legal Custody

There has been a growing trend in family and divorce law over the last few years for family courts to order joint custody of children. The hope, by some, was that the parenting skills of the parties could be improved with awards of joint custody. The recent Court of Appeal decision of Kaplanis v. Kaplanis has tried to put this trend into perspective.

In this decision, the parties were married in 1998 and separated in January 2002. The parties had a daughter who was born in October 2001. At trial, the father requested joint custody and the mother opposed the application, stating that the parties could not communicate without screaming at each other. The trial judge granted the parties joint custody and the mother appealed the order. The appeal court set aside the order of joint custody and the mother was granted sole custody.

The Appeal Court held that, for an award of joint custody to be granted, there must be some evidence that demonstrates, that despite the parent’s own strong conflict with each other, the parties can and have cooperated and communicated appropriately with one another. In this case, there was evidence to the contrary, there was no expert evidence to help the trial judge determine how a joint custody order would advance the child’s emotional and psychological needs and the child was too young to communicate her own wishes.

Approximately the same time this case was decided, the Court of Appeal also ruled on the case of Ladisa v. Ladisa, where the appeal court upheld the trial judge’s order of joint custody. In this case, the trial judge had the benefit of hearing the evidence of the Children’s Lawyer who presented the children’s wishes and who recommended joint custody. It was held that the trial judge had heard evidence from third parties with respect to cooperation and appropriate communication between the parties. The trial judge also looked at the history of co-parenting during the marriage and that despite their intense conflict, the parties could and had effectively communicated with each other and placed the interests of their children ahead their own, when required.

To summarize, in  some joint custody cases, it would appear that the courts will now be looking more closely for evidence from third party and expert witnesses, which can demonstrate that the parties can and have cooperated and communicated appropriately and have been able to put aside their own differences and conflict, for the benefit of the children. The lack of historical cooperation and appropriate communication between the parties will greatly limit the success of a joint custody application. The assumption by some, that the granting of joint custody will improve the parenting skills of the parties, will not be a sufficient reason on it’s own to grant joint custody, in the absence of existing good cooperation and communication between the parties.

Helping the Kids Get Through Divorce

Any child going through a divorce is going to experience some emotional pain, feelings of loss, sadness, frustration and possibly abandonment or rejection. As parents it is important to help children through this difficult time in their lives and to protect them as much as possible from the divorce process itself, as well as the changes that will occur, both now and in the future.

As a parent there are several things that you can do to help your children get through the divorce with as little difficulty as possible. Both parents working together on this goal can make it even easier for the children.

Love

Children at this time need even more love from parents than they did prior to the divorce. This means telling your children every chance to get that you love them, think of them often, and will always be there for them. Try spending some extra one-on-one time with your kids and encourage them to talk about their concerns or fears.

Support and security

Just like love, kids need to feel that they are supported, secure and safe during the divorce. Often children feel very insecure about their relationship with one or both of the parents, and may feel that the parent that moves out of the house has rejected them. Talk to the children about the divorce, and explain that both parents will still be very involved in their lives. Show children your support and commitment to them by being there, and following through on any plans or events. Children may also feel that the custodial parent may not have the financial means to support them, especially if money is an issue in the divorce or in the disagreements leading up to the divorce. Assure your children that you have this under control. Children should not feel concern over financial affairs; they need to know that Mom and Dad have this handled.

Avoid conflict

Children need to see that Mom and Dad still can work together to be good parents. Kids should never be exposed to fighting, negative comments about the other parent, or conflict between parents. If you have a high-conflict situation try exchanging the children at a neutral spot like a restaurant, or perhaps leave the children with a friend and have the other parent pick them up there so you don’t have to meet face to face. It is critical that children not be exposed to the stress and anxiety of parental conflict.

Extended family

Talk to your extended families to make sure that they are following the same expectations for providing love, support, and only positive comments. Encourage your children to talk to other family members about the divorce if they feel comfortable with this.
Set a routine and schedule

As soon as possible set a schedule for children to spend time with both parents. Try to stick to the schedule as much as possible as this allows the children to plan for times with both parents, and to feel a part of both parents’ lives.

Be consistent

Try to set similar expectations for chores, discipline and daily routines in both Mom’s house and Dad’s house. This is particularly important if you have younger children, as they will adjust to spending time in both homes much quicker if they are consistent.

What Counselors Say About Kids and Divorce

Most counselors will support a joint parental communication to the children about the pending divorce. However, a joint discussion about divorce with the children does require that you and your spouse be able to maintain a basic level of civility, if for no other reason than to maintain your children’s peace of mind. If you and your spouse cannot be civil, do not attempt to discuss this issue together with the children.

If your marriage has been rife with conflict, your children may be aware of or even welcoming the relief of a parental separation and/or divorce. Do not be surprised if you find out that your children know more than you thought, even if you have been attempting to conceal the conflict from them.

The issues that your children want to be reassured about involve where they will live, where they will go to school, whether their activities and daily lives will be disrupted, and the degree to which they will be able to maintain their relationship with each parent. Teenagers can be particularly vulnerable and sensitive to disruption in their lives and schedules. If you are able to work out a parenting schedule with your spouse, it is acceptable to share that with the children to reassure them. It also can be acceptable to involve the children in the process of setting a schedule. However, that issue can be very delicate. You do not want children dictating to the adults and you do not want the children to have limited contact with either parent.

Above all else, do not discuss marital fault issues or the reason for the divorce with your children. Even if you think that your spouse is the worse miscreant on the planet, that spouse is your children’s parent. Your children want to and are entitled to love both parents. That a spouse cannot make a marriage work does not dispossess them of the right to be a parent. More important, it does not dispossess the children of the right to love that parent and have a relationship with the parent.

