Custody Order in Default – An Overview
In the absence of an agreement between parents in a child custody dispute, default custody laws may come into play to determine the fate of the child. Statutory and case law, as well as the common law of the jurisdiction, will all provide important insight into how the law defines and divides custody rights. Of course, some jurisdictions may have legislatively eliminated the need for "default" mechanisms by providing for child-friendly methods of resolution.
Fifty states in the United States and numerous countries across the world address child custody issues in their domestic relations law. On a federal level, the US Constitution, the US Code, and federal case law may also come into play. That said, the analysis is generally limited primarily to the statutes, administrative rules and cases pertaining to child custody in the relevant state or country.
In delineating the spectrum of physical custody or residency, the court may designate a single primary custodian who has exclusive or primary responsibilities for a certain period of time, e.g. sole physical custody from year to year or semester to semester. Or, the court may divide physical custody on a more equal basis, embedding in its order or judgment significant details regarding living arrangements, shared activities and parenting time schedules. Oftentimes, courts provide for a combination of both equally shared limited boundaries and unequal residency during different seasons or periods of time. For example, in many states, the bedrock of the custody analysis is the best interest of the child standard, which has been given a statutory expression in the child custody statutes. For most states, this involves consideration of a constellation of factors that may be public policy based, common law based, or based on earlier case law . Many states have considered the best interest of the child standard in the context of the enumerated factors such as the age and number of children; the strengths and weaknesses of each parent as custodians or otherwise; the parental preference models; the concept of the least detrimental alternative; and the totality of the circumstances.
The child custody statute has a number of advantages. The main ones appear to be: (1) a full disclosure requirement promotes transparency and information sharing; (2) the finality and breadth of the order; and (3) the adoption of the best interest of the child standard is more susceptible to statewide application and linear balancing of factors.
The standards for obtaining legal custody, i.e. the right to make long-term decisions for the child, or for obtaining physical custody, i.e. residential care, vary from one jurisdiction to the next and from one judge or magistrate to another and from one case to another. While one or both parents may be awarded sole legal custody, joint legal custody is possible even where there is one parent with sole physical custody. Joint legal custody effectively divides decision-making over important aspects of the child’s life or welfare.
History has taught us that the main child-centered factors for consideration have constituted family integrity, emotional wellbeing, home environment, parental preferences, poverty and grounded influences on the children, premised on a best interest of the child standard. Sometimes, in the absence of a statute, the common law "best interest" or "best interest/least detrimental alternative" or "totality of the circumstances" methods of analysis may be used in the courts’ discretion. But, in the absence of an agreement between parents, the custody analysis will fall into the strict constructs and requirements of the law.
Determining Factors for Child Custody
Unsatisfactory as it may be, when parents do not agree on the issue of custody, a Family Court judge will have to make a decision regarding custody and/or visitation after a hearing. Such a decision, of course, is going to be made in the best interests of the child. However, how does a judge determine what’s in the best interests of a child when there’s no custody or parenting agreement in place to serve as a foundation for that decision? The judge will look at what are known as "the 14 factors" to arrive at a decision.
From these 14 factors, we can get a clearer picture of what influences a judge’s decision. For example, if one parent enjoys a higher standard of living than the other, this may be a factor toward awarding that parent greater custody of the child and therefore a higher standard of living for the child. It’s also possible that a parent’s lifestyle could negatively impact the child’s wellbeing and therefore be a deciding factor as to custody. All of these factors interact with each other:
Parents’ places of residence and their ability to provide for the child;
Parent’s child rearing ability;
Health and sex of the child;
Child’s preference (over the age of 12 years) if the preference is reasonable and has been expressed without influence of either parent;
Placement of siblings (does judge want to keep siblings together under a similar custody arrangement);
History of domestic violence (does judge believe it would be detrimental to the child under a custody arrangement);
Parental drug or alcohol abuse (drug and/or alcohol abuse by a parent is a serious consideration);
Criminal conviction of a parent (could simply be absence of primary caretaker if the conviction involves a felony and child is under 16-17); and/or
Existing parenting arrangements (already established primary physical parenting arrangement).
