MoreQ&A About Divorce and Family Law 

Speaker 1 (00:08):

Welcome everyone to Divorce Team Radio, sponsored by the divorcing family law firm of Merriweather and Thorpe. I'm your host, Todd Weston, and here you're going to 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, check us out online@atlantadivorceteam.com. Alright, let's get started. So periodically we will do shows about people's questions. I mean we talk about the issues all the time, but people have specific questions every day. People call Merriweather and Thorpe, they have questions, we try to give them answers, information they can use so they can make good decisions. Well, sometimes we will do these shows where we take the questions and put them on the show and some of these are from Georgia. Some of the questions that you're going to be hearing are from other states.

(01:09):

Understand that when I'm talking about the law, when I am talking and answering questions and giving information relating to the law we're talking about here in Georgia. Now there are a lot of similarities from state to state, but, and this is a big gigantic and my kids are probably going to laugh at that comment, but anyway, this gigantic but is that if you're not in Georgia, you need to contact an attorney in your area. You need to ask a question of an attorney who practices in your state and maybe even in your just specific area where you live, who might have a better familiarity with the judges and how things are handled in your particular area. So again, we're going to answer these questions and let's start with this one. The question is, how do you regain custody of your child when temporary or an emergency custody order was entered and custody was given to a family member?

(02:24):

The question goes on to say five years ago, my son's grandparents filed for emergency temporary custody because I was temporarily living at a hotel and it was given to them, no court hearing, no investigation, nothing. They just knocked on my door and they were like, Hey, basically we have custody of your child. Main question is, how do I go about regaining custody of my son? Do I need to file some sort of paperwork with the courts? Alright, well first of all, I'm sorry it happened. Second of all, I'm glad you are finding yourself in a position where you are more because that's what the court is going to be looking at the order in question, and again, I don't have it in front of me, so my assumption would be that what happened was some kind of an emergency motion was filed with a court here in Georgia would be with the juvenile court more than likely, and basically an emergency order was entered that established a guardianship because the child was basically in need of care because of your personal issues.

(03:35):

A judge found that there was an emergency situation that required a third party to be given guardianship. Now, guardianship, what is that? Guardianship is basically saying, okay, I recognize that you're the mom, I recognize you're the dad, but there are issues here and sometimes it's a voluntary situation. Parents recognize that they cannot provide for a child and they will look to a third party and voluntarily consent to a guardianship. Sometimes as in this situation, it's not voluntary, but clearly there was an issue and so this guardianship was put in place and it in essence gave legal rights that otherwise a third party would not have, right? They're not a parent. So a guardianship basically says, okay, you are now a legal guardian. You have all of the rights that a parent would have to contact doctors and deal with the medical issues to contact teachers, deal with coaches, get records in essence to do everything that a parent would do that is needed to take care of this child. So assuming that the order in question is a guardianship order, what can you do? Can you snap your fingers and it just goes away? It's not that simple. And here in Georgia actually it used to be a little more simple, but now I can tell you right now you need to file a petition with the court to terminate the guardianship and unfortunately you're going to be fighting a kind of an uphill battle.

(05:36):

If the court was concerned enough that it entered this order, maybe even without you being there and gave this third party guardianship, that means there's a deep concern about a child's welfare when in your custody. So you would need to file this with the court to terminate the guardianship. And what you need to do absolutely is you need to be prepared, prepared to show the court that the person that the court was concerned about is no longer the same person. The concerns are no longer or should no longer be of concern, whatever the issue might be. If it was drugs, if it was alcohol, if it was criminal behavior, whatever you have gotten stable, you have a job, you are able to provide food and care for the child. You are ready to step up and be the parent that child needs. If you're not ready to do that, then you're probably not going to be successful in getting that order set aside.

