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Child Custody

Custodial Kidnapping

Wednesday, January 14th, 2015

Periodically, there are news stories about children who are “kidnapped” by their parents. Sometimes the parent fails to return the child at the end of his/her visitation time. Other times a parent may flee with the child during a pending divorce or custody battle in fear that he/she will lose custody. Whatever the motivation, a parent’s choice to run away with a child in contravention of a court order (including a standing order in a pending case) usually does not benefit that parent in terms of long term custody and will certainly harm the child emotionally. In a recent case bringing up this very issue, a woman in New Hampshire turned herself in ten years after fleeing with her eight year old daughter during a custody dispute. Fugitive Mom Arrested After Allegedly Kidnapping Daughter, by Associated Press, people.com, November 18, 2014. During a trial in 2004, the mother attempted to prove that her ex-husband had harmed their daughter and, when her attempt failed, she fled with her daughter to Central America.

 It is no coincidence that the mother waited ten years – the daughter is now 18 and no longer subject to the family court and/or parental custodial rights. Thus, the only thing that can happen now is the mother can be punished for her actions, and the mother’s lawyer said she is ready to go to trial on her custodial interference charge. The mother said the daughter is safe, though she did not give any information about her whereabouts. Obviously, the father now wants to be reunited with his daughter, but forging a relationship may be difficult. The daughter was 8 when she was taken and, thus, her father knows she was old enough to know what was going on. For that reason, he fears that “she has been told falsehoods and misstatements on the events of her youth.”

 Certainly, if you feel that someone is harming your child, you will want to do whatever is necessary to protect him/her. However, if the mother in this case truly felt that the father had harmed their daughter, she should have let the case run it’s course and, if the custody issue did not go her way, she could have consulted with an attorney about the possibility of a motion for new trial or appeal. Taking the law into your own hands is not a good idea when custody is involved. Most times, the offending parent will be punished by way of contempt, or by losing custody altogether. Even if you strongly dislike the other parent, your best hope is to trust the system and trust that the truth will come out.

 

Race and Child Custody

Friday, January 2nd, 2015

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Religion, education, extracurricular activities, and medical decisions – these are all common sources of contention between divorcing parents when it comes to deciding how disagreements between parents will be resolved post-divorce. But, what about issues concerning a child’s racial identity?

For example, an African American Mother and a White Father are divorcing. Mother and Father have agreed on all other issues of child custody, except issues concerning their child’s racial and cultural identity. Specifically, Mother and Father disagree on the types of cultural events to expose their child to, and on how to explain to their child her cultural heritage. Does this matter? Put plainly, does race and racial identity have any impact on child custody determinations in Georgia?

According to Georgia law, the duty of a judge presiding over a child custody case must make his or her determination with the child’s best interest in mind. In determining what custody arrangement will benefit the best interests of the child involved, the court may consider any relevant factor, including the following factors:

  1. The love, affection, bonding, and emotional ties existing between each parent and the child;
  2. The love, affection, bonding, and emotional ties existing between the child and his or her siblings, half siblings, and step-siblings and the residence of such other children;
  3. The capacity and disposition of each parent to give the child love, affection, and guidance and to continue the education and rearing of the child;
  4. Each parent’s knowledge and familiarity of the child and the child’s needs;
  5. The capacity and disposition of each parent to provide the child with food, clothing, medical care, day-to-day needs, and other necessary basic care, with consideration made for the potential payment of child support by the other parent;
  6. The home environment of each parent considering the promotion of nurturance and safety of the child rather than superficial or material factors;
  7. The importance of continuity in the child’s life and the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity;
  8. The stability of the family unit of each of the parents and the presence or absence of each parent’s support systems within the community to benefit the child;
  9. The mental and physical health of each parent;
  10. Each parent’s involvement, or lack thereof, in the child’s education, social, and extracurricular activities;
  11. Each parent’s employment schedule and the related flexibility or limitations, if any, of a parent to care for the child;
  12. The home, school, and community record and history of the child, as well as any health or educational special needs of the child;
  13. Each parent’s past performance and relative abilities for future performance of parenting responsibilities;
  14. The willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationships between the child and the other parent, consistent with the best interest of the child;
  15. Any recommendation by court appointed custody evaluator or guardian ad litem;
  16. Any evidence of family violence or sexual, mental or physical child abuse or criminal history or either parent and
  17. Any evidence of substance abuse by either parent.

