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Transcript from a ' 10/95 AOL On-Line Seminar: "Child Custody: Building Agreements That Work"

Mimi Lyster, author of 'Child Custody: Building Agreements That Work' shows separating or divorcing parents how to overcome obstacles to build custody agreements, and how to make choices in the best interests of the children.
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Pub: Welcome to the Nolo Press On-line Seminar! Our topic today is "Child Custody: Building Agreements That Work" .

Our guest today is professional mediator and child custody expert, Mimi Lyster author of, Child Custody: Building Agreements that Work. The seminar will be hosted by Nolo Press. Mimi Lyster will be using the NoloInfo screen name.

Lets turn to the first issue....

Issue: Why do parents need to develop parenting agreements when they separate or divorce?

Info: The law in all 50 states requires parents to have agreements about how they will share and divide their parenting responsibilities following separation or divorce.

If the parents cannot negotiate an agreement on their own, then the court will impose one. The purpose for this is to make sure that someone is responsible for meeting a child's needs for emotional and physical care and support.

Pub: Issue: What are the key elements of a successful custody agreement?

Info: First and foremost, successful custody (or parenting) agreements focus on meeting a child's needs. The other important elements of a successful agreement include enough detail so that both parents and the children know what to expect, regular reviews to determine whether changes should be made in the agreement, and a way for the parents to make decisions and resolve conflict regarding parenting issues.

GUEST#1: This mediation routine, what are your opinions?

Info: Do you mean, is the process valuable? Please clarify

GUEST#1: It's mandatory, and I find mostly it's a game....they don't really assist to find solutions. Also, the husband can be really intimidating in violent situations since when is there justice in the law. That's why the statue is blind!

Info: Are you in a state where you've been told that mediation is mandatory? There's a lot of debate whether mediation ought to be ordered if domestic violence is an issue in some states, the court can excuse the parties from mediation if there is a history of domestic violence for those states where parties must still attend mediation, it can work, but parents are often more comfortable if parents request separate hearings.

GUEST#1: In Solano, it's mandatory, no ands, ifs or buts and it's not separate Is this Solano County, CA? They can request, but is "seldom" happens and yes, Solano County, CA.

Info: The domestic violent prevention act does allow for separate mediation hearings and it also provides that a parent may bring a support person to mediation, such as a person from a battered women's shelter and even when mediation is mandatory, agreements by the parents are not. So if parents choose to reach an agreement, they may do so. The parent's may also declare that they are unable to reach an agreement, that is called "impasse" and when impasse results, the matter will be submitted to the court. Depending on whether Solano County is a recommending county or not the mediator may be asked to may a recommendation of how custody disputes should be resolved or the court can order a custody evaluation for the same purpose.

GUEST#2: My lawyer says my wife is "good enough" but she doesn't do as much as I do: I am being discriminated against. I feed them regularly (she doesn't), do their homework etc. but this doesn't matter according to the court? does this make sense? I don't have a "smoking gun" so I can't get custody!!! Where is the justice? My children are not starving, I provide everything (always have) so she gets them because she has a uterus? It just doesn't seem fair: I do everything. We both work but I now work less than she does: the children are in aftercare every day when I could be with them . Is this not sexual discrimination?

Info: There are many men across the country who feel that the court system tends to award custody to mothers as opposed to fathers but most states do state specifically that there will be no bias in favor of or against either parent simply by virtue of their sex. It sounds as though you have an ongoing battle which is not doing any one any good and so perhaps this is something that belongs back at the negotiation table so that both parents can feel that they both have a substantial role to play. The children feel that they are getting the support that they need from both of their parents.

GUEST#2: You are right. She refuses to go there. I have tried.

Info: In some states one parent can compel the other to go back to mediation by filing an action in court but that is the least desirable methods to get there. If you can find a reason why she might want to be at the table negotiating with these issues that is the best way to go.

GUEST#2: The children have said they want to be with me but they are too young to be taken seriously by the court. Any suggestions?

Info: Ideas for ways to get her back to the table include the children's wishes, saving money on childcare costs, getting a break from constant care responsibilities having a better ongoing relationship between the parents so that there isn't so much arguing. Does this help?

GUEST#2: She's not interested in the children beyond child support. We don't argue any more. We don't talk. The major problem is the lawyers don't seem to want to take any action. We had a hearing scheduled for July 30 which she did not attend (work1) and I haven't gotten a reply from my (Third) lawyer to numerous calls since. Has there ever been a custody evaluation? Or has anyone highlighted any problems that the children are having as a result of the current arrangements? She has temporary custody. My first lawyer gave her this (I was furious) after a psychiatrist said we were both good parents. I fired the lawyer after that.

Info: For most courts, the most difficult decision to make is when both parents appear to be fit.

GUEST#2: It seems my only option is to let the children starve. I can't do that.

