Mediation in Adoption and Termination of Parental Rights Cases
Mediation is required by Order of the the Supreme Court of South Carolina to occur in the majority of legal actions filed in South Carolina prior to being able to request a final hearing. This is true in Family Court as well - and still true in termination of parental rights and adoption cases.Often times, lawyers handling these matters (regardless of whether they represent the adoptive parties or the birth parents) ask the Court to waive mediation in these cases because there is very little room for either side to make concessions.For example, in a divorce mediation the parties have a lot of issues to negotiate and thus there are a lot of places for the parties to give and take in order to reach an agreement that resolves the issues in the matter. In a termination of parental rights and adoption matter, the negotiation seems to have more of an all or nothing feel. Either the birth parents agree to consent to the adoption and relinquish their parental rights which allows the adoptive parties to adopt the child, or, the birth parents do not consent to the adoption and the adoptive parties either give up or proceed on with a contested adoption action. In South Carolina, we do not have a law that permits open adoptions - adoptions where birth parents can have court-ordered rights to continue some involvement in the child's life.Sometimes, there is a middle ground so mediation should probably be explored by parties to these kinds of cases.I recently participated in a mediation in a termination of parental rights and adoption action. This was a step-parent adoption case so only one parent was in the termination of parental rights seat. What looked to be a futile effort to satisfy a court requirement to mediate turned into a complete settlement. After full consideration of the issues - best case/worst case scenarios in a trial and the long term relationships with the child, this parent decided not to pursue retaining parental rights and elected to have the opportunity to send a farewell letter to the child, receive annual photo albums and reports about the child, and for the child to receive contact information in the future if he were to decide to contact his birth parent upon becoming an adult.I think all of the lawyers were a little shocked by the outcome. In this case the adoptive parents were able to adopt and the birth parent retained some connection to the child that is protected by court order. It was a unique resolution to the case instead of a rigid outcome that we so often think of when preparing to mediate these issues.
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.
What Should I Expect in my Divorce Mediation?
In November 2015, the South Carolina Supreme Court issued an order requiring all domestic relations actions in this state to be subject to mediation. So, if you are a part of a divorce action in South Carolina your case is subject to be mediated unless you resolve the outstanding issues on your own.A mediator is a trained neutral who will assist the parties in attempted to negotiate a settlement. He or she may be a lawyer, but is not required to be a lawyer. The mediator is completely neutral. That means, the mediator does not have an interest in the outcome of the case and has never been involved with either party such that there may be a conflict of interest. The mediator will listen to both parties, offer suggestions, discuss the possible outcomes in trial, and so forth. But, it is not the job of the mediator to determine the outcome of your case. In fact, that is exactly what you are trying to avoid. If you are unsuccessful in mediation, then you will be required to bring your divorce case to the Family Court where the judge will listen to both sides of the case and review all of the evidence presented and then dictate how your children will be parented, how your belongings will be divided, and how your incomes will be shared. You have lost control at that point. In mediation, you and your spouse remain in control of the outcome of your divorce.Mediators fees are generally divided equally between the spouses in a divorce mediation. In South Carolina, most mediator fees range in the $150-200 per hour range and the rules allow the mediator to charge an hour in addition to the time spent mediating to prepare for the mediation and to prepare a mediation report following mediation.In many cases, divorce mediation is done with the parties in separate rooms and the mediator floats back and forth between the rooms to relay information and offers.I remind my clients that mediation is not an appointment to come to without being ready to make some decisions. Mediation is a negotiation and requires some give and take from both spouses to result in a settled resolution. If you are not ready to make decisions about the outcome of your divorce then this mediation will be very frustrating for both you and your spouse. In order to be ready to make decisions you need to be prepared for mediation. Often times, it feels like mediation is blown off as just one more step that doesn't really matter. Then, in the midst of the mediation while the parties are make some headway towards a resolution there are gaps of information missing that would be helpful in resolving an issue. Having information about values of assets and amounts of debts, income information for both parties, living expenses for yourself, and other relevant information you will be better prepared to reach an agreement that you can live with.
Can I Appeal the Temporary Order
I have written about the importance of temporary hearings in the past on this blog. Getting the case started out right from the beginning is important for your case. However, some times no matter how well you and your lawyer prepare, things don't go so well during at the temporary hearing. Occasionally, it is obvious that bad things are going to happen at a Temporary Hearing. Other times the Court's ruling can come as a surprise. Either way, it is hard to deal with the consequences of some court orders. In Family Court, these orders often deal with subjects that are near and dear to your heart: your children and your money.You may disagree on how the Court ruled on custody for your children or you don't know how you can afford the child support and alimony that the judge ordered you to pay. Perhaps, you don't know how you will live on the support amount you were awarded.So, can you appeal the temporary order?In a word, no. In 2012, the South Carolina Supreme Court answered this question for us in the case of Terry v. Terry (400 S.C. 453). The Court held that these temporary orders in Family Court are just that - temporary. These orders are without prejudice to the rights of the parties and do not decide any issue with finality nor affect a substantial right. Additionally, the family court has the authority to correct any error from the temporary order at the final hearing, Terry v. Terry, 400 S.C. 453, (456-457).
