Parenting Plans

TBL&N — Mon, 31 Jan 2011 01:57:30 +0000

A parenting plan, parenting arrangement, parenting agreement or access schedule is a voluntary agreement created by a child’s parents that lays out specific terms of child-rearing that the parents will abide by. Such an agreement is incorporated into the divorce decree or legal separation. The parenting plan allocates parenting tasks and divides duties such as financial responsibility, creating a stable, loving environment for the child, caring for the child’s physical and emotional needs and others. A parenting plan may have specific obligations and conditions as agreed upon by the parents. However, most plans include decisions regarding the following:

Legal custody
Physical custody
Education
College expenses
Health-care
Child-care
Extracurricular activities
Visitation schedule with each parent, including holidays
Transportation arrangements
Child support payment and payment schedule
Alternative dispute resolution (what law would apply if the case of a disagreement or agreement to complete mediation if a dispute arises)

Temporary or Permanent Parenting Plans

Parenting plans are temporary or permanent, it depends on if the agreement has been filed with the court or has been finalized and implemented in the dissolution of marriage. A temporary plan has been filed with the court and is enforceable regarding child custody, visitation, etc., until the plan has been finalized. There may be a time delay between the filing of the temporary order and the final court decree. This is why it is important to file such a plan right away. A temporary parenting plan may be filed by the child’s parents or may be initiated by the court. A permanent parenting plan has been finalized by the court and the agreement has been incorporated into the divorce, dissolution or marriage or modification decree.

Court Mandated Parenting Plans

If the parents cannot agree on a parenting plan, the court may decide to create a plan for them. When creating the parenting plan the court may require each parent to submit his or her own plan for consideration. If the parents (or one parent) need help with this task, the court may appoint a guardian ad litem to review the case and make a recommendation to the court. The parents must agree to the parenting plan to have it finalized in the divorce degree. If the court discovers evidence of child abuse, they will not create a parenting plan.

Modification

If there is a change in circumstances, such as the relocation of one parent, a parenting plan may be modified. The parties must make a motion to the court for a modification of their parenting plan and the court must confirm the modification. If a motion for modifying the parenting plan is made to the court, the court will consider the best interests of the child when making their determination. The court will not modify a parenting plan simply because one of the parents has violated the plan. The court will consider a variety of factors when determining the best interests of the child. However, most commonly, a parenting plan will be modified when there is evidence of abuse (physical or emotional), an inability of the parents to cooperate with each other, child endangerment, neglect, a change in a parents’ mental or physical health or a change in circumstances making the modification necessary.

Preparing to Meet with Your Family Law Attorney

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DISCLAIMER: This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice. Seek competent counsel for advice on any legal matter.

Child Custody

TBL&N — Mon, 31 Jan 2011 01:56:46 +0000

When a couple divorces or separates, custody of the child (or children) must be determined. The couple may make a custody agreement themselves, either by mutual consent or through mediation. If the couple cannot agree to custody, the court must make the choice for them. When a court is determining who should get custody of a child, they consider the child’s best interests. In the past, the mother was presumed to be the best parent to raise a child. This presumption is no longer used. However, even though it is not a legal standard for a court to believe the mother is the best parent for child-rearing, some jurisdictions still follow this archaic notion. It is important to know the common practice in your jurisdiction when the court is establishing child custody.

When determining the best interests of the child, the court looks at a variety of criteria, including:

Which parent has been the child’s primary caregiver?
What is the health of both parents (mental and physical)?
What is the financial situation of each parent?
What are the wishes of the child and the parents?
Where does each parent live? Would the child have to move?
What is the child’s relationship to his or her parents? Siblings? Extended family?

Types of Custody

There are several options for child custody. Custody may go to one parent, or it may be shared between parents. If one parent has custody over the child this is sole or primary custody. If the parents each have custody of the child, this is called joint, shared or split custody. Joint custody may be legal, physical or both. Legal custody is decision making power over major aspects of the child’s life. Some examples may be school, religion, medical care, extra-curricular activities and others. If parents have joint legal custody, they both have decision making authority and must agree about the decisions they have made. This may be an issue for parents who have a difficult time cooperating with each other and the court will weigh this issue when making their determination. Parents may also share physical custody of their child. This may be split equally, or the child may spend more time with one parent and less with the other. The statutory requirement regarding joint legal and physical custody varies depending on jurisdiction.

