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family custody

California Family Code Section 3042 Gives Children a Voice of Preference But When Should the Judge Listen?

State: 
California

Family Code section 3042 was enacted on January 1, 2012. It didn't change California law but sent a subtle message to family law judges - "start listening to children who are old and intelligent enough to state a preference."

I need help finding the paperwork for divorce with a child. I need custody ...

State: 
Florida
Question: 
I need help finding the paperwork for divorce with a child. I need custody of my daughter that im being refused to see right now
Answer: 

You can find the form to use to file for dissolution of marriage with a minor child at
http://www.flcourts.org/gen_public/family/forms_rules/901b1.pdf. However, filing for divorce can be a complicated process, and you may want to discuss your case with an experienced Florida family law attorney to protect your legal rights.

Attorney: 
elizabethcarlsen

child custody

State: 
Tennessee
Question: 
what do you do when you find out that your ex wife has left the usa and left your son with her brother and i pay child support and they have a power of att. paper and its not legal i checked in the court its not filed i have visation with him and she didnt let me but the brother just started letting me dont i have the the right to have legal custody of my son since she left the usa and remarried in another country she didnt even tell me anything about it. any advice
Answer: 

 


As the number of marriages between foreign nationals and American citizens continues to increase, so do the numbers of violations of US family court orders. One ‘positive’ in is that there are more laws being passed to deal with foreign jurisdictions and illegal child abductions. While your Ex may not be legally guilty of ‘kidnapping,’ she certainly seems to have committed a wrongful “retention” of the child, owing to your rights of visitation. Here’s a place to understand the difference: http://travel.state.gov/pdf/International_ Child_Abduction _Remedies_Act.pdf. One major issue will be where she went, and that country’s legal relationship with America.


 


Be calm, careful, and calculating. The primary object is to protect your child’s legal right to contact with you. Your intent is not to interfere with the mother’s rights, even as you can prove she has interfered with your rights and the child’s welfare, and not acted in the “best interest of the child….to have both parents involved.” See, for example, http://www.fact.on.ca/ Info/pas/borris97.htm. As that article points out, there have been civil lawsuits against a parent who essentially ended a father’s relationship for no reason.


 


At this point, avoid making any threats or promises about your getting the child back. Try to appear co-operative, even as you plan a legal strategy for the child’s safe return to America, and an American court.


 


Depending on your financial ability, you may be eligible for low cost legal aid. Try Tennessee legal aid http://www.tals.org/legal-aid-services-tennessee or the Tennessee Pro Bono program http://www.tba.org/info/program-aids-pro-bono-efforts-across-tennessee.


 


Has She Flatly Refused To Return?


 


Be ready to completely but simply document her actions and steps in taking the child out of the country. If there’s any possibility that you can peacefully communicate with her, simply to keep updated about the child’s welfare, then do that. The best alternative right now would be for the child to visit you. Frankly, even if you told her that you were not challenging her “right” to live overseas, simply try to get the child back for a visit. Once here, then US courts have physical jurisdiction over the case.


 


The answer to whether you can get custody, based on her leaving the country, will depend on several other factors. What her conduct almost certainly will mean is that you are entitled to a new hearing on her failure to follow the court order, and this may result in the need for a change in the custody order. Here’s a sample Family Court site: http://www.rutherfordcountytn.gov/juvenilecourt/localrules.htm#17 with the types of relief you may ask for. Note the “Request For Extraordinary Relief” and Ex Parte rules. In short, you can try to get an emergency order and ask for temporary custody: you will prove to the judge the child has been taken out of the country against the Order. If the judge grants the request for temporary custody, your later obligation (if you can get the child back) is to go back not court for a new custody hearing.


 


Again, keep in mind, if you can get the child back for a supposed “visit” (even agreeing to a closely supervised visitation at a US airport), then you can serve the mother with papers, and get US law enforcement to keep the child in America.


 


Also, be ready for the worst. It’s fairly typical in these cases for one parent to make false accusations about “why” they took a drastic step of removing a child from one jurisdiction. At the very least, you can expect to be accused of being “emotionally abusive.” By anticipating this, you need to keep two things in mind: (1) to have evidence you never presented any danger to your ex-wife or child and (2) that many people will refuse to help you based on this accusation, especially if you lose your temper in the process.


