Myriad of Emotions in Dealing with Divorce
When faced with a divorce everyone involved will go through a myriad of emotions and everyone will deal with the changes differently. A great South Carolina divorce attorney, Ben Stevens had a great post at the South Carolina Family Law Blog recently how sports broadcaster Jim Nantz and his wife dealt with the emotions in their divorce in his post Divorce can be Difficult, Even for Professional Broadcasters. I think you will find this helpful no matter what stage of divorce you are in right now.
What Happens If DSS Takes Your Children?
DSS may come into your life for multiple reasons. Sometimes it is for a good reason and sometimes it is completely frivolous. When it comes to having your children removed from by DSS it can be a very distressing situation.
Regardless of the reason for the removal of your children, the Family Court must hold a probable cause hearing within 72 hours to determine if DSS had probable cause or a good enough reason to remove your children. At this hearing, DSS generally has the upper hand. In almost all cases, parents are not represented by an attorney at this hearing and they have no idea why they are in court, what has happened to their children, and what they have to do to get their children back.
At the probable cause hearing, DSS will call witnesses and attempt to prove their case while you will not be allowed to testify. You will have an opportunity cross-examine the DSS witnesses and you will be able to submit affidavits to the court supporting your situation.If you are unrepresented at this hearing and are unable to afford an attorney to represent you, the family court will appoint an attorney to represent you. A guardian ad litem will also be appointed to represent your children and to perform an investigation for the Court with their mind set on determining what is in the best interest of the children.I would recommend that if your children have been taken from you by DSS you should immediately contact an attorney who is experienced in representing people in DSS matters.
There are strict time lines and regulations that DSS must comply with and if they don't it can help your case. Only an experienced professional will know these things. You should not go to a probable cause hearing unrepresented if you can help it.
After the probable cause hearing, DSS will schedule a merits removal hearing within 35 days where the issue of whether there was child abuse or neglect occurred, and if it did what treatment services will be required before the children can be returned to the custody of the parents.
The goal in these cases is generally to return the children to your physical custody as quickly as possible. Sometimes, it will take some time before the parents are able to regain custody. I encourage parents to look for friends and family members who may be willing to take temporary custody of the children so they are no longer in foster care as a way to have the children placed with people who know and love them and get them away from the foster care system. Obviously, this helps the children cope with the circumstances, but also can help facilitate more time between the parents and children as the DSS visitation standards are very low (usually two hours per month of visitation).
Spiritual Healing v. Medical Treatment for Children
A Wisconsin couple was sentenced to jail time after they were convicted this week of second-degree reckless homicide after their three year old daughter died from untreated diabetes. Rather than seeking medical treatment for their daughter, the parents prayed for her and sought spiritual healing for her even as her health declined and she could no longer walk or talk. Here's the news story.Now this couple is forced to spend 30 nights in jail each year for the next 6 years and their other children are required to be taken to medical checkups periodically.This begs the question: do you have the right as a parent to determine what type of treatment your children receive - or if they receive treatment at all? What do you think? Should a parent be able to decide if their child should only receive spiritual treatment versus medical treatment?Via Family Law Prof Blog
Who's the Star of Your Case?
Heeeeeeeeerrrrreeeee's Johnny! Actually, when it comes to your divorce case, you can insert your name. You will be the star of your case. You are going to be front and center throughout the case. A lot of decisions will be required of you throughout your divorce case. If your case goes to a trial, you will be required to testify and may spend a good deal of time on the witness stand.Not only will you be "on stage" during your trial, but your actions will be under close scrutiny throughout the entire time of your marital litigation. Every move you make could be used against you in your trial. My best advice would be that you should be on guard. Understand that you will be scrutinized. Use common sense.Don't do things that you will be used against you in the trial. Don't start dating too soon. Don't talk bad about your spouse in front of your children. Don't trash your spouse to the guardian ad litem. Don't discuss the case with your children.Just keep in mind that you are the star and you are on stage during the course of your divorce case. If you have questions about your divorce case, I would be glad to meet with you to discuss your divorce case.
What Happens after my Temporary Hearing?
