Contested Custody: What You Need to Know
This is a guest post written by Matthew L. Kreitzer.
In a previous blog post titled “How to Handle Divorce with a Baby,” Shawn Leamon discussed how to negotiate with your spouse to create a parenting plan that is in the best interests of your children. However, your spouse may not be willing to work with you to create the parenting plan. If your spouse is unwilling to submit an agreed parenting plan to the court, you have a contested child custody case.
A contested child custody case is a very emotional process that can cost a significant amount of money. If your case goes to court, you will likely be forced to meet with a number of individuals or state agencies which are concerned about the welfare of your children. For example, you will likely be required to interact with social service professionals and lawyers.
Furthermore, you will need to be aware of the various types of court ordered custody arrangements in your state. Each state is different, and each type of custody carries with it distinct financial burdens.
Who are the various groups you need to be aware of, what is their job, how can they impact your contested child custody case, and what are the possible outcomes?
Court Appointed Special Advocate (“CASA”).
The vast majority of states utilize a professional known as a CASA volunteer. These professionals are often appointed by the court to speak for the child. A CASA volunteer can come from a variety of occupational backgrounds including psychology and education.
The role of a CASA volunteer is to speak with the children and understand their wishes. CASA volunteers are specially trained in interacting with children and are able to obtain a significant amount of information. This information is used to create an opinion for the court on where the children should reside and who should make legal decisions on behalf of the children.
A CASA volunteer is also able to speak to the impact that the divorce proceedings are having on the children. A CASA volunteer can be a helpful ally or a powerful foe. A CASA volunteer’s opinion can have considerable sway in a courtroom. Judges often defer to a CASA volunteer because they are seen as a neutral party.
Because of the powerful role that a CASA volunteer plays, it is important to participate fully with their requests. Failure to cooperate with a CASA volunteer could jeopardize your child custody case.
2. Guardian ad Litem (“GAL”).
Like a CASA volunteer, a GAL is a professional appointed by the court to look after the best interests of the children. However, there are a number of differences between a GAL and a CASA volunteer. In most states, for example, a GAL is required to be a licensed attorney. A GAL is expected to advocate on behalf of the children and treat the children as their client.
Like a CASA volunteer, A GAL is also appointed by the court to investigate your case. However, a GAL has far more power than a CASA volunteer. The court will often enter an order granting a GAL the power to obtain medical and financial information from the children’s’ physician or pediatrician. A GAL is also empowered to visit the children’s school and speak with their teachers about how the divorce is impacting their education. Finally, a GAL has the power to subpoena witnesses and force their attendance at trial.
At the end of their investigation, the GAL is typically required to summarize their investigation in a written report to the court and the parties. The report will detail recommendations for custody and visitation. As with a CASA volunteer, courts give great deference to the opinion and testimony of a GAL. If there is a GAL involved in your case, it is important that you fully cooperate with that GAL.
However, GALs can also be a danger. As mentioned above, GALs are often lawyers. As such, a GAL is fully trained on how to utilize any information they obtain from you in a method that may harm your case. That is why it is important to consult with a lawyer in the event that a GAL is directly involved with your case.
3. Governmental Agencies
Each state has a governmental agency that is dedicated to investigating allegations of abuse or neglect of children and adults. These agencies can have many different names. One such name for these types of agencies is the Department of Social Services (“DSS”). DSS employs caseworkers, psychologists and therapists. These professionals are employed to investigate cases and to ensure the safety of children and adults.
DSS’s role in a child custody case only arises in very limited situations. The agency is unlikely to be involved in your case unless a third party has made a complaint of abuse and neglect to the agency.
However, in the event that DSS or another state agency has become involved in your case, it is absolutely necessary to have an attorney. There are many negative consequences that come take place as a result of DSS’s involvement. For example, DSS has the authority to remove children from homes, place children in foster care and require mandatory participation in services including drug treatment, anger management and family planning.
There are also criminal charges that can be brought in most states as a result of abuse and neglect proceedings. These criminal charges carry a variety of sentences, but many have the possibility of jail time.
If you have been contacted by DSS or another state agency, you should immediately contact a local lawyer to discuss your case in more detail given the potential criminal charges and possibility of removal of the children from your home.
4. Types of Custody
As discussed more thoroughly above, each of these groups can have a direct impact on the outcome of your child custody dispute. The outcome of your child custody dispute is important to your finances because child support is based upon the type of child custody arrangement ordered by the court in many jurisdictions. There are two types of custody that you need to be aware of; physical custody and legal custody.
Physical custody is used to described the living arrangements of the children. For example; which parent will the children spend most of their time with and how often will the other parent have the opportunity to spend time with the children? Legal custody is used to described decision making authority for the children. For example; what pediatrician will the children use, what school will the children go to, what extra-curricular activities will the children participate in and what medical services will the children receive?
The courts use a number of factors in establishing a custody arrangement. These facts are state specific, and you should consult with a local attorney for more information on how your judge may react to your particular case.
There are three major types of custody arrangements in most states; sole custody, joint custody and shared custody.
A sole custody award means that one parent will be appointed as the primary custodian of the children. The children will spend most of their time with one parent, and the other parent will be given limited visitation. Furthermore, the primary custodial parent will be granted decision making authority for the children in terms of education and medical attention.
A common example of this type of custody arrangement is that the children will reside with one parent, while the other parent will be given visitation every other weekend. This type of custody arrangement is rare, as most states encourage active involvement by both parents in the children’s lives. Sole custody is typically reserved for cases of abuse, neglect or drug use, where one parent is unfit to look after the children for extended periods of time or to make significant decisions for the children.
A joint custody arrangement is one in which both parents share both physical custody and legal custody. This custody arrangement typically takes the form of rotating week blocks for each parent. Each parent also has an equal say in which schools the children will attend and what medical services the children will receive. Courts will often create tie breaking provisions in the event that the parents are unable to come to an agreement.
A shared custody schedule is one in which there is a primary custodial parent with whom the children spend most of their time, but the other parent has a significant amount of visitation and is still involved in decision making. This typically takes the form of rotating day segments whereby one parent will spend four (4) days with the children while the other parent will spend the next three (3) days with the children.
Each of these three types of custodial arrangements come with their own child support obligations. There are a lot of factors that go into child support calculations, but the general rule of thumb is that the more time you spend with your children, the less of a child support obligation you will have.
In summary, it is important to know who is involved in your case and how to interact with those groups in order to get the best possible child custody outcome for you and your children. Failure to properly understand these different groups will have a significant impact on your finances. Courts listen to these groups, and their opinions can change the type of custody the court will grant. As discussed above, each custody arrangement has different financial repercussions. The more time you spend with your children, the less of a child support obligation. Every cacse is unique and every state’s law is unique. Do not act solely on the information above, as it is for educational purposes. For more information on your particular state’s laws, consult a local attorney on your specific case.
Matthew L. Kreitzer is a divorce and child custody attorney. He provides services to clients in the Shenandoah Valley which includes Winchester, Woodstock, Front Royal, Berryville, Leesburg, Frederick County, Shenandoah County, Page County and Warren County.