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Child Custody

One set of twins – two fathers?

Monday, June 29th, 2015

In a very unusual family law case, a New Jersey woman just found out that her two-year-old twins have two different fathers. New jersey judge rules twins have different fathers, by Haimy Assefa, cnn.com, May 8, 2015. The mother had filed a paternity action against the man she believed fathered both children and a DNA test proved he was only the father of one of the children. Apparently, the mother had sexual intercourse with two men within the same week and, while this medical phenomenon is extremely rare, it is not impossible. As a result of the paternity case, the mother now receives child support for one of her twins, but will have to file a paternity/child support action against the other father (assuming she knows who it is) in order to receive any child support for her other child.

This case brings up some interesting family law issues. Though they are twins, these two children will be treated in the eyes of the law as regular siblings. Everything from child support to custody will be treated separately as there are two different fathers to contend with. Once the paternity of the second father is established, the child support cases will remain separate.

Custody may be considered together, however. The children have been raised together their entire lives and it would likely not be in their best interests to split them up. As such, if either father wants custodial/visitation rights, the court would likely consider the relationship between the twins and make sure any visitation allowed them to be at their mother’s together. For example, if the fathers each had visitation every other weekend, the court would likely order the visitation to be on the same weekend, so that the children could spend as much time together. Thus, while this case certainly presents some interesting issues, the court will still look at the best interests of the children in making any determinations regarding custody and visitation.

Should I Seek Joint Custody or Primary Custody?

Tuesday, June 2nd, 2015

Should you split child custody 50/50 with your ex-spouse, or should you seek primary physical custody? This is a question that every parent considers at some point during the Georgia divorce process.

Although many believe it is best for children when one parent have primary physical custody, because it allows children to have one stable primary home, and it obviates any stress children may endure by having to constantly move around between two households. However, a recent study published in the Journal of Epidemiology & Community Health suggests that children fare better when they spend time living with both parents. Even though this study goes against the beliefs of many concerning the best interest of children post-divorce, this Georgia law has supported this conclusion for decades. As recited in Georgia statutory law:

It is the express policy of this state to encourage that a child has continuing contact with parents and grandparents who have shown the ability to act in the best interest of the child and to encourage parents to share in the rights and responsibilities of raising their child after such parents have separated or dissolved their marriage or relationship.”

O.C.G.A. § 19-9-3(d).

With this recently published study, as well as Georgia law in mind, if you are considering divorce or if you are currently going through a divorce or child custody matter and are wondering which child custody arrangement would be best for you and your children, it is important to consider all options, and to seek the guidance of an honest and experienced Alpharetta family law professional.

The Importance of Thinking Through Parenting Plans

Wednesday, February 25th, 2015

In any case involving child custody in Georgia, the parents (jointly or separately) must submit a parenting plan. O.C.G.A. §19-9-1. In addition to several general statements about custody, see O.C.G.A. §19-9-1(b)(1)), the parenting plan must include specific details about who the children will be with every day of the year, including holidays, vacations, special occasions such as birthdays, how visitation exchange will take place, and allocation of decision making authority. O.C.G.A. §19-9-1(b)(2).

When working with your spouse to come up with a parenting plan, it is important to think long and hard about your children and their schedules (as well as the schedules of you and your spouse). There is no cookie-cutter parenting plan that will make sense for every family. Each family is unique and has different things to consider in determining what will work best post-divorce. For example, if you have high school aged children, it may work best if they just drive themselves to and from visitation. Obviously, elementary and middle school aged children will need to be driven. In addition, older children may have numerous extra curricular activities and their schedules may not lend themselves to weeknight visitation. Parents who live far from each other also may have a hard time working weeknight visitation into the schedule even if their children don’t do any extracurricular activities. It may help to look at “a week in the life” of your family in determining what will work best post-divorce. Living in two separate households can certainly make things more difficult, but doing your due diligence up front before being locked into a parenting plan can help.

Parents know their children better than any Judge. For this reason, it almost always works out better if the parents can work together to jointly submit a parenting plan to the court. Unless the Judge finds the parenting plan to be contrary to the best interests of the children, he/she will accept it and it will become part of the final divorce decree. If you cannot agree, the Judge will make the decision and you may be stuck with a parenting plan that does not make practical sense for your family. Even if you and your spouse are at extreme odds in your divorce and cannot seem to agree upon anything, try to mediate just the custody issue and see if you can jointly come up with a plan that will work for both of you, and your kids. If you can do so, your post-divorce life will likely be a little easier, at least as it relates to co-parenting.