 


 


Tennessee Custody Rules: What the Order Says


 


The strongest point you will be able to make must be based on what the original custody order said. Look for key phrases regarding travel, notice about travel, and a request for permission to move. Most orders require a request to the original court, before the child may be moved beyond a certain distance, or if it interferes with a visitation order. It sounds as if the brother and mother are trying to use a trumped-up document (the so-called Power of Attorney) to obscure the original Order’s intent.


 


“Power of Attorney”


 


You mentioned her having that so-called “power of attorney,” but it’s not likely (as you discovered by looking at court filings) to really mean anything. One thing you will want to check, however, is whether the mother used this ‘document’ to make any fraudulent claims…such as to obtain a passport for the child. Your local Congressman should be willing to help check this through Homeland Security.


 


In the same way, do another records search, and find out if the mother and her brother have been in legal problems before they left. If they have, this is extra evidence to support your custody claim. Here’s one place where you can learn about searching court filings online, based on their names: http://ccc.nashville.gov/portal/page/ portal/ccc/caseSearch/caseSearchPublic/caseSearchPublicForms/.


 

Attorney: 
DakotaLegal

What can i do if the father is behind on child support payments? and misses most of his schedule weekends? ...

State: 
South Dakota
Question: 
What can i do if the father is behind on child support payments? and misses most of his schedule weekends?
Answer: 

 


Let’s look at several important options, and they are based on what’s best for your children. I start off with an assumption that you are talking about the Ex not following an official court and/or state order for support, and that there is also an existing visitation schedule. Sometimes, though, people talk about purely voluntary agreements and informal (non-court ordered) arrangements…especially when a couple was never married. If you are in this group, and have only an informal arrangement, but need help to actually look at how custody is decided, there’s a good place to start. This is also a place to begin, if you haven’t gotten the State to help collect child support: http://dss.sd.gov/ child support/. You should compare the existing visitation order you have been using, with the general rules and samples of weekend visitation used by courts in South Dakota: http://www.sdjudicial. com/forms/parenting time.aspx.


 


The other important thing is to be sure you are protecting the child’s best interests. No matter what specific facts exist regarding not meeting the support and visitation order, a court won’t mix the issues of visitation and support obligations. It would be unfair, for example, to stop visitation because a parent falls behind on support…this would be harming the child in two separate ways. If it can be shown you denied or blocked visitation, your Ex may be asking for a new custody order: http://www.docstoc .com/docs/66530072 /Child-Custody-Form-South-Dakota---PDF.


 


On the other hand, if the reasons the Ex is no longer meeting his obligations, also means there’s a risk to your child(ren) visiting him under the old order, then you might consider going to court for an emergency modification of the old order. Here’s information on getting emergency orders in South Dakota: http://www.sdbar.org/phamphlets/Protection %20Orders.pdf.


 



  • Enforcing The Court Order

 


You need to look at exactly what the order said. You’ll also need evidence of how the order has not been followed. You can do this in several ways, including a calendar with notes showing the Ex’s failure to show up. You may have receipts for events on the weekends the Ex failed to show. You need to be able to prove not only how the Ex has failed to be there, but also if he has given you any notice, or reasons, for not being there. By the same token, be ready to show you have followed the order. The simpler you can make all this evidence, the better. You might get a witness, who has knowledge of why the Ex not showing.


 


You have a right to ask for an order of contempt against the Ex: use the late fee forms section… http://www.sdjudicial.com/forms/default.aspx.


 


Avoid involving your child(ren) in this dispute. By that I mean, don’t get the kids to take sides. Avoid arguments that involve claiming that “the kids say” or that might indicate you are “turning” them against the Ex.


 



  • Excuses To Change Support Payments

 


There’s every chance your Ex will try to have some reasons for falling behind, or even to ask for a reduction in his child support. Have financial records showing when and how many payments had been made, and what dates they were paid. If you have knowledge that he can meet his obligations, then be ready to prove it.


 


Even if the Ex succeeds in lowering future payments, you will have claims for legal costs, arrearages, and possibly interest, caused by his failing to follow the order. If you do this on your own, be ready to prove these costs.


