How is custody defined and interpreted?
Custody is divided into the categories of sole, or joint. Sole (full) custody confers all rights and responsibilities of child rearing to that parent;
the other parent legally has no standing. Joint custody (unlike "sole") implies some form of sharing. Legal custody is the right of parents to make decisions for the child concerning things like schooling, medical care, religious upbringing, etc.
Legal custody can be sole, or joint, but is mostly joint, in practice. It is probably the easiest form of joint custody to obtain (especially for fathers) because it doesn't carry much weight with the courts when there is a dispute.
Physical custody describes the living (day-to-day) arrangements, and can also be sole or joint independent of the legal custody. This arrangement can take many shapes, but is usually measured in visitation hours per week, or alternating weekends, or whatever. As there are 168 hours in a week (7 * 24), whatever percentage you have of those hours will allow you that amount of credibility in the courts.
If you have roughly 30% or more, you would likely be considered an active and important (primary) caregiver to the child. This percentage, along with your income, will also be used to calculate any child support, in about 15 states (including CA). Unfortunately, the other 35 or so states use a simple percentage of income to calculate CS, regardless of your timeshare. (Recall that if you have more than 50%, you are therefore the custodial parent, and would receive CS). Additionally, temporary custody means that it is not permanent, but it is not unusual to remain in temporary status for several years. Permanent custody means your agreement is final, and henceforth will be very difficult to modify custody.
As a practical matter under the current laws, however, the most important thing of all regarding custody of your children, is being designated the "primary custodian" of them. True joint legal and physical custody means that neither parent is the "primary caregiver."
If you are a divorcing parent (but especially father) in the USA, and you care about seeing your children on a regular basis while they grow up (not just when your X finds it convenient for you to see them),
then you are urged to make every attempt to be named the "primary" or at least resist all attempts by your X to be named such. Even though we are philosophically predisposed against custodial parenting, we nonetheless strongly urge you (as a practical matter) to fight early and often for this right; DO NOT WAVER. If your X is reasonable, work it out without lawyers; however in no case should you allow your children (over 18 months old)
to sleep every night at your X's house. Get as many overnights with your child(ren) as possible, ASAP. Be an active and caregiving parent; the courts are not concerned with very much else.
Additionally, if you are very serious about being a "primary caregiver" for your child, it is very helpful if both parents live rather close by, geographically. This geographical proximity allows for the younger children to not be overly disturbed with the transportation between homes,
and allows the older, school-age children to remain in the same school while still residing in both homes. A stable environment is essential for joint physical and legal custody to be beneficial for the children.
If you are a potential NCP, especially a potential male NCP, you are likely to encounter many "arguments" as to why you should not receive joint custody. We strongly urge you to familiarize yourself with these, and learn to refute them. Please read Defusing Objections to Joint Custody. For a more complete discussion of the factors involved in assigning or modifying custody, visit: Michigan Divorce Lawyer. For the text of the Family Code in your state, click on the "LINKS" button at left, then the "REGIONAL" button at right. Then, choose your state from the list, and click on the "Family Code" link.
If you are fortunate enough to negotiate directly with your X, then you might wish to consider this 50/50 Shared Parenting Sample Custody Agreement.
What type of custody should I request when I first see the judge?
When the court first sees you, they will likely decide what your visitation is, based on the status quo at the time. Whatever visitation you have now, you can expect to get only a little more from the judge, at most.
The only way you can get more, is by becoming a more active parent. The courts often measure this in terms of timeshare with child, based on the calculation presented in the previous question (scroll up on your screen). Generally speaking, the younger the child, the more important it is to have those hours with the child in your exclusive care.
It is recommended that you consider reducing your workload to get more hours with your child and strongly recommended that you become as active a parent as you are able. Take parenting classes, if you need help with this. Real men change diapers, cook food for their families, bathe the kids, sing them to sleep, take them to the park, and all the things, and more, that your father (and mother) presumably did for you.
Remember these words: JOINT PHYSICAL AND LEGAL CUSTODY; NEITHER PARENT CONSIDERED PRIMARY CUSTODIAN
Do not sign any legal document that doesn't provide this minimum guarantee. Though this doesn't necessarily have to be exactly 50/50, it shouldn't be very far from that. Those words, and being an active parent, will guarantee your access to your child(ren) until they are adults. Nothing else will.
Now you may ask, "If I need hours, and my X won't willingly provide them, and the court will not grant me more than my X says (and trust us, they won't), then how do I get the hours with my child?" BY ANY MEANS NECESSARY. Fake reconciliation, if necessary. But you should do all these things BEFORE you see the judge for the first time. If you can show the judge an agreement in writing with your X about visitation, etc., the judge will probably like that a lot.
If you are a potential NCP, especially a potential male NCP, you are likely to encounter many "arguments" as to why you should not receive joint custody. We strongly urge you to familiarize yourself with these, and learn to refute them. Please read Defusing Objections to Joint Custody. For a more complete discussion of the factors involved in assigning or modifying custody, visit: Michigan Divorce Lawyer. For the text of the Family Code in your state, click on the "LINKS" button at left, then the "REGIONAL" button at right. Then, choose your state from the list, and click on the "Family Code" link.
