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Nelson & Booth |
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NELSON & BOOTH is a law firm engaged exclusively in a family
law practice emphasizing complex domestic relations actions, including
divorce and determination of parentage, property division, child custody,
parenting time, spousal and child support and representation of parents in
cases of international child abduction. The attorneys at NELSON & BOOTH are licensed to practice
only in the |
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E-mail: Ronald W. Nelson or Joseph W. Booth |
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CHILD CUSTODY, RESIDENCY, PARENTING TIME A Guide by the Law
Offices of Nelson & Booth |
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In order to help you through the process of child custody,
child visitation and child support litigation, and to answer some of the more
common questions our clients have about these kinds of domestic relations
actions and the legal process, we have prepared this pamphlet to help explain
the steps involved in the process. TERMINOLOGY USED IN
CHILD CUSTODY, VISITATION AND SUPPORT
ACTIONS An important consideration in any matter dealing with
children is the terminology used. Legal Custody: Legal custody defines the decision making powers between
parents. Residency: “Residency” is the designation used to
identify the parent with whom the child usually lives. This parent has no
more or less right to decide matters
regarding the child than does the other parent – this designation is simply a
recognition of a fact that the child spends more time living with one parent
than the other. Parenting Time: “Parenting time” is the time that a
parent is designated to spend with his or her child. This is what has, in the
past, been commonly known as “parental visitation.” The terms have changed,
however, to recognize that parents do not “visit” their children, but that
both parents are an integral part of their child’s life and that whatever
time is spend with the child by a parent, whether as a primary residential
parent or non-residential parent. Visitation: “Visitation” is the designation used for
time spent by a child with a third party (i.e. a non-parent, such as a
grandparent, aunt, uncle, stepparent, sibling or other third party). A third
party does not have the right to visit the child unless the parents agree to
that visitation or the court orders that visitation on appropriate motion and
order. KINDS OF CHILD
CUSTODY, VISITATION AND CHILD SUPPORT ACTIONS. There are numerous ways in which litigation regarding
children may come about other than in the course of an initial separation or
dissolution of a marriage: Post Divorce, Or Post Decree: It is common for
one or the other parent to request post-divorce or post-decree (if there was
no divorce) modifications of orders issued by the court. A party may request
modification of any child legal custody, residency, parenting time (parental
visitation) or support order in Parentage. A parentage action is an action to legally
determine the identity of a child’s parent or parents. A parentage action may
be filed by the child’s mother, the child’s father, or by some third party
(such as the state) who has some interest in formalize the parental
relationship. A parentage action is brought whenever the mother and
father of the child were not married at the time of the birth of the child.
It may be brought for many reasons, some of which are: –Establishment of parentage for child support purposes; –Establishment of parenting time or visitation rights; –Establishment of parentage for inheritance purposes; –Establishment of parentage to allow the courts a means
to settle on-going custodial disputes between the mother and father. JURISDICTIONAL
REQUIREMENTS In order to for Jurisdiction for
Initial Determinations of Child Custody, Residency, Parenting Time and
Visitation. Jurisdiction for Child Custody, Residency, Parenting
Time and Visitation issues is governed by the Uniform Child Custody
Jurisdiction and Enforcement Act (UCCJEA). Prior to (1)
The child has lived in the state for a period of more
than 6 months before the commencement of the proceeding, (“home state”
jurisdiction) or (2)
Within 6 months prior to initiation of the action the
state had been the child’s home state for a period of more than 6 months and
the child is absent from this state because the child’s removal or retention
by a person claiming the child’s custody or for other reasons, and a parent
or person acting as parent continues to live in this state, (“home state”
jurisdiction) or (3)
If the child has not lived in any one state for more
than 6 months within 6 months of the filing of the action (there is no “home
state”), and no action involving custody of the child has been filed before,
a State may assume power over the child if (A) the child and the child’s
parents, or the child and at least one of the child’s parents, have a
“significant connection” with this state, and (B) there is available in the
state substantial evidence concerning the child’s present and future care,
protection, training, and personal relationships. (“significant connection”
jurisdiction) or (4)
If there is an “emergency situation” such as abandonment
of the child by the child’s parents, a court of this state may exercise
jurisdiction to protect the child until a court with appropriate jurisdiction
is able to exercise that jurisdiction (“emergency” jurisdiction). For purposes of child custody, residency, parenting time