 


 



  • Do You Need Legal Help?

 


However you first managed to obtain the support and custody orders, you may already have had  access to a lawyer. You can go back to that lawyer (if you had one) and they should give you a free consultation. Depending on your income and assets, you may get free help from South Dakota legal aid: http://www.erls.org/ (or call 1-800- 658-2297) or in the alternative (emphasizing aid for Native Americans), here: http://dpls.org/.

Attorney: 
DakotaLegal

Our grandson has lived with us most of his 2 years of life...my daughter wants to give us full custody of him,his father has no rights to him at all.....i live in Oklahoma how do i go about getting custody? ...

State: 
Oklahoma
Question: 
Our grandson has lived with us most of his 2 years of life...my daughter wants to give us full custody of him,his father has no rights to him at all.....i live in Oklahoma how do i go about getting custody?
Answer: 

 


Plan on taking some time to actually build a case, going from a right to care for your grandson, to asking for full legal custody or even adoption (if you decide to terminate the parents legal rights). First and foremost, you need to understand the ideas behind Oklahoma’s guiding legal principle of deciding who gets custody: that’s “the best interests” of your grandson.


 


After discussing what implications the “best interests” test has for you, in terms of the types of custody in Oklahoma, let’s talk about (a) the important role of grandparents in Oklahoma, (b) the issues about the biological mother and father, (c) how an Oklahoma family court judge applies custody law, and (d) how to try and get some affordable legal help in the process.


 


The Idea Behind “Best Interests Of the Child” Rules


 


Most states have adopted some kind rule, making a custody case all about what’s good for the child. Courts look to see if the proposed custodians avoid making the case about their own feelings, and not to view custody as something to be “won” from another party. Sometimes, this calls for a judge looking to see who is most willing “to work with all interested parties” Often described as “co-parenting:” http://pods.dasnr.okstate. edu/docushare/dsweb/Get/Document-2415/T-2381web.pdf), co-parenting is used to promote a richer family experience. Here’s a general guide to the use of “best interest” tests: https://www.child welfare.gov/systemwide/laws_policies/statutes/best_interest.cfm.


 



  • The Types Of Child Custody in Oklahoma

 


You need to see what kind of custody you already have. If you have been making medical appointments, deciding school enrollment, and major decisions regarding where the boy lives, then you already have physical custody. You’ll need to consider if you can protect the child’s “best interests” by seeking: primary physical custody, or perhaps sole legal custody, or some combination of the two. Here’s a useful guide from the Oklahoma Bar, noting “primary” custody is usually with the person who has custody 182 days a year or more: http://www.okbar.org/obj/articles09/112109-wilson-child-support-guidelines.htm.


 


The Special Role Of Grandparents In Modern Child Rearing


 


I assume from your comments that you are half of a grandparenting team. The issue of grandparent care has become so important, the AARP has issued a guide to help grandparents who need to raise their grandchildren: http://www.aarp.org/content /dam/aarp/relationships/friends-family/grandfacts/grandfacts-oklahoma.pdf.


 


Mother versus Father?


 


Though you said the father has “no rights to him at all,” this is probably more of a statement about the factual reality of the last two years, than the legal fact of custody. There’s even a chance the father has equal rights (unless a court has already issued a protective order?). For example, were the parents ever married or in a stable home environment? Is there a pending divorce? Are either of the parents in prison, addicted, or in the military? Has the mother blocked the father from having any contact with the child, or perhaps not even told the father about the child? If any of these special facts occur, the apparent absence of the father may be excused.


 


And a court won’t simply take your word for the father’s wishes or status. They will want to obtain information directly from the father. As you prepare a case for being the best home for the child, be ready to anticipate what the father will be likely to say. He may even try to get visitation when confronted with a loss in custody.


 


 


How A Judge Looks At A Custody Case


 


Here’s a guide, listing both the major laws in Oklahoma, and how visitation schedules are preferred by a judge: http://www.oscn.net/forms/aoc_form/adobe/Dom.-Standard-Visit-Sch.-Advis.%20Gdelns.pdf.


