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If you have divorce questions

201 - Custody Questions? We have answers

201 - Custody Questions? We have answers Image

06/11/2021 12:00 pm

In this show, Leh and Todd take on more questions that are focused on child custody issues. The questions they tackle include :

  • Can I leave GA with my 2 kids to get away from my emotionally and mentally abusive husband?

  • What is the most likely response from a superior court judge when a temp order has been broken during a divorce?

  • How likely can a divorce by publication that gave me sole custody be reversed?

  • Can a custodial parent move kids to another state after the divorce in Georgia?

  • Does a court ruling in the best interest outweigh the court needs to weigh fundamental liberties?

  • How can I get custody of my niece if she's in an unfit home?


Leh Meriwether: (silence) 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, you'll 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, Todd?

Todd Orston: Leh?

Leh Meriwether: You ready to get going?

Todd Orston: It's a little late to ask me that, we kind of started.

Leh Meriwether: Well, I just wanted to make sure. I didn't want to ask you a question and you weren't ready.

Todd Orston: I'm good.

Leh Meriwether: Okay. So today, if you didn't already guess, we're doing questions and answers.

Todd Orston: There's a lot of questions out there.

Leh Meriwether: There are a lot of questions.

Todd Orston: And very few answers here. I'm kidding.

Leh Meriwether: We're about to supply those answers.

Todd Orston: Okay. Got it. All right.

Leh Meriwether: So we're going to focus on just custody questions today. And not just custody and questions about divorce per se, but all kinds of custody questions. So this first question surrounds... Are ready to go by the way? I'm just triple checking. I'm triple checking.

Todd Orston: I'm still ready Leh.

Leh Meriwether: Okay. All right, here we go then.

Todd Orston: Wait. Hold on, I'm not ready. All right. I'm ready.

Leh Meriwether: All right. What time should I get on the train? I have court at 9:00 AM in the morning, but courthouse is right outside station A. I get on the train at station D which is 30 miles away from station A. If the train travels at 60 miles per hour, what time should I leave station D to get to court on time?

Todd Orston: I would definitely say blue. I'm sorry, English was never my strongest.

Leh Meriwether: This is Math. Don't you remember those questions in the SATs?

Todd Orston: I do. And I would definitely say Uber it.

Leh Meriwether: All right. I'm sorry. My son is [inaudible 00:02:26]. He went through that whole SAT ACT stuff, and it's just so funny to see these questions. And again-

Todd Orston: No, I mean-

Leh Meriwether: I just had to throw that at you.

Todd Orston: Yeah. And I appreciate that because I was looking at notes going, "I don't know... Oh, I see what he's doing." All right. All right Leh, you're having a moment. Got it.

Leh Meriwether: I try to be funny. I know I fail, but I try.

Todd Orston: Well, I started writing down notes on... Okay, wait, how fast is it traveling? I'm going to get this right. I'm getting into college damn it.

Leh Meriwether: Just remember, leave extra early.

Todd Orston: Right. Yeah. You know what? The funny thing is that's exactly what went through my mind. I'm like, I don't need to do the math, just leave early. Because look, I've seen people where they are minutes late. There are some judges who will give some leeway, right? They'll announce and they'll be like, "All right, we'll wait until the end of the call of the calendar." They'll announce all the other cases. And then they'll come back and, "Smith vs Smith. All right. Is Mr. Smith here now?" And if Mr. Smith is not present, then they were not present at the call of the calendar, which means the court can basically say, "Okay, well, Ms. Smith, do you have a proposed order? All right, let me have it." And they will sign it. I have seen people race into court. "I'm so sorry. I'm so sorry." And the judge is like, "I appreciate your apology, but I've already signed an order."

Leh Meriwether: Yeah. So probably the way to answer this, if you're getting to court on time, that's too late. If you're getting there on time, you're late. You need to get there early because there's always going to be something that happens along the way, trust me I've been there.

Todd Orston: Yeah. And it could be something as simple as, now granted times have changed because of COVID in terms of waiting lines to get into a courthouse. Depending on the courthouse we're talking about, I have seen lines around the corner. I have seen lines where 40 minutes later, you're still trying to get through security. Now granted, usually when that happens, the court is notified and it's like, "Hey, we're having some trouble-"

Leh Meriwether: Traffic jam.

