Child Custody Transcripts August 25, 1997 10 a.m. - 11 a.m. GUESTS: CAROLYN KUBITSCHEK, FAMILY ATTORNEY The following are excerpts from the viewer call-in portion of the program. Physical Custody vs. Legal Custody Establishing Custody During Separation Uniform Child Custody Jurisdiction Act Establishing Joint Custody Can Ex-Spouse Change Visitation Without Going To Court? What If Non-Custodial Parent Doesn't Live Up To Custody Agreement? When A Child Opposes Visitation With A Non-Custodial Parent Tips On Working Out Child Custody MS. GRASSO: Welcome back for our second hour of Legal Cafe. I'm June Grasso. One of the most important issues in a divorce is who gets custody of the children. It's an emotional issue that's often hard to deal with. Stories involving custody and visitation issues can be heartbreaking, there's no doubt about that, and here to help us answer the many questions in this area is Carolyn Kubitschek, an attorney who specializes in family law and is also a law-school instructor on the subject. Thanks for joining us, Carolyn. MS. KUBITSCHEK: Thanks for having me. MS. GRASSO: We just heard the story there, and, you know, my question is in today's day and age, you know, where people are -- they get remarried, their job changes. Suppose somebody wants to move from New York to California and take the children with her. Let's say that the wife has custody. Is that allowable? Because you're really -- you're really taking the children so far away from the other parent that they can't see them on weekends anymore, certainly. Maybe they can't even see them once a month. MS. KUBITSCHEK: Well, what you've asked is a very interesting question, because the old rule was -- at least in New York, the old rule was that if parents get divorced, they have to live near each other, and the custodial parent cannot relocate, except in really unusual, extraordinary circumstances. That's changed now, and the new rule is if the custodial parent wants to relocate and the two parents can't agree, it goes to the judge, and the judge must focus on the best interests of the child, which can mean a whole lot of things. And the fact that the children will be farther away from the non-custodial parent is only one factor that the judge looks at. The judge looks at other things -- the reasons that the custodial parent wants to move, and the possibility of maintaining a relationship with the non-custodial parent, even if that relationship has to change because of the distance between the children and the non-custodial parent. MS. GRASSO: It's a heartbreaking decision to make. MS. KUBITSCHEK: Very, very difficult situation. It invariably means that the relationship between the children and the non-custodial parent is changed. It becomes restricted. It becomes more distant as geography becomes more distant. MS. GRASSO: Now, there are also a lot of different ways of handling child custody. It is even to the point where another way is -- I've heard of, where the parents actually move in and out of the house, and the children stay in the same house, which is an odd kind of way of handling it. PHYSICAL CUSTODY VS. LEGAL CUSTODY But let's talk about the different types of custody that there are. Physical custody as opposed to legal custody. What's the difference there? MS. KUBITSCHEK: Well, legal custody determines who really makes decisions for the children and there are basically two kinds of legal custody. There's joint custody or there's sole custody. And in joint legal custody, both parents share the responsibility of making important decisions about the children, such as where the children will go to school -- public school, private school, which school -- the children's religious upbringing, health matters. If one parent has sole custody, sole legal custody, that parent makes those decisions. MS. GRASSO: Let me ask you something. Parents who are divorcing and couldn't agree on things in their life are now, if they have joint custody of the children, having to agree on issues in their children's lives. Does that become a problem? I mean, let's say deciding on something as simple or complicated as deciding on a school -- how do they decide if they can't -- if they're already at wits' end because they can't get along? MS. KUBITSCHEK: Well, it's very interesting. You know, in my experience, sometimes parents who or spouses who can't get along with each other and can't agree on anything at all, have no trouble deciding what's best for their children, and they fight about everything else, except about the children. For them, joint custody works out perfectly well, because they manage to put aside their personal differences when it comes to making decisions about their children. MS. GRASSO: The best way, yeah. MS. KUBITSCHEK: Other people, it's just the opposite. They have very amicable divorces, they can deal with splitting up all the property of the marriage, but when it comes to the children, they're fighting like cats and dogs. ESTABLISHING CUSTODY DURING SEPARATION MS. GRASSO: All right. Well, let's take an e-mail question and see what our viewers are thinking. It's from Danny in Missouri. Danny writes, "My wife left and took the kids. Is there anything I can do to see them before the actual divorce takes place?" Now, that's a -- seems like an easy question. First of all -- first of all, when there are children in the house