Who Gets Custody When Child is born out of wedlock.

The father of a child born out of wedlock has the same parental preference rights to custody as he would had he and the mother been married, provided the father has diligently and timely pursued his claim. The key is that the father must proactively pursue the parental rights to which he is entitled. Generally, the mother will take custody of the child immediately following birth, and the child may live with the mother for an extended period of time while the father will have to pursue legal action to assert his parental rights. At least one court has held that in the ensuing custody proceeding, the standard to be applied requires the father to prove that a change of custody will materially promote the child's best interests. As always, the ultimate question is "what is in the best interest of the child?" The resolution could be primary custody to the father or split custody if that is what is best for the child. Find out more about Child Custody Modification.

Legal Tips for Child Custody Modification

Generally, a party seeking child custody modification must first file a motion to modify in the original case. The modification documents should specify why a change in circumstances exists and what changes are sought. Some states also require a supporting affidavit or declaration. This affidavit should include the specific facts supporting the parties' allegation in the petition of how the child is being harmed in the present environment. The documents should also state how the child would benefit from the requested change.

If possible, a party seeking a child custody modification should also submit supporting affidavits from medical personnel, teachers, neighbors and any others who have witnessed events demonstrating the undesirability of the current custody arrangement. If the basis for the change in custody is child neglect, affidavits of social workers, neighbors, babysitters, or school personnel with personal knowledge of the neglect should be included. Likewise, if the basis is some type of abuse, an affidavit of a physician, nurse or other medical personnel describing the injuries and the type of treatment given should be included. CLICK HERE to Find Out More.

5 Key Tips When You Go To Court

Believe it or not, most non-lawyers do not know how to properly present and conduct themselves in court. Below are 5 key points to follow when going to court. Although they may seem like common sense, most people do not follow some or any of these crucial tips. And remember, if you are going to court to fight for the custody of your child, or to increase your visitation, (modify parenting time) or lower or increase child support, every little thing can add up to make a big difference.

Follow these courtroom tips:

1. Arrive in court early- First impression is so important. If you show up to court late, and the judge has already called your case, what do you think the judge will think? The judge is likely to think that you don't care enough about your case to show up to court on time and that you don't have respect for the court's time. What a bad first impression. Avoid this mistake and show up to court early.
2. Dress professionally- You don't need to wear a suit (although you can), but dress professionally. Again, first impression with the judge is vital.
3. Be prepared- Bring all of the documents and evidence that you may need to court. And have it well organized so that you are shuffling through papers during court to find something that the judge may deem relevant. Also, bring 2 copies of everything to court- one for the judge and one for the other party.
4. Be polite and professional- Just as you don't want to be interrupted when you are talking, show everyone else the same courtesy. NEVER interrupt the judge when he/she is talking. Remember, the court is going to do what is in the best interests of the child. You want the court to know that you are worthy of the responsibilities you are requesting. And always address the court when you speak, and refer to the judge as "Your Honor."
5. If the Judge asks you a question, answer the question- This tip sounds obvious, doesn't it? Amazingly enough, when asked a question, people often give long, drawn out answers, yet never answer the questions asked. As I always advise clients, "If the judge asks you what time it is, don't tell him how to build a clock."

Follow these tips and you will be giving yourself a better chance of the judge granting your request. And always remember that the focus of any child custody hearing is what's in the best interests of the children. CLICK HERE for professional legal help from Child Custody experts.

Claiming Child on Taxes

Can you claim a child if you agree with your ex-spouse to claim him 1/2 the year and he claims him the other 1/2 of the year?
The child dependency exemption cannot be split. Typically, the custodial parent is treated as the parent who provided more than 50% of the child's support. This parent is usually allowed to claim the exemption for the child if the other exemption tests are met. However, the noncustodial parent may be treated as the parent who provided more than half of the child's support if certain conditions are met. There are circumstances where a court may allow the deduction to be taken by each parent on alternating years.

Can a court order determine who takes a child for a deduction? Does the court order supersede the IRS requirements?
Federal law determines who may claim a dependency exemption. A determination by a state court judge is still subject to the IRS requirements regarding deducting a child for income tax purposes.

