Child Custody of Relatives: Helping to Raise Your Family’s Children

In these times more and more people are called upon to help raise the children of their family members. There are any number of situations arise where a relative needs to get guardianship or custody of children. At this time there are parents on military deployment overseas, parents tied up in the criminal justice system or even parents who are just not capable or fit to raise their own children. While this is a time honored tradition of family taking care of its own, in the modern legal climate there is a need to formalize the arrangement through the courts. Even in situations where all of the principle players agree, there it is best to solidify the arrangement with a court order.
There are many situations where a relative will need to present a court order to perform some of the most routine actions that a guardian needs to take in order to raise children. Enrollment in school, authorizing medical treatment, signing up for extracurricular activities and even signing a permission slip all requires the signature of a parent. In the absence of the parent signature, a court order of guardianship or custody is required. Further, having a court order will allow a person acting in the roll of a parent to take advantage of certain benefits available for dependent such as health insurance through group plan of an employer.
Depending on the situation, there are a number of options available to a relative to obtain a court order. One such option is to obtain Letters of Temporary Guardianship through the Probate Court. These letters or order allows the guardian the legal authority to act in the roll of a parent. Temporary Guardianship requires the consent of the parents and can be terminated at any time by the parents. These are perfect in situations where the parents agree that the children need to live with a third party. What happens if the parents do not agree that a third party stepping in s the best for the child? There are two other options that much more drastic in nature but can.
First, a third party can seek temporary custody through the Juvenile Court on the basis that the child is deprived. If the Juvenile Court finds a child is deprived of its essential needs of health education and welfare, the Juvenile Court can award a third party temporary custody for up to two years. If the Juvenile Court judge finds deprivations exists and awards custody, the Judge establishes a checklist or plan of action to take in order to for the children to be reunited with the parents. If the plan is not completed by the parents, the court can extend custody, however there is a limit. Because the Juvenile Court is strongly associated with the Department of Family and Children Services, the plan may include services offered by children's watchdog agency. Also, parents who are in court for deprivation may be eligible to a court appointed attorney if they cannot afford one, but there is no reciprocal for the relative seeking custody.
Second, a relative may seek permanent custody through the Superior Court. Certain relatives such as grandparents, aunts, uncles and even siblings can petition the court for custody of the minor children of their relations. To be granted custody, the relative must show first that there is harm will come to the child unless the parent child relationship is altered and then second the relative must show that it is in the best interest of the child to be placed in the custody of the relative. A Superior Court order remains in effect until the child reaches the age of eighteen. While custody may be returned to the parent, there is not a specific plan laid out by the Court for the child to be returned to the parent and the parent has to file a new case to take the child to modify the custodial order to the relative in the county of residence of the legal custodian.
Getting custody of a relative's children is not an easy prospect. Due to the stigma of court proceedings, many times the parents are not willing to let the children go to a relative with a court order, no matter how temporary the situation. The matters can become emotional for all involved. The parent child relationship is a constitutional right and the burden of proof required to alter that relationship is very high, clear and convincing evidence. It is the highest standard in any civil case. These matters should not be entered into lightly.

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It's Official: Casey Anthony More Hated Than O.J. Simpson

Americans have a love hate relationship with their criminal justice system. While we are very proud of our system that presumes innocence until proven guilty, we revile those who are found innocent that we have presumed guilty. According to the New York Post and Reuters, Casey Anthony has just made it to the top of the list of most hated people according to Americans participating in the poll. Ms. Anthony was propelled to celebrity status when she was charged with the murder of her own daughter, mainly due to the fact that she partied for a month before reporting the child missing. Then insuring that her own star will never fade, she was acquitted of the murder charge.

Ms. Anthony's status as most reviled is an endorsement for the American Criminal justice system. Right behind her is former football star O.J? Simpson who was also acquitted of a murder charge eighteen years ago. The Simpson trial proved that with enough money and a star studded team of lawyers innocence could be brought. However, Casey Anthony was defended by a team of court appointed and pro-bono lawyers representing a woman who could not afford to defend herself against the resources of the government that was willing to spare no expense to convict her.

Before Ms. Anthony stepped one foot into the courtroom, the media and pundits like Nancy Grace had convicted her of the the carve of murder. Yet a jury heard weeks of testimony, poured over hundreds of exhibits and heard both sides to exhaustion. The jury deliberated in this case, not just for hours but for days, and returned it's verdict of not guilty. Yes, despite the opinion of the expert pundits, the men and women who were actually sworn to fairly listen to all of the evidence decided that the government failed to prove its case for murder against Ms. Anthony. For that, she will always be hated.