O.C.G.A. §§ 19-9-3(a)(3)(A)-(Q).

Notably, none of the factors listed above refer explicitly to race or the racial identity of the child involved. However, Georgia law does not confine a presiding judge to the factors listed above. The above listed factors are meant as a guide. Judges may consider all the circumstances of the case at hand in order to come to the correct child custody determination.

Although it goes without saying that a judge will in no case made a child custody determination solely on the basis of race or racial identity, and will definitely not give one parent preferential treatment simply because of that parent’s racial identity, a judge may consider what physiological or emotional impact a parent’s decisions concerning a child’s cultural exposure or racial identity will have on the child involved.

Your Atlanta Divorce Team understands that issues concerning child custody and divorce are often very sensitive and difficult to discuss. If you have questions about divorce, child custody or any other Georgia family law issue, please contact one of our compassionate and understanding family law professionals at Meriwether & Tharp for a confidential consultation.

Will I Lose Custody if I Move Out of State?

Wednesday, December 31st, 2014

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One of the first questions pondered by parents considering relocation out of state is if the relocation will cause the court to reconsider the current child custody arrangement. Specifically, custodial parents may wonder if they will lose custody of their child or children should they choose to relocate out of state for business or personal reasons.

Custodial parents should rest easy knowing that relocation is not an automatic grounds for child custody modification in Georgia. Put plainly, a custodial parent should not worry about automatically losing child custody due to relocation. However, this does not prevent a non-custodial parent from seeking a modification of child custody as a result of the custodial parent’s relocation. If a child custody modification action is initiated by a non-custodial parent, there will be no presumption that the relocating parent will lose custody, nor will there be a presumption that the relocating parent will maintain custody. See Weickert v. Weickert, 268 Ga. App 624 (2004); Bodne v. Bodne, 277 Ga. 445 (2003). As with all cases concerning the determination of child custody, the presiding court will consider the best interests of the child or children involved when making the child custody determination.

If you are a custodial parent concerned about maintaining custody of your child or children should you decide to relocate out of state, seek the counsel of a Georgia child custody attorney to help you protect your custodial rights.

Sex and The Single Parent

Saturday, November 29th, 2014

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Going through a divorce can be a traumatic, life-changing event. Nonetheless, once a divorced person has worked through all the associated emotions and had some time to heal, he/she may be ready to look for love again. If that person has children, finding time for dating and sex may be difficult, as the person juggles the additional stresses and schedules of being a single parent. However, despite what is likely popular belief, single parents are just as sexually active as single people without kids. Study Sheds Light On Single Parents’ Sex Lives, by Taryn Hillin, The Huffington Post, October 8, 2014.

A new study from the University of Nevada and the Kinsey Institute surveyed 5,481 single Americans, of which 2,121 were single parents. The participants were asked questions about their sex lives, including how often they had sex and how many dates they had been on in a certain time period. According to the article cited above, the results were clear – single parents “were having similar amounts of sex as their non-childrearing counterparts.” This surprised researchers, who surmised, “[s]ingle parents of young children are expected to invest in less mating effort, specifically devoting less time and energy to seeking, finding, and maintaining a sexual relationship…in part because single parents of young children are investing in more parenting effort.” In fact, single parents with children under the age of five, who presumably need to spend more time with their children, were more sexually active than single parents with older children. This may be because this group reported more first dates, which may have resulted in a higher frequency of sexual activity.

