181 - Custody Q&A
Leh and Todd take on several child custody questions in today’s show, including:
If I have filed for Legitimation but the mother has not been served, is there anything I can do to prevent her from fleeing the state with our child?
The Father of our three year old son has had nothing to do with him since his birth. I never pursued him for child support. Suddenly he wants custody. Can he get custody or win legitimation if he has been absent for three years?
My ex-husband’s new wife is aggressive towards him in front of our children. Is there any way I can limit her time with the children when they are visiting their father?
Can I relocate with my child to my home country?
I have been allowing the non-custodial parent to visit with our 8 month old. I have learned recently that he has not been social distancing or wearing a mask. He has come down with COVID. Is it ok to block or limit his parenting time?
Leh Meriwether: Welcome everyone, I'm Leh Meriwether and with me is Todd Orston. We are your co-hosts for Divorce Team Radio, a show sponsored by the Divorce and Family Law Firm of Meriwether and Tharp. Here where you learn about divorce, family law, and from time to time even tips on how to save your marriage if it's in the middle of a crisis. If you want to read more about us, you can always check us out online at atlantadivorceteam.com. Well Todd, I got questions for you today.
Todd Orston: Are they related to what we do for a living or is this just going to be a get to know Todd kind of show?
Leh Meriwether: A get to know Todd kind of show.
Todd Orston: All right, I'm an Aries. I like long walks on the beach and playing fetch with my dogs.
Leh Meriwether: I'm just , it's about family law.
Todd Orston: All right, good, because I think I ran out of information. That's about all that's interesting about me.
Leh Meriwether: You should've pulled up your profile, no I'm just kidding. I hope your wife's not listening to this.
Todd Orston: She never does. We're safe. Anyway.
Leh Meriwether: All right, so today we're going to focus on custody issues or just questions that surround custody, not just necessarily divorce but the legitimation and those kind of things. Some of these are a little bit different but they're tied to custody, but as always, we like to take these questions, break them down, do our best to answer them on the little information we have, but then also parlay it into like if you had a situation like this, this is how you might want to handle it, and it's our opportunity to explain the law. Now, we're going to be talking about the law here in Georgia in particular, but that doesn't mean that that analysis won't apply in your state. The important thing is to talk to a lawyer where you live and find out the law and find out how it might apply in your situation, but a lot of times the analysis of a situation, because there's some practical analysis as well as legal analysis, can apply to a situation like yours that may not have the same exact fact pattern.
Todd Orston: I agree. Well said.
Leh Meriwether: All right. Okay, good. Thank you. All right, first question, I filed legitimation and I'm awaiting the sheriff to deliver the service to serve the mother, so I told her to expect it and she says that she's considering leaving the state. And she said, "If she leaves the state before it's delivered, is there anything I can do by law to stop her? She has been telling her husband my daughter isn't mine. I don't know, if she attempts to leave then is it something not right, and this is her third time having a child outside of her..." Her husband's not the father. He also said in his question, I'm not going to read all of it, but he said that her husband vindictively signed the birth certificate for his daughter to keep him from her. So, he's asking questions about he's doing this out of spite, alienating him, is that legal even if he's the husband and legal father?
Todd Orston: All right, mistake number one, don't tell her you're filing a legitimation, all right? Listen, I've talked to people before and I've told them, "Look, don't just have a conversation and tell them, especially if there is a possibility that the party in question's going to evade service or especially if they're going to leave the state." We've even had situations where there is a concern of not just leaving the state, but leaving the country, until... especially in a legitimation case, until you basically have them formally served they can go wherever they want. Until you legitimate, you have no legal right. So, I usually tell people, "You're not being untruthful, you're not being improper. It's not wrong for you to not put them on notice. I understand the reason why, look, I want everything to be above board. I want to try to accomplish this and make sure that I'm sort of doing the right thing and doing it the right way. But there's nothing wrong with filing, getting them served, and then obviously there will be plenty of time to talk about the specifics." So, here you have a mom who is potentially alienating, who is doing some things that obviously can impact your relationship with your child. You need to legitimate to establish those rights.