If you are fortunate enough to negotiate directly with your X, then you might wish to consider this 50/50 Shared Parenting Sample Custody Agreement.
I am considering divorce. Should I move out of my home?
We strongly urge you NOT to leave your home without your children, unless you are escorted by police; then cooperate fully with the law enforcement officials. We strongly urge you NOT to allow your spouse to leave the home with your children; the children must remain in their "established custodial environment" unless the children face imminent and serious danger by remaining in that environment. We strongly urge you to remain near your children until you have a valid agreement regarding custody that grants you NO LESS THAN: JOINT PHYSICAL AND LEGAL CUSTODY; NEITHER PARENT CONSIDERED PRIMARY CUSTODIAN
Only when you have this agreement, reviewed by two independent lawyers, and signed by the judge, may you feel free to leave that home. For a more complete discussion of the factors involved in assigning or modifying custody, visit: Michigan Divorce Lawyer. For the text of the Family Code in your state, click on the "LINKS" button at left, then the "REGIONAL" button at right. Then, choose your state from the list, and click on the "Family Code" link.
If you are fortunate enough to negotiate directly with your X, then you might wish to conider this 50/50 Shared Parenting Sample Custody Agreement.
As a practical matter under the current laws, however, the most important thing of all regarding custody of your children, is being designated the "primary custodian" of them. True joint legal and physical custody means that neither parent is the "primary caregiver." If you are a divorcing parent (but especially father) in the USA, and you care about seeing your children on a regular basis while they grow up (not just when your X finds it convenient for you to see them), then you are urged to make every attempt to be named the "primary" or at least resist all attempts by your X to be named such. Even though we are philosophically predisposed against custodial parenting, we nonetheless strongly urge you (as a practical matter) to fight early and often for this right; DO NOT WAVER. If your X is reasonable, work it out without lawyers; however in no case should you allow your children (over 18 months old) to sleep every night at your X's house. Get as many overnights with your child(ren) as possible, ASAP. Be an active and caregiving parent; the courts are not concerned with very much else. Additionally, if you are very serious about being a "primary caregiver" for your child, it is very helpful if both parents live rather close by, geographically. This geographical proximity allows for the younger children to not be overly disturbed with the transportation between homes, and allows the older, school-age children to remain in the same school while still residing in both homes. A stable environment is essential for joint physical and legal custody to be beneficial for the children.
If you are a potential NCP, especially a potential male NCP, you are likely to encounter many "arguments" as to why you should not receive joint custody. We strongly urge you to familiarize yourself with these, and learn to refute them. Please read Defusing Objections to Joint Custody. For a more complete discussion of the factors involved in assigning or modifying custody, visit: Michigan Divorce Lawyer. For the text of the Family Code in your state, click on the "LINKS" button at left, then the "REGIONAL" button at right. Then, choose your state from the list, and click on the "Family Code" link.
If you are fortunate enough to negotiate directly with your X, then you might wish to consider this 50/50 Shared Parenting Sample Custody Agreement.
JOINT PHYSICAL AND LEGAL CUSTODY; NEITHER PARENT CONSIDERED PRIMARY CUSTODIAN
Do not sign any legal document that doesn't provide this minimum guarantee. Though this doesn't necessarily have to be exactly 50/50, it shouldn't be very far from that. Those words, and being an active parent, will guarantee your access to your child(ren) until they are adults. Nothing else will.Now you may ask, "If I need hours, and my X won't willingly provide them, and the court will not grant me more than my X says (and trust us, they won't), then how do I get the hours with my child?" BY ANY MEANS NECESSARY. Fake reconciliation, if necessary. But you should do all these things BEFORE you see the judge for the first time. If you can show the judge an agreement in writing with your X about visitation, etc., the judge will probably like that a lot.
If you are a potential NCP, especially a potential male NCP, you are likely to encounter many "arguments" as to why you should not receive joint custody. We strongly urge you to familiarize yourself with these, and learn to refute them. Please read Defusing Objections to Joint Custody. For a more complete discussion of the factors involved in assigning or modifying custody, visit: Michigan Divorce Lawyer. For the text of the Family Code in your state, click on the "LINKS" button at left, then the "REGIONAL" button at right. Then, choose your state from the list, and click on the "Family Code" link.
If you are fortunate enough to negotiate directly with your X, then you might wish to consider this 50/50 Shared Parenting Sample Custody Agreement.
JOINT PHYSICAL AND LEGAL CUSTODY; NEITHER PARENT CONSIDERED PRIMARY CUSTODIAN
Only when you have this agreement, reviewed by two independent lawyers, and signed by the judge, may you feel free to leave that home. For a more complete discussion of the factors involved in assigning or modifying custody, visit: Michigan Divorce Lawyer. For the text of the Family Code in your state, click on the "LINKS" button at left, then the "REGIONAL" button at right. Then, choose your state from the list, and click on the "Family Code" link.If you are fortunate enough to negotiate directly with your X, then you might wish to conider this 50/50 Shared Parenting Sample Custody Agreement.
