Saturday, March 17, 2012

Child custody

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The child custody case can be one of the most contentious forms of family law litigation. They are cases of he said, she said; hes bad, shes bad; he doesnt care about kids, she doesnt care about kids; hes not involved, shes not involved. So forth and so on. The bottom line is this in order to determine primary conservatorship the court will look to the best interests of the child. It is a goody feely term at best, but it is the standard.

Children need both parents. Except in cases where one parent is abusive or unable to provide proper care and supervision, children benefit when both Mom and Dad play major roles in their lives. Mediation helps parents figure out how to manage child care under a totally new set of circumstances.

Suggestion Avoid the use of fighting words, such as custody and visitation. These words set up a struggle overpossession of the children.

A more useful way for you to deal with the question of child care is to develop a parenting plan which describes the childrens schedule with each of you. Your mediator will probably create this plan on a large, erasable wall calendar, asking for ideas as to when each of you would like to assume primary responsibility for the childrens care.

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Once a tentative parenting plan is created, your family can try it out for a month or two, before deciding whether or not to include it in your settlement agreement. If parts of the plan need fine-tuning, you can discuss proposed changes, then revise your plan until it works smoothly for all involved.

Some mediators permit older children to attend a mediation session to help with the parenting plan. If you decide to include your children, be sure that everyone understands the purpose of their participation. The children need to know that their input is important, but that you and your spouse will make the final decisions. Be careful not to put them in the difficult position of being asked which of you they want to live with.

Any parenting plan that you and your spouse create is likely to work if you both support it. If you see potential problems with the plan as you proceed through the mediation, bring them up and correct them before you sign the final agreement.

Remember, your children didnt cause the divorce. No matter what you do, they will pay a price for your decision to separate. However, its up to you to keep that price as low as possible, even if it causes you inconvenience or decreases the amount of time that you spend with them.

Put your children at the center of your focus and concentrate on their needs. Set a photo of your children in front of you and your spouse on the mediation table. Recognize that if you end up fighting over your rights to custody or visitation, rather than working out a plan with your spouse, the children will be the victims, regardless of which parent wins.

You and your spouse have the opportunity during mediation to cooperate in planning your childrens future. Through careful planning, you can help your children view your family as rearranged into new homes, rather than torn apart and left in shreds.

Consider making co-parenting agreements that will keep both you and your spouse involved in your childrens lives and minimize the friction.

Here is one case considering child custody

Schweinberg v. Click, 67 So. d 548 (Fla. Dist. Ct. App. 1).

The parties separated in March 186 after a 1-year marriage during which they had three children. The children lived with their father from the time of the separation until the divorce action. After a hearing, the court awarded the father permanent custody of all three children plus custody of the wifes child from a former marriage. The court ordered reasonable visitation but did not establish a detailed visitation schedule. The court reserved the issue of child support, but no supplemental order regarding that issue was ever entered.

In December 11, the mother filed a petition for modification of the divorce decree, requesting custody of the two children not yet emancipated. She also moved that contempt proceedings be instituted against the father for not allowing visitation, and she requested that a visitation schedule be ordered. The father denied any grounds for contempt, but he did admit that he refused to allow overnight visitation because the mothers new husband was a con victed felon under court supervision for 15 years for lewd and lascivious behavior with a female child.

The trial court ordered that custody be changed to the mother. It cited as its reasons the fathers arbitrary and capricious denial of visitation, 67 So. d at 550, the belittling of the parties handicapped child by the paternal grandmother and the stepmother, and the childrens disappointment in not being able to visit with their mother .

The Florida District Court of Appeal reversed and remanded the case. It explained that a parent seeking to modify an award of custody carries an extraordinary burden. Id. It said that the noncustodial parent must prove a change of circumstances occurring since the entry of the original judgment of dissolution. The court held that there appeared to be no such change in this case. It said that denial of visitation alone was insufficient to justify a change of custody. Further, it noted that the mother had been allowed to visit until November 11, at which time she had notified the Department of Health and Rehabilitative Services (HRS) that her child was being abused. The court also emphasized that there had been no court-ordered structured visitation in the first place for the father to violate. The court held that a childs wishes alone are not a material change of circumstances justifying a change of custody. Finally, the court noted that the HRS, upon investigation, had found the mothers charges of abuse unsubstantiated. Nevertheless, the court of appeal remanded the case for the trial court to schedule reasonable visitation and to consider the issue of child support. Schweinberg v. Click, 67 So. d 548 (Fla. Dist. Ct. App. 1).

Pravni fakultet , Zagreb

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