Todd Orston: I routinely tell people get the paperwork ready, file it. If you can get them to acknowledge service, great, but if this is going to be a situation where that's difficult, get them served. Don't give them a heads up that it's coming, and I understand there's going to be some shock value there but dealing with that shock is usually a lot better than dealing with somebody who then goes into evasion mode where you can't find them. They do everything they can. They won't come to the door if a sheriff tries to serve them or they just disappear. So, if you're weighing your options, usually I tell people lean in favor of get them served, because once they're served, if they leave the state then you do have options. You can get in front of a judge because they've been served, they have an obligation to then respond when the court sets hearings and does other things. So, they can't just flee at that point without there being some potential repercussion.
Leh Meriwether: And many jurisdictions have what's called a standing order that says if custody's at issue, which it would be in this case, then that person cannot leave the jurisdiction of the state, and if they do it's not contempt of court and you can get a court order requiring that person to either return with the child or that the child stays here, in this case, in Georgia and the other person go ahead and move but the child's going to stay here in Georgia during the pendency of the case. So, now, not every jurisdiction has a standing order so that can be an impact so you definitely need to talk to your local lawyer to see what sort of standing order is in your place. The only exception I might give to not giving them a head's up is if the two of you have been talking about child support, how you're going to be involved as a father in this situation. In that case, you would do what's called acknowledgement service. You would try to work it out ahead of time. The fact pattern we have here is he definitely had concerns at the very beginning, concerns that perhaps the legal father, the husband, may be trying to alienate him.
Leh Meriwether: So, in that situation, if you already have concerns then yeah, don't give them a head's up. Make sure they're served and that way that standing order goes in place in your case. The other thing I might add here, and this is that practical advice, I don't know what's going on, but there could be another reason why the husband signed at the hospital. It could've been that perhaps he signed just out of embarrassment. I don't know. We don't know the real reason why he signed the birth certificate. The hospital staff could've said, "Please sign here," and he didn't want to create a scene so he just signed there, and if you're trying to work something out the best thing to do is not assume the worst, in this particular fact pattern, assume a positive reason.
Leh Meriwether: Because what you want to do is you are not going to be involved in both the mother's life and her husband's life and you want to be, as best as you can, you want to have a positive relationship with those two because now there's a three way co-parenting arrangement. I know the husband's not the real parent but he's a step-parent that will be involved in the raising of your child's life, and if you can start off on the right foot in this situation then you're setting yourself up for a low confrontation relationship for the next 18 plus years and it helps your child have a better future, so.
Todd Orston: Very practical.
Leh Meriwether: That's that practical advice I was talking about.
Todd Orston: I'm ready.
Leh Meriwether: Ready for the next one?
Todd Orston: All right. So, here we have someone says that, "The biological father of my son hasn't done anything since I told him I was pregnant. Now, over three years later, he wants custody." So, the person goes on to write, "I discovered I was pregnant by a guy and I told him the child was his. He denied it. It was casual relationship, we weren't even dating so I continued on with my life as a single mom. I never went for child support. Now, my son's over three years old and the father contacted me and says he wants him, and I talked to the father once." It sounds like they didn't have a lot of contact and maybe she wasn't very responsive, but nonetheless, the father then contacts her and says, "Look, I'm hiring an attorney and I'm going to basically go after custody." So, she's concerned about whether or not this person who hasn't had any contact for three plus years is going to be able to file and not only get visitation, but even potentially get custody of her child.
Leh Meriwether: Right. First thing I want to say is good for you for taking this seriously. So, when I say some people say, "There is no way he's getting custody because he hasn't been involved in three years," they blow off the legal process, which can be very bad. So, you're taking this process seriously, very good job. Now, that being said here in Georgia, with these limited fact patterns he's going to be hard pressed to have primary custody, and when we come back we're going to dive deeper into the answer to this question.
