Category Archives: divorce

divorce and child custody Matt Mishak Attorney Lorain County Ohio Elyria North Ridgeville

FAQ: Child Custody and Divorce

If one parent moves out and leaves the kids with the other parent, does it hurt the moving parent’s chances of getting custody at a later date?

 

In a word, yes.

Even when a parent leaves to avoid a dangerous or highly unpleasant situation, if the parent hopes to have physical custody at a later time it’s unwise to leave the children behind. The parent who leaves sends a message to the court that the other parent is a suitable choice for physical custody. Also, assuming the children stay in the home where the parents lived as a family, continue in the same school, and participate in their usual activities, a judge may be reluctant to change physical custody, if only to avoid disrupting the children’s regular routines.

If a parent must leave the familial home (and wants to be the primary physical custodian), the moving parent should take the children along and, as quickly as possible, file in family court for temporary custody and child support. If this process is delayed, the other parent may go to court first and allege that the kids were taken without that parent’s consent or knowledge.

Family law judges frown on a parent who removes the children from the home without seeking the court’s recognition. A judge may order that the children be returned to the family home, pending future proceedings to determine physical custody.

 

Are courts more likely to award custody to mothers than to fathers?

 

In the past, most states provided that custody of children of “tender years” (about five and under) had to be awarded to the mother when parents divorced. In most states, this rule has either been rejected entirely or relegated to the role of tie-breaker if two otherwise fit parents request custody of their preschool children.

No state now requires that a child be awarded to the mother without regard to the fitness of both parents. Most states require their courts to determine child custody on the basis of what’s in the children’s best interests, without regard to the parent’s gender.

As it turns out, many divorcing parents agree that the mother will have custody after a separation or divorce and that the father will exercise reasonable visitation. This sometimes happens because the parents agree that the mother has more time, a greater inclination, or a better understanding of the children’s daily needs. But it can also be because fathers presume that mothers will be awarded custody or because the mother is more tenacious in seeking custody.

If you are a father and want to ask the court for physical custody, do not let gender stereotypes stop you. If both you and the mother work full-time, and the kids have after-school care, you may be on equal footing. In fact, if you have more flexible hours than the mother, you could have a leg up. In any event, the judge will look at what’s best for the children.

So if you think that you should have primary custody and that you can persuade the judge that it’s in the kids’ best interests, you should go ahead and ask for custody. If you present yourself as willing and able to parent, it will go a long way towards challenging any lingering prejudice against you as a father.

 

Does child custody always go to just one parent?

 

No. Courts frequently award at least partial custody to both parents, called “joint custody.” Joint custody takes one of three forms:

  • joint physical custody (children spend a substantial amount of time with each parent)
  • joint legal custody (parents share decision-making on medical, educational, and religious questions involving the children), or
  • both joint legal and joint physical custody.

 

Are there special issues if a gay or lesbian parent is seeking child custody or visitation rights?

 

In a number of states, a parent’s sexual orientation cannot in and of itself prevent a parent from being given custody of or visitation with his or her child.

As a practical matter, however, lesbian and gay parents — even in those states — may be denied custody or visitation. This is because judges, when considering the best interests of the child, may be motivated by their own or community prejudices, and may find reasons other than the lesbian or gay parent’s sexual orientation to deny custody or appropriate visitation.

If you are involved in a custody case and are concerned about bias against you because you are gay or lesbian, make sure you consult a lawyer about protecting your rights. 

 

Is race ever an issue in child custody or visitation decisions?

 

The U.S. Supreme Court has ruled that it is unconstitutional for a court to consider race when a noncustodial parent petitions for a change of custody.

In Palmore v. Sidoti, 466 U.S. 429 (1984), a white couple divorced, and the mother was awarded custody of their son. She remarried an African-American man and moved to a predominantly African-American neighborhood. The father filed a request for modification of custody based on the changed circumstances. A Florida court granted the modification, but the U.S. Supreme Court reversed, ruling that societal stigma, especially related to race, cannot be the basis for a custody decision.

