Year: 2015

Child Testimony in Custody Cases

Child Testimony in Custody Cases

A question that often arises in custody disputes is whether the child’s preferences are considered by the court. Certainly, the parents will have their own opinions regarding custody and visitation. The reality is that many children also have a preference as to who they want to live with after a divorce and how often they want to visit the non-custodial parent. But will the court consider the child’s preferences? Many states require the court to take testimony from the child during custody proceedings. In Alabama, it depends.

The basics of child custody in Alabama

In cases where parents are unable to agree on child custody terms, the judge will make that decision for them. In Alabama, courts are required to give custody to either the mother or the father in the case of a divorce. In deciding on which parent should have custody, or whether custody should be joint, the legal standard is the best interest of the child. This would include the child’s safety and well-being, the child’s age and gender, and child’s emotional, social, and moral needs. The court will also consider each parent’s home environment, age, character, stability, and mental and physical health. There are many other factors.

When a child’s preference is considered in Alabama

When the child involved is mature enough to articulate an informed opinion, the court will consider the child’s preference. There is no specific age at which an Alabama court must consider the child’s opinion. Instead, courts make that determination on a case by case basis. The child’s opinion may not control the judge’s decision, but it can weigh heavily.

Courts consider the child’s underlying reasons

When the court considers a child’s preference, it will also consider the reasons for that preference. For example, if the child is merely angry with one parent for disciplining the child, then the preference may not be given much weight. If, however, the child describes a better relationship with one parent or that one parent has been providing most of the care, the child’s preference would likely be given more weight. Regardless, the best interests of the child will always prevail.

Will the child testify in court?

Alabama law discourages requiring a child to testify about custodial preferences in court.  Most often, the child is brought into a judge’s chambers to testify in front of the parents’ attorneys, but not in the parents’ presence. Both parents must agree to the judge speaking with the child directly.

If you have questions regarding child custody, or any other family law matter, contact us online or by calling Brad J. Latta at (205) 401-1309.

 

Supervised Visitation

When to Consider Supervised Visitation

Divorce typically takes its toll on more than just the spouses. If there are children from the marriage, the need to maintain as close a relationship with each parent is important. Most experts consider the opportunity for both parents to continue to have a strong presence in the children’s lives to be in the best interest of those children. Unless, of course, it isn’t. Whenever there are any concerns regarding a child’s safety or well-being while in the custody of one parent in particular, then it may be time to consider supervised visitation.

The general right to visitation

Ordinarily, the parent who has not been awarded custody of the child is entitled to visitation. The visitation arrangement is only limited by the court when it has been determined that unrestricted visitation might endanger the child physically, emotionally, or morally.

A court determination is required

Before the noncustodial parent’s right to visitation can be denied, or even limited, the court must conduct a hearing to determine what is in the best interest of the child. The noncustodial parent must be given notice of the proceedings so he or she can have an opportunity to be heard by the court. If it is determined that the non-custodial party is entitled to visitation, but there are concerns about health and/or safety issues, the court will often consider supervised or restricted visitation, meaning that the visits must take place in public or with a third-party present.

Common reasons for supervised visitation

While every family’s situation is unique and the concerns are varied, there are certain situations that typically result in restricted or supervised visitation. For instance, where there is a risk of emotional harm, visitation may be supervised in order to avoid an extremely upsetting situation for the child. Most often, this occurs when unusual behaviors indicate emotional problems arising from parental visits. Depending on the child’s age and maturity, courts may also consider the child’s desire to have supervised visitation.

Personal factors of a parent that may require supervised visitation

A parent that has a diagnosed mental illness does not automatically have limited rights to visitation; it may be restricted by the court if the condition at issue could potentially place the child at risk of harm. The same is true for parents who are known to abuse drugs or alcohol.

If you have questions regarding child visitation, or any other divorce issues, contact attorney Brad J. Latta online, or by calling (205) 401-1309.

