Sharing Parental Responsibilities After Separation

When parents come before the domestic relations court to terminate their marriage, the most important issues the court must address involve what will happen to their children. The marriage may end, but both former spouses will still be parents, and their children will still need to be cared for and protected.

Q.: How have the laws changed?

A.: The laws regarding children in divorcing families have changed dramatically over the past few decades. For most of the 20th century, children were handled much the same as the property their parents owned. The parties would fight over the right to control their children's fate, the court would hear their arguments, and, in the end, one parent would "win" and be "awarded" custody of the children. The other parent would be "awarded" visitation rights.

Over time, many judges, lawyers, psychologists and others recognized that the impact this process had on the children was greater and often more negative than expected. The courts and the legislature began to shift their focus from the rights of the parents to the rights of the children.

Q.: How are parental rights and responsibilities divided now?

A.: Procedures for dividing parental rights and responsibilities now emphasize the rights of the child to be loved, protected and supported, while maintaining relationships with each of the parents, despite any difficulties the parents may have with each other.

Every parent has certain rights and responsibilities for the care of the children by virtue of being a parent. When parents divorce, these rights and responsibilities are even more important. The court's role is to ensure that the "best interest" of the children is protected. Therefore, the parental rights and responsibilities are expressly "allocated" to the parents.

A court has two basic options in allocating parental rights and responsibilities: adopting a plan for shared parenting (formerly called joint custody), or naming one parent the residential parent and legal custodian. At times, when the parents' disagreement is considerable, the court may seek additional information and guidance from a guardian ad litem (a neutral person appointed by the court to protect the children's best interest), court investigators or social workers, and, if either parent requests it, by interviewing the children.

In shared parenting, the parents "share" the parental rights and responsibilities for the care of their children pursuant to a shared parenting plan. Usually, one or both parties will submit a proposed plan to the court, and the division of the children's time between the parents need not be equal. The court reviews the plan (or plans) to determine if it is in the best interest of the children. The court may then adopt the plan, amend the plan and adopt it as amended, or reject the plan. The parties may revise the plan to address the court's objections, or the court may reject shared parenting completely and name one parent the residential parent and legal custodian.

Naming one parent the residential parent and legal custodian does not exclude the other parent from all rights and responsibilities for the care of the children. The nonresidential parent has numerous rights, including regular companionship (visitation), involvement in the child's school activities, access to the child's school records, and notification before the residential parent moves to a new residence with the child. The nonresidential parent also has the responsibility to support the child by payment of child support and medical expenses, and often by providing health insurance.

Q.: What help is available for adjusting to the changes?

A.: The allocation of parental rights and responsibilities is only the beginning of the family's new lifestyle. The children and their parents must adjust to many changes, and it is important for parents to focus on their children's needs throughout this process. Many counties offer a parent education seminar for divorcing families, and some counties require the seminar for all divorcing parents. These programs provide insight into the different ways children react to their parents' divorce, and suggest ideas for helping them deal with the changes.

Q.: What are some general guidelines to keep in mind?

A.:

  1. Recognize that divorce or separation is a highly emotional experience. Allow yourself and your children time for adjustment.
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    your children that they are not to blame for the break-up and that you still love them. Children, especially young ones, often feel they have done something wrong and believe the problems in the family are their fault.
  3. Continuing anger or bitterness toward your former partner can injure your children far more than the divorce or separation itself. Refrain from voicing criticism of the other parent. Such remarks are not only about your former spouse, but are about someone your children love.
  4. Do not force or encourage your children to take sides. To do so builds frustration, guilt and resentment.
  5. Do not upset a child's routine too abruptly. Help your children ease into their new routines as smoothly as possible.
  6. Do not use alcohol or other drugs before or during your time with your children.
  7. Occasionally, nonresidential parents who feel hurt or anger or no longer needed ask why they should make the effort to be with their children. The answer is simple. Your children still need both parents.
  8. Divorce or separation often leads to financial pressures on both parents and sacrifices must often be made by everyone. Be honest with your children when talking about these matters, and be sure any discussions are free of accusations against the other parent.
  9. Marriage breakdown is always hard on the children. They may not always talk about the way they feel or realize what this will mean to them. Parents need to be direct in telling children what is happening and why, in a simple way that is appropriate to each child's age. Do not lead children to feel that they must never talk or even think about what they know is taking place.
  10. The guilt parents may feel about the marriage breakdown need not interfere with discipline and correction of their children. The discipline that was necessary when both parents were present in the home is no less important when parents no longer reside in the same household. A child will be less likely to play parents against each other when rules are consistent. Do not attempt to buy your child's favor by special treatment or by making promises you know you cannot keep. The roles of stepparents with regard to discipline must also be clear to children and parents alike.


