12/1/14 12/1/14

Who Wins Custody of a Child when a Spouse Cheats?

Child custody cases can be highly contested because of the emotional nature of the subject. Throw in a flammable issue like adultery and be prepared for some fireworks! Adultery is an issue that can cloud judgment on both sides of a case and prevent even the most straight-forward of issues from resolving themselves outside of a court room. But does adultery truly impact the custody decision of the court?When deciding custody, the family court judge must determine what is in the best interest of the child. The SC Code sets forth some factors that the Court should consider in determining the "best interest" in each case:

the temperament and developmental needs of the child;
the capacity and the disposition of the parents to understand and meet the needs of the child;
the preferences of each child;
the wishes of the parents as to custody;
the past and current interaction and relationship of the child with each parent, the child's siblings, and any other person, including a grandparent, who may significantly affect the best interest of the child;
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;
the manipulation by or coercive behavior of the parents in an effort to involve the child in the parents' dispute;
any effort by one parent to disparage the other parent in front of the child;
the ability of each parent to be actively involved in the life of the child;
the child's adjustment to his or her home, school, and community environments;
the stability of the child's existing and proposed residences;
the mental and physical health of all individuals involved, except that a disability of a proposed custodial parent or other party, in and of itself, must not be determinative of custody unless the proposed custodial arrangement is not in the best interest of the child;
the child's cultural and spiritual background;
whether the child or a sibling of the child has been abused or neglected;
whether one parent has perpetrated domestic violence or child abuse or the effect on the child of the actions of an abuser if any domestic violence has occurred between the parents or between a parent and another individual or between the parent and the child;
whether one parent has relocated more than one hundred miles from the child's primary residence in the past year, unless the parent relocated for safety reasons; and
other factors as the court considers necessary.

[SC Code §63-15-240(B) - emphasis is mine]I think it is important to note that the Code does not list one spouse's marital fault such as adultery as a specific factor the court should consider. However, I have highlighted a few factors that something like adultery may fall into. Often, parents can be temporarily blinded by "new love" and focus more time on the new boyfriend or girlfriend while not spending as much quality time with their children. A new love may also throw living arrangements and residences into disarray. Is your spouse living with their boyfriend/girlfriend? What if your spouse is bringing the child around the boyfriend or girlfriend? Is your spouse moving back and forth between their apartment and the lover's? What if you have raised your children in a home where their spiritual foundation has taught them adultery is wrong? Paragraph 17 also gives a lot of room for the family court judge to consider the other important factors that they believe directly impact custody.The bottom line is that child custody is largely a case-by-case decision to determine what is best for your particular children. In some cases, adultery can be a factor that would prevent a parent from obtaining custody of the children. In other cases it simply is not enough to outweigh awarding custody to that parent.

11/4/14 11/4/14

Do Fathers have Custody Rights when Parents Were Never Married

Question:My ex and I have two children, but were never married. When we separated the kids lived with and stayed with me on the weekends or every other weekend depending on their schedule. No custody agreement had been made with the courts. She recently married and left the state to be with her new husband. She left the children with me. Do I have rights and if so what do I need to do to take custody of my children?Answer:You certainly have rights, but since you were never married paternity must be established by the Court. You may be listed on the birth certificates for the children, but likely have few guaranteed rights since the children were born outside of marriage and you have not been to court to formalize any custody/visitation. SC Code §63-17-20(B) states, "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."If you have been court ordered to pay child support you should have been adjudicated the father by the Court. And, if you are on the birth certificate then you are presumed to be the father because of the acknowledgment of paternity that you executed to be listed on the birth certificate. So, that would take care of the the paternity issue, but since your child was born outside of marriage it will require a court order to provide you with custodial or visitation rights.You will need to file an action seeking temporary and permanent custody of the children. The first step in that case will be a temporary hearing where you will ask the court to award you temporary custody of the children. Your ex must be served with notice of the motion and hearing time. These cases can be complex and difficult to navigate through the system, so I would encourage you to speak with a lawyer in your area to help you out. Initial custody cases in South Carolina are decided by the Court determining what is in the best interest of the children and the court considers many factors when determining the best interest. The South Carolina Code §63-15-240(B) sets forth those factors:

