Definitions

Motion: The court paperwork that, when filed, commences a case for custody.

Response: The response to the petition filed for custody.

Physical Custody: Where the child lives the majority of the time.

Legal Custody: Who makes the major decisions regarding the health, safety, welfare and schooling of the child (but this can also spill over into isues such as whether a child can pierce their ears, get a tattoo, have an extreme hair style or play an extra-curricular sport). Usually, the court orders JOINT legal custody unless one parent has made poor choices in this area, they have abandoned the child, there is domestic violence, there is sexual or physical abuse of the child, or the parent is incarcerated for example.

Petition: A petition is filed in a custody matter when one party seeks to establish a certain fact, such as paternity (i.e. establishing that "X" is the child's father) and most of the time occur with UNMARRIED parties. Paternity petitions can be filed by either parent to prove or DISPROVE paternity. If ever there is a question, a Paternity petition is clearly the first step to avoid getting visitation and paying support for a child that is not legally the father's. On the flip side, there are situations where a parent does not care whether or not the child is biologically there own because the relationship that has been established is more significant, for example: Bob raises a child from birth during the course of a marriage who is the product of an affair and who is now 10. Bob and Sue are now divorcing and custody of the couple's children - the 10 year old and 13 year old is now at issue. It would be detrimental to both children (particularly the 10 year old) to challenge paternity at this point even though it is legally permissible to do so.

Presumption: In many jurisdictions, children that are born during the existence of a marriage are PRESUMED to be that of the father (even if they are not biologically). Paternity petitions can be filed in these cases as well to "rebut" (or prove wrong) the presumption. However, as in the above-listed example, the children are the one's who suffer in these cases when they have been raised with the father and when they have been led to believe the father is there's biologically.

Mediation: A process whereby parents can sit with a skilled mediator to discuss concerns with regard to custody. The goal of mediation is to come to a full written agreement and avoid excessive argument, fees and litigation - That agreement would be presented to the court and made a court order. Mediation can be provided through the court system (and is typically free or at a much reduced rate) or private (where fees are charged based upon private mediators own fee schedule).

Mediators: These individuals are usually trained in the area of family relations, custody, visitation and even domestic violence, sexual and physical abuse - as these are frequently at issue in custody cases. Typically mediators are Marriage, Family Therapists, but can also be Psychologists of Doctors.

Filing Fees: These are the fees that are paid when certain documents are filed such as a Petitions, Responses and Motions.

Fee Waivers: When a party meets certain financial criteria, they may qualify for a fee waiver which allows them to avoid paying filing fees for a specified period of time at which point they must file another to continue to qualify. The income level is usually very low, must be verified and is signed under penalty of perjury.

Non-Contested Cases: In most jurisdictions, one party will file a Petition and/or Motion commencing an action for custody. In almost all cases, this will automatically refer them to Mediation where they will speak with a mediator and attempt to make a voluntary agreement. If the parties are unable to make an agreement on their own, the mediator will offer a recommendation to the court. When a motion is filed, a court date is set at the same time. The parties will appear in court on that date and the court has several options: (1) Order the mediator's recommendation as a temporary order and set a trial; (2) Order the mediator's recommendation and set a return date within a prescribed period of time to review the orders and basically see how things are going; (3) Order a modification of the recommendation based upon either an agreement of the parties, the Judge's interpretation of the recommendation or based upon the persuasive arguments of the parties at the hearing; (4) Order the mediators recommendation without modification because the parties have decided to agree on the date of the hearing. If this happens, the orders are usually called an "agreement" or a "stipulation; and (5) Refer the parties to a completely different mediator due to impartiality, bias, unfair or inconsistent recommendations, lack of experience to handle a certain issue (i.e. referring the parties to a mediator with experience in sexual abuse if that is an issue in the case), language barrier (i.e. referring the parties to a bilingual mediator if English is not the first language and there appears to be a translation issue).

Contested Cases In a contested cases, the parties simply cannot agree to anything and the matter must be set for a contested hearing (or trial). Most courts want to avoid trials because it can be detrimental to the children to have dueling parents, they can be expensive, it sets a negative tone in a custody matter - a case which will last until the child is an adult and it bogs the court system down with trials which can last anywhere from (4) hours to weeks.

The standard in all jurisdictions for child custody is "Best Interest" This means the Judge is looking at what situation will be best for the child. In a trial, witnesses are called which support each parties position as to why their home is better than the other parents. Where this becomes toxic is when parties expose private details they have learned in the course of an intimate relationship in an open court room. It is here where accusations of child abuse, pornography addiction, alcohol and drug abuse become the norm. Clearly, if there are issues that threaten the very safety or morality of a child's household, they need to be addressed in court. More often than not however, these issues are either unsubstantiated or completely untrue. Yes - people raise untrue allegations in custody battles because the most important people are at stake - The kids. And during the course of a highly conflicted and contested trial, people change from who they normally are. These comments and testimony can cause irrevocable damage to the civility of the parties which hurts the children because they are aware that "mommy" and "daddy" don't like each other anymore and the psychological damage that occurs in children can be extensive. Clearly, if parties are able to put aside their differences and think of their children first (and not their own pain, jealousy or grief over the loss of the relationship or marriage), they will be able to come to agreements that are best for their children. Furthermore, the cost of attorneys and extensive motions or a contested trial can cost thousands to tens of thousands of dollars. It is not uncommon for parties to pay $50,000 in highly contested family law cases that span the years and damage the children.

Copyright (c) 2009 Ron Lasorsa