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Importance of an initial custody determination

3/16/2012

3 Comments

 
Before any dependency or divorce with children involved comes to a conclusion an order must be entered determining the custody status of children. Though these custody determinations are never considered "final" in the sense that the court maintains jurisdiction over the matter, these determinations have a lasting effect on the children, the parents and the case. Before a custody determination has been made parents enter court on equal footing and on higher ground than all other third parties that seek custody of the children. The law presumes that a parent is the best person in the world to raise their own children. This presumption is referred to as the Terry presumption. Essentially, the Terry case held that parents have a constitutional right to raise their own children. However, the law does not prefer mothers over fathers or fathers over mothers. Though litigants often feel that one party is favored there is no presumption in the law that favors one parent over another. If the court does favor one party over the other based on gender then the law has not been applied correctly. If it can be shown that one party is unfit then that determination will effect custody. The court is to be guided by the best interests of the child when making this initial custody determination.

After a custody determination has been made and the case is closed the playing field is no longer level for the parents. The custodial parent now has the high ground. If the non-custodial parent wishes to modify custody he/she must now meet a more rigid standard than the "best interests" standard. The non-custodial parent must now meet the McLendon standard. He/She must be able to show not only that it is in the best interest of the child for custody to transfer but that there has been a material change in circumstances and that the benefits of changing custody outweighs the harm that would come from uprooting the child from their current home and social environment. This standard is very difficult to satisfy. Recent cases have softened the requirement regarding the weight given to the harm of uprooting the child but the "material change in circumstances" requirement remains quite rigid. The material change in circumstances requirement is difficult to prove. For instance, in a case where children were removed from a parent based on a parent's drug addiction full rehabilitation from the same was not sufficient to show a material change in circumstances. Being better able to care for your child is not enough to satisfy this higher standard. Further, if a parent loses custody to a non-parent and a case closes that  parent also loses the Terry presumption discussed above.

The point is that a parent must fight tooth and nail to maintain custody of their children. If they can help it they should not allow a case to close with any thing less than true joint physical custody. Anything less will cause that parent to have to fight an uphill battle to regain custody.
3 Comments
custody link
9/24/2012 09:51:05 pm

Because of posts like this I surf the internet and when I found you, the time I felt I was wasting, just turned my thoughts around and now I am thinking I invested my time in something really interesting.

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personal injury lawyer link
5/8/2013 08:25:40 pm

It is really painful to watch such kind of situations. The children who suffer such situations never going to trust any relation in their life. Parents should always try not to pull their children to be a victim of such a harsh situation.

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darcy bussey link
6/24/2013 02:16:49 pm

I am a custodial/grandmother who was granted custody in Aug of 2012. The mother tested positive for amphed. and the child did as well. I brought him home from the hospital at 7 days old. The mother and father, my son, lived with me and stayed in over night order by dhr for one month. The were to meet certain isp goals and both failed to meet them. They were told no more over night stays. DHR continued to try and get them to complete the scheduled things for the right to get their child back. The mother and father continued in the life style, both doing rx drugs. Failed text and did not show for some drug test. The child was place with me on a permeate bases and after almost three years lacking one month, the mother is taking me to court to try and get custody. I am glad I read this post. It helps me to see more clearly what my options are. Currently she is clean. Sh has been doing drug test for a month or two per her lawyer's suggestions. Has a full time fob as dental assistant. She lost a precious job with a dentist because she tested positive for drugs. She also lost custody of her first child to her ex husband after failure to appear for the custody hearing. I do not see how the courts can in good faith take this child from a stable place and put him with a single mother who had little to do with him the first year and a half of his life. I pray the judicial system will work in favor of stability of the child as opposed to the selfish desires of the birth mother.

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    Austin Burdick is an experienced appellate and constitutional attorney.

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