(06:51):

So that is how generally speaking, you're going to regain custody of your child. You're going to do everything you can to address the concerns of the court that led to the issuance of that order and then be ready to go into court and say, I'm different, I'm better, I'm stable, and I'm ready to basically give that child the love and the care that he or she needs. Alright, so here's another question. Different issue, not talking about guardianships anymore. Question is, can I get in trouble for contacting my husband's mistresses husband? Say that one more time. Can I get in trouble for contacting my husband's? If you want to write this down, maybe some bar graphs or whatever. I know a bar graph wouldn't be, anyway, you know what I'm joking about, but can I get in trouble for contacting my husband's Mistress's husband? Question goes on to say my husband cheated on me five years ago with a woman he works with.

(08:00):

I forgave him and we attended counseling to help our situation in the process. I found out she was married as well. Years have passed and I just recently found out I feel like I'm Casey Caso like, and I just recently found out that they have been seeing each other again. I'm currently looking getting choked up to file a divorce, but I feel pity for her husband as he has no clue it happened the first time, nor does he know it's happening again, I don't know him personally, but I do have means to contact him. Would I get in legal trouble if I reached out to him? Alright, well are you going to get in legal trouble? Let me ask the, or rather answer the question, you're going to get in trouble. Well, you're not going to jail for reaching out to this person. You're not getting charged with anything for contacting that person and spilling the proverbial beans.

(09:03):

But maybe that's not what this person is asking. If that's not what the person is asking, it's not just an issue of will I get in legal trouble, then maybe the question is, will the judge in my case look down on be upset with that behavior? So it may be necessary to reach out if you need, for instance, if you need to prove, let's say your spouse is saying didn't happen, it's not happening. Well, it may be necessary to depose that woman. It may be necessary to depose the husband. The husband's therefore going to find out. But you need to make sure that it doesn't look like you're just being spiteful. You're just doing something to cause harm. If there's a valid reason, then it may be necessary. But if you have an attorney, you should definitely be working that into the overall strategy. So if you do it and when you do it, it's done in a way that again, doesn't look like you're just scorched earthing it.

(10:15):

You're just trying to cause pain on whomever and if you need to have a conversation with that person, so be it. There have been plenty of cases where we worked with someone and they came and they had already done it and on one hand with fingers left over, I can tell you where, or I can count where there were situations where nothing happened, judge didn't get upset, whatever. At some point the judge may just ignore that and look at it like, well sir, you took your chances you had this affair and unfortunately people found out. Alright, well when we come back we're going to go into some more questions like how do you basically terminate a father's rights? We'll be right back.

Speaker 2 (11:05):

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.

Speaker 1 (11:16):

Better than counting sheep, I guess, right? That's right. You can turn on the show and we'll help you fall asleep.

Speaker 2 (11:23):

There you go. I'll

Speaker 1 (11:23):

Talk very off.

(11:28):

Welcome back everyone to Divorce Team Radio, a show sponsored by the family law firm of Meriwether and Tharp. I'm your host Todd, and if you want to read more about us, check us out online@atlantadivorceteam.com. And if you want to read transcripts or listen to shows, again, you can find them@divorceteamradio.com. So today I'm answering questions, legal questions people have. We already talked about regaining custody when there's, I believe a guardianship that has been granted to a third party and we answered the question of can I get in trouble for contacting my husband's Mistress's husband? Well, what about this question?

(12:13):

Question is, if I wanted to get my child's dad's rights removed, what would my chances be? There was physical abuse during my pregnancy. He never helped me with her, doesn't buy things she needs to survive. And when he comes around once a week, he sits on his phone and watches what's on TV and hardly interacts with her. She doesn't really know him as a dad. I have him on child support. I have photo evidence of the abuse and plenty of receipts I've saved of the things I've provided. So let's go back to the question. If I wanted to get my dad's rights removed, let's use the proper term that I think this is what the person is asking. How can I terminate the rights of the father and what would my chances be? So based on these facts, I would tell you this, the chances are incredibly low Termination of rights is that's a very drastic and final solution when it comes to custody issues. Courts don't like to terminate the rights of a parent even when someone has zero contact.