Todd Orston: Yeah. "There's a traffic jam at security." And so they make an assumption that, okay, maybe that person is stuck in that jam. But nonetheless, you want to get there early because getting there late can create real problems. Once that order is entered, undoing that order becomes difficult if not impossible. So please, please, please leave early.

Leh Meriwether: All right. Real question this time, "Can I leave Georgia with my two kids to get away from my emotionally and mentally abusive husband? I'm trying to move back to Colorado where my support and family are. We have only lived in Georgia for going on seven months and we're originally from Colorado. We have two kids together. My husband is emotionally and mentally abusive towards me. I've told him I want a divorce, but he refuses to pay for the paperwork to get filed and refuses to go back to Colorado. I am a stay at home mom with no income, and would have income and support for my kids if I were to move back to Colorado. Can I do this without facing legal repercussions? Obviously I've told him I will be moving back to Colorado."

Todd Orston: All right. A lot to unpackage there. So first and foremost, can you leave? Sure, you absolutely can leave. But then the word that was used was legal repercussions. Are you going to jail for leaving Georgia? No. But if you've been here for seven months, then you have met the residency requirement. And so can he file an action for divorce here in Georgia? Yes. And if he can file here in Georgia, he can serve you whether you're here or in Colorado. If he serves you or when he serves you with a Georgia divorce, then all of a sudden the case is pending in Georgia. The Georgia court can then step in when the Georgia court hears that you have left the jurisdiction and gone to Colorado, again, going to the definition of legal repercussions, is it possible for that court to order the children return to this jurisdiction? Yes.

So you just packing up and going doesn't mean you're gone and the court will just accept that. Now, here, there are some facts that I like. You're from Colorado. You came from Colorado. You've only been here for seven months. So if he files in Georgia and you find yourself being served, now you have to go to court, you have to explain why you left. I don't know what the court will do, but the court could very well say, "Well, hold on, sir. You guys are from Colorado." All right, especially if there is emotional and mental abuse. And I will say, I'm sorry that you're dealing with that. No one deserves to have to deal with that kind of behavior and treatment. But the court could hear all of those facts and could also say, "You know what sir, I'm going to allow her to stay there with her family during the pendency of this case."

But oftentimes, I will tell people that just because you can leave and the court can't do anything about you leaving, the court has jurisdiction over the kids. So the court can't say, "You must come back to Georgia." The court can say, "The kids are going to come back to Georgia." But I usually tell people look, don't leave and assume just because you were able to pack up the car and leave, and your husband didn't know or wife didn't know, doesn't mean that you made it, that you can just stay gone. The court absolutely can order you to return to this jurisdiction.

Leh Meriwether: Yeah. And from a legal standpoint, when you're married, you each have a 100% interest in your children. Which means that he could pack up and move with the children somewhere else and leave you in Georgia, and that's not illegal. Both of you can get up and leave with the children, and that is not illegal. Where it becomes into conflict is now when you're getting divorced, you obviously can't each have 100% of the time with the children and that's why the courts get involved. So depending on the fact's scenario like you said, Todd, I've seen lots of cases with this fact pattern where the court did not make the children come back. But you're going to have to be prepared for that legal battle.

Todd Orston: That's right.

Leh Meriwether: I mean, unless he just concedes to the whole thing. I mean, I hate to say it, but if you hire an attorney it's going to cost a little bit extra to fight over that issue.

Todd Orston: All right. So very quickly, the next question is what is the color of George Washington's white horse?

Leh Meriwether: White.

Todd Orston: You are smart.

Leh Meriwether: It was a trick question.

Todd Orston: All right. But I definitely want to get into the next legal actual question, but I know we're running up on time. So look, the best advice I can give there just to finish the thought is, more strategy needs to go into a relocation like that, all right? Oftentimes I will tell people if you have the ability to talk to an attorney, figure out what the strategy is so you can do things that when it comes to the court's attention that you left, you have basically done everything you need to establish a good story, right? You know exactly what you're going to be able to say, to show the court you didn't do this out of spite or to hurt the other party, you did it because you needed protection.