the temperament and developmental needs of the child;
the capacity and the disposition of the parents to understand and meet the needs of the child;
the preferences of each child;
the wishes of the parents as to custody;
the past and current interaction and relationship of the child with each parent, the child's siblings, and any other person, including a grandparent, who may significantly affect the best interest of the child;
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;
the manipulation by or coercive behavior of the parents in an effort to involve the child in the parents' dispute;
any effort by one parent to disparage the other parent in front of the child;
the ability of each parent to be actively involved in the life of the child;
the child's adjustment to his or her home, school, and community environments;
the stability of the child's existing and proposed residences;
the mental and physical health of all individuals involved, except that a disability of a proposed custodial parent or other party, in and of itself, must not be determinative of custody unless the proposed custodial arrangement is not in the best interest of the child;
the child's cultural and spiritual background;
whether the child or a sibling of the child has been abused or neglected;
whether one parent has perpetrated domestic violence or child abuse or the effect on the child of the actions of an abuser if any domestic violence has occurred between the parents or between a parent and another individual or between the parent and the child;
whether one parent has relocated more than one hundred miles from the child's primary residence in the past year, unless the parent relocated for safety reasons; and
other factors as the court considers necessary.

None of these factors will tip the "best interest" scale alone, but all are considered and weighed by the Family Court Judge in the determination of custody.

7/29/13 7/29/13

Establishing Paternity of a Child born During a Marriage

So what happens when a couple is married but the wife becomes pregnant by another man? When a child is conceived during a marriage - even if the divorce is finalized prior to the birth - the husband, not the biological father, is considered to be the legal father of the child. This has far reaching effects.One of the more emotional issues comes out first - while still at the hospital, after the child is born, the mother finds out she cannot list the biological father on the child's birth certificate as the father.Second, the husband is the "legal father" and will be legally responsible to provide financial support to the mother for the child.Third, the child will inherit from the husband - not the biological father - and the husband will inherit from the child in the event of one of their deaths.So what can be done? The legal process to establish paternity in South Carolina is somewhat tedious. It requires a lawsuit to be filed in Family Court with the mother, legal father and the assumed biological father as parties. SC Code §63-17-10(E) requires a Guardian ad Litem to be appointed to represent the child. Paternity can be established by providing evidence of genetic testing, a signed voluntary acknowledgement of paternity, or a birth certificate signed by the mother and the putative father. The Court can even go as far as "viewing" the child looking for evidence of physical features that might help identify the father.Upon reaching a determination of paternity, the Family Court can order that the biological father be listed on the child's birth certificate, order the biological father to be responsible for financial support for the child, and can free the original legal father from any further legal responsibility for the child.

2/26/13 2/26/13

Who Gets to Claim the Children on Taxes?

In a custody case, one of the issues involved in many negotiations is who will get to claim the children as dependents on their income tax returns. This is called the dependency exemption. Children can be quite valuable when it comes to filing taxes and how much a person will owe or receive back as a refund. Many clients, especially lower income clients who receive the Earned Income Tax Credit can receive thousands of dollars back which is more than several months of income from their job.South Carolina Family Courts have the authority to determine which parent gets to claim the children on the income tax return (SC Code Ann. §20-3-130(F)); however, the Court will not be able to allocate or distribute this exemption unless it is specifically asked for or allowed to be tried as an issue without objection from both parties.Typically, the custodial parent will be awarded the dependency exemption; however, if the non-custodial parent is allowed to claim the dependency exemption for one or all of the children, the custodial parent will be required to complete and execute IRS Form 8332 each year and that form must be included with the non-custodial parent's tax return when he/she files it.But what if you don't have a court order - before anyone has filed for custody? The IRS has a five part test for determining which parent may claim the dependency exemption:

Relationship;
Age;
Residency;
Support;
Joint Return.

The Relationship test means that the dependent you are claiming is your son or daughter (natural or adopted), a foster child, brother, sister, half-brother, half-sister, or a descendent of any of them.The Age test simply means that your child is under age 19 at the end of the year and younger than you (or your spouse) or they are a student under the age of 24 at the end of the year and younger than you or your spouse. Finally, regardless of age, you may claim a child if they are permanently and totally disabled.To meet the requirements of the Residency test, your child must have lived with you for more than half the year. There are some exceptions for temporary absences such as illness, education, military service, or vacation.The Support Test requires that you provided at least one-half of your child's support for the year and the child did not provide more than one-half of his/her support for the year. Most of the time this is not an issue; however, if your child works and earns enough income to support himself/herself, then you may lose this credit.The Joint Return test means that the child cannot file a joint return for the year.

Tie Breakers

Absent a Family Court Order outlining who can claim the children, it is entirely possible that both parents would qualify to claim the child as a qualifying dependent using the dependency exemption. So who would get to claim the child in that case?

