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Showing posts with label child custody. Show all posts
Showing posts with label child custody. Show all posts
I Want Joint Custody: Clay, Clinton & Marion County, Illinois
Lots of parents get worked up about custody labels. And that concern is completely understandable because it's your child. In fact, clients often start out saying, "I'm not agreeing to anything but sole custody." Most people believe that joint custody means that the parties have equal time with the children, and no one has to pay child support. But that simply isn't true. Custody labels are just that - labels. It is important to have the proper wording to identify and enforce your parental and visitation rights in your custody agreement.
Make no mistake: it is really difficult to understand that a court "awards" custody of YOUR child, the one you helped raise, and love, and protect with all your heart and soul, to either you, the other parent, or to you both, jointly. That concept is tough for anyone to swallow.
But, the truth is this: there are three levels of custody, and they can be mixed and matched.
Sole custody means that one parent has complete control over the children's education, medical treatment, and religion.
Joint custody means that both parents have the decision making power over the children's education, medical treatment, and religion.
Shared custody (rarely awarded) is when two parents live very near to each other, and the child lives equally at both residences. This means that each parent has a complete room, and all the amenities for the child, and that neither party receives child support.
As I said, this is RARELY awarded for two reasons: 1) the parents must be wealthy to afford the same amenities; and 2) the child will constantly be moving, and will never have one place to call home. That sounds great until you have a teenager who constantly "forgets" and leaves school books at the other parents' home, and realizes this, only at 10:00 p.m., when the other parent is likely already in bed. (And, yes, that really happens.)
Keep in mind that the courts can only award what is labeled "joint custody" or "shared custody" if the parents get along and communicate extremely well. If the two of you have filed motions, or testified that you do not get along, and cannot communicate easily, the court is prohibited from labeling your custody agreement "joint custody."
I have a number of clients who want "joint custody" but cannot talk with their ex without a fight. In that instance, there is no joint parenting agreement, but the terms of the "joint parenting" agreement are written into the Marital Settlement Agreement without using that label. In those cases, one parent is labeled the "primary custodial parent," or "residential custodial parent," while the other parent is labeled the "non-custodial parent."
In these instances, the Marital Settlement Agreement will simply state that one parent is the residential custodian or primary custodian, and identify the other parent as the non-custodial parent. This type of agreement contains all the details to address how the parties will share decisions about the child(ren)'s medical care, religious upbringing, and educational needs.
So, remember: it is just a label. So make sure that your Marital Settlement Agreement identifies and protects your legal rights as a parent. The Agreement must include all the details regarding custody and visitation specific to your case. This is very important to help reduce miscommunication (read: arguments) and confusion (read: police called because of fights over who gets the kid) while raising your child(ren) in two separate households.
Modifying A Custody Order Within Two Years: Marion County & Clinton County Illinois
If anyone wants to fight a custody order within two (2) years of its entry, Illinois requires the non-custodial parent to file a Petition to Modify Custody with an Affidavit alleging facts that give the court a "reason to belive" that the present environment seriously endangers the child or children. 750 ILCS 5/610(a).
The process to modify a custody order, even past the two year timeframe, is a battle, a difficult process, like trying to run the 100 yard dash, with hurdles. And, I don't use the term "battle" lightly. The non-custodial parent must not only give the court a reason to believe that the present environment seriously endangers the child or children, but also that a substantial change has occurred since the custody order, and the custodial parent is now unfit to have custody of the children. Department of Public Aid ex rel. Davis v. Brewer, 183 Ill.2d 540 (1998). It's not an easy task, and it's not one to start if you don't follow it through until the end.
The Illinois Supreme Court recently decided that any custody order must be challenged within 30 days of its entry. An Illinois Appellate Court held that a Motion to Reconsider a Custody Order must contain an Affidavit to give the court giving them a "reason to believe" that the present environment seriously endangers the child or children. In Re The Marriage of Marsh, 343 Ill.App.3d 1235 (4th Dist. 2003).
