Question:

My wife says she is leaving and taking the kids.  I don’t want her to.  What do I do?

Answer:

First, tell her that she can go, but the kids stay.  Protect your father’s rights. You have joint legal custody and joint physical custody until and unless the court says otherwise.  You have the right to pick them up from school or any other place she takes them.

Second, call your lawyer.  He or she will try to reach a written agreement with your wife’s attorney about the children, even if it is a temporary one.  The agreement will cover who lives where, how much time each party spends with the children and how the bills will get paid.

Third, if you can’t reach an agreement, then you can petition the court for a custody and access order.  This will usually involve legal fees, pleadings and a hearing.

1.  You Might Lose. Half of the people that go to court lose.  In every case, there is a winner and a loser.  And even if you win, you may lose, because of attorney fees and other costs, like the lasting acrimony and damage that a trial can cause.

2.  Trials Are Expensive. Trials involve enormous expense, time and uncertainty.  You have to take time off from work.  Lawyers and expert witnesses may cost thousands of dollars.  You are spending your kid’s college money.

3.  Lawyer Time is Not the Same as Real People Time. The system is slow.  It takes a long time to get to trial and the judges do not always rule at the end of the case.  They may take a case under advisement at the end of the trial, which means they want to think about it.  Then you may not get the result for weeks or months.  And then there are the appeals.

4.  Judges Are Not Trained for This. Psychologists, psychiatrists and social workers are trained in human behavior.  Many mental health professionals have expertise in custody evaluations.  Judges on the other hand are lawyers.

5.  Decisions Are Being Made by a Stranger. Judges are strangers to your life and marriage and they are called upon to make a decision after hearing only a few hours or a few days of testimony about a marriage that may have lasted for years.

6.  There Is No Lie Detector at the Bench. There is no truth detector at the judge’s bench.  The courthouse is not a fairness store.  It is a decision store.  One party wins and one party loses.  Judges are only human, they are not perfect, and the winning party is not always the deserving party.

7.  Judges Are Limited in What They Can Do. They are also limited by the legislature in how they must rule.  Private agreements between the parties are not.  You can be much more creative than the judge can.

8.  Judges Are Not Perfect. Judges are only human and they make mistakes.  We pay them to make decisions, and resolve disputes, not to be all knowing.  Sometimes they make the wrong decisions.  Do not think because you are right, that you will win.

9.  Even When You Win, You Lose. Custody trials can be very destructive to relationships.  Children are put in the middle. After the trial, you still have years to raise children with the mother.  You may have won the battle but lost the war.

Worry, stress and anxiety are common human emotions.  People will find something to worry about even when times are good.

When going through a divorce or other legal proceeding concerning conflicts about children, you will find many things to worry about, and you will have good reason to worry.  But instead of  worrying about your problems, try worrying at your problems.  Instead of letting your mind be consumed with worrying about how bad the situation is, you should concern yourself with what you can do to solve the problems.

Outline your problems in writing.  It helps you to focus clearly.  Then destroy these notes so they are not used against you by the other side.

Madonna and Guy Ritchie are calling it quits after almost eight years of marriage, according to USAToday.Com.

Madonna and Ritchie were married in December, 2000.  They have two children: Rocco, 8, and David Banda, 3, who was adopted from Malawi. Madonna also has a 12-year-old daughter, Lourdes, from Carlos Leon.

Madonna is worth about $490 million and Ritchie is worth about $35 million.  They own homes in London, Los Angeles and New York, and a 1,200-acre retreat in Wiltshire, England.

They still have to agree on a financial settlement and child custody.

While many clients think the trial resolves everything, most lawyers know that is not the case.  If the mother of your children was difficult before the trial, the trial is not going to make her into a different person.   She will still be difficult, you will have disputes regarding the children and you will need to resolve them somehow.

The court has the power to enforce its orders or the agreement of the parties.  So the court can order a mother to allow visitation or can order a father to pay child support.  However, the court will only do this if one of the parties asks it to do so by filing a petition.  The other party will then have an opportunity to respond and a hearing to present their side to the judge.

It is always better to resolve disputes yourselves if possible.   If you have a settlement agreement, you can include a provision that disputes will be submitted to mediation before taking the other party back to court.

You can also include a Parenting Coordinator in an agreement.  This would be someone that the parties can take their disputes to and let them make a decision.  This is less costly and time consuming than litigation.

If you cannot resolve your dispute through one of these methods, then you must go back to court and ask the judge to decide.  In some cases, it may be like trying your case all over again.  In addition to resolving post-trial disputes, the court has the power to modify legal custody, physical custody, timesharing and child support after the trial, if circumstances change and the modification would be in the best interests of the child.

Every judge sees it differently. If the judge’s father abandoned his family and the judge’s mother slaved day and night to help her son through law school, then the judge will have a hard time understanding why a father should have custody. The mother does not have an automatic edge in litigation. Fathers win in a lot of litigated cases.