Info: When you are dealing with what you feel is an unreasonable parent on the other side of the table you need to find out why. What are they worried about? What needs to they have that are not being met? How far can you go to support them? Are there any other supports that might be helpful? Such as parenting skills classes, counseling, or more frequent visits or relief from extended periods of time where they are the primary care giver. Perhaps it's just as simple as finding out if she is afraid to be found an unfit parent if she allows you more time with the children.

GUEST#2: This is quite possible. But haven't had any success in convincing my attorneys to get to the root of this.

Info: Children need both of their parents, whether or not the parents are living together, unless there is some threat to their safety by maintaining that contact.

GUEST#3: Why is it in best interests of child to have continuous and frequent contact with dad if mom has primary custody?

Pub: Lets define best interests Issue: What does the court mean by "best interests of the child?" Does every state use the same standard? While there are variations among each of the states, there are some common elements to each state's interpretation of what is in the "best interest" of children.

Pub: For example, most states consider: the quality of the parent/child relationships and each parent's ability to meet his or her children's needs; whether the children will be exposed to domestic violence or abuse; a child's preferences (usually this only applies to older children); the geographic distance between parents' homes; and the level of hostility between the parents.

GUEST#2: My latest says she may give me custody by attrition. but it hasn't happened yet. I live within a mile of them. They go to the same bus stop.

Info: How old are the children?

GUEST#2: 8 and 6

Info: How do the children feel about their relationship with both parents right now?

GUEST#2: They want to be with me. But they are too young for the courts to listen or at least give them credence.

Info: If you have 2 elementary school children and you and your ex are practically neighbors it would seem that the easiest way to deal with this is in some form of negotiation. What state do you live in?

GUEST#2: NY

Info: Mediation is not mandatory in NY in the event of a custody and visitation dispute but, perhaps a NY court would be sympathetic to an argument to order mediation in the best interests of the children, given the geographic proximity of the homes and the ages of the children.

GUEST#1: When do the courts listen to the needs and preference of children?

Info: Every state is different and NY is not specific on this point, but many states look to children who are ages 12 and over for impute into the decision making process.

GUEST#2: So how come I can't get my lawyers to do anything about it? They seem to feel that because she's the mother she has a right to them. PERIOD!

Info: You need to ask your attorney that! The state of NY does not have any explicit presumption in favor of one parent over the other.

GUEST#2: She's not a drug abusing alcoholic or anything that society currently rejects, but I have more time to give to the kids and they respond positively to this. They are my life.

Info: Perhaps a counselor could come up with more ideas.

Pub: Issue: Can parents negotiate an agreement even if there is a lot of conflict between them? What if there is a history of domestic violence or substance abuse? Conflict is not an automatic barrier to making parenting decisions that both parents can live with-- in fact, it is present in most relationships following separation or divorce.

Info: The key is finding ways to reduce the conflict, or to set it aside, so that parents can once again focus on meeting their children's needs. To reduce conflict, parents can try communicating their feelings to each other without name-calling or blaming (for example: "I get angry when you are late because the kids are disappointed and it throws off all of my plans," rather than "You're late - as usual! You couldn't care less about me or the kids!")

Domestic violence is, unfortunately, a reality in many parent's relationships, but it needn't prevent parents from negotiating agreements that they can both accept. If one parent is unable or unwilling to negotiate in a one-on-one dialogue, consider including a counselor or mediator who has had training to identify and deal with these kinds of relationships. If one parent fears for their physical safety, then mediation can be effective if the parents are in separate rooms and the mediator goes back and forth.

The most important thing is to insure everyone's safety first. Parenting agreements can then address how parents will get help in dealing with the violence and perhaps how they will gain new communication or disciplinary skills.

Substance abuse is also very common to American families. Parents need to develop agreements that put their children's safety first (for example, making sure that parents don't drive while under the influence, haven't consumed any drugs or alcohol for at least 12 hours prior to a visit, etc.) while allowing at least some parent/child relationship to continue.

Parenting agreements can also include provisions about how a parent will get help for substance abuse, and who children can call if they fear for their safety while in a parent's care.

GUEST#2: I know I'm monopolizing this, but I probably speak for the majority of fathers in this situation

Info: Perhaps you would be interested in a resource on the Internet, it's called the Divorce Home Page. The author of this page has considerable resources regarding fathers, custody orders, and the justice systems awards of custody to mothers

GUEST#2: Got it already.

GUEST#1: Can you demand testing from an ex party hearing?

Info: What kind of testing?

GUEST#1: Drug testing.

Info: Some states will order drug testing and or counseling if substance abuse is an issue, whether or not it can be done. Ex parte is something you will have to check with your local court or attorney about.

GUEST#1: When and if testing is requested, how can it be enforced?

Info: It depends how it's requested and whether it's made a part of a court order. one idea for parents who choose to include drug testing in their parenting agreement is that if a parent fails the drug test they loose that visit, and pay the cost of the testing. If they pass the drug test, the visit goes ahead as schedule, and the other parent pays.

