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Current Issues in Family Law
What happens when parents are not married when a child is born. Many parents are uncertain regarding custody and visitation rights.
Some Mother’s are not aware that even if Father is on the birth certificate, Father has no rights, but does have the obligation to pay child support. Meaning Father doesn’t have any visitation or decision making rights, unless he seeks it from the Juvenile Court. However, a Court could use a Mother’s refusal to allow “reasonable visitation” against Mother in a legal proceeding, if there is no basis for denying visit.
To seek Custody and Visitation, a Father needs to file a Petition in Juvenile Court. Usually this is done in the County that the child is living, or the county of an existing child support order. When Father files for Custody, he can seek either Shared Parenting or Sole Custody, or he can ask for visitation only. You do not need an attorney to file the Petition, however, you will need an address to serve Mother with the Petition.
What to Expect in Court
Once the Petition for Custody or Visitation filed, the court will set an initial pretrial conference to serve necessary parties, and to allow parties and their attorneys to attend. The Court will determine if the necessary parties have been served, whether paternity has been established, and to address temporary orders of visitation. Depending on the situation, and if there are safety concerns, the Court may order a custody investigation through the Court, which both parties will be required to participate in. If it appears the parties may be able to work out an agreement, the Court may order the parties to participate in mediation.
The parties may also ask the Court to appoint a Guardian Ad Litem (GAL) for the child(ren). The Court will order the requesting parent to pay a deposit to the Court for the GAL, but the cost of the GAL usually exceed the deposit. The GAL is appointed to make a recommendation to the Court of what is in the best interest of the children.
If the parties cannot work out an agreement, the matter will be set for a trial. It could be six months before the parties get to this stage. At this stage, legal representation is encouraged. Rules of Evidence often prevent an unrepresented parent from being able to get the appropriate information before the Court. The Court is looking for what is in the best interest of the child, but most often, the Court wants both parents to be actively engaged in the child’s life. Often the Court will default to a standard parenting order if the parents cannot work out an appropriate schedule. This will not only include regular visitation, but holidays and extended parenting time during school breaks and holidays.
At the end of the day, it is always better for the parents to attempt to work out an agreement instead of allowing the Court to impose their own agreement on the parties.
Kimberly Thomas, Family Law Attorney.