Which court has jurisdiction?
Generally, you can easily determine which court has jurisdiction in your case by reading the most recent copy of your court order, or decree. Somewhere on the front page, there is the name and address of your court. In general, jurisdiction does not follow either the parents or the children; jurisdiction remains with the original court until such time as that court officially relinquishes jurisdiction to another court. In general, a change of jurisdiction is usually done simultaneously with a modification of custody or visitation, where the circumstances warrant it. In practice, unless there are overriding reasons to the contrary, most courts will not relinquish jurisdiction to another court unless both parents agree, and formally request it. Nonetheless, if both parents establish official residence in a different state than the original court order, it is likely that jurisdiction will eventually become where the children primarily reside.
If you are transferring jurisdiction, you should understand exactly why you are doing so, and how any such change is likely to affect your particular case. If you do not understand these issues completely, you are probably better off opposing any change in jurisdiction.
If you have never had a court order, then no court has jurisdiction until someone files for divorce/custody. Most states have residency requirements for the purpose of divorce/custody filings; six months of residency is common in many states. The requirements for establishing residency vary by state, and by county within the state. For the text of the Family Code in your state, click on the "LINKS" button at left, then the "REGIONAL" button at right. Then, choose your state from the list, and click on the "Family Code" link.
At what age may a child choose with whom to live?
The magic number in almost every single state is... (drum roll, please)... 18. (If it's not 18, Alaska, Alabama, Mississippi, Nebraska, Pennsylvania, and Wyoming are the only exceptions, the age is even higher, either 19 or 21; see Age of Majority.) Upon 18th birthday, child becomes adult, and may legally choose to live anywhere they please, either with a parent, or both, or neither. Prior to that age, all children (unless they have taken the necessary steps to legally emancipate themselves earlier) are bound by the custody order in existence between the parents. Moreover, it is the parents' responsibility to ensure that the children comply with those orders. Failure to do so may result in contempt citations against the (ir)responsible parent. However, if custody is currently being decided, or currently being modified, then some children in some cases may be granted the opportunity to present their opinions and feelings to the court. Generally speaking, the courts are looking for children with sufficient emotional maturity to understand the consequences of their statements; chronological age of the child is theoretically not important. Nonetheless, for practical purposes, children under 11 or 12 will rarely be heard by the court; by the time they are 15 or 16, they will most likely be heard.
Most or all states have something resembling the following language in the family code regarding assigning or modifying custody: "The court shall consider all relevant factors where applicable: ...". This phrase means that the court decides where the child shall be placed, not the child. Further note that the family code says something like "the reasonable preference of the child if (however many) years of age or older..." The phrase, "reasonable preference" means that the child must be of sufficient maturity to understand the consequences of his preferences, thoughts, and opinions. If the judge is not convinced of the child's maturity, then the child's opinion is not applicable, and will not be considered by the court. Further note that there are many other factors, besides the child's opinion, that the court shall also consider in assigning or modifying custody. This means that other factors could play the determinative role in the court's custody decision, regardless of the child's opinion. For all these reasons, it is clear that children may not decide where they shall reside, until they become adults; at least age 18 in every single state. (Note: There is one notable exception in the GA state legislation. GA state has adopted, as part of its family code, legislation which states in effect: "For children above age 14 (who are not otherwise incapacitated), the reasonable preferences of the child shall be CONTROLLING on the court." In other words, the burden of proof in GA is on the courts (the state government) to demonstrate why the 14-year-old child's wishes should not be honored. All other states have a lower standard, and the burden of proof is on the child.)
Nonetheless, it is common knowledge that courts often (but not always) issue decisions that resemble the child's opinion. Why? Because the judge, after considering ALL the relevant factors, came to the conclusion that 1) the other factors should not be held in greater esteem than the child's opinion, or 2) the other factors represent a "tie" between the parents, and no overriding factor (or multiple factors) exists which would favor one parent over the other. Therefore, the child's opinion is often used as the "tie-breaker" vote, since all other factors are about equal. At no time does the child decide. If a child can't buy a beer, then what makes people think a child can decide a custody matter? They can't, though if they have sufficient maturity, children can certainly INFLUENCE the court's decision.
In summation, a child may not choose prior to 18th birthday in any state. Prior to that, either the parents agree, or if not, then the judge will decide. The judge has discretion as to whether the child will even be heard, and/or how much weight will be placed on that child's opinion. For a more complete discussion of the factors involved in assigning or modifying custody, visit: Michigan Divorce Lawyer. For the text of the Family Code in your state, click on the "LINKS" button at left, then the "REGIONAL" button at right. Then, choose your state from the list, and click on the "Family Code" link.
What is the "right of first refusal" for caring for children?