Leh Meriwether: And when we come back, we're going to continue to break down the questions. 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 counting sheep, I guess. Right? You can turn on the show, and we'll help you fall asleep.

Leh Meriwether: There you go.

Todd Orston: I'll talk very softly.

Leh Meriwether: Welcome back everyone. This is the Leh and Todd, and we are your co-hosts for Divorce Team Radio. Our show is 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, If you want to read a transcript of this show or go back and listen to it again, you can always find it at Okay. Let's keep going.

Todd Orston: All right. Well, you got the last question right, I'm very proud of you. I mean, well, it's sort of right, I mean, it was really a brown horse, but whatever, it's all right. So the actual next question, what is the most likely response from a superior court judge when a temporary order has been broken during a divorce? They write, "I'm going through a divorce and the ex has the two biological children we have together. The temporary order says the man she had the affair with is not to be present while the kids are there. I have a PI, a private investigator, that managed to get proof that she violated that requirement at least twice by taking them to his house to see him and his daughter. He also caught them out shopping together with the small kids with them, prior to the court hearing. This is the same man that she openly had an affair with while taking all four of our kids with her when she did it."

Leh Meriwether: Well, I have two answers here. So the first one depends on the timing we're talking about, because I noticed in the question she refers to the wife as the mother, as ex. And she said, that she did these things prior to the court hearing. So my first part of this answer is, if we're talking about a temporary order was violated during the divorce but the divorce is now over, there's nothing you can really do. Because your opportunity to present that evidence was in the divorce proceeding, the final hearing. And if you didn't have a final hearing but you settled it out of court, again, the opportunity to deal with that would have been at the final hearing. If you didn't, you've now lost that opportunity. It's res judicata. You had the opportunity to present those facts and you didn't. So that's assuming the case is over with.

Todd Orston: Wait, and before you go further, I want to make sure that we're clear on this. If there was a temporary order that says that he's not to be present, but you went forward, had a final hearing and that same term isn't in the final order then I agree with you, then it's done, right? You can't get it now included in the final order. But if all that's currently in existence is the temporary order and it has that requirement, that's a different story.

Leh Meriwether: Right. So that was the second part. So the first part was, is the case really over? Now, if the case isn't over, the case is still active and you have not had a final hearing, then you can do one of two things; one is file for contempt. And this is where you'd really need to sit down with your attorney and have a strategy session on the best time to make this argument. You can have it during a contempt action. And the court has many options. I have seen a court in the middle of the divorce case say, "Ma'am, you couldn't follow my order. I'm going to change custody." I mean, typically you don't see a court saying this person can't be around the kids in an order, at least the way it sounds in here I should say. So there had to have been something going on, a reason the court did that in the beginning.

So the court can get very upset that the wife, mother violated his or her order, and do a change of custody. There can be all kinds of other repercussions. The court can get quite creative, I've even seen a court throw someone in jail for 24 hours for doing something like that. But maybe the strategy is if you're fighting for custody, you save those as facts and the private investigator's evidence for a final hearing, and use that as further evidence that the court should rule in your favor at a final hearing saying, "Judge, if you give her all this authority or set these parameters limiting her authority, whether it may be, she's already proven she won't follow your order your honor. So therefore you should award custody to dad." So those are different things you can ponder.

Todd Orston: Yeah. Generally speaking, you need to think of it this way, if the court feels that it's important enough to put into a final order... A final order is basically the judge saying, "This is what shall be done. I'm the judge, I've decided this is what will be done and I expect everyone to comply with the terms that I have put into this order." So when you violate the court order, it's not just an act, it is a violation of the judge's instructions as to what will be done. So when you land back in front of that judge, the judge isn't just like, "You just broke some kind of a rule." The court takes it, not as a personal affront, but legally speaking, it is a violation. "I told you what to do, and clearly you don't care what I, the judge, have to say about these things. You don't care that I issued this order because you just ignored the terms of the order, did whatever you wanted to do. So, you know what? I now have to take more severe steps to make sure there is compliance with any order that I put out there."

