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Child Custody

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.

 

 

 

 

 

 

 

 

 

 

 

The Four Parts of Georgia Divorce: Child Custody

Tuesday, April 1st, 2014

Continuing from our previous post entitled “The Four Parts of Georgia Divorce,” child custody in Georgia is comprised of three main components: physical custody, legal custody and parenting time.

Physical Custody

Physical custody refers to which parent the child will reside with primarily post-divorce. Physical custody may be determined by the judge presiding over the case, by the parents themselves via a parenting agreement or if appropriate and under certain circumstances, by the election of the child or children involved. In Georgia, children of a certain age may make an election as to which parent they wish to be their physical custodian. O.C.G.A. § 19-9-3 (a)(5)-(6). Regardless of how the determination is made, the best interests of the child or children involved must be considered by the court before any physical custody arrangement is ordered. O.C.G.A. §§ 19-9-3(a) and 19-9-5 (a)-(c).

Irrespective of whether the court, the parents or the child makes the determination of regarding custody, Georgia law allows for three basic models for physical custody of a child: 1) one parent being granted sole physical custody, 2) one parent being granted primary physical custody, with the other being granted secondary physical custody or 3) both parents being granted joint physical custody.

Legal Custody

In Georgia, the parent granted legal custody of a child has the authority to make major decisions concerning the child or children involved. These major decisions include, but are not limited to decisions concerning a child’s education, health, extracurricular activities, and religion. Legal custody may either be granted to one parent, as the sole legal custodian, or legal custody may be granted to both parents in a joint legal custody arrangement. If a court does order joint legal custody in a case, the court’s order must set out “a manner in which final decision making on matters affecting the child’s education, health, extracurricular activities, religion, and any other important matter shall be decided.” O.C.G.A. § 19-9-3(a)(8). Often, if a court awards parents joint legal custody of their child or children, the court will assign each parent the major decisions he or she has the authority to make. For example, one parent may be granted the sole decision making authority regarding the child’s education, while the other parent retains sole decision making authority regarding all other matters affecting the child. Even if the decision making authority is not shared equally by both parents, according to Georgia law, both parents may still have access to all of the records and information concerning their communications and other matters.  O.C.G.A. §19-9-1 (b)(1)(D).

Similar to physical custody, the determination of which parent will be a child’s legal custodian may be made by the judge presiding over the case or by the parents of the child via a parenting agreement. However, unlike physical custody, Georgia law does not allow for children to determine which parent will be responsible for their legal custody. Because physical and legal custody are two distinct concepts, a court may order the parents to share joint physical custody, but order that legal custody be held solely by one parent. Alternatively the court may order that the parents share both joint legal and joint physical custody of their children.

Parenting Time/ Visitation

Although visitation rights are normally dealt with simultaneously with custody issues, visitation is not the same thing as custody. O.C.G.A. § 19-9-22(a). Visitation, otherwise known as parenting time, is normally granted to the non-custodial parent, and includes set times during which the non-custodial parent may visit with their minor child or children. Georgia has a public policy that encourages continued contact between children and their parents, even after divorce. O.C.G.A. 19-9-3(d). Thus, Georgia courts rarely ever deny a non-custodial parent visitation unless the court finds that it would be injurious to a child or not in that child’s best interest to have contact with the non-custodial parent. Schowe v. Amster, 236 Ga. 720 (1976) and Shook v. Shook, 242 Ga. 55 (1978).

 

What is Supervised Visitation and When May it be Ordered?

Monday, March 17th, 2014

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Supervised visitation is not a concept that is unique to Georgia. There are several states that recognize the concept of supervised visitation in situations in which the court presiding over the matter deems is appropriate. In Georgia, supervised visitation may be defined as visitation that occurs between a non-custodial parent and his or her child that is monitored or supervised by a third party.

Generally, the third parties that serve as monitors during supervised visitation are social workers or other qualified child care professionals that monitor the well-being of the child and the interaction between the parent and the child during visitation. Under certain circumstances however, family members or other household members may serve as supervisors as long as certain guidelines are followed. O.C.G.A. § 19-9-7(d). The supervisors normally do not play an active role in the visitation session, but instead observe the visitation session quietly and make observation notes concerning the attitude and actions of both the child and the parent during visitation. In most cases, the monitor will only interrupt or intervene in a visit if the parent threatens the child’s safety or wellbeing.