Leh Meriwether: I just wanted to let you know that if you ever wanted to listen to the show live, you can listen at 1:00 AM on Monday mornings, WSB. So, you can always check us out there as well.
Todd Orston: Better than like counting sheep, I guess, right?
Leh Meriwether: That's right.
Todd Orston: You can turn on the show and we'll help you fall asleep.
Leh Meriwether: There you go.
Todd Orston: I'll talk very soft.
Leh Meriwether: Welcome back to Divorce Team Radio, I'm Lee and with me is Todd. We are your co-hosts for the show, a show sponsored by The Divorce and Family Law Firm of Meriwether and Tharp. If you want to read more about us you can always check us out online at Atlantadivorceteam.com, and if you want to hear more about this show or read the transcript for this show and others, you can go to divorceteamreadio.com. Okay. Well, today we're answering questions and we are breaking them down. We are giving both legal, based on Georgia, by the way, in September of 2020 because the law can always change, giving answers both at a practical and a legal level. So, even if you don't live in Georgia, this information can be very helpful. Where we left off, we were talking about someone who... What was the question again?
Todd Orston: The dad hasn't done anything in three years.
Leh Meriwether: Oh, yes. Sorry about that.
Todd Orston: Welcome back to the show.
Leh Meriwether: Welcome back, huh?
Todd Orston: Leh.
Leh Meriwether: Okay. I'm glad you were here to remind me of the question, okay. So, what we were talking about is very good that you are taking is seriously because some people don't, okay? In Georgia, there is no presumption, at least in the moment as of the time we're recording this in September of 2020, there is no presumption of joint physical custody. Some states do have a presumption of joint physical custody, but even in those situations, he's not coming in and he wouldn't be taking primary custody. You would be sharing custody with him and that would be a scenario where, depending on your financial circumstances, he's also going to have to pay child support. So, those things are going to come into to play. All right, so taking it seriously. Now, let's talk about practical issues. I don't know anything about this guy, so I'm assuming he's just someone who wasn't mature three years ago and did not engage as a father as he should have and now he's realizing the mistake he's made and he wants to take ownership of that mistake and be involved in your son's life. When you look at the psychological evidence out there as far as fathers being involved in sons' lives, that's a good thing. So, the best thing to do is, and I know it's ridiculous, I want to be clear here, it's ridiculous that he has not been involved for the last three years.
Leh Meriwether: It's ridiculous that he hasn't paid child support. That being said, there are circumstances when you can get some of that money back. There is no retroactive child support in Georgia, there may be in other states that I don't know about but there is none in Georgia, but there are circumstances when you can get some money back. Those are very nuanced but you can get some of the expenses of the child birth that he didn't contribute that you can ask for that in the legal action, and there may some other things. They're very nuanced, you need to talk to your local lawyer about the possibility of getting some back support, not child support, but other reimbursements of your expenses for the last three years. But if there's a way you can co-parent with the father of your son, that actually could be a huge benefit for your son on a long term basis.
Todd Orston: Yeah, let me take it back to the custody side of things. Because you were never married, here and again I'm speaking about Georgia law, he has to move for legitimation. He has to petition the court to legitimate the relationship between he and the child, meaning to establish that legal relationship. I'm making the assumption the biological relationship is there, but legitimation creates that legal relationship which then opens the door for him to ask for custody rights, all right? And until he does this, until he legitimates, he can't get those custody rights. Now, we are making some assumptions, and while technically and theoretically I agree with you, Leh, that look, if this is just due to he was young, he was immature, he is waking up and suddenly he wants to be a part of his child's life, I get it. Lean in favor of hopefully including him in your child's life. It's going to be the best thing for your child, but you can oppose a legitimation and courts have denied requests to legitimate because basically if you waste that opportunity and if years go by, then I have seen courts say, "You know what? No. You can't just step into the child's life at this point and suddenly want to become dad." The harm to the child might even be greater than the harm of the child not having or knowing who the father is.