Same-Sex Couples and Child Custody

The court considers the best interests of the child when determining custody. The sexual orientation of a parent (or parents) does not make him or her unfit in the eyes of the law. The court looks at the same criteria for heterosexual parents as for homosexual/lesbian/bisexual/transgender parents. The only situation where the sexual orientation may be considered by the court as a factor in determining child custody is if there is evidence that the parent’s same-sex relationship has harmed the child. Without a showing of harm, the court may not consider sexual orientation as a factor when determining the child’s best interests.

Preparing to Meet with Your Family Law Attorney

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Same-Sex Marriage

TBL&N — Mon, 31 Jan 2011 01:55:47 +0000

The majority of jurisdictions do not recognize a marriage between persons of the same gender. Many state statutes refer to marriage as a union between a male and a female. Some statutes do not specifically address same-sex unions, however courts have interpreted such statutes as not authorizing a legal marriage between two persons of the same gender. Therefore, such a union is not recognized in that state. There are also state statutes that ban marriage between same-sex couples. In these states, same-sex marriage is prohibited, marriages in other states that have same-sex marriage are not recognized, contractual rights between married couples of the same gender will not be enforced and divorce or other disputes related to marriage will not be addressed in court.

Civil Unions and Domestic Partnerships

While many states were passing legislation banning marriage between same-sex couples, Virginia’s legislature passed a law protecting couples of the same gender. The protection is called a civil union, and gives same-sex couples the same rights and benefits as married couples; however, Virginia’s civil union protection did not extend the right to marry to couples of the same gender. After Virginias’ ruling, additional states followed suit. Accordingly, other jurisdictions passed laws recognizing domestic partnerships.

Domestic partnerships also give couples some of the rights enjoyed by opposite-sex married couples, however not all. Rights and protections differ between civil unions and domestic partnerships, these protections differ from state to state. The criteria a couple must meet in order to form a civil union or domestic partnership may also differ by jurisdiction. However, the most common criteria are that the individuals are eighteen years of age or older, both individuals are of the same gender and each individual is not a member of another civil union or domestic partnership. Even though more states are beginning to acknowledge same-sex unions, not all states will recognize a civil union or domestic partnership from another jurisdiction. In fact, the federal Defense of Marriage Act gives states the power not to recognize civil unions/domestic partnerships from other states.

Developments in the Law

In 2008, the California Supreme Court held that laws denying same-sex couples the right to marry were unconstitutional and therefore invalid. Denying same-sex couples the right to marriage was violating the equal protection clause of the state constitution. Based on this determination, the statute was changed to open the definition of “marriage” to both opposite-sex and same-sex couples. Prior to 2008, Massachusetts recognized same-sex marriage in 2003. Other jurisdictions do not statutorily allow same-sex marriages. However, Connecticut, New Jersey and Vermont recognize civil unions; Washington recognizes domestic partnerships and Hawaii has reciprocal beneficiary registration, which gives some benefits to same-sex couples.

At the federal level, the United States Supreme Court has upheld marriage as a fundamental right provided for by the Constitution. The Supreme Court has also struck down state statutes that have tried to make sexual relationships between consenting same-sex partners criminal. However, the court has not yet extended the right to marriage between same-gender couples.

Preparing to Meet with Your Family Law Attorney

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Divorce Mediation

TBL&N — Mon, 31 Jan 2011 01:54:41 +0000

In mediation, two disputing parties have a neutral third party present to facilitate negotiation discussions and, ideally, an agreement between the parties. The mediator is trained to assist the parties through the negotiation process. The goal of a mediator is to help the parties reach an agreement that is acceptable to both of them, to make sure each party is heard and one does not control the negotiations and to ensure the agreement reached by the parties is legally sound. If the parties do not reach an agreement through mediation, the mediator does not have the power to impose a decision on the parties. Unlike arbitration, the mediator does not have the authority to bind the parties to an agreement. However, once the parties create a settlement, the court may approve the agreement, thus making it binding.