Ms. Anthony's most hated status is proof that the system can work. Regardless of your opinion of Ms. Anthony, the verdict in her case is proof that the jury system is not merely a rubber stamp for the government or public opinion.

Your Facebook Page Could Hurt Your Case

There is a modern wisdom, "Be careful what you post, it could come back to haunt you in the courtroom." In this day where everybody has access to social media through Facebook, Twitter, Myspace and even blogs, it is astonishing the things that people are willing to put on line. Some people are willing to make statements they would never dream of stating in person or even in a letter. Still even more will communicate the most intimate secrets in a public "wall" page or chat room. Online users are willing to admit everything from extramarital affairs to criminal conduct. Spouses will bicker with one another on Facebook and carry on a torrid affairs all the while their "friended" children can read. Every day these same people are surprised when they are confronted with the details of their behavior in the form of printouts of their social media activity.

Social media is not private. No matter how much you restrict the access of the material you post, it will still come back to haunt you in court. First, social media outlets routinely cooperate with law enforcement agencies and will provide information to investigators and prosecutors. Second, social media posts are subject to subpoena and would be tuned over to an attorney who is not working on your side. Third, no matter how private your settings, there is inevitably somebody on your list of friends who is going to share your innermost secrets with somebody you would rather not find out.

However, for all the same reasons, social media is a goldmine for investigating just about any kind of case. Many people do not bother to secure their posts and are willing to gloat, brag and boast about anything and create some valuable sources of evidence. It is important to secure this evidence as soon as it becomes available. In many cases valuable evidence is posted and can be lost just as quickly as soon as the author realizes the vulnerability of their private thoughts. Make sure to save and print these valuable nuggets of evidence as soon as they come into your possession.

Before your post, think twice. Think about how you will feel answering questions about the post in court. What you put up on Facebook or any other social media outlet can and will effect your case and usually negatively. The best course of action is to not post.

What Effect Does Fault Have in a Divorce?

by: Eric A. Ballinger, Esq.

The issue of fault is a complex when it comes to divorce. It usually is the straw that breaks the camel's back with regard to ending the marital relationship. While some refuse to recognize role that their own fault plays in the dissolution of their marriage, many are surprised at the roll that fault plays in the outcome of their divorce. In the modern divorce, fault plays a roll in determining the outcome of a divorce case, but it is not the sole decisive fact.

Into the late Sixties, fault was an essential element in a divorce case. Until the Georgia legislature adopted the "no fault" ground for divorce, there was a requirement of fault by one party for a spouses to divorce, even if they agreed that the marriage should be dissolved. In the modern divorce, there is no requirement of a finding of fault for the parties to divorce, however the issue of fault is legally relevant in deciding the issues that are ancillary to the divorce, division of assets and debts, alimony and even child custody.

Usually fault, adultery, alcoholism, drug addiction, abusive behavior and the like, are the facts that motivate a spouse to seek a divorce. These are usually the most emotional issues of the divorce and motivate the parties to press the issue. However, fault is not the only issue the court takes into consideration in deciding the issues before it and fault must be put into perspective. Many litigants are surprised when they find out that even in the face of a partner that has committed the most despicable acts, divorce is rarely a "winner takes all" proposition and there are no punitive damages in a divorce.

When reviewing the facts in a divorce case, it is important to look at the case from the through the lens that the judge sees the case. One thing to take into consideration is that divorce cases are heard by Superior Court judges. These are the same judges that hear murder, rape and child molestation cases as well in addition to their civil case load. This gives the judge hearing a divorce case a much different perspective than most civil litigants who have never experienced this sort of in their life.

In addition, the Court is weighing many other aspects in deciding the divorce case as well. A mother may have committed adultery, but still is a loving parent who has never exposed the children to her indiscretions. A Father may be a unemployed deadbeat, but if he has no money, how can he pay alimony? A husband may be a functional alcoholic but how will the children feel if he is cut out of their lives? A man my have brutalized his wife during the marriage but what is to be gained if he is left on the street destitute?

The Court also looks at the effect that marital fault has on the break up of the marriage. Is the fault complained of really the cause of the break up of the marriage or is is some remote act from years gone by? The truth of the matter that judges are used to hearing the many gripes that spouses have about each other and figure that in a divorce there is usually more then enough blame to go around. If the fault is from years gone by, the court will very likely treat the act as condoned. On the other hand, if one spouse catches the other in serious misconduct and acts decisively on it, the Court can will treat the issues seriously.