 


Some Affordable Places For Help In Oklahoma


 


Investigating legal custody can become very expensive if there are any allegations of abuse or abandonment. Possible abuse does not even have to be specifically alleged against you to be a serious or relevant issue. If, for example, either of the parents have been charged with abusing or endangering the child, there’s a good chance your connection to the alleged offender will be viewed as a potential part of a “cycle” of abuse. Try to get some help from the Oklahoma Legal aid system http://www. legalaidok.org/. You may also be able to lower your legal costs by doing much of the custody process through ‘self help’ sites such as http://oklaw.org/.

Attorney: 
DakotaLegal

Child custody, seperate states, no court orders to date

State: 
North Carolina
Question: 
My ex and I have a 7 yr old boy together. We never married however his name is on the birth certificate by affidavit. We have had no court ordered custody and the child has spent his entire life with me in NC, his father left us to join the military before he was a year old. The father has paid a lower end amount of monthly child support, not through the courts, I once asked for it to be raised as the child is older and has more needs, he got angry and declined so I left it at that. I have done everything I can to be nice and make things work, allowing him to get the child most times he has asked as his job (military) has him living out of state and not around very often, however this has included giving him most holidays as the child is out of school to be able to travel to his fathers state. He didn't seem to want much to do with our child until he got married however, even stating himself that he had been taking our child forgranted. Everything has been ok for a while. However now the father is in the middle of a divorce but is still sharing a house with his separated wife, he is also dating another military members separated wife while they are in the process of their divorce as well. He wanted to take our son to his home for a month this summer, keep him in their house where I have been informed from numerous sources there is a lot of stress and fighting, and have his gf (also going through a tough divorce), who has never met our child watch him while he works. I told him I did not think this was a good idea and offered for him to come up with any other way for them to spend time together which he refused. Our son is highly intelligent and emotional and I fear that the situation would be too much for him, he picks up on the slightest things and it really upsets him. He has also told multiple family members that he does not feel he gets the attention he needs when he is there, before the divorce came up. I tried to explain to his father that I don't want to keep them from spending time together, they do need it, but I also cannot put my child into a situation that is potentially harmful for him, his health and safety is my top concern. Rather than trying to figure anything out his father has threatened me with lawyers, jag to be specific, stating that this will not happen again. What should I do from here to protect my son and the life he has always known and loved. Both sides of my sons family live in NC except for his father, stepbrother and half-brother. His father hardly ever even calls him, he only calls when he is planning a trip to NC and wants to get him, never just to talk to him or see how he is doing. I don't feel that I have been unreasonable in our situation, I also told him that our son really needs one on one time with him, something that he never gets, his only response was "I can't do that".
Answer: 

There is one very, very big risk: if there has been no formal court step (such as filing for custody), then the father has every legal right you have. Even though you have obviously been the primary “parent” to your son, you might even have to fight to get him back if the father decides to try and keep him. This is a very big risk, since you said the father is often in a different state, and you send your son there. It’s good you have worked to keep the dad involved, though, because one of the factors a judge considers is whether a parent encourages (they may use the word “fosters”) a positive relationship with the other parent.


 


Here’s a checklist under North Carolina law (N.C. Gen. Stat. § 50-13.2(a) of what goes into deciding custody http://www. ncga.state.nc.us/gascripts/ statutes/ statutestoc.pl?Chapter=0050). Here’s a “10 Point” checklist of how a judge evaluates placement: http://www.lawhelpnc.org/resource/factors-considered-by-the-court-in-a-custody. The first issue in temporary custody will be safety, and then (second) who is the primary caregiver? Be able to have witnesses and evidence (include school records and medical apportionments) to show you are that person.


 


One you have evidence showing you are the primary caregiver, begin thinking about what you think is a fair visitation schedule. Here’s a judge’s guideline for how they decide visitation: http://www.jud10.org/AdministrativeOrders/orders/Section5/Apps5-20.3/5-20-3.app4.pdf.


 


Legal Help


 


There are some places to go for immediate help. Depending on how much money you’re making, or what assets you have, you might get free legal aid or advice: http://www.nc freelegalhelp.org/ or try here  http://www.legalaidnc.org/. There are even possibilities of getting some help from domestic shelters, who have a lot of experience in advocating for children and in family emergencies…http://www.nccadv.org/service_providers.htm.


