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What to Expect from the Guardian ad Litem

Tripp — Wed, 20 Oct 2010 13:00:44 +0000

South Carolina law requires that a Guardian ad Litem to be appointed in cases where the issues of child custody or child visitation are contested issues. The Guardian ad Litem is typically an attorney (though it doesn’t have to be) who represents the children in the matter and performs an investigation into both parties and the minor children. One of the most important things the Guardians do is to prepare a report that is presented to all parties and to the Court that details the facts of their investigation, though it is not allowed to make a recommendation as to which party should be awarded custody. So what should you expect when a Guardian ad Litem is appointed in your case? Here are some things that I do when I am appointed as Guardian ad Litem and from what I have witnessed other Guardians ad Litem do in my client’s cases.

As soon as a Guardian ad Litem has been appointed, the lawyers in the case will notify the Guardian and the Guardian will send the parents a questionnaire to complete and return. At that point, an in-office meeting will usually take place at the Guardian’s office so he/she can meet with both parents individually. The children should not attend this meeting because some of the topics of discussion will not be appropriate for them to be apart of. Most Guardian’s make home visits to the homes of each parent to make sure places are clean and appropriate for the children. This is also a chance for the Guardian to witness the children interacting in each parent’s home environment.

The Guardian ad Litems will also want to meet privately with the children. This may take place at their home or at school. This time with the Guardian is important for the Guardian to speak with them without the influence of either parent.

The Guardian ad Litem may also interview other people who know the children and the parties. These other people may include the teachers of the children, guidance counselors, grandparents, neighbors, and doctors.

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My Spouse Won’t Let Me See My Children

Tripp — Mon, 18 Oct 2010 12:00:45 +0000

Many times after parties separate, one of the parties withholds the children from the other spouse. Sometimes for good reason. But, if you are the parent not getting to spend time with your children this can be extremely frustrating. But what can you do?

There is No Court Order in Place

If you and your spouse have just separated and neither of you have petitioned the family court for custody, then there is no court order in place governing the custody and visitation of your children. In this case, if your spouse will not agree to allow you time with your children your main option in this case is to file an action in the family court with part of the relief you are seeking being the visitation or custody of your children. At the time your action is filed, a Motion for Temporary Relief can also be filed where you can have a Temporary Hearing within a few weeks to have an order put in place for the pendency of your legal action.

There is an Order and My Spouse Ignores It

When there is already an order in place (whether it is a temporary or final order) either spouse can enforce the provisions of the order against the other spouse by what is known as a Contempt action. If either of you are found to be in willful violation of the Family Court’s order you could be punished by being held in contempt of court which holds penalties of up to one year in jail, community service and/or fines by the Court. This is the “teeth” of the order and most people are not willing to chance jail time just because they do not want their spouse or ex-spouse to have time with the children.

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Your Favorite Posts of July 2010

Tripp — Mon, 02 Aug 2010 16:21:17 +0000

In case you missed them when they were posted earlier, here are the top ten most-viewed posts for July 2010.

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Who’s Responsible for the Child?

Tripp — Tue, 01 Dec 2009 18:55:30 +0000

When a couple is married and they have a child it is pretty easy to determine who is going to be responsible for the child financially should the marriage end in divorce. There is no question who the mother of the child is, and in the situation above, there is no question who the father is. The husband/biological father is going to be responsible for the child and should the mother be awarded custody of the child, the father will be required to pay child support.

But what about the situation where the mom and dad are not married and they have a child together? In this case, the dad is still going to be responsible for financially supporting the child.

That all seems pretty straight-forward, right? Pretty much what you would expect. But there is a curveball. Who is responsible when a couple is married, but the wife has a child by another man (not her husband). This does not always happen in some illicit affair. Many people that I have spoken with are married, but have not seen their spouse in over ten years and they have moved on (with everything except getting the divorce finalized). If the relationship between the mom and the biological dad do not work out in this case who is held responsible for the child? The husband.

Gasp! That’s right, not the biological father. When a couple is married in South Carolina and a child is born the husband is deemed to be the legal father of the child and if a support action is filed, the husband will be the defendant – not the biological father.

So why is it set up like this? Because the government wants to make sure that children are supported and do not become dependent on the state.

Is that fair? There is a case pending in Michigan right now about this very issue. You can read more about the paternity law issue in the Michigan courts here. Hat tip Family Law Prof Blog.

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What Happens If DSS Takes Your Children?

Tripp — Mon, 19 Oct 2009 12:02:01 +0000

DSS may come into your life for multiple reasons. Sometimes it is for a good reason and sometimes it is completely frivolous. When it comes to having your children removed from by DSS it can be a very distressing situation. Regardless of the reason for the removal of your children the Family Court must hold a probable cause hearing within 72 hours to determine if DSS had probable cause or a good enough reason to remove your children.

At this hearing, DSS generally has the upper hand. In almost all cases, defendants are not represented by an attorney at this hearing and they have no idea why they are in court, what has happened to their children and what they have to do to get their children back. At the probable cause hearing, DSS will call witnesses and attempt to prove their case while you will not be allowed to testify. You will have an opportunity cross-examine the DSS witnesses and you will be able to submit affidavits to the court supporting your situation.

If you are unrepresented at this hearing and are unable to afford an attorney to represent you, the family court will appoint an attorney to represent you. This is great, except that not all attorneys that are on the appointment list handle family court and DSS matters. You may get an attorney who makes it his goal in life to stay away from a court room. A guardian ad litem will also be appointed to represent your children and to perform an investigation for the Court with their mind set on determining what is in the best interest of the children.

I would recommend that if your children have been taken from you by DSS you should immediately contact an attorney who is experienced in representing people in DSS matters. There are strict time lines and regulations that DSS must comply with and if they don’t it can help your case. Only an experienced professional will know these things. You should not go to a probable cause hearing unrepresented if you can help it.

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Spiritual Healing v. Medical Treatment for Children

Tripp — Fri, 16 Oct 2009 12:40:47 +0000

A Wisconsin couple was sentenced to jail time after they were convicted this week of second-degree reckless homicide after their three year old daughter died from untreated diabetes. Rather than seeking medical treatment for their daughter, the parents prayed for her and sought spiritual healing for her even as her health declined and she could no longer walk or talk. Here‘s the news story.

Now this couple is forced to spend 30 nights in jail each year for the next 6 years and their other children are required to be taken to medical checkups periodically.

This begs the question: do you have the right as a parent to determine what type of treatment your children receive – or if they receive treatment at all? What do you think? Should a parent be able to decide if their child should only receive spiritual treatment versus medical treatment?

Via Family Law Prof Blog

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