A family law mediator has specific training for dealing with often emotional and complex family issues. The role of the trained neutral is to create an environment where each party (husband and wife) is able to voice their needs, requirements and thoughts throughout the negotiation process. Ideally, the parties should be able to express themselves in an atmosphere that is not aggressive or intimidating. During the negotiation process, divorcing persons may determine a number of issues, including the division of property or finances, alimony, child custody and a visitation or parenting time schedule. When the parties reach a settlement agreement that is acceptable to both of them and legally sound, the agreement is approved by the court.

Generally, individuals do not have an attorney present during mediation. Attorneys may advise their clients on the mediation process, what to expect and what rights to be aware of, but are usually not in attendance at the mediation. However, if the parties would like their attorneys to be present in the mediation, they can be. If the divorcing persons do not choose to have their attorneys present in the mediation, some inequalities may occur that they should be aware of and try to prevent. If such negotiation inequalities become apparent, it is the mediator’s role to try to balance the power between the husband and wife in the negotiation. A drawback with mediation may be that the mediator does not have the same authority over the negotiation process as a judge would have in litigation. Both parties should give full disclosure of his or her assets; however, if they do not, a mediator cannot compel them to do so.

Court Ordered vs. Private Mediation

Use of mediation in family law matters has increased in recent years. As a result, some jurisdictions are now requiring mediation as a first step in family law disputes. In states where mediation is required, disputing parties may select a certified mediator, or if they do not, the court will appoint one for them. If an agreement is not reached during mediation, the parties will have to seek litigation.

Conversely, divorcing individuals may choose to seek a private mediation on their own. The parties may hire a certified third-party neutral from an independent mediation firm to help them reach a settlement agreement. The court has no role in this process. However, the court must approve the agreement once it has been made.

Preparing to Meet with Your Family Law Attorney

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When Does an Engagement Ring Have to be Returned?

TBL&N — Mon, 31 Jan 2011 01:53:36 +0000

Most states have abolished a cause of action for breach of contract to marry. However, this does not address the issue of ownership of the engagement ring. When determining ownership of an engagement ring, the court must look at whether the giving of the ring was an absolute gift or a conditional gift. If the ring was an absolute gift, the person who received the gift is the owner and does not have to return the ring if the marriage does not take place. Alternatively, if the ring was given as a condition of marriage the person who gave the ring has ownership rights and will be able to recover the ring if the engagement is terminated. When making this determination, the court will consider the intent of the parties and the historical meaning of an engagement ring. Most commonly, an engagement ring is regarded as a conditional gift made in contemplation of marriage.

Accordingly, most states deem an engagement ring to be a conditional gift and the owner of the property is entitled to recovery of the ring itself or the value of the ring. In some states, the court considers who ended the engagement to be a factor in determining who may recover (or keep) the ring and/or its value. If the individual who gave the ring was at fault in ending the engagement, he or she may not recover the ring or its value. This viewpoint is in the minority. More commonly, fault is not a consideration and the person who purchases the ring has ownership rights, regardless of which party ended the engagement. An exception may be if the party who purchased the ring induced the other party to accept his or her proposal due to fraud or duress. If that is the case, the court will not give ownership rights to the fraudulent party. In addition, if both parties agree to end the engagement, the ring is usually recoverable by the purchaser. Of course, if the parties have an agreement regarding the ownership of the engagement ring, that agreement will usually control and will be upheld by the court.

Death or Negligence

As a general rule, if the individual who was given the engagement ring dies prior to marriage, the individual who purchased/gave the ring retains ownership rights. An exception to this rule is if the party who purchased the ring caused the death of the other party. If the donor (purchaser) caused (or negligently caused) the death of the donee, he or she may not recover the ring or its value.

Premarital Gifts

It is common for engaged couples to receive engagement or prewedding gifts. The treatment of such gifts may differ from state to state. However, most commonly, premarital gifts are considered split ownership between both parties. In that case, the gifts will be split equally among the parties, if the marriage does not occur. Many jurisdictions also look at the intent of the gift giver when determining ownership of a gift. If the giver did not have a specific person in mind when giving the gift, or the intent is unclear, the may be considered given to both parties.

