How you hurt your kids when you don’t share custody – Kidspot
While it might seem completely justified, it’s important to be aware of the potential ramifications on the long-term health and well being of your child.
While it might seem completely justified, it’s important to be aware of the potential ramifications on the long-term health and well being of your child.
Quite often, I write about parental alienation and family court bias. Both, of these things do and will continue to occur in its present form unless, something dramatic changes. When we set foot into a family court environment to decide parental responsibilities, we have certain expectations that the term “best interests” of our child will be applied in the fullest measure possible.
Within the family court realm, there are essentially three people who will ultimately have a hand in the decision making process of where our child will live. First, you have an attorney for Mom, an attorney for Dad and finally, the judge who will decide the merits of the case. Obviously, the attorney’s job is to advance their client’s position and most times isn’t worried so much about the best interest standard.
This leaves the family court judge. These judges handle a great many cases that range from criminal to civil to family and anything else in between. As such, it is unreasonable to think that they are experts in all aspects of the law pertaining to the various disciplines. Also, they have limited knowledge of the family outside of what is presented to them in the courtroom. As a result, this can cause a judge to issue an order that may or may not be in the child’s best interest.
When applied, the term “best interest” should meet the legal definition. If, it does not then it is simply a useless phrase that is coined by the administrators of these proceedings to justify their rulings. Just so we’re all on the same page, let’s take a look at this term and what it implies. Though, each state may vary a bit in its definition, they all mention the main points.
Though, there are too many aspects to list in this article however, I will attempt to highlight some of the more obvious and relevant ones used in determining what constitutes the best interests standard. To see a complete list for your individual state, you can do a search of the term. The following are as listed, not necessarily in order.
*The age of the child;
*The relationship of the child with the child’s parents and any other persons who may significantly affect the child’s welfare.
*The preference of the child, if old enough to express a meaningful preference.
*The stability of any proposed living arrangements for the child.
*The motivation of the parties involved and their capacities to give the child love, affection and guidance. *The capacity of each parent to allow and encourage frequent and continuing contact between the child and the other parent, including physical access.
*Methods for assisting parental cooperation and resolving disputes and each parent’s willingness to use those methods.
*The existence of domestic abuse between the parents, in the past or currently, and how that abuse affects the child.
*The existence of a parent’s conviction for a sex offense or a sexually violent offense.
*Whether allocation of some or all parental rights and responsibilities would best support the child’s safety and well-being.
As you can see, there are many different aspects that judges must take into account when deciding the issue of parental responsibilities. None of these should ever be taken for granted lest, the child suffer due to the absence of one of these considerations. However, not all of the above mentioned are equally applied and sometimes, are ignored.
Should one of the parents display an unwillingness to follow these guidelines of best interests, then allocation should be given to the parent who is a willing participant. However, this does not always happen. There are times when the judge in these cases have demonstrated a certain level of hostility and bias towards one of the parents, attorneys or both, Further, their lack of understanding family law to the fullest, ignorance of motivating factors such as, parental alienation is a fairly common occurrence.
It is for these reasons that judges should be required to outline the guidelines, according to their respective state and go through them line by line explaining why each one is in compliance with their orders. I believe, that should a family court judge be required to do this, the very essence of transparency would eliminate any erroneous ruling and the best interest standards would be fully administered and served.
Finally, family court judges must be required to take educational classes to learn about a child’s best interest, as it applies to governing law. Lastly, family law cases must be separate from criminal and civil courts to insure that the judges are not only qualified but, also specialized in these matters. In allowing these things to take place, we may start to see some semblance of “best interest” standard being applied.
By David Shubert
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…and the “liberty” it protects includes more than the absence of physical restraint. (citations omitted). (Due Process Clause “protects individual liberty against ‘certain government actions regardless of the fairness of the procedures used to implement them’ ”) (quoting *720 Daniels v. Williams, 474 U.S. 327, 331, 106 S.Ct. 662, 665, 88 L.Ed.2d 662 (1986)). The Clause also provides heightened protection against government interference with certain fundamental rights and liberty interests. Reno v. Flores, 507 U.S. 292, 301-302, 113 S.Ct. 1439, 1446-1447, 123 L.Ed.2d 1 (1993); Casey, 505 U.S., at 851, 112 S.Ct., at 2806-2807. In a long line of cases, we have held that, in addition to the specific freedoms protected by the Bill of Rights, the “liberty” specially protected by the Due Process Clause includes the rights to… to have children, Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942); [and] to direct the education and upbringing of one’s children, Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923); Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925);…
Our established method of substantive-due-process analysis has two primary features: First, we have regularly observed that the Due Process Clause specially protects those fundamental rights and liberties which are, objectively, *721 “deeply rooted in this Nation’s history and tradition,” id., at 503, 97 S.Ct., at 1938 (plurality opinion); Snyder v. Massachusetts, 291 U.S. 97, 105, 54 S.Ct. 330, 332, 78 L.Ed. 674 (1934) (“so rooted in the traditions and conscience of our people as to be ranked as fundamental”), and “implicit in the concept of ordered liberty,” such that “neither liberty nor justice would exist if they were sacrificed,”(citations omitted).