I've never heard of a Fourth Circuit court following this order. But, if they do, this would make it next to impossible to even fight a Motion to Reconsider/Vacate a Custody Order. This decision is only persuasive to the Fifth District, not controlling. That means the Fifth District Appellate Court does not have to follow it. But, the decision is out there, and it's a bad one. These kinds of decisions are why many Illinois divorce & custody attorneys say that you can find an Illinois court decision to support any position you want. Not a good reputation to have. Of course, a good reputation is not something Illinois has had for quite some time.
But, that's another post for another blog. Just remember: attempting to modify a custody order is tough row to hoe, and not for the faint-of-heart.
The process to modify a custody order, even past the two year timeframe, is a battle, a difficult process, like trying to run the 100 yard dash, with hurdles. And, I don't use the term "battle" lightly. The non-custodial parent must not only give the court a reason to believe that the present environment seriously endangers the child or children, but also that a substantial change has occurred since the custody order, and the custodial parent is now unfit to have custody of the children. Department of Public Aid ex rel. Davis v. Brewer, 183 Ill.2d 540 (1998). It's not an easy task, and it's not one to start if you don't follow it through until the end.
The Illinois Supreme Court recently decided that any custody order must be challenged within 30 days of its entry. An Illinois Appellate Court held that a Motion to Reconsider a Custody Order must contain an Affidavit to give the court giving them a "reason to believe" that the present environment seriously endangers the child or children. In Re The Marriage of Marsh, 343 Ill.App.3d 1235 (4th Dist. 2003).
I've never heard of a Fourth Circuit court following this order. But, if they do, this would make it next to impossible to even fight a Motion to Reconsider/Vacate a Custody Order. This decision is only persuasive to the Fifth District, not controlling. That means the Fifth District Appellate Court does not have to follow it. But, the decision is out there, and it's a bad one. These kinds of decisions are why many Illinois divorce & custody attorneys say that you can find an Illinois court decision to support any position you want. Not a good reputation to have. Of course, a good reputation is not something Illinois has had for quite some time.
But, that's another post for another blog. Just remember: attempting to modify a custody order is tough row to hoe, and not for the faint-of-heart.
Hearsay: Marion County & Jefferson County, Illinois
It's something everybody says they know about, but few people understand. The court defines hearsay as an "out of court statement offered for the truth of the matter asserted." What does that mean in plain language? It means that if you testify as to what someone else said, that other person must be available to testify as to what they said.
An example that is used all the time in divorce cases: if you testify about what your child told you about getting hit by your ex, your child will have to tell the judge about being hit. Why? Because you're not wanting the judge to believe you, you're wanting the judge to believe the child was hit. You're offering up a statement, made out of court, for the truth of that statement, i.e., the child was, in fact, hit. So, unless that child is available to testify to being hit, and to be asked questions by the other side, you won't be able to testify that your child was hit by your ex.
This is why lawyers HATE hearsay! This is one of the easiest, yet most difficult things we learn as trial attorneys. And so many lawyers and judges just don't understand the concept. Plus, there is no guarantee that we can convince a judge to understand and allow that testimony.
So, just understand the difficulties. See my earlier post about children testifying in court.
Custody Decisions & Appeal: Marion County & Richland County, Illinois
The Illinois Supreme Court has ruled that when a custody decision is rendered, there is no waiting until all the issues are deciding if you want to appeal. Before this ruling, if the parties were arguing over a variety of issues, including custody, no one was allowed to appeal until the final decision was resolved. That meant that parties could be forced to go along with the court's decision for weeks, months, or even years until everything had been addressed in the court.
Now, when the court hands down a custody decision, you have 30 days to decide if you're going to live with it for the next two years, or if you're going to file an appeal.
Now, when the court hands down a custody decision, you have 30 days to decide if you're going to live with it for the next two years, or if you're going to file an appeal.