Preparing to Meet with Your Family Law Attorney

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Alimony Payment Alternatives

TBL&N — Mon, 31 Jan 2011 01:52:15 +0000

Alimony is paid from one spouse (ex-spouse) to the other in cases of divorce or legal separation. For one spouse to receive marital support payments there must be a court order and the payments must be for support purposes, not part of a property agreement or another type of settlement agreement. Generally, alimony payments are for a specific period of time or for an indefinite amount of time. A specific period of time or a one-time payment is considered a lump sum alimony payment schedule. If the period of alimony is indefinite, this is a periodic alimony payment agreement. Both types of payment schedules may be modified or terminated, by either party, by means of a motion to the court.

Consequently, there are situations where an ex-spouse may wish to modify his or her support payment amount or duration. The individual (usually the payor) may make a motion to the court for consideration; the motion must provide the court with reasons for the modification or termination. The modification or termination situations may vary; an example may be a negative change in circumstances, which causes an inability to pay. Some ex-spouses may also elect to make higher periodic payments in the event that he or she is not able to pay as much in the future. This option protects both parties.

Rehabilitative Alimony

The court may also order a specific period of alimony known as rehabilitative alimony. Rehabilitative alimony is most commonly used when one spouse has been financially dependent on the other spouse. The dependent spouse has often lost career opportunities due to the marriage or has contributed to the household in ways other than participating in the traditional workforce. Examples may be of one spouse supporting the other while he or she advances his or her education or working in the home while the other spouse enhances his or her career and earning capacity. It is a period of time intended to help the dependent spouse get on his or her feet, began working and become able to support him or herself. The limited amount of time alimony is paid to the formerly dependent spouse is intended to encourage him or her to acquire job skills, training or education to help them become financially independent and successful in the workforce.

Alimony Trusts

Another option for alimony payment is to set up an alimony trust. This may be a good option for an ex-spouse who is not able to management alimony payments on his or her own. Inability to pay may be due to incapacity or an individual’s incapability to make payments, for whatever reason. The trust makes payments to the spouse and is generally funded by income producing property. According to federal statute, in order to have an alimony trust the payor (individual making alimony payments) and payee (individual receiving alimony payments) must be divorced or legally separated and the trust payments must not be for child support. The trust may be created for the purpose of alimony payments or it may be an existing trust, not created for alimony purposes, that is later used for alimony payments when the marriage has ended.

Preparing to Meet with Your Family Law Attorney

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Understanding Alimony and Spousal Support

TBL&N — Mon, 31 Jan 2011 01:49:48 +0000

When a married couple divorces (marital dissolution) or legally separates, the court may award alimony or spousal support to one of the former spouses. The purpose of alimony is to avoid the unfair economic consequences of divorce by providing continuing income to a non-wage earning (or lower-earning) spouse, paid by the wage (or higher-wage) earning spouse. Unlike child support, which in most states is mandated according to specific monetary guidelines, courts have broad discretion in determining whether to award alimony and, if so, how much and for how long.

The Uniform Marriage and Divorce Act, on which many states’ spousal support statutes are based, recommends that the courts consider the following factors in making decisions about alimony awards:

The age, physical condition, emotional state and financial condition of the recipient
The length of time the recipient would need support, for education or training, to become self-sufficient
The couple’s standard of living during the marriage
The length of the marriage
The ability of the payer spouse to support the recipient and still support himself or herself

Although awards may be hard to estimate, whether the payer spouse will comply with a support order is even harder to gauge. Alimony enforcement is not like child-support enforcement. If a parent does not fulfill his or her child obligations, the court has the authority to institute enforcement mechanisms, such as garnishing wages and establishing liens against property or other assets. Alternatively, if an ex-spouse does not fulfill his or her spousal support obligations, the court cannot create such enforcement mechanisms. Instead, the recipient may have to return to court in a contempt proceeding to compel payment.

Alimony is often deemed “rehabilitative,” that is, ordered for only as long as is necessary for the recipient spouse to receive training and become self-supporting. If the divorce decree does not specify a spousal support termination date, the payments must continue until the court orders otherwise. Most awards end when the recipient remarries and often when the paying spouse dies. However, termination upon the payer’s death is not necessarily automatic; in cases in which the recipient spouse is unlikely to obtain gainful employment, due perhaps to age or health considerations, the court may order that further support be provided from the payer’s estate or life insurance proceeds.

