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Archive for the tag “parents”

‘Kids Are Resilient’ and 7 Other Lies Divorcing Parents Should Stop Believing

Every now and again Yahoo posts an article that I find really good.  As it turns out they posted one this week entitled “‘Kids are Resilient and 7 Other Lies Divorcing Parents Should Stop Believing” which they reposted from www.yourtango.com.

As a family (e.g.: divorce and custody) lawyer I found this piece confirmatory of the things I have seen in my practice over the years and, indeed, have heard each of these “seven lies” countless times over those years.  Of course, I approach these issues from a Christian perspective as well and, unsurprisingly, all of these “lies” run contrary to Christian teaching as well.  Indeed, it is refreshing to see what appears to be an entirely secular article, written without any apparent religious overtones, totally confirm what Christians have been saying for centuries.  Maybe secular science and sociology and other such fields will finally catch up to the Church after all?

Here is an excerpt from the article which you can find here:
“As a former divorce mediator, and current couples and family mediator, I have heard every excuse that parents use to feel better about breaking up their family. In this article, I’ve outlined several of the most common lies that you might be telling yourself if you’re considering divorce. Before you believe them, or give up on your marriage, you might want to check out my Marriage SOS book series and do some serious soul-searching.”

Happy Adoptions

When people ask me what I do at work, I often joke that “I hear complaints and get yelled at all day.”  By that I mean, my clients come to me with complaints about others, or yell at or argue with me over their case, judges are often not the nicest people to interact with, other attorneys, by the nature of their jobs, argue with me, opposing parties and witnesses, of course, hate my guts, and, my boss, like any other boss, is someone who tells me what to do in not always the gentlest of fashions.  I am lucky in some ways, as other lawyers do not have the benefit of working with nice people as I do, so I suppose I should count my blessings on that score.  Otherwise, I could add my unpleasant co-workers to the above list.

            One big exception to the above is adoptions.  Now, I realize some adoptions are highly contentious, but, luckily for me, the ones I have been involved in have not been.  These adoptions involve very excited adopting parents who truly, and rather obviously, love the children they are wishing to adopt.  The opposing sides, in the cases I have litigated, were, either overtly or at least tacitly, attempting to better their children’s lives by cooperating with the adoption process.  The children, at least those who are old enough to have some idea of what is going on, are happy to formally have a family that is secure and not subject to the insecurity, whims, substance abuse, danger, and/or other issues which beset their parents.  Finally, judges always seem to be happy to preside over an adoption like this, where it is clear that everyone agrees on the adoption and are truly happy with his involvement in it to make it official.  Indeed, I have never seen any other type of case where the litigants, and sometimes their attorneys, are invited to shake hands and take pictures with the judge who presided over the hearing!

So, every now and again, when I think about the stress of the practice of law, I try to remember that there are times when the legal process is a happy one where everyone in the process is cooperative and on the same page and happy to pursue the goals sought.  It is also very nice to know that the children are really, truly, and substantively having their lives improved through being adopted by parents who are loving, and truly want these children as a part of their lives.

Do Non-Parents Have Custodial Rights Over a Child?

It goes without saying that a mother and father, generally speaking, have the primary right to custody over their child(ren). However, there may be times when a person who is not a parent may also have custodial rights over a child. With the rate of children being born to unwed parents at an all time high, which has also coincided with the worst economic climate in generations, many a parent has taken to relying on others to assist in the rearing of his/her child(ren), more frequently than in recent memory. This article will set forth the rights of persons who, assisting in the rearing of these children, may also have a right to the custody of the child(ren) of another in addition to, or instead of, the custody rights of the child(ren)’s parents.