So you've made it through the temporary hearing in your divorce case. Maybe that turned out great for you. Perhaps the temporary hearing was a disaster. You may be extremely happy, or you could be pretty scared and depressed. As an attorney, I've been on both sides. So what happens after your temporary hearing? Well, the case will move on. Typically, discovery is the next step. Discovery can consist of sending requests for information from your spouse and subpoenaing information from other entities.After we have a grasp of what the case is about and some more specific information that we have gained through discovery we can move on to mediation. In Greenville County, mediation is mandatory in a contested divorce case. If we are able to settle your case at mediation we will be able to request a final hearing immediately. If not, we can continue to negotiate as we move forward towards a trial.The length of this phase of your case can vary based on the complexity of your case and the type of final hearing we need. If we only need a 15 minute hearing, we could get into court quickly. If, however, we need the court to set a trial that will last a day or longer we could be waiting several months for our court date. This, of course, extends the amount of time necessary for you to continue as ordered under the temporary order.
Child Custody: Mom Automatically Wins, Right?
It is a common misconception that the mother is automatically entitled to receive custody of the minor children, especially when the children are very young. The "tender years presumption" is an old factor that used to automatically grant the mother custody of young children because it was assumed that she was the best person to be the primary caretaker of the children.This presumption is no longer valid. In fact, South Carolina law has abolished the tender years presumption (S. C. Code §63-15-10). Now, in order to determine who gets custody of the minor children in a custody battle in South Carolina a judge will consider what is in the "best interest of the children" along with several other factors.The factors considered in custody cases are:
- Resources of the parents
- Who has been the primary caretaker
- Immoral conduct of the parents
- Child's reasonable preference
- Domestic Violence
- Relgious faith
- A Guardian ad Litem's report
While there is no tender years presumption any more, that does not mean that the mother will not win custody. It just means that it is not an automatic decision. Mothers are winning custody of their children every day in South Carolina. Basically, in overruling this presumption, the courts are saying that this is not the best resolution in every case so all of the evidence should be considered and what is in the best interest of the children will prevail.There are a couple of other factors that will not be considered:
- No gender bias: that means that a daughter will not automatically be placed with their mother and a son will not automatically be placed with their father.
- Race is not a factor in determining who the custodial parent shall be.
I'm Separated from my Spouse. Can I Date?
One thing people want to know often is how soon can they start dating again after they have separated from their spouse. Their main concern tends to be what constitutes adultery and when is it safe for them to get back out and start dating.When you are separated from your spouse you are still legally married. So, technically, any new relationship could potentially be viewed as an adulterous relationship and your spouse could pursue a divorce against you on the grounds of adultery. So, to be absolutely safe and to be sure that you do not have to worry about an adultery defense, you should avoid any relationships until you are legally separated or divorced from your spouse.As long as you are still married, I cannot recommend that you begin dating. While you may not think you have a lot to lose or that your spouse may not have a lot to gain by filing for divorce on adultery grounds against you, it could turn into a huge hassle for you.
How to Calculate Child Support in South Carolina
In theory, the calculation of child support should be very simple. South Carolina has worked out a calculation found in the South Carolina Child Support Guidelines that calculates child support based on several factors - mainly the parent's gross income, whether they are under a previous order to pay child support for another child, if there are other children in the home that will not be covered by this support order, health insurance premiums for the children, work related childcare expenses, and extraordinary medical expenses for the children. In theory, you just plug these numbers in and out pops the parent's monthly support obligation.The video shows you the South Carolina Department of Social Services web child support calculator located at:http://www.state.sc.us/dss/csed/calculator.htmIn practice, what happens is people quit jobs and take lower paying jobs so their child support obligation will be lower. They claim that the bad economy should allow them to pay less each month. Perhaps the mother has been a stay-at-home mom during the marriage, but the father believes that she is capable of working and since they are going through the divorce she should go get a job and he is asking that the court impute wages to her. Many times, one of the parents has worked for cash and he/she does not report all of his/her income so it may be hard to determine upon first glance what his/her income truly is. To impute wages means that the court will calculate child support as if that parent was earning the amount of income the court believes they are capable of earning.If you are going through a divorce or child support is an issue in your life, I would encourage you to consult with an attorney. There are so many intricacies and nuances where people will try to take advantage of a trusting spouse when it comes to child support and having to pay out money every month. Even if you plan on moving forward without an attorney, I would recommend that you at least consult with an attorney to get an idea of what child support should be if you believe your spouse is capable of earning more than they currently do or if you believe they are going to try to take advantage of you.