In the past, most alimony awards provided for payments to former wives by wage earning former husbands. Over time, the culture has changed and now most marriages include two wage earning spouses. Therefore, women are viewed as less dependent, they are also wage earners, educated, trained for employment and men may be the primary parent in the household. The courts treatment of spousal support has kept pace with the changes in our society and the awards for alimony reflect that change. A lawyer experienced in family law can help determine whether the parties in a divorce action are entitled to, or must pay spousal support, and can assist in resolving all related issues.

Preparing to Meet with Your Family Law Attorney

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Paternity

TBL&N — Mon, 31 Jan 2011 01:46:50 +0000

Paternity refers to the legal determination of who is the biological father of a child. While the identity of a child’s biological mother is usually known, the father’s identity may not always be as certain. Paternity issues often arise in cases involving child support, but they can also be important in relation to adoption, inheritance, custody and visitation, health care and other issues.

An action to establish paternity is a civil proceeding. Most states require that paternity be established by a preponderance of the evidence, which means that it must be more likely than not that the man is the biological father of the child. Other states, like New York, apply a higher standard, requiring clear and convincing evidence of paternity. However, due to developments in scientific testing, the different standards of evidence have little practical impact on establishing paternity.

DNA profiling is a major breakthrough in paternity testing. In a DNA test, the scientist examines the genetic material that the child inherited from his or her biological parents. First the child’s genetic characteristics are compared to those of the mother. The characteristics in the child that are not found in the mother are determined to have come from the father. If the man being tested does not have these genetic characteristics in his DNA, he can be scientifically excluded. If he does, the probability of his paternity is calculated. DNA testing can establish a father’s paternity with over ninety-nine percent accuracy and can also be done even before the child is born. Along these lines, DNA testing is generally done only when a party contests paternity allegations. For instance, the putative (or alleged) father in a paternity action, that is the basis for child support, may require proof that he is the child’s father before he consents to payment of support. In other situations, the mother may contest the putative father’s paternity, such as when a man attempts to gain custody of, or visitation with, a child he believes to be his.

In contrast, paternity may also be established by circumstantial evidence, such as when a man takes a child into his home and holds the child out to the public as his own. A married man is presumed to be the father of a baby born to his wife during or shortly after their marriage as well. Once paternity is established by DNA or circumstantial evidence, the father may be ordered to pay child support for his child. A father who is not married to the child’s mother generally will not be awarded custody of the child if the mother is providing reasonable care, but he may receive preference over third parties, such as grandparents or prospective adoptive parents.

Paternity issues, like most family law issues, can have far-reaching implications, both financially and emotionally. It is important when faced with these issues to seek the counsel of an objective, experienced lawyer who can guide clients through the legal maze of these difficult, emotionally charged issues.

Preparing to Meet with Your Family Law Attorney

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Premarital Agreements

TBL&N — Mon, 31 Jan 2011 01:43:33 +0000

Premarital agreements, also called prenuptial or antenuptial agreements, are contracts between two people who intend to marry each other. These agreements usually address issues relating to the parties’ property and income during the marriage, after the marriage (if it ends in divorce) and after the death of one or both spouses. Premarital agreements can also address nonfinancial issues, such as the religious upbringing of the parties’ children. The issue of child support in the event of the parties’ divorce cannot, however, be resolved by a premarital agreement. Also, a court generally will not enforce insignificant nonfinancial details in a premarital agreement.

Couples who have been married previously tend to enter premarital agreements more often then couples entering their first marriage. They are also commonly used when one person brings significantly greater financial assets into the marriage. Often, a premarital agreement is used as a vehicle by which the spouses can ensure that their children from a previous marriage receive a substantial portion of their assets upon their death or divorce.

A premarital agreement may be unenforceable or voidable if either party has withheld important financial information or coerced the other party into signing the agreement, or if the terms are so unjust that, if put into effect, one party would be left with very little. Before entering into the agreement, both parties must fully disclose their assets, income and liabilities to the other, and they must enter into the agreement in good faith. In order to ensure that a premarital agreement will be enforceable, it is advisable for both future spouses to be represented by separate counsel, who can advise them on their rights and responsibilities. In fact, some states’ laws require that each party be represented by a separate attorney in order for a premarital agreement to be valid.

