Court Issues Order on Attorney Standards for Arizona Child Representation
The Administrative Order No. 2011-16, dealing with Duties and Responsibilities of Appointed Counsel and Guardians Ad Litem. The Order became effective February 1, 2011, and is applicable to all appointed counsel and guardians ad litem on and after the effective date. has adopted
The Court further ordered:
that any attorney currently appointed to represent a child in any dependency matter in the State is exempt from the introductory six (6) hours of court approved training. All attorneys handling dependency matters, including those currently assigned cases, shall comply with the continuing training requirements outlined in the Duties and Responsibilities of Appointed Counsel and Guardians Ad Litem.
After DNA Test On Exhumed Remains, Bobby Fischer Cleared In Paternity Case
In June, the gave government officials permission to exhume the remains of Bobby Fischer, former , to determine if he was the father of Jinky Young, a nine-year-old Filipino girl. The paternity case is now over since the DNA report excluded Bobby Fischer from being the father.
Paternity cases are often filed as a result of disputes between uwed mothers and fathers. However, as the Fischer case demonstrates, other issues such as inheritance rights can survive the death of either parent and become the subject of litigation post mortem.
Children with Special Needs
Children with special needs further complicate child custody and care issues during and after a divorce. As a result, your family law attorney needs to know what parents rights are under the Individuals with Disabilities Act (IDEA) and with the Section 504 (504) in the when advising their clients and when crafting custody agreements.
The following article “Impact of Divorce Agreements on Special Education Decision-Making” highlights some issues and concerns to think about when one of your client’s children are suspected of having or are diagnosed with a learning or emotional disability.
Arizona Child Custody Statutes – Best Interests of the Child
When there are children involved in divorce cases in Arizona (or paternity cases), many questions arise as to how child custody is resolved. Arizona Statutes deal with child custody issues in Arizona divorce and paternity cases and are a great first place to start.
Some definitions need to be known and understood. For instance, with respect to Arizona child custody, “Joint legal custody” means the condition under which both parents share legal custody. In this situation, “both parents share legal custody and neither parent’s rights are superior, except with respect to specified decisions set forth by the court or the parents in a final judgment or order.” Normally, the major decisions regarding a child involve medical, education and religion. Most other decisions made by a parent such as daily activities of the child, what the children eat and wear, etc. are made by the parent who has physical custody of the child at the time the decision needs to be made.
That brings us to “Joint physical custody“, which is defined as “the condition under which the physical residence of the child is shared by the parents in a manner that assures that the child has substantially equal time and contact with both parents.” What “substantially equally time and contact with both parents” is, of course, where many problems may arise as both parents may have very different views on this subject.
In an Arizona divorce or paternity case, if mother and father are unable to reach an agreement as to what custody arrangements should be put in place for their child, Arizona statute authorizes the court to award when deciding child custody that custody be either “sole” or “joint”. Importantly, there is no presumption in favor of one custody arrangement over the other. And, “the court in determing custody shall not prefer a parent as custodian because of that parent’s sex”. So, the sex of the parent when determing child custody in Arizona should not be a factor in the court’s decision.
Many questions often arise about “what is in the child’s best interests” in Arizona custody cases. The divorce or paternity case judge considers the following: 1. the wishes of the child’s parents; 2. the wishes of the child; 3. the interaction and interrelationship of the child with the parents, the child’s siblings and any others who may significantly affect the child’s best interests; 4. the child’s adjustment to home, school and community; 5. the mental and physical health of all individuals involved; 6. which parent is more likely to allow the child frequent and meaningful continuing contact with the other parent; 7. whether one parent, both parents or neither parent has provided primary care of the child; 8. the nature and extent of coercion or duress used by a parent in obtaining an agreement regarding custody; and 9. whether either parent was convicted of an act of false reporting of child abuse.
Of course, this is only the basics. When dealing with Arizona child custody disputes each case is different because no two situations are exactly the same. Facts always differ. If you have any questions regarding Arizona child custody in the context of an Arizona divorce or paternity case, contact Gregory A. Riebesehl at Riebesehl Family Law Offices at (602) 621-0779.
Judge Sides with Kelly Rutherford in Custody Issue
By Ken Lee
Originally posted Friday January 23, 2009 01:40 PM EST
Kelly Rutherford will be allowed to take her son Hermes, 2, to New York until the end of March, a judge in Los Angeles ruled Friday.