The most common person who may have a right to custody of a child is a grandparent. Due to grandparents seeking custodial rights over their grandchildren becoming so common, the terms and guidelines by which a grandparent may have custody has been codified as 23 Pa.C.S.A. Section 5313. Generally speaking, a grandparent may only petition for “reasonable” partial custody and/or visitation of a grandchild if the grandchild has lived with the grandparent for at least twelve (12) months. The Court will only grant a grandparent partial custody and/or visitation of a grandchild if said custody/visitation is in the best interest of the child and will not interfere with the parents’ relationship with the (grand)child at issue.

Aside from the above, 23 Pa.C.S.A. Section 5313 also permits a grandparent to assume primary (or, perhaps, sole) physical and legal custody of a grandchild if certain conditions are met. Specifically, in the event that it is in the best interest of the child not to be in the custody of either parent, and also in the best interest of the child to be with his/her grandparent, a grandparent may be awarded custody if: (a) the grandparent has genuine care and concern for the child; (b) the grandparent’s relationship with the child began with the consent of a parent and/or order of court; and/or, (c) who has, for twelve (12) months, assumed the role and responsibilities of the child’s parent (or assumes the responsibility of the child’s parent pursuant to a dependency action), and/or believes the child is in substantial risk due to parental abuse, neglect, drug/alcohol abuse, and/or mental illness.

For the sake of completion, it should be noted that any custodial/visitation right afforded to a grandparent is also afforded to a great-grandparent. Additionally, the custodial/visitation rights of grandparents (and great-grandparents) are terminated and/or do not apply to a child who has been adopted by a person other than a stepparent or grandparent.

There are times when a party, who is not a parent, grandparent, or great-grandparent, may also assert custodial/visitation rights over a child; a custody action of this sort is commonly called a “third party custody action”. The threshold issue for a third party seeking custody of a child to establish is that s/he has standing to bring the custody/visitation action in the first place. To establish standing to bring a third-party custody action, a party must first overcome the presumption that any party, by definition, who is not a parent, grandparent, or great-grandparent, lacks standing to bring a custody/visitation action. In order to overcome the presumption, the third-party seeking custody/visitation must prove that s/he stands in loco parentis; that is, in the place of a parent. In order to establish that one stands in loco parentis, one must prove that s/he has essentially assumed parental status over a child and discharges parental duties for the same.

What does it mean to assume parental status? It means, for example, that the child lives with the third party; and/or, the child calls the third party mom/dad; and/or the third party holds him/her self out as the child’s parent; and/or the third-party performs duties usually reserved for parents. The third party’s attempt to assume the parental role and discharge parental duties may not be in defiance of the child’s parents. Additionally, simply being a child’s babysitter or caretaker, even if it is frequent, does not qualify one to custody.

Once a third party establishes that s/he stands in loco parentis for a child, the third party must then prove that it is in the best interests of the child for him/her to be awarded custody of the child. However, the burden of proof for the third party greatly exceeds that of a parent, grandparent, or great-grandparent. A third party must prove, by clear and convincing evidence, as opposed to merely the preponderance of the evidence, that awarding him/her custody is in the best interests of the child at issue. Additionally, the third party bears the burden of production, proof, and persuasion when seeking custody of a child. Interestingly, the third party’s burden is not reduced if s/he is a member of the child’s family.

Finally, a Court will act to protect the relationship of the child’s relationship over that of a third party. Suffice it to say, though it is possible for a third party to be awarded custody of a child, it is an extremely difficult task. Indeed, probably the best forum for a third party seeking custody of a child would be in the context of a dependency action.

Although, generally speaking, only a child’s parents have the right to have custody of their child(ren), as noted above, there may be times when a non-parent can assert custodial rights over a child. When it comes to the custody of a child, the best interest of the child is the ultimate determinate of who is awarded custody. Indeed, despite all of the drama and angst often so prevalent in custody cases, it is hoped that all parties involved ultimately want what is best for the child at issue and the child will end up living with the best person for him/her.

This Article Appeared in the Philadelphia Bar Association’s “Upon Further Review” on August 12, 2010 and can also be found here on my website.

This article was also reprinted in the “Pennsylvania Family Lawyer” in September 2010.


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