by Kristin Kirkner | Jan 1, 2013 | Child Support, Custody, Divorce, Family Law
Preference of Child in Custody Determinations
In awarding or modifying custody, one of the factors considered by a court is the preference of a child, However, the extent to which the court will consider an expressed wish and how much weight the court will give that wish depends on the age and maturity of the child and the circumstances under which the choice was made.
When Preferences Are Given Little Weight
As a rule, children love both of their parents and one of the most difficult decisions for the child to make is whether to live with one parent rather than the other. Children want both parents to live together, and they want to live with both of them. No court wants to place a child in the position of choosing, and courts often ignore or give very little weight to an expressed preference, particularly when the child is very young. Some courts will not permit the child to testify as to a preference. One reason is that the court may be concerned that the child has been coached. Where the child is living with one parent prior to a court hearing, not only the parent, but the parent’s relatives all too often seek to sway the child. It is for the court to determine what is in the child’s best interests in deciding custody regardless of the stated preference of the child.
When Preferences Are Considered
As a child grows older and begins to form independent decisions, the court will listen to the child to find out which parent, if either, the child would prefer to live with and the reasons the child gives for that desire. A child might want to live with a parent because that parent has been the primary caretaker during the course of the marriage. A daughter may want to live with a father because the mother and daughter are constantly battling and the daughter feels closer to the father. On the other hand, a child might want to live in the house that is bigger, has more expensive toys, and the parent is wealthier, but if that parent works excessive hours and is not available for the child, the court could deny the request. A child may want to change schools because of the difficulty of the school program or because of the type of students. Before a court grants the request, the court is required to determine what is best for the child.
Where a child has reached the age where the child may petition the court for a change in custody, courts often grant the child’s wishes. However, the request will be denied if the person the child chooses to live with is abusive or violent, or where there is clear evidence that the choice is not in the best interests of the child.
by Kristin Kirkner | Jan 1, 2013 | Custody, Divorce, Family Law
Modification of Custody based on Parental Unfitness
If subsequent to the time a court awarded joint or sole legal custody to a parent, the parent becomes unfit to have custody of the child, a court will not hesitate to modify custody.
Unfit Parent
There are various reasons for finding parents, or a parent, to be unfit to have the care and custody of a minor child. A mother who carried on an affair with another man for years, passing off her child with that man as the son of her husband, was found to be unfit as lacking morals and unable to teach values to her child. A parent who abuses drugs or alcohol and is unable to care for the children will be found unfit to have custody. A parent who unfortunately was severely injured in an accident or who suffers from a disabling disease, and as a result cannot care for herself or himself, may not be able to care for a child and would be found “unfit.” A parent who cannot keep a job or an apartment, and cannot demonstrate an ability to provide a stable home environment for a child may be found unfit. A parent who physically and mentally abuses a child is unfit. A parent who ignores the needs of a child, fails to provide an education, fails to provide health care, and fails to provide adequate clothing or food will also be found unfit.
A court will look not only at the mental and physical ability of a parent to have custody of a child, but will also look at the parent’s morals. A parent who fails to show up for scheduled court appearances will be seen as lacking in respect and will not be viewed as a positive influence on the child. A parent who consistently brings a child late to school and permits the child to miss excessive days of school is not a parent who puts the needs of the child first and in some states is subject to having the child removed by the local social services agency. A parent, who leaves children under the age of six in a home, while the parent goes to work, goes on a date, or goes shopping, may be found guilty of neglect and not fit to have the care and custody of the children. A parent who uses excessive force in disciplining a child or who disciplines a child in an abusive manner or at times when no discipline is warranted may also be found unfit. A parent who works excessive hours, so that he or she is not awake and able to care for the child or supervise the child’s activities, may be found unfit.
Although a court is required to show a change of circumstances before modifying an award of custody, where there is a showing that a parent is unfit to have custody, the court may modify custody and grant custody to the other parent. If the other parent is not available or fit to have the care and custody of the child, the court may decide to place custody of the child or children with another relative, such as a grandparent, aunt, or uncle, or with a foster family.
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by Kristin Kirkner | Jan 1, 2013 | Custody, Family Law
Impact of Remarriage on Custody Arrangements
The fact that a parent remarries does not, of itself, require any change in the custody of a child. After a divorce, parents are free to form new relationships. As long as that new relationship does not adversely affect a child, the court is unlike to make a change in custody.
Change in Circumstances
In many situations, a parent with custody will allow a child to form a relationship with the new spouse prior to remarriage. The remarriage may or may not result in any real changes in the child’s life. The child may continue spending the same amount of time with each parent, may remain in the same school, and may continue to participate in the same after-school and week-end activities. Disputes arise when the remarriage results in relocation of a parent or causes problems between the former spouse and the new spouse. Where the remarriage interferes with the child’s relationship with both parents, endangers a child, or greatly improves the circumstances of the child, the court will consider a change of custody.
Relationship between Child and New Spouse
In making any determination as to the custody of the child, the court will to seek the best interests of the child. If a former spouse seeks a modification of the custody arrangements, the former spouse must first show a change in circumstances. If a change can be shown, the court will again seek the best interests of the child in making its decision. A new spouse can have a positive or negative influence over the child. Where the new spouse is financially stable, encourages the education of the child, and takes an active interest in the child’s health and well being, the remarriage will result in a positive influence. If at the time of the divorce the circumstances of both parents were shaky and the remarriage of one of the parents results in a great improvement in the life of the child, a court will likely modify an existing custody order to grant custody of the child to the parent who remarried.
In the alternative, where the new spouse is abusive or violent, or shows a marked preference for the spouse’s own children over the child or children at issue, or interferes in the relationship between the child and the other parent, a court can consider the negative influence of the remarriage on the child. Where the remarriage poses a threat to the child, the court will seek to minimize the threat and modify the custody arrangement. It is up to the parent who seeks a change in custody to establish that the new spouse will have an adverse affect on the child. The fact that the new spouse does not get along with the former spouse may be insufficient, but a showing of hostility toward the child by the new spouse, resulting in lower grades or poor behavior, may be enough to convince a judge that a change of custody is needed.
by Kristin Kirkner | Dec 28, 2012 | Custody, Divorce, Family Law
In some states, where one parent has been granted custody but the other parent or a nonparent has refused to return the child to the custodial parent, the custodial parent may file for a writ of habeas corpus to request that the court order the child be returned.
Writ of Habeas Corpus
A writ of habeas corpus is a court order that requires that the person or agency who has unlawful custody of a child to return the child to the person who has lawful custody. The writ could be directed at a parent who has lawfully or unlawfully taken the child and refused to return the child, at an agency who wrongfully removed the child from the custody of the parent, or at any other person who is keeping the child from the person with lawful custody. In some states, such as Delaware and Georgia, the writ may be used by a spouse to get a court to make a determination as to the proper custody of a child. In other states, such as Maryland, the writ may not be used for that purpose. The federal habeas corpus law may not be used to establish custody, but may, in some limited circumstances, be used to enforce or contest an existing custody order.
Enforcement Proceedings
Whether or not a writ of habeas corpus may be used to establish custody, it may be used to enforce custody orders or to challenge an existing custody order. Where a state agency has taken custody of a child, usually under a child-in-need-of-assistance proceeding, a parent or other interested person may file for a writ of habeas corpus to contest the right of the agency to keep the child. In circumstances where one parent obtains a custody order in one state, and the other parent obtains a custody order in a different state, a petition for a writ of habeas corpus is sometimes used to challenge the jurisdiction of the second state to grant an award of custody. Where parents cannot care for a child, relatives who compete for custody may also use a writ of habeas corpus to challenge custody.
In family law and divorce cases, parents have at times attempted to use federal habeas corpus laws in federal courts to enforce custody orders. The federal courts lack jurisdiction except in two circumstances. First, the federal courts are available in cases contesting custody of Native American children. Second, federal courts may also be available where the parent seeking return of a child alleges that the parent’s constitutional rights have been violated, such as when parents are living in different states and one parent alleges that the other got or modified custody without providing notice of a hearing on the custody issue.