and visitation determinations, it is important to know where the child
lives—not where either the parent has lived, although it is not always
determinative of the state that has jurisdiction over the case. Although the
parent against whom a child custody residency or parenting time action has
been filed may not have any connection with the state in which the action is
filed, if the child satisfies the UCCJA requirements, sufficient jurisdiction
is established. Actions Subsequent
to Initial Child Custody and Visitation Decree (Modifications). After child custody and visitation issues have initially
been determined, the court which made those determinations retains the power
to make orders regarding those issues – regardless of whether one of the
parties moves outside that state. If both parties move out of that state,
however, the initial court may lose its power to deal with continuing child
custody residency, parenting time and visitation issues. In such a case, the
state where the child has lived for 6 months or more would become the appropriate
place for further child custody and visitation litigation or the state that
has the more “significant connections.” Child Support
Jurisdiction. Regardless where child custody and visitation issues may
properly be litigated, in order for a state
to properly determine issues of child support, only that state which
satisfies one of the following requirements may issue a valid order of child
support: (1)
after the birth of the child, the parties lived together
in the state in which an original child support order is sought and one of
the parties continues to live in the state; or (2)
the person against whom an original or modified child
support order is sought has been served with process in the case within the
state seeking to exercise jurisdiction; or (3)
the person against whom an original or modified order of
child support is sought has voluntarily consented to exercise of jurisdiction
by the state; or (4)
in the case of a requested modification, a valid child
support order was issued by that state and no other state has assumed
jurisdiction of the child support issue. Every state has enacted and must
comply with the provisions of the Uniform Interstate Family Support Act
(UIFSA) in determining such jurisdiction for child support. STARTING THE PROCEEDINGS The first step taken in starting any domestic action is
the filing of a “petition.” The petition is a simple, straight forward legal
document that contains basic information for the court’s information. The
person who first files the petition is called either the “Petitioner” (if the
parties were previously married), or the “Plaintiff” (if the parties were not
married and the action is one for parentage). The person against whom the
action is filed is called either the “Respondent” (if the person filing the
action is the “petitioner”) or the “Defendant” (if the person filing the
action is the “plaintiff.” CHANGE OF CHILD’S
NAME COURT COSTS “Court costs” are
the fees required by the courts in order to file a court action. As of TEMPORARY ORDERS At the time a petition is filed, the person filing the
petition can request that various orders be issued by the court. These are
called “temporary orders” and they govern the relations between the parties
from the time they are entered until the decree is issued. If temporary
orders are not obtained at the time of the filing of the petition, it is most
likely that a motion and hearing will need to be scheduled in order for the
court to issue such orders. There are many different orders that can be issued on a
temporary basis including: – orders restraining the parties from bothering or
harassing one another; – orders granting temporary residential custody and
visitation of children; – orders for temporary child support; If you are seeking temporary support for
a minor children, a document called a “Domestic Relations Affidavit”
will have to be completed by you and filed with the court. This Affidavit
contains information about the occupation of the parties, the parties’
incomes, the number of children the each of the parties has and the ages of
those children, the monthly estimated expenses and debts and the amount of support requested
to meet those needs. If you are seeking a temporary order for child custody,
residency, or parenting time, If an initial decree has already been entered, the Court
may or may not enter Temporary Orders., depending on the need shown and the
danger to the child, if any, shown by appropriate filings. If post-decree
orders for a change of child custody, residency, or parenting time are
sought, the parent seeking the change must give notice to the attorney who
represents the other parent, if that other parent is represented. SERVING THE PAPERS After the petition or motion for modification is filed,
the other party must receive proper notification
that the petition or motion for modification has been filed. There are a number of ways the other
party can be notified.. Entry of Appearance. The other party
may sign a written “entry of appearance.” This is a document prepared by our
office for your spouse to sign indicating that the petition has been
received, acknowledging that the Court has jurisdiction and waiving any
requirement that the petition be handed to him or her by a sheriff or other
person authorized to serve process. The signing of the “entry of appearance”
does not mean that the party has agreed to any of the requests contained in
the petition or other papers filed.