and one spouse leaves, I mean, is it all right for that spouse to take the children? Is there anything wrong with just going -- leaving the house and taking the children with you? MS. KUBITSCHEK: Legally, as long as there's no court order of custody, there's nothing to stop the spouse from moving out and taking the children. It may be that somewhere down the line, where there comes a custody fight in court, that the judge will not be happy that one spouse has moved out and taken the children. MS. GRASSO: Now he wants to see the children before. MS. KUBITSCHEK: Well, the first thing that I would recommend that he do is to call up his wife and ask her if they can make some kind of arrangements. I always recommend talking before you go and litigate. MS. GRASSO: And second step if the wife says no? MS. KUBITSCHEK: If the wife says no, he should go see a lawyer immediately, and he may have to, to go to court to enforce his rights. As the parent of a child, he has a right to seek custody and a right to visitation. MS. GRASSO: So a court will allow him visitation before a divorce? MS. KUBITSCHEK: Absolutely. The law varies from state to state. In the state of New York, the law is that any parent has the right to see a child, unless it would be dangerous -- that is, the parent is violent, abusive, or somehow -- or otherwise endangers the children. It's very, very difficult to stop a parent from visiting. UNIFORM CHILD CUSTODY JURISDICTION ACT MS. GRASSO: Welcome back to Legal Cafe. I'm June Grasso. Our topic this hour is child custody. What are your legal rights, and how can you enforce a child custody order? All states have enacted a statute called the Uniform Child Custody Jurisdiction Act. It outlines the legal standards for when a court can make a custody determination. Here's the law of the land. In general, a state cannot make a custody decision about a child unless one of these tests is met: The state is the child's home state, meaning the child has lived there for six months; the child has significant contact with the state, for example, connections with people in the state, such as teachers, doctors, and grandparents; the child is in the state and has been abandoned or is in danger of being abused if sent back to another state. And before we go to our phone calls, I want to ask my guest Carolyn about this "significant contacts with the state." What does that mean? MS. KUBITSCHEK: Significant contacts -- the child goes to school in that state, perhaps, the child has a lot of relatives in the state who the child spends a lot of time with -- MS. GRASSO: And if the state, Carolyn, if the state has a custody decision, there's a custody decision in place -- let's say Minnesota has a custody decision on a child and then for some reason a parent perhaps thinks the child is being abused in the state and a non-custodial parent takes the child, moves the child to New York, because they feel there was abuse by the custodial parent, can New York interfere now and say, you know, "The child is now living in this state for six months, and now we want to take over this case and look at what happened"? MS. KUBITSCHEK: The most important part of the Uniform Child Custody Jurisdiction Act is that it prevents people from running from state to state to get what they feel might be a more favorable decision after they've lost in one state. It means that if the parent thinks there's abuse and there's a custody order from one state, you bring it back to the judge in the state that made the custody order and say, "Judge, we'd like you to change the order because of these new factors." ESTABLISHING JOINT CUSTODY MS. GRASSO: All right. Let's go to our phone callers. Tremaine from Kansas. Good morning, Tremaine. Hi, are you having a custody problem? Q Yeah, I'm having a big problem. MS. GRASSO: Oh, okay. Q I've been watching your show for a little while and I've learned a lot in your discussions -- MS. GRASSO: Good. Q But let me ask you, I'm in Kansas, and I'm only in Kansas for one reason, because of school, but while I'm here, my wife has begun dissolution proceedings, and my son, of course, is living with her, and I guess she would be termed the primary parent. MS. GRASSO: Now, what state is she? Q She's from California. She's from California. MS. GRASSO: Okay. Q So my question is because of the distance between us, her being in California and me being in Kansas, does this present some problems because of the distance, and how's this child custody work out in that regard? MS. GRASSO: Let me ask you a question, Tremaine. How old is your child? Q She's going on 3 years old. MS. GRASSO: And she's been with her mother for the majority of that time? Q Well, the majority of that time -- she has about four months on me, because for a period of time, we were living together. MS. GRASSO: Now, tell me this: Do you want to get sole custody -- I mean, are you trying to fight for sole custody of your child? What's your hope when the divorce comes, what kind of visitation do you want or do you actually want custody? Q I actually -- I'm trying to be less selfish than most people, and I'm looking for joint custody. I want her to have the advantages of both parents in her life. MS. GRASSO: Right. And you think you're going to move back to California? Q Ultimately, because that's the jurisdiction that I plan on practicing in. MS. GRASSO: Okay. All