(13:44):

But here, and I am not forgiving physical abuse, I'm not saying that's okay in any way, shape or form, but based on what I'm reading, there was physical abuse during my pregnancy. Okay, so that's historic. I mean that's in the past and since then he comes by once a week to visit. Is he winning Dad of the year awards if he's sitting there on his phone or watching TV or doing something? No, he's not, but he is making an effort. So while his chances of winning, let's say primary custody are probably slim to none, the chances of you terminating his rights are also slim because there is evidence that he is making an effort and the evidence that you are relating or referring to relating to past physical abuse, well unfortunately, if you were that concerned, the court could look at it this way, that if were that concerned, why have you allowed there to be not only contact, but it sounds like the contact happens at your home because the court's going to be like, well, okay, there was abusive behavior and since then you allow this person into your home to visit weekly and it looks like or sounds like he's exercising that time.

(15:18):

So terminating the rights, I believe based on these facts would be incredibly difficult. Termination is really going to be reserved for those situations where there is, I mean a lot of criminal behavior, very severe drug addictions and things of that nature. And even before the rights are terminated, the judge may just simply say, if there's a custody order in place, I'm not terminating the rights, but right now mom is going to have sole legal and physical custody. Father won't have any contact right now, but that's not a termination. A termination, there's no coming back from it. The rights have been terminated, being awarded sole legal and physical custody, meaning that the other side is not having any contact. You can come back from that, like I was saying before, get stable, show that you're healthier, show that the things that a court was concerned about are no longer present, are no longer affecting you and therefore affecting a child and then what was taken away can be given back.

(16:41):

So to answer the question again, chances wouldn't be good, it would not. But maybe what you need to be doing is looking at the kind of contact he's having and if you're not comfortable with him exercising, parenting time in your living room, fine, put a stop to that. But understand if you're doing that because you like the fact that you can see what's going on, well if you put a stop to that, then unfortunately if he pushes the issue of I still want contact, then that means the contact will be occurring outside of your presence, outside of your home.

(17:29):

So pick your poison, but it does sound like he's putting forth minimal, albeit minimal effort and therefore a court probably would allow him to continue to try and make some effort. Alright, how about this? Another question, is it legal to give up my rights to a child? So this is sort of a follow-up kind of question because it's dealing with termination. Question goes on to say a girl has a child, I've never been a part of the child's life and now the mother wants me to be a part of the child's life and I don't see myself being a part of that child's life.

(18:24):

Alright, well I mean look, it's not for me to judge. I get it. I'm not walking in your shoes, but the bottom line is there's a child out there and as much as I would like to say it would be great for the child to know his father or her father, that's up to you. And if you just don't see yourself being able to put forth the effort and make the effort to not only have contact but to become a meaningful part of the child's life, okay, well at least you understand what your limitations are, but is it legal to give up your rights?

(19:18):

The answer to that is sort of like a termination. Can rights be removed? Yes. Can you just wake up and say, you know what, I've never been a part of the child's life, don't want that. So therefore I am going to just voluntarily give up rights. I'm going to sort of unilaterally terminate my own rights and thereby terminate any obligation I might have to help provide for the child. The answer is no. Here in Georgia, there very specific rules relating to termination. Can't just say, well, I don't want to be a part of the child's life and therefore I'll sign whatever document. Here you go, here's a consent termination order and I'd no longer have any obligation that would need to be approved by the court. And I can tell you, I have seen many situations where there's not another person stepping into your shoes like a stepparent adoption where judges have said, okay, I get it, mom, you agree he should not be involved.

(20:34):

Dad, you agree, you don't want to be involved and guess what? You brought a child, both of you into this world, sir, it is your responsibility and until someone steps into those shoes, I'm not terminating your rights. So it is definitely possible for you to have zero legal rights, zero custodial rights, no contact, and the court is still going to look to you to be financially responsible. So if that's the case and if that's the mother's angle that hey, you need to start being responsible and she's doing it, I think kind of the right way, basically not just saying, just start paying me money, but hey, why don't you get involved? Jump in, but I need financial help. But if you want to have a relationship, well, you're just going to have to decide. If you know you're going to be financially responsible, you might as well work on that relationship. I think I can safely assume you're going to have a child who at some point will greatly appreciate your involvement. Alright, when we come back, we're going to keep going with these questions and we're going to talk about someone who has sole legal and physical custody and basically has a question about that other party who has major drug issues now saying that they're ready to take custody of the child even though maybe some of those behaviors haven't gone away. We'll be right back.

