DIVORCE

Agreement Default Trial Mediation ChildSupport
Alimony Property Devision Child Custody Legal Separation Grounds for Divorce
Premarital Agreements Domistic Violance Visitation Taxes and Debts Appeals
Adoption Common Questions

CAN YOUR MARRIAGE BE SAVED?


Before you take any legal steps to end your marriage, you should make sure that you have tried all possible ways to save it. Do you want professional help in working out ways to save your marriage? Many communities and many social and religious organizations offer counseling services either free or on a sliding fee scale. Or you mat wish to consult with a marriage counselor, psychologist, psychiatrist, minister, priest rabbi or other qualified person. Your attorney may also know someone who can counsel you and your spouse.

GENERAL


The official word for divorce in Texas is "dissolution." Texas is one of the many states that has abolished fault as a ground for divorce. This law lessens the potential harm to the husband and wife and their children caused by the process of divorce. All that is required is that the marriage be "irretrievably broken." Either spouse can file for the dissolution of marriage. All that has to be proved is that the marriage is broken. (There is another, little-used ground: incompetence of one's spouse). Fault however, may be considered under certain circumstances in the award of alimony, and determination of custody issues.

Each divorce case is unique and therefore settlements vary. Even though fault is not an issue, the division of the marital assets may become a contested matter. The divorce process is highly emotional and traumatic for everyone it touches. Marriage partners often do not know their legal rights and obligations. Court clerks and judges can answer some of your basic questions but are prohibited from giving legal advice. Only your lawyer is allowed to do that. Court procedures must be strictly followed or you may lose certain rights forever. It is recommended that you obtain the services of an attorney concerning legal questions, your rights in a divorce, your children's rights, your property rights, your responsibilities resulting from the marriage or tax consequences. A knowledgeable lawyer can analyze your unique situation, and can help you to make decisions in the best interest of you and your family.

To obtain a dissolution of marriage in Texas, at least one spouse must have been a Texas resident for six months or more before the case is filed.

DISSOLUTION OF MARRIAGE


The regular dissolution process begins with a petition for dissolution of marriage, filed with the circuit court by the husband or wife, which states that the marriage is irretrievably broken and sets out what the person wants from the court. The other partner must file an Answer within 20 days maximum, which includes the matters within the initial petition on which the parties agree or disagree as well as any issues the answering party wishes to raise. Under certain circumstances a party can execute a waiver of citation and not file an answer. However, it is strongly urged that you consult an attorney prior to making that decision.

Some couples agree on property settlements, child custody and other post-divorce arrangements before or soon after the original petition is filed. They then enter into a written agreement signed by both parties. In such an uncontested case, a divorce can become final in a matter of a few weeks.

Other couples disagree on some issues, work out their differences, and appear for a final hearing with a suggested settlement which is accepted by the judge. Mediation is a procedure to assist you and your spouse in working out an arrangement for reaching agreement without a protracted process. Its purpose is not to save a marriage, but to help divorcing couples in reaching a solution to their problems and arriving at agreeable terms for handling their dissolution. Many counties have mediation procedures available. Some are mandatory.

Finally, some couples cannot agree on much of any thing and a trial-with each side presenting its case-is required. The judge makes the final decision on con tested issues.

The equitable dissolution process is deigned to make the divorce as fair as possible to both husband and wife, which usually means negotiation-and compromise-by both partners.

Attorneys have learned it is unrealistic to expect both partners to be "happy" with their divorce. The experience can be emotionally devastating. The financial upheaval of supporting two households instead of one causes hardship for the entire family.

Agreement

The most common method to obtain a divorce is through agreement of the parties, which also is referred to as a noncontested divorce. To accomplish a divorce through agreement, the parties enter into a written marital agreement which spells out the terms of the divorce, including matters relating to any children of the marriage and property owned by the parties. The agreement is then presented to the Court for approval.

Default.


A default happens when one party files a petition for divorce with the Court and obtains service of process on his or her spouse, and the spouse does not file an answer within the time allowed by law. If the location of the spouse is not known, service of process can be obtained by publishing notice in the local newspaper. With a default, the Court decides all issues concerning the divorce, but the Court's decision is based on the testimony of only the party who filed suit.

