Does your lawyer know the judge?

Does it matter if your lawyer knows the judge? In South Carolina Family Courts, judges can retain jurisdiction over a case and be the judge for the life of the case (or through a certain portion or issue); however, that is the minority of cases. While you may have several hearings during your divorce or custody case, the chances of having the same judge are pretty slim.

It is helpful for your lawyer to be familiar with the judges who regularly preside over cases in your county. Why, because judges are human too. Since they are not robots with programs telling them how to make decisions or to handle cases, they are all different. For example, temporary hearings are typically determined by the judge considering the pleadings, financial declarations, and affidavits of the parties. Some judges will painstakingly read every word in the packets submitted by the parties. Other judges will skim the packets and ask a lot of questions of the lawyers and parties. Knowing what your judge's preferences are will allow your lawyer to present your temporary hearing documents in a way that will most benefit your case.

On the other hand, while relationships with judges are important, I would be wary of a lawyer who represents to you that because of a relationship he has with a judge you will have a better outcome in your case.

The Other Parent Stopped Paying Child Support - Can I stop their Visitation?

Child support and visitation are two separate issues. Once an order has been issued by the Family Court, one does not impact the other.

If the other parent has stopped paying child support you have methods to enforce the Family Court's order. You can file a Rule to Show Cause to seek to hold the other parent in willful contempt of court and ask the Court to issue appropriate sanctions to induce future compliance with the order and to make arrangements for the payment of the missed child support.

In a Rule to Show Cause, if the other parent is held in willful contempt of court, possible sanctions can include jail time (up to one year), fines, and community service. There are also compensatory damages that are typically awarded such as reimbursing you for all or a portion of your attorney fees for having to enforce the order.

If you choose to withhold the visitation as your own form of punishment for the other parent's failure to pay child support you can subject yourself to the same sanctions for your willful failure to comply with the terms of the Court's order. Additionally, it makes your case for contempt against the other spouse weaker because contempt is an equitable remedy sought in the Family Court and you cannot seek equity when you are not acting equitably. In other words, if you aren't obeying the Court's Order, you cannot expect the Court to enforce the order to make the other person obey the order.

Tips to Prepare a Useful Parenting Plan

Many times, most assume the family court will simply follow a standard visitation guideline. That is true in many circumstances and particularly if that is what the parties expect and fail to present a proposed parenting plan.

When you are involved in a child custody case, you and your lawyer should work together to prepare a thoughtful parenting plan for the judge to consider.

Judges are looking for parents to be thoughtful and reasonable when it comes to parenting plans and how they are going to raise their children post separation/divorce.

So what should you include in a parenting plan?

The first thing I would suggest is to avoid relying solely on legal terminology such as sole custody or joint custody. When you stop and think about it, does sole or joint really explain anything to you?

Instead, think through two things: (1) a parenting schedule and (2) how decisions for your children will be made.

Parenting Schedule

Planning the proposed parenting schedule should think through several things:

1. The Regular Schedule: what will be the schedule for where you children are living during the school year?
2. The Holiday Schedule: what holidays will you observe? The holiday visits specified will supersede the regular placement schedule.
3. Summers: will you do something different during the summer than you do during the school year or will it continue the same way? Will either parent have extended time like a week or two for vacations?

Parenting Decisions

How will parenting decisions be made for your children? Will you and your spouse continue to talk to one another about all major decisions? Will one of the parents have the final say after some consultation between the parents? Will one parent be able to make all of the decisions free from input from the other parent?

"Major Decisions" are typically defined by state law, but include things like the child's health, education, extracurricular activities and religious upbringing.

Decisions outside of these categories are likely things that fall into the day-to-day decision-making of the parent who has the child during that time.

Other Considerations

Some situations require that parent conduct be restrained or restricted in some way. If one parent should have supervised contact with the children or some other restriction these should also be listed here.

Other guidelines may be things like not smoking around a child with Asthma, ensuring children watch age appropriate media, etc.

Are there family members or friends who should not have contact with the child due to criminal or child abuse/neglect backgrounds?

Are there paramours (boyfriends or girlfriends) that we need to consider when preparing a parenting plan? How will this be treated? Will it be okay for each other to have significant others in the presences of the children? Over night? Don't just think about how you feel right now. Think through how this will impact you until your children reach age 18.

Telephone and Electronic Visitation

One thing I hear a lot is that one parent wants to be able to speak to the child regularly but then doesn't want to offer the other parent open telephone or electronic time with the child. Think through how you would like to be able to contact the child while (s)he is with the other parent.

Conclusion

I hope this has given you some understanding of what makes a good parenting plan. What else can you think of that should be included? What questions do you have? Let me know in the comments.

Joint Custody: This trap will guarantee joint custody won't be an Option for You

Joint custody has had a pretty bad rap in South Carolina family law history.  Traditionally, it has been articulated in case law as not being in the children's best interest.  More recently, joint custody has become more popular and many family court judges are trying to work out how to best award joint custody in custody cases where it is clear that both parents are involved in their children's lives.  Currently, it is most likely for an award of joint custody to occur at a temporary hearing, but it can be lost along the way depending on parent behavior. 