 

Who determines how much visitation is reasonable and fair?

 

When a court awards physical child custody to one parent and “reasonable” visitation to the other, the parent with physical custody is generally in the driver’s seat regarding what is reasonable. This need not be bad if the parents cooperate to see that the kids spend a significant amount of time with each parent.

Unfortunately, it sometimes translates into little visitation time with the noncustodial parent, resulting in disputes over missed visits and inconvenience. To avoid such problems, many courts now prefer for the parties to work out a fairly detailed parenting plan that sets the visitation schedule and outlines who has responsibility for decisions affecting the children.

 

Is mediation the best approach to solving disagreements about child custody?

 

Mediation is a non-adversarial process where a neutral person (a mediator) meets with disputing persons to help them settle a dispute.

The mediator does not have the power to impose a solution on the parties but assists them in creating an agreement of their own.

In some courts, however, the mediator may be asked by the court to make a recommendation if the parties cannot reach an agreement. If you’re concerned about whether the mediation is confidential or whether the mediator will be reporting to the judge, find out how your court does things before you get started.

There are several important reasons why mediation is a superior method to litigation for resolving custody and visitation disputes.

  • Mediation usually does not involve lawyers or expert witnesses (or their astronomical fees).
  • Mediation usually produces a settlement after five to ten hours of mediation over a week or two. (Child custody litigation can drag on for months or even years.)
  • Mediation enhances communication between the parents and makes it much more likely that they will be able to cooperate after the divorce or separation when it comes to raising their children. Experts who have studied the effects of divorce on children universally conclude that when divorcing or separating parents can cooperate, the children suffer far less.

 

Original article on Nolo.com

 


Seeking a divorce and have questions?
Attorney Mishak can help you.
Contact him today.

 


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Facebook Divorce: Overview & Tips

Information found on popular social networking sites has given divorce lawyers new tools in their divorce toolkits.

 

Find out how Facebook and other sites are changing the legal landscape in divorce and child custody cases, and what you can do to protect yourself in the event of a Facebook divorce.

 

What is Facebook Divorce?

The term “Facebook divorce” refers to the increasing number of marital breakdowns that have occurred as a result of information found or discovered on social networking sites like Facebook, MySpace, and Twitter.

While social networking sites allow users to connect with old and new friends, they also create circumstances that may lead to a divorce or child custody battle. Moreover, social networking sites allow divorce lawyers to discover information they might not otherwise find using traditional methods of “discovery” (the process used to gather supporting facts and information in a case.)

In the recent past, the number of divorce lawyers who use Facebook and other social networking sites to uncover potentially damning evidence has grown. According to a 2010 survey by the American Association of Matrimony Lawyers (AAML), two-thirds of American lawyers say Facebook is the primary source of evidence used in divorce cases.

While there are no specific laws concerning the use of Facebook in divorce proceedings, the existing rules of evidence support the use of alternate forms of media to gather evidence, and this may include information found on social networking sites (via email, cell phone, or computer data retrieval, for example.)

 

What May Be Found on Facebook

There are several bits of divorce-related evidence that can be found on Facebook. Generally, a person’s overall history and whereabouts are just a mouse click away from public eyes – despite Facebook’s privacy settings (which are not always reliable.)

Furthermore, people often mistakenly believe that their actions online do not carry the same consequences as real-life events. For example, they may believe that online flirting is not the same as flirting in a bar. The reality, however, proves that what a person says or does online can have serious repercussions in a divorce or child custody case.

 

Below are examples of damning evidence that may be found on social networking sites, which may potentially be used against you in a “Facebook divorce” situation.

