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Why Limited Scope Representation Could Work for You in a Custody Case

Posted on February 19, 2020 at 4:50 PM Comments comments (14)
So you are looking to file a child custody or child support case but you do not want to hire an attorney to handle every aspect of the case because that would be cost prohibitive.  For the most part you want to be hands on and handle the case yourself.  However, there may be some small aspects of the case that require legal expertise.  For those issues you can us "Limited Scope Representation" as an affordable option that will allow you to get what legal expertise you may need without breaking the bank.  If you decide to go this route you will need to set out the parameters of representation in a limited legal services contract.  The best way to do that is to set an appointment to discuss what it is that you want and need and then sign a written document evidencing exactly what it is that will be expected from the attorney.  Our office can help you with those details and enter our limited appearance in your case, if that is what is outlined in the agreement.  If an Entry of Limited Appearance is filed in your case and once the work outlined in the limited scope representation agreement is completed a Termination of Limited Appearance will be filed with the Court and the attorney's work in the case will end.  However, an attorney is not required to file an Entry of Limited Appearance in every case.  Work can be completed without an attorney ever entering their appearance in your case.  If you are interested in this type of representation, please give my office a call to set an appointment.  Let my assistant know that your office visit is to discuss possible "Limited Scope Representation." The phone number for The Faulstich Law Firm is 314-260-7823.

Psychological Evaluations and Child Custody Evaluations in Divorce and Paternity Cases

Posted on June 24, 2016 at 3:52 PM Comments comments (10)
In Divorce cases where children are involved it's sometimes appropriate to ask for a Psychological Evaluation or a Child Custody Evaluation. Generally these are not done in cases where children are not involved. The reason for this is that generally there is a concern that a parent may not have the psychological aptitude to nurture a child in a way that is appropriate for the child. A generally conscientious parent without any mental health history usually doesn't have to worry about this kind of testing. If mental health has been an issue in the past though, the request for these tests becomes more commonplace. A diagnosable mental health issue does not preclude a parent necessarily from caring for a child however. Many parents who suffer from depression or even bipolar or other mental illnesses can be fully capable, affectionate parents and their custody rights absolutely do not need to be curtailed in order to serve the best interests of the child.
You will hear this phrase many times ("the best interest of the child") because it is the standard by which the judge ultimately rules on parenting issues. This is also the standard under which a Guardian Ad Litem (an attorney appointed to represent the best interests of the children) will make their recommendation, which holds a great deal of weight with the court. In most of the cases you see where Psychological Evaluations or Child Custody Evaluations are asked for, you will have a Guardian Ad Litem. The issues and concerns that attend the appointment of a Guardian Ad Litem and Psychological Evaluations or Child Custody Evaluations have a great deal of overlap.
Now, one thing to realize is that a Psychological Evaluation and a Child Custody Evaluation are not the same. The children are not involved in a Psychological Evaluation. The Psychological Evaluation is for the adults, the parents. Generally, regardless of which parent is the parent of concern in regards to mental health, both will be required to have a Psychological Evaluation. There are exceptions to this rule, but not many. A Child Custody Evaluation on the other hand can involve the children but many of the processes are the same. It is less likely that a person would be diagnosed during a Child Custody Evaluation than in a Psychological Evaluation however. Also, it is not unusual to see both a Psychological Evaluation and a Child Custody Evaluation to be ordered at the same time.
Generally, parties consent to both have Psychological Evaluations, but compelling a party to do so is also a possibility. If a party can convince a judge that there is a good reason for the evaluation based on past conduct, then the evaluation will be ordered and the other party will be compelled to surrender to the evaluation. The reason most parties consent to the evaluation however is to show that they have nothing to hide. Now if neither party claims the other has any mental health issues, it is unlikely that this would be ordered. The only situation in which this might happen is when the Guardian Ad Litem has his or her own questions as to the state of the parent's mental health and a Guardian Ad Litem is well within their power to request this evaluation to be done. A judge will rarely say no to this relatively neutral party.
Lastly, one consideration about these types of evaluations are the records that will be opened up and available for perusal of the opposing party. Many judges will use the Guardian Ad Litem as a shield for the full records involving a mental health history. The Guardian Ad Litem will have access but no one else will until it becomes absolutely necessary, which in the domestic field of law is usually right before a trial. An evaluator will usually base their evaluation on whatever relevant materials they can find and that most certainly includes prior medical records and history of mental health. Therefore while the evaluation may be available as soon as it is finished, the underlying documents that are a partial basis for that evaluation may not be available until/if a trial marks the end of the case. In this way the court attempts to protect litigants health information as much as possible, but ultimately, once the evaluation is ordered, the opposing party can push the case to Trial and expose these prior medical records.