When referring to child care, the "right of first refusal" means that before either parent may engage third parties to care for the children, the other parent must be given the opportunity, or first refusal, to care for the children themselves. In other words, there are no third party sitters UNLESS both parents have had the opportunity to refuse the parenting time (visitation). Obviously, this concept only makes sense in a shared physical custody situation, when both parents live geographically near each other, and are able to move the children between households without much trouble. Nonetheless, for those parents in that situation, it prevents one parent from restricting access to the other parent by hiring sitters to care for the children, instead of allowing the other parent the opportunity. This concept is good for the children because it promotes cooperation between the parents, and allows the children maximum exposure to both parents. Please recall however, that some states do not recognize this right, while some do. The concept isn't automatically assumed by anyone within the court system, and the words must be included in the language of your decree to have any effect, from the legal perspective. In other words, it is not a "right" like the right to free speech, or any other human right. Nonetheless, we are firmly convinced it should be considered a basic human right, and look forward to the day when the family court system will protect that right. For a more complete discussion of the factors involved in assigning or modifying custody, visit: Michigan Divorce Lawyer. For the text of the Family Code in your state, click on the "LINKS" button at left, then the "REGIONAL" button at right. Then, choose your state from the list, and click on the "Family Code" link.
What about relocating the children?
This discussion pertains to long distance relocation, or relocation across state lines, or out of the court's jurisdiction. Moving within a close radius (usually less than 50 miles) is generally allowed, unless specifically prohibited in the custody decree.
Move away child custody cases are among the most complex, time-consuming, and expensive types of custody cases. These are truly examined on a case by case basis, and most often require a hearing, or trial, if the parents do not agree. While the possibilities and permutations are too numerous to detail without specific information, there are some basic guidelines to consider. Either parent is allowed to move WITHOUT the children at any time. Either parent is allowed to relinquish custody to the other parent to facilitate their own move. Neither parent is allowed to move the children WITHOUT the consent of the other parent, or a court decree. If the parents cannot agree, then it mostly boils down to a four-part test that the courts will consider in their decision. For a more complete discussion of these four factors, visit: Michigan Divorce Lawyer.
Move away cases are exceedingly lengthy, expensive, and with the outcome uncertain. Even if you feel you really must move the children, we strongly urge you to either get the other parent's agreement, relinquish custody to the other parent, or forget about moving. No matter how difficult your X is, getting their agreement will be the fastest, easiest, cheapest, and most probable ticket out of town. What is your X asking in return for their agreement? Whatever it is, offer it to them, if you really want to move with the children. If your X says they want primary custody, and you don't want to offer that, then either forget about moving the children, or take your very expensive roll of the dice in family court.
Additionally, we have compiled a Chronology of important move-away cases in CA, and a brief explanation of why they are judicially noteworthy. Many, or most, other states' caselaw has evolved along similar lines; thus, this may serve as a general guideline for most states. If you are involved in a move-away case, we strongly urge you to get competent legal advice within your relevant jurisdiction. The stakes are very high, and errors can be corrected only with the greatest of difficulty.
On 4/29/04, the California Supreme Court issued its decision in the LaMusga v. LaMusga case. This decision was a substantial victory for the proponents of shared parenting, including this website. For more information, see CA Supreme Court Decision. For a more general, and historical perspective of the evolution of relocation cases, please read Relocation Discussion by Nadine Roddy, of Divorce Litigation.
Not long ago, one of the regular contributors to our site was able to effectively block a malicious move away case initiated by his X, and gain a majority timeshare with his child in the process. Richito's story is recommended reading for anyone in a similar situation. You will find all his posts and our responses in the main Discussion Board; starting with the old archived messages in July, 2001 and through December, 2001, read everything that was discussed about his situation. (The links to the archives are located at the bottom of the main Discussion Board.) Alternately, you may wish to type "Richito" into our Search engine; this will yield all his posted messages and our responses thereto. Additionally, we are greatful to our friend, Hogtyed, who made the effort to compile this Summary of Richito's posted messages.
What should I do about denial of visitation?
If you are being denied visitation as an NCP (or even as a CP), you must file a police report EVERY TIME that the decree is violated. Often, especially if you are the NCP, the police will be very reluctant to file any paperwork. You must be persistent. If the lower level officers refuse to file paperwork, don't get mad. Just insist on speaking with the supervisors about documenting the violation of the decree. If you do not document the denial of visitation with police reports, then your judge will not take you very seriously. Get a stack of those police reports, then ask the judge for a contempt citation. Repeat the process until you have several contempt citations, then ask the judge for modification of custody based on the repeated contempt. Documentation is very important, so don't let the police convince you that there is nothing they can do. Insist that they file some kind of paperwork, and keep a copy for yourself.
Please recall that your decree must be substantially specific for the police to help you. If your decree contains the phrases "reasonable visitation" or "liberal visitation," then that is rather vague, and the police will not be able to help you. If this is your situation, then you will have to take the necessary steps to modify your decree, so that your decree includes specific times, dates, and locations, for the exchange of your child.