(22:21):

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.

Speaker 2 (22:32):

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Speaker 1 (22:48):

Welcome back everyone to Divorce Team Radio. I'm Todd Orton, partner at the law firm of Merriweather and Tharp. If you want to read more about us, check us out online@atlantadivorceteam.com. If you want to read transcripts or listen to shows, again, divorce team radio.com. Today I'm answering questions, legal questions that people have posted about family law matters, things like can I contact my husband, husband's mistresses, husband, termination of rights, parenting rights. Alright, so the next question, this person writes that I have sole legal and physical custody. I was granted sole custody with the only caveat being I get to choose when our child sees the other parent. That's it. This is because the mother has or had a drug problem, was homeless and didn't have a job. So after about five to six months, she's seeking full custody from me, which of course I refuse to give her.

(23:58):

I and the grandmother have been jointly co-parenting our child and the child therapist and psychologist have noted our child is actually doing better under eye and the grandmother's care. No more physical or mental signs of distress. What are the chances the court will give her full custody or even joint custody when she has this history of being unstable drug use, et cetera. There's a lot to unpack there kind of custody issues are always potentially complicated and there are so many issues that come up, things that a judge can and will look at. But let's sort of break this specific example down here. There is, I'm making some assumptions, but there was clear evidence that the mom was not stable. The mom had a drug issue and because of that, this father was able to convince the court to give him sole legal and physical custody. And this is sort of like what I was talking about. It is kind of a step before termination. It's basically saying, look, you are so unstable, you don't need to have any contact with this child and you definitely aren't going to have any say in terms of how the child is being raised.

(25:32):

That's the sole part. So we have a situation where the father was the more stable parent, contacted the court, filed the necessary paperwork, brought the mother's behavior and concerns about the behavior to the court's attention, and the court agreed and said, mom, you're out of control. You need to deal with your own health issues, drug problem, et cetera. So five months later, mom is now ready to say to the court, I'm better. A lot of problems there and if the mother was listening and if I was speaking to the mother, I can tell you right now, I'd be looking at that person going, you need a little more, more of a track record, healthy track record to show that those problems are truly behind you. We've all heard and maybe we all understand, addiction doesn't just go away. Courts recognize that, so you got some help, great, fantastic.

(26:51):

But if your expectation is that you are better and if you go into court taking the position, I'm better and I'm the mom and I'm ready to be and I want to be the primary physical custodian. Again, if that's the position you're taking, I will put it this way. I fully believe that is not going to be successful. The concerns about drug use are still there. The court isn't just going to assume that you have beaten this addiction and there is no chance of potentially falling off that wagon. The court's going to want to see a little bit more time go by. Now does that mean you can't do anything? No. Six months in, I definitely would be having a conversation with an attorney about whether or not you can look to the court and ask for some change to the sole custody terms. If you have no contact, maybe it's time for you to have contact. What does that contact look like? Does it have to be supervised?

(28:14):

Be ready also to show the court that you are prepared and willing to do whatever it takes to put the court's mind at ease about those concerns. Drug use, for instance, drug use, pretty simple. Don't wait for them to look at you and say, this is what we want. Propose. Hey, I will take drug tests. I'll take drug tests before every visit. I'll submit to those drug tests. Whatever I have to do to show the court that is a thing of the past, I will do it. The best advice I can give someone in this situation though is you need to be patient.

(28:56):

If you bull in a China shop this and think six months under my belt, I'm good, give me my child back, you're going to lose. I mean absent some showing that the dad is now the unstable one you're going to lose. You are now behind that proverbial eight ball. You now are in that unfortunate situation where you need to prove yourself, show the court that history is history. You are a much different person and you are ready to be a healthy parent and that's going to take some time. I've seen it take over a year. I've seen it take multiple years, but if you do it the right way, then you're going to accomplish your goals. Alright, so sort of building on that, here's another question. Can a parent ask for a mental health evaluation of the other parent question goes on to say my children's dad and I went through a custody hearing eight years ago I was dealing with depression and was still going through postpartum depression.