State statutes on premarital agreements may vary slightly, although many states have adopted a version of the Uniform Pre-Marital Agreement Act. It is important when entering into a premarital agreement to make sure that the contract terms comply with the applicable statutes. A lawyer may help in that regard. If the agreement is in compliance, it will be enforceable and, if contested by one spouse, upheld by the court. Courts will not uphold premarital agreements, however, if they violate public policy, such as by promoting divorce. If, for instance, an agreement provides that one spouse will receive better financial treatment after divorce than he or she does during the marriage, the court may determine that the agreement encourages divorce and disregards public policy favoring marriage. If that is the case, the court may refuse to enforce the agreement’s terms.

Premarital agreements differ from separation agreements. Separation agreements are entered into after marriage, and describe the conditions that apply to the parties’ separation. Whereas separation agreements are often entered into in contemplation of divorce, premarital agreements are entered into in contemplation of marriage. In addition, courts, in some situations, may enforce post-marital, or postnuptial, agreements, which are usually subject to many of the same requirements as premarital agreements.

Preparing to Meet with Your Family Law Attorney

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Juvenile Law

TBL&N — Mon, 31 Jan 2011 01:28:39 +0000

Juvenile law relates to the actions and well-being of persons who are not yet legally adults. A person is considered a juvenile if he or she is not yet old enough to be held responsible for criminal acts. The precise age at which a child is no longer a juvenile varies from state to state, with a range from sixteen to nineteen years. In most states the law considers individuals less than eighteen years of age to be juveniles.

Age distinctions are important because they determine whether individuals who commit illegal acts will be charged with a crime and tried in adult criminal court or whether they will appear in juvenile court. Juvenile courts have a different mission than adult courts. They have no authority to order punishment, but rather focus on rehabilitation. The juvenile court’s response to misconduct is generally more lenient that the adult courts would be. In certain cases, if the offense is particularly severe or the offender is near the age of adulthood, the case may be transferred to adult criminal court. Juvenile court decisions also may be appealed to adult court.

Juveniles have the right to notice of the charges against them, to confront and questions witnesses, to be free from self-incrimination, and to be represented by an attorney. In some cases, if the juvenile cannot afford an attorney, the court will appoint one. Juveniles charged with a crime do not, however, have the right to a jury trial that an adult offender would. Rather, a juvenile court judge hears all juvenile cases. At trial, a prosecutor representing the state presents the case against the juvenile, and the juvenile has an opportunity to respond. The prosecutor must prove the case against the juvenile beyond a reasonable doubt, which is the same standard applied in adult criminal cases. Although juveniles may be sentenced to secure confinement, the court also has options such as imposing a fine, restitution, probation or medical treatment. Alternatively, juveniles may be removed from their homes and placed in foster care or a non-secure state facility.

Juvenile law is not limited to juvenile crime. Juvenile courts also have jurisdiction over neglected or abused children, children in need of state assistance and children charged with status offenses (which include conduct that is only prohibited because the offender is a juvenile, such as school truancy and smoking). The procedures for dealing with abused, neglected and needy children are generally less formal than the procedures for dealing with delinquents—juveniles who have committed acts that would be crimes if committed by an adult.

Abused or neglected juveniles usually come to the court’s attention through the petition of a state agency or concerned private party. An agency petition usually recommends removal of the child from the home and placement in foster care or a public facility. When the state seeks to remove the child from the home, the parents must have an opportunity to be heard in court. Children in need of services may also be petitioned into court by third parties. In these cases, the court may order counseling for the child or the parents, or may temporarily remove the child from the parents’ home. In some cases, the court will appoint a guardian ad litem to advocate the child’s best interests at the court hearing.

Juvenile cases can have serious consequences for both the juvenile and the parents. A lawyer experienced in juvenile law can advise parents and juveniles and represent their interests in court.

Preparing to Meet with Your Family Law Attorney

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Preparing to Meet with Your Family Law Attorney

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