Alternative Visitation Options

Wednesday, February 11th, 2015

When discussing child custody and visitation with your soon-to-be ex-spouse or your attorney, keep in mind that visitation does not have to just be when you physically see your children. With the advent of technology, there are many ways to have “visitation” with your children, even when you are physically not with them:

  1. Telephone visitation – A clause for telephone visitation has been in settlement agreements for years but is still worth mentioning for those who have not considered it. Some parents think of visitation as “my time” with the kids and don’t want any interference by the other parent. This is not unreasonable, but may not make the children comfortable. Consider adding a clause that allows the non-custodial parent (at that time) to call the children one time a day. If a child is having a hard time with the divorce, getting a good night phone call from the other parent may ease that child’s discomfort.
  2. Email visitation – This clause has also likely been in settlement agreements in recent years. This can be a great way for parents and children to send information back and forth, particularly for parents who do not live in the same city. Perhaps the child did some work in school that he/she is particularly proud of. That child can scan the work in and email it to the parent who lives in a different city.
  3. Texting – This can be a very effective mode of communication, particularly with teenagers. If you have children who are always on the go and don’t take time to pick up their phones, send a quick text just to let them know you are thinking about them. Whether or not they respond, you may put a smile on their face on a day that they would otherwise not have time to stop and think about you.
  4. FaceTime or Skype – This is a great option, particularly for parents who live far away from each other. When parents don’t live in the same city, physical visitation is often long chunks of time during summer vacation and other school holidays. Thus, one parent may not physically see the children for a long period of time. FaceTime and/or Skype can solve this because they allow parents and children to see each other over the Internet or through their phones.

Some divorced parents have no problem allowing the children to communicate with the non-custodial parent in all of these manners. Some, however, are hesitant to share any of their visitation time with the other parent. For this reason, and because you never know if you relationship with your ex will change, it is prudent to add clauses allowing for this communication into your parenting plan. In addition to cutting down on arguments about who can talk to who and when, adding these communication visitation options into a parenting plan will further the child’s relationship with both parents.

Contentious Custody Battle Turns Deadly

Saturday, January 31st, 2015

Watching the news is often depressing, with the headlines too frequently involving senseless killings of families and children. Recently, a Pennsylvania father killed his ex-wife as well as her mother, grandmother, sister, brother-in-law, and niece. Suspect in family massacre found dead, by Ashley Fantz, CNN, December 16, 2014. The victims were killed at three different locations, suggesting that he sought them out specifically. In addition, a neighbor of the ex-wife said that she was afraid of her ex-husband and worried that he was going to kill her. Pa. killings suspect found dead with self-inflicted knife wounds, by Josh Bacon, Gregg Zoroya and Marisol Bello, USA Today, December 16, 2019. According to the district attorney involved with the case, the father and his ex-wife had been involved in an ongoing, contentious custody dispute with the father recently being denied in his attempt for emergency custody of their two children, ages 5 and 7. These two children were not harmed in the father’s attack. Rather, it appears that they saw at least some of the violence before their father took them to a neighbor’s house. The father later apparently took his own life.

 Stories like this can frighten anyone going through a contentious custody battle. While this father’s actions are certainly the extreme and happen only rarely, they do happen. If you are involved in a contentious family law case and you think your ex could react violently and/or you fear him/her in any way, tell someone. There are resources that can help you. In Fulton County, for example, there is a Domestic Violence Project Safe Families Office that provides legal representation at no cost to those seeking a Temporary Restraining Order. (You must qualify for the service.) There are also tips on their website that can help understand your options. The tips listed on the Fulton County website are helpful no matter what county you live in. In addition, if you are in court, you can let the Judge know of your fears and request a Temporary Restraining Order right then and there.  It is unclear whether the ex-wife in the Pennsylvania case obtained a Temporary Restraining Order against her ex-husband, though it appears she at least told some friends about her fears. It is also unclear whether a Temporary Restraining Order would have stopped the violence from taking place, as the father was clearly on a mission to hurt his ex and her family. But, do not let this discourage you from obtaining one if you think you need to – Temporary Restraining Orders can get authorities involved more quickly where they may otherwise be hesitant to get involved in a family law matter. If you are fearful of an ex and think he may resort to violence as a result of a contentious custody case, there is no harm, or shame, in requesting a Temporary Restraining Order to protect you and your family.

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