(30:14):

I took some pills once and that situation was brought up in court. Dad's lawyer wanted my health records to see if I was a danger to the children. I didn't sign the HIPAA paperwork in order to allow them to get into my records. Dad got final legal decision making due to it. We're going through another custody trial. Now I'm representing myself. My mental health is being called into question again, dad had had bouts of depression in the past. Is it possible for me to ask the court to have him submit to a mental health evaluation? Well, here's the thing. If it comes across as retaliatory, my opinion is the court's not going to do it. If the father is a pillar of stability has always been and there's no evidence to show that that has changed. If they are trying to call into question your mental health and you turn around and you're like, I'm crazy. Well, he's crazy.

(31:22):

Some courts will do, okay, let's do a mutual psychological evaluation. A lot of judges aren't going to go that lazy route. Most judges are going to say, well, hold on one second. Your mental health was correctly called into question. So what is he doing that would cause the court to have any concern that maybe he's suffering from mental health challenges? So your comment is that he basically dealt with some depression himself. Okay, well what does that mean? What does that look like? What incidents occurred? Because again, if you're going into court and your defense to his request is simply, well then I want him to be evaluated also, you're going to lose that argument. But if you actually have something, if that depression is enough to convince the court that, Hey, look, I get it. I dealt with some issue years ago, some issues years ago and I understand and he's now asking for me to be evaluated, fine, but judge, let's look at his behavior.

(32:52):

Let's look at his mental health because it cuts both ways. He's saying, I'm concerned about mom, I'm saying I'm concerned about dad and this is why and this is what happened. Now it doesn't look retaliatory. Now you're basically saying, look, if we're going to deal with the psychological issues, let's deal with them. Let's make sure both of us are healthy. That's how I would approach that. And when we come back, I'm going to talk about legal rights in a home 40 year marriage and one spouse is suddenly saying, well, it's in my name. Get out. I'm not sure the law is going to support that, but we'll go into it when we come back.

Speaker 2 (33:42):

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.

Speaker 1 (33:53):

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

Speaker 2 (34:00):

There you go. I'll talk

Speaker 1 (34:01):

Very soft.

(34:07):

Welcome back everyone to Divorce Team Radio, a show sponsor by the Divorce and Family Law firm of Merriwether and Tharp. I'm your host, Todd Orton. If you want to read more about us, check us out online@atlantadivorceteam.com. You want to read transcripts, listen to shows, find them@divorceteamradio.com. Also, just wanted to remind you that if you want to listen to the show live, you can listen at 1:00 AM on Monday mornings on WSB. Okay? So answering questions today and not just questions about life. I mean legal questions relating to family law and divorce and custody and you name it and I'm going to keep doing that. And here it's an unfortunate situation. I mean they're all unfortunate to one degree or another, but the question is, my father has been married for about 40 years and their home is in the wife's name. What is his legal rights to staying in the home? My elderly father has been married for 40 plus years and purchased his current home about 30 years ago with his wife. The home was placed in the wife's name. She's experiencing some mental paranoia and is now threatening to throw my father out of the home since the home is in her name. What legal right does he have to stay in the home?

(35:35):

Well, again, talking about Georgia law, eviction rights and laws kind of go out the window when you're dealing with marital property, and that's what we're talking about here. This is a marital home and therefore she can't just kick him out. And again, I can't speak to every jurisdiction, but here in Georgia that wouldn't fly. It doesn't matter that the property is only, let's assume it's only in her name. It doesn't matter that he did that. It is still marital property and at the very least, the court has to make a determination as to whether or not he has an ownership interest, what that interest looks like. So she cannot just say get out.

(36:42):

If she calls the police and says, Hey, here you go. Here you go. I mean, here's the legal document that shows that it was transferred into my name. The police should be looking at her or whomever and say, well, hold on one second. You guys are married. 40 plus year marriage, that's a civil matter. Take it up with the court and no attorney is going to deal with this in terms of an eviction that would get, I believe, shut down immediately. So while I'm not concerned about can he just be pushed out of the home, my concern becomes the mental health component. And basically, is this heading towards a divorce?