Wrongful Adoption Claims

Wrongful Adoption Claims

Over the last three decades, the tort of “wrongful adoption” has become more prevalent. Essentially, “wrongful adoption” is a type of fraud claim based on the adoption agency’s failure to properly investigate and communicate knowledge about a child to the prospective parents. In most cases, it involves medical or developmental issues that are withheld from the adoptive parents.

The Elements of a Wrongful Adoption Claim

Many states now recognize the claim for wrongful adoption, though the basic elements may differ slightly. Most wrongful adoption claims allege a failure to act in good faith; this means the legal elements often include misrepresentation, fraud, negligence, or contractual breach of good faith. Courts look at whether the information the adoption agency failed to disclose was “material.” Courts consider information “material” if it would have impacted the adoptive parents’ decision to adopt.

The Opportunity for an Informed Decision

A successful adoption most always depends on the informed decision of the prospective parents. If the parents are unable to afford to support a child because of medical or emotional issues the parents were not aware of when the decision was made, then the family will likely become a liability on the state and on society. For this reason, it is important that prospective parents are provided all of the pertinent information on the child that is available.

Hidden Releases Used by Adoption Agencies

Unfortunately, many courts have cited a long history of adoption agencies including release clauses in their adoption contracts, which limits their liability for withholding medical information about the child or the child’s birth parents. While adoption agencies are typically barred from disclosing identifying information regarding the birth parents, this does not include medical or psychiatric information which is often extremely important information for the adoptive parents.

If you have questions regarding adoptions, or any other family law issues, contact attorney Brad J. Latta online, or by calling (205) 401-1309.

 

 

What Is Child Support Used For?

What Can I Use Child Support Payments For?

Clients often ask whether there are any limitations to what a custodial parent can use child support payments for. The truth is, child support can be spent on nearly anything. There are no federal laws that limit the use of child support payments. Most state laws do not place limitations on use, either. Nevertheless, most non-custodial parents need some assurance that the payments they make are being used for their child’s needs. This article will provide some information on how child support payments should be used and how payments are often determined.

Child Support Payments Should be used for Basic Needs

Typically, it is expected that child support payments will be used to pay for food, clothing, and housing. Of course, the cost of raising children involves much more than that. For instance, there are usually school expenses, extracurricular activity fees, and toys. Older children, especially teenagers, can have costs associated with cars, like gas and auto insurance. Since child support payments are generally calculated to cover all of a child’s portion of household expenses, a custodial parent has the discretion to spend the additional money on extra items or expenses.

Child Support Based on Parents’ Income

In a very general sense, child support is meant to ensure that children of divorced or separated parents will continue to live as comfortably as they would have had their parents stayed together. States typically calculate child support payments by combining both parents’ income, and setting aside a percentage of the total amount for the needs of the child. The law will assume that the custodial parent pays for food, clothing and shelter directly, as that parent buys the groceries for the home and makes housing payments. Thus, the non-custodial parent contributes by making cash support payments to the custodial parent.

What is a Child Support Add-On?

In addition to the basics (food, clothing and shelter) and typical school and extracurricular expenses, children also need healthcare and medical insurance. Also, child care is a common expense, as the custodial parent often has to work outside the home. Therefore many courts add a percentage of these additional costs, after calculating basic child support, to this basic child support amount. Some states, though not all, also include extracurricular or educational costs in the child support add-on.

If you have questions regarding child support, or any other family law issues, contact attorney Brad J. Latta online, or by calling (251) 304-3200.

International Visitation Issues

International Child Visitation Issues

Though it might not be the most common situation, there are families who have parents living outside of the United States. These situations create a certain challenge with the issue of custody and visitation. Not only are there the practical issues involved in visitation between one country and another, but there are complex legal issues as well. This is especially true if one parent is seeking to take the child outside of the United States.

Determining Jurisdiction over the Legal Issues

The first issue that arises in these situations is which country has jurisdiction over the divorce, custody and litigation issues. When both parents live in Alabama, for instance, then there is no dispute that Alabama courts have jurisdiction over these legal matters. However, if the child lives outside the United States, the laws that govern visitation are more complicated. In those case, you need an attorney with international family law knowledge and experience; particularly, knowledge of the Hague Convention International Laws.