Q.: What are some visitation guidelines to follow?

A.:

  1. It is important to maintain frequent contact between the children and the nonresidential parent. Maintaining contact helps decrease a child's feelings of rejection or guilt for the divorce and a child's fear that he or she may never see the other parent again. Each court is required to have a standard or model visitation schedule in situations where parents cannot agree. Contact your local court to obtain a copy of its guidelines. A schedule may be necessary particularly in situations where a parent has relocated outside the state.
  2. From time to time, you may need to adjust your schedule. If the children have made plans that conflict with the schedule, parents need to work out the problem together in a responsible way. The behavior of parents has a great influence on the emotional adjustment of their children. The residential parent must not deliberately and repeatedly create conflicts.
    Should a scheduled visitation need to be cancelled or delayed, inform the other parent as soon as possible with a full explanation for the child. If the nonresidential parent does not notify the residential parent, and is later than one hour in calling for the child, his or her visitation should be considered forfeited.
  3. The time shared should be pleasant not only for the children but for the parents. Visitation should help your children maintain a positive relationship with the nonresidential parent. It is important that neither parent verbally or physically attack the other in the presence of the children.
  4. The children should be available and ready at the expected time. It is up to the residential parent to prepare the children physically and emotionally, just as it is the responsibility of the parent providing transportation to be on time. Courtesy in communicating any problems will avoid confusion, disappointment and anger on the part of children and adults.
  5. The visits should always take place away from the children's home. In most situations, the nonresidential parent may take the children to his or her home overnight, or plan an enjoyable outing.
  6. Visitation is a time for the parent and the children to be with each other, enjoy each other and maintain positive relationships. Having other people participate may dilute the parent-child experience during the time together; however, depending on the people involved - stepfamily members, grandparents or other such relatives - it should not be ruled out altogether. Children need the nonresidential parent's time and undivided attention as often as possible.
  7. Nonresidential parents may be unsure as to what they might plan in the way of activities for their children, particularly if the children are young. Parents' involvement with their children is the most important factor. Giving of yourself - teaching, talking and playing - is more important than spending money.
  8. Time that parents share with their children should not be used to check on each other. Children must not be prodded for this kind of information nor used as spies. Often in a child's mind, the parents hate each other. Therefore, if children do anything to please one parent, they may feel the other parent will dislike them. They feel they have already lost one parent and are afraid of losing the other. So it is important that parents show mutual respect and teach their children to love and respect mother and father.
  9. Children need parents to strive for agreement in decisions pertaining to their needs. This is especially important concerning discipline and correction, so parents do not undermine each other's efforts.
  10. If you are the residential parent, furnish the nonresidential parent with copies of all grade reports pertaining to the children's school performance. Nonresidential parents may also contact the children's schools for this information. Participation by both parents in school activities, such as parent-teacher conferences, is also important.
  11. The residential parent is responsible for providing clothing and personal effects that the children require while they are with the nonresidential parent. Ordinarily the nonresidential parent does not maintain a wardrobe for the children at his or her residence. These items are to be returned with the children or as soon as possible after a visit.
  12. It is important to understand that rights to support and rights to visitation are independent of each other. If the nonresidential parent falls behind in support payments, visitation is not to be denied. If the residential parent is improperly withholding visitation privileges, the nonresidential parent is to continue with support. Consult your attorney on these matters. Such behavior is detrimental to your children's welfare and interferes with their rights. Keep in mind that these decisions may place you in contempt of court and make you liable to a jail sentence.

Q.: Where can I get help?

A.: If you need marriage and/or family counseling before, during or after divorce, sources to contact for help in finding a marriage and family counselor include your attorney, governmental services, your family doctor, your minister, priest or rabbi.

Many domestic relations courts make use of family mediators who are trained to assist parents after divorce or separation. Mediators can help parents in resolving disagreements concerning their children and in cooperating in the care of the children.

Choose a counselor as you would a doctor or lawyer. Ask about credentials, training and years in practice. Do not head blindly for the Yellow Pages of the telephone directory. These listings often include some persons with no training at all, or training that is skimpy or outdated.

The information contained herein is general and should not be applied to specific legal problems without first consulting with one of our attorneys.

 
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