(37:45):

Is her mental health going to make living together just impossible? The question is, can he be pushed out of the home? And my question becomes, can he safely stay in the home? How bad is her mental health? If she suddenly accepts that he isn't just going to leave and she can't just kick him out, what will she do or say? Will she make claims file some kind of a protective order to try and have him removed? This is a moment where, and I hate it, I hate it after four years, let alone 40. But this is where he needs to be deciding is this marriage and continuing in this marriage, is it going to work? Or has her mental health gotten to a point where it's just not even safe for him to be in the same home, let alone in a marriage with her? Next question. How can my ex and I drop our attorneys and file the final draft of our agreed modification that my attorney put together? The person goes on to write at the start of this modification, two years ago, my ex and I had horrible communication that has since changed greatly. Communication and co-parenting is better than it has ever been. We would both like to release our attorneys to end the, it says revolving bills and file the final draft on our own.

(39:31):

So the question, how can my ex and I drop our attorneys for the most part, pretty simple. You need to just send a communication to your attorney saying, I no longer need your services. Please stop all work on my case. Now understand that doesn't mean they are no longer your attorney yet because an attorney has to be released from the case, the judge needs to sign an order that releases the attorney from the case. So here would be my suggestion, and I'm not saying it as an attorney trying to say things to benefit other attorneys. I understand what's going on here. You feel like you have been in essence bleeding in terms of all the costs and you want to put an end to it. But here's the thing, if you really have reached an agreement, then regain control over your attorney.

(40:55):

Contact the attorneys. Basically both of you talk to your respective attorneys, give them the same messaging, come up with whatever the terms are, provide it to one of the attorneys, let's say wife, wife. Contact your attorney. Hand them the sheet that both you and the husband have agreed upon all those terms and say, this is what the agreement will say. Go ahead, draft it up please. That's all I need you to do. Let them draft it up, make sure it's correct. Both of you can then agree and submit everything. And yes, will there be some additional cost? Yes, but you know it's going to be done. It should be done correctly. You don't have to deal with all of the stress of firing the attorneys and getting that approved by the court and then doing everything on your own. And maybe you don't know what to do and maybe you don't do it correctly.

(41:52):

So that's another way to look at it. But it really comes down to regaining some level of control in your relationship with your attorney. It's been pending for two years. In my mind. That's crazy. I don't know the issues in the case, so I'm not saying that anyone did anything wrong, but two years, that doesn't happen all the time. But if you've reached an agreement, then maybe what you need to do, instead of just saying, I just want to fire the attorneys, is take control of that relationship and hand them the terms. Here it is, draft it up and let the attorneys then get you over that finish line the right way. Alright, with the time we have left, I want to go over this question. The question is, what can I do if the mediator forgot to put a disagreement in the paperwork, went to mediation.

(42:55):

I didn't notice until afterwards that the mediator did not put that the party and I disagreed on last name. I would like the hyphenation and the other party doesn't. The other party agreed to joint legal decision making but did not agree to 50 50 parenting time. And that is in the paperwork. I would like for the judge to see all of these disagreements. Okay, this, I love mediators. I do. I'm a trained mediator. I believe in the process. I have worked with some incredible mediators who they have done, I mean obviously they know as much as attorneys. I get it, but they're not attorneys. Some of them are, but oftentimes they're not. And more to the point, even if they are as knowledgeable, they don't represent parties. The problem is to save money. I've seen people go to mediation and think that that mediator is just going to, in essence, kind of walk that line and represent both of them and help everything get into the agreement that the parties can then sign and be done.

(44:17):

The problem is they may not be an attorney. BI don't know how good they are. And C, it's not their job to protect either one of you and to make sure everything that needs to be in there is in there. And this is what happens sometimes and things get missed or they're not put in correctly. Unfortunately, depending on the laws in your jurisdiction, there may not be anything you can do. It's a binding agreement here in Georgia. You do have a short period of time, a short window, to basically withdraw your consent. But once it's done, it's done. And you know what else has done the show? Hopefully these questions help you or somebody. Thanks so much for listening.