Trial.


With a trial, sometimes referred to as a contested divorce, all issues concerning the divorce are presented to the Court for decision. The Court bases its decision on the testimony of the parties, witnesses, and any other evidence presented. With a contested divorce, a party can use the legal proceedings to discover prior to trial information concerning the other parties' assets, credit card receipts, bank accounts, telephone calls, and other matters which may be relevant to the Court's decision. Because pretrial discovery is permitted, and because a trial entails substantially more legal work than drafting a marital agreement or default paperwork, a trial generally is more expensive than a divorce through either agreement or default. Therefore, unless substantial differences exist as to the division of marital assets, or unless the custody of children are involved (where money is not the consideration), the parties generally are better off trying to settle their differences outside of the courtroom. It is often the case that parties who commence a divorce on a contested basis settle their differences prior to trial.

Mediation.

If the parties cannot reach agreement on their own but do not wish to go through a full trial, mediation should be considered. Mediation can be an effective negotiating tool when the parties cannot reach agreement between themselves. With mediation, the parties meet with an impartial mediator. The parties' attorneys can, but need not, be present. The mediator represents neither party but instead seeks to facilitate a settlement between the parties on an equitable basis. If the parties reach agreement through mediation, then the agreement is presented to the Court for approval. If the parties cannot reach agreement, then they may still proceed with trial.

Legal Separation.


Texas does not have legal separation. Legal separation is an alternative for those who do not wish an absolute divorce but who wish to live apart from each other. It sets out the parties' rights and responsibilities in a formal manner and is submitted to the Court for approval. The main difference between legal separation and divorce is that neither party can marry another while the decree is in effect. Differences also may exist as to the parties' health insurance coverage, taxes, and estate distribution (in the event of the death of one of the parties).

Grounds for Divorce.


In order for the Court to grant a divorce, it must have grounds to do so. The most common ground used today is incompatibility, which does not require the fault of either spouse. Although a Court can grant a divorce on a no fault basis, the grounds for a divorce are important with respect to child custody, alimony, and property division. Other grounds for which a divorce can be granted include: adultery, prolonged imprisonment, desertion, addiction to alcohol or drug abuse, and other matters.

Premarital Agreements.


A premarital agreement is an agreement entered into prior to the marriage that defines the parties' rights in each other's property. These agreements can be enforceable in Court provided that certain contractual requisites are met and the agreement is not manifestly unjust or unreasonable. The parties can agree to the division and character of the property that they will aquire durring their marriage. It can be determined as to the character and ownership of income from their separate property that they take into the marriage. There must be full disclosure, of all assits and liabilities, from both parties.

DOMESTIC VIOLENCE


You may go to court yourself for an injunction to protect yourself against assault, battery or sexual battery By your spouse (whether you are separated or not) or your former spouse. If you feel you are the victim of such domestic violence. you should contact the office of the clerk of the court in your county for information and assistance.

PROPERTY DIVISION


One of the most difficult and complex areas of divorce is the division of marital property. Marital property may include cars, houses, retirement benefits (pensions), business interests, cash, stocks, bonds, bank accounts, personal property and other things of value. Texas statutes and case law provides for an equitable distribution of marital property. In essence, the marital property should be divided fairly or equitably (not necessarily equally) between the parties regardless of how the title is held. The division is based upon all facts of the case and the contribution of both spouses to the marriage. The division of marital property (any asset acquired during the marriage by the efforts of one or both parties) is considered in conjunction with all other awards of alimony and interests in property.
There is no fixed way to determine how you or the court should divide the property. Liabilities as well as assets must be considered. Other factors include the nature and extent of the property and whether it is marital property or non-marital property, the duration of the marriage, and the economic circumstances of each spouse. If you and your spouse can agree, and if your agreement is reasonable, it will be approved by the court. If you cannot agree, the court will divide the property after a trial.