 


If anything does happen before you get a chance to talk with a lawyer, there’s away to get an emergency order. You can also file for an emergency hearing, especially if you have a concern about your son being taken away (or, worse of all, he is taken): you can go here, and write in the words “emergency” to find the family form you may need (whether worried about assault or the child being endangered, or taken away) http://www. nccourts.org/Forms/FormSearch.asp.


 


But once you file for custody, then your son will have more protection from simply being taken away. This will also force the father to deal with the court that is  most convenient to you. Look here, for information on how Family Court runs in NC: http://www. nccourts.org/Citizens/CPrograms/Family/.


 


One Other Caution… You know your son has made some comments about “I do not feel I get the attention I need when I’m there.” Court judges have a real worry and dislike about the possibility of kids being used by either parent to take sides. Since your son is only 7, the judge is unlikely to want to rely strictly on the boy's preference of home. Avoid encouraging these comments and don’t use them in court. It puts the child in too hard a place to choose between you. Instead, judges will look at other factors than a child’s comments to a parent, about which parent to live with: including having a home study evaluation.


 


To help keep the focus on your son, there are two steps, and both of them may help show the court you understand this focus. One, consider taking some parenting classes, including how to cope with any possible changes in custody. Two, you can study a little bit about what it remains to have your son’s “best interests” at the center of this process. The Supreme Court of North Carolina put it very simply, saying “the welfare of the child” is the most important thing, and that includes “happiness.” http://www.nc lawreview.org/ documents/ 90/ addend um/lapp&radice.pdf. Here’s some more information on proving that “best interest” is your goal: https:// www.childwelfare. gov/ systemwide /laws _policies/ statutes/ best_interest.cfm.

Attorney: 
DakotaLegal

if there is another child in the household that is not a sibling is suicidal and has homicidal tendencies that is proven with police reports and doctor records, is that enough to win custody for a child or at least give a fighting chance ...

State: 
Massachusetts
Question: 
if there is another child in the household that is not a sibling is suicidal and has homicidal tendencies that is proven with police reports and doctor records, is that enough to win custody for a child or at least give a fighting chance
Answer: 

 


It sounds as if you’re the one who wants to “win” (we’ll talk about using the word win, in custody cases) the child, and you have strong worries about the child’s safety. Always, in these cases where there are serious “minuses” in a home environment, a court will talk about the “best interest of the child.” This is a legal standard, different in every state, and a good place to start. Here’s an example (especially on page 3) of Massachusetts’s meaning of “best interest of the child”: http:// www. bu.edu/law//central/jd/organizations/ journals/pilj/ vol14no2/ documents/14-2JohnsonNote.pdf.


 


On thing judges look for are signs that one parent may accept the well-being of the child…even, over the parent’s own needs or preferences. As an example, some judges even react to any suggestion that a parent ‘wins’ custody. It can help you to begin to use some of the same language and thinking a judge uses to decide custody. This can also show your willingness to learn.


 


 


Is There Already a Custody Order?


 


Depending where you are in the custody process, you will have a particular legal burden to bring evidence about the proposed home. As we talked about above, this issue will be either a part of the complete picture (if you are just starting custody), or (if there’s already a Custody order) an important and new “change in circumstances.” We’ll talk more about that below.


 


If this is early in the process, you will definitely want to get expert legal help to document the risks posed by the other child. Try getting affordable legal help here http://www.mlac. org/ or through Massachusetts’ Bar Association http://www.massbar.org/for-attorneys/ professional-development/mba-pro-bono-opportunities/pro-bono-opportunities-guide/law-student-pro-bono-assistance.


 


 


The Importance Of Proving A “Change In Circumstances”


 


If a custody order has already been entered, a court is unlikely to very quickly change what should have been a thorough (but difficult) custody process. On the other hand, a court will consider any change in circumstances that presents important new information. The power of a court to do this is because a court keeps “continuing jurisdiction” over the welfare of a child: once again, using the “best interests” test.


