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Child Custody

Child Custody Decisions

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One of the most critical issues in family law is when child custody is involved.  Parents may be going through divorce or separation and the relationship with the other parent isn’t good.  Fathers may feel that they have no child custody rights, especially if they are not even on the child’s birth certificate.  At the moment of separation, parents are concerned with who the child will live with, how can parents share child custody if their relationship isn’t really working out. Will both parents have the right to decide the important child custody issues such as where the child will go to school, what aftercare activities the child will participate in, etc.  In general, how the child will be raised.  This may require a parenting plan that is in the best interest of the child.  Traditionally courts have determined that the best interest of the child is to have both parents equally in the life of the child.  Sometimes however, the court may determine, based on circumstances, that sole parental custody is in the best interest of the child.

To top it off, child custody has the involvement of other family members such as the grandparents, who also care for the child and in many cases act as the daily care centers for the children.  In turmoil a parent may even consider granting child custody or at least temporary child custody to the grandparents till they can get back on their feet. The situation as it relates to child custody may not always be permanent, but in many cases child custody has a temporary solution, you just need to know what papers to file with the court and what to tell the judge when you are in front of him.

Answers to these questions are at the root of most custody situations, but for parents and others without significant experience with child custody and the legal system, a fundamental concern is: How are custody decisions made? Following is a brief discussion in response to that question.

Divorce and Child Custody Decisions

Divorce always creates a challenge in child custody issues. In most cases parents are worried about how child custody and visitation will work out, especially when the parents are arguing and it appears that one or both are trying to manipulate the child during this critical moment. Divorce has other issues such as dividing marital property, child support and how that will affect the parents’ monthly income and ability to pay rent or a second mortgage on a new home. Child custody can usually be agreed upon by the parents, but unfortunately in many cases will need help from a mediator, or even an attorney who can help the parents get through child custody.

Parents can normally reach an agreement on child custody and visitation, as a result of some sort of informal agreement between them, or some out of court alterative resolution such as mediation or collaborative law.  Courts make determination and decisions on child custody proceedings always taking into account the best interest of the child.

Unmarried Parents and Child Custody

Today, many of the parents are unmarried and both worry about the wellbeing of the child as it relates to having a mother of a father involved in the child’s life.  Who will get physical sole custody? Who will be awarded child support?  How much child support will one parent get?  How do you determine child support?  Who has more rights in child support, the mother or the father?  What does a father have to do to prove he is the real father?  How does the father petition the court to make sure he is recognized as the true father?  When should he do it? Will the father get visitation of the child during the proceedings?  So many questions are unanswered that the process seems daunting. Child custody with so much going on, especially if you are not the proven father, appears to be a mess.

A family court judge will decide what is in the best interest of the child, just like they do for divorced couples.  The first step is for the father to prove paternity.  Yes, being on the birth certificate creates the presumption that the father is the true legal father, but without petitioning the court, a father who is unmarried may find it an uphill battle to get child visitation rights. That being said, the child custody and visitation rights of an unmarried couple may be easier than those couples who go through divorce because there is no marital property and other divorce-related issues.

If unmarried parents cannot reach an amicable agreement, then the family court judge will make his determination in the best interest of the child. The judge will issue a court order that while it can be modified, cannot be broken without legal consequences.  While this may be difficult for parents to understand, it does give parents in child custody proceedings a little normalcy and sets a standard for child custody.  The judge will also make the decision on who the child’s primary caregiver is during the child custody proceeding.

Non-Parental Child Custody Decisions

Sometimes, the grandparents or close friends need to step into action when the parents cannot afford to give proper child care to the child.  Relatives like grandparents, uncles, aunts, and even close family friends may be requested to take temporary custody or they may fight for permanent custody. Third party child custody is more difficult, but if parent’s consent, then it may be a viable solution, and the court, depending on the state, may allow this as a child custody option.

Attorney consultations are free, take advantage of it.

Child custody battles take a toll on all parents, and sifting through online information is challenging at best.  Once you get to the court you will find a sea of forms that are part of child custody you never thought you would be required to fill in but are.  At The Miami Law Firm you can get a free consultation and the Law Firm will work with you on setting a payment plan you can afford where the child custody attorneys can start your legal proceeding from day one without needing all the money up front.

Terminating Parent Rights While in Prison

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One of the ways a parent’s rights may be terminated is when the parent of a child is incarcerated and either:

1. The period of time for which the parent is expected to be incarcerated will constitute a significant portion of the child’s minority. The period of time begins on the date that the parent enters into incarceration;

2. The incarcerated parent has been determined by the court to be a violent career criminal or a sexual predator or has been convicted of first degree or second degree murder, a sexual battery that constitutes a capital, life, or first degree felony; or

3. The court determines by clear and convincing evidence that continuing the parental relationship with the incarcerated parent would be harmful to the child and terminating parental rights of the incarcerated parent is in the best interest of the child.

When determining harm, the court shall consider the following factors:

a. The age of the child.
b. The relationship between the child and the parent.
c. The nature of the parent’s current and past provision for the child’s developmental, cognitive, psychological, and physical needs.
d. The parent’s history of criminal behavior.
e. Any other factor the court deems relevant.

Call us today for a free consultation at 786-454-2411.

Child Custody Basics

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There are several possible ways to divide the child’s time among the parents. The type of child custody to choose depends on the following criteria:

  • Age
  • Attitude
  • Temperament of the child
  • Length of each period of custody
  • Disruptive influences created by alternating custody
  • Geographical distance the child must travel
  • Parents’ attitudes toward each other.

The court will traditionally look out for the best interest of the child.  In the time sharing arrangement, the child will spend a block of time with each parent. If one parent has custody in his or her residence, the other will generally have access similar to visitation, so that you can see your child even though one parent has sole custody.

     What happens in joint custody if both parents are in different states?

Some parents split a year—six months each. More common however is that the parents split custody around the school year, 9 months with one and 3 months with the other.

What about alternating schools in child custody?

Some courts shy away from granting this because they believe that a child knowing that he will alternate schools will be less likely to establish strong friendships with other children, to participate in school activities and sports, and to gain a meaningful and useful education.

With younger children, such as those under 6 years of age, alternating nights, weeks or months may not be in the best interest of the child.

Want to know more?  Call for a free consultation today.  786.454.2411.