In some cases, if you have kept meticulous records, you may be able to recoup some of your lost expenses due to denial of visitation in small claims court. For example, if you had purchased tickets for transportation, or another event, for the children to use specifically while they were to visit with you, and your X denied you the visitation (thereby causing you financial loss of the price of the tickets), you may consider trying to get satisfaction from small claims court. This avenue won't help you see your kids directly, or recoup the time lost with the children (that is an issue for family court), but it does help to make the denial of visitation more expensive for your X. Hopefully, this might discourage denial of visitation in the future.
How are visitation, and child support (CS) related?
Legally speaking, visitation and CS are completely separate issues. Though a court usually makes an order for both at the same time, they have no bearing on each other. For example, they cannot be "traded" for one another. Also, for example, if you are being denied visitation, you are still obligated to pay your CS. Conversely, if you are not receiving your CS, you must still produce the child for visitation.
Practically speaking, however, visitation and CS are closely intertwined. All the available research indicates that non-custodial parents who regularly receive their visitation pay about 85% or more of the CS they are obligated to pay. Not surprisingly, non-custodial parents who do not see their children frequently or at all pay only about 35% of their CS obligation. For more detailed statistics, please visit the links in our Research section.
What is the difference between a married and an unmarried father's rights?
Once paternity is established, there is no difference between the two; they are exactly the same. The only difference is that a married man is presumed to be the father of children born to his wife while they are married. An unmarried man must first establish paternity, usually through a DNA exam, before he may exercise his rights and responsibilities.
There are ways to establish parentage through legal means, without a DNA parentage test. For instance, if you are married to a woman at the time she bears a child, you are legally presumed to be the father, whether the child is biologically yours or not. In this scenario, you might need a DNA parentage test to disprove your parentage (to the extent this is allowed in the laws of your state). If you are not married to a woman at the time she bears a child, you are voluntarily waiving your rights to contest paternity when you sign the birth certificate. Please note that, signing the birth certificate does not establish your paternity conclusively (the mother, or another man could still contest it). However, by signing the birth certificate, you are agreeing that YOU will not contest paternity. We would strongly recommend that you do not voluntarily waive your rights to contest paternity.
Paternity fraud is rampant and big business in this country; and well protected by the laws and the courts. 30% of all DNA tests turn out negative (this percentage is much higher in urban areas); that is, the alleged father is not the biological father. If you accept legal responsibility with a 30% chance that this responsibility is not truly yours, this is a decision you may regret at some time in the future. When you consider that the financial responsibility for paying child support for almost 20 years can easily exceed $100,000, with possible incarceration for failing to meet that obligation, a small investment in a DNA parentage test seems like a good idea.
Before you order a DNA parentage test, please discuss the issue thoroughly with a knowledgeable attorney in your area, to ensure that your family court requires this test and/or if it will accept the results of this test in your case. If your attorney advises this testing procedure will help your situation, Custody Reform would recommend DNA Diagnostics Center (we have no financial affiliation with them, and this recommendation is purely informative only). They are able to provide the highest quality DNA parentage (paternity) testing services available at very competitive rates.
For a more complete discussion of the factors involved in assigning or modifying custody, visit: Michigan Divorce Lawyer. For the text of the Family Code in your state, click on the "LINKS" button at left, then the "REGIONAL" button at right. Then, choose your state from the list, and click on the "Family Code" link.
Where can I get information about DNA Parentage testing?
Before you order a DNA parentage test, please discuss the issue thoroughly with a knowledgeable attorney in your area, to ensure that your family court requires this test and/or if it will accept the results of this test in your case. If your attorney advises this testing procedure will help your situation, Custody Reform would recommend DNA Diagnostics Center (we have no financial affiliation with them, and this recommendation is purely informative only). They are able to provide the highest quality DNA parentage (paternity) testing services available at very competitive rates.
There are ways to establish parentage through legal means, without a DNA parentage test. For instance, if you are married to a woman at the time she bears a child, you are legally presumed to be the father, whether the child is biologically yours or not. In this scenario, you might need a DNA parentage test to disprove your parentage (to the extent this is allowed in the laws of your state, please review your family code in our state links section). If you are not married to a woman at the time she bears a child, you are voluntarily waiving your rights to contest paternity when you sign the birth certificate. Please note that, signing the birth certificate does not establish your paternity conclusively (the mother, or another man could still contest it). However, by signing the birth certificate, you are agreeing that YOU will not contest paternity. We would strongly recommend that you do not voluntarily waive your rights to contest paternity by signing the birth certificate.
Paternity fraud is rampant and big business in this country; and well protected by the laws and the courts. 30% of all DNA tests turn out negative (this percentage is much higher in urban areas); that is, the alleged father is not the biological father. If you accept legal responsibility with a 30% chance that this responsibility is not truly yours, this is a decision you may regret at some time in the future. When you consider that the financial responsibility for paying child support for almost 20 years can easily exceed $100,000, with possible incarceration for failing to meet that obligation, a small investment in a DNA parentage test seems like a good idea.
What can I expect in a psychological evaluation?
