Thursday, June 22, 2017
       
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CHILDREN, CUSTODY AND VISITATION

CHILDREN

Divorce proceedings are very emotional, and parties sometimes intentionallyor unintentionally use children to seek revenge.  If you are doing this, this firm will not represent you.  Try to keep the children out of this.  If they must be involved prepare them properly without poisoning their minds about your spouse.  Obtain professional advice if possible.  Tell the children that the divorce is not their fault and that they will still have both parents.  Do not use the children to hurt your spouse, it will only hurt the children and it may very well alienate them from you.  Do not give them the gory details.  If you do, you can't take it back and most likely you will live to regret it.

Discuss support and property division with your spouse.  DO NOT USE THE CHILDREN AS MESSENGERS.  Make a special effort to spend time with your children during this difficult period.  Give them your full attention.  Reassure them that both parents love them, even if you do not believe it.  Give them extra love now - they need it.

CUSTODY

Although there is no prim-facie right to the custody of a child in the father or the mother, the mother because our society has looked to women to provide care for children this cultural fact generally give an advantage to the mother in custody litigation.  Joint legal and/or physical custody can be awarded and is more common today and if fact the judge is required to consider it if both parents are fit and proper.  It is important that the definition of such terms as "joint legal" and "joint physical" custody be clear or problems can arise.  Disagreement over custody is almost guaranteed to put you right in the middle of a bitterly contested and expensive divorce.  Custody cases are the cruelest and most destructive type of litigation.  Be sure that the children would be significantly better off with you than the other parent before you get involved in a custody fight.  Custody cases are expensive in both emotional cost and legal cost.  The damage caused by wining a custody case is great; the damage of losing is terrifying.

The legal standard in deciding who will get custody is what is in the best interest of the children.  Every judge sees it differently.  If the judge's father abandoned his family and the judge's mother slaved day and night to help her son through law school, then the judge will have a hard time understanding why a father should have custody.  Most judges are  moderate and will generally look to what the parents have done in raising the children prior to the divorce.

There are also certain doctrines and presumptions, which aid the court in determining the best interest of the child;

*  Tender years - children of tender years, below four (4) or five (5) years of age generally should be with their mother.

*  Parental rights - Parents must be shown to be unfit before the children will be given to someone else, such as grandparents.  However, grandparents may be able to get visitation rights.

*  Continuity of Placement - If children are doing well where they are, do not mess things up by moving them.

*  Children's Preference - By law, a judge must consider who a child wants to live with if the child is at least 11 years of age.  The Judge may talk to the child in private and may talk to a child younger than eleven (11) if the judge wants to do so.  However, the judge is bound by what a child fourteen (14) or over wants, unless the parent selected is not a competent parent.  For example, a fourteen (14) year old girl would not be allowed to select a father who was molesting her.  The judge is not bound by what the child under fourteen (14) wants.

*  Other - The judge can consider the custodian's age, health, wealth, where other brothers and sisters live, religious beliefs, conduct, type of home, psychological evaluations, the child's school performance, or anything the judge considers important.

If there is custody litigation, you must be able to show the Judge that the child is better off with you.  Photographs of you and your child having a good time doing things together are useful evidence.  This is a good time to subscribe to "Parents" magazine or other such publications.  Buy some books on children, parenting, and getting children through divorce.  Attend seminars and keep the brochures and literature.  The point is to do these things for your child and yourself, not just to impress the judge.  In Cobb County, both parents are required to attend the divorcing parents seminar before a final divorce can be granted.  (Call 770-528-1809 for seminar information.)

In case either parent changes their residence address they must give notice of such change 30 days prior to the anticipated change to the other parent.

VISITATION

If the mother and father can agree on visitation, the judge will usually approve your plan. In fact, most agreements are predicated on the basis that if the parents agree visitation is at any time agreeable. Only those times when an agreement is not available does the judge's order provide for specific visitation.  A typical pattern is alternating weekends, a few weeks in the summer, Christmas and alternate holidays.  If the parties live far apart, this will not work.  In those cases, visitation periods are fewer, but longer.  If they are very far apart, you must deal with who will provide or pay for transportation.  The courts and attorneys encourage visitation except in extraordinary circumstances.

Sometimes when parents fight about visitation, they are really upset about something else that they do not believe they can fight about.  It may be because they feel anger toward the other spouse for leaving or it may be that they feel they gave up too much in the divorce agreement, but for whatever reason, they are involved in an argument about the children.  When the mother says to the father, "I don't want you to visit at this time," that immediately becomes the time that the father wants to visit with the child.  But when the primary parent wants the other to visit he or she won't because he thinks it is being forceed.  If you do not want the other parent to visit, the best thing to do is use reverse psycology and invite visitation.  Remember its a free babysitter and you deserve some free time.  Also, you might remember that the parent who visits regularly tends to be the parent that pays support regularly.

Even if your situation is that the non-custodial parent is a jerk, and you do not think it is the best thing in the world for the kids to be around the jerk, you still need to encourage visitation.  The children need to know that the non-custodial parent is a jerk, and the best way for them to know it is to let them see it with their own eyes on a regular basis.  Withholding visitation from the children puts you against the child's imagination.  If the children do not see the jerk, they soon forget what a jerk he or she is and begin to blame you for the non-custodial parent leaving.  The children's imagination is then on the other parent's side.  The children dream about a perfect parent, and since they do not see the absent parent they do not see any flaws in that parent.  You might win against many things, but you will not win against your children's imagination.  If you make derogatory remarks about your spouse in front of the children they will hold it against you, so don't make such remarks even if they are true.

In Georgia grandparents can petition the court for visitation.  This is controversial, but the Georgia Supreme (in a close 4 to 3 decision) said it is okay, if a high standard of proof is met.  If you expect this issue in your case, let your attorney know right away.