Todd Orston: So, that's a possibility. I'm not saying you should definitely go that route, and at three plus years old the child is still young enough that the argument can be made, look, if he's going to be responsible, the child has plenty of time to meet the dad and all of that. Winning primary custody, unless you have some skeletons in your closet, unless there's some real safety concerns that weren't included in the question, than him getting primary custody, to me, is ridiculous. If all of a sudden it turns out that he's doing this because he has safety and welfare concerns while the child is with you, well obviously totally different analysis because then he'll be coming in asking to legitimate and saying, "I need to have custody simply because the child's not safe," all right? So, there's a lot here we would have to unpackage and a lot that isn't in the question fact wise that could obviously affect our analysis, but the bottom line is there are options here and I'm going to go back to what you said, Leh. Lean towards inclusion.
Todd Orston: The child is young enough. I'd probably be saying something different if the child was six, seven, eight years old, no contact with dad. I would say, "No." That's just wrong on too many levels, and go ahead and petition the court and I'm going to probably fight legitimation. But at three years old, I think as long as he's doing it for the right reason, I think giving him a chance and controlling how he re-introduces to your child, I think that's probably your best path.
Leh Meriwether: One of the things I like that you being my co-host, you compliment me. I love how you come out and give sort of the other side to the answer, which was very helpful, because we have won those cases where someone came in late at like eight, nine, years and we opposed to legitimation and won. There was even one case that went up to The Supreme Court of Georgia and still won. There are situations that are necessary for that, even at a young age of two or three years, so.
Todd Orston: That's right.
Leh Meriwether: So, that's why it's critical that you don't take what we say as blanket statement. You take this information and you go meet with a local lawyer to learn more. Even if you can't afford to retain someone formally, go do a consultation. Learn about the judge in your area that might be hearing your case. Share with them all the facts so that you are better prepared for what's to come. And I will say, I have never seen a judge just suddenly say, "We're doing joint physical custody." No, there's a period where... because your son doesn't know his dad, and so they're not going to make the three year old suddenly live half his life with a perfect stranger. So, every time I've ever seen it, I'm not saying it hasn't happened, but every time I've ever seen it it is a gradual introduction to the father.
Todd Orston: That's right.
Leh Meriwether: All right, next question.
Todd Orston: Hit me.
Leh Meriwether: What are the-
Todd Orston: Not, not...
Leh Meriwether: Darn it.
Todd Orston: Not really, but the... yeah.
Leh Meriwether: I thought that was permission.
Todd Orston: You're a big boy. That would hurt, so. So, present me with a question, thank you.
Leh Meriwether: What are the requirements to get a court order that my children are not to be left alone with my ex-husband's new wife? My ex-husband's new-ish wife has threatened to hit him in front of the kids, they have huge arguments, and she doesn't have custody or contact with her two biological kids, but I don't know the reasons why. She has given me reasons not to trust her or to be left alone with my children. Is this possible to accomplish?
Todd Orston: Well, the answer's yes, and we're talking about a modification of custody and parenting time. So, is it possible? Yes. Is it difficult? More than likely. Are they going to fight to prevent this from happening? In other words, more than likely they're not going to just roll over and say, "Oh, she can't have contact? Absolutely, that's convenient," because it creates real problems with his family. And I'm not saying that you shouldn't do this simply because of the impact on how he manages his home life, but you have to understand, you're looking at a fight. Because by doing this, basically anytime he wants to exercise parenting time he has to either be out of the home or he has to have his wife leave the home, and I've had cases where that kind of arrangement, that kind of a situation was in existence and it becomes a real problem. All right. Now, let's assume she's as bad as you describe, then the answer is yes, you can petition the court to modify whatever the existing custody order is to limit that contact but you're going to have to have good evidence, as with any kind of a case. You can't just walk in and say, "I don't want her to have contact." It's going to have to be pretty significant.