What is the Hague Convention?

The primary purpose of the Hague Convention is address international child abduction issues. The Convention is meant to preserve the child custody arrangement that existed before any alleged wrongful removal or retention occurred. The Convention applies only to children under the age of 16.

What is in the Best Interests of the Child?

Whenever the courts make decisions regarding child visitation matters, the concern is always what is in the best interests of the child. This is the primary concern above all else. Though the task may be more difficult when international visitation is involved, it is still critical that parents keep the lines of communication open so that the child can spend time with both parents. The worst case scenario is that a child becomes alienated from the parent who lives outside of the United States.

If you have questions regarding child visitation, or any other divorce issues, contact attorney Brad J. Latta online, or by calling (205) 401-1309.

Adults in Juvenile Court

Can an Adult Be Convicted and Sentenced in Juvenile Court?

In Alabama, as in most states, the juvenile court system has exclusive original jurisdiction over all legal proceedings involving a child who is alleged to be “delinquent, dependent or in need of supervision.” In Alabama, a child is considered to be anyone under the age of nineteen. An underage individual cannot be convicted and sentenced in an adult court. So, what happens when someone commits a crime while underage, but is not charged with that crime until after the juvenile court has lost jurisdiction?

The Conviction and Sentencing of an Adult in Juvenile Court

In M.A.M. v. Alabama, the defendant had been convicted and sentenced in juvenile court to one year in Youth Correction Services, for alleged sexual abuse of a 6-year-old. He was 16 years old at the time of the crime, but was 24 years old at the time of the conviction and sentencing. The defendant in M.A.M v. Alabama appealed the conviction, asserting that the juvenile court did not have jurisdiction over him.

The Alabama Court of Appeals Overturned the Conviction

The Court of Appeals overturned the conviction. Since the defendant was 16 when he allegedly sexually abused the victim, the juvenile court had exclusive jurisdiction over the proceedings. However, the law also states the juvenile court only retains that jurisdiction until the child turns 21. Because the defendant in that case was 24 at the time the charges were filed, the juvenile court had lost jurisdiction over him.

The Alabama Juvenile Justice Act Closed the Loophole

Alabama passed the Alabama Juvenile Justice Act in 2008, which repealed many of the statutes applied in M.A.M v. Alabama. The new law holds that while the juvenile court has no jurisdiction over acts committed before an offender was 18 but not filed until after the offender’s 21st birthday, there is an exception for offenses that have no statute of limitations. This exception would include sexual offenses involving victims under the age of 16. However, the decision in M.A.M v. Alabama involved acts that occurred in 2003, prior to the passage of the new act.

If you have questions regarding juvenile delinquency, or any other criminal defense issues, contact attorney Brad J. Latta online, or by calling (251) 304-3200.

Protecting Fathers’ Rights in Divorce

Protecting the Rights of Fathers in Divorce

Many clients believe that when it comes to divorce, fathers simply do not have the same rights as mothers. While it may be that mothers are often awarded custody and child support, the reality is that fathers have the exact same rights. Indeed, it is improper for the courts to consider gender when making decisions regarding support and custody. The primary concern should be what is in the best interests of the child.

Why fathers should be treated equally

It is just as important for a father to establish a bond between himself and his child. That paternal bond is also a crucial part of a child’s development. Therefore, in most cases it would be in the best interest of the child to grant custody to the father and mother jointly. At the very least, visitation should be awarded, depending on the circumstances.

What rights does a father specifically have?

During a divorce where the couple has children, a father’s rights include the right to custody, child support, visitation and various paternity rights. The issue of paternity is typically an issue only when the parents are unmarried, but are informally separating. If a father is granted primary custody, or sole custody, a mother may be ordered to pay child support to the father.