GUEST#2: I've been kicked out of my house as the result of a perjured ex parte hearing: the baby sit sitter admitted to my lawyer that what my STBX said was a lie but she refused to sign the papers after she'd consulted with her sister. This is separate property (mine) so now we're getting to the heart of the issue. She's too comfortable to go back to court and give anything up. I continue to pay for the house (I know, I'm a fool) I don't want to lose it, a and it's security for the children.

Info: If the children are essentially happy in this situation perhaps this is something you need to let go of for a while. If the children are fundamentally unhappy in this situation, it may be worthwhile to have them assessed or evaluated by a professional to discover their feelings, and make recommendations about what might be in their best interest.

GUEST#2: The other problem is I can't afford it anymore. This has been going on for 54 years and I'm just about bankrupt. Sorry it feels like 54 years but it's 4!

Info: Perhaps the best thing to do is to find a way to wait until such time as a change is required because of the children's changed needs. It might be easier to get her to the bargaining table then, an example of a change like this is a change in grades, schools, problems in school or other symptoms that become hard even for her to ignore.

GUEST#2: She's got it made. Her sister lives with her and I've been paying the expenses. But why does the legal system not listen to fathers? We're parents too!!

GUEST#1: They do listen to father's however, sometimes the issues are just not clear enough to support changes that father's are requesting no matter how noble or right. That is an excellent point and it shows very clearly how hard it is to make decisions like this when the parents' interests are taking a back seat to the children's interests.

GUEST#1: What about new partner around my children, i.e. discipline, daycare, etc.?

Info: New partners can present a very tough challenge, and can inflame any conflict that exists between parents so it's better to be upfront early about a new partner and make decisions together about how that new partner will fit in to the new family situation. That is not to say that an ex can tell the other parent whom they may or may not see but, they can have, at least some input regarding issues such as discipline, child care what they will be called and what their relationship is with the children.

Info: GUEST#2, you are just struggling with one of the biggest challenges that parents face after separation and divorce.

GUEST#2: It's sure hell.

GUEST#3: Your thoughts on 50/50 custody arrangement when dealing with toddlers. There are a lot of factors related to 50/50 custody that are important for toddlers such as the geographic distance between parent's homes each parent's work schedule and most especially, each child's ability to deal with change. Toddlers tend to have very short memory spans so frequency is sometimes more important than the amount of time of any particular visit. On the other hand, changing homes too often can leave children confused and worried that they won't remember where they're supposed to be and when.

GUEST#1: Scenario: the father present this clean, cut image, Daddy Warbucks, I can do better, better neighborhood, etc. and she's on AFDC, crummy neighborhood, etc. so the children are better of with me, etc. etc... It is very common after divorce for parents to have vastly different economic resources in theory, at least. The point of child support is to afford children the best possible standard of living with both parents and that children are not to be traded for money.

GUEST#3: D you have any stats on number of dads who are awarded 50/50 with toddlers?

Info: No I don't, but it's happening far more frequently when the 50/50 plan shows how well it will be meeting those particular children's needs.

Pub: Issue: What is the difference between legal and physical custody?

Info: Some states differentiate between the legal and physical aspects of parenting. In these states, legal custody means decision-making on a child's behalf. Joint legal custody generally means that both parents have access to medical and school records, and that they will make major decisions affecting their children together. Sole legal custody generally means that one parent makes all the decisions.

Physical custody usually refers to living arrangements. Although the labels are subject to considerable variation, joint physical custody generally means that the children live for significant amounts of time with both parents.

Sole physical custody generally means that the children live primarily with one parent and see the other parent for limited amounts of time and fairly infrequently.

Pub: Issue: Does a parent have to pay child support if an ex- partner prevents them from seeing the children?

Info: Yes. Parents must generally contribute to their children's support, regardless of how much time they spend with the children.

This applies even in states that base their support formulas on the amount of time that children spend with each parent. If, however, one parent is preventing the children from spending time with the other parent, it's time to tackle the parenting issues and get them resolved so that the children aren't put in the middle.

Parents can either do this on their own, with the help of a self-help book such as Child Custody, or with the assistance of a counselor, mediator, or attorneys.

Pub: Issue: How can parents make sure that their parenting agreement works well over time? How often should parents review their agreements?

Info: Parenting agreements work best when parents assume that the agreement will have to be flexible enough to accommodate the inevitable changes that both children and parents experience as time goes on.

In order to accommodate these changes -- and as a way of heading off conflict -- many parents consider setting up regular times that they will review their parenting agreement. At the beginning, and with very young children, parents might review the agreement as often as every three to six months. As time goes on, however, parents might review the agreement every year, or with each change in schools.

GUEST#3: Do you have a list of factors to put in as testimony (evidence) in a custody case to determines what are "best interests of the child"?

Info: Each state has somewhat different interpretations of what constitutes the best interests of the child but in general all states want to know about a parent's ability to meet their children's needs to make sure that children are not exposed to violence or abuse, that the quality of the parent/child and other family relationships are good, that a child's preferences have been taken into account, that the geographic distance between parent's homes is minimized, that children have stability and continuity in their care and that the conflict between parents is kept to a minimum.

Pub: I hope this information has been helpful to one and all.

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