If you are a sexually active single parent (and, according to this study, if you are a single parent you likely are sexually active), be sure to keep this activity completely separate from your custodial time with your children. Not only is it sure to draw ire from your ex, but also having a new boyfriend/girlfriend around all the time may be confusing or uncomfortable for your children. Moreover, having several new “friends” in and out all the time may be even more confusing. There is nothing wrong with a single parent having a dating/sex life, but, as a parent, it is important to put your child’s needs and feelings first.

Contempt Actions and Modifying Visitation

Wednesday, November 26th, 2014

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If you are denied court ordered visitation with your child you should contact an attorney and consider filing a contempt action. Nonetheless, during a contempt action, can you ask the court to modify the visitation or child custody provisions in your court order? Under Georgia law, visitation rights may be modified upon motion by any party or the judge during a contempt proceeding, however custody may not be modified in a contempt proceeding. O.C.G.A. § 19-9-3(b).  A recent Georgia case clarified this difference further.

In Weeks v. Weeks, the Father brought several contempt actions against Mother for denying him court ordered visitation with his child. Weeks v. Weeks, 324 Ga. App. 785, 786 (2013).  After finding Mother in contempt several times, the trial court ordered Mother jailed until “receipt of an affidavit guaranteeing supervised visitation by the father with the child.” Id. By Final Order of November 8, 2010, the trial court found that continued custody by Mother was in the child’s best interest and ordered supervised visitation by Father. Id. In December 2012, the trial court found Mother in contempt again for denying Father visitation and for blocking regular telephone visitation. Id. The trial court found that the supervised visitation was putting a damper on Father’s relationship with the child and modified the Parenting Plan by deleting the requirement of supervision. Id. In addition, “the trial court also scheduled a compliance hearing for January 31, 2013, ‘[b]ecause there have been such extensive problems with compliance with the Court’s orders in the past.’” Id. Mother filed a notice of appeal prior to the compliance hearing, and after the compliance hearing, the trial court entered an order changing physical custody of the child to Father. Id.

Mother argued that changing visitation from supervised to unsupervised was an error by the trial court because she was not put on notice of the change and the trial court was not authorized to make that change in a contempt hearing when there was insufficient evidence to support it. Id. at 787. The appellate court noted that under O.C.G.A. § 19-9-3(b), “the trial court is expressly authorized to modify visitation rights, on the motion of any party or on the motion of the judge, during a contempt proceeding.” Id. (citing Cross v. Ivester, 315 Ga. App. 760, 766 (2012)). The appellate court stated that “although custody may not be changed in a contempt proceeding, we have long held that [OCGA § 19-9-3 (b)] allows the modification of visitation rights, even on the court’s own motion.” Id. (citing Horn v. Shepard, 292 Ga. 14, 18-19 (2012)). The appellate court found that there “was more than sufficient evidence to indicate that the mother was refusing to allow visitation, even supervised, as provided in the trial court’s previous orders and that there was adequate reason to change the conditions of visitation.” Id. 787. Regarding Mother’s claim that the she was entitled to notice and time to prepare an adequate  response to the request for a change in visitation, such notice is not required by O.C.G.A. § 19-9-3(b) or anywhere else under Georgia law. Id.

By: Jason W. Karasik, Associate Attorney, Meriwether & Tharp, LLC

Small Acts of Kindness Can Help Co-Parenting

Sunday, November 2nd, 2014

When you go through a divorce and there are children involved, you and your ex-spouse are tied together for life – whether you like it or not. But regardless of how you feel toward your ex, there are small acts of kindness you can undertake to show the other parent that you appreciate their love and care for your children, and to try to make the co-parenting experience as painless as possible for everyone:

