Frequently Asked Questions - Divorce/Custody
What kind of case do I have?
If you have a licensed marriage or a common law marriage, you must do through a divorce for the Court to determine custody of your children, child support, visitation, support alimony and property division.
If you are not married to the parent of your child(ren), a paternity case is appropriate. You may be in one of three possible categories (1) a Department of Human Services case has been initiated for the collection of child support or (2) the father signed an “affidavit of paternity” at the hospital or (3) there is no legal document stating the parentage of the children.
In any of the three scenarios, a “Petition to Establish Paternity” must be filed with the District Court. Custody and Visitation can ONLY be established through the District Court. The Department of Human Services may only determine child support and any child support arrearage.
The most important thing a separate household family can do is to establish the guidelines (custodial rights and visitation) for their children. An “Order Establishing Paternity” will set forth the rules that pertain to who makes decisions for the children, who has visitation and when and where the visitation will occur. If an “Order Establishing Paternity” is not pursued, conflict will surely ensue.
Change of Custody
If there are Orders in place pursuant to a Decree of Divorce or Order Establishing Paternity, you may request a change of custody through a “Motion to Modify Custody”. The modification of a custody order requires a good reason, to put it simply. However, custody changes between parents every day in the Courthouse and thus you should contact an attorney to see if this is appropriate for you.
Child Support may be established through either a divorce proceeding or a Petition for Paternity. If you cannot afford to hire an attorney, you may establish child support through the Department of Human Services in your county. However, you will need to establish the custodial and visitation rights as quickly as you can.
If a current child support order is in place and you want to increase or decrease the amount of child support, a “Motion to Modify Child Support” is appropriate. The main reason child support is modified is because one or both of the parent’s incomes have changed. Child support is determined by the amount of gross income both parents earn.
If a child support order is in place but is not being paid, you have two options: (1) contact the Department of Human Services in your county or (2) contact an attorney to pursue a contempt citation for collection of that child support. If the other parent continues to not pay child support, they risk going to jail or losing their driver’s license.
Visitation for a parent may only be established through a divorce or “Order Establishing Paternity”. Every parent is entitled to visitation! However, some situations may require visitation to be supervised. This is determined on a case by case basis.
If you have a visitation order in place that is not working, you may pursue a “Motion to Modify Visitation”. This may include increasing your visitation, decreasing the other parent’s visitation or making the other parent’s visitation supervised.
If you have a visitation order in place however the other parent is not abiding by the Order, a “Motion to Enforce” is appropriate. Unless an extreme situation has occurred and the child(ren) is in danger if visitation is allowed, everyone should always abide by the visitation order. A “Motion to Enforce” will help you get the visitation you are entitled.
Remember, failure to pay child support is never a reason to deny visitation!
Grandparent visitation is currently under the legal microscope. A few years ago, grandparents were able to get visitation with ease if the same was in the best interests of the child. Current law is limiting the ability of grandparents to get an order for visitation. Again, this area is a case by case determination.
Termination of parental rights
You may ONLY terminate a parent’s rights pursuant to an adoption unless the Department of Human Services is pursuing the visitation. The section on adoption will explain the procedure for adoption.
An adoption terminates the legal right of a parent to have any relationship with the child. It also terminates any child support obligation upon the finalization of the adoption.
If you are married, your spouse may adopt your child pursuant to a “Step-parent Adoption”. The other parent’s rights must be terminated for the adoption to proceed. There are many reasons a parent’s rights may be terminated pursuant to the adoption, but this is no easy task.
If you are a married couple looking to adopt a baby, check with a qualified adoption agency to assist you.
If a friend or family member has a child (or is pregnant) and would like you and your spouse to adopt the child, the adoption is not difficult, but it is a lot of paperwork.
If you are not pursuing the legal termination of a parent’s rights, however the child is living with you or needs to live with you, a guardianship may be appropriate.
A guardianship action vests legal rights in a non-parent without terminating the parent’s rights. There are many reasons for a guardianship of a child, however this must be discussed with an attorney to determine if guardianship is appropriate.
Do I need an attorney?
Once again, any orders pertaining to your family or your children are the most important legal documents that you could have.
An attorney will be knowledgeable about the law and the Judges that will be hearing your case. The attorney will know what is important to bring to the Court’s attention. An attorney can also assist you in ensuring that your legal rights are protected. I believe it is an absolute necessity to have an attorney in a family law case. If you cannot afford an attorney, you can call Legal Aid in your county. My philosophy is that I would sell my hair to ensure that I had an attorney in a family law case.
What is the process in a typical family law case?
In a divorce or paternity case, a “Petition” must be filed. With this Petition, an Application for Temporary Order is filed, that requests the Orders you want to be in effect while the case is pending. Many divorce or paternity cases can take a long time (even over a year) so the “Temporary Order” will establish rules and guidelines for the parents to abide by until the case is final. The Court hearing on the Temporary Order is usually three to four weeks after you have filed your Petition.
After the Petition and Application for Temporary Order is filed, the other party must be served. At that point, the served party must respond to the Petition within twenty (20) days.
After the Temporary Orders are issued, a trial date is set to finalize the case. The only way a case can be finalized is if (1) there is a trial and the Judge rules on the issues or (2) the parties reach an agreement as to all issues and you have a “settlement”.
What if we agree on everything?
Good for you! If parents can agree on the issues pertaining to their family, they will save a lot of heartache for themselves and children, money and time.
An “Agreed Divorce” means that you have sat down with your spouse, decided on (1) who gets what (2) who pays for what (3) where the children will reside (4) when and where visitation will occur. For a divorce to truly be “agreed”, each of these items must be discussed and decided together.
An “Agreed Order Establishing Paternity” is similar. The parents agree to (1) custody (2) visitation and (3) child support (which may be determined by the law and the attorney can calculate the same.)
What is joint custody
To put it simply, joint custody means that the parents will work together to decide what is best for the children. I believe that joint custody is the way to go if you have two good parents. However, this does force the parents to discuss major decisions in the child’s life and jointly decide the same.
Joint custody does not mean that each party will have the same amount of time with the children. How much time the other parent has with the child depends on a lot of circumstances, which are again decided on a case by case basis.
Joint custody does not mean that there will be no child support. Again, many factors play into whether one party owes child support to the other.
First and foremost, contact the police to help you. If you do not reach out, you cannot get help.
Additionally, if you are a victim of domestic violence, you may pursue a Victim’s Protective Order. This is a Court Order preventing the perpetrator from bothering you, harassing you, stalking you, threatening you, hurting you, or even contacting you if its not related to any children you may have with this person.
You may obtain a Victims protective order by going to the Court Clerk in your county.
Common Law Marriage
There are certain criteria that must be met to be considered “common law” married. You should present your situation to an attorney to inquire if you are, indeed, common law married, as each situation is unique unto itself. If you are common law married, you must get a divorce to legally end the relationship. The Court will divide the property, determine if support alimony is proper and determine the legal rights with respect to the children.
Q: If my regular weekend with my children falls during my ex-spouse’s holiday visitation, do I lose my weekend?
A: All holiday visitations supercede regularly scheduled weekend or mid-week visitations. Thus, if your ex’s holiday is on your weekend, you lose your weekend. Likewise, if your ex’s visitation weekend falls on your holiday, your ex looses their weekend. It all balances out in the end.