Child Custody: Does it Mean Litigation?

Child Custody: Does it Mean Litigation?

When the word “custody” is mentioned, people picture a projected legal battle.  They picture long days in court, full of airing one's dirty laundry in public.  Custody issues can get messy, but they don't necessarily mean long days before a judge.  Today, most custody issues are hammered out in negotiations.  This is true for both married parents and non-married parents alike.

The first step in gaining custody is to ask for it.  If the parents are married, that step is a part of divorce proceedings.  If the parents are not married, the father may have to file to establish paternity.  This may involve a Court Order, but it does not have to.  In most cases, establishing paternity is mediated through the lawyers.  If the mother is married to someone else, things get a little more difficult.  In most States, if a woman is married, her spouse is legally presumed to be the Father.  Because of adultery laws are still on the books in many states, many women will fight having a man she is not married to being declared the father.  That does not mean the fight for father's rights is automatically lost.  However, there is a greater likelihood of needing court intervention to order a paternity test.

Over the years, mothers have been more likely to ask for primary custody, but that too is changing.  Today, custody is being awarded to the father in more and more cases, regardless of whether the parents were married at the time the child was conceived.  Men are fighting their Baby Mamas for custody and are winning.  In fact, the courts are looking at things like financial and emotional stability over sex of the parent.
Ideally, the lawyers battle in their offices so that the issues are settled before things ever reach the courts.  Family Court should be a LAST resort, only after discussions between the parents have failed.  In fact, the great custody myth is that the majority of cases are battled out in Family Court.  That is not the case.

According to DivorcePeers.com () most custody is decided through negotiations:

• 51% agreed on their own
• 29% settled without third party involvement
• 11% decided during mediation
• 5% resolved differences after a custody evaluation
• 4% went to trial (of the 4% that initiated litigation, only 1.5% actually completed it)

So what is the likelihood YOUR custody battle will involve litigation?  How able are you to communicate with your co-parent?  Do both parents want sole custody, or do they want co-parenting?  Does the other parent have issues that could potentially endanger your child?  Will the parents reside near one another, or will they be separated by distance?  How reasonable is your co-parent?  Even if the two of you cannot communicate, can you do so through third-parties?

The fewer of these issues that apply to you, the less likely you will need a court to decide them.  If custody is fairly straightforward, the courts will not be involved at all.  And if you can work the issues out between your attorneys, you will not need to litigate.

This is where finding the right attorney can be key.  Your lawyer needs to understand all of the issues, as well as your desires.  S/he needs to be skilled at looking at ALL the problem areas and advising you accordingly.  S/he needs to be able to help you get past your stubbornness and anger.  S/he needs to help you stand strong on the big points and compromise on others.

Of course, any time there are unacknowledged endangerment issues, the likelihood of court involvement is greater.  The more severe these issues, the greater chance the offender will concede before you get to court.  The goal is to work everything out, so that you just present an agreement for the court to ratify.  And the more reasonable you are throughout the settlement process, the greater the chance you will prevail on the issues that need court intervention to settle.  And if you have trouble being reasonable, make sure your attorney can be for you.

So does custody necessarily mean a huge court fight?  The answer is no, it does not.  Most of the battle is fought in the lawyer's offices.  But the first step is telling your attorney to fight.  The second step is being willing and able to compromise along the way.  The goal is actually to keep the fight OUT of the courtroom. 

Here at the Law Offices of Heath Harte, we believe in negotiating custody, as much as possible, outside of the courts.  We will help you look objectively at the issues surrounding your case, both good and bad.  We will explain all of the factors used in determining custody, and just how these factors apply to your case.  We will look at all of the financial and emotional issues.  We will truthfully examine the barriers facing you along the way.  We will help you determine what is realistic, and what is truly best for the children involved.  We will help you prepare your strongest argument.  We will negotiate as much as possible without litigation.  If we do need the court's involvement, we'll use our knowledge of case law and judge's behavior to advise you where you should bend, and where you should stand strong.  We believe that parents, with all their strengths and weaknesses, are the best ones to determine what is best for their children.  We believe in keeping the decisions with the parents and out of the courts.

Mistakes in the Florida "Sex on the Beach" Case

In July, 2014, a 40 year old man and a 20 year old woman were filmed having sex on the beach.  They were subsequently arrested, and in July, 2015, the male was sentenced to 2 and a half years in prison. (The female was previously sentenced to time served.)  Both will have to register as Sex Offenders.  Reactions to this sentence have been mixed, with most people commenting that the punishment seems excessive.   What could the individuals have done differently, and perhaps have avoided such a harsh sentence?

This incident occurred on one of the Florida Gulf Coast Barrier Islands.  This Island in particular has 7 miles of Gulf Coast beach.  Although all beaches in Florida are "public", those designated as "Public Beaches" have parking lots, concessions, bathrooms, and playgrounds.  Coquina Beach, where this incident occurred, had recently been named one of the top "family friendly beaches" in the US.  Rather than setting up on a portion of beach FAR from the playground and concessions, this couple chose to set up next to families with beach tents, convenient to the playground.  Had they picked a more secluded area of the beach, they might have gone unnoticed.