So, you're going to quickly anger the court. And I think you hit the nail on the head when you said, "This is not very common." Affairs happen, I'm not justifying and I'm not defending, affairs happen. As a matter of fact, I'll go so far as to say that rarely results in terms included in an order that say, "That person needs to be kept away from the kids." So if it made its way into the order, you need to be very careful because that means the court took that very seriously, felt very strongly about it and therefore violation... I've also had cases where there was a no contact provision, they violated it, and the court changed custody. I've seen it on a temporary basis, I've seen it at a final hearing, and I also agree with you in terms of that strategy.

Usually, it just also depends on where you are in the case. If you're at the very, very beginning of the case and you think that the case might take six, seven, eight, nine months, holding onto the information may not be the best thing. Because by the time you get to that final hearing, the court's going to be like, "Well, this happened eight months ago, so I'm not caring so much." But if you are well into the case and you're even on a final trial calendar, holding that information until you get to the final trial especially if you don't think you're going to even be able to get another temporary hearing or emergency hearing to deal with the issue, that strategically makes sense.

Leh Meriwether: Right. So sit down, discuss with your attorney and come up with a good strategy on how to use this evidence, but the court can have multiple responses. But if you're never there, meaning like let's say you travel all the time, and you're only there on the weekends, the chances of the court changing custody even in these circumstances aren't that great. But I have seen courts do, like say your hearing's on Friday, you're in town for the weekend. The court says, "All right, the kids are going to be with dad over the weekend. Mom, you're going to sit in jail for 48 hours and think about what you've done." And they found the mom in criminal contempt and so custody changed again Monday morning when mom got out of jail. So the court has a lot of options at its disposal. All right, let's do the next one.

Todd Orston: All right. Am I reading to you or are you reading to me?

Leh Meriwether: Oh, I'm reading to you. "How likely can this be reversed? I got a divorce by a publication and sole physical legal custody of my child. How likely is this to be reversed since my ex did not know about the publication, nor did they respond. Can I get in trouble for anything, or no since I now have sole legal custody?" And you have a minute and a half.

Todd Orston: All right. So Georgia and some other jurisdictions as well, Georgia has the ability if you do not know where the other party is, it doesn't mean you have to stay married forever, all right? You can actually appeal to the court and ask for the right to give notice by publication, as opposed to personal service where a sheriff deputy or a special process server walks up and says, "Are you Mr. Smith? You've been served." If you don't know and can prove you have made a diligent effort to try and find the person and cannot find them, you can ask the court to give notice by publication.

Now, you have to do that in the form of an affidavit. You are stating to the court, "I tried, this is what I did, cannot find them. Can I please get a divorce?" The court will then grant that. Now, if you lied, can you get in trouble? Yes, potentially. Now, are you going to jail? No. But if the other party comes back and is like, "What is going on, I see you every other day. How can you say you didn't know where I am?" The court can undo it, and you might get hit with legal fees or maybe other sanctions. So it can be undone. So you need to be really confident that you can't find them. And be very honest because you may get your divorce, but undoing that really is not that difficult if there's clear evidence you know where they are.

Leh Meriwether: And when we come back, we'll continue to break down questions.

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, this is Lee and Todd. And 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 If you want to read a transcript of this show or go back and listen to it again, you can always find it at Okay. So we are answering questions mostly focused on custody, and doing some math problems as well.

Todd Orston: I already failed that test.

Leh Meriwether: It's amazing you got through law school, I'm just kidding.

Todd Orston: I tell myself that every day.

Leh Meriwether: So what were talking about last? We were talking about-

Todd Orston: Reversal.

Leh Meriwether: Getting reversal of a divorce by publication. And in general, courts don't like divorce publication but like you said Todd, they don't want to keep you from remarrying if you've been separated for... If one spouse left and you have no clue where they moved to and you can't find them, they don't want you to be married to that person forever. But when it comes to custody, that's such a different animal. And I've seen courts tend to be more likely to set that aside, but the length of time makes a big difference too. If someone comes back five years later and hasn't seen their child in five years, they're going to be like... I don't see the court setting aside something five years later. But when it comes to custody of a child, that's not necessarily a final order. You can always come back and revisit custody issues with courts because that is a modifiable term from a final order.