right. Well, stay right there, Tremaine. Now, he's out of the state because he's going to school in another state, so his job, let's say, has taken him outside the state. What are his chances of getting joint custody in California, if that's what he wants? MS. KUBITSCHEK: I'm not an expert on California law, but California is known for preferring joint custody whenever possible. My advice to him is to get a lawyer immediately, because there is a court case going on, and more than 90 percent of custody cases get settled between the two parents. They work something out. As I said, since California does prefer joint custody whenever possible and I haven't heard anything that this couple is really fighting tooth and nail. Maybe he can work something out. MS. GRASSO: And, you know, I have in my notes, Tremaine, from our researchers, that in California, joint custody required unless the children's best interest or parents' health or safety would be compromised, so you're starting off -- you're in the right state for joint custody, and, as Carolyn suggested, perhaps you could begin by getting a lawyer and also talking to your wife. Do you have a good relationship with your wife? Q We have a good relationship, but when it gets to the child, like Ms. Kubitschek said, it gets very testy, so this whole distance thing is really working hard on it. MS. GRASSO: Right, but you have an advantage in that joint custody is preferred and expected in California, so right away, you have a leg up, so to speak -- Q Yes. MS. GRASSO: -- and as Carolyn said, that you're going to have to get a lawyer to begin the process, so right away you know where you stand, and to talk to your wife right away and let her know that that's where you're headed. Okay? Good luck to you and good luck in law school. Thanks so much for calling. CAN EX-SPOUSE CHANGE VISITATION WITHOUT GOING TO COURT? I have another e-mail question. It's from Steve in California, who asks, "Can my ex-spouse change the visitation schedule on me without going to court first?" Carolyn, can an ex-spouse do that? Just say, "Oh, instead of coming on Saturdays every second week, I want you to come on Sundays every second week"? MS. KUBITSCHEK: Well, it kind of depends on whether there's a court order. Now, since he says ex-spouse, I assume there's a divorce decree and there's a court order of visitation, and if one spouse changes that court order, changes the visitation, what they're doing is violating a court order. This is not a good thing to do. You could be held in contempt of court if you don't obey the court order. I certainly don't recommend that. MS. GRASSO: So if there is a court order in place, the answer is the ex-spouse cannot do that. Thanks so much for e-mailing us, Steve. WHAT IF NON-CUSTODIAL PARENT DOESN'T LIVE UP TO CUSTODY AGREEMENT? Our next caller on the telephone is Jack from Florida. Good morning, Jack. Hi, are you have a child custody or visitation issue? Q Yes. I have custody of my daughter, and I've had her for three years now. Right now, her mother has not seen the daughter in, right now, about three months. She calls when she wants to. She's supposed to call on Mondays and Fridays. She doesn't. MS. GRASSO: And she's supposed to visit certain number of days a week? Q She has supervised visitation on Saturdays only. MS. GRASSO: All right. Q I was supposed to take her over to her sister's house -- that was the supervisor -- MS. GRASSO: Right. Q -- I would not let my daughter go over there, because the ex-wife was living in a 10-by-10 shed, and that is no place for my daughter to go and visit. MS. GRASSO: Right. Q There is many drugs and alcohol. That's why the courts awarded me custody. MS. GRASSO: Now, let me ask you something, Jack. So you're supposed to -- your sister or her sister is supposed to be the supervised -- Q Her sister. MS. GRASSO: And -- so you brought her over at one point, your daughter over there, and you didn't want to leave her, even with the sister there, because of the situation she was in. Q That's correct. MS. GRASSO: Okay, so that's why your wife hasn't seen -- Q Well, not only that, she never calls when she's supposed to. I document everything -- MS. GRASSO: Okay. That's -- Q -- and I recommend this to everybody -- MS. GRASSO: You're right. Q -- document and write everything down. That way you have a full record whenever you go to court. Right now, I have not had child support in three years, but as a man, if I was late two weeks, you know where I'd be. I'd be right back in court. MS. GRASSO: So now what -- your question is -- it sounds like you're really handling the situation properly. This documentation is very important in these kind of issues. What is your question? Q Well, my question is when I go back to court, what do you think my rights are that I'm holding back a court order saying that she's supposed to have visitation, but when I feel the environment is not appropriate for my daughter, and even my daughter, who's 7 years old, she does not want to go over there. MS. GRASSO: Yeah, I have a 7 year old. I know 7 year olds know exactly what they want and what they don't want. Now, suppose -- suppose he brings -- he's trying to go with the letter of the court order, but obviously the court was concerned, because the court said that there has to be a supervisor, someone supervising any visitation. What about when he doesn't