 

  • A friend “tags” a compromising photo of you drinking beer at a party or vacationing when you claim you have no time to see your children or dispute allegations of infidelity
  • Posts that refer to high-end purchases when you claim unemployment and money issues
  • Posts about your whereabouts that conflict with business trips or child visitation matters
  • Posts that suggests infidelity or deception, such as a Facebook status change to “single, but looking”
  • Keep in mind that even if the content on Facebook is deleted, it can later be retrieved by forensic experts and potentially used in court as evidence in divorce proceedings.

 

Facebook and Divorce: Legal Issues

Legal issues concerning the use of Facebook data in divorce proceedings varies. For instance, adultery is still grounds for divorce in some states and is defined in state laws as “the voluntary sexual intercourse of a married person with a person other than the offender’s spouse.” In most adultery cases, direct proof is not required – based on the mere nature of secretive relationships. Adultery in a Facebook divorce situation, however, might be inferred through photos and information posted on Facebook.

Note that while evidence-worthy photos and information exchanged on Facebook on their own may not be grounds for divorce, but information combined with other forms of proof may create an undesirable outcome.

 

Tips for Facebook Users Facing a Divorce

 

  • Be careful what you post on Facebook.
  • Know that what you say or post may be used against you in court, and divorce lawyers use Facebook as a matter of fact when gathering evidence.
  • You do not own the content on Facebook. Facebook has the right to do certain things with your content even without your knowledge.
  • Even if you are savvy enough to not post certain photos and information on your Facebook page, other friends and family members may post something potentially damaging about you on their Facebook page.
  • Do no secretly access your spouse’s Facebook page hoping to find damaging information to use against him or her. Not only is it a violation of the law to access someone’s computer or electronic device you do not have permission to use, the information you may find may be inadmissible in court.
  • Finally, if you suspect adultery or other wrongdoing by your spouse found on Facebook, you may wish to hire a divorce lawyer in your area who can help answer any specific questions you may have.

 

Is Facebook a Factor in Your Divorce? Make Sure You Get Professional Legal Help

Even the most amicable divorce can be a profoundly stressful experience — especially in this age of social media and the unenviable “Facebook divorce.”

Attorney Mishak can safely guide you through the process to ensure your financial security and peace of mind. 

 


Divorce is hard.
Attorney Matthew Mishak simplifies it.
Contact him today.


 

Original article as seen on FindLaw


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Divorce in Ohio: Key Information

When thinking about divorce, there are lots of things to consider.

Rest easy, Mishak Law can help. Here are a few key points concerning divorce in Ohio. 

 


What are the grounds for divorce in Ohio?

Ohio is a mixed state. This means that you can use either fault or no-fault grounds as the basis for seeking a divorce. You might consider using fault grounds is to gain an advantage in a contested child custody case or a dispute about the division of marital property or the appropriateness or amount of alimony.

 

What is the residency requirement for divorce in Ohio?

At least one spouse must be a resident of Ohio for six months before filing for divorce.

 

How is property divided at divorce in Ohio?

Ohio is an equitable division state. In an equitable division state, each spouse owns the income he or she earns during the marriage and also has the right to manage any property that’s in his or her name alone. But at divorce, whose name is on what property isn’t the only deciding factor.

The judge will generally start with a presumption that property will be divided equally, and then will listen to arguments from the spouses (if any) about why a different division would be more fair. The judge will divide marital property in a way that the judge considers fair, but the property division may not necessarily be exactly equal.

 

What are the rules about child custody in Ohio?

Like all states, Ohio courts begin with a presumption that it’s best for a child to have frequent and continuing contact with both parents after a divorce. If possible, judges want to support joint custody arrangements. However, the exact nature of the time-share will be determined by the children’s best interests.

 

What are the rules about child support in Ohio?

Like all states, Ohio requires both parents to support their children, even after a divorce. The amount of child support depends primarily on each parent’s income and other resources, and how much time each parent spends with the children. In addition, sometimes the courts will “impute” income to a parent who has the capacity to earn more than he or she actually is earning.

 


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