Choices for granting custody and visitation rights

While the laws vary from state to state, the principles of child custody and visitation cases are very similar throught the United States. The court may give custody to one or both parents, or, in some cases, to another adult based on the best interests of the child. Considerations include the child's health, safety and welfare, as well as any history of abuse by one parent. For custody to be given to someone other than a parent, however, the court would have to believe that giving custody to either parent would be detrimental or harmful to the child. Again, the judge will focus on what is in the best interests of the child.

There is common terminology used in most states (i.e. Texas uses different terms such as conservatorship):

• Joint legal custody. Here, parents share the right and responsibility to make important decisions about their children's health, education and welfare. Such decisions might include, where the children will attend school, what type of school they should attend or whether they should get braces on their teeth.


• Sole legal custody. Here, only one parent has the right to make decisions related to the health, education and welfare of the children.


• Joint physical custody. Here, the children spend time living with each parent on a regular basis. However, this does not necessarily mean that the children must spend equal amounts of time with each parent, just consistent and frequent time with each parent.
  


• Sole physical custody. The child lives with one parent and the other parent has visitation. Keep in mind that for the non-custodial parent, it is best to have a set and definite visitation order set by the court so as to avoid problems of when visitation will be allowed.
  

Try to keep in mind that the actual time spent with your children is probably more important than the legal terminology used to describe the arrangement. Also, the specifics of such custody orders can can affect child support as well.

How do I enforce a custody order?

Law enforcement may help you enforce a custody or visitation order, if necessary. You will need a certified copy of the order. The person violating the order could possibly, upon you petitioning the court, be found in contempt of court. If the other parent won't obey the order and these suggestions don't work, you may want to consult an attorney or attorney service.

It is important, too, to remember that your custody plan can be changed if it doesn't work. If your circumstances change, you can return to court and request a change in the parenting plan even if a child custody order has already been established. The key to remember is that the order will not change on its own. If you wish for or need a change in the custody and/or visitation order, you must petition the court to request modification of the order.

The Child Support Mess

For those of you who have had to deal with child support legal issues in the past, you are painfully aware of what a disorganized, and seemingly criminal racket the system is. If you have dealt with child support issues in multiple states, you are probably pulling your hair out just seeing the words "child support."

Believe it or not, the child support agencies throughout the United States are designed to work in cooperation with one another when it comes to managing child support. Obviously, it would not be right if a parent could avoid child support by moving out of state. However, the cooperation among the states when it comes to child support payments is nothing short of of organized (or often disorganized) chaos.

Common scenario: two or more states trying to collect the same child support (i.e. your original court order was out of California, and the paying party moves to Florida. Then the custodial parent moves to Texas). Often, the paying parent satisfies the child support payment, yet one of the states still shows arrears owed. Next thing you know, getting that straightened out with the child support agencies makes banging your head against a wall appear productive.

However, a parent can do something about it. As opposed to most parents who just complain about it for years and do nothing, you can petition the courts to correct the errors and get your child support where it should be. However, you must TAKE ACTION!

Common Sense is Not Very Common

At The Attorney Connection's Child Custody Center, our Attorneys talk to hundreds of people per month regarding issues of child custody, visitation and child support. A common call involves fathers trying to reduce or terminate their child support payments.

Many times, the scenario they explain is fairly cut and dry... i.e. they had a dramatic reduction in income, or they have the child way more than per the court order, or both. We even have calls where their children are past the age of emancipation, and where the child support should have been terminated years ago, but the fathers are still making payments, often of $500-$1000/per month. What's amazing is the next part...

Do they spend the low flat fee to get the child support order modified? Many do not, stating that they can't afford it. Even though the service would more than pay for itself in a month or two, they choose to do nothing. In the long run, they end up spending thousands of dollars more because they choose to do nothing and end up making child support payments indefinitely.

And from an Attorney's perspective, it is painful to hear. We are trying to provide an affordable, professional service to help parents get out of situations like this, but ultimately the parent much decide to take action. Unfortunately, some people just want to complain and whine, and do nothing to change their situation. As the saying goes, "Insanity is doing the same thing over and over again, and expecting different results."

If this scenario rings a bell, use common sense and TAKE ACTION.

To Quote Nike... JUST DO IT!

I am sure you are familiar with the famous advertising slogan that shot Nike through the roof... "JUST DO IT." Such a simple phrase, yet so powerful and meaningful.

Too often, people think too much and fail to act. Sometimes, you just have to quite analyzing a situation, and JUST DO SOMETHING. More often than not, doing something is better than doing nothing.