The above factors, when taken as a whole, help paint a clearer picture of how a Family Court judge will decide on a custody or visitation issue between parents.
The Role of the Family Court
In the absence of agreement between parents regarding custody of their children, the family courts have a role to perform in determining which parent should have the care of their children. Typically, the decision is made by a court officer called a "Family Court Advisor" (often referred to as a FCA). Alternatively, the family courts may consider instructing an independent expert to assist them in this decision making process. The family court process starts with the parents – or other interested parties, such as grandparents providing the family courts with a proposed order specifying the person with whom the child is to live and setting out the level of contact the other parent should have with the child. This proposed order is often referred to as a "Position Statement". The FCA will then be allocated by the family courts to consider the Position Statement and any comments made by the parents. The FCA will then usually be instructed by the family courts to advise them of the most suitable proposals for the children. (This can sometimes take time). The FCA will either interview the parents or both parents and their children and make recommendations to the family courts regarding their future care. It is not uncommon for the FCA to recommend a court welfare report be prepared. It is then the role of the court to consider the position recommended by the FCA, coupled with the views of the parties, and decide what is in the best interests of the children. The family courts have considerable discretion in these cases. There are two key factors which the family courts (and the FCA) will be considering when making recommendations of the child’s welfare and in particular which parent should have primary care of the child: The welfare of a child encompasses the child’s general wellbeing, health (both physical and mental), and education. When determining which parent should have care of the child, the family courts and the FCA will also take into account evidence. Such evidence may include medical evidence, school reports and witness statements – for example from the parents, teachers, doctors and health visitors. In recent years, there have been calls for the family courts to be involved in cases where parental agreements have been reached. The reasoning behind these calls is that parents arguments do not end when orders are made. Indeed, sometimes parents continue to disagree over how the order should work in practice. As a consequence, some legal commentators consider that the role of the family courts should include divorcing parents formally agreeing the terms of their order.
Interim Custody Orders
Temporary custody orders are an integral part of child custody cases in which the parties are unable to reach a voluntary agreement as to an allocation of these important parental responsibilities and rights. When a child’s parents cannot agree on custody issues, whether before there has been a divorce complaint filed or at some point during the litigation of a divorce, an application can be made to the court for a temporary order granting sole legal or physical custody, joint legal or physical custody or sole or joint legal custody to the parties, on such terms and conditions as the court finds appropriate under the circumstances, and reserving the ultimate decision on what the final arrangements will be. In most counties, temporary custody cases are heard by masters, not judges, although in some counties, conflict resolution units made up of a judge and a team of professionals may be used. In divorce matters, at Issue Conference (which is the first the court in litigation) custody issues that have not been resolved either voluntarily by the parties or by agreement of the parties with the court’s assistance, will be left to be decided at the time the custody complaint is filed, with the master or conflict resolution unit making a tentative recommendation that would become binding if the parties fail to either (1) come to an agreement before the recommendation is turned into an order or (2) make an objection to the recommendation in a timely fashion. During the recess between the temporary custody conference and the date of the hearing before the master or conflict resolution unit, the parties may be required to follow specific interim guidelines with respect to custody and parenting time and the interim custody award will be enforced by the court by contempt proceedings if necessary.
Seeking Legal Representation
In cases like these that do not have any prior agreements, whether it is a divorce proceeding with children or a parentage case where parenting responsibilities/schools are at issue, your attorney is going to play an even more vital role than when there is agreement on how you and your spouse are going to proceed.
Your attorney is necessary to aid the process of obtaining the necessary court orders establishing visitation, parenting responsibilities, college tuition support, and so on. He will also be an immeasurable aid in presenting your case in the best light possible in front of the judge.
This involves, among other things , working with the proper financial experts to determine the parenting responsibilities and how they should be split. It may involve expert work by a private psychologist or by a psychologist employed by the State of Illinois to determine the issues at play within the children.