ALIMONY


( non Texas residents): The court may grant alimony to either the husband or the wife. Rehabilitative alimony may be for a limited period of time to assist in redeveloping skills and financial independence or permanent alimony until the receiving spouse's remarriage or the death of either party, or the Court may grant some combination of the two. Also the court may order through lump-sum alimony one party to pay the other party a lump-sum payment of money or property. Although adultery does not bar an award of alimony, the court may consider the adultery of either spouse and the circumstances of that adultery in determining the amount of alimony to be awarded. In awarding alimony, the court considers all relevant economic factors, such as: the parties' prior standard of living; length of the marriage; age and physical and emotional condition of both spouses; each spouse's financial resources and income-producing capacity of the assets they receive; the time necessary to acquire sufficient educational training to find appropriate employment; and the services rendered in homemaking, child rearing, and education and career building of the other spouse. The court may consider any other factor necessary to do equity and justice between the husband and wife. You have the right to find out about all your spouse's income and assets through the use of discovery procedures which your attorney will explain to you.

(Texas residents): Texas has enacted "Spousal Maintenance," or support which is similar to alimony after the divorce is granted. The Texas legislature has set forth guidelines in the Texas Family Code. To be eligible, you must have been in a marriage over ten years and have specific circumstances where one spouse is unable to support him or her self, either completely of partially.

TAXES AND DEBTS


Please contact your CPA for information regarding taxes..

Custody and Visitation


It is the public policy of Texas to assure each minor child frequent and continuing contact with both parents after the parents have separated or divorced, and to encourage parents to share the rights and responsibilities of child rearing. The father is given the same consideration as the mother in determining conservatorship regardless of their child's age, sex or other factors.

In most cases, parental responsibility for a minor child will be shared by both parents so that each retains full parental benefits and responsibilities with respect to their child. This requires both parents to confer so that major decisions affecting the welfare of the child will be determined jointly.

You and your spouse may agree, or the court may order, that one parent have the ultimate responsibility over specific aspects of the child's welfare, such as education, religion and removal from the area, medical and dental needs. If the parents have a substantial conflict over any of these areas the court will decide for them. The court will also designate one parent's home as the primary residence of the child. The other parent is usually entitled to frequent and continuing contact with the child.

In rare cases, the court can order total parental responsibility and custody to one parent To do so, the court must determine that shared parental responsibility would be detrimental to the child.

The court may award the child's grandparents certain visitation rights if it is deemed by the court to be in the child's best interest. Thereafter, the grandparents have the right to seek judicial enforcement of the visitation rights. The court may award grandparents visitation rights after the parents divorce, when it is in the best interest of the grandchild or when one or both parents of the child are deceased; or, when a parent of the child has deserted the child.

In considering issues between parents and their children, the best interest of the child is the primary consideration by the courts.

The Texas State Bar has developed a consumer pamphlet entitled Shared Parenting After Divorce, which discusses the subject and includes a model shared parenting agreement. Contact the Texas State Bar to obtain your free copy.

CHILD SUPPORT


You and your spouse each have a responsibility to support your children in accordance with their needs and your financial abilities. Support may be by direct payment or by indirect benefits, such as mortgage payments, insurance, or medical and dental expenses. Ordinarily, the obligation to support your child ends when that child reaches 18, marries, graduates from school, or becomes financially independent.

Some of the issues concerning child support which must be considered include: (a) the amount of support; (b) the method of payment; (c) ways to assure payments are made; (d) when child support may be increased or decreased. Other questions may need to be answered, depending on the circumstances of your case. Guidelines for support which apply to many cases have been adopted by the state and will soon be mandatory.

If you have a problem getting support payments from your spouse or former spouse, or visitation and access to your child is denied, you should bring this matter to the attention of the court. It is not proper to withhold visitation or child support payments because of any alleged wrongdoing by your spouse or former spouse.

APPEALS


After a regular dissolution of marriage. if you feel the judge's decision was incorrect, you may appeal that decision, provided that certain procedural steps are taken. An appellate court does not, however, frequently reverse a trial judge's decision because the judge has broad discretion in divorce cases. Just because you do not like the judge's decision is not a reason for an appeal. If the trial judge makes an error of law, or has abused his discretion, the decision may be reversed.

ATTORNEYS' FEES AND COSTS


Divorce does not have to be expensive. The more complex your affairs and the more contested the issues, the more the dissolution will cost. At an initial meeting. your attorney should be able to provide an estimate of the total cost of a dissolution based on the information you provide. To a great degree the cost will depend on how contested the matter becomes.