Judge Michael Levanas stated that to leave Hermes in L.A. with Rutherford’s estranged husband, Daniel Giersch, would be removing the child from his mother “cold turkey,” which could be detrimental to the boy.
In making his ruling, the judge stated that he had to consider “the plan least likely to cause trauma to [Hermes].” If Rutherford went to New York without her son, “the minor would have his first multiple nights away [from his mom],” said Judge Levanas.
But the judge had praise for both Rutherford, 40, and Giersch, 34, who remained composed throughout the hearing. “I can’t find fault with either of you.” He complimented Giersch, saying, “I applaud you [for your efforts in this case]. I want you to see [Hermes] every single day” in New York.
Rutherford’s lawyer previously stated that the actress planned to leave for New York on Sunday due to work obligations.
The next hearing in the couple’s case has been set for April.
Child Custody and Religion
When parents of different faiths separate, how do courts decide whose religion the children will follow?
When parents of different faiths separate, they don’t always agree on whose religion the children will follow. With increasing numbers of interfaith marriages and high divorce rates, this topic has recently been argued in courtrooms across the country. The results? A hodgepodge of decisions that lack national uniformity, leaving parents at the mercy of a court’s discretion.
The Rights of Parents vs. The Best Interests of the Child
When called upon to resolve disputes between separated or divorced parents who disagree about the religious upbringing of their children, courts attempt to balance competing concerns. On one hand, courts must protect an individual parent’s First Amendment right to the free exercise of religion as well as the right to raise his or her child as he or she wishes, as long as those parenting choices do not endanger the welfare of the child. On the other hand, when making decisions about custody and visitation arrangements, courts must protect the best interests of the child.
When one parent complains that the other parent’s religious activities are not in the best interests of the child, courts have the difficult task of deciding whether it is necessary to encroach upon the other parent’s First Amendment and parenting rights by limiting religious activities.
The Law in Religion and Custody Cases
Because the U.S. Supreme Court has not yet decided a case involving religious upbringing and custody, there is no uniform national law. Instead, the law varies from state to state. Most state courts apply one of the following three legal standards when deciding these cases:
- Actual or substantial harm.The court will restrict a parent’s First Amendment or parenting rights only if that parent’s religious practices cause actual or substantial harm to the child.
- Risk of harm.The court may restrict a parent’s First Amendment or parenting rights if that parent’s religious practices might harm the child in the future.
- No harm required.The custodial parent’s right to influence the religious upbringing of her children is considered exclusive. If the custodial parent objects to the noncustodial parent’s religious activities, that’s the end of it: The court will defer to the custodial parent’s wishes.
The Actual or Substantial Harm Standard
Courts applying this standard will restrict a parent’s religious activities only if the other parent proves that those activities cause substantial or actual harm to the child. This standard is used in many states, including California, Colorado, Florida, Idaho, Indiana, Iowa, Maryland, Massachusetts, Montana, Nebraska, New Jersey, New York, North Dakota, Ohio, Rhode Island, Utah, Vermont, and Washington.
The cases discussed in this section provide examples of how courts following the actual or substantial harm standard may rule in various situations. Keep in mind that these decisions do not have to be followed by courts in other states or, sometimes, in the same state that the decision came from.
Munoz v. Munoz: Exposure to two religions does not cause harm
In Munoz v. Munoz, 79 Wash. 2d 810, 489 P.2d 1133 (1971), the state of Washington’s highest court ruled that exposing children to two different religions (Mormon and Catholic) is not harmful in and of itself and therefore does not justify restricting a parent’s religious activities.
Pater v. Pater: Restrictive religious customs are not necessarily harmful
In Pater v. Pater, 63 Ohio St. 3d 393, 588 N.E. 2d 794 (1992), Ohio’s Supreme Court ruled that religious customs (Jehovah’s Witness in this case) that restrict a child’s social activities — even if they separate him or her from peers or go against community standards — are not enough to justify court intervention unless the practices harm the mental or physical health of the child.
Kendall v. Kendall: Physical acts and verbal threats justify religious restrictions
In Kendall v. Kendall, 426 Mass. 238, 687 N.E.2d 1228 (1997), the highest court in Massachusetts ruled that a father’s verbal threats and physical acts toward his children, which were designed to interfere with their Orthodox Jewish religious practices, were enough to warrant restrictions on his First Amendment and parenting rights. (A court-appointed doctor found that the father’s actions — cutting off his son’s payes (the curls customarily worn by Orthodox Jewish males) and telling his children that anyone outside the fundamentalist faith was “damned to go to hell”? –caused mental and emotional harm to the children. The court barred the father from sharing his religious beliefs, praying, or studying the Bible with his children if those activities would cause the kids to reject their mother or their Jewish identity or cause them emotional distress.)
