Co-authored by Sophya Qureshi Raza and Misty A. Watson
Often, a situation arises where neither of a child’s biological parents is able to care for the child. It then becomes necessary for a non-parent to take legal steps to be appointed guardian or custodian of the child.
The terms “guardianship” and “third-party custody” are often used interchangeably. However, although the concepts are similar, it is important to be aware of the differences between guardianship and third-party custody to know which option fits your needs if you find yourself in this situation.
The major differences between guardianships and third-party custody are as follows:
Eleven years ago, the United States Supreme Court decided Troxel v. Granville. This case ultimately decided that fit parents are presumed to act in their children’s best interests and that no state should interfere to second guess the decisions of the parents in denying grandparents visitation with their children.
Many states rewrote their grandparent visitation laws following the Supreme Court’s decision. Today, state grandparent visitation laws vary widely from prohibiting grandparents from seeing their grandchildren unless the parents agree to courts applying a “best interest” standard in determining whether grandparents can visit their grandchildren despite the parents’ wishes.
In Missouri, for example, a court may grant reasonable visitation to grandparents when:
However, if the parents are legally married and living together with the child, the parent is presumed to know what is in the best interest of the child. Missouri’s statute is seen as one of the more “parent-friendly” laws in the country.
The Supreme Court will be deciding whether to hear an Alabama case striking down that state’s grandparent visitation law as unconstitutional. Officials in Hawaii, Louisiana, Ohio, Michigan and Washington have also joined in the request. The law in Alabama allowed grandparent visitation despite the parents’ wishes.
This issue is one surrounded by high emotions and much debate. Parents believe that they should determine who can spend time with their children and that the courts shouldn’t be able to step in to order grandparent visitation over their objections. The litigation in these circumstances vary from intact two-parent families being sued by grandparents to situations stemming from tumultuous divorces and remarriages, disputes with one parent after another dies, and other cases.
If you find yourself in this situation, as either a parent or a grandparent, remember that court does not bring families together. In fact, it does quite the opposite.
Missouri has a mediation provision for grandparents in this situation, which provides that a grandparent denied visitation can request court ordered mediation.
Sometimes, this is the least traumatic avenue to pursue.
Posted by Attorney Sophya Qureshi Raza. Raza practices family law where she effectively guides clients through dissolution of marriage, modifications of prior judgments, and resolving child custody and paternity disputes. She also helps families with legal guardianships and conservatorships for the elderly and disabled.
In her article “9 Questions to Keep Your Divorce Lawyer Honest,” Diane Mercer (attorney, mediator and author) advocates asking specific and tough questions of your divorce attorney.
I think these are wonderful questions to ask BEFORE you hire an attorney.
Beware of the attorney that says that there is no worst case scenario, that your case has a slam dunk argument, or that he/she is 100% certain your argument will prevail. This type of attorney just wants your money.
Any competent attorney knows that the outcome of a divorce is never guaranteed or certain and should be more than willing to give you honest answers to these questions.
As a client, having your expectations set prior to litigation is essential to help you manage your emotions and expectations during the process.
Posted by Attorney Sophya Qureshi Raza. Raza practices family law where she effectively guides clients through dissolution of marriage, modifications of prior judgments, and resolving child custody and paternity disputes. She also helps families with legal guardianships and conservatorships for the elderly and disabled.
I came across this great article about how to deal with emailing your spouse/ex-spouse.
Taking the emotion out of your correspondence will go a long way in keeping the peace.
Posted by Attorney Sophya Qureshi Raza. Raza practices family law where she effectively guides clients through dissolution of marriage, modifications of prior judgments, and resolving child custody and paternity disputes. She also helps families with legal guardianships and conservatorships for the elderly and disabled.
Here are some good tips to keep in mind when searching for a Family Law Attorney from the Huffington Post.
Posted by Attorney Sophya Qureshi Raza. Raza practices family law where she effectively guides clients through dissolution of marriage, modifications of prior judgments, and resolving child custody and paternity disputes. She also helps families with legal guardianships and conservatorships for the elderly and disabled.