  1. Help the children acknowledge/celebrate their other parent’s birthday. – Take them shopping for a card or gift. Help them bake a cake. Encourage young children to draw a birthday picture. It doesn’t have to be anything elaborate or expensive.  Your ex will appreciate it and your children will be proud that they can give their parent a little something to celebrate.
  2. Make copies of artwork/school work that your child brings home to give to the other parent. – Often only the parent with whom the children live will have the benefit of seeing all the work that comes home from school.  The other parent may only see schoolwork at teacher conferences but, likely, would appreciate having copies of what the children are doing at school. Many young children come home with a plethora of art projects that could easily be split between the parents.
  3. Make copies of photos of the children’s childhood. – It is likely that only one parent has the pictures taken of the children/family during the marriage. If the pictures were taken before digital cameras, make color copies for your ex. If the pictures are all on the computer, upload them to a photo-sharing site and send them to your ex.
  4. Make sure the children have all their “lovies” and other necessities before going to sleep at the other parent’s house. – Nothing will ruin visitation or custodial time faster than a child forgetting his favorite blanket at the other parent’s house. Do your best to make sure your child has everything they need to be comfortable and, if a child forgets something, offer to bring it over.  Your ex, and your child, will thank you.
  5. Say thank you. – This one is easy, but often forgotten. If your ex does any of the above for you, or anything else thoughtful, thank him/her for it. Showing your appreciation will hopefully make him/her continue with these kind actions and lead to a better co-parenting experience for all!

International Custody Battle In The Headlines

Sunday, October 19th, 2014

In a divorce case involving children, the final divorce decree will set out in detail the custodial rights of each parent.  This includes who has primary physical and/or legal custody, when the child will physically be with each parent (visitation), and which parent has final decision making authority.  The divorce decree will also detail other guidelines the parents must follow post-divorce, such as that a parent must notify the other if they are moving out of town and that a parent cannot take the children out of the country without the consent of the other parent.

A violation of this last guideline recently resulted in a United Airlines flight returning back to Washington Dulles International Airport at the request of the FBI.  Alleged international parent kidnapping diverts flight, by Katia Hetter, cnn.com, September 5, 2014. In that case, the mother was attempting to fly to Beijing with her child. Once the flight landed back at Dulles, federal law enforcement officers met the plane and took a mother into custody “on suspicion of committing an international parent kidnapping.”  Apparently, the mother and father had a recent custody agreement, which prohibited either party from travelling outside the United States with the child “without express written and notarized consent of the other party, provided in advance of the trip.” In an interview with law enforcement, the mother admitted violating this portion of the custody agreement.

Not only is this mother in contempt for violating a provision of her custody agreement, it is a federal crime for parents “to remove or attempt to remove a child from the United States, or retain a child outside the United States with intent to obstruct another parent’s custodial rights.” 18 U.S.C. § 1204.  At this point, the mother’s intent is not known, but it can probably be assumed that she was not going to take the child for a quick weekend to Beijing. Thus, now she will be the defendant in multiple court actions and has a serious chance of losing custody of her child.

My Ex-Spouse Wants to Move to Another State With Our Child. Can He Do That?

Saturday, September 27th, 2014

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The brief answer to this question is: Although you cannot prevent your ex-spouse from relocating, you may be able to seek a modification of child custody to prevent your ex-spouse from relocating your child. Now for the more detailed response…

In cases where the custodial parent seeks to relocate with the child, the non-custodial parent may seek to modify custody in order to obtain primary physical custody of the child. As with initial child custody determinations in Georgia, in cases involving the relocation of the custodial parent, the primary consideration is the best interest of the child or children involved in the case. Because the best interests of a child vary depending on the circumstances of each case, there is no presumption that the relocating parent will always lose custody nor is there a presumption in favor of the relocating paren. See Weickert v. Weickert, 268 Ga. App 624 (2004); Bodne v. Bodne, 277 Ga. 445 (2003). Generally, in determining whether a child’s best interest will be served by a modification of custody or by remaining in the custody of the relocating parent, the court will consider and weigh the following factors:

  1. A child’s relationship with a non-custodial parent;
  2. The child’s ties to local schools and friend;
  3. The child’s age;
  4. The stress and instability of relocation and the corresponding benefits of consistency and stability for the child;
  5. Interests of the entire binuclear family, which consists of the household headed by the custodial parent as well as the household headed by the non-custodial parent;
  6. The custodial parent’s reason for relocating;
  7. The dynamics of the custodial parent’s new family unit; and,
  8. Any other relevant factors.