 


You can point out that the role of a household member is important in deciding custody, but a court may be reluctant to explore these domestic/housing relationships, if it could have been argued earlier (for example, in a prior custody hearing). Here’s a case you can use to show that a domestic relationship (this may also technically be a half-sibling?) was (a) important and (b) should be evaluated with an eye on being “safe and appropriate.” http://caselaw.findlaw. com/ma-court-of-appeals/1376246.html.


 


 



  • What if this is an emergency?

 


There is another path to addressing your worries, if this is a dangerous environment, where imminent harm may occur. You can look here to get information about how to file for an emergency custody hearing… http://family-law.lawyers.com/child-custody/ Emergency-Temporary-Child-Custody.html and a form for that emergency filing, here: http://www. mass.gov/courts/courtsandjudges/courts/probateandfamily court/ documents/cjd400.pdf.


 


What Is Your Child’s Age?


 


Your child will have some kind of important input into the custody process. Again, this will vary depending on whether you are trying to modify an existing order or arguing for custody. The other major factors will be the age and maturity of the child. I’m stressing those factors here, because the ability to build a psychological profile may be invaluable to informing the court. You can and in this case should seek an evaluation of everyone who will be living with your child: including this troubled child with homicidal impulses.


 


You can also look for volunteer help from some area psychology programs, to see if your child is experiencing fear from an awareness of the danger. In this entire area of your child’s fear of danger, it is vital you do everything you can to keep from unduly biasing or frightening your own child. Here’s a potentially helpful guide to the role of psychological evidence in custody cases: http://www.apa.org/practice/guidelines/child-custody.pdf.

Attorney: 
DakotaLegal

will not allowing my child's father to take him for the summer affect my open case on him not paying child support? ...

State: 
Texas
Question: 
will not allowing my child's father to take him for the summer affect my open case on him not paying child support?
Answer: 

 


It shouldn’t. A judge will tell you (a) paying of child support and (b) a visitation schedule have nothing to do with each other. The problem with that philosophy might be the judge hates getting involved with taking sides between two parents. This is especially true if neither of you are following all of the Court’s orders. Courts can quickly hate getting dragged into an exacting fight…when neither side can justify their actions as being “in the best interests” of their child.


 


As we’ll discuss, hopefully your decision to not ‘allow’ a summer visit has nothing to do with the non-payment of child support.


 


In short, this could turn into a mine field. For example, if the father can prove he spent legal costs, money for a planned vacation, or lost income because of not seeing the child, you may face legal costs for an enforcement hearing on contempt. And in that sense, yes, it might have an effect on what happens financially (albeit indirectly). Depending on your ability to pay for legal help to settle this, there may be a more affordable option. You can try http://www.lonestarlegal.org/.


 


The Duty To Follow A Payment Support Order


 


Let’s start with the strong point on your side. There are plenty of Texas cases discussing why support has to be paid, even if there are important disagreements over visitation, between parents.


 


I’m not sure if you are being helped by Texas Support enforcement (https://www. oag.state .tx.us/cs/index.shtml) or have actually filed a petition with the Texas family court. There is also an option for you to work with a private credit collection agency to try and get support… http://www.supportcollectors.com/resources_texas.php. As with any private service you contact online, however, be careful not to pay any upfront fees or to disclose private data before being sure they are legitimate.


 


Here are also some links to forms you can use to encourage your Ex husband to comply with his payment obligation…such as license suspension rules (https://www. oag.state.tx.us/ AG_Publications/pdfs/cs_faq.pdf) or income withholding forms, here: http://texaslaw help.org/resource/do-it-yourself-court-forms-free?ref=YYUkU. The Texas AG has also listed other tools to get past due support, from suspending a passport to seizing bank accounts and property: https://www.oag.state. tx.us/agency/weeklyag/ 2006/0406csd.pdf.


 


Your Reasons For Preventing Any Visitation?


 


I’m assuming there is already a visitation order in place. Obviously, you’re under much less legal risk if you only have an informal agreement with the Ex, to try and have certain scheduled visits, at certain times.