Todd Orston: Yeah. And before we move on, let me say that here's the best advice I'm going to have for the two parties in that kind of a situation. To the person filing saying, "I don't know where the other party is," if it's true, if you're being accurate in the fact that you've tried, and you have to make a diligent effort, that's the term. If you really can't find that person, then this is a tool that you can use. But understand if there is evidence to the contrary, if it is clear you do have contact, and if you can contact through email, that's contact. If you have family or friends you can reach out to who would know an address where they live, that's contact. If the other party periodically exercises parenting time, that's contact. So if you truly cannot find them, fine, this is an option for you.

But remember, if you did something improper, if you're saying you can't find them but you truly can, or you haven't made a true diligent effort, A, it could be undone or B... Remember this is not some backdoor way to try and accomplish what you want to accomplish in a divorce or custody action. If it's done, the other party can modify. So let's say you got sole custody. It's not just a matter of undoing the notice by publication and undoing that case in that order. The other party can just step in and go, "All right, fine. You didn't know where I was. I'm here. All right. I just heard about this. And by the way, me having no custody that's not right. So I'm petitioning the court to modify those terms." So you're going to still find yourself fighting that custody battle.

And so the person where this has been done against you, where you suddenly find out and it's like, "I don't know what to do." Well, definitely talk to an attorney because if you've had contact with that person, you can potentially undo that order. You can move to set it aside. Okay. But if you truly have been sort of in the wind and didn't let anybody know where you were, then more than likely you're stuck with it, but at least the door is open to a modification.

Leh Meriwether: All right. Next question.

Todd Orston: All right. So this person writes, "Can a custodial parent move kids to another state after the divorce in Georgia? My boyfriend has been going through a divorce for nearly three years. They have sent a divorce agreement. However, last night found out through a friend that the mom and her boyfriend are planning on getting married and moving to Colorado."

Leh Meriwether: So the question is, can a custodial parent... Yes, but you would have... I'm going to answer this in two parts. I'll be quick. So the first part, let's say the divorce is granted and there's parenting plans here in Georgia. And in most states, by the way, I'm focusing on Georgia, there's a period we have to give the other side notice. It's usually written in the parenting plan. And that notice is given, and moving out of state in Georgia is considered a substantial change in circumstances for which a party can come back to court and ask for the agreement to be modified. So mom and boyfriend could give notice they're moving to Colorado. Dad can file an action to modify, and the court can say, "Mom and boyfriend, you could move to Colorado, but the kids are going to stay here with dad." So that is an option.

Now, the question then becomes, is this something you want to fight in the divorce? Do you want to go ahead and have this fight now or do you want to wait until afterwards? So sometimes if you have knowledge of it, you really need to address it in the divorce action because you don't want to get in a situation where in that subsequent modification, the court says, "You knew about this in the middle of your divorce, and you didn't do anything about it." Should the court do that? I'm not even going to go there, but I've seen judges do that. So you've got to at least go to the mom and say, "Are you planning on moving as soon as the divorce is over?" And if she responds, "No, I don't know why you would even think that," now you have that piece of evidence to use in your subsequent modification case. So the court can't say, "Well, how did you not know about it?" "Because I confronted her about it, and she said she wasn't planning on moving." And then the court looks at her and says, "So you lied to him?"

Todd Orston: Yeah. And I agree with you. I will even say I take a strong or whatever position. If you find out something like this is happening, you have to act because the problem is... I've seen too many people fall into or deal with problems where they caught wind that the other party was planning on moving, and they do nothing. And the other party let's say they, mentioned it, and then they quit their job, and they give up the lease or they sell their home, and they move and they pack up. And there's all these expenses, and they've done everything. And then the other party steps in and goes, "Oh, no, no, hold on one second. I didn't want the kids to move." And the court goes, "Sir," or, "Ma'am, what are you talking about? You were given notice eight months ago that this was going to happen. The other party did all these things to accomplish the move. They moved. Now, all of a sudden, you want this court to undo that?" Almost like, "Well, too late. That's something you should have dealt with immediately."

So deal with it immediately. In that situation, there's a pending case, you need to deal with that immediately, I agree with you. Get something in writing, confront that issue. "Am I hearing correctly, are you moving to Colorado?" If they say no, "Great, thank you so much" That way if all of a sudden it's like, "Oh, by the way, we're moving to Colorado." "Really? So you've just been playing games, you've been lying." That can hurt their credibility and can help you in the custody fight.