It is a good idea to be as prepared as possible for any meeting with any divorce industry personnel. A common mistake that many people make is "pouring their hearts out" to an evaluator. Generally speaking, these people are not your friends, nor should you treat them as such. Another common mistake that people make is having unrealistic expectations of the evaluation process. Evaluators can sometimes be helpful, but they are not lawyers, and can sometimes make recommendations that are inconsistent with family law. In those cases, a judge may ignore the errant recommendations (if brought to their attention). Furthermore, a judge is not obligated to abide by any part of the evaluation, though it is common that the judge will adopt the recommendations of the evaluator as written. Therefore, it is imperative that the client strictly control the information that is given the evaluator. The less said, the better, in many cases. Mostly, it appears that judges use these evaluations as a "filter" tool, to weed out the obviously bad apples. As long as you do not weed yourself out, then this evaluation will probably not harm you too much in court, even if the report is somewhat negative. For your convenience, we have provided some links you should read, to further prepare yourself for this process:
- 730 Evaluation from Divorce Wizards
- Custody Evaluation from Child Custody 911
- Evaluations and P.A.S. from S.P.A.R.C.
- Evaluations and Homestudy from S.P.A.R.C.
After you have submitted to this evaluation, it would be somewhat surprising if you were completely satisfied with the results. If this is the case, you may wish to familiarize yourself with Suggested Objections by Ms. Margaret Dore.
What is Parental Alienation Syndrome (P.A.S.)?
Parental Alienation Syndrome (P.A.S.) is a complex phenomenon which can occur in the context of a divorce/custody situation. Many so-called trained "professionals" are unable to diagnose it. Few courts recognize PAS as an actionable cause. The organized body overseeing the psychiatry industry also does not recognize PAS. Yet, for many people, especially non-custodial parents, it is a very real phenomenon. For a more detailed discussion, please visit Dr. Richard Gardner. We shall note that others have also studied the problem of P.A.S., and have diverging opinions from Dr. Gardner's work. In the interest of fairness, we present the following links:
Furthermore, if you or your children have suffered from PAS, you may also wish to contact the Rachel Foundation. They work with reintegration cases involving abducted or alienated children, either in a residential (confidential) setting, or on an out-patient basis nationwide. They specialize in "hopeless" cases; those where everyone believes the relationship with one parent has been irrevocably damaged. This program may be the only one of its kind in the U.S.
Similarly, if you require an expert opinion as part of your custody battle, you may wish to visit Family Unity featuring Dr. Monty, PAS expert.
The acceptance of PAS by the family courts is not yet widespread, but is picking up momentum. On January 30, 2001, a family court in Tampa, Florida, ruled that PAS had gained enough acceptance in the scientific community to satisfy the Frye Test criteria for admissibility; the first time ever a court had made this determination. The citation for use in future cases:
Kilgore v. Boyd,
13th Circuit Court, Hillsborough County, Fl.,
Case No, 94-7573, January 30, 2001
More recently, another court has made the same determination. The citation for use in future cases:
Bates vs. Peres,
18th Judicial Circuit, Du Page County, IL
Case No. 99D958, Jan 17, 2002.
Herewith is the content of an email that Custody Reform recently received from Dr. Richard Gardner:
For those who are not familiar with the Frye test, it is the standard by which a court can decide whether or not to admit evidence based on or related to a new scientific contribution. To gain such acceptance, the court must conclude that the contribution has gained general acceptance in the relevant scientific community. The (evidence of) PAS has certainly been accepted in many courts of law without being subjected to a Frye test challenge (the judge has that discretion).
However, courts may refuse to recognize a contribution if the Frye criteria are applied and the court concludes that Frye criteria are not satisfied. Each successful Frye hearing makes it more likely that PAS will be accepted by other courts, certainly in the same state and also in other states--especially as the number of successful Frye hearings increases. We are now up to Number 2, the first being Kilgore vs. Boyd 13th Circuit Court, Hillsborough County, FL., Case No. 94-7573, 733 So. 2d 546 (Fla. 2d DCA 2000) Jan 30, 2001. (Richard Warshak, Ph.D. was my co-expert in that case.)
My co-expert in this hearing (of January 17, 2002) was Christopher Barden, Ph.D. J.D., whose expertise in both psychology and the law added significant clout to our testimony. It was an honor and a privilege to work together with him. Crucial to our success was my website lists P.A.S. References of PAS peer-reviewed articles (now 136) and legal rulings (now 66) in which the court has recognized the PAS. It is important to note that the opposing counsel's expert was a person from another state whose highest degree was a Masters in psychology, a person who had not published one article in a peer-review journal. We believe that the most likely explanation for this choice was that (litigant) was unable to find someone in the state of Illinois who would testify that PAS is not generally recognized in the mental health community. This selection per se supports the conclusion that PAS has enjoyed widespread recognition.
This decision should prove useful for those of you who testify in child-custody disputes. Citing these two Frye cases, and more important, submitting into evidence the aforementioned lists (which you can download from my website) will enhance the liklihood that your PAS testimony will be accepted by the court. These lists are continually being updated, so be sure you submit the latest ones. Lastly, once again, I ask all of you to inform me of any additional peer-reviewed articles and legal citations which indicate that the court has recognized the PAS and ruled accordingly.