If the parents do not file a joint return together but both parents claim the child as a qualifying child, the IRS will treat the child as the qualifying child of the parent with whom the child lived for the longer period of time during the year. If the child lived with each parent for the same amount of time, the IRS will treat the child as the qualifying child of the parent who had the higher adjusted gross income (AGI) for the year.
If no parent can claim the child as a qualifying child, the child is treated as the qualifying child of the person who had the highest AGI for the year.
If a parent can claim the child as a qualifying child but no parent does so claim the child, the child is treated as the qualifying child of the person who had the highest AGI for the year, but only if that person's AGI is higher than the highest AGI of any of the child's parents who can claim the child. If the child's parents file a joint return with each other, this rule can be applied by dividing the parents' combined AGI equally between the parents.

10/20/10 10/20/10

What to Expect from the Guardian ad Litem

South Carolina law requires that a Guardian ad Litem to be appointed in cases where the issues of child custody or child visitation are contested issues. The Guardian ad Litem is typically an attorney (though it doesn't have to be) who represents the children in the matter and performs an investigation into both parties and the minor children. One of the most important things the Guardians do is to prepare a report that is presented to all parties and to the Court that details the facts of their investigation, though it is not allowed to make a recommendation as to which party should be awarded custody. So what should you expect when a Guardian ad Litem is appointed in your case? Here are some things that I do when I am appointed as Guardian ad Litem and from what I have witnessed other Guardians ad Litem do in my client's cases.As soon as a Guardian ad Litem has been appointed, the lawyers in the case will notify the Guardian and the Guardian will send the parents a questionnaire to complete and return. At that point, an in-office meeting will usually take place at the Guardian's office so he/she can meet with both parents individually. The children should not attend this meeting because some of the topics of discussion will not be appropriate for them to be apart of. Most Guardian's make home visits to the homes of each parent to make sure places are clean and appropriate for the children. This is also a chance for the Guardian to witness the children interacting in each parent's home environment.The Guardian ad Litems will also want to meet privately with the children. This may take place at their home or at school. This time with the Guardian is important for the Guardian to speak with them without the influence of either parent.The Guardian ad Litem may also interview other people who know the children and the parties. These other people may include the teachers of the children, guidance counselors, grandparents, neighbors, and doctors.

10/18/10 10/18/10

My Spouse Won't Let Me See My Children

Many times after parties separate, one of the parties withholds the children from the other spouse. Sometimes for good reason. But, if you are the parent not getting to spend time with your children this can be extremely frustrating. But what can you do?

There is No Court Order in Place

If you and your spouse have just separated and neither of you have petitioned the family court for custody, then there is no court order in place governing the custody and visitation of your children. In this case, if your spouse will not agree to allow you time with your children your main option in this case is to file an action in the family court with part of the relief you are seeking being the visitation or custody of your children. At the time your action is filed, a Motion for Temporary Relief can also be filed where you can have a Temporary Hearing within a few weeks to have an order put in place for the pendency of your legal action.

There is an Order and My Spouse Ignores It

When there is already an order in place (whether it is a temporary or final order) either spouse can enforce the provisions of the order against the other spouse by what is known as a Contempt action. If either of you are found to be in willful violation of the Family Court's order you could be punished by being held in contempt of court which holds penalties of up to one year in jail, community service and/or fines by the Court. This is the "teeth" of the order and most people are not willing to chance jail time just because they do not want their spouse or ex-spouse to have time with the children.

8/1/10 8/1/10

Your Favorite Posts of July 2010

In case you missed them when they were posted earlier, here are the top ten most-viewed posts for July 2010.

12/1/09 12/1/09

Who's Responsible for the Child?

When a couple is married and they have a child it is pretty easy to determine who is going to be responsible for the child financially should the marriage end in divorce. There is no question who the mother of the child is, and in the situation above, there is no question who the father is. The husband/biological father is going to be responsible for the child and should the mother be awarded custody of the child, the father will be required to pay child support.But what about the situation where the mom and dad are not married and they have a child together? In this case, the dad is still going to be responsible for financially supporting the child.That all seems pretty straight-forward, right? Pretty much what you would expect. But there is a curveball. Who is responsible when a couple is married, but the wife has a child by another man (not her husband). This does not always happen in some illicit affair. Many people that I have spoken with are married, but have not seen their spouse in over ten years and they have moved on (with everything except getting the divorce finalized). If the relationship between the mom and the biological dad do not work out in this case who is held responsible for the child? The husband.Gasp! That's right, not the biological father. When a couple is married in South Carolina and a child is born the husband is deemed to be the legal father of the child and if a support action is filed, the husband will be the defendant - not the biological father.So why is it set up like this? Because the government wants to make sure that children are supported and do not become dependent on the state.Is that fair? There is a case pending in Michigan right now about this very issue. You can read more about the paternity law issue in the Michigan courts here. Hat tip Family Law Prof Blog.