Supervised visitation is usually court ordered in child custody matters where there are allegations of or prior instances of family violence, child abuse, neglect, drug abuse or alcohol dependence. See generally O.C.G.A. § 19-9-7. Because Georgia courts prefer for children to maintain ongoing relationships and have contact with both parents after a divorce or other family change, supervised visitation is ordered in lieu of completely denying one parent visitation with his or her child in matters where one parent has committed acts of family violence.

Although supervised visitation is normally court ordered, in situations where one parent’s ability to positively interact with his or her children independently is in question, parents may agree for that parent’s visitation to be supervised until that parent is able to positively interact with his or her child without supervision. In situations such as this, the parent may also choose the agency or supervised visitation provider that will facilitate the visits. Alternatively however, in instances where the supervised visitation is court order, the decision regarding who will facilitate the supervised visitation is often made by the presiding court, not the parties involved.

 

 

 

 

My Spouse Has Abused Our Children in the Past; Will He be Granted Custody or Visitation?

Wednesday, March 12th, 2014

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Depending on the particular circumstances of the case, it is likely that both parents will be awarded some visitation or parenting time with their children. In Georgia, a judge may award visitation or parenting time to a parent who has committed certain acts of family violence “only if the judge finds that adequate provision for the safety of the child and the parent who is a victim of family violence can be made.” O.C.G.A. § 19-9-7(a). In order to ensure that adequate provisions for the child’s safety have been made, the court may issue the following orders or place one or more of the following conditions on that parent’s visitation or parenting time:

(1) Order an exchange of a child to occur in a protected setting;

(2) Order visitation or parenting time supervised by another person or agency;

(3) Order the perpetrator of family violence to attend and complete, to the satisfaction of the judge, a certified family violence intervention program for perpetrators as defined in Article 1A of Chapter 13 of this title as a condition of the visitation or parenting time;

(4) Order the perpetrator of family violence to abstain from possession or consumption of alcohol, marijuana, or any Schedule I controlled substance listed in Code Section 16-13-25 during the visitation or parenting time and for 24 hours preceding the visitation or parenting time;

(5) Order the perpetrator of family violence to pay a fee to defray the costs of supervised visitation or parenting time;

(6) Prohibit overnight visitation or parenting time;

(7) Require a bond from the perpetrator of family violence for the return and safety of the child; and

(8) Impose any other condition that is deemed necessary to provide for the safety of the child, the victim of family violence, or another family or household member.

O.C.G.A. §19-9-7(a)(1)-(8). The reason why Georgia courts may opt to allow visitation with one or more of the above outlined restrictions in lieu of simply refusing to award a parent with a history of family violence visitation or parenting time is that it is the public policy of Georgia to encourage and foster relationship between children and both parents. Put plainly, the court prefers for both parents to play a role in their children’s lives if at all possible. However, there are situations in which a parent may lose parental custody of his or her children. According to Georgia statutory law, the criteria for loss of parental custody in Georgia is:

“If a child is found under circumstances of destitution and suffering, abandonment, or exposure or if the child has been begging or if it is found that the child is being reared under immoral, obscene, or indecent influences which are likely to degrade his moral character and devote him to a vicious life and it appears to the appropriate court by competent evidence, including such examination of the child as may be practicable, that by reason of the neglect, habitual drunkenness, lewd or other vicious habits, or other behavior of the parents or guardians of the child, it is necessary for the welfare of the child to protect the child from such conditions, the court may order that the parents or guardians be deprived of custody of the child and that appropriate measures as provided by law be taken for the welfare of the child.”

O.C.G.A. § 19-7-4.

If you are currently involved in a child custody or divorce matter and your spouse or ex-spouse has a history of family violence or child abuse, it is imperative that you contact a Georgia family law attorney with experience handling complex child custody maters to guide you through the process of determining what custodial arrangement will be in the best interest of your children.

It is recommended that you seek legal advice from a lawyer to assist you in a custody case involving domestic violence issues.