Ask any civil trial lawyer in Florida how many days one has to move for rehearing of an order simply granting a motion for summary judgment, and the odds are good the lawyer will respond, “Ten days.” Pursue the matter further with the lawyer, and ask where this 10-day period is set forth in the Florida Rules of Civil Procedure, and the lawyer will invariably point to Rule 1.530, which by its title governs motions for new trial and rehearing.
Rule 1.530, however, provides that a motion for rehearing must be served no later than 10 days after “the date of filing of the judgment in a non-jury action.”1 An order simply granting a motion for summary judgment is not a final judgment; rather, it is a nonfinal order.2 So, too, are myriad other orders entered by a trial court before final judgment. Attorneys in Florida nevertheless regularly file “motions for rehearing” directed to such nonfinal orders. Often they believe they must do so within 10 days. Sometimes they also believe that such a motion tolls the time to seek appellate review of the nonfinal order.
Motions for rehearing of nonfinal orders are not authorized by the Florida Rules of Civil Procedure.3 Noting that motions for rehearing are exclusively governed by Rule 1.530, the Florida Supreme Court has observed that “[u]nless the filing of a motion for rehearing to an interlocutory order is authorized by a rule of court promulgated by the rule-making authority, then its filing is improper.”4 Indeed, it is not unheard of for an attorney to file a motion for “rehearing” of a nonfinal order and subsequently be confronted with a response from the other side echoing the court’s language and declaring that such motions are unauthorized and improper.
Yet while the rules of civil procedure themselves do not authorize motions for rehearing directed to nonfinal orders, a trial court does have the inherent authority to reconsider and alter or retract such orders prior to the entry of final judgment.5 Rather than constituting a motion for rehearing under Rule 1.530, a motion directed to a nonfinal order is actually a “motion for reconsideration” based upon this inherent and discretionary authority of the trial court.6 Despite this distinct and well-established basis for reconsideration of interlocutory orders, there still exists confusion among many practitioners about the differences between reconsideration and rehearing.
Much of the confusion stems from the fact that parties and the courts frequently use the terms interchangeably, at least in the context of motions directed at nonfinal orders. This is perhaps understandable given the lack of any rule-based authority for reconsideration of nonfinal orders; the articulation of the trial court’s inherent authority has of necessity come through the development of the common law. An attorney will, therefore, only be aware of the basis for reconsideration — as well as its effect on any subsequent appeal — from the case law.
Common Law Origin of Motions for Reconsideration
We are parents, grandparents and children forced into a corrupt family court system that functions to drain our money, time and future.
When we speak up we are retaliated against by a system of lawyers and judges who take our children, our property and our dignity in an effort to silence us.
We are not fighting the fight they want anymore. We will not have moms fight against dads. We will not force children in the middle to broker solutions for adults. We are not asking. Expect Us.
For every good judge and lawyer, who helped, you will be praised. For every Anonymous whistle blower or Ghost Squad Hacker who helps us speak up and protect families and children, you will be thanked by the success you help create.
Re-blogged from ~ Parenting Together….Living Apart
I am not alone in this, of course.
Today’s post is from a Division of Child Support case worker in a neighboring state who has contacted me several times concerning South Dakota’s unfair custody laws. She asked to post anonymously as she believes she could lose her job if her superiors knew of her stance. So I post this, humbled she would take that risk and grateful for her insights. I believe you will be too.
This is from the front lines of child support and custody in South Dakota and neighboring states. Our anonymous writer today works with custody and child support on a daily basis.
Here is her unedited letter:
“I am a Division of Child Support Caseworker in a state bordering South Dakota. As such, I speak with other caseworkers in SD and nearly all other states in the US every day, and know there are very few options for “non-custodial” parents who are being denied equal access to their children, unless they are fortunate enough to be able to afford a long and expensive custody battle, which is extremely rare, especially in cases where the parents were never married.
While your group needs to pursue one issue at a time, your particular issue being custody and visitation arrangements after a divorce, I hope that you will also pursue shared parenting and child support arrangements for parents who were never married, as this is an issue that definitely needs to be addressed and rectified.
Before continuing, I will say that I, and all DCS caseworkers, recognize that the “non-custodial” (and we don’t like that term) parent may be the mother rather than the father. In most cases, however, the NCP is dad and the CP is mom, so please forgive my use of general terms such as “she” and “he”. I use them for the sake of simplicity, not out of a lack of respect or understanding that mothers do sometimes get the raw end of the deal, along with their children.
In every state in this country, the child support system is not only broken, but is in desperate need of repair. It is unbalanced and very often unfair. The child support calculation is based on the income of both parents, in every state, although I will admit there could be a state or two that does not do it this way and I am just not aware.