More importantly, he or she will be your voice. While your spouse’s attorney will be eager to settle as expediently as possible, in order to avoid the costs of litigation, your attorney is going to fight tooth and nail to get you the best possible settlement available to you. The more we know that our clients are prepared to take their divorce to the end of the line, the better settlement offers we can obtain, so that we can avoid the additional costs of litigating the case.
Mediation – A Solution
Without an agreement between parents, there is no custody order. Thus, the Division of Child Protection and Permanency (DCP&P; formerly DYFS) will come into your life if there are allegations of abuse, neglect, and/or abandonment. In fact, DCP&P will then refer to the lack of agreement as "not able to agree on custody," which in essence means that you are forced to go to mediation or court to obtain an order for custody. That is to say, just because you are not agreeing with the other parent, does not mean that you will get a default order for custody at the time of your initial hearing. Most often in affiliated cases, sometimes you will, but often times you are going to mediation to try and get on the same page.
Mediation is merely another word for settlement. However, in this context, it also requires you to meet with the other party, on occasion, another family member, sometimes with a guardian ad litem, and sometimes the Court just decides on its own without soliciting your input. DCP&P does not care what parent you are, the Court is going to do what is in the best interests of the child in its eyes. In juvenile cases and cases where our firm battles DCP&P directly, we are always pushing for mediation, or at the very least, a dedicated trial date with strict deadlines as to all witnesses and documents that must be produced along the way. Many judges prefer to schedule a trial date first, so that the parents are actually, perhaps even reluctantly, preparing for trial. The thought process is if they think there is a trial date, the parents are apt to cooperate more with one another, or at least, they are required to produce discovery, which will hopefully lead to settlement.
A custody mediation is similar to any other type of family court mediation. The idea is that each party comes to the table with open minds and the willingness to settle. Mediations with DCP&P can be a little different since sometimes team members from DCP&P, the court, and the guardian ad litem need to be involved, in addition to the parties and their attorneys. The terms of any such agreement can vary as well depending on what is available to them. At the end of day, if the parents are able to agree, or DCP&P, the case will be settled, the parents will obtain a final court order, and DCP&P will close the case – likely within 90 days from when the case was settled.
If a mediation does not occur, or the parties cannot agree on terms to finalize an agreement, the next step is a trial. Here you have to go through the entire litigation process with witness testimony, Exhibits, and more. This is similar to a contested divorce litigation, or guardianship, or adoption. Essentially, a trial is the formality of obtaining an order because the parties simply cannot agree.
When No Agreement on Custody is Possible
What happens if custody still cannot be agreed – Permanent Court Orders, and Appeals
After you have been to Mediation and even after Temporary Orders are entered, if a final agreement regarding custody and parenting time cannot be reached between parents, there are several paths that you can take.
First, you can try family law or collaborative law mediation, which is another popular option. If that doesn’t work, or if you are looking for a more formal way to determine custody, the next step is obtaining a final order from the Court. In Colorado, this is generally not required, unless both parents have met with a Family Court Facilitator or have participated in Mediation.
The Court can keep an eye on the situation, and you can bring a Motion or Supplemental Petition back to the Court to resolve custody. Or, parents can request a Pre-Trial or Settlement Conference with the Court, and ask the Court if custody can be determined at that point.
If all else fails, the Court can schedule a Final Orders Hearing where evidence may be presented by both parties to the Court. This can involve witnesses , parties, attorneys, specialists in the area, such as a parenting evaluator or a child psychologist, who can testify on behalf of a client’s best interests regarding custody and parenting time. It is important to have experienced representation for these hearings, as formal pleadings, exhibits, and preparation for an attorney to perform his or her cross-examination are crucial to a successful case, and being able to appeal that decision to the Colorado Court of Appeals.
If an Order is entered by the Court, there are several options to contest that Order, including asking the Court to reconsider all or some of the findings in the Order. If the Reconsideration Motion is denied, either a Motion for New Trial or a Motion for New Trial Nunc Pro Tunc can be filed. If those motions are denied, you have the right to Appeal that Order to the Colorado Court of Appeals. Appeals can also be filed if a Preliminary Injunction, Temporary Orders or a Decision made regarding Allocation of Parental Responsibilities are entered.