If you being charged for child neglect, do you have to take a drug test?

I received this question recently: "Me and my child's other parent have roommates who smoke marijuana, but they do it outside the house. We had an incident and we had to call the police. While there, the police said they could smell weed in the house so they obtained a search warrant and found some like a 3g of marijuana. We were charged with child neglect and drug possession. They drug tested my child and it came out positive. Now they want to drug test us. I don't use drugs but I am around people who do. I'm not afraid to get tested but I just want to know my rights.

Here is my response: Many times DSS intervenes in a family for whatever reason and asks the parents to be drug tested - regardless of the reason for intervention. Sometimes it is connected to the reason for intervention and sometimes it is not. For example, if DSS intervened because your house was filthy, but asked you to have a drug test there is zero connection between those two things. But, since police charged you with possession there is more connection in your case.

You are not required to consent to a drug test unless you have been court-ordered to be tested. I don't have enough information based on your question to determine if there is currently a DSS legal case against you or if there is a court order requiring you to submit to drug testing. If you are court ordered and refuse to go, the Family Court will likely treat that as a failed drug test.

If you refuse to be drug tested DSS may initiate a removal action (legal action) to retain your child in DSS custody and seek a court order to require you to submit to drug testing. On the other hand, if you agree to be drug tested you could test positive and that would lead to potential findings by DSS or additional criminal charges.

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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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.