There are certain doctrines and presumptions (but not inflexible rules or requirements) which aid the court in determining the best interest of the child:

1. Parental rights. Parents must be shown to be unfit before the children will be given to someone else, such as grandparents.

2. Continuity of placement. If children are doing well where they are, do not mess things up by moving them.

3. Children’s preference. A judge will consider who the children want to live with. The judge may talk to the child in private and may talk to a child younger than fourteen years of age. The judge is not bound by what the child wants.

4. Other. The court can consider the custodian’s age, health, wealth, religious beliefs, conduct, type of home, psychological evaluations; the location of the residences of the child’s siblings; the child’s school performance; or anything else the court considers important.
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“Calm down!” “Stop whining!” “Be more respectful!”

I wish I had a nickel for every time I’ve said that to my kids.

Dr. Michele Borba, in an article at iVillage.com, says this is Parenting Mistake #1.  Rather than assume our kids know how to act, use the opportunity to teach them a new behavior or skill.

She suggests you call the child on the bad behavior briefly, then show, don’t tell, the replacement behavior.

For example, if your child whines, you say, “That is a whiney tone. Listen to my nice tone. Now you try.”  Or if your child is angry, for a younger kid, say: “When you start to feel yourself getting mad take big Dragon Breaths.” For an older kid, say: “Take a deep slow breath, and count slowly to ten.”

A Father’s Rights Journey Gone Sour

After an eight year custody battle with Kim Basinger, Alec Baldwin has harsh words for judges and lawyers reports ABC News.

“I don’t care if the judges and the lawyers die of heart attacks in the process of getting their job done. They are corrupt, inefficient, lazy, stupid — they’re the most God-awful people,” Baldwin said.

Baldwin’s new book, “A Promise to Ourselves: A Journey Through Fatherhood and Divorce,” hits stores tomorrow.

“The judges are like pit bosses in Vegas casinos,” says Baldwin.  “Their job is to make sure everybody stays at the table and keeps gambling.”

Baldwin and Basinger have had 91 court proceedings so far, and about $3 million in legal costs.  That’s enough to make anyone mad at the system.

By Jill H. Breslau

Language can impact our thinking and behavior. Language in statutes regarding custody, for example, can influence –if only in a subtle way—how we perceive our relationship to our children.

For example, in Maryland, where I practice now, and many other states, custody of your own children is described as a right. As a parent, you have a right to the companionship of your children, you have the right to teach and guide them, to nurture them, to direct, and control their behavior. You have the right to decide where your children go to school, whether and where they attend religious services, what kind of medical treatment they receive and from whom. In Maryland, custody may be shared or sole, and the other parent may be awarded access or visitation.

In Florida, where I used to practice, and in several other states, the “custody” and “rights” language has been deliberately replaced by different vocabulary with a different perspective. Parents in Florida are not awarded custody. Instead, parents have responsibility for their children, and parental responsibility, at divorce, can be shared by both parents or can be delegated to one parent alone. With shared parental responsibility, parents share time with their children and both parents are entitled to have full information about the children and to share in major decision-making for the children. Sole parental responsibility is awarded only when sharing would be detrimental to a child.

I believe the difference in language—rights versus responsibilities—impacts the way we approach custody in divorce. If we believe in our rights, then we have to fight for them, and we have to win them. Our children, on some level, are perceived as objects to be gained or lost. There is a sense of ownership, rather than relationship.

On the other hand, if we perceive that we are undertaking responsibilities to our children, we may be more cautious about considering what is really best for them. We may be more focused on how we can accomplish the tasks associated with child-rearing than on establishing our parenting superiority.

By Jill H. Breslau

Historically, in Maryland, there was a time when the father was the preferred custodian for the children, since he had the duty to provide for their protection, education, and maintenance.

Later, there was a maternal preference, especially in the case of young children, called the Tender Years Doctrine. Now, the law requires that neither parent be given preference solely because of his or her sex.

The standard for determining custody is the Best Interest Standard; that is, what arrangement for access to both parents will be in the best interest of the child. There are many criteria for Best Interest, but the court has broad discretion to make decisions. Factors considered in custody disputes include the fitness of the parents, their character and reputation, what the parents want and what agreements they may have reached, the preference of a child who is old enough to form “a rational judgment,” the age, health, and sex of the child, and such other factors as whether there has been abandonment, abuse, or adultery (if detrimental to the child).

What does that mean, in practice? Statistics reflect that in the vast majority of divorces, mothers get primary custody—whether by agreement or by court order. Why? Because the law looks backward to determine the future. Whatever circumstances have existed before carry the most weight in a court’s determination about what ought to happen in the future. So if a mother has been the person who has taken the children to the doctor, if she knows their teachers and their clothing sizes and who their friends are, if she has made the babysitter arrangements and play dates and handled most of the day-to-day decision-making and discipline of the children, she will have a good chance of obtaining custody.