In most states, if either parent is unemployed but not disabled, they are presumed to be capable of working 40 hours a week at minimum wage, so their income is imputed at $1275 per month. Following this calculation, if mom is willingly unemployed and dad is employed full time, making a mere $10 an hour, dad has a child support obligation of $357 per month for one child. (I got this number from SD’s child support calculator website and it is accurate.)
Every parent, regardless of the relationship (or lack of one) that existed at the time the child was conceived, has a responsibility to provide financial support for their child.
That is a fact. But, should dad, making $10 an hour really be forced to pay $357 to someone who is not willing to work? Where is mom’s responsibility in this? In these situations, mom (unless she is actually working 40 hours a week for minimum wage, which is rare), is receiving food stamps, Medicaid, and housing assistance, so she is sitting back, living a meager life and doing nothing to improve the lives of her children, and not having to lift a finger to do it. In the meantime, dad is working hard and still can’t afford to keep the lights on in his own home.
Most of the dads I speak to are willing to pay the child support, despite the financial stress. They understand that there is a little person out there who needs their help, and they are okay with that. In many of these cases, dad has not seen his child even once since the relationship with his child’s mother demised, and he has no recourse other than to hire a lawyer to get a visitation order. The first problem with this is that dad, making $10 an hour and paying $357 a month in child support has no money left over for to hire a lawyer. The second problem with this is that, even when he does and gets the order, mom can still deny the visitation and there will be no consequences to her for doing so. Sure, dad can take her back to court again, and the judge will tell her to behave, but if she doesn’t, nothing will happen in SD. Dad and the kids are still denied access to one another.
Approximately 2 years ago, the state of Illinois passed legislation that actually puts repercussions in place for CPs that refuse to follow the Illinois State Visitation Guidelines. If the CP denies access to the children to the NCP, her driver’s license can be restricted, and not be reinstated until she complies. What a novel idea. I am beside myself, wondering why every state has not enacted this legislation. We restrict, suspend, or revoke the driver’s licenses (and other licenses) of NCPs when they don’t pay the child support, even when they are unwillingly unemployed, yet we allow CPs to use their children as weapons against NCP, regardless of whether he is paying.
I had two office visits today, both from dads who are doing the best they can and still are being denied access to their children, simply because mom decided she doesn’t like them anymore. The first has a 5 year old daughter that he desperately wants to have a relationship with, but hasn’t been allowed to see since she was 1 year old. At least in that situation, the poor child doesn’t know what she’s missing in not being able to see her dad. The second is much more sad, and it honestly makes me very angry. Dad raised mom’s first child as his own from an infant to 4 years old. In the meantime, they had a child together. They were together for another year or two. For the next several years, dad had BOTH kids – even the one that was not his – for weekend visitation. Not enough, but at least it’s something. Then, mom decided to pull the rug out from underneath dad, with no consideration for her children. Dad has now not seen either child for a year and a half. He and mom were not married, so mom has all the power, unless he can afford an attorney, which he can not possibly afford to do.
As we sat and talked, there were several times that I could see he was struggling not to cry. Ever since mom decided (for what crazy reason no one knows) to withhold visitation, both children, and especially his biological child, have been acting out in school. They’ve been bullying other kids and being defiant to authority. His biological son was finally allowed to see his half sister (that dad had from another relationship) after being denied access to her for a long time.
According to his sister, all he talked about was how much he missed his dad and how he is so happy he has all these things that his dad gave him, because it helps him remember his dad. Mom has the kid in therapy, that dad is paying for, and she is apparently oblivious to the reason why the kid needs therapy. I could tell her, but it would probably result in me being fired. Mom has 3 kids by 3 different dads and I would like to talk to her about that as well. Bottom line is mom is sitting back, collecting child support and state benefits, and not doing a damn thing to support her children, but she will be the first to call if a payment is a day late. This is just one case I am telling you about, and it’s not even the worst one; it’s just the one at the top of my mind.
The bottom line is this. We need to have state agencies that provide free services for NCPs to have fair and equal access to their children. We already have state agencies that help people who make no contribution themselves collect child support, and we are screwing kids and NCPs in the process. That is not acceptable in any state. I hope your legislature – and mine – will figure that out. Good luck and God Bless to you and your children.
All that being said, I hope all the NCPs (I really hate that term) understand that your CS case worker is not against you. We are forced to support the order, whatever that may entail. We have no power to help you with anything else, but we really would like to. God bless and God speed to you and your children.”
The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.” – Pierce v. Society of Sisters, 268 U.S. 510 (1925)
“It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder…. It is in recognition of this that these decisions have respected the private realm of family life which the state cannot enter.” – Prince v. Commonwealth of Massachusetts, 321 U.S. 158 (1944)
“The Due Process Clause does not permit a State to infringe on the fundamental right of parents to make childrearing decisions simply because a state judge believes a ‘better’ decision could be made.” – Troxel v. Granville, 530 U.S. 57 (2000)
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