The Risk of Harm Standard
In a handful of states, including Minnesota, Montana, North Carolina, and Pennsylvania, courts have used a different legal standard to decide cases where religion and custody collide. In these courts, a parent seeking to curtail the other parent’s religious activities need not demonstrate actual or substantial harm to the child, but only that there is a risk that the child might be harmed in the future.
In MacLagan v. Klein, 123 N.C. App. 557, 473 S.E. 2d 778 (1996), a North Carolina court ruled that, since a young girl had identified as Jewish since age three, exposure to the Methodist religion might interfere with her Jewish identity and adversely affect her emotional well-being. Based on its concern that the girl might suffer harm in the future, the court gave the Jewish father sole control over the child’s religious education.
The No Harm Required Standard
In a few states, including Arkansas and Wisconsin, courts do not apply the actual or substantial harm standard or the risk of harm standard. Instead, these courts use a simple rule: The parent with sole legal custody has exclusive control over the child’s religious education. If a dispute arises over religious upbringing, the court will curtail the noncustodial parent’s religious activities and enforce the custodial parent’s desires. These courts reason that interfering with the noncustodial parent’s religious activities does not violate First Amendment rights, because the restrictions apply only to the time period in which the parent is with the children. At all other times, the parent is free to practice his or her religion as he or she chooses.
When parents have joint legal custody (which a majority of states now award unless it would harm the child), teachings from both religions may be allowed.
Johns v. Johns: Father forced to bring children to church during visitation
In Johns v. Johns, 53 Ark. App. 90, 918 S.W. 2d 728 (1996), an Arkansas court deferred to the custodial parent’s wishes. In this case, the father complained that the mother, who had legal and physical custody of the children, was preventing him from visiting with his kids. The mother said she was refusing visits because he didn’t take the kids to church and Sunday school. The trial court ordered Mr. Johns to bring the kids to church. The father appealed. The appellate court agreed with the trial court, holding that because the mother was the custodial parent, her desire that the kids attend church each week was paramount.
Zummo v. Zummo: Joint legal custody equals two religions
In Zummo v. Zummo, 394 Pa. Super. 30, 574 A.2d 1130 (1990), the divorcing couple’s dispute about the religious upbringing of their children was resolved by ordering the father to take the children to Jewish services (the mother’s religion) and also allowing him to bring the children to Catholic services (his religion). The court believed that, because the couple shared joint legal custody, they each had the right to instill religious beliefs in their kids.
Some States Follow More Than One Standard
In some states, like Montana and Pennsylvania, one court will use the actual harm standard and another may use the risk of harm standard or the no harm required standard. Because the U.S. Supreme Court has not ruled in this area of the law, state courts do not have to adhere to any one standard unless the highest court in the state (usually called that state’s supreme court) has adopted a standard.
Parenting Agreements Regarding Children and Religion
When deciding a dispute about religious upbringing, courts might consider any oral or written parenting agreements that the couple previously made about how to handle the children’s religious upbringing. However, if you haven’t been able to stick to the agreement yourselves, a court won’t necessarily enforce it for you. In fact, most courts reject agreements about which religion the children will follow when their folks separate. Here are the reasons they commonly use.The agreement is vague. Often, couples make such agreements informally, prior to marriage, without considering a future divorce or separation. As a result, the agreements are vague. For example, many agreements fail to specify the degree of religious training (how often the child will attend services or whether the child will attend additional classes, Bible studies, and other church-affiliated programs) or whether the children will be permitted to attend the other parent’s place of worship during special events.
This agreement is oral. The parties have different versions of the agreement and may disagree about the terms of the original agreement. A court will not enforce an agreement if it cannot determine what the parents originally agreed to.
The agreement is too old. Courts often hesitate to bind either parent to an agreement that was made many years in the past.
Courts don’t want to curtail First Amendment and parenting rights. As previously mentioned, courts are loathe to tramp on an individual’s First Amendment or parenting rights. Nor do courts want to get involved in ongoing supervision of parents’ compliance with an agreement; this can look like excessive government entanglement in private affairs.