 


You may have even have had good reasons to try and prevent the visitation. The visit may have meant some risk to the child. What can help you is to have evidence of the risks, and being able to present those facts in a reasonable way. This may also include some apologizing to the court for not trying to get an emergency order, and not trying to make elaborate excuses for something you regret doing. Here’s the law to look out for:


 


(e) The movant may allege repeated past violations of the order and that future violations of a similar nature may occur before the date of the hearing. http://www.statutes.legis.state.tx.us/Docs/FA/htm/FA.157.htm


 


This may mean you have a serious problem, if this is not the first time you might have prevented a visitation without telling the court why. There are also court decisions where a visitation was blocked by the mother, but in one case the mother also filed for a change in child custody to restrict the father’s contact with the child. In answer, the mother was charged with contempt for not following the visitation order. http://caselaw. findlaw.com/ar-supreme-court/1383569.html.


 


One result if you were charged and convicted with contempt would be the chance of paying your Ex’s court costs, attorney’s fees, and any other damages associated with the contempt. It is possible (but not very likely) you could even go to jail.


 

Attorney: 
DakotaLegal

can I get custody of my grandchildren? I have supported them since birth, what do I need? ...

State: 
Texas
Question: 
can I get custody of my grandchildren? I have supported them since birth, what do I need?
Answer: 

 


Yes, it is possible for children’s major caretaker to get full legal custody. Let’s talk about what usually has to happen, (1) to understand the custody process, and (2) who has rights in that process. You’ll definitely want to at least talk with a lawyer, since there are going to be competing claims to custody in any custody case. This link can help you find local, low-cost legal advice: http://www.trla.org/.


 


What Kinds Of Custody Are There In Texas?


 


This is especially important for you to understand, because it is very common for kids who are in a bad situation to have changing types of custody. Now, the fact I'm assuming is that you’ve been primarily raising the kids. This may mean the parent(s) are not interested or capable of raising the kids. But the reasons you have present care is going to be a threshold issue, because the law presumes parents can raise their kids.


 


If two parents are fighting over custody, Texas courts prefer they work it out and reach an agreement. This often results in joint legal custody, where both parents have equal say in major decisions. Under Texas Family Code, Chapter 153, Texas custody laws require the best interest of the child always be the primary consideration. http://law.justia.com /codes/texas/2005/fa/005.00.000153.00.html.We’ll talk about that again, later.


 



  • Have Evidence Of Your Role

 


I assume you’ve been making basic decisions for the kids, from residence, to medical care, religious upbringing, and where they go to school. It is not necessary you have a highly detailed diary, show every hour kind of journal or calendar. But you should be able to have a general calendar, starting in Year X and coming forward to the present. Receipts can be helpful in giving a general picture of how you have cared for the kids. This way, in case the Texas DFPS tries to intervene, you can show what you have been doing and why the kids should stay where they are.


 



  • The Forms Used For Adoption

 


Here are the forms you need to file in court…http://www.txcourts.gov/pubs/pubs-home.asp. They may look complicated, but they are very useful to look through (several times) so that you can begin to see what evidence you need to be awarded custody.


 


 


Who Can Make A Custody Claim?


 


Grandparents have some special rights to seek conservatorship. Here’s an article, and you should read the section on page 7 about grandparents’ rights: http://vernerbrumley. com/downloads/Grandparent%20Rights.pdf.


 


As mentioned, having at least some legal help is almost always essential. Most of us are too close to our own case, to really be able to work well in the legal system. For example, you may have too many details about what happened, while a judge is going to want to get a general picture. So one thing I suggest is to try and get a perspective of what a judge is trained to look for in deciding custody. Everything a judge is supposed to do is through the prism of answering the question: “What is in the best interests of the child(ren)?” Here’s a workbook many judges use to review that process… http://apps.americanbar. org/legalservices/probono/childcustody/judges_guide.pdf. In that booklet, look at page thirty-five, because in your case (as a relative), there will be a real emphasis on mediation. This reflects a court’s desire to keep all the ties of a family as connected as possible, as long as the children benefit from those connections.


 


Here’s a checklist for anyone wanting to be awarded custody:


 



  1. Whether the physical, psychological, or emotional needs and development of the child will benefit from the appointment of joint managing “conservators.”