Most importantly, the Court looks at the fault issues as they may effect the minor children of the parties. While judges rarely loose sleep over what happens between adults, they are always looking out for the best interest of the children involved. Children that are exposed to alcohol, drug abuse, violence and even adulterous relationships are at risk. Regardless of the what has transpired between the parents, the Courts will take decisive action to protect children from these sorts of risks.

The effect that the fault issues will have on each divorce case varies. Much of it depends on the evidence presented. It also depends on the individual judge hearing the case. While evidence of fault is not the most important facts the Court needs to hear, it certainly will help the judge decide which of the two parties to inconvenience the most. It is important to consult an experienced family lawyer to help you put the issue of fault into persecutive for your divorce case.

Adoption: Helping to Grow Families.

By: John A. Early, Esq.

Adoption starts as a simple concept: bring child into a family. However, brining that simple concept to fruition is a complex legal path. This article will attempt to inform individuals wishing to travel that path of what they can expect if they choose to adopt.

To begin, note that adoption proceedings take place in the Superior Court of the county where the adoptee resides. The proceedings are very private matters, and courts conduct the adoption process "in camera," which means person not party to the adoption are disallowed from attending. Also, be aware the Georgia Department of Human Resources is the state agency that oversees adoptions. The Department exercises custody and care for those children in need of adoption and helps guide the court when determine proper placement for the child. In the processes of adoption, the Department and the Superior Court will work hand-and-hand to assure the adoption is in the best interest of the child.

The first step in the adoption processes is making sure the adopter is eligible to adopt the adoptee. While most people would see no reason for this type of assessment because common sense dictates the appropriate qualities of both adopter and adoptee, Georgia decided to remove all doubt from the issue by setting the legal parameters for adoption. For a person to adopt another in Georgia, the law requires the person be at least 25-years-old, at least 10-years-older than the adoptee, a residence of Georgia for six months, and financially, physically, and mentally able to have permanent custody of the adoptee. Further, in the event a married person seeks an adoption, then both spouses must petition for the adoption. The only exception to this rule is the "stepparent adoption rule," which allows a stepparent to adopt his or her spouse's child without severing the relationship between the spouse and child.

The second step involves the surrender or termination of parental rights between the biological parents and the child. The parent-child relationship is sacrosanct in Georgia. Before a third party is allowed to adjust that relationship by adopting the child, both biological parents must surrender their parental rights or have their parental rights terminated. The only exception to this rule is that is in cases where the "stepparent adoption rule" discussed above because the spouse of the stepparent does not have to surrender or terminate his or her rights for the stepparent to adopt the spouse's child.

However, in most cases, the biological parents must have either surrendered their parental rights or a court must have terminated their parental rights. The choice to surrender parental rights is solely within the power of the biological parent. The choice must be freely and voluntarily made. In the event both parents choose to surrender their rights to the child, then Georgia Department of Human Resources enters the picture, and will assume custody of the child pending an adoption.

The other means of severing the relationship between biological parent and child is by termination of parental rights. The termination processes, as it title implies, is not consensual, but occurs in those cases where the court determines the mother and/or father is unfit. A court will terminate the parental rights of a biological parent if the court finds there is misconduct on the part of the parent whose rights are being terminated and the court finds termination is in the best interest of the child. If both a court terminates both parents' rights, then the Department will assume custody of the child pending the adoption.

Once the parental rights of the biological parents are terminated or surrendered, a person may petition the Superior Court for adoption of the child. The petition phase involves three steps: filing a proper petition with the Superior Court, responding to objections to the adoption if any are filed, and an investigation of the petitioner by the Department of Human Resource. Because the petition requires adhering to a great many statutory requirements, the petitioner is encouraged to seek legal counsel in drafting and submitting an adoption petition. Once the petition is on file with the Superior Court, the biological parents and relatives are given an opportunity to object to the adoption. The court must here these objections when determining whether the adoption is in the best interest of the child. If the court finds the objections are without merit, then the process continues. Finally, the Department will conduct an investigation into the petitioner, reviewing his or her background, financial status, family status, and other relative information. The Department provides this investigation to the court to assist it in arriving at its determination.

