Wednesday, August 22, 2007
Parents are living apart but not divorced
If 2 married people have a child and decide to quit living together, if there are no court orders, then either parent can have custody of the child. However, please understand that there might be a court order that you are unaware of. Being unaware of a court order, is NOT a reason to violate a court order. Judges do NOT like it when people do NOT follow their orders! If you are served divorce papers, if you do nothing you are held to be responsible to know what happened in the case. Even if your spouse swears that the divorce has been dismissed, it is your responsibility to do the research and make sure the case has been dismissed. Ignorance of the law is not an excuse! If you violate a court order, you can be held in contempt of court and be fined and/or jailed. Judges usually punish people that don't follow their court orders. I encourage people to work out their problems and consider what is best of the minor child(ren). However, a parent cannot kidnap a child(ren) if there is no court order in effect. That said, the courts don't like a parent that takes a child and hides the child from the other parent. The courts hear complaints about this sort of problem on a daily basis and the judges get tired of parents trying to hurt each other and not considering what is best for the minor child. The judges will begin each case as considering both parents equally qualified to raise the child. The burden is on YOU to show why you are the better parent. We have all done things as parents that we regret - however, hopefully we have all learned through our mistakes to be better people and parents. I try to use common sense when explaing "best interests" to a potential client. To my knowledge, there is no exact definition for best interests of a child. It's kind of like that old joke about pornography - you know it when you see it. The judges recognize that you selected each other, got married, then voluntarily produced a child or numerous children. The judges don't like it that now that you decide to divorce the other parent, the other parent is now a bad, irresponsible parent. If you are going to allege wrongdoings on behalf of the other parent, you need witnesses and evidence. A written and notarized statement is not enough. Every person has the right in court to cross-examine a witness. Therefore, you need anyone with person knowledge to appear in court, be sworn in, testify and be cross-examined. The Judge will determine each witnesses credibility. Again, credibility is a difficult term to define. Basically the Judge will try to decide who is telling the truth. A witness can only testify to something they have personal knowledge of -- they heard it, saw it, smelt it, or even tasted it for themselves. The judges think -- if YOU married the other person, lived with the other person for years and then reproduced (for most people they reproduced several times) -- then NOW why is the other parent so bad. If the other parent is so bad, why did you stay with him/her? Doesn't that show poor judgment on your part? If you married and repeatedly reproduced, doesn't your spouses poor judgment reflect badly on you too? Example: 2 drug dealers separated both wanted custody of the child. The father said that Mom left cocaine out on the coffee table in a crystal bowl. He did not move the crystal bowl so the 2 year old could not reach it. How was he any better than the mother?