Your lawyer will expect you to pay a fee and the costs of litigation in accordance with the agreement you make. Sometimes the court will order your spouse to pay part or all of your fee and costs, but such awards are unpredictable and cannot be relied upon. You are primarily responsible for the payment of your legal fees.

ADOPTION

What is adoption? Who may adopt a child?
How do I locate an adoptable child? Who must consent for adoption?
What are the effects of adoption?

WHAT IS ADOPTION?


Adoption is the legal procedure by which a child becomes, through court action, part of a family other than that of his or her birth parents. Adoption is a serious matter for all concerned. It determines the entire future of the child because it permanently severs ties with his or her birth parents and relatives and transfers the child into a new family where he or she will remain until grown. The new family is responsible to provide the child with the care and guidance necessary in life and that will determine the kind of adult he or she will become. To the birth parents, adoption usually means relinquishing the child forever without the privilege of seeing the child or being otherwise involved in the child's life. Additionally, the birth parents are permanently relieved of all responsibilities of the child's care and financial needs. To the adoptive parents, adoption means providing for and undertaking the care of a child who will have the same obligations as to a child naturally born to them.

Any minor (a person under 18 years ) present within the State when the Petition for Adoption is filed may be adopted. Sibling groups may also be adopted together.

WHO MAY ADOPT A CHILD?

Adults who live and work in the State, are of good character, and have the ability to nurture and provide for a child may adopt. Unmarried adults, as well as married couples, may adopt. A stepparent may adopt his or her spouse's children. The adoption takes place in the county in which the adoptive family lives unless for privacy reasons it is deemed necessary to file the Petition for Adoption in another county.

A person may not be prohibited from adopting solely because of a physical disability unless it is determined that the disability renders the person incapable of being an effective parent.

HOW CAN AN ADOPTABLE CHILD BE LOCATED?

A child may be placed for adoption by two general sources: agencies and intermediaries. Agencies may be private or public. All private agencies are licensed by the State Department of Health and Rehabilitative Services (HRS). The only public child placing agency is HRS. Private adoptions are handled by an intermediary. Only doctors and lawyers may act as intermediaries and the proposed adoption must be reported to the Court. The adoption of a child across State lines must first be approved by the Interstate Adoption Compact Administrator, which is a section of HRS. All of the restrictions concerning who may place a child for adoption and the requirements for reporting of the proposed adoption are to protect the best interests of the child, the birth parents, and the adoptive parents, as well as to prevent "black market baby business."

WHO MUST CONSENT TO THE ADOPTION?


Unless the consent is excused by the court, the proper written consent for adoption must be received from.
a. The biological mother.
b. The biological father if:
1. The minor child was conceived or born while the father was married to the mother.
2. The minor child is his child because of a prior adoption.
3. The minor child has been established by the court to be his child, usually through a paternity action.
4. The minor child has been acknowledged by the birth father to be his child. This must have been done in writing by the biological father, signed in the presence of a competent witness.
5. The biological father has provided support for the child in a repetitive, customary manner. If the child is being placed for adoption as an infant, then the support must have been provided to the biological mother for the unborn child's benefit.
6. The biological father has been established through DNA or similar testing.
7. The biological mother indicates that he is the biological father
8. If the child is 12 years old or more, the child must also consent in writing to the adoption
9. If the child has lived with a grandparent for six months or more, that grandparent may have priority rights to adopt the child.

WHAT ARE THE EFFECTS OF THE ADOPTION?

As a result of the Final Judgment of Adoption hearing granted, the adoptive family permanently assumes all parental rights and responsibilities for the child, and the biological parents' parental rights and responsibilities are similarly terminated. The first effect of this is that the child's name is generally changed to that by which the adoptive family desires that he or she be known.

For all legal intents and purposes, the child will be considered the natural child of the adoptive family. Further, the adopted child will stand on an equal footing with all other children that may then be or later come into the adoptive family, regardless of whether the other children are naturally born or adopted to the family. This is true with respect to wills and estates or later if the adoptive parents divorce. Thus, except for the biological realities, it is as though the child was born to the adoptive family initially.