Leh Meriwether: And when we come back, we're going to talk about just what kind of evidence you would need to present and what would be admissible.
Todd Orston: Hey everyone, you're listening to our podcast but you have alternatives, you have choices. You can listen to us live also at 1:00 AM on Monday morning on WSB.
Leh Meriwether: If you're enjoying the show, we would love it if you could go rate us on iTunes, or wherever you may be listening to it. Give us a five star rating and tell us why you like the show. Welcome back everyone, I'm Leh and with me is Todd. We are you co-hosts for Divorce Team Radio, a show sponsored by The Divorce and Family Law Firm of Meriwether and Tharp. If you want to read more about us, you can always check us out online at Atlantadivorceteam.com and you can listen to the show again or get a transcript of the show at divorceteamradio.com. Okay, well last time I had to interrupt Todd because he was about to go over, but just to prep you Todd in case you forgot, we were about to get into the evidence and the admissibility of that evidence necessary to file a modification to prevent the father's new wife from being around your children.
Todd Orston: Yeah, I remembered that, Leh. Thank you for reminding me.
Leh Meriwether: Just in case.
Todd Orston: Unlike you, I don't forget where I am mid show, all right?
Leh Meriwether: Are you sure about that?
Todd Orston: All right. Well, maybe. All right, so evidence in these kinds of cases, it's not what you say, it's what you can prove. We've said this on shows again and again and again. So, in a situation like this, I've already told you you've got a fight on your hands, but more importantly, I'm going to advise don't even start the fight unless you have the evidence to prove what you need to prove to convince a judge that something as draconian and dramatic and drastic as preventing contact between that step-parent and your children is necessary. So, what am I talking about? Well, evidence, you can't just say, "They fight." Another problem you have is your children aren't going to be called in as witnesses so you need to figure out, A, what evidence do you have right now? Now, if a lot of your evidence is coming from the kids talking about how horrible this person is, then there's a number of things that... How old are the children? If they're three and four that's going to be really hard.
Todd Orston: If they're nine, 10, 11, 12, something where they can intelligently communicate their concerns and issues to someone, well then maybe you can get started and what you're going to do is going to be asking the court for the appointment of a guardian ad litem. And that's somebody who doesn't represent the interests, or doesn't represent rather a child, but represents their best interests and then will make their findings known to the judge at the appropriate point. So, they can come in and talk to the kids, get a feel for what's going on in that house, and if they have a high level of concern they will then turn around and make their opinions known to the court. So, both Leh and I, we are trained guardians and we've worked with countless guardians. It's a common in Georgia custody actions, but again, it's going to come down to how do you prove that home life is so unhealthy for the children that something like this has to happen.
Leh Meriwether: Actually, I'm not a trained guardian, so sorry.
Todd Orston: Oh, I'm sorry. Well, you should've just run with it. He's also Superman. He can also leap tall buildings and...
Leh Meriwether: Oh, my.
Todd Orston: Actually, he can barely get out of a chair. No, I'm kidding. I'm joking. There's no leaping for Leh. All right, well.
Leh Meriwether: Leaping...
Todd Orston: Then I'm a trained guardian, that I'm not fibbing about.
Leh Meriwether: Yes, you are.
Todd Orston: But look, these kinds of cases are really really difficult because courts are reluctant to basically go to that length, and so you have to be very very careful and you have to be very prepared.
Leh Meriwether: And I'd like to expand on one of the points you made about the kids and what they say. I don't know about you, but I know I've seen cases where literally what was happening was dad had some very strict rules at his house and at mom's house the kids kind of minded her a little bit better or she just didn't have as strict of rules. And so, the kids were a little bit older and they didn't like dad's strict rules. They didn't like him taking away their cell phones and that sort of thing, so they really exaggerated a story, and when I say exaggerated it's probably an understatement. It was almost to the point of a complete lie. There was a base of truth, but they expanded on it so they didn't have to follow dad's rules. And so, mom brought an action and then when the guardian got involved it turned out that the kids were kind of... they were just blowing up something that really was not an issue. Mom and dad and new wife, or step-mom, did get into an argument but it wasn't some knock down drag out fight or some bad horrible, hey, I'm going to hit you type of argument.