Leh Meriwether: Yep. And So yeah, I think we covered that one. All right. Next one.

Todd Orston: I'm waiting.

Leh Meriwether: Oh, that's right. You asked me that one. Sorry. All right. "One parent wishes to interfere with the associational rights of another parent without any basis, other than their desire. I have a situation where the other parent wishes to interfere with my associational rights and set interferences, neither in the best interest of the child. Does a court ruling in the best interest outweigh the court's need to weigh fundamental liberties?" Wow.

Todd Orston: So this is sort of falling into that constitutional right to be a parent versus the right of the trial court to determine what's in a child's best interest. And so it seems like this person is basically saying, "Hold on one second, I know my constitutional rights. And therefore will those rights basically trump a court's ability to look into best interest?" So here's the thing, anytime a court looks at custody issues and is working to determine what is in the child's best interest so that it can make a ruling related to custody, there's an unspoken balancing against that parent's constitutional rights. If you don't have the constitutional right in the first place, then trust me, there's no discussion. Then there is no custody fight. The court doesn't even have to look at what's in the child's best interest. So there is an assumed basically constitutional right because you're there, you're fighting for that custody. So the court has the right, and this is not in conflict with constitutional law. The court has the right to A, determine do you have standing-

Leh Meriwether: You know what? Let me hold, when we come back you're going to answer B. I just wanted to let you know that if you ever want 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.

Todd Orston: Better than counting sheep, I guess. Right? You can turn on the show and we'll help you fall asleep.

Leh Meriwether: There you go.

Todd Orston: I'll talk very softly.

Leh Meriwether: Welcome back everyone. This is Leh and Todd. And 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 If you want to read a transcript of this show or go back and listen to it again, you can find it at All righty. I interrupted you because we are almost out a time.

Todd Orston: Yeah. I mean, look, I'm not going to call you rude but just because I was absolutely oblivious to the fact that we were about to run out of time-

Leh Meriwether: It's called a hanger anyways.

Todd Orston: Yeah. I mean, listen, it's just a little rude, whatever, I'm just saying. No, I'm kidding. All right. I appreciate you stopping me. So basically we're talking about this person's feelings or desire to get information relating to the balancing of a court's ability to apply the best interest standard when dealing with custody issues with the parent's constitutional rights to be a parent. So the long and the short is, as I was saying before, you're not in the fight at all if you don't have some constitutional rights. So don't focus on the constitutional side. Let me say it this way, the constitutional argument, that's not going to win you anything. You need to be 100% focused on what is in the child's best interest. The court has the right to apply that standard, that is a national standard.

Leh Meriwether: It's the authority.

Todd Orston: Right. So a standard meaning, this is how every judge across this country and in many countries around the world, but all across this country, courts apply that standard; what is in the best interest of the child or children. So hanging an argument on some constitutional right I'm telling you, you're not going to win.

Leh Meriwether: Now that you're not going to win it's going to look bad on you, because then it makes it look like it's all about you.

Todd Orston: That's a great point.

Leh Meriwether: Rather than all about the kids.

Todd Orston: So you need to be focused on whatever issues are present. Issues that make you look good or not so good, the other party good or not so good. It's what is in the children's best interest, what will the court believe is going to be the right fit, the right ruling and situation for that child? And if there are behavioral issues with the other party, you need to focus on that. This is not healthy for the kids, this is why, and that's why I would like to be the primary physical custodian and legal parent. That's how you focus on these issues. Again, defending on that constitutional basis, that's not going to work. There are limited situations where a constitutional argument can become a pivotal legal issue in the case. Okay? Most, and by this I mean99% of the time, the constitutional angle has nothing to do with what the court is going to be doing in terms of applying that standard.

Leh Meriwether: Right. And that's more mainly when we're talking about two parents battling over who spends what time where their children, and who has final say regarding their upbringing. When you get into grandparents, that's where the constitutional element really comes in, which leads us to the next one.

Todd Orston: Okay. You're talking about this person's niece?

Leh Meriwether: Yes.