 

Grandparent Rights: Beyond the Basics: A Loophole

Posted on July 17, 2015 at 10:52 AM Comments comments (33)

Recently I handled a case in which Grandparent Rights were at issue. As I have written before on this blog, Grandparent Rights are not as strong as a Grandparent might hope for or expect. There are only special circumstances in which a grandparent may ask for rights. Many times this is in a divorce case or a modification of the order from that previous divorce case in regards to the child custody portion of that divorce case.
The law allows for Grandparents to Intervene in Divorce cases and Modification of Child Custody cases. It also allows for Grandparents to request rights in other ways, under other circumstances. However, there is a loophole in the law as it exists at this moment. Consider this circumstance:
A couple has children together. They split—either by divorce or just split as a couple. Either the couple goes through a divorce and comes up with a custody plan or the unmarried couple splits, no court required. A grandparent has a chance to intervene here in the divorce. In the second situation, the grandparent does not because there is no court proceeding to intervene in. The grandparents have been close to the children for years, but the grandparents believe that the dissolution is their son or daughter's own business and they don't want to get mixed up in their case. This is a legitimate consideration. Divorces are messy. Many times these proceedings can bring out the worst in people, and in this case it's grandma and grandpa's son and daughter-in-law or vice versa. Grandma and Grandpa don't want to see this part of their son or daughter and they don't want to hear the accusations the other spouse has.
The reluctance of a grandparent to intervene could very well be a mistake that costs them their right to have a relationship with their grandchildren. In many instances, this is something that you can go back and ask for but here is the rest of the scenario:
                Grandma and Grandpa's son or daughter dies. Son or daughter is in a car accident. Son or daughter has a terminal illness like cancer and passes. Perhaps son or daughter dies some other way.
Terrible things happen all the time. One of the things we do as lawyers is prepare people for those terrible things and hope they never come to pass. If grandparent does not intervene and does not ask for grandparent rights before son or daughter's death, their rights to see their grandchildren could be in jeopardy. When son or daughter dies, past daughter-in-law or son-in-law may request the court for their current partner to adopt the son or daughter's children. As of now, the law has explicitly disallowed grandparents (whose son or daughter is the deceased ex-spouse) from intervening in an adoption. Once an adoption has occurred, all grandparent rights cease for the grandparents (whose son or daughter is the decease ex-spouse).

BOTTOM LINE: Intervening when the opportunity presents may allow an attorney to add language to court documents that can preserve your rights.

If a father is not married to the mother of a child, how does he get custody rights?

Posted on January 26, 2015 at 3:42 PM Comments comments (0)
A paternity action filed in the Circuit Courts. A lot of people confuse this with the administrative process. Sometimes, when the mother is not married to the father, she can have him paying into child support for the child but the father does not have any enforceable custody rights. Additionally, it being dealt with this way may not only deprive a father of custody rights, but also has a very good chance of making the child support too high. Why? Because there are factors that administrative child support is not equipped to take into account as well as a Circuit Court might. One of these is the amount of time that a noncustodial parent gets credited for caring for the child on the form that calculates child support. The more that is credited, the less child support will have to be paid.

At this point, you might be wondering and worrying if you can file in the Circuit Courts if an administrative action has already begun. The answer is yes, you can, and if you want custody rights that are enforceable through the courts and law enforcement, you have to do so. You will want to consult an attorney on a Paternity case. She or he can help you understand the documents you need to file. A next friend will need to be appointed for the children. This is almost always the mother. While there are some similarities between custody in a dissolution and custody in a paternity, the initial filing and petitioning will be different in very distinct ways. You will still need to create a parenting plan however and this is the heart of the case. This plan will layout when and how you spend time with your child. It will also dictate how decisions on the child's behalf will be made—for instance doctor visits, extracurricular activities, and where they attend school.

What is the Difference Between Joint Physical and Sole Physical Custody in Missouri?

Posted on October 18, 2012 at 5:22 PM Comments comments (0)
 
For practical purposes this is a simple answer most of the time. Generally speaking most attorneys would say that Joint Physical Custody is any parenting arrangement after divorce where neither the father nor the mother is completely denied of time with their children. In other words, both parents get some time with their children that is unsupervised.  (If it is supervised, that would be called visitation.)
In the same way, most attorneys would say that Sole Physical Custody is any parenting arrangement where one of the two parents get either only (1) visitation or (2) no visitation and no unsupervised custody.  In some cases in Missouri however, this is not technically true, and, on occasion a case will once again surface where the definitions need to be revisited.
This last week on September 18 was one such occasion. The court had to make a decision as to whether a father with a couple days a week custody, a few extra days in the summer, and half the holidays could be called Sole Physical Custody by the mother. Sometimes, terms of law must be interpreted not by a definition listed in the law (this is usually what is referred to as a statute) but rather by terms surrounding it, experience and past law. Here, this was the case. Sole Physical Custody has no legal definition listed within the Missouri Statutes. The decision here came down to a question of whether or not the time was “substantial” enough to warrant being called Sole Physical Custody or Joint Physical Custody.
The Bottom Line: If your spouse is asking for sole physical, this will mean you do not get a substantial amount of time if he or she succeeds.

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