Common Questions:

  • Will custody of the child always go to just one of the parents?
  • Can someone other than the child's parents be granted custody?
  • What factors will the courts take into account when they make custody and visitation decisions?
  • Are there special issues involved if a gay or lesbian parent is seeking custody or visitation rights of a child?
  • Is race or ethnic background ever an issue in a custody or visitation decision?
  • Are mothers more likely to be awarded custody over fathers?
  • When a court awards physical custody to one parent and "visitation at reasonable times and places" to the other, who determines what is considered "reasonable"?
  • Do I have to pay child support even if my Ex keeps me from seeing my children?
  • I have sole custody of my children. My Ex, who lives in another state, has threatened to go to court in his/her state and get the custody order changed. Can they do that?
  • I have sole physical custody of our children. Several times my Ex has not returned the kids on time after taking them for a visit, and I'm scared one day he won't return them at all. What are my rights as the custodial parent?
  • I've heard that mediation is the best approach to solving child custody matters. Things are so bitter between my Ex and me that it's hard to see us sitting down together to work things out. How can mediation possibly work in this situation?
  • Under what circumstances can custody orders be changed within the state where they were obtained?


    • Will custody of the child always go to just one of the parents?


    No. Courts frequently award at least some aspects of custody to both parents, called "joint custody." Joint custody, or conservatorship usually takes at least one of these forms:

  • One parent has primary possession of the child, while the other parent has only visitation rights.
  • In joint custody, medical, educational, religious and other decisions about the children are shared, or if a court allows, and if both parents consent, can be made jointly between the both parents.
  • The parents share possession of the child equally.


    • In most states, courts are willing to order joint legal custody, but about half the states are reluctant to order joint physical custody unless both parents agree to it and they appear to be sufficiently able to communicate and cooperate with each other. In Idaho, New Mexico and New Hampshire, courts are required to award joint custody except where the children's best interests--or a parent's health or safety--would be compromised. These 20 states expressly allow their courts to order joint custody even if one parent objects to such an arrangement: AK, AZ, CA, CO, FL, IL, IN, IA, MA, MI, MN, MS, MO, MT, NE, NH, NJ, OH, OK and WI (SD and UT also possibly fit within this group). Texas does not.

    Can someone other than the child's parents be granted custody?


    Sometimes neither parent can suitably assume custody of the children, perhaps because of a substance abuse or mental health problem. In these situations, others may assume temporary, or permanent custody of the children under a court-ordered guardianship or foster care arrangement.The court must consider the best interest of a child in determining who will be granted custody.

    What factors will the courts take into account when they make custody and visitation decisions?


    The court will normally favor the parent who will best maintain stability in the child's surroundings. There is no set standard as to what constitutes "stability," but a judge looks for continuity in a child's life. To the degree possible, a judge will try to maintain a child's school, community and religious ties.


    A court gives the "best interests" of the child the highest priority. What the best interests of the child are in a given situation depends upon many factors, including:
  • the child's age, gender, mental and physical health
  • mental and physical health of parents
  • lifestyle and other social factors of the parents, including any history of child abuse
  • the love and emotional ties between the parent and the child, as well as the parent's ability to give the child guidance
  • the parent's ability to provide the child with food, shelter, clothing and medical care
  • the child's established living pattern (school, home, community, religious institution)
  • the quality of school-particularly important when one parent wishes to move
  • the child's preference, if the child is above a certain age (usually about 12), and
  • the ability and willingness of the parent to foster healthy communication and contact between the child and the other parent.

    • Are there special issues involved if a gay or lesbian parent is seeking custody or visitation rights of a child?

    In a few states, including Alaska, California, District of Columbia, New Mexico and Pennsylvania, a parent's sexual orientation cannot in and of itself prevent a parent from being given custody of or visitation with his or her child.

    Is race or ethnic background ever an issue in a custody or visitation decision?


    The U.S. Supreme Court has ruled it unconstitutional for a court to consider race when a non-custodial parent petitions for a change of custody. In the case, a white couple had divorced, and the mother had been awarded custody of their son. She remarried an African-American man and moved to a predominantly African-American neighborhood. The father filed a request for modification of custody based on the changed circumstance that the boy was now living with an African-American man in an African-American neighborhood. A Florida court granted the modification. The U.S. Supreme Court reversed, ruling that societal stigma, especially a racial one, cannot be the basis for a custody decision. Palmore v. Sidoti, 466 U.S. 429 (1984).

    Are mothers more likely to be awarded custody over fathers?


    In the past, most states provided that custody of children of "tender years" (about five and under), had to be awarded to the mother when parents divorced. This rule has been rejected in most states, or relegated to the role of tie-breaker if two fit parents request custody of their pre-school children. Only South Carolina and Tennessee continue to carry the tender years doctrine in their statutes. Most states require their courts to determine custody on the basis of what's in the children's best interests without regard to the sex of the parent.

    As it turns out, a lot of divorcing parents agree that the mother will have custody after a separation or divorce and that the father will exercise reasonable visitation. This sometimes happens because fathers presume that mothers will be awarded custody or because the mother is more tenacious in seeking custody. In still other situations, the parents agree that the mother has more time, a greater inclination or a better understanding of the children's daily needs.

    When a court awards physical custody to one parent and "visitation at reasonable times and places" to the other, who determines what's reasonable?


    The parent with physical custody is generally in the driver's seat regarding what is reasonable. This need not be bad if the parents cooperate to see that the kids spend a maximum amount of time with each parent. Unfortunately, it all too often translates into very little visitation time with the non-custodial parent, and lots of bitter disputes over missed visits and inconvenience. To avoid such problems, many courts now prefer for the parties to work out a fairly detailed parenting plan (known as a parenting agreement), which sets the visitation schedule and outlines who has responsibility for decisions affecting the children. Some states, as in Texas, set out standard visitation periods under the state's Family Code, which serves as a guideline in determining what is "reasonable."

    Do I have to pay child support if my Ex keeps me away from my kids?


    Yes. Custody and visitation should not be confused with child support.
    Every parent has an obligation to support his or her children. When one parent has visitation rights (but not physical custody), he or she is usually ordered to pay some child support to the other parent. The parent with physical custody is deemed to meet the support obligation through the custody itself.

    With one narrow exception, no state allows a parent to withhold visitation because the other parent owes support, or to withhold support because of disputes over visitation. The exception? If the custodial parent disappears for a lengthy period so that no visitation is possible, a few courts have ruled that the non-custodial parent's duty to pay child support may be considered temporarily suspended. However, this must be determined by the courts.

    One important study discovered a telling relationship between custody and visitation arrangements, levels of conflict and payment of court-ordered child support. Fathers tended to continue paying child support when they had regular and frequent daytime and overnight visits with their children. The less involved with their children's lives they became, the less apt they were to keep paying support, and their compliance fell off over time. Most states allow for the child support payments to be withheld direct from the obligator's payroll. Their employer sends the child support payment to the court or the parent with primary possession.

    I have sole custody of my children. My Ex, who lives in another state, has threatened to go to court in his state and get the custody order changed. Can he do that?

    All states and the District of Columbia have enacted a statute called the Uniform Child Custody Jurisdiction Act, which sets standards for when a court may make a custody determination and when a court must defer to an existing determination from another state. Having the same law in all states helps standardize how custody decrees are treated. It also helps solve many problems created by kidnapping or disagreements over custody between parents living in different states.

    In general, a state may make a custody decision about a child only if it meets one of these tests (in order of preference):

  • The state is the child's home state. This means the child has resided in the state for the six previous months, or was residing in the state but is absent because a parent took the child to another state. (A parent who wrongfully removed or retained a child in order to create a "home state" will be denied custody.)
  • The child has significant connections in the state with people such as teachers, doctors and grandparents, and, in the words of the Act, "substantial evidence in the state concerning the child's care, protection, training and personal relationships." (A parent who wrongfully removed or retained a child in order to create "significant connections" will be denied custody.)
  • The child is in the state and either has been abandoned or is in danger of being abused or neglected if sent back to the other state.
  • No other state can meet one of the above three tests, or a state that can meet at least one test has declined to make a custody decision


    • If a state cannot meet one of these tests, the courts of that state cannot make a custody award, even if the child is present in the state! In the event more than one state meets the above standards, the law specifies that only one state may make custody decisions. This means that once a state makes a custody award, any other state must keep its hands off the matter.

    I have sole physical custody of our children. Several times my Ex has not returned the kids on time after taking them for a visit, and I'm scared one day he won't return them at all. What are my rights as the custodial parent?

    In most states, it's a crime to take a child from his or her parent with the intent to interfere with that parent's physical custody of the child (even if the taker also has custody rights). This crime commonly is referred to as "custodial interference." In most states, the parent deprived of custody may sue the taker for damages, as well as getting help from the police to have the child returned.

    If a parent without physical custody (who may or may not have visitation rights) removes a child from--or refuses to return a child to--the parent with physical custody, it is considered kidnapping or child concealment in addition to being custodial interference. Federal and state laws have been passed to prosecute and punish parents guilty of this type of kidnapping, which is a felony in over 40 states. In many states, interfering with a parent's custody is a felony if the child is taken out-of-state. Many states, however, recognize good-cause defenses, such as where the taker acted to prevent imminent bodily harm to self or to the child.

    I've heard that mediation is the best approach to solving child custody matters. Things are so bitter between my Ex and me that it's hard to see us sitting down together to work things out. How can mediation possibly work?

    Mediation is a non-adversarial process where a neutral person (a mediator) meets with disputing persons to help them settle the dispute. The mediator does not, however, have power to impose a solution on the parties.

    Mediation is often used to help a divorcing or divorced couple work out their differences, especially over custody and visitation disputes. Some lawyers and mental health professionals employ mediation as part of their practice. Several states require mediation in custody and visitation disputes and a number of others allow courts to order mediation. In California and a few other states, if the parties do not reach agreement, the mediator is usually asked by the court to make a recommendation. In most states, however, the mediator plays no further role if the parties can't agree. Mediators are very skilled at getting parents who are bitter enemies to cooperate for the sake of their children. The more parents can agree on the details of separate parenting, the better it will be for them and their children. And mediators are skilled at getting the parents to recognize this fact and then move forward towards negotiating a sensible parenting agreement. If there is a history of abuse or the parents initially cannot stand to be in the same room with each other, the mediator can meet with each parent separately and ferry messages back and forth until agreement on at least some issues is reached. At this point, the parties may be willing to meet face to face.

    Under what circumstances can custody orders be changed within the state where they were obtained?

    After a final decree of divorce is filed with a court, former spouses may agree to modify the custody or visitation terms. This modified agreement (also called a "agreed modification") may be made without court approval, but is not advisable. If one person, however, later reneges on the agreement, the other person may not be able to enforce it unless the court has approved the modification. Thus, it is generally advisable to obtain court approval before relying on such agreements. Courts usually approve modification agreements unless it appears that they are not in the best interests of the child. If a parent wants to change an existing court order affecting custody or visitation and the other parent won't agree to the change, he or she must file a motion requesting a modification of the order from the court that issued it, usually on the ground of material changed circumstances. Requiring a showing of material changed circumstances encourages stability of arrangements and helps prevent the court from becoming overburdened with frequent and repetitive modification requests. Some examples of changed circumstances:

    Geographic move.

    If a custodial parent geographically relocates a substantial distance, the move may constitute a changed circumstance that justifies the court's modification of a custody or visitation order to accommodate the needs of the non-custodial parent. Some courts switch custody from one parent to the other, although the more common approach is to ask the parents to work out a plan under which both parents may continue to have significant contacts with their children. The court may divide the costs incurred to visit the children.

    Change in lifestyle.

    Changes in custody or visitation orders may be obtained if substantial changes in a parent's lifestyle threatens or harms the child. If, for example, a custodial parent begins working at night and leaving a nine year old child alone, the other parent may request a change in custody. Similarly, if a non-custodial parent begins drinking heavily or taking drugs, the custodial parent may file a request for modification of the visitation order (asking, for example, that visits occur when the parent is sober, or in the presence of another adult). What constitutes a lifestyle sufficiently detrimental to warrant a change in custody or visitation rights varies tremendously depending on the state and the particular judge deciding the case. For instance, cohabitation by a parent may be ignored in one place, but not another.