Not all courts dismiss religious upbringing agreements, however. For example, in September 1999, an Indiana court ruled that the terms of a divorce settlement agreement regarding the religious upbringing of the children was binding on both parties. (Wilson v. Wilson, 716 N.E. 2d 486 (Ind. App. 1999).)
The short of all this is that if you enter into an agreement about the religious upbringing of your children, it stands the best chance of being enforced by a court if it is in writing, very detailed, and no more than a couple of years old.
What Does This Mean for You?
Because each state court can rule according to its own law, and the states profiled in this article can reverse their positions at any time, you may be better off settling your differences outside the courtroom.
However, if you are afraid that your child may be harmed by your ex’s religious practices, consider taking your child to a mental health professional. By doing so you’ll either calm your concerns or have real evidence that may help you to renegotiate with your ex. And, if all else fails, you can use the evidence in court.
If you must resort to the court system to resolve a dispute regarding your children’s religious upbringing, keep in mind the following:
- You stand the best chance of obtaining a decision in your favor if you already have either sole or joint legal custody.
- Regardless of which legal standard your state court follows, using strong language or actions that offend the other parent may result in court restrictions on your religious activities or even cause a court to award sole custody of your children to your ex.
Copyright © 2006 Nolo
Types of Custody
Learn the difference between legal custody, physical custody, sole custody, and joint custody.
Legal custody of a child means having the right and the obligation to make decisions about a child’s upbringing. A parent with legal custody can make decisions about schooling, religion, and medical care, for example. In many states, courts regularly award joint legal custody, which means that the decision making is shared by both parents.
If you share joint legal custody with the other parent and you exclude him or her from the decision-making process, your ex can take you back to court and ask the judge to enforce the custody agreement. You won’t get fined or go to jail, but it will probably be embarrassing and cause more friction between the two of you — which may harm the children. What’s more, if you’re represented by an attorney, it’s sure to be expensive.
If you think you have circumstances that make it impossible to share joint legal custody (the other parent won’t communicate with you about important matters or is abusive), you can go to court and ask for a change in custody so that you have sole legal custody. But, in many states, you will have to overcome a presumption that joint legal custody is preferable.
Physical custody means that a parent has the right to have a child live with him or her. Some states will award joint physical custody to both parents when the child spends significant amounts of time with both parents. Where the child lives primarily with one parent and has visitation with the other, generally the parent with whom the child primarily lives will have sole physical custody, with visitation to the other parent. Joint physical custody works best if parents live relatively near to each other, as it lessens the stress on children and allows them to maintain a somewhat normal routine.
One parent can have either sole legal custody or sole physical custody of a child. In most states, courts are moving away from awarding sole custody to one parent and toward enlarging the role a divorced father plays in his children’s lives. Even where courts do award sole physical custody , the parties often still share joint legal custody, and the noncustodial parent enjoys a generous visitation schedule. In that situation, the parents would make joint decisions about the child’s upbringing, but one parent would be deemed the primary physical caretaker, while the other parent would have visitation rights.
Courts generally won’t hesitate to award sole physical custody to one parent if the other parent is deemed unfit — for example, because of alcohol or drug dependency, a new partner who is unfit, or charges of child abuse or neglect.
It’s understandable that there may be animosity between you and your ex-spouse. But it’s best not to seek sole custody unless the other parent causes direct harm to the children. Even then, courts may simply allow supervised visitation, while still ordering joint legal custody.
Parents who don’t live together have joint custody (also called shared custody) when they share the decision-making responsibilities for, and/or physical control and custody of, their children. Joint custody can exist if the parents are divorced, separated, or no longer cohabiting, or even if they never lived together. Joint custody may be:
- joint legal custody
- joint physical custody (where the children spend a significant portion of time with each parent), or
- joint legal and physical custody.
- It is common for couples who share physical custody to also share legal custody, but not necessarily the other way around.
When parents share joint custody, usually they work out a schedule according to their work requirements and housing arrangements and the children’s needs. If the parents cannot agree on a schedule, the court will impose an arrangement. A common pattern is for children to split weeks between each parent’s house or apartment. Other joint physical custody arrangements include:
- alternating months, years, or six-month periods, or
- spending weekends and holidays with one parent, while spending weekdays with the other.
Joint custody has the advantages of assuring the children continuing contact and involvement with both parents. And it alleviates some of the burdens of parenting for each parent. There are, of course, disadvantages:
- Children must be shuttled around.
- Parental noncooperation or ill will can have seriously negative effects on children.