If the Superior Court grants the adoption, it will issue a Decree of Adoption. The Decree has the effect of forever severing the parental connection between the biological parent or parents and the child. Further, the Decree creates a binding relationship between the adopter and adopter akin to the relationship to a biological parent and child. After the decree, the Court seals all the matters relating to the adoption, and the adopted child is thereafter considered and treated as if it were the biological child of the adopter.

The path between desiring and achieving an adoption is long and circuitous. Any person seeking adoption is encouraged to seek the advice of counsel. However, with the assistance of an skilled attorney, navigation of the adoption processes is not only possible, it is done every day, bringing children into families.

The Right to Remain Silent

We have all heard the words over and over on television programs. "You have the right to remain silent. If you give up the right to remain silent, anything you say can and will be used against you in a court of law. You have the right to have an attorney present during questioning. If you cannot afford one, one will be appointed to you at no charge." These words have been so stirred into our popular lexicon that there meaning has evaporated. For the most part, we are more worried about having our rights read than what our rights really really mean. In reality, the Miranda rights are seldom read at the time of an arrest and are only required to be read when the police are going to question a suspect.

The right to remain silent, or the right against self incrimination, is one of our most important constitutional safeguards. It is guaranteed to us both by the Fifth Amendment as well as the Constitution of the State of Georgia. The right against self incrimination frees us as Americans from hours of harassing, arduous and even tortuous interrogation by the agents of our government. However, this right is most important in its subtleties. It is easy to remember to, "take the fifth" when a uniformed police officer is screaming in your face. It is another thing to keep that same right in perspective when a detective is just trying to get you "tell your side of the story" in order to "clear up the details of the case".

Most people fall into the trap and decide to speak with law enforcement. It is human nature. Most of us are raised to respect authority and law enforcement is indeed authority. Further, most of us feel that if we can only explain the details of the situation, we can "square this situation away". However that is rarely the case. Law enforcement officers are trained to investigate in a very methodical manner. By the time they are calling people in questioning or interviews, they have developed a picture in their mind as what happened and the interrogation is designed to obtain facts that support the theory law enforcement has already developed. If anything, the police are striving to get a confession to bolster an already weak case.

If you are contacted by law enforcement and they want you to come and answer questions, the best thing to do is to contact a lawyer. If you cannot afford to have a lawyer come with you, then decline to speak with the police at all. You still may be arrested for the charges, but chances are, you would have been arrested had you spoken with the police. The difference is your chances of beating the case are much better.

Top Ten Common Mistakes People Make Getting a Divorce

By Eric A. Ballinger

10. If I ignore this problem, it will go away. The truth of the matter is that is your spouse has mentioned the words, "I want a divorce." This is a serious problem and it will not go away with time. Usually, one spouse is much more emotionally ready for divorce than the other and that spouse enters into the case with a distinct advantage. The better prepared spouse begins taking calculated action while the emotionally unprepared spouse is usually reacting and mostly out of emotion. If your spouse is threatening an end to the marriage, that is a wakeup call. You need to either work to improve your marriage or get ready for the end.

 

9. I'm moving out of the house. It is no surprise that a divorce ratchets up the tension at home and moving out seems like the easy answer. While moving out of the house will put an end to the arguments and restore your own personal privacy, you put your divorce case at a tactical disadvantage. Strategically, the marital residence is the high ground and should be held on to dearly. During the divorce case you will need access to financial records and to inventory of personal property, all of which is located at your home. Moving out of the house will entail taking your kids from their home they are familiar with or leaving them behind with your spouse. Either action will damage your argument for custody. You either rip the children form all that's familiar to them or you leave the children with the parent you think should not have custody. You also take the incentive away from your spouse to resolve the divorce. The spouse left in the house has all of the benefits of being divorced without any of the costs. Unless you are in fear for life or limb, it is best to remain in the house is until you are advised by counsel or ordered by a judge.

 

8. It's my money, I'm taking it out of the bank. Financially, going through a divorce is a balancing act. On one hand you do not want to leave your finances exposed and open to a spouse whom you no longer trust, however you do not want to leave your spouse destitute either. Once a divorce is filed, State law and Court orders dictate that you cannot spend money or dispose of your assets, except in the ordinary course of business. Once the proceedings are underway, every penny that has come in and out of the marriage will be scrutinized by the lawyers and the judge. The Court has the authority to order that funds be replaced, even if they no longer exist. The party that gets heavy handed with the money is often penalized by the court as a way to level the playing field. On the other hand, you want to secure enough funds to handle the situation. Securing funds in order to retain a lawyer, obtain separate housing and cover other expenses in the early stages of the divorce is an important part of your strategy.