Contempt of Court in a Divorce Case: Marion County & Fayette County, Illinois
A father in Chicago has been accused of violating a court order that limited him from exposing his child to any religion other than Judaism. What did he do? During a visitation, he took his 3 year old daughter to a Catholic Church. What is the big deal, you say? Well, he did not stop there. He had her baptized. Witnesses say that he did this just to upset his Jewish ex-wife because he was never a regular church-goer. See the story from ABC here.
Court orders are important. Judges hand out court orders, and like anyone else, they do not like it when their orders are not followed. And, when you do not follow a judge's order, you put yourself at risk of being held in contempt.
When a court hands down an order for you, if you violate the order, you can be penalized for it. Once the other side claims the order has been violated, they can file a Petition for Rule To Show Cause. They are, in effect, reminding the court what its order was, and how, in their opinion, you violated it. Then, the Court can issue the "Rule" which means you must go into court and show why or how you did not violate the Order, or if you did violate the Order, you did it with good reason. The burden of proof in a Rule To Show Cause hearing is "willful and contumnacious." In plain language, you did not violate the Order just because you could, but violated the order with good reason, and not on purpose, or to cause harm, or just to tick off the judge and the other side.
If the judge decides that you did this on purpose, with intent to harm, intimidate, anger, or harass the other side, you will be held in contempt. Then, a contempt hearing will be held, and the judge will decide if you will have to pay attorney's fees for violating the court order, and can also order you to spend some time in jail.
The bottom line is this: when you are involved in a divorce, act as though every move you make will be published on the local front page, and talked about in front of the judge. Why? Because it will be. Get in the habit of thinking before you act. Talk to your attorney regularly about plans for visitation, or dating someone. Be proactive, rather than reactive. Why? Because attorneys are expensive enough. The last thing you want to do is have to pay for your ex-spouse's attorney as well because you wanted to "make a point."
Court orders are important. Judges hand out court orders, and like anyone else, they do not like it when their orders are not followed. And, when you do not follow a judge's order, you put yourself at risk of being held in contempt.
When a court hands down an order for you, if you violate the order, you can be penalized for it. Once the other side claims the order has been violated, they can file a Petition for Rule To Show Cause. They are, in effect, reminding the court what its order was, and how, in their opinion, you violated it. Then, the Court can issue the "Rule" which means you must go into court and show why or how you did not violate the Order, or if you did violate the Order, you did it with good reason. The burden of proof in a Rule To Show Cause hearing is "willful and contumnacious." In plain language, you did not violate the Order just because you could, but violated the order with good reason, and not on purpose, or to cause harm, or just to tick off the judge and the other side.
If the judge decides that you did this on purpose, with intent to harm, intimidate, anger, or harass the other side, you will be held in contempt. Then, a contempt hearing will be held, and the judge will decide if you will have to pay attorney's fees for violating the court order, and can also order you to spend some time in jail.
The bottom line is this: when you are involved in a divorce, act as though every move you make will be published on the local front page, and talked about in front of the judge. Why? Because it will be. Get in the habit of thinking before you act. Talk to your attorney regularly about plans for visitation, or dating someone. Be proactive, rather than reactive. Why? Because attorneys are expensive enough. The last thing you want to do is have to pay for your ex-spouse's attorney as well because you wanted to "make a point."
Clinton County & Marion County, Illinois: Modifying the Custody Order
In Illinois, a custody order cannot be modified for two years after its entry, unless by stipulation of the parties, or an affidavit alleging of serious endangerment to the child. What does this mean? It means that within two years of the order, modification is going to occur only if the parties agree, or if the non-custodial parent can prove to the court that the child is being seriously abused.
A parent will have to prove to the court, by clear and convincing evidence, that the child is subject to severe physical abuse that requires medical attention, severe mental abuse that requires counseling, or sexual abuse. In other words, a parent will need evidence of another witness, such as a police officer, a doctor or counselor to testify or provide a sworn statement that they were witness to the evidence, by pictures, treatment, or statements from the child.
