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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Can I go from Fostering a child to Adopting the child?

There is a difference between the terms, "foster care" and "foster to adopt". The ultimate difference about your current status with DSS is what your intent was when you began working with DSS. If you are a licensed foster parent, you began working as a foster parent to provide a temporary, stable, loving, nurturing home for South Carolina's abused and neglected children. It was not necessarily your intent to adopt any of the children who began living in your home.If you approached DSS with the intention of finding a child to adopt - not to have random children placed in your home for temporary placement then you are seeking a "foster to adopt" placement.

Either is fine, but there is a legal difference between the two.South Carolina has a policy that the reunification of the children with their family serves the best interests of the child and is the preferred approach in removal cases so long as the abuse/neglect that occurred has been remedied and the child can be safe and healthy in the home with family.An adoption of a child from DSS cannot take place until the child is legally free for adoption - meaning the parental rights of the birth parents have been terminated.  Sometimes based on past history with birth parents or just in observing the progress (or lack of progress) the birth parents are making toward completing their DSS treatment plan, the focus of the agency may begin to shift from reunification to termination of parental rights and adoption for a child. At that point the agency begins to look for permanent placements (adoptive resources) for that child. It is possible if you have been serving as a licensed foster home for that child to apply for a foster to adopt placement for that child - even if you didn't originally have the intention to adopt the child from the beginning.  If you are starting out as a foster to adopt family then you will be waiting to be matched with children who are legally free or whose parents are not looking like they will remedy the situation that lead to the removal of the children.

What are the steps for a South Carolina DSS Adoption

Greenville SC DSS adoption attorney Tripp Atkins

If you are a foster parent or are applying to adopt a child through DSS, the process is sometimes glossed over when you are meeting with your adoptions worker at DSS.  This happens for a few reasons: they're really busy and when you do something all day every day, you kind of forget the adoptive parents you are working with aren't used to the court process and have a lot of questions.

You can enter the DSS adoptions area at different times. In this post we will talk about what to expect once the child you are adopting is legally free to adopt - meaning the birth parents have relinquished their parental rights or their parental rights have been terminated and their appeals have been exhausted.Leading up to your approval as an adoptive family your home and backgrounds have been studied and you have been approved as an adoptive resource.

Once the child is legally free for adoption he or she is placed in your custody as an adoption placement and you will sign your adoption agreement with DSS.Around the same time you will choose the attorney you would like to work with to complete the adoption. The choice of attorney is up to you, regardless of what your adoptions worker tells you.  They generally have a list of attorneys they have worked with in the past or that they like to work with if you do not know an attorney.

Once your attorney is chosen, they will send a notice of representation to DSS and the adoptions worker will send your adoption attorney confidential information about the children and birth parents that are needed for filing the petition for adoption in your case.  This petition must be filed within 60 days of the date of placement of the child in your home for adoption (essentially the date of your adoption agreement). 

Once the adoption petition is filed, it will be served on DSS General Counsel in Columbia and the adoptions office. DSS General Counsel has 30 days to file an Answer responding to the petition.  The birth parents will not have to be served or involved in this process because the birth parents' parental rights have either been terminated or relinquished. During this 30 day period a Guardian ad Litem will also be requested and appointed by the Court and they will begin their investigation immediately.When the DSS Answer has been filed and the Guardian ad Litem has completed their investigation it will be time to request a final hearing to approve the adoption.

The time for hearings to be set can take from 4-8 weeks depending on the county of your adoption and the time of year.In many DSS adoption cases, the children qualify as "special needs" which is a statutory definition relating to the child's family, siblings, age, or emotional disability. Being classified as special needs does not necessarily mean the child has some mental or emotional disability.  This qualification further entitles you to additional benefits and contributions towards your adoption legal fees.If you have questions about a DSS adoption, I would be happy to meet with you to discuss your adoption.

What is an Adoption Home Study For?

SC adoption home study

In adoptions that are not "in family" adoptions such as step-parent or grandparent adoptions, South Carolina law requires that an adoption home study be completed. Two, in fact: a pre-placement home study and a post-placement study. But why?The pre-placement study is a a report that documents your home life. It is pretty intensive and digs into all areas of your family life: criminal background checks, child abuse registry searches, family finances, health, references, birth certificates.  For example, this is not just looking to make sure you are married. It wants to know how your marriage is. Are there issues in your family that need dealing with? Does your extended family support your choice to adopt?  What is your motivation to adopt?The ultimate goal is to make sure your family is ready for an adoptive placement and that it will be a healthy place for this child joining your family.The post placement study is a visit in your home with your family and the child to check on how things are going.  There may be one post placement visit or multiples depending on the agency requirements.

How long will my adoption take?

The length of time that’s your adoption case will take will depend on many factors including the type of adoption (DSS adoption, grandparent adoption, stepparent adoption, private adoption agency adoption).Another factor that impacts the time of an adoption is where we are starting. For example, are you matched with a birth mother yet through a private search or through the use of an agency? If you are adopting through DSS, has the child been placed with you for adoption purposes and have the parents rights been terminated? Have the birth parents filed an appeal?An uncontested step-parent adoption or grandparent adoption could be completed in as little as 90 days or so, while the process from start to finish through an independent or agency search could take upwards of two years.If you would like to discuss your options for adoption in South Carolina, please call Tripp at 864-558-0512 or use the form below to schedule a consultation to discuss your case. The consultation is complimentary and confidential.[contact-form-7 id="357" title="Contact form 1"]

What are the steps for a Grandparent Adoption

Are you a grandparent who has taken custody of your grandchildren? You've taken on a roll that is extremely important to your grandchildren, but just having legal custody is sometimes not the permanence the child deserves.Grandparent adoptions are really no different to any other adoption. The primary exception is that you already have a biological relationship to the adoptee.  So where do we start?Private adoptions and agency adoptions require a home study to be performed prior to and after placement of the child for adoption.  In South Carolina, in-family adoptions (including grandparent adoptions) are not required to have pre and post-placement home studies.The next step is to obtain consents and relinquishments necessary from the birth parents to allow the adoption. Often times birth parents in these situations will realize it serves the best interests of their children for the grandparents to be able to adopt the children and they will voluntarily sign a consent to the adoption.  This form has to be executed by special witnesses and be on a form that meets state statutory requirements.Sometimes it isn't as easy as scheduling an appointment for the birth parents to sign a consent to the adoption. Perhaps they do not agree with the adoption. Other times their whereabouts are just unknown and they can't be located to consent to the adoption.  When that happens in a grandparent adoption case, we will have to file to terminate the parental rights of the birth parents.  South Carolina law gives us a dozen grounds for termination of parental rights to consider in your case.Once both birth parents rights have been relinquished through consent or terminated through a court action, then we are ready to proceed to the conclusion of the legal adoption with a hearing in the Family Court.Do you have questions about grandparent adoptions in South Carolina? Call Tripp at 864-558-0512 or use the form below to schedule a consultation to discuss your case.[contact-form-7 id="357" title="Contact form 1"]