Bodne supra. Only if a court finds, after weighing the above listed factors, that a material change in the circumstances affecting the child would occur as a result of relocation will the court modify custody in favor of the parent protesting the relocation.

If you are a custodial parent currently considering relocation, or if you are a non-custodial parent concerned that your ex-spouse’s relocation will have a negative impact on your parenting time or relationship with your child, contact your Atlanta Divorce Team for advice on how to navigate a possible relocation with your child or a child custody modification action.

What is Parental Alienation?

Wednesday, September 24th, 2014

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Generally speaking, parental alienation involves one parent taking actions or making statements to his or her children designed to denigrate the other parent and diminish the children’s relationship with the other parent. Put plainly, parental alienation is exactly what it sounds like, actions taken by one parent to alienate the children from the other parent.

Parental alienation is recognizable in many forms. For example, a custodial parent interfering with or withholding parenting time from the non-custodial parent, one parent repeatedly making derogatory statements about the other parent to the children, and false child abuse allegations made by one parent in an attempt to sever ties between the children and the accused parent are all ways one parent may seek to alienate their children from the other parent. See Weickert v. Weickert, 268 Ga. App. 624 (2004), In re M.E., 265 Ga. App. 412 (2004), and Petry v. Romo, 249 Ga. App. 99 (2001).

Because Georgia courts recognize it is important for children to maintain a close relationship with both parents, even in the event of divorce, Georgia courts may modify child custody in cases where it is clear one parent is seeking to alienate the children from the other parent. According to Georgia law, when determining child custody, the court must consider the best interest of the child or children involved and award custody accordingly. One factor that the court must specifically take into consideration when determine custody is “[t]he willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent, consistent with the best interest of the child.” O.C.G.A. § 19-9-3(a)(3)(N). Thus, for example, in a case where primary physical custody has been awarded to Father post-divorce, if Father continuously refuses to facilitate parenting time between Mother and Children, a Georgia court may find that the circumstances of the case are such that child custody should be modified and Mother should be awarded primary custody.

With the above in mind, if you are a victim of parental alienation, contact the knowledgeable attorneys of the Atlanta Divorce Team. We will be more than glad to walk you through your option to seek a child custody modification.

What Issues Should be Addressed in a Settlement Agreement Including Child Custody?

Thursday, June 12th, 2014

For divorcing parents, often the most important issue to work out is who will have custody of the children, and how visitation will work for the other parent.  Generally, when drafting a settlement agreement, the following custody issues should be addressed:

  1. Primary physical and legal custody
  2. Decision making authority
  3. How the parties will communicate regarding the children
  4. Weekly visitation
  5. Summer visitation
  6. Holiday visitation
  7. Telephone/email visitation

When reviewing a proposed settlement agreement, it is important to remember that every divorce is different, and every set of parents and children are different.  Therefore, after hitting the high points listed above, it will likely be necessary to modify or add to terms in the proposed agreement.  For example, you will want to ensure that the agreement provides for a visitation schedule for all holidays that are important to you.  While Easter may be very important to one family, a Jewish family will likely want to make sure Passover visitation is included.

In addition, if substance abuse is an issue in the divorce, a parent will want to make sure there is an alcohol/drugs clause in the agreement.  Also, if one parent travels a lot for work, the other parent may want a right of first refusal for visitation, rather than having the children stay with a babysitter.

If you and/or your spouse are working with attorneys in your divorce action, you will likely be shown a template settlement agreement as a starting point.  Remember this is just a first draft and it can be modified to suit the needs of your particular family.  It may be helpful to take some time by yourself to think about what is most important to you and really think through how you want to live your life after the divorce.  The more prepared each party is, the better negotiations will go.