- Maintaining two homes for the children can be expensive.
If you do have a joint custody arrangement, maintain detailed and organized financial records of your expenses. Keep receipts for groceries, school and after-school activities, clothing, and medical care. At some point your ex may claim she or he has spent more money on the kids than you have, and a judge will appreciate your detailed records.
Bird’s Nest Custody
Bird’s nest custody is a joint custody arrangement where the children remain in the family home and the parents take turns moving in and out, spending their out time in separate housing of their own.
Copyright © 2006 Nolo
Practical steps to help you create a workable parenting plan with your child’s other parent.
If you are divorcing and you have kids, the most important task ahead of you is to make an agreement with your spouse about custody and visitation. No matter how angry you may be or how difficult your communication with your spouse is, put your children first and do everything you can to make decisions together with your spouse, rather than letting a judge or court evaluator make them for you. This means keeping an open mind and getting whatever professional help you might need — from a therapist, a custody evaluator, or a family mediator.
What Is a Parenting Agreement?
A written parenting agreement or parenting plan is helpful in setting the stage for a successful post-divorce relationship. Just the process of creating an agreement allows you and your future ex-spouse to discuss most or all of the issues that will come up during your children’s lives. In addition, if, after you create and sign an agreement, the other parent continuously breaks the agreement, you will have proof that he or she originally agreed to the agreement in writing.
Factors you should consider in writing your agreement include:
- custody and living arrangements
- financial issues
- medical care
- religious training
Before you try to negotiate with the other parent or seek the help of any professional in developing a parenting agreement, it makes sense to collect and review all relevant documents. If you’re in the midst of a divorce, or if you’ve already been involved in custody proceedings, these might include:
- court documents you have filed or received, such as a “summons,” “petition,” “complaint,” “response,” “answer,” “declaration,” or “affidavit”
- correspondence from an attorney, counselor, mediator, or court official regarding your separation, divorce, paternity, child support, custody, or visitation
- court orders regarding a legal separation, divorce, paternity declaration, or award of custody
- previously mediated, arbitrated or negotiated agreements between you and the other parent
- documents dissolving your religious marriage, or describing your marital status and your options according to your religious denomination, and
- reports, letters, or evaluations from school officials, counselors, therapists, or others who have an insight into your children.
You won’t necessarily need all of these documents to develop a parenting plan. Nevertheless, having them can help expedite matters, especially if you are going through a legal separation or divorce. For example, if you or the other parent have already initiated a court proceeding, you may have a deadline for submitting your parenting agreement.
Carefully read the documents you gather. If you need help in finding or understanding any of them, an attorney, court clerk, paralegal, marriage counselor, or mediator might be useful. Some of these folks might also be able to help you work with your spouse.
Copyright © 2006 Nolo
Grandparent and Caretaker Visitation Rights
Learn how child visitation laws affect grandparents’, stepparents’, and caretakers’ visitation rights.
Grandparents, stepparents, and other caretakers often form deep and loving attachments with the children in their lives. Yet when death, divorce, or estrangement tears families apart, these caretakers may find themselves without any legal right to maintain contact with the children they love.
Child Visitation Laws
All 50 states currently have some type of “grandparent visitation” statute through which grandparents and sometimes others (foster parents and stepparents, for example) can ask a court to grant them the legal right to maintain their relationships with loved children. But state laws vary greatly when it comes to the crucial details, such as who can visit and under what circumstances.
Approximately 20 states have “restrictive” visitation statutes, meaning that generally only grandparents can get a court order for visitation — and only if the child’s parents are divorcing or if one or both parents have died. However, most states have more permissive visitation laws that allow courts to consider a visitation request even without the death of a parent or the dissolution of the family, so long as visitation would serve the best interests of the child. Some states allow caretaking adults besides grandparents to make such a petition.
Both restrictive and permissive visitation statutes have been challenged in court by parents who argue that the laws are an infringement on parents’ rights to raise their children as they see fit. Courts have made contradictory rulings.
The U.S. Supreme Court Decision
In 2000, the U.S. Supreme Court tackled this critical problem of grandparent visitation rights. In the case of Troxel v. Granville, 530 U.S. 57 (2000), the Court reviewed a state court case from Washington State that struck down a permissive grandparent-visitation statute. The Supreme Court agreed that parents have a fundamental right to make decisions about raising their children, but it did not agree that the permissive visitation statute was unconstitutional nor that allowing a nonparent to petition for visitation rights would amount to an assault on the integrity of the family unit.
