Articles Posted in Child Custody

The holiday season begins, and for many people in a divorce or in the aftermath of a divorce, the season raises concerns and stresses beyond the usual stresses of the holidays. Some of the concerns develop over the sharing of the holidays with children. Which parent will have the children on which days? Do the parents split Christmas Day, or alternate it each year? Whose church, synagogue or temple will host the children this holiday?

Judges are especially attuned to the holiday concerns…it is during this time of year that many courtrooms are filled with litigants…parents seeking a ruling on whether a parent can travel with the kids to New Jersey this year, to see aging relatives for the holidays, for example. Mnay of the judges will refuse to hear new cases once their holiday dockets fill up.

What to do with your new and worrisome holiday concern?
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One of the reasons that I have been a proponent of alternative dispute resolution systems in divorce (such as collaborative divorce and mediation) derives from the sheer savings that can accrue to the parties by bypassing stressful and costly litigation, and implementing cutting edge alternative strategies that lead to settlement. Divorce is rough enough on the parents…it is a difficult life transition, and when children are involved, the issues concerning custody and parenting plans can really create anxiety and stress. The lawyers should promote positive resolution of difficult issues, when possible.

The story below from California (where I started practice as a domestic violence prosecutor) illustrates what lawyers managing divorce cases should never do: aggravate the already difficult status of the divorce case with outrageous conduct.

…..San Francisco, CA……A California appellate court recently rejected the request of John Fuchs, a divorce attorney, for $250,000 in fees — and referred him to the State Bar of California for possible discipline — on the ground that his tactics in a divorce proceeding aggravated a simple case into a costly legal feud that wasted the parties’ money.
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I have a number of clients who express concern about their divorce and the impact on their children. Are there any guidleines for parents to follow? Below are some thoughts and guidelines for parents anticipating divorce or in a divorce process. Be mindful that there are alternatives to traditional litigated divorce, such as a collaborative divorce. Lowering the temperature on a contested divorce and custody case also has benefits where the children are concerned.

1. Never disparage your former spouse in front of your children. Because children know they are “part mom” and “part dad”, the criticism can batter the child’s self-esteem.

2. Do not use your children as messengers between you and your former spouse. The less the children feel a part of the battle between their parents, the better.

One of the best ways that divorcing parents can faciliate a good joint parenting agreement is to live within reasonable proximity of each other. When both parents live within minutes and miles of each other, the parents and kids benefit. Even the best and broadest parenting agreement can be difficult to endure if the parents live at great distance from each other. Conversely, even if the non-residential parent gets a standard “boilerplate” visitation schedule, the parent’s life with the kids is enhanced if he/she lives in the same school district as the kids.

The Illinois case of Samardzija illustrates a diffiuclt part of Illinois’ removal and relocation law. In this case, Mom moved from (for example) Gurnee, Illinois to Carbondale. The move then caused non-residential parent, Dad (a Gurnee resident), to drive hours to see his kids, when previously the drive had been only minutes. The move to Carbondale, in effect, stripped Dad of his parenting role with the kids. In Illiniois, the mother’s move to Carbondale was legal, and required no permission from the court. Mom moved, the kids said goodbye, and that was the end of Dad’s parenting life, as he knew it.

The Samardzija court reasoned that while parties in divorce can agree to geographical limitations when there is a specific need to do so, absent such agreement, Illinois imposes no restraints on a custodial parent from moving to the opposite end of the state, if he/she so chooses.
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In re Custody of T.W. is an interesting analysis of the superior rights doctrine, and how this doctrine, that substantiates the rights of biological parents, can be trumped by a best interests test.

What do I mean by this? In this case, a child’s mother voluntarily surrendered custody of her child to her parents. The grandparents raised the child, and later, when the grandparents went to court toget cusotdy of the child formally (with the mother’s consent) the father objected. The superior rights doctrine establishes a presumption that a biological parent is the best person to raise a child. However, as in this case, this presumption can be overridden by a finding by the court that the child’s best interest is paramount to the, less than absolute, doctrine of superior rights.

Thus, the superior rights doctrine is not so superior, after all. Should the court find that the child’s best interest is met by being raised by someone other than the biological parent, the court can override the parent’s claim and award to the party meeting the best interests test.

The Role of the Child Custody Evaluator: APA Guidelines
A. The role of the psychologist is that of a professional expert who strives to maintain an objective, impartial stance.
The psychologist does not act as a judge, who makes the ultimate decision applying the law to all relevant evidence. Neither does the psychologist act as an advocating attorney, who strives to present his or her client’s best possible case. The psychologist, in a balanced, impartial manner, informs and advises the court and the prospective custodians of the child of the relevant psychological factors pertaining to the custody issue. The psychologist should be impartial regardless of whether he or she is retained by the court or by a party to the proceedings. If either the psychologist or the client cannot accept this neutral role, the psychologist should consider withdrawing from the case.