Consider that you may have a range of reactions from your children about the pending divorce. They may not be surprised. Or, they could be upset and shocked. In many cases, even when they are not surprised, the children might be angry or blame themselves. Work with a professional to address all of these emotional reactions. Your children will adjust to your divorce, if you provide the proper guidance and assistance during that process.

Medition and Contested Child Custody

In cases where it is child custody is contested, family lawyers therapists and mediators can help get parents in this difficult situations, it is necessary that the plan developed is child-centered so that their children’s interests are taken care of.

Most of the cases can be solved through a mediator, it might be a private one or someone sent by the court, if the couple is unable to reach a plan in the process of mediation next process that they could enter into is the evaluation. Mediation takes place for 90 minutes in court-assigned cases, however, in order to have full discussion this time limit can be extended further. In the case of private cases, there is not time pressure.

Mediators help collect complete information about each parent and organize this information in a useful way. During mediation, all history of both the parents is extremely useful. All aspects including childhood, past divorces, past history, parent’s history, parents’ marital status, siblings, relations with siblings, history of crime, domestic violence, etc. are also taken into consideration. You as a parent must be prepared to show yourself in the best possible light.

What to Expect at Mediation

Mediators and evaluators look for red flags, which mean that there are certain details like dates etc. which do not match among both the clients. Mediators and evaluators then may challenge the dates and timelines. The more each can see with one another’s perspective, the more constructively proceedings will take place.

In order to be successful in presenting actual parenting plan, mediators and evaluators should try to make their clients understand that they should present themselves to be reasonable, articulate and flexible parents and that they should not in anyway disturb the court in anyway while proceedings are on.

Talking to Kids About Divorce

Whether your divorce is amicable or contentious, when and how to tell your children can be a difficult issue. Your children may already know that there are difficulties in your home life and marriage, but you may be surprised at the level of their sophistication and knowledge about divorce. Even if they are relieved to hear that a difficult home life is about to change, do not ever underestimate the degree to which your divorce can impact your children. The adults are not alone in feeling the stress and hurt of a strained family situation. You must take special steps to insulate your children and help them through the divorce process.

There is not one simple outline that provides all of the right answers and information on how to guide your children through the divorce process. When and how to tell your children about the divorce will depend upon your individual family dynamics, the maturity of your children, the ages of your children, the conflict level in your house, and your own individual preferences. If you are unsure of how to present this issue, it is a good idea to obtain professional help to do so. Many counselors are well versed in addressing divorce issues with children and they are available to guide you through this process with your children.

The type of divorce situation presenting itself in your family will have some impact on how and when you present this issue to your children. If you and your spouse are amicable, and your divorce is low stress, your children may not even be aware of the possibility of a break up. While that means that the divorce conflict has not impacted upon the children as of yet, it does not mean that it will not. Your children might be even more affected by the news that you are divorcing if they were unaware that there were problems in your marriage. If you or your spouse has been working with a counselor, either together or separately, that counselor can lay out some simple strategies on how to tell the children. Basic information that you want to discuss with the counselor is whether you tell the children together or separately and what information you can or should give the children about what their living arrangements will be in the future.

It is never acceptable to disclose that you and your spouse are getting a divorce when you are in the middle of a conflict. To place blame on your spouse, or to provide information in a way that conveys blame or fault may make you feel better in the short run. In the long run it will hurt your children, and it will impact your long term relationship with the children’s other parent. Also, courts frown on providing children with adult level information and details about your divorce. Do so and you risk hurting your legal case, if your divorce will be presented to a judge.

Parenting After Divorce

Separation is a challenging time for many parents because it is an adjustment to a new way of life. There are both positive and negative factors to separation and the corresponding changes, but one of the issues that can arise is the differences that parents may have in the ways that they parent the children. The key point or focus that parents need to address is that they must put the best interests of the children first, and that their role is to continue to be the best possible parents to their children, even though they no longer live in the same home.

In order to put the interests of the children first parents that are separated need to consider the following issues, and determine how they can accomplish the goal of putting their kids first and provide love, safety and security for their children.

Communication

Maintaining the lines of communication is critical to continue successfully parenting the children. Many incorrect assumptions are made that the other parent is aware of scheduling changes, school events, outings or other issues affecting the child. Often parents expect children to be the messengers between them, and this is a very difficult and emotionally harmful role for you child to have to play. Parents should discuss and determine a method that will allow them to continue to communicate about the children and to work together to make decisions in the best interests of the kids. This communication may be done by fax, email, voicemail, phone calls or
face-to-face meetings, depending on the level of comfort or conflict.

Flexibility

No matter how carefully you plan or schedule your life there are always things that come up out of your control. As parents it is important to realize that this can happen for you, your ex-spouse and your children. Try to be as flexible as possible and allow the other parent and the children to have time together whenever possible.

Joint decision making

If you are able to communicate as coparents it is important to keep in mind that joint decision-making is usually in the best interests of the children. For difficult or major decisions it is helpful to get the other parent’s input and opinion to prevent further conflict down the line. Most parents want to be a part of their children’s lives even if they don’t live in the same home as the children, and using a joint decision making process helps them stay connected to the children and helps to provide a sense of security for the children.

Stay positive about the other parent

It is important to allow the children to have the most positive relationship that they possibly can with both of their parents. The more positive, respectful and civil that Mom and Dad can stay with each other the more comfortable, secure and stable the children will view their new lives. Children need to understand that separated parents are still Mom and Dad, and will still continue to be a part of their lives, even thought they live in different homes or even in different communities.
Keep explanations to children as simple as possible, and avoid any negative comments about the other parent. As separated parents stay flexible, communicate openly about the children and allow maximum contact between your children and the other parent.

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