Child's Rights in Custody


#1

My fiance has two daughters, the eldest being 11 1/2. Since his split with his ex-wife 3 years ago, the oldest has taken on the brunt of the ex-wife’s anger. She (daughter)is extremely unhappy, seems at times to be depressed. Her mother is very peculiar with what she will allow the kids to do and wear. The oldest has said that now her mother is slapping at her when she gets angry. We do not want to make things worse, by addressing the mother. She is a very angry lady and has always been. Besides getting Social Services involved is there any other suggestions? We are having trouble getting a “real” feel for how strained the relationship is between mother and daughter. The daughter has asked to come live with us, but we know the ex will not agree and would even fight. The ex even lies to the kids about their father not paying her child support and tells them they need to ask their dad to get them things. He is about to file for divorce. They have an ED agreement, at the time he just wanted out and to make it as easy for the kids as possible. She got the house and her car. He got the extra lot of land (his family’s) and his truck. He offered her whatever she wanted. The Child custody is she is primary and he has visitation. After over two years, this doesn’t seem to be in the best interest of the children. She does not divide the holidays as was agreed upon and doesn’t want us to get them for more than the 1 week in summer. Does the current custody agreement have to be incorporated into the divorce agreement, or can it be changed to 50/50 or something like; she gets all school weeks and he gets all weeks out of school, with the non-physical parent getting the odd weekend? Please let me know if:
The minor (11 1/2 yr) has any say in the custody arrangement?
If we have any recourse other than DSS for the possible emotional/physical abuse/neglect?
If we can have the custody changed at the time of divorce?
Thanks.


#2

If the custody has never been decided in court, then either party may file for custody regardless of the current arrangement. He can ask for primary custody or joint custody. They will have to go to mediation and then court if it can not be decided there. Joint & primary custody will only mean what the parents or attorney’s make it mean in court. Example: Joint custody with equal time means that the children have equal time with each parent (one week on, one week off) but unless the parents make around the same amount, one will still be paying child support. Joint legal and physical custody could mean that one parent has the child the majority of the time but both are equal in the major decisions. NC defaults to joint legal custody if not specified. Primary custody could mean that the child primarily resides with one parent while spending almost an equal amount of time with the other. Don’t get caught up in the wording so that you forget what the schedule means for the child. Custody can be determined at any time until the child is 18 or graduated from high school. Having a predetermined arrangement in the agreement should mean that the court never has to step in, but sadly, sometimes it is still necessary. It does not have to be incorporated into the divorce agreement or ED. Custody, ED, divorce are all separate issues to the court and only if the parents choose to combine them in an agreement does the court look at the overall and even then they do not based custody decisions on anything other than what is best for the child.

Child support is based on the number of overnights with each parent, salaries, and other costs such as insurance, after school care.

Keep in mind that he will have to show the court why it is not in the children’s best interest to continue the current custody arrangement. Expect that when the mother is served with custody complaint, she will hit the roof. I suggest having a recorder on your telephone for this. Express that the the father wants more time with the children…I do NOT suggest bringing up the emotional abuse at this time. Document, document, document. If the mother will agree to a change of schedule without going to court, it will be much easier, cheaper, and less stressful for everyone.
Take pictures of the child’s room at your home, the neighborhood, the school (if they have to switch). Document every incident you can remember where the holiday schedule was not followed, or the visitation schedule was changed. His job, if this goes to court is to show the courts why it will be in the children’s best interest to change their current arrangement and why he will be the best choice for primary custody. Alienating a child’s affection by one parent is usually frowned on but it’s difficult to prove since the children are not in court to testify. All the other information should be given to the attorney to present to the court. It is not his job to make her look like a bad mother…if the evidence is there, it will come out with the right attorney.
With a volitile situation, I suggest you get the child into counseling if possible and file for custody. The divorce can be granted 30-60 days after filing regardless of whether or not ED or custody have been decided.


#3

No, the custody agreement should not be incorporated into the divorce decree. This will allow the father to file an original action for child custody and present evidence in court as to why the children’s living with their mother full time may no longer be in their best interests. Some judges will listen to what children have to say (privately in chambers) with regard to custody however it is not determinative and the judge has discretion as to how much weight to give such evidence, or even to hear it at all.