 

7. Wait until my spouse's boss hears about this. When your spouse has been caught in some sort of misconduct, especially if it involves their job, there is an overwhelming urge to expose the behavior to their boss, co-workers and even friends to somehow make the situation right. The reality is, most of us know our spouses well enough to know plenty of juicy tid bits that we would not want shared with our employers, co-workers and friends. Despite the burning urge, this is a bad idea. It is never a good idea to shoot the goose that lays the golden eggs. Most of the issues in a divorce are income driven; child support, alimony and division of debts. If your other half loses their job or their income is reduced due to some action of your own, that financial burden is going to fall back to you. In a divorce, discretion is the better strategy. You want your spouse to come out of the process making as much money as he or she can, so that money can work for you.

 

6. It's going to make me look better if I wait and let my spouse file. It is a common fallacy that it looks better if your spouse is the one that asked for the divorce. While some people would rather not file for moral and religious reasons, there is no real benefit to waiting for the other spouse to file. In fact, there are certain tactical advantages in the courtroom that make it advantageous to be the party plaintiff. While the Plaintiff carries the burden of proof, the Plaintiff gets the first and last word in front of the judge. This is a very powerful advantage in the courtroom. Further, there is some peace of mind to take a proactive stance in what is one of the most disruptive events in your life. The sooner you take action, the sooner you can put your divorce behind you and move on with your life.

 

5. I'm not giving that !@#$% a dime. A common mistake people make in getting a divorce is being able to separate their angst for their spouse and the money they pay for the support of the children. One of the hardest thing to do is to write a check to the person you are the angriest with. However, not financially supporting the children is a huge mistake. It is against the law to leave your children in a state of want and can lead to criminal prosecution. Further, judges take a dim view of people who do not help out their children financially. There are ways to ease the pain of support and insure that your children are receiving the benefit of your financial support. If there is no order for support, you can always provide support by directly paying for items such as mortgage, vehicles and utilities or by providing in kind support by buying groceries and supplies. Once an order is entered requiring a specified amount that is what is required and failure to pay support can result in further unpleasant consequences with the Court.

 

4. The kids don't need to see my spouse. This is the converse to mistake number five. Sometimes it is just very hard to send your children to spend time with the person you are the angriest with. There are certain circumstances where it is not appropriate for children to be around the other parent, however that sort of determination should be made only after careful consideration and sound counsel. Divorce is toughest on children and when one of their parents is no longer in their life, it can be as emotionally difficult as having a parent die. Children do not understand the conflicts between adults and often blame themselves. What the Courts look for in a custodial parent somebody who is going to facilitate the children maintaining a relationship with both parents.

 

3. Let me share my perspective with the kids so they understand. No matter what age they are, your children will rarely, if ever, understand why you are getting a divorce. Most certainly they do not need to get involved with the divorce. However, it never fails, parents always feel the need to justify their position to the children as if they were the jury that decides the case. Young children do not understand divorce and have a tendency to blame themselves when their parents split up. As children get older, they tend to see divorce as grown up business and just do not want to get involved. It is a terribly cruel thing to force a child of any age to pick between their two parents.

 

2. My spouse wouldn't do that to me. Naiveté in a divorce is almost as bad as open hostility. Many people walk into a divorce believing that their spouse is incapable of doing the sort of cruel acts and misconduct that permeate these sorts of cases. While the hostility of divorce can be bad, turning a blind eye can leaves a party vulnerable. Many of the hurtful acts that go on in a marriage can have devastating effects on the minor children of a marriage. They can also lead to making poor strategic and tactical decisions in handling the divorce, which can be very costly. In handling your case, you only get one chance and no "do over". Vigilance and prudence are very important.

 

1. I can handle this without a lawyer. The biggest mistake people make in their divorce is trying to handle the case without a lawyer. Even if your case is completely un-contested, you need a lawyer to insure that the documents are drafted properly and to guide you through the process. A divorce encompasses every aspect of your life, custody of your children, title to your home, payment of your debts and division of all of your assets. Even if your spouse has hired an attorney, it pays to have the documents reviewed by an experienced family lawyer whom you trust. They can insure that the documents not only accurately reflect your agreement but also are drawn properly to be enforced in the future. If your case is contested, your lawyer can help you identify and frame the issues to present your best case to the Courts in your jurisdiction.

 

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