Leh Meriwether: It was just an argument and same things that most parents have at any given time. And so, there was a lot of money spent and a lot of hurt. Basically, the co-parenting relationship was almost destroyed because of the action.
Todd Orston: Yeah, it could very well, to your point, be that that... no, I'm saying this also not forgetting the fact that she has lost contact with her two biological children, red flag. I mean, I'm not making any assumptions but it at least causes me to have some level of concern, but I've seen many cases where the kids just don't like the fact that that step-parent is a parent, right?
Leh Meriwether: Yeah.
Todd Orston: I mean, hey, it's time for bed. Hey, do your homework. Hey, just other basic things. Just take your dishes up after dinner, and they're like, "You're not my parent. Don't tell me what to do. I hate you," and then next thing you know the stories sort of, you know, they grow in terms of their intensity, in terms of descriptions of bad behavior, and that's some level of hyperbole included in these stories. So anyway, just be very careful and before you pull that proverbial trigger, just make sure you have your sort of war chest of evidence ready to go, that you understand I have... and this where to your point also, Leh, talk to an attorney. This is where even if you aren't going to be able to afford to retain, sit down with an attorney and lay out all that evidence and have that attorney look at it, consider it, and tell you you have enough, you don't have enough. No attorney's going to be able to tell you you're going to win. Well, I mean, I can come up with a situation where the other person's in prison or something like that, okay, yeah the judge is...
Todd Orston: But any attorney who's like, "Absolutely, you're going to win." That's not what you want to hear. You want to hear some really good analysis based on the facts and the evidence that you are presenting. Hey, do you think this might be enough? Is it worth the fight?
Leh Meriwether: And to be clear, I've had a case, a scenario not exactly like this but similar and we did not rely on what the children said. There was actually Facebook and social media posts that supported their claim. So, there was independent information that justified bringing in action and custody changed. There was severe limitations put on dad's time, so just to be clear about that, but you've got to have that right evidence that's going to be admissible. So, taking one step back, this is that practical advice, hopefully you have a decent co-parenting relationship. If it's okay, go out and read the book called Crucial Conversations because this is a perfect time to have a crucial conversation with your ex-husband and sit down and say, "Hey, the kids came home and they seemed upset about... Let me just relay to you what they told me," and you relay that to him. You lay down what you heard and say, "I don't want to jump to any conclusions. We know how our kids can exaggerate things. Tell me what's going on." I'm shortening that, and we've actually had Diane [Derks 00:31:22] give a great explanation of how to sit down with your ex-spouse, your co-parent, to have that very difficult conversation.
Leh Meriwether: One that is not... I mean, obviously it's confrontational, but one that doesn't put them on the defense immediately, you just share the facts. Tell them what it seems like you're seeing and then say, "Hey, is this true? I want to hear it from you because I'm not going to... We both love our kids and I'm not going to immediately believe what they're telling me. What's going on?" And so, it opens up that healthy dialogue that can lead to a better co-parenting relationship, find out if the kids are telling the truth. Maybe there is a problem at home and maybe the father says, "You know what? We are having some difficulties and I didn't realize it was affecting the kids that way. I'm going to have to get into counseling with my new wife otherwise something's going to change," and we've seen that happen too.
Todd Orston: Yeah. Leh, great advice, and that's why you complete me as well, all right?
Leh Meriwether: Oh, gosh.
Todd Orston: All right, all right.
Leh Meriwether: You know, if you're listening to this show for the first time, we take what we do very seriously so don't let our joking around mean that we don't take this, the topic and representing people, very very seriously. We just don't take each other very seriously.
Todd Orston: I don't take you seriously at all.