However, the Supreme Court did say that the lower court applied the statute incorrectly. because it presumed that the grandparents’ request for additional visitation was in the children’s best interests, rather than presuming that the parent was acting in the best interests of her children in refusing the grandparents more than brief visits. This led the lower court judge to conclude that visitation should be granted unless the mother could prove that the additional visits would have an adverse impact on the children. The Supreme Court thought that this approach did not adequately protect a parent’s fundamental right to make decisions for her children.
How the Troxel Decision Affects Other States
Many states have permissive visitation laws similar to Washington’s. These states don’t see grandparent or caretaker visitation as a severe restriction on the right of parents to control the upbringing of their children. Instead, they classify visitation as only a slight burden on that right. Therefore, the states need only justify the burden with a “rational” reason. Preserving the right of children to maintain strong bonds with their grandparents generally qualifies as such a reason.
In addition, the Court in Troxel appeared to be swayed by the fact that the mother was not seeking to cut off the grandparents’ visitation entirely. Instead, she chose to limit the visitation to one, nonovernight visit per month, plus some special holidays. If the mother had tried to bar the grandparents from visiting their grandchildren completely, it is possible that the Court would have reached a different conclusion.
The Supreme Court’s decision in Troxel is not the final word on grandparents’ visitation rights. It’s likely that parents will continue to challenge how permissive visitation statutes are applied in each case. Judges in these states will certainly be more careful to take parents’ wishes into account when resolving disputes.
What to Do
Grandparents, caretakers, or parents involved in a struggle about visitation can find out more information on their state’s current law by researching their state statutes from Nolo’s website (search for “grandparent visitation”).
Grandparents who face parental resistance to their contact with beloved grandchildren might consider requesting a mediation session with the children’s parents. (In fact, some state courts won’t consider your petition for visitation until the parties have attended mediation together.) Mediation means that you hire a neutral third party to help all of you create a legally binding agreement that everyone can respect and live with.
Copyright © 2006 Nolo
A lawsuit to determine the identity of the father of a child born outside of marriage, and to provide for the support of the child once the identity of the father has been determined.
Copyright © 2005 Nolo
How can I keep custody of my daughter when her father has a criminal record?
My daughter is almost seven months old. Her father will soon be 20, but he acts like he is 12. He’s used drugs and has a criminal record (for assaults). Since my daughter’s birth, he has only visited her once a month and given her a total of $120. But now he says he wants custody! We haven’t been to court yet, but we have a mediation coming up. How can I make sure I keep my child?
The key to keeping custody of your child is: document, document, document. That is, get court, police, and other records for as much of the father’s misspent life as you can. You’ll need these records whether you go to divorce court (you don’t mention whether you married him or not) or a paternity court (which handles custody and support for unmarried parents).
Can you just waltz in and get a copy of someone’s police record? Not exactly. Police and courts have different requirements for giving someone in your position records of arrests and crimes. Try going to the places where you suspect this guy has been arrested or brought to court. Look for the records office, hang out in the back of the lobby, and watch the clerks until you figure out which one is the most sympathetic. Then explain your predicament and ask what the clerk can give you to take to court. They might, um, bend a few rules for you.
For criminal incidents where you can’t find an official record, see whether you can find a victim of one of the crimes to give you a handwritten note describing what happened. It doesn’t need to be in fancy legal language, but should give as much detail as possible. Just above the victim’s signature, he or she should write “I declare under penalty of perjury the foregoing is true and correct.” Don’t forget to add the date, too.
As far as the father’s visitation and (lack of) support, get a little pocket calendar and write down exactly when he visits and how much money he gives you. Give him a receipt for every payment to show that you are a responsible bookkeeper.
After you’ve collected these various records, make several copies to leave with the agencies you may have to deal with. (But try to hang on to an original and/or certified copy for future use.) Once you have these documents in your hands, you’ll feel much stronger when you get to mediation or court. After all, it won’t just be your word against the father’s.
Copyright 2005 Nolo
Temporary Orders in Family Court
What kind of temporary orders you can get in family court, and how.
Typical lawsuits take months, if not years, to make it to court. But if you’re getting divorced and need a quick decision from a judge about who gets the kids, the car, the money in the bank accounts, or the house — or if you need money for support right away — obviously you can’t wait that long.