Before we jump right in to this discussion, let's quickly talk about what joint custody is. SC Code §63-15-210(1) defines "joint custody" as "both parents have equal rights and responsibilities for major decisions concerning the child, including the child's education, medical and dental care, extracurricular activities, and religious training; however, a judge may designate one parent to have sole authority to make specific, identified decisions while both parents retain equal rights and responsibilities for all other decisions." 

When ordering joint custody, the Court must designate a parenting schedule and how these parenting decisions will be made.  That means the joint custody does not necessarily require a 50/50 placement of the children between the parents. 

So, what is the fast lane to losing an opportunity for joint custody: choosing not to co-parent.

Often times parenting from two different homes becomes a competition and parents lose focus of what is truly important.  They begin to focus on how to outdo or undermine the other parent and less about how to work together to ensure their child is well taken care of. This is a selfish approach and one that is not looking out for the best interest of the children. 

SC Code §63-15-240(6) provides one of 17 statutory factors the Family Court considers when awarding custody: "the actions of each parent to encourage the continuing parent-child relationship between the child and the other parent, as is appropriate, including compliance with court orders."

By focusing on "winning" or "out doing" the other parent you will likely lose your bid to have joint custody of your children. 

South Carolina case law essentially states that joint custody is not an option for Family Courts to consider in contested cases as a contested custody case is prima facie evidence that the parents cannot work together to resolve the issues related to their children. 

Tripp Atkins is a Greenville, SC family lawyer who focuses a large portion of his practice on divorce/separation matters that involve children. To schedule a consultation with Tripp, please call 864-558-0512 or use the contact form below to email Tripp directly.

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The Intersection of Private Custody Cases with DSS Abuse Allegations

Child custody cases are complex to begin with. We are working through parent personalities, parenting preferences and differences, and especially the emotional hurdles that are in place while having to negotiate giving up time with your children. When you add allegations of abuse and neglect into the mix, the case can become rather murky almost immediately.DSS is involved in cases where there are allegations of child abuse or neglect. This may be physical abuse, sexual abuse, or related to educational neglect for not taking the child to school as required by law. There are a multitude of reasons DSS can be involved. Regrettably, sometimes it is the result of one parent concocting a theory of abuse to attempt to gain an advantage in the divorce.Once DSS is involved, the Family Court will rarely move forward with a custody issue until DSS has had an opportunity to complete an investigation.  Typically, this is a 45 day period and you will now not only be working with your lawyer and a Guardian ad Litem in your custody case, but you will be working with a DSS case worker/investigator, a volunteer Guardian ad Litem in the DSS case, and possibly subject to completing treatment services such as parenting classes, drug treatment, and counseling.Additionally, your attorney fees and legal costs will increase exponentially.  Not only will your lawyer be working with you in your custody case, but you will need his assistance in the DSS case as well.  This increases the number of court appearances and legal work this lawyer will do. It will also increase the scope of the investigation of the Guardian ad Litem in the private custody case thereby increasing his or her fees as well.  Not to mention costs to obtain records, DSS case files, etc.

Do You Need to Establish Paternity?

If you are married and a child is born, the law has a presumption of paternity.  That means, when a child is conceived during a marriage, the husband is presumed to be the father of the child.  We know that is not always the case and what to do in this situation is discussed in another article, here.In this situation, there is a child born to unwed parents.  Just because the parents aren't married doesn't mean there is conflict and problems between the parents creating custody battles and visitation issues.  But, it is when these relationships break up that the issues can arise.SC Code §63-17-20 (B) states that, "Unless the court orders otherwise, the custody of an illegitimate child is solely in the natural mother unless the mother has relinquished her rights to the child. If paternity has been acknowledged or adjudicated, the father may petition the court for rights of visitation or custody in a proceeding before the court apart from an action to establish paternity.""Illegitimate" means that the parents were not married at the time the child was born or conceived. This essentially states that if the parents are unwed then the mother will have legal custody of the child.  In this situation, the father has no rights to the child until he has acknowledged paternity (through an administrative process to have his name placed on the birth certificate) or until his paternity has been determined by the Family Court.Real Life Example: You are an unwed father having a fun weekend with your child.  The child's mother gets mad at you and shows up at your house demanding the return of the child.  This is your weekend with the child (you and she had been operating under an informal agreement for months).  She is so mad that she calls and asks for a law enforcement officer to accompany her to your home.  The officer will require you to return the child to the mother.There are other risks involved as well. If your paternity has not been established and you have not interacted with the child, visited the child, or financially supported the child, the law may not even require the mother to provide you notice if she decides to put this child up for adoption resulting in the termination of your parental rights.