B. The psychologist gains specialized competence.

A psychologist contemplating performing child custody evaluations is aware that special competencies and knowledge are required for the undertaking of such evaluations. Competence in performing psychological assessments of children, adults, and families is necessary but not sufficient. Education, training, experience, and/or supervision in the areas of child and family development, child and family psychopathology, and the impact of divorce on children help to prepare the psychologist to participate competently in child custody evaluations. The psychologist also strives to become familiar with applicable legal standards and procedures, including laws governing divorce and custody adjudications in his or her state or jurisdiction.
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The majority of child custody disputes are settled, through negotiation, mediation, or collaboration on a parenting plan that works for both parents. When the issue of custody is not resolved, it is my practice to petition the court to engage a highly qualified custody evaluator (a specially trained psychologist) to furnish recommendations regarding the best interest of the child(ren) to the court. The American Psychological Association has developed guidelines for the the custody evaluation.

I. Orienting Guidelines: Purpose of a Child Custody Evaluation

1. The primary purpose of the evaluation is to assess the best psychological interests of the child.
The primary consideration in a child custody evaluation is to assess the individual and family factors that affect the best psychological interests of the child. More specific questions may be raised by the court.

2. The child’s interests and well-being are paramount.
In a child custody evaluation, the child’s interests and well-being are paramount. Parents competing for custody, as well as others, may have legitimate concerns, but the child’s best interests must prevail.

3. The focus of the evaluation is on parenting capacity, the psychological and developmental needs of the child, and the resulting fit.
In considering psychological factors affecting the best interests of the child, the psychologist focuses on the parenting capacity of the prospective custodians in conjunction with the psychological and developmental needs of each involved child. This involves (a) an assessment of the adults’ capacities for parenting, including whatever knowledge, attributes, skills, and abilities, or lack thereof, are present; (b) an assessment of the psychological functioning and developmental needs of each child and of the wishes of each child where appropriate; and (c) an assessment of the functional ability of each parent to meet these needs, including an evaluation of the interaction between each adult and child.

The values of the parents relevant to parenting, ability to plan for the child’s future needs, capacity to provide a stable and loving home, and any potential for inappropriate behavior or misconduct that might negatively influence the child also are considered. Psychopathology may be relevant to such an assessment, insofar as it has impact on the child or the ability to parent, but it is not the primary focus.

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Do unmarried fathers have the right to stop the move away of a child that they love, and with whom they have had a strong parenting relationship? The Illinois Appellate case of Fischer v. Waldrop illustrates the principle that a father, though he be unmarried to the mother of his child, may enjoin the move-away of a child to another state.

In 2003, the Illinois legislature amended the Parentage Act to specifically address removal. In particular, the legislature amended section 14 of the Parentage Act, pertaining to judgments, to provide that “[i]n determining custody, joint custody, removal, or visitation, the court shall apply the relevant standards of the [Marriage Act], including [s]ection 609.” 2003). Finally, the legislature added a new section, which provides, in relevant part:

“(a) In any action brought under this Act for the initial determination of custody or visitation of a child or for modification of a prior custody or visitation order, the court, upon application of any party, may enjoin a party having physical possession or custody of a child from temporarily or permanently removing the child from Illinois pending the adjudication of the issues of custody and visitation. When deciding whether to enjoin removal of a child, the [c]ourt shall consider the following factors, including, but not limited to:

(1) the extent of previous involvement with the child by the party seeking to enjoin removal;

(2) the likelihood that parentage will be established; and
(3) the impact on the financial, physical, and emotional health of the party being enjoined from removing the child.

(b) Injunctive relief under this Act shall be governed by the relevant provisions of the Code of Civil Procedure

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Despite the recommmendations of two custody evaluators that a DuPage County father have the primary residential custody of a two year old daughter, the court awarded custody to the mother, based in part, on the fact that the mother and child shared an African-American heritage.

The question arises in all custody cases as to what is in the developmental best interest of a child. Which parent, the court must find, is best suited to provide a parenting environment to meet the developmental best interests of the child? Most courts will, on petition of the parties, appoint a specially trained psychologist to evaluate the factors that the court must consider in an award of custody. Section 602(a) of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/602(a) (West 2004)) provides that the court shall consider all relevant factors, including:

“(1) the wishes of the child’s parent or parents as to his custody; (2) the wishes of the child as to his custodian; (3) the interaction and interrelationship of the child with his parent or parents, his siblings and any other person who may significantly affect the child’s best interest; (4) the child’s adjustment to his home, school and community; (5) the mental and physical health of all individuals involved; (6) the physical violence or threat of physical violence by the child’s potential custodian, whether directed against the child or directed against another person; (7) the occurrence of ongoing abuse ***; and (8) the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child”

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