Leh Meriwether: It's just such a serious topic, and we just find that sometimes laughter helps you to learn a topic. When we come back we're going to answer a question about whether you relocate with your child to another country.
Todd Orston: I just wanted to let you know that if you ever wanted to listen to the show live, you can listen at 1:00 AM on Monday mornings on WSB. So, you can always check us out there as well.
Leh Meriwether: Better than counting sheep I guess, right?
Todd Orston: That's right.
Leh Meriwether: You can turn on the show and we'll help you fall asleep.
Todd Orston: There you go.
Leh Meriwether: I'll talk very soft. Welcome back everyone, I'm Leh Meriwether and with me is Todd Orston. We are your co-hosts for Divorce Team Radio, a show sponsored by The Divorce and Family Law Firm of Meriwether and Tharp. If you want to read more about us, you can always check us out online at Atlantadivorceteam.com and you can find transcripts of this show and others at divorceteamradio.com. All right, today we are talking about custody questions, or answering I should say custody questions. Applying Georgia law as it exists in September 2020, because the law is constantly changing, and giving legal and practical advice to each one. So, even if you're not living in Georgia, this information could be very helpful. Okay. I got one for you, Todd.
Todd Orston: All right, hit me.
Leh Meriwether: What?
Todd Orston: That was not an invitation, let's go.
Leh Meriwether: Okay. Can I locate my child to my home country? I have legal and physical custody of my child and my ex has visitation every other weekend. There is no terms of traveling or relocating in my agreement except it says parties need to inform each other of a new address 30 days in advance. It doesn't mention whether it's a movement within the country or out of the country. Do I need permission from my ex to either travel out of the country or maybe relocate with my child?
Todd Orston: All right. That one's hopefully a pretty easy one and one I can get through pretty quickly. Just because you were awarded primary legal and physical custody doesn't mean you can leave the country. Meaning, the whole point of the 30 day advance notice, the whole purpose of that kind of notice is you are giving the other party time to respond and deal with your notice that you are intending to remove the child from the jurisdiction. What I mean by that is you need to give that notice so that the other part, if necessary, can say, "Well, hold on. I don't approve of a relocation out of the state or even out of the country," and they can then file a petition to modify custody. So, in essence what happens is they go to court and they basically say to the court, "She has notified me that she is leaving the country. I do not approve of that. I have a good relationship with my child or children, and therefore if she is leaving I would like primary physical and legal custody and we'll swap, we'll flip things, and she can have parenting time whenever she wants to come back into the country.
Todd Orston: And so, that's sort of how that looks, and so no, it's not as simple as, "Hey, I've got the child and I can leave." That's absolutely, and I'm making assumptions about the father, that absolutely is going to create a real potential, and I would say almost a guaranteed, filing of some kind of an action to try and prevent the move. The court can't prevent you from leaving but the court can exercise jurisdiction over the child and make decisions regarding custody, and that means that the court could flip custody to the other parent.
Leh Meriwether: Well said. All right, I will say in some states that you actually do have to go to the court if you're moving out of state or out of country, or in some situations within so many miles of where you currently live. You have to go to court to get permission for that move with the child. So, Georgia's a little different but any kind of move, significant move, like more than 50 miles, could trigger a modification action. Well, 50 miles, that's with some states. Georgia is it'd had to be something significant. All right, this is an interesting one.
Todd Orston: All right, I'll read this one. All right, how about should I allow the non-custodial parent to visit my eight month old after he had COVID-19 and basically he's continuing to deal with that situation? Hold on one second, I'm just looking at... There's no court order. I've been trying to allow visits, but when the non-custodial parent tested positive I became very fearful and concerned about my infant's well being and health, as well as my health, if I allow visits without the necessary social distancing.