You don’t have to. When couples separate, important issues are often resolved in a short hearing before a judge, instead of requiring a full-scale trial. These hearings are usually held in a special court, called family court in most states.
Even though these quick hearings are less formal than standard court hearings, their brevity means that you must be prepared and know exactly what you want. You may have only a few minutes to ask for it.
What Temporary Orders Are For
Let’s say a husband moves out, and the wife who’s left behind needs money to feed and shelter the children. Realizing that her children would starve long before a full trial could be held, she is desperate for help. She can go to court to request a temporary order from a judge, even though a formal divorce action has not yet been filed. Her request will be put on a fast track, and a hearing will be scheduled within days or weeks.
Spouses can also ask a court to temporarily:
- restrain a spouse from coming near or contacting the other (or, if he or she hasn’t already done so, to move out of the family home)
- establish child custody and visiting arrangements
- provide for spousal support (alimony) and/or child support payments
- order either spouse not to sell valuable assets, and/or
- give possession of the family home or car to one of the spouses.
These temporary orders are usually valid until the court holds another hearing or until the spouses arrive at their own settlement through negotiation or mediation.
When to Ask for a Temporary Order
When someone moves out of the house, one of you should go to court right away to quickly resolve any critical issues, such as spousal support. And, if the children will be staying with you, you should immediately file for custody and child support.
This accomplishes two things. First, you will be awarded the proper amount of child support and the court will acknowledge that you live with the children — often granting physical custody right off the bat. Second, your spouse cannot successfully claim that the children were kidnapped. This may sound extreme and unlike your future ex-spouse, but some people behave uncharacteristically when under duress and feeling threatened. And, if your future ex-spouse raises such a claim, the police or judge are usually obligated to hear her or him out. However, when you arrive with proof that you filed for custody and child support, the court will most likely dismiss a kidnapping claim.
How to Ask for a Temporary Order
To get a court order, you must prepare and file some paperwork. Fill-in-the-blank forms may be available free from the court or online. In a few states — unfortunately, not many — court personnel may be available to help with the paperwork. Some courts also have self-help law centers for family law cases, with forms and instructions for people representing themselves.
Here’s what you’ll probably need:
- A request for the court order you want. In some states, the forms you need are called an Application for Order to Show Cause (OSC) and an Order to Show Cause. An Order to Show Cause is a simple, fill-in-the-boxes legal form or short typed legal document that sets out what you are asking for — for example, a temporary child support order. It orders your spouse to come to court at a specific date and time and explain (“show cause”) why the court should not grant this request.
- A supporting declaration. This is a written statement, under penalty of perjury, setting out facts that legally justify the issuance of the temporary order — for example, the need for money to support your children. You can also submit declarations of other people who have first-hand knowledge of the facts.
- A proposed temporary order granting you the relief requested. This order will be signed by the family court judge if he or she grants the relief you request.
- A proof of service. This is a document that proves to the court that the papers have been properly delivered to your spouse. Your best bet is to send everything to your spouse by U.S. certified mail, if your state allows it — but some don’t. Check for instructions that come with the proof of service form; if there aren’t any you can check your own state’s law about serving papers.
In some courts, you won’t be allowed to file papers asking for a short hearing unless you’ve already filed for divorce. You can do both at the same time; it just means filling out even more forms to get your divorce started.
What to Expect at the Hearing
Your next step is to attend the court hearing where the judge will consider your request. In emergencies, the hearing can be held within a few days. In legal jargon this is often called an “order to show cause hearing.”
The hearing may be held in a courtroom or just in the judge’s office or “chambers.” The judge may listen to a few minutes of testimony from you, your spouse, and possibly other witnesses. Or the judge may only accept written evidence. To support a request for temporary child support, you will probably need to produce copies of an income and expense budget.
The judge will:
- review the details of the requests and the underlying facts
- possibly ask you some questions
- ask your spouse, if present, for his or her side of the story, and
- in child support cases, refer to state guidelines on recommended support, given factors such as each spouse’s income and who has primary custody of the kids.
Often this kind of hearing takes less than 20 minutes. At its conclusion, the judge will likely make an immediate ruling, usually either issuing the temporary order you requested or modifying it somewhat. If more information is needed, or your spouse wasn’t given the proper notice before the hearing, the judge may issue an order that is effective only until another hearing can be held. In any event, orders such as these stay in effect only until the divorce is finally settled, either through a trial or when you and your spouse reach an agreement.
Copyright 2005 Nolo