  2. The ability of the conservator to give first priority to the welfare of the child and reach shared decisions in the child's best interest

  3. Who can encourage and accept a positive relationship between the child and the other parent

  4. Whether the parents participated in child rearing before the filing of your suit

  5. The geographical location of the parents' residences.

  6. If the children are 12 years of age or older, the children’s preferences regarding who should have the exclusive right to designate the primary residence of the child.

  7. Other “relevant” factors such as ability to care for them, abuse, or previous neglect.

The more you work through the process of showing you emphasize the best interests of the children and not your own personal desires to have custody, the stronger your case. One judge has said this often shows when someone wanting custody stops thinking of the custody as something to ‘win.’

Attorney: 
DakotaLegal

what is the chance the father can get full custody of the child if both parents work and the mom goes to school ...

State: 
Texas
Question: 
what is the chance the father can get full custody of the child if both parents work and the mom goes to school
Answer: 

 


 


On paper, there’s an increasing chance that a father can actually have full custody. There used to be a legal rule that favored a mother for custody. That rule was called the Tender Years doctrine and was common in most states. Now, most states have shifted over to favoring what the parents can work out, so long as it’s “in the best interests” of your child. And in more and more cases, especially for young kids, courts do now tend to favor same-sex placements. If all other factors are equal, this may be the deciding factor. In fact, though, there are types of custody in Texas. What’s favored now is the fairly new idea of “co-parenting” (or what I like to call co=parenting). https:// www.oag. state.tx.us/ag_ publications/pdfs/coparenting.pdf


 


By itself, just being busy (school and full time work) won’t mean someone will not be able to have full custody. In fact, parents are encouraged to improve their financial ability to care for a child, and education may be part of that process. Having said that, there are several basic steps to help explain why you are the better parent for receiving full custody. A court will award custody, but will weigh out which parent is most likely to foster a good relationship with the other parent. How these “steps” apply overall, in your case, will usually settle the question. Keep in mind, then, that a custody award is not about tearing down the other person’s parenting ability, but showing that overall one parent is the better home. This does not mean you “roll over” and don’t speak up for yourself. It also may mean that you honestly show what serious risks would exist to the child, if placed with the other parent (such as violence or drug use). http://www.dfps.state.tx.us/documents/Child_Protection/Practice_Guide/Section_6_Evidence/Evidence.pdf.


 


Evidence: You’ll b able to use evidence that shows the amount of time and support you give, to meeting the care and needs of your child. This can be receipts for clothing and food, as well as testimony of what you do for recreation. If, as you suggest, much of these duties now fall on you due to the mother’s heavy work schedule, then this may weigh in your favor. But always remember, it’s a balance of interests…be willing to admit where your ex-spouse does well. Overall, Texas family law courts work hard to emphasize positive relationships, keeping the focus on kids. Here’s a place to see how the family court operates and what they do:  http://www.hba.org/folder-services/pdfs/Family-English.pdf.By having the same kind of parent-centered attitude (which often means accurately emphasizing your history of commitment to having been the primary parenting model), it’s no coincidence that being awarded (not “winning”) custody is more likely.


 


There have been complaints (especially from fathers) that many parents seek to create false allegations of abuse to win custody. You should consider this possibility, defensively, and be sure to have medical, personal and professional evidence that your child is healthy and safe in your care.


 


The Child’s Choice? If the parents don’t agree about where the child should live, most of the time, there will be an expert who will look at the respective homes and parenting skills. They’ll watch interactions between your child and both of you. Most courts won’t ask a child under the age of 12 what their preference is. There are many reasons for this, and it’s simply too stressful on the child. One thing to always avoid is any sense of pressuring the child or involving them in the custody dispute itself. As a rule of thumb, the person who has spent the past several years providing the bulk of the care will probably be awarded custody. This presumes that care has been positive for the child, and gave the child a sense of security that should not be disturbed.


 


Having said that, there’s also a reality about the time between parental separation, filing for custody, and a custody decision. A court will try (and it can be very hard) to make the placement a stable situation until a final decision. Often, this first “temporary” decision ends up being fairly close in shape to the final decision. In other words, stability in a positive setting is very much what the judge will try to find, from start to finish. http://apps.americanbar.org/legalservices/probono/childcustody/judges_guide.pdf.


 


 


 

Attorney: 
DakotaLegal
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