Todd Orston: How can I get custody of my niece if she's in an unfit home? So the person writes, "My niece is going through hell with her parents. Her older brother, well this is a sad fact pattern, but her older brother raped her when she was 10, she's now 15. Told the parents and they did absolutely nothing. It looks like they're saying it's a dirty house, there may be drug use. There are a lot of negative facts relating to those parties. So I can't sit back and watch my niece suffer. Please give me some advice."

Leh Meriwether: So this is a third-party custody action, and well, you have two options. One is to notify DFCS. Whenever you get DFCS involved, things can get really messy. But I mean, that is an option to contact DFCS and they'll do a home inspection. I'm surprised she hasn't reported any of this stuff to a counselor at school because the counselor that's usually what triggers DFCS getting involved. The child reports to a counselor if they believe there's some sort of abuse going on, they actually have an affirmative duty to call DFCS in.

So the fact that they haven't been called in raises some questions here, but you can bring a third party action. I did it years ago on the behalf of a grandparent. I've seen it on behalf of an aunt before. It is a very expensive legal process because you do not have a necessary clear right when it comes to custody in this situation. And you basically have to prove the parents truly are unfit, and that is a high burden to meet. And those cases are long, drawn out. And usually the parents win.

Todd Orston: Yeah. And I will say, even if you don't go through DFCS or if DFCS doesn't get involved, let's say you file a complaint, they do a quick investigation and then they're like, "Well, it's unfounded." Or they just don't move forward with making any kind of a recommendation. They just don't focus on those allegations and they move on to the thousands of other cases that they're working on. If you file this, it's more than likely going to be through the juvenile court. If you file it in the juvenile court, I will tell you that a lot of juvenile courts are set up where they themselves will have a guardian ad litem, or they will appoint someone to basically start investigating and look into these allegations. But I agree with you. I mean, you have to do something, I get it. Based on these facts, you have to do something. I understand and I applaud your desire to help this child, but it's incredibly difficult. This is that... Go ahead. I'm sorry.

Leh Meriwether: No, my last point was just going to be, we don't often say you must go talk to an attorney. Don't do this one on your own. This is one where you absolutely should be talking to an attorney who can discuss the hurdles, the difficulties inherent in these types of cases. So you can really first of all, determine, do I have a shot at winning this, and B, what are the best strategies?

Todd Orston: Yeah. And I would say, this is an example of that constitutional issue. You're coming in as a third party to try to override the constitutional rights of these parents. Because I mean, at the end of the day, it could be a nasty house, that's not a basis to take... I mean, and she could have terrible living conditions, but if her basic needs are being met, you're probably not going to win custody. Could her life be... This is where that best interest of the child standard doesn't necessarily come into play right away. It doesn't come into play till you first show that basically... And it's a lot more detailed, I mean, it's hard to answer this in just a few minutes, but you have to get past the constitutional hurdle first where basically their parents lose their rights because they're so unfit and the child can't be cared for. But you have a 15 year old child who can take care of herself. So I mean, that's what you're up against.

When the children are young and can't care for themselves, that's where you have the opportunity. I've represented grandparents to come in and take custody because the children were very young. They were all under 10. And basically the parents were so strung out, the children were dumpster diving to get food. And so that was relatively easy. I mean, it was still a hard case, but the grandparents were able to get custody because of that reason. But she's 15, that scenario is not there. If she truly was raped by her brother, and I'm going to say that I can't believe that wasn't reported. And if it was reported and investigated and they couldn't find evidence to substantiate it, your hurdle is that much higher to overcome. Is this something that the niece just said? It sounds like a horrible situation, the way it's described. So I'm not trying to say, "Oh, this is nothing." So I'm going to be clear on that, but what I'm saying is this is an incredibly difficult case to win. Partly because of the age of the child and there's questions I have here, and the constitutional rights of the parents.

Leh Meriwether: Yeah. You hit the nail on the head with the hurdles are high. And that's why I go back to, we could do many shows on the strategies and the difficulties, and the challenges related to this kind of a case, and the evidence that you would need in order to succeed. I'm not saying this to dissuade you from trying, but if you're going to fight the fight, be smart about it. Get the help that you need so that you don't just walk into court and say the wrong thing, or just don't present the evidence you need to truly protect the child.

Todd Orston: Yeah. Hey, everyone, that about wraps up this show. Thanks so much for listening.