The same holds true with child custody, visitation and child support issues. At The Attorney Connection, we talk to hundreds of people every month who are in very similar circumstances, such as they haven't seen their children in months, or they are paying a disproportionate amount in child support. And unfortunately, too many of them do the same thing... NOTHING! And you know what doing nothing gets you? NOTHING! If you don't take ACTION, things will not get better on their own. If the other parent is not complying with the child custody and visitation order, or they are not paying child support, or whatever, you have to be proactive in remedying the situation. If you don't nobody else will. And remember, it's what's in the best interest of the children that matters!

Services like those offered by The Attorney Connection's Child Custody Center provide an affordable and professional means for a parent to take action and assert his/her rights. As the famous saying goes, "You only fail when you quit trying."

How is Child Support determined?

Child Support is the legislature's attempt to provide financial balance for children who grow up living with only one parent. All parents have a legal duty to support their children.

Generally, the judge who signs the child support order has broad discretion to determine the amount of child support a parent should pay. The amount of child support ordered should be in the child's best interest. State legislatures have established guidelines to help a judge determine child support. The guidelines are presumed to be in a child's best interest.


For instance, in TEXAS, the guidelines give the court a percentage to apply to a parent's net resources. For a parent who has no other children outside the current court proceedings, the percentage to be applied is as follows:

• 20% for 1 child,
• 25% for 2 children,
• 30% for 3 children,
• 35% for 4 children,
• 40% for 5 or more children.

In cases where the Obligor, or parent who is obligated to pay child support, has other children to support, the percentages are slightly lower.

A court may consider other factors to determine if applying the guidelines would be unjust or inappropriate in a particular case. Those factors may include:


• the child's age and needs;
• the parent's ability to contribute to the child's support;
• any financial resources available for the child support;
• the Obligee's (person receiving child support) net resources and earning potential;
• child care expenses;
• whether either party has actual physical custody of another child;
• the amount of alimony or spousal maintenance;
• the child's educational expenses;
• employee benefits such as housing or a company car;
• health insurance and uninsured medical expenses for the child;
• extraordinary educational, healthcare or other expenses of the child;
• travel expenses incurred to exercise visitation;
• positive or negative cash flow from real or personal property, and assets like businesses or investments;
• any other reason consistent with the best interest of the child,
taking into consideration the circumstances of the parents.

Texas Family Code, Section 154.123.


Information Not Legal Advice. This posting has been prepared for general information purposes only. The information on this web site is not legal advice.

Also, laws vary from state to state, so some information on this web site may not be correct for where you live. Laws also change frequently so the information contained in this web site is not guaranteed to be up to date.

Top 5 Things NOT to do when you are in a child custody battle!

What often gets forgotten in a custody battle is the only thing that really matters- what is in the best interests of the children. Unfortunately, parent often get caught up in their ill-will toward each other and lose sight of what is most important.... the children.

In order to keep your focus on what is important, here is a list of what NOT to do when in the midst of a child custody case:

1. Don't bad mouth the other parent in court. The court is only concerned with what is in the best interests of the child! If the other parent text message you that you are a b-tch or an a--hole, the court does not care. Unless it is something that has to do with something that adversely affects the children, keep bite your tongue.
2. Don't post picture of you doing a beer bong, or partying with your friends on Facebook or MySpace. You are an adult and a parent.... ACT LIKE ONE!.
3. Don't call the police on the other party for no reason just to try to get leverage on the other party. If it's not justified, the court will see right through it and it could adversely affect your chances of getting what you are requesting.
4. In Court- do not argue with the other party. Speak only to the judge and be polite and professional.
5. Do not deny the other parent any visitation they may already be entitled to just because they are behind or not paying child support. That is not an acceptable reason to the court, and it will not help you in your child custody case.

Tennessee Code on Child Custody

The following is a relevant portion of the Tennessee Code pertaining to child custody. Highlights have been added for emphasis. Also, note that Tennessee will take into consideration the reasonable wishes of children ages 12 and older.