The “entry of appearance” can be signed in our office or mailed with the
necessary papers. The entry of appearance must be signed in front of a Notary
Public. Formal Service. If the other party is unwilling to
sign an entry of appearance, if you are not comfortable handling the service
in this manner or if you are not sure how the other party will react to
receiving a Petition or Motion, we can have the papers which need to be given
the other party by either the Sheriff or a person who is specially appointed
by the court to serve legal papers (a “special process server”). This is
usually an easy process. A party to an action is not authorized to
deliver service. ONE LAWYER OR TWO? It is neither practical nor ethical for a lawyer to
represent both parties to a domestic relations action. Although it is
possible for only one person in a domestic relations action to be
represented, we cannot represent both parties. When a domestic relations
action has been filed there is an inherent conflict between the interests of
those two people. As your lawyers, we can only advise you. There are rare instances in which you or your spouse may
have agreed on everything. In those cases, we may be able to draft the
necessary documents setting forth that agreement; however, we will not be
able to advise your spouse of the legal meaning of those documents. If your
spouse has any questions, he or she should consult another lawyer. WHAT HAPPENS IF
THERE IS A DISPUTE BETWEEN THE PARENTS ABOUT WHAT IS BEST FOR THE CHILD? Mediation. If there are any issues regarding custody or visitation
that cannot be worked out between the parents, a “mediation” conference with
a neutral mediator may be requested to see if you and your spouse can work
out an agreement about the child. Home Study or Child
Custody Investigation. If mediation does not bring about an agreement on
disputed custody and visitation issues, the court may order a “home study.” A
home study is an investigation into various aspects of the home life of the
parties’ child. Included in a home study may be interviews with the parties,
friends, neighbors, relatives and, on some occasions, the children
themselves. When the investigation is complete, a home study report is
prepared and submitted to the court. This report is confidential and the
parties generally cannot have access to the report. Trial. If, after mediation, there are still issues regarding
custody or visitation that cannot be worked out between the parents, a
“trial” will be scheduled. Testimony and evidence is presented at the trial
to the judge assigned to a case showing what would be in the best interests
of the child. Although the judge will have benefit of any child custody
investigation that has been performed, the court will make its own decision
about what is in the best interests of the child at the conclusion of the
trial. CHILD SUPPORT Child support is determined by statewide child support
guidelines. Child support is usually paid by the “non-custodial” parent to
the custodial parent. Child support is a duty of both parents, and neither
parent can “bargain it away” by agreement with the other parent. Child
support is the child’s right to be supported by the child’s parents and the
Court will protect his right, even if there is an agreement between the
parents that no child support shall be paid. Child support is determined by a
number of factors including: the age of the child, the number of children to
be supported, the parents’ incomes, health insurance premiums, child care
costs and other factors. Child support is normally payable until the child
reaches the age of majority (which is 18 years of age or June 30 if the
child's 18th birthday occurs while the child is attending high school). The
obligation to pay child support may be extended beyond the child’s majority
by agreement between the parties, but cannot be imposed by the Court past
majority. If child support was originally ordered by another state, the time
that child support is required is determined by that state’s laws rather than
the law of any state that may later modify any child support order. DENIAL OF VISITATION
FOR NON-SUPPORT – NON-SUPPORT FOR DENIAL OF VISTIATION SETTLEMENT
AGREEMENTS If the parties to a child
custody, residency, parenting time, visitation or support action are able to
come to an agreed resolution of the issues in your case, a Settlement
Agreement may be prepared. The Settlement Agreement is a contract which
includes provisions relating to support, insurance (health and life),
claiming dependents as exemptions on income tax returns, and other matters
relating to the child. It is our earnest desire that, with our help, you can
reach such an agreement. If so, it
will be signed by both you and the other party and filed with the Court at
the time of the final
hearing. If you cannot agree, the Court will decide the issues
presented. If the Court makes the decision, you are bound by it, even if you
do not agree with the decision. Therefore, it is in your best interest to
reach an agreement prior to the final hearing. The Court will usually accept
the terms of the Settlement Agreement reached by the
parties, but reserves the power to reject any provisions it deems not
“in the best interests of the child.” LIFE AND HEALTH
INSURANCE One or both of the parties may be required to keep
insurance in force to protect the payment of child support payments not yet
made. The CHILD MEDICAL
EXPENSES The WHAT IS A “MATERIAL
CHANGE IN CIRCUMSTANCES?” Those circumstances that may constitute
a “material change in circumstances” depend on the individual factual
situation and is ultimately a determination of the judge before whom the
matter is heard. CHANGING RESIDENCE
OF A CHILD CONFIDENTIALITY We must have all the facts in order to adequately
represent you. This includes facts that you feel may hurt you as well as
facts which may help you. The only way we have to properly advise you is if
we know everything you know. Anything you tell personnel in this office is
strictly confidential and will not be disclosed without your permission – these