This couple's 2nd mistake was continuing to engage in adult activities for an entire day, even after being asked to stop.  Witnesses reported that when the amorous activity first began around 11 am, they removed the children from the beach, coming back about an hour later.  When they returned, the couple started engaging in sexual behavior again.  It was not until late afternoon that the grandmother had had enough and called the police.  The police took their time arriving and had to be pointed to where the couple lay.  The couple had plenty of time to finish and move away before the police arrived.

But most likely, it was the couple's attitude that resulted in the harsh penalties.  Rather than acting contrite or remorseful, the couple became indignant, even when approached by a police officer.  In fact, throughout the day, rather than being apologetic, they acted threateningly to bystanders who dared to question their activities.  The arresting officer reported that once the suspects had been secured, over a dozen bystanders approached to give him information, and 6 actually completed affidavits.

The male was not unknown to the system either.  He has 25 previous offenses listed in the county court database. the earliest being a criminal driving offense he received when he was only 16 years old.  His first felony conviction was for disobeying a police officer, received a mere 4 years later, an incident that occurred during a drug arrest.  After violating probation, he served time.  Other offenses include repeat domestic violence, felony cocaine trafficking, (for which he was still under supervision,) and a slew of driving offenses.  He was well aware of Florida's "Three Strikes" sentencing guidelines.  Yet he chose to give an under-aged woman alcohol and engage in a day-long public sex marathon, and to get angry when his illegal behavior was questioned.

He compounded his mistakes by refusing to negotiate with prosecutors.  Wary of the publicity, the prosecutors offered this man a deal: plead guilty, eat some crow, and we'll sentence you to 2.5 years.  Go to trial, and you're facing 15 years.  He continued to insist he'd done nothing wrong and sought as much publicity as possible for his crimes. The prosecutors withdrew the "three strikes" paperwork and requested exactly what they'd offered him in pre-trial case management conferences: 2.5 years, including credit for time served.  And he has the arrogance not only to appeal, but to claim indigence so that appeal will be on the taxpayers' dime.

So where did this man go wrong?  Had his attitude been different from the beginning, perhaps things would have worked out differently.  If you are actively committing a crime, you should not act indignant towards those who ask you to stop.  You should not escalate your behavior when bystanders politely point out you are engaging in lewd behavior in front of children, something that automatically increases the level of severity of charges.  When folks start threatening to call the police, that is the time to be apologetic and contrite, and also the time to vacate the area before the authorities actually arrive.  And when those authorities DO arrive, it is time to be polite and respectful; it is not the time to become argumentative.  This is especially true if you have previous convictions for failure to obey authorities.  The police are much more likely to be lenient to a respectful, cooperative person.  And remember, the ruder you are to a bystander, the more likely that bystander will stick around to give a witness statement.

A good rule of thumb is that disrespecting police will only result in harsher charges.  Even if you are 100% sure you have done nothing wrong, be respectful in all communications with authorities.  Even if you choose to not say anything, be quiet in a respectful manner.  And especially stop arguing once you've been put in handcuffs.  At that point, it's best not to say much at all until you have consulted with an attorney.  But remember, invoke your rights with dignity and respect.  You have a much better chance of being treated respectfully in return.

Fighting for Paternal Rights

Fighting for Paternal Rights

Today, the “traditional family” is becoming a rarity.  Today, the single-parent home, the blended family, and shared custody are at least as prevalent as traditional families.  We also have same-sex couples bearing or adopting children.  In the old days, when a family broke up, primary custody almost always went to the mother.  Today, that is no longer the case. 

Many fathers still assume that if they leave their spouses, that means the end of raising their children. Unmarried fathers assume they have no chance for primary custody.  Thankfully, that is no longer the case.  More and more fathers are fighting for primary, or even sole custody and are winning.

The advances, in part, are due to The Fathers' Rights Movement. Starting in the 70s, groups of men began organizing to end the bias towards placing children with Mom.  Groups began to form, including Families Need Fathers and the Lone Father Association.   (See http://en.wikipedia.org/wiki/Fathers%27_rights_movement.)  The movement continued and expanded with the rise of the Internet.  Now, there are a plethora of groups organizing through social media sites like Twitter, Facebook, and Reddit.   Some of these groups advocate and lobby, while others offer support.  They also help raise awareness of why the mother may not be the best parent for the children.  Similar groups exist that stress the importance of shared parenting. These groups have helped things like paternity leave for fathers to become a reality.

Several celebrities have also helped raise the profile of fathers' rights.  In 2014, the actor Jason Patric was denied visitation and was barred from seeing his baby, conceived through IVF. After initially being denied even visitation, he sued, and won, and was granted full parental rights.  

Also in 2014, skier Bode Williams was casually dating a woman who became pregnant.  She decided to move to New York to go to college.  Bode successfully sued for father's rights, gaining primary custody of his baby.   Halle Berry and Gabriel Aubry dominated the tabloids in 2012, 2013, and 2014, with Halle fighting to deny visitation, and Gabriel fighting, and winning his parental rights.  Aubry successfully kept Berry and her new husband from moving their child out of the country.  This year, NFL Hall of Famer Barry Sanders joined the ranks of those fighting for Fathers' Rights.

Today, there is no reason for a loving father to back down.  You do not have to be a celebrity to successfully gain custody of your child.  All you need is will, determination, and the right lawyer.

Here at the Law Offices of Heath Harte, we believe custody needs to go to the better parent.  In many cases, that is the father.  We also believe that most children can benefit from having a relationship with both parents.  If you are a father, and you are looking at establishing your paternal rights, we can help.