Leh Meriwether: All right. So, first off, if there's no court order, and it doesn't sound like they're married or anything, then you don't have to do anything. I mean, what I'm saying, you're not required to allow him to continue to visit just because there's no court order, so you're not going to get in trouble if you say no, all right? So, that's the first thing. Now, let's say there was a court order and he had tested positive, and the courts are very... they take this very seriously now. Different judge look at it differently, I'll be very clear about that, but I don't see as a general rule anything wrong with saying, "Hey look, there's a traditional 14 day quarantine if you test positive," because... and here's the thing, if I were to go to court and I was representing him, I'd bring in expert witnesses to show that children under... what was it? I can't remember if it's 11 or 14, nobody has died, I think, if I'm remembering correctly. I don't have the stats in front of me, but I did see several months ago a stat that said no child has died from this virus at this age, okay? That would be my argument, and the judge might buy that argument. But the question is if the child gets it, doesn't get sick, but gets you very sick, that's a real problem. So, it's the transmission of this virus that can be an issue.
Leh Meriwether: So, if you were to say, "Look, you tested positive. Based on the laws in our state, and I think in Georgia there's a general... I think it's still in the governor's order that you need to self quarantine for 14 days." So, to say, "No, from the next 14 days you need to quarantine. No parenting time during these 14 days. It's for your sake." You could say it's for your child's sake, but I think it's for your sake as well because you're sharing custody and that creates the problem. And maybe there's a grandparent involved and that grandparent is at the high high risk category, so the non-custodial parent gives it to the infant who then in turn when the grandparent comes along and catches it and it kills the grandparent. So, it's that contagion part that becomes to critical. So, if you're talking about 14 days, to me that's a no brainer, and I haven't seen any judges getting upset about that, the 14 day quarantine. Have you?
Todd Orston: No. No. I mean, it's a reasonableness test, okay? We are all trying to figure out this whole COVID thing and what is safe and what's not safe and all of that. So, I am not downplaying the concern at all, but it comes down to are you being reasonable in your reaction? And to your point, 14 days after the infection or after the... maybe there's no evidence that they are actively sick and dealing with COVID, then I have no problem with that. I don't think a court would have a problem with that, and I'm glad you also brought up it's not just is my child safe? It's is my child going to catch something, bring it home, and infect other people? I guess the only thing I'm going to say is as with anything, you have to just think, "Am I being reasonable? Is the court going to look..." I've heard people say, "Well, I don't know what they're doing, but I say them not wearing a mask so I'm never going to let me child go over there." Okay, well I could easily see a judge getting upset, and while you are correctly that... until that person legitimates, they may not have any legal rights.
Todd Orston: I will say ultimately, and we've said this on the show before, ultimately, if that person wants to and they bring a legitimation action, you're going to be standing in front of a judge and if the evidence says you just prevented contact, court's not going to like that. So, you should always err on the side of inclusion, not exclusion. So, really this is just a long winded way of me saying just be reasonable. If they are hopefully open to some communication and planning, then talk to that parent and say, "Look, here are my concerns. I have a grandparent living here. I can't get sick. This and that, just no parties at the house. Please, be responsible so that hopefully we can all stay safe."
Leh Meriwether: I believe several months ago we actually won a hearing where I think it was one of the parents was no following the lock down orders at all and the judge on it-
Todd Orston: Correct.
Leh Meriwether: And there was a concern that the other parent had been exposed to COVID. And so, the court said, "Hey, for the next 14 days the children can't visit. You're under self quarantine."
Todd Orston: That's right.
Leh Meriwether: So, again, at that-
Todd Orston: But the evidence was there.
Leh Meriwether: Yeah, the evidence was there and somebody at this big party tested positive, so the court's kind of following the government order at that point saying, "Look, self quarantine." Even if the kids... because under 21 it's still almost no cases, I mean flu kills more, but it's not just about the kids. It's about how they can infect other people like their grandparents, and that's the... So, it's much bigger than just your children. It's everything. It all works together. Next show, Todd, I've got a great question for us to answer, but I think it's going to take the whole show, and it's all about what factors does a court look at when determining custody in a child custody case? Hey everyone, thanks so much for listening.