confidences are protected by the “attorney-client privilege.” Similarly, it
is very important that you not discuss any advice or recommendations we may
have given you with anyone else. Disclosure of attorney-client confidences to
any third person waives the attorney-client privilege. Because of this fact,
please do not be offended if we ask that you not bring friends or relatives
with you into a meeting with your attorney. We understand your need for moral
support, but we are very concerned that you receive unencumbered advice
regarding your specific situation which we cannot do with a third party in
the office. ATTORNEYS’ FEES AND
EXPENSES The fees charged by our firm are based upon the time
actually expended on your case, the complexity of the case, the novelty of
the issues involved, and several additional factors. No divorce case is like
any other, so “standard fees” are really impossible. The exact fee will vary
with the services your case requires. Our basic service includes the initial conference; the
preparation and filing of the Petition; the preparation of an Entry of
Appearance to be signed by your spouse, or arranging for the sheriff to serve
a copy of the Petition; conferences to obtain information from you concerning
your income and expenses and to make recommendations about and support;
routine settlement negotiations with the adverse party or attorney;
preparation or review of Final Journal Entry; and representing you at the
Court hearings. We require the payment of a refundable deposit
(“retainer”) when you decide you want our firm to represent you in any matter
and we require full payment of any fees accumulated by you by the time of the
final hearing. We will discuss our fees with you at this first meeting, and
our understanding will be expressed in a written contract which you may
terminate at any time. The degree of cooperation and agreement between you and
the other party regarding matters of child custody, child support, and
visitation has a direct effect on the amount of time which we will have to
spend on your case and, therefore, the fees charged by our firm. AWARDS OF ATTORNEYS’
FEES If a trial is necessary, the Court may order either
party to pay some (but usually not all) of the other party's legal fees. As our client, you are responsible for
paying our agreed fees and we will give you full credit for any payments made
by your spouse. The power to award attorneys’ fees is solely in the discretion
of the court and the award of any attorneys’ fees cannot be relied upon with
any certainty. Regardless of any award of attorneys’ fees by the Court and
regardless of any agreement between the parties regarding payment by an
adverse party of any part or the whole of the attorneys’ fees incurred by
you, you remain indebted and responsible to the firm for the full amount of
Attorney’s fees and expenses incurred. If a motion to enforce custody, residency, parenting
time or visitation rights is filed under the Uniform Child Custody Jurisdiction
and Enforcement Act and the court finds that the other party has interfered
with those rights, the court is required to award attorneys fees and costs to
the person filing the motion to enforce. YOUR
RESPONSIBILITIES We expect you to be cooperative and truthful. If you are not, we will not continue to
represent you. You will need to supply
us with any and all information you may have regarding your financial assets
and liabilities. This is the only way we will be able to determine how best
to advise you in the process of separating out the property and debt aspects
of the case. We also expect you to handle your financial commitments to our
office in a prompt and business-like manner. Please notify us of any change
of address or telephone number or if you learn of anything that may affect
your case. GENERAL SUGGESTIONS Well-meaning friends and associates will, no doubt,
offer you advice about your case. Frequently such advice is not accurate and
you should be cautious in following it. The facts surrounding your children are
unique and they differ from every other case. Friends may help with the
personal and emotional crisis, but you should leave the legal advice to us.
Proceedings regarding children are very emotional – even if there are few
disputes between the parties. Sometimes one parent will try to use the
children in an attempt to punish the other parent. Prepare your child for any
matter involving them without poisoning their mind about the other parent.
There are many good books available to help both you and your child through
the process. Obtain professional help if possible. Attempt to cooperate with
your spouse where the children are involved. It is in your best interest to come to a fair and
equitable resolution of the issues in your case and a reasonable agreement
concerning the support, custody and visitation with children. Emotional
“blackmail” or a desire for revenge for past or present transgressions can
cloud the issues and almost always results in increased legal fees. Discuss support
and division of property items with your spouse, if possible. Try to be fair. We appreciate the opportunity to be of service to you at
this difficult time. Thank you for your trust and confidence. If you have any
questions or concerns as your case proceeds, please let us know. The more
communication there is between you and our office, the better we will be able
to serve you. You should know that there are various matters which you should
take care of after the completion of your divorce case, including changing of
your If you have any specific
questions about your own case, you should never rely on general answers to
those specific questions. You should always seek the advice of an attorney
who is qualified to answer those questions. These pages are not intended to
provide legal advice and do not create an attorney-client relationship with
the viewer or reader. |
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Divorce
and Other Domestic Relations Actions Paternity and Parentage
Actions* Child Support |
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Last updated 11/5/2003 |