The need to resolve paternity issues

There are various ways to determine paternity, including DNA testing, an Acknowledgement of Paternity, a court order, and legitimation proceedings. The issue of paternity often arises in cases involving child custody disputes or support. Until the father is acknowledged under the law as such, they will not have the same rights as the mother. Nevertheless, the best interests of the child is always the primary concern.

If your rights as a father are being violated, or you have questions regarding any other custody or support issues, contact attorney Brad J. Latta online, or by calling (251) 304-3200.

Failure to Pay Child Support

What Happens if I Fail to Pay Child Support?

The purpose of child support is to cover not only a child’s necessities, but also school fees, entertainment, medical, and extracurricular activities. When child support is ordered by the court, the failure to pay court-ordered child support can leave you in contempt of court, which can carry significant civil and criminal penalties.

Being in contempt of court for failure to pay child support

If you owe child support and have not paid, the other parent can go to court and request a hearing. Failure to obey the court’s order to pay child support is called “contempt” of court. If you are found in contempt, you will be served with a document ordering you to appear in court for the hearing and explain why you have not paid the support you owe for your child. Your failure to appear at the hearing will often lead to the court issuing an arrest warrant. You could still face jail time, even if you show up for the hearing, if the judge is not convinced by your reason for not paying the child support you owe.

What can happen at a Contempt Hearing?

The court may order you to make future payments, or allow you to set up a payment plan for catching up on the unpaid support. The amount of your arrearage cannot be reduced, as a prior child support award cannot be modified retroactively. However, future payments may be decreased or modified. A judge can also order that your wages be withheld or a lien placed on your property in order to correct the arrearage.

What about jail time?

It is rare that a court will put a parent in jail for contempt of court. Judges realize that a parent who is in jail cannot earn money to make child support payments, so jail time is counterproductive.  Incarceration is typically ordered when an Income Withholding Order (IWO) or wage garnishment has not been successful, and the payor doesn’t have a plan to catch up or make the required payments.

If you have questions regarding child support or any other divorce issues, contact attorney Brad J. Latta online, or by calling (251) 304-3200.

Stepparents and Custody

Stepparent Rights in Custody Disputes

Most child custody disputes occur between divorcing parents. In some rare cases, there may be a custody dispute between grandparents. Although these types of disputes certainly represent the majority of custody cases, it is not entirely impossible to have a custody case involving stepparents. Indeed, blended families are more and more common these days. So, what rights do stepparents have in custody situations?

Parent or Third Party?

Basically, custody disputes involve either parents or third parties, which are non-parental individuals. The reality is, despite how close a stepparent may become to a child, from a legal standpoint, a stepparent is always classified as a non-parental third party. That means their legal rights are automatically less than those of either parent. But do stepparents have any rights?

Stepparents can still sue for custody

Third parties, such as grandparents, stepparents and other relatives, and even friends of the family, have a right to sue a custodial parent for partial custody or visitation. Typically, this occurs when a stepparent has lived with the child for a significant period of time and developed a very close relationship with the child – often taking on the role of co-parent. So, when a biological parent refuses to allow the stepparent to have any form of custody, the stepparent can sue for partial custody.

Which is more likely — custody or visitation?

Although the law allows stepparents to sue for custody of a minor child, judges typically reject these claims unless the biological parents are deemed unfit and would pose a danger to the child. More commonly, stepparents are granted visitation with the child. When a court determines that it is in the best interest of the minor child for the stepparent to remain in the child’s life, visitation will be awarded. Judges often weigh the degree of participation in the child’s life, including the length of time the stepparent cared for the child, the depth of emotional attachment that has been established, the degree of financial assistance provided by the stepparent, and the harm that the child would suffer if visitation were denied.

If you have questions regarding child custody, or any other divorce issues, contact attorney Brad J. Latta online, or by calling (205) 401-1309.

Special Needs Adoption

Adopting Children with Special Needs

There are currently tens of thousands of children with special needs in our country who are waiting to be adopted. Historically, these children have been seen as hard to place for adoption compared to children without special needs. But in reