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Two Big Child Custody Mistakes To Avoid

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Disagreements about child custody can be draining, both emotionally and financially. They can also arise unexpectedly. Relying solely on trust without the right legal protections can have devastating consequences. Consider the following scenario.

Elaine had relied on her husband Todd to take care of the divorce. Todd chose the cheapest option he could find which was a no fault case that did not address custody of their four year old son, Jeremy. Todd then remarried and moved 2,000 miles away.

Elaine and Todd seemed to have a good relationship. Jeremy lived with Elaine because that's what she thought was best for him, given that Todd was focused on his new wife and showed little interest in his son. But she wanted Jeremy to know his dad and sent him to Todd to visit for six weeks during the summer.

The day before she expected to pick Jeremy up at the airport, she got a phone call. It was Todd calling to say that Jeremy would not be coming home. The next morning she was served with papers from a court in Todd's state.

Todd had sued her for custody of Jeremy. His wife had convinced him to keep Jeremy with them so he could stop paying child support. They claimed Elaine was a terrible parent and that sending Jeremy home would put him in danger.

Every court hearing required that Elaine take several days off from work. She had to pay for air fare, car rental, lodging and meals just to show up. And she had to decide on a lawyer without meeting him in person.

At the first hearing, the lawyer she thought she had hired was not there. He had sent a junior associate instead. The judge appointed a local lawyer, who was obviously very friendly with Todd's attorney, to serve as guardian ad litem for Jeremy and argue for whatever she thought was in his best interest.

This young woman spoke to Jeremy privately for 15 minutes, then came to talk to Elaine. She said that Jeremy confirmed some of Todd's accusations.

The woman told the judge the same thing. The judge turned to the junior associate who looked at Elaine with a mixture of stage fright and suspicion that she just might be a terrible parent. When the judge asked him what Elaine's position was, the associate said only that Elaine would like for Jeremy to come home with her.

Todd's lawyer and the guardian ad litem argued that Jeremy was safe with Todd and should live with him until the next hearing. The judge granted temporary custody to Todd, ordered Elaine to pay child support, and set the case for trial in four and a half months.

Elaine later learned the first lawyer should have objected to the court hearing the case at all. She changed lawyers and asked to have the case dismissed. After months of delays, the judge dismissed the case because, when it was filed, Jeremy had not lived in Todd's state long enough.

Elaine thought the nightmare was finally over. She planned to leave with Jeremy at 1:00 p.m. the next day. But at 11:00 that morning she was served with a summons for a new case and Todd refused to let her take Jeremy with her.

Her lawyer again asked to have the case dismissed. But the judge decided the new case could go forward because Jeremy had now lived in Todd's state for six months. He scheduled the trial for a date five months later, ordered that Jeremy stay with Todd until then and required Elaine to continue paying child support.

Because the guardian ad litem could visit Elaine's home, the judge ordered that Elaine have a home study done. Todd didn't have this expense because the guardian ad litem lived close to his house and could do a home visit. Elaine paid $2,500 for the home study which concluded her home was fine. Her legal costs were now over $20,000.

Elaine flew into town the weekend before the trial. She and her lawyer spent hours preparing. But the witnesses in her city couldn't be there. They could not afford to take the time off from work to come, even though she offered to pay their expenses.

Elaine's lawyer arranged for one of them to testify by phone. They said she was a great parent, but the judge and the guardian ad litem didn't seem to pay much attention to what this witness had to say. Todd presented three live witnesses, including Jeremy's teacher, to testify that Todd and the step mother were "awesome parents."

The guardian ad litem told the court that Jeremy was now settled in his new environment and should not be uprooted. In the end, the judge gave custody to Todd. Elaine's visitation would be three weeks each summer plus Christmas in alternate years.

This horror story is drawn from actual cases. My area of Hampton Roads Virginia has many of interstate custody battles because we have a constant flow of military families into and out of the region. I have watched many out-of-state parents struggle with the uneven playing field just like Elaine. The details in the story are all too real.

Elaine made two avoidable mistakes that put her at a big disadvantage.

The first was sending Jeremy to Todd without having a custody order in place. If you have a custody order from your state, you can insist that any custody issues be decided in your state's court. The second was not immediately pushing for Todd's case to be handled in her state. Elaine should have filed for custody in her state as well as asking for Todd's state to dismiss his case because they clearly did not have jurisdiction. If these steps had been taken, Elaine would have been the one with the home-town advantage. She might still have faced a fight, but she would have had the home-town advantage.