Elmer McDuffy: Children’s Rights in Divorce

As you go through your divorce, the court system will determine your ability to meet the basic needs and rights of your children when setting child custody arrangements. Your ability to meet these needs determines how fit you are to be a primary custodian.

Some examples of those basic needs and rights include:

Quality education. Children have a right to access to quality education. Therefore, courts will look at your access to school systems, particularly whether you would have to remove them from their current school under the custody arrangement. They will also analyze your ability to foster an environment of learning and studying in the home.
Special needs. Children with disabilities have a variety of medical and emotional needs that must be fulfilled. Your financial ability to provide for these needs and your emotional ability to handle a child with disabilities full time will be analyzed by the court.
Safety. Courts want to place children in homes where they will be safe. If you have exercised a history of substance abuse, neglect or child abuse, they will almost certainly not put your children in your custody.
Health. You should be able to meet the various health needs of your children, including getting them to doctor’s appointments, paying for medication and more. Courts may also consider whether or not you are a smoker as they draft custody arrangements.
Community. If a specific custody arrangement would require that children are uprooted from their community and their friends, they may be less likely to grant custody in that fashion.

Attorneys for Children in Custody Disputes

Amid the he said, she said drama of hard-fought child custody and visitation cases, we can sometimes forget another small but important voice — that of the child.

To ensure that custody proceedings focus on the unique interests of the child, family law judges or court commissioners may appoint an attorney for the child, which we call a guardian ad litem, to represent the child in court.

The attorney for the child may interview and deal with each parent and their respective attorneys, as well as meet with:

School professionals
Forensic psychologists
Social workers

Still, the attorney for the child is expected to remain independent, advocating and expressing only the wishes of the child-client who is the subject of the dispute.

As clarified in the 2010 bill signed by the attorney for the child is allowed to consult with, to advise and to make recommendations to the child-client. Only when the child may not be capable of making a reasoned decision or where imminent, serious harm could result, however, should the attorney step in to provide a personal opinion or a recommendation that may override the wishes of the child.

Don’t Mess Up Your Custody Rights

Custody battles are heart-wrenching because they involve innocent victims — the children. As a Long Island family law attorney, I see bitter parents trying to use custody and visitations as weapons. Ultimately, these tactics can backfire. Here are some key mistakes:

Interfering with visitation. Whether you repeatedly show up late for visitation exchanges or miss them completely, relocate without authorization, or just discourage your children from visiting the other parent, interfering with the non-custodial parent’s rights can cost you yours.
Interfering with custody. If your ex has shared legal custody, he or she has the right to be involved in major decisions relating to education, health and welfare. Even if you cooperate on visitation, excluding the other parent from key decisions means you are interfering with custody.
Verbally attacking the ex in front of the children. Malicious put-downs and untruths — even encouraging the children to be disrespectful to your ex — can come back to haunt you. In extreme cases it can be considered emotional abuse, resulting in Parental Alienation Syndrome. In addition to harming the kids’ view of the other parent, it can damage the court’s opinion of you.
Making unfounded allegations of abuse. If there’s evidence that your ex is abusive to any household member, by all means talk to a lawyer. But if you make such charges solely out of spite, your own rights could be at risk.
Engaging in substance abuse or other immoral, irresponsible or immature behavior. Unless you love your substance more than your children, get some help before you end up a distant observer in your kids’ lives.

Free Consultation with a Divorce Lawyer

If you have a question about divorce law or if you need to start or defend against a divorce case in Utah call Ascent Law at (801) 676-5506. We will help you.