want to drop his daughter off in a situation where he thinks things are going to go badly and he doesn't want the child to be exposed to it and the child doesn't want to stay? Would that be violating a court order? MS. KUBITSCHEK: Well, as I said before, you have to be very careful about obeying court orders, but in a situation like this, where it's just not good for his child, he should go back to court right away and ask the judge to change the order so that his daughter is protected. MS. GRASSO: All right. So, Jack, there's the answer. You should take some action yourself before your ex-wife does. Go to court and try to get that order changed, explaining the circumstances and that for the safety of your child, you don't want her in those circumstances. Thanks so much for calling, and, again, thanks for that advice. You're absolutely correct about documenting everything when you're involved in child custody and visitation disputes. WHEN A CHILD OPPOSES VISITATION WITH A NON-CUSTODIAL PARENT Our next caller is Laurie from Illinois. Good morning, Laurie. Good morning. Welcome to Legal Cafe. Do you have custody of your children? Q I have custody of my daughter, yes. MS. GRASSO: And what's your question? Q My question is in the state of Illinois, divorces and custody are so black and white, everybody's got the same rule, and my question is my daughter is 5, and when I take her over to her father's house for his scheduled visitation, she screams. She doesn't want to go. It is just an absolutely emotional mess for her to go. There's a lot of factors involved, and because of his record and things like that, I just don't want her to go and she doesn't want to go, and the court's just don't seem to want to listen to what I'm having to say. MS. GRASSO: Laurie, when you say, "his record," what do you mean? Criminal record? Q Yeah. MS. GRASSO: Okay. Do you suspect that he's abusing her? Q Well, to make things short without bringing up too much, there has been times when she's been in his custody and he's left her with people and there was some abuse that by DCFS was indicated -- MS. GRASSO: Okay. Q -- but the state's attorney seems to ignore it. MS. GRASSO: And have you gone back to try to get your -- for example, to try to get a court to look at supervised visitation for him? Q That's what me and my attorney are trying now, but I just -- to be honest with you, I'm scared. I -- it's -- because I feel like when we go into court, the judge sees like maybe a mad ex-wife, you know what I mean? MS. GRASSO: Yeah, I know exactly what you're talking about. Q And that's just not the case. MS. GRASSO: All right. Hold on there for a second, Laurie, and let me -- Carolyn, how can you -- is there a way to convince a court that you're not just a mad ex-wife? How can you document problems when you have a 5 year old who -- it's difficult sometimes to tell when a 5 year old is telling the truth or when there's an exaggeration. MS. KUBITSCHEK: Well, it sounds like she's already been documenting it, because she's got the state child protective services involved, and they've found some evidence of abuse. The most important thing that I can say as a lawyer is make sure you have a lawyer, and she has a lawyer, which I think is very good. MS. GRASSO: All right. Good luck to you, Laurie. TIPS ON WORKING OUT CHILD CUSTODY MS. GRASSO: We're almost out of time for this hour. Before we wrap things up, I want to take a minute to go over some of the legal points we've discussed. We'll call this Carolyn Kubitschek's House Blend for Smooth Custody. First, if you do want custody, take the children with you when you leave. Before you start a costly, full-scale custody battle in court, think about whether it's worth spending that much money in court. Instead, the interests of the children might be better served and you could save a lot of money and heartache by working out some kind of accommodation or agreement with your ex-spouse. Carolyn, from our phone calls, it seems like one of the main issues is getting a court to modify an order that's already in place, either because one parent isn't living up to support issues or visitation rights or you're worried about -- as our last caller, you're worried about what the parent is doing and how he's treating the child. What's the best way to go about, long term, getting a modification of your visitation orders? MS. KUBITSCHEK: Well, two things, I think. First, make sure that you are following the order and make sure that you are doing everything that you can to encourage a relationship with the other parent. If that's not working, then make sure you've got everything documented so that when you go into court, you can have hard evidence for the judge that on this particular day, a particular thing happened and that you have it all written down so that you can remember and you can present it to the judge in a logical manner. MS. GRASSO: All right. And just briefly -- is it difficult or easy to get these changed? Just yes or no? MS. KUBITSCHEK: It tends to be fairly difficult to get a judge to change an order that's already been made. MS. GRASSO: All right. I had to give you a yes or no, because we've run out of time. Carolyn Kubitschek, thanks so much for being here at Legal Cafe. We appreciate it. MS. KUBITSCHEK: Thank you for having me. MS. GRASSO: It's closing time for our Monday morning Legal Cafe.