BIRK’S BLOG

by Douglas Birk

IMPORTANT DISCLAIMER: This blog does not offer legal advice and the information listed here is for generalized informational purposes only and should not be construed as legal advice or a legal recommendation. Assessing an individual’s legal case involves a careful and complete evaluation of case specific facts and the legal options or possible legal outcomes for individuals will vary significantly. For legal advice, please consult with an attorney.

Custody and parenting time decisions have enormous collateral impact on the shape and structure of the interested parties’ lives, the children, and the extended families connected to the children.  Obviously, these legal decisions impact people in very unexpected and unforeseen ways.  As a result, parties should consult an attorney to better understand their options and possible consequences.

Rather than write a riveting expose on the latest developments in statute or case law (for example, the “best interest factors” courts use for evaluating custody and parenting time in non-third party actions are changing in 2015), I want to focus this blog on some larger concepts that impact nearly everyone involved in a custody proceeding.  

First, there is a strong constitutional presumption granted to anyone who has recognized parenting rights involving a minor child that the parent is entitled to some parenting time. This presumption is rebuttable, and in instances where a parent has been abusive, the child can be removed from the parent for his or her protection. However, there are very few instances in a civil custody setting where a parent will not be permitted to maintain at least some contact with the child absent extraordinary circumstances.

 

Second, always separate the legal labels of “custody” and “parenting time” from the day-to-day impact of a custody/parenting time court order upon implementation.  The term, “custody” is a vestige of an older legal system which largely focused on designating legal and physical custody to one parent or the other.  Today, “custody” still has legal significance, but the focus of today’s custody proceeding is on determining and delineating parenting time- the actual time that each parent is entitled to be with the minor child and where the child actually resides the majority of the time.  Parenting time is enforceable- the court order will determine the parties’ routine and the actual amount of mandated contact between parent and child.  In addition, court ordered parenting time determines the amount of child support the non-custodial or non-primary parent will pay following dissolution or establishing custody.

Third, custody and parenting time decisions are always subject to change.  The court processes and legal standards for establishing or changing custody and/or parenting time are different depending on the issue(s) involved, but custody and parenting time are always subject to modification as circumstances change. However, each parenting time or custody decision is important because these court findings, or alternate legal standards agreed to by the parties, significantly impact the ability of parties to successfully seek modification in the future. Generally, courts will not change custody absent a showing of endangerment or change parenting time absent sufficient evidence that such a change will, in fact, serve the best interest of the child. 

Fourth, don’t focus on child support.  Often, parties try to enter into custody or parenting time litigation for the sole purpose of trying to change child support.  Courts are very adept at identifying this situation. Legally, courts must make these decisions separately and do not consider child support when determining custody or parenting time.  Of course, that does not inhibit the parties from considering these issues in reaching a global agreement on custody and/or parenting time, but parties should try to keep their focus on whatever arrangements advance the interests of the child.

Finally, and most importantly, try to agree to agree whenever possible.  Today, courts will require parties to utilize some form of alternative dispute resolution, such as early neutral evaluation or mediation, to help parties reach an agreement in advance of trial.  Why?  Because you have a much better idea about what arrangements will work in your lives, and the lives of your children, than the court.  Reaching an agreement in advance of trial, even when an agreement involves significant compromise, is often better than the alternative.  Courts, by necessity, must make decisions on a very narrow set of facts, and then must dictate custody and parenting time arrangements which may significantly conflict with the parties’ work, social, or life schedules.  

Of course, agreement is not always possible.  Parents who because of health, addiction, bad choices, or lack of responsibility, may simply not be well-positioned to care for their children without making their children unhealthy, fearful, or in search of basic necessities or support.  In such cases, it is imperative to have an attorney to get the requisite evidence and facts in front of the Court so that it may respond to such extraordinary circumstances appropriately. 

 

For a free consultation, call Doug Birk at Miller & Stevens law office (651-462-0206).