In Missouri, child support is determined by the Form 14. Up until recently, if you were the spouse paying child support and shared roughly equal custody with the other parent, you were entitled to up to a 34% adjustment which reduced your child support obligation. This credit was based upon how many overnights you had with the child.
The Missouri House of Representatives has passed a new bill in May of 2011 that directs the Missouri Supreme Court to amend the child support guidelines in this regard. Now parents who share equal or substantially equal time with their children may be entitled to an adjustment of up to 50% of their child support obligation. This could have the effect of substantially reducing a parent’s child support obligation in those cases of joint custody.
Missouri law provides that your child support obligation is modifiable, i.e. you can request that the court increase or decrease it. If it has been a few years since you have visited revising the terms of your child support, or you have never modified your support, this change may be a good reason to have it reviewed by an attorney to see if your child support can be modified.
Posted by Attorney Sophya Qureshi Raza. Raza practices family law where she effectively guides clients through dissolution of marriage, modifications of prior judgments, and resolving child custody and paternity disputes. She also helps families with legal guardianships and conservatorships for the elderly and disabled.
An appellate court in Illinois has (thankfully) dismissed a lawsuit against a mom, Kimberly Garrity, by her adult children for “bad mothering.” Amongst their complaints supporting their request for damages for emotional distress were: Garrity had told her son to buckle his seat belt; had called her daughter at midnight while she was at homecoming, requesting she come home; sending son a birthday card without any money; failing to take her daughter to a car show and changing her last name after the divorce. And if this isn’t ridiculous enough, the son and daughter were championed by their attorney father, Steven A. Miner, who helped to represent them. He stated: “[I] only filed the lawsuit after much legal research and had tried to dissuade [my] children from bringing the case.” As an attorney, but more importantly as a father, he should be ashamed. Did he really believe that he was working for justice? Or was he just motivated by pure hatred of his ex-wife?
After Kimberly and Steven were divorced in 1995, the children moved in with their dad. They were 7 and 4 at the time. The fact that these children filed such a lawsuit against their mother is an indication of how these parents handled their divorce. Yes, the children are now adults and should know better. But I believe that how these parents conducted themselves in their divorce and in the years following contributed to this ridiculousness.
Emotions are at an all time high during a divorce, especially when children are involved. Serious damage can be done to children who are caught in the crossfire between two parents battling for control.
Even though it’s very difficult to resist the urge to bad mouth the other parent, think of your children before you do so.
Posted by Attorney Sophya Qureshi Raza. Raza practices family law where she effectively guides clients through dissolution of marriage, modifications of prior judgments, and resolving child custody and paternity disputes. She also helps families with legal guardianships and conservatorships for the elderly and disabled.
I often receive calls from people who want to modify their custody schedule because their child is old enough to decide where he wants to live. They ask “how old does a child have to be to decide which parent he or she wants to live with”?
It is a very common misconception that there’s a law out there stating that a child can chose to live with Mom or Dad at a specific age. Fourteen is the age most suspect it might be. No such law exists in Missouri.
In Missouri, the reality is that custody determinations are made based upon the “best interests of the child.” When it comes to those best interests, the statute lists several factors that the court must consider including:
1. Wishes of the child’s parents;
2. Needs of the child for a frequent, continuing and meaningful relationship with both parents and the ability and willingness of parents to actively perform their functions as mother and father for the needs of the child;
3. Interaction and interrelationship of the child with parents, siblings, etc;
4. Which parent is more likely to allow the child frequent, continuing and meaningful contact with the other parent;
5. Child’s adjustment to the child’s home, school and community;
6. Mental and physical health of all individuals involved, including any history of abuse of any individuals involved;
7. Intention of either parent to relocate the principal residence of the child; and
8. The wishes of the child as to the child’s custodian.
So even though your child’s wishes are taken into consideration, it’s just one of the eight factors.
In my experience, children over 12 years old are more likely to be listened to than a younger child who states a preference on which parent to live with. The factors above are definitely subjective and and judges seem to decide differently in every situation. It’s always better if mom and dad (and the kids) can agree on their own.