All truth passes through three stages. First, it is ridiculed. Second, it is violently opposed. Third, it is accepted as being self-evident.
--Arthur Schopenhauer (1788-1860)--
Best wishes, Richard Gardner
There is good reason to believe that these cases will serve as a precedent for future challenges in similar other cases. Furthermore, here are other P.A.S. Legal Citations.
What does it mean to go through the "MeatGrinder"?
There is no requirement in the laws, as applied today in most states, that there be any fairness or equity in the divorce/custody process. It is quite possible that you will find the family courts to be rather unconcerned with the details of your personal hardship, let alone any high-minded concepts, such as truth, justice, or "the best interests of the children." When a court first receives a custody case, the court is primarily concerned with ensuring that the children are being fed, clothed, and sheltered, while also ensuring that the children are not being abused in any way. The courts are not particularly concerned with the visitation arrangement, provided that each parent has at least a minimal amount of contact. While the courts are theoretically not gender biased, they will most frequently (more than 90% of the time) defer to the mother, unless substantial "unfitness" can be demonstrated. Though the courts strive to protect the children, they do not have the resources to investigate every allegation or incident. Sometimes, therefore, problems arise.
Due to the foregoing, you may find yourself, at the beginning of your case, falsely accused, or even falsely imprisoned. You may be restricted to supervised visitation (or even no visitation), resulting from these false allegations. You may not be able to see a judge for several months, because of the court backlog. This is often just the beginning, and it can get much worse than you could ever imagine. You may find yourself riding a wild emotional rollercoaster. Fortunately, we are here to help you through this dark period.
What should I do if I am falsely accused?
If you find yourself in a situation of false allegations of either domestic violence or sexual abuse, we strongly urge you to retain competent legal counsel immediately. Cut off all communication with the false accuser (except emergency communications about your children), and document everything. It is often helpful to record conversations, either on audio or video tape, if permitted by local statutes (for more information, scroll down to question about taping below). For more information about false allegations, please visit:
Under what conditions may one tape conversations?
Regarding the admissibility of recordings: it is our understanding that one may record legally just about anything in a public setting, whether others are aware of it or not. Someone standing on a soap box in front of city hall can legally be taped without his knowledge or consent. A rock concert, however, is only semi-public; you need to purchase a ticket to enter, and thus cannot legally tape without permission, for example. If you warn or advise someone that you intend to tape them (public or private), then it is generally legal. In CA, you can record a phone conversation only with the other person's consent. However, if you advise them that they are being taped, and they still continue to talk, this is generally interpreted as consent. It is generally not legal to tape someone in private (home, phone, etc.) without their knowledge (though some states do allow this). Nonetheless, even if the taping was legal, it still may not be admitted as evidence in a civil or criminal court (if taping is not legal, it can't be admitted). Judges feel it is too easy to bait someone. However, even when legal taping may not be admitted, transcribed notes based on that recording may be admitted in court. The point is practical as much as legal; most folks don't like to be taped. The mere sight of a recording device will usually have the effect of making the other party very polite, if not quiet (or in the case of certain individuals, very angry). Before you consider taping someone, we strongly urge you to check out the local laws, and consult with a knowledgeable attorney. For an additional point of view, visit RCFP.org.
How do I ensure that my X is receiving my communications?
If you are having difficulty in having communications reach your X, or your X is not acknowledging receipt of communications, or any number of other games that people play in this regard, there is one solution: U.S. Certified Mail, Return Receipt Requested. Using this method will establish two things to the satisfaction of the court: 1) That you did attempt to communicate, and 2) That either your X received the letter, or not. If any other methods (phone, fax, verbal, email) are failing, this method will not. Thus, discontinue all other forms of communication, and rely solely on U.S. Certified Mail. Make sure to address the letter to your X's last known address, or their last known work address, or the last known address of their nearest of kin, or all of the above, if necessary. Keep any receipts from the Post Office. If the letter is returned, do not open it; save it to present to the Court at the appropriate moment. Please be aware that someone in the household, other than the intended recipient, could still sign for the letter; thus, this method is not foolproof. There is yet another method, called "Delivery Confirmation," involving verification available via Internet, or telephone. For more information, visit U.S. Postal Service. Please be advised that the Court prefers hard copy (non-electronic) evidence, and may not allow electronic evidence to be admitted.
What about death and taxes?
We won't pretend to know much about death, other than the obvious. If you have questions about this, we recommend spiritual guidance from qualified practitioners. Taxes, while only slightly more pleasant, are decidedly less complex. For all federal tax questions (including forms) regarding custody or otherwise, please visit the I.R.S. For state forms, please visit our regional links (click the "LINKS" button on the left, then the "REGIONAL" button on the right). In the state of your choosing, you will find a link to that state's government. Surfing within that site should be a good start to your search.
What do all these abbreviations mean?
