Child Custody: Here’s What You Need To Know
There’s probably nothing worse than being a parent and not getting to spend time with your child. One parent has all the control and you’re sitting there completely helpless. I don’t have children myself, but I do see the frustrated and tired expressions on the faces of parents who sit down in my office pleading for help.
Child custody issues are prevalent in the lives a lot of people. Some are hard-working, down to earth, law-abiding parents. Others have struggled a bit, but are on their way to a better life. It doesn’t matter the “type” of parent you may be. If your child is taken from you or being kept from you, you need to know your options.
Perhaps the best way to convey this information is through a series of scenarios.
1. Children Born Out Of Wedlock
Every parent has a constitutional right to parent their child. This is a constitutional right. This means that the state cannot infringe upon that right absent a showing of substantial harm to the child. The other parent also can’t infringe upon your right to parent (although this is typically protected by statute and case law, not the constitution).
But this constitutional right doesn’t arise simply by being a parent, at least not for fathers anyway. Let me explain.
Let’s assume you had a one-night stand with someone you met at a party. 9 months later, you’re a dad. You call up your child’s mother and ask to see the kid. She tells you no. What can you do?
Well, in a typical “one-night stand” scenario, when a child is born out of wedlock the mother will typically have superior rights to you. This is because it’s fairly easy to accurately determine who the mother is by virtue of the birthing process. But, it’s not that simple when it comes to the dad. And for all the dads out there, if you really want to gain some insight into child custody issues take a look at Custody for Fathers: A Practical Guide Through the Combat Zone of a Brutal Custody Battle. Fathers can get the rough end of the deal in court, this book is a great tool for all the dads out there who are looking for detailed answers.
So, as the father, you’ll have to start a “parentage action” (that’s usually what it’s referred to in most states). This is typically done by filing a complaint or a petition to establish parentage. Once you do that, you have to prove to the court that you are the biological father of the child(ren). This can be accomplished in several ways (i.e., DNA test, mother admits under oath that you’re the father, etc.).
Once you’ve been established as the father, your constitutional protections are secure. But, that doesn’t mean that you can get the child(ren) whenever you want. You and the mother will have to enter into a “Permanent Parenting Plan.” This is an Order of the Court that sets out the day-to-day schedule with the child(ren). It will also set out the holiday schedule, summer vacation schedule, child-support, etc.
Yes, you read that last sentence correctly……child support!!! This is something a lot of parents don’t think about when they attempt to get custody or visitation with their child(ren). Once you go down this road, the court will order somebody to pay child support, just be prepared for it.
Every family is unique. Some children have both their biological parents living in the same home. Other’s have step-parents. In fact, some step-parents have been involved in the lives of their step-children since they were born. What rights do they have?
Well, being the step-parent typically makes you a “legal” parent. This is not to be confused with a biological parent. All things being equal, the biological parent will win every time. But that is not meant to suggest that a step-parent doesn’t have options, because you do.
First and foremost, if you are a step-parent, you’re probably already operating under a Permanent Parenting Plan. So you’ll get time with the children when your spouse does. But consider this option for a moment.
There are situations where the step-parent is viewed as a biological parent by the children. Perhaps the actual parent abandoned the children at a young age. In these situations you, as the step-parent, may seriously want to consider adopting the child(ren).
Adoption is a pretty complex process and can involve multiple court appearances. But if you love the child(ren) you’ll do it without thinking twice. There are also other avenues you potentially can take to ensure your time with your step-child(ren). Talk to your local attorney to find out more.
This is probably the most common arena for child-custody issues. This is also the biggest source of frustration and anxiety for most parents. There’s no doubt about it, divorce can get ugly. If you want a great resource for the “ins and outs” of divorce and children you absolutely need to read The High-Conflict Custody Battle: Protect Yourself and Your Kids from a Toxic Divorce, False Accusations, and Parental Alienation. This book offers some great insight to child issues in divorce cases. Take a look at it!!!
In a divorce case with children, the Court will determine most aspects of the parent-child relationship (unless of course you and your soon-to-be ex-spouse can agree). Most states have a set of “factors” the Court will use when deciding with whom the child(ren) will spend the majority of the time. Some of those factors typically include (but are not limited to): (i) the ability of each parent to care and provide for the child, (ii) the established relationship between the child and each parent, (iii) the mental and physical health of each parent, (iv) the stability of the family unit of the parents, and so forth and so on.
If you’ve already gone through a divorce and are thus already operating under a parenting plan, the rules change just a bit.
Let’s assume that you’re 5 years into your divorce and you’re wanting to change the amount of time you get with your child. The first thing you have to do is file a “Motion to Modify Permanent Parenting Plan.” To get the parenting plan changed, you have to show the Court that there has been a “material change in circumstances.” In addition to that, you’ll have to prove to the Court that the modification will be “in the best interest of the minor child(ren).”
Keep in mind that children over the age of 12 will typically be allowed to convey their reasonable preferences to the Court. This doesn’t mean that the Court will do what the child wants, but it does mean that the Court will give their preferences more weight.
4. Non-Parent Interference
Maybe you have a family friend or grandparent that is interfering with your ability to parent your child. This is also fairly common in child custody disputes. Here’s a run-down of what you need to know.
Before a court can validly interfere with your constitutionally protected parental rights to decide on the issue of visitation by a non-parent, it typically must find harm or a substantial danger of harm to the child in denying such visitation. If the Court finds harm or a substantial danger of harm, it will usually then apply a best interest test to allow visitation by a non-parent against the parents’ wishes.
If the child has already developed a “significant existing relationship” with the non-parent, preventing that relationship in the future will likely be found to be a “substantial harm.”
So if you have a non-parent, especially a grandparent, interfering in your relationship with your child, you can absolutely cut them off UNLESS doing so would result in harm or a substantial danger of harm and would also be against the best interest of the child.
This, of course, can become more complicated if the other parent disagrees with your wishes.
5. Relocation of Parents
If either parent wants to relocated outside the state, or more than 50 miles from the other parent within the state (in Tennessee), the relocating parent must give the other parent adequate notice (at least 60 days in Tennessee) prior to the move.
If you are not the relocating parent and you oppose the move, the applicable standard for resolving this issue will depend on the existing custodial relationship (i.e. it will depend on the current parenting plan). If you and the other parent share parenting time equally, the relocation will may be difficult.
On the other hand, if the relocating parent is the parent with the most time with the child, the Court will typically allow the move unless the relocation (i) doesn’t have a reasonable purpose, (ii) is vindictive, or (iii) the relocation poses a threat of specific and serious harm that outweighs the threat of harm to the child of a change of custody.
6. Rights of Both Parents
Each parent typically has certain statutory rights that are in place to protect their individual parent-child relationship. These rights will be enforced by a court unless doing so would not be in the best interest of the child. The rights include:
(i) The right to unimpeded telephone conversations at least twice a week;
(ii) The right to send mail;
(iii) The right to receive notice of hospitalization, major illness, or death of the child;
(iv) The right to receive important educational information on the child (i.e., report cards, tests scores, etc.);
Those are just a few of the rights afforded to both parents. There are others. Hopefully this gives you a good example of the protection you have as a parent when it comes to your children.
Children are the most important people in the lives of parents. If you’re a parent you need to arm yourself with all the information you can to make sure you protect your relationship. Don’t let another parent, a grandparent, or anybody else infringe upon that relationship. Talk to your local attorney if you need help. You’ll be glad that you did.
Good Legal Health.
The Juris Doctor