What recourse does one have when a temporary order doesn't go their way?
This ruling seems to indicate that one's redress comes at a final hearing. But, there are some things that can be done in the mean time. It is possible to file a motion requesting the Court to reconsider its ruling. Unless there is clear law on point; however, it will be difficult convincing the Court to modify its order. It is also entirely possible that when the Court reconsiders its ruling that the new ruling could be worse than the original ruling.The next option would be to put the litigation on the fast track. Move as quickly as is prudent and reasonable through the discovery process and any investigation that must be done and get your final hearing scheduled as quickly as possible.
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!
Should I Skip Hiring a Divorce Lawyer Since we have a Simple Divorce?
It is tempting to hold off on hiring a lawyer to review your case or simply represent you when you feel like your divorce case is fairly simple and straightforward. The problem is that a divorce can seem very simple on the surface, but the underlying effects of an order can be very far-reaching and many times the results are not what you anticipated.
Even in situations where you and your spouse are working together amicably and have negotiated an agreement together, I would encourage you to seek legal counsel from a lawyer in your jurisdiction to make sure you fully understand the implications (explicit and implied) in your agreement.Here's a quick example. Many times, after a separation the spouses tend to get along better than they were while they were living together. This helps negotiations go smoothly. During the negotiations it was agreed that Wife would have primary custody of the children and Husband would receive reasonable visitation with the children. While you are working well together, this is probably ideal. Husband most likely sees the children much more than a standard visitation schedule would allow. But then things change when he brings home a girlfriend or Wife begins dating a boyfriend. Sometimes these new relationships change the spouses' priorities and that once amicable relationship changes to something more hostile. Now those reasonable visits that Husband was receiving look more like one time per month or whenever it works best for Wife - which is becoming less and less often. Because Husband didn't realize he did not have a specific visitation/placement schedule he must file a new lawsuit to seek a specific schedule to ensure he can maintain his relationship with the children.Your case may not be about child custody. Maybe it's about how to divide the equity in the home or how long one spouse will have to refinance the mortgage and remove you from the debt. Maybe it is a more complex issue about the tax implications of dividing a qualified retirement account.You may save yourself a lot of money (and certainly some headaches) in the long run by going ahead and obtaining legal counsel on the front end.
Divorce Mediation: Ready to Make Some Hard Decisions
Mediation is a requirement for most South Carolinians facing divorce. A majority of our counties now have a mandatory mediation requirement before a final divorce hearing can be scheduled. Even though mediation is becoming mandatory in most areas, it is also a great idea to go through mediation if you cannot resolve your case on your own. So how can you make the most of your mediation?
I am a certified family court mediator and I represent a lot of people who are facing divorce. Because of those two roles I have been involved as a mediator or as a lawyer in a lot of mediations. One of the frustrating things about mediation is when lawyers and clients fail to come prepared to the mediation to make a decision. This can happen for a number of reasons. Perhaps the lawyer just did not have an adequate opportunity to prepare. There may have been some difficulty obtaining discovery responses from the opposing party. It may just be a lack of understanding of the issues involved in the case. Sometimes clients come to mediation with an attitude that their case can never settle or they have not considered what they are willing to accept to have their case resolved.Mediation is a long process and in order to successfully resolve your divorce through mediation you must come prepared. Here are three divorce mediation tips:1. Understand the issues involved in your case. In order to make the best decisions possible you need to work with your lawyer to understand the issues and how the law applies to them. This is where you engage your lawyer's duties as a counselor. Understand where your case is strong and where it is weak.2. Come to mediation with priorities. Know what you are willing to let go of and what is non-negotiable. If you wait to consider these items for the day of mediation you will quickly feel overwhelmed and not be able to make a decision.3. Come prepared to make a decision. Mediation is a negotiation. You likely won't have a share a conference room with your spouse and you will have your lawyer there with you, but make no mistake, you will be asked to be an active participant in the mediation. It is very difficult to get a case resolved when clients are unable to make a decision about the issues in their case. That paralysis and failure to make a decision is actually a decision not to make a decision. That choice can lead to continued litigation, contested trials, increased attorney fees, and the risk of having a judge determine the outcome of your case thereby removing any control and decision-making from you.