36-6-106. Child custody. —

(a) In a suit for annulment, divorce, separate maintenance, or in any other proceeding requiring the court to make a custody determination regarding a minor child, the determination shall be made on the basis of the best interest of the child. The court shall consider all relevant factors, including the following, where applicable:
(1) The love, affection and emotional ties existing between the parents or caregivers and the child;
(2) The disposition of the parents or caregivers to provide the child with food, clothing, medical care, education and other necessary care and the degree to which a parent or caregiver has been the primary caregiver;
(3) The importance of continuity in the child's life and the length of time the child has lived in a stable, satisfactory environment; provided, that, where there is a finding, under subdivision (a)(8), of child abuse, as defined in § 39-15-401 or § 39-15-402, or child sexual abuse, as defined in § 37-1-602, by one (1) parent, and that a nonperpetrating parent or caregiver has relocated in order to flee the perpetrating parent, that the relocation shall not weigh against an award of custody;
(4) The stability of the family unit of the parents or caregivers;
(5) The mental and physical health of the parents or caregivers;
(6) The home, school and community record of the child;
(7) (A) The reasonable preference of the child, if twelve (12) years of age or older;
(B) The court may hear the preference of a younger child on request. The preferences of older children should normally be given greater weight than those of younger children;
(8) Evidence of physical or emotional abuse to the child, to the other parent or to any other person; provided, that, where there are allegations that one (1) parent has committed child abuse, as defined in § 39-15-401 or § 39-15-402, or child sexual abuse, as defined in § 37-1-602, against a family member, the court shall consider all evidence relevant to the physical and emotional safety of the child, and determine, by a clear preponderance of the evidence, whether such abuse has occurred. The court shall include in its decision a written finding of all evidence, and all findings of facts connected to the evidence. In addition, the court shall, where appropriate, refer any issues of abuse to the juvenile court for further proceedings;
(9) The character and behavior of any other person who resides in or frequents the home of a parent or caregiver and the person's interactions with the child; and
(10) Each parent or caregiver's past and potential for future performance of parenting responsibilities, including the willingness and ability of each of the parents and caregivers to facilitate and encourage a close and continuing parent-child relationship between the child and both of the child's parents, consistent with the best interest of the child.

Find out more on How To Assert Your Parental Rights! CLICK HERE.

Mediation and Child Custody

What is “mediation” with regard to child custody?
When parents cannot agree on who will have “custody" of their children, the judge will send them to mediation. In some states, like California, it is mandatory that parties go to mediation before they have a hearing in front of a judge.

What if the parties cannot agree on custody?
The judge may ask a “mediator” to assist the parties with making a bustody agreement or parenting plan or to suggest one. A parenting plan states who the child lives with and who makes
important decisions for the child. It also can cover visitation and child support.

What is a “mediator”?
Mediators are neutral, third parties who try to facilitate a resolution for the parties. They help
parents make parenting plans that are good for the children. Mediators know how to work with separated couples, and they are trained to understand domestic situations. If you are worried about your safety or your children’s safety and welfare, you should tell the mediator. You are permitted to speak with the mediator alone.

What do mediators do?
The mediator will try to help you make a parenting plan that:
• protects you and your children
• states how you and the other parent will make decisions about the children
• states when the child will be with each parent

Mediators also can suggest safe ways to get the children to and from visits with the other parent.
Mediators can also tell you about getting help with housing, counseling and other family related issues.

A mediator is used to try to get the parties to come to a good resolution, without the need to have a hearing before the court. However, a mediator's recommendations are not binding. If an agreement cannot be reached, then the child custody issue will go before a judge, who can make a binding decision, called an "order."

California Family Code Regarding Child Custody

Ever wonder what the California Code states regarding child custody? Well, here you go. Below is a key section of the Family Code in California.

3020. (a) The Legislature finds and declares that it is the public policy of this state to assure that the health, safety, and welfare of children shall be the court's primary concern in determining the best interest of children when making any orders regarding the physical or legal custody or visitation of children. The Legislature further finds and declares that the perpetration of child abuse or domestic violence in a household where a child resides is detrimental to the child.

(b) The Legislature finds and declares that it is the public policy of this state to assure that children have frequent and continuing contact with both parents after the parents have separated or dissolved their marriage, or ended their relationship, and to encourage parents to share the rights and responsibilities of child rearing in order to effect this policy, except where the contactwould not be in the best interest of the child, as provided inSection 3011.

(c) Where the policies set forth in subdivisions (a) and (b) of this section are in conflict, any court's order regarding physical or legal custody or visitation shall be made in a manner that ensures the health, safety, and welfare of the child and the safety of all family members.

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