Please see our list of Commonly Used Abbreviations If you are aware of some we have not listed, please let us know, and we will add them.
How can I make a donation to help the cause of shared parenting?
We are working hard to provide quality information for you in your custody battle. We feel this information is invaluable, as you prepare yourself for your court proceedings. If you feel you have gained any value from our site, please feel free to make a small, and completely voluntary DONATION to the cause of equal shared parenting. Thank you so very much.
Now that you have done the minimum amount of homework, you deserve a little break. So, if you have a question that you still don't understand, now is the time to email me with those questions. Good Luck.
Discussion Board
F. A. Q.
Here is a brief explanation of some of the questions you may have about the Discussion Board (just click on the question of your choice):
Can I use HTML tags anywhere in my posts?
For the time being, yes. If you are interested in putting HTML tags into your posts, then here are a few you might find useful:
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To make bold text, use the <B> starting tag where you want the bold to start, and the </B> ending tag where you want the bold to stop. For example: This is now bold.
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To make italic text, use the <EM> starting tag where you want the italics to start, and the </EM> ending tag where you want the italics to stop. For example: This is now italic.
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To underline text, use the <U> starting tag where you want the underlining to start, and the </U> ending tag where you want the underlining to stop. For example: This is now underlined.
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To color text, use the <FONT COLOR="red"> starting tag where you want the coloring to start, and the </FONT> ending tag where you want the coloring to stop. For example: This is now red. Allowable colors to use are: silver, gray, white (won't show up on white background), black (default), maroon, red, green, lime, navy, blue, purple, magenta, olive, yellow, teal, and cyan. Using hexadecimal code, you could specify thousands of other shades, but that is beyond the scope of this introductory HTML lesson.
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To make larger text, use the <FONT SIZE="+z"> starting tag where you want the larger text to start, and the </FONT> ending tag where you want the larger text to stop. For example: This is now larger. The "z" in the tag must be a number between 1 and 5, and must be preceded by the plus (+) sign.
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To combine the preceding tags, it is only necessary to place them in order at the beginning of the intended effect, and in reverse order and the end of the intended effect. This is known as "nesting" the tags.
For example: <Tag1><Tag2><Tag3> {intended effect here} </Tag3></Tag2></Tag1>.
In this way, you can make bold, italic, large, green text.
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Creating links is only slightly more complicated. The appropriate tag is:
<A HREF="http://www.yourdomain.com" TARGET="new">Your link name</A>
All you need to do is cut and paste the above code, replace the fictitious URL (Universal Resource Locater) with a real and complete one, and name your link whatever you like. Note that the quotation marks that surround the domain name are necessary.
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Displaying an image of any type is analogous to creating a link. The appropriate tag is:
<IMG SRC="http://www.yourdomain.com/sourcefile/image.jpg" BORDER=0>
All you need to do is cut and paste the above code, and replace the fictitious source file name with a real one. Note that the quotation marks are again necessary. Also note that this only works for images that are already located somewhere on the web; you cannot link to an image file stored locally on your computer, it must have been uploaded by someone, somewhere. While there are many sites on the web with imagery, here are two examples: Ultimately Pointless Website, and Emoticons. Please try to link files that are not excessively large, to keep the Discussion Board loading quickly for everyone. If this becomes a problem, we will have little choice but to turn off the user's ability to create these special effects.
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To center images or text, use the <CENTER> starting tag where you want the centering to start, and the </CENTER> ending tag where you want the centering to stop. For example:
This is now centered.
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To scroll or "marquee" the text, use the <MARQUEE> starting tag where you want the scrolling to start, and the </MARQUEE> ending tag where you want the scrolling to stop. For example:
A few words of caution are also in order. First, some browsers do not accommodate some, or all, these effects. If you notice effects that are not working, it is your browser that is unable to render them. If you switch to a different browser, you are likely to get different results. Also, it is advisable to use these effects sparingly; setting them up is a bit time consuming for you, and too many effects is annoying to the reader. Now, go have some HTML fun.
Why didn't my post show up?
Your post most likely did not show up, because your browser did not reload the page, it simply pulled it out of cache. Please reload your browser and it should then appear.
Where can I get the scripts for this program?
The scripts are written in Perl and created by Matt Wright. They are free to anyone who wishes to use them and you can get them as well as other scripts at:
http://worldwidemart.com/scripts/.
We, here at Custody Reform, are very grateful to Matt and the work he has done. Please be so kind as to visit his site. Thank-you. Caring Dad
13th Circuit Court, Hillsborough County, Fl.,
Case No, 94-7573, January 30, 2001
18th Judicial Circuit, Du Page County, IL
Case No. 99D958, Jan 17, 2002.
For those who are not familiar with the Frye test, it is the standard by which a court can decide whether or not to admit evidence based on or related to a new scientific contribution. To gain such acceptance, the court must conclude that the contribution has gained general acceptance in the relevant scientific community. The (evidence of) PAS has certainly been accepted in many courts of law without being subjected to a Frye test challenge (the judge has that discretion).
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