After two years, the modification bcome slightly easier, but only a little. When you attempt to modify a custody order, you will have to prove that the environment in which the child lives is not in the child's best interests, and that your environment is in the child's best interests. Here's why this is difficult: you can't just show you are a better parent. In other words, you have to show that the other parent is unfit, and that you are fit. The courts may not use the word, "unfit," but if you are going to try to modify the order, that is the standard that you want to aim to prove.
If you are going to undertake this battle, (and it will feel like a battle - trust me) you want to make sure that your time, money, and efforts are not wasted on a losing proposition. You have to expect the worst, hope for the best, and prepare for all possible outcomes.
A parent will have to prove to the court, by clear and convincing evidence, that the child is subject to severe physical abuse that requires medical attention, severe mental abuse that requires counseling, or sexual abuse. In other words, a parent will need evidence of another witness, such as a police officer, a doctor or counselor to testify or provide a sworn statement that they were witness to the evidence, by pictures, treatment, or statements from the child.
After two years, the modification bcome slightly easier, but only a little. When you attempt to modify a custody order, you will have to prove that the environment in which the child lives is not in the child's best interests, and that your environment is in the child's best interests. Here's why this is difficult: you can't just show you are a better parent. In other words, you have to show that the other parent is unfit, and that you are fit. The courts may not use the word, "unfit," but if you are going to try to modify the order, that is the standard that you want to aim to prove.
If you are going to undertake this battle, (and it will feel like a battle - trust me) you want to make sure that your time, money, and efforts are not wasted on a losing proposition. You have to expect the worst, hope for the best, and prepare for all possible outcomes.
Richland County & Marion County, Illinois: Custody Labels - It's ONLY a Label
Lots of parents get worked up about custody labels. And that concern is completely understandable because it's your child. In fact, clients often start out saying, "I'm not agreeing to anything but sole custody." and most people believe that joint custody means that the parties have equal time with the children, and no one has to pay child support.
There are two levels of custody, and they can be mixed and matched. Sole custody means that a parent has complete control over the children's education, medical treatment, and religion. True joint custody means that both parents have the decision making power over the children's education, medical treatment, and religion.
Keep in mind that the courts can only award what is labeled "joint custody" if the parents get along and communicate extremely well. If the two of you testify that you do not get along, you cannot call your arrangement "joint custody."
I have clients who want what others would call "joint custody" but don't communicate well at all. In that instance, there is no joint parenting agreement, but the terms of the "joint parenting" are written into the Marital Settlement Agreement without using that label. The Marital Settlement Agreement will simply state that one parent is the residential custodian or primary custodian. Then the agreement contains all the terms addressing how the parties will share decisions about the child(ren)'s medical care, religious upbringing, and educational needs.
By getting away from the term "joint custody," an agreement can be fashioned to address the wants and needs of each party when it comes to raising their child(ren).
There are two levels of custody, and they can be mixed and matched. Sole custody means that a parent has complete control over the children's education, medical treatment, and religion. True joint custody means that both parents have the decision making power over the children's education, medical treatment, and religion.
Keep in mind that the courts can only award what is labeled "joint custody" if the parents get along and communicate extremely well. If the two of you testify that you do not get along, you cannot call your arrangement "joint custody."
I have clients who want what others would call "joint custody" but don't communicate well at all. In that instance, there is no joint parenting agreement, but the terms of the "joint parenting" are written into the Marital Settlement Agreement without using that label. The Marital Settlement Agreement will simply state that one parent is the residential custodian or primary custodian. Then the agreement contains all the terms addressing how the parties will share decisions about the child(ren)'s medical care, religious upbringing, and educational needs.
By getting away from the term "joint custody," an agreement can be fashioned to address the wants and needs of each party when it comes to raising their child(ren).
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