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September 1, 2010

Ask the Attorney – September 2010

Filed under: Columns from Our Towne Magazine, General — Paul Czech & Associates @ 4:10 pm

Let’s talk about custody.  If you’re going through a divorce and you have no children things usually go pretty easily.  The hardest part is telling your soon to be ex- spouse that it’s time to move on.  You can talk to your analyst about the emotional fallout – I just give guidance on the legal side which, under these circumstances, is a pretty easy ride.  Once the tempers settle down and everyone comes to terms with what’s happening, you simply have to divide up the marital property and say goodbye.  (Of course, you have to determine if alimony or spousal support is called for, but that’s the stuff that another column is made of.)  With no children, there’s nothing that will keep the two of you in contact with each other once the divorce decree is signed by the Judge.

But children change the equation considerably.  It’s not so easy to just walk away with kids involved.  In fact, I would say it’s pretty much impossible unless you decide you want to sever ties to them as well.   When I have clients that fall into this category, the first thing I do is remind them that there will be birthdays and holidays and graduations and weddings that will force you to come face to face with that ex-spouse you never wanted to see again.  Oh…and your ex-spouse’s family will be there too.  I can’t think of a more uncomfortable situation to be put in, however, that is indeed your future.  So I like to warn people up front so they can get prepared for what is to come.  Your analyst can help with this issue as well since they can help you develop coping methods that will enable you to make it through those tense moments with as much of your sanity in tact as possible.  In my opinion, a good psychologist is as important to you during a divorce as a good family law attorney since they’re the ones that help you make it through the fire of divorce unscathed.

Custody of your children can be handled in many different ways depending upon what you and your ex agree upon.   There are, however, some basics that you need to know and understand.  In general, family court judges are very much in favor of having both Mom and Dad involved in the children’s lives so both parents are usually granted legal custody.  This gives you the legal right to make decisions on your child’s behalf related to school and health care and any other issues that usually involve a parent or guardian.  Since this custody is usually granted as “joint legal custody” it means that you and your spouse have to make such decisions together.  In other words, Mom can’t decide independently that she wants her daughter to go to the most expensive private elementary school around.  Dad would have to be consulted about this and a decision would have to be made jointly.   Of course, if you can’t agree, then you’ll have to file a motion and bring the issue before a Judge who gets to decide on your behalf.

Physical custody is a whole different matter.  One parent is usually given primary physical custody of the children which means that the children will reside with that parent.  And that parent is usually Mom.  Generally, the judicial system believes that Mom is the best one to raise the kids and care for them on a daily basis.  Although there are some circumstances in which Dad will get physical custody, it is absolutely not the norm.  In my experience, Mom will only loose primary physical custody of her children when there is significant evidence to prove that she is incapable of caring for them appropriately.  If you are a Dad and you believe you have enough evidence to shift the scales in your favor, consult with a good family lawyer before wasting valuable time and money by simply filing a custody petition.

I would suggest that you start thinking about visitation.  Be prepared to talk about when and where you will pick your kids up and when and where you will return them.  Typically, the non-custodial parent will get the kids every other weekend.  You get every other weekend because the court likes to give the custodial parent time with the kids that is purely fun and recreational.      If the non-custodial parent lives in the same school district where the kids attend school, that parent will likely also be able to secure an overnight during the week which comes with the added responsibility of making sure the kids get to school.  The non-custodial parent is the one responsible for paying child support to the custodial parent.  This makes sense, right?  If the kids live with Mom, then Mom is paying all of their living expenses.  Since Dad is responsible for half of all those expenses, Dad will have to pay Mom child support.  Child support, like alimony, is a whole separate beast which requires a legal analysis all of its own.  What I’ve written here is the most general approach top child support issues.

If you have questions regarding divorce and child custody, get yourself a good family lawyer and consult with them.  The money you spend will save you a lot of money and grief in the long run.  Then maybe you’ll have enough to pay for that shrink too.

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