Should I hire a Private Investigator

The answer is...it depends.  What are the issues that you are trying to prove?  What is the investment that you will be making in the private investigator?  What do you hope to get out of the investigation?  Whenever we use the services of another professional in the divorce process it is important to determine the cost and the return on investment.So, what are some ways to measure your return on investment?Alimony.  The law in South Carolina states that an adulterous affair that occurs before a couple of things happen (the signing of a marital settlement agreement or a final order of separate maintenance) is an absolute bar to alimony.  So, if you are in a position where it is likely that you will be required to pay your spouse alimony, then spending some money - even spending a lot of money - on a private investigator will provide a great return on your investment by preventing you from making an alimony payment every month for the rest of your spouse's life if the PI can establish an adulterous affair.Divorce.  Often adulterous relationships happen in mysterious places and in hidden locations.  These are not things most people do out in the open.  So, obtaining proof of an affair is not always easy.  If you are certain that you want to proceed with filing for divorce on adultery grounds then you should consider hiring a private investigator.  PI's work with attorneys to know what evidence is needed for the attorney to establish adultery.  In this case, the ROI is probably best measured in the speed of the divorce.  It is possible if all other issues can be worked out quickly for your divorce to be final in as little as 90 days.  Though, if any other issues (property division, custody, etc.) remain contested then your divorce is likely to take a much longer time.Children's Issues.  Depending on what you are trying to prove, your ROI will be less about making money on this issue and more about proving with photographic and third party evidence what you believe is going on.  Clients make claims about their spouse's behavior with the children all the time based on what they hear the children say or what their "gut" is telling them.  But it is hard to convince a judge to take some action such as restricting visitation in some way without some physical evidence.  A PI can surveil your spouse to determine if they are really taking care of the child or determine if they are allowing the children to have contact with people they are forbidden to see such as a boyfriend or girlfriend.Financial Issues.  Sometimes a person's financial declaration would have you believe that they are destitute and can't go on living if they are made to pay alimony or child support.  Most of the time this is when a spouse is self-employed and they do not receive a paycheck from an employer to establish their true income.  But, when you really dig into their lifestyle you see that they have a pretty extravagant lifestyle that would require an pretty significant income.  When you actually look at the living expenses such as mortgages, car payments, and spending on fun activities you can try to establish that there is an income greater than what the other spouse is trying to portray.So, depending on the issue you desire to have investigated, you should work with your divorce lawyer and private investigator to determine about how much of an investigation is going to cost you and what you can benefit by having the investigation done.  Sometimes the return will not be worth it.  Other times it will be very much worth it!

South Carolina Child Custody

If you are facing a separation/divorce matter or you are aren't married but have children with someone and you are considering separating you most likely have many questions related to the child custody laws in South Carolina, how things will look when you separate, and what you can expect when it comes to time and responsibility for your children.  When you discuss things with friends who have "been there, done that" or you begin your research online you hear lots of terms.  Many of them are confusing or seem contradictory.When it comes to custody of children I encourage people to ignore general words like sole custody, joint custody, shared custody and consider two things: (1) the time with their children and (2) the responsibility and decision-making for the children.  Let's look at each individually.

Time with your children

The SC Code identifies two types of custody in §63-15-210: joint custody and sole custody.  These terms really have nothing to do with the time you have with your children.  The court may identify a parent to be the "primary" parent for issues such as school assignments but that doesn't mean that one parent has the child the majority of the time.In a child custody case - and primarily while being negotiated by the parties - an agreement can be reached that resolves the time with each parent issue in creative ways.  The parents may agree to divide the weeks equally, alternate weekly, have the child live with one parent the majority of the time and available when the other parent is off of work, and countless other options.  Judges are even beginning to stray from the old every other weekend mentality by extending those weekends and adding more off-week time with the children and the non-custodial parent.All of that to say: don't assume one parent has to have the children the majority of the time and the other parent has to settle for alternating weekends.

Responsibility and Decision-making for the children

South Carolina custody laws set forth two types of legal custody: joint custody and sole custody.  These specifically related to the responsibility and decision-making for the children.  §63-15-210 defines joint custody when parents have equal rights and responsibilities for major decisions concerning the children.  This can work in many cases, but can also be a bad decision for other parents who simply can not co-parent and work together.  The court can designate one parent to be the primary decision-maker for several or all issues including the children's health, education, religious upbringing and general wellbeing.  The court can also So in the event the parents cannot agree to a final decision one of them can make a decision.  This primary decision making can also be broken up between the parents where one parent is the primary decision-maker for health and religious issues and the other would be the primary decision-maker for educational issues.  Even in instances where there is a primary decision-maker, the requirement is still there for the parties to confer jointly in the decision-making process.  The primary decision-maker does not have the right to make all of the decisions without conferring with the other parent.In the case of sole legal custody of the children the custodial parent has the legal authority to make all of the decisions for the children without the input or opinion of the other parent.  In cases where one parent has not been involved in the life of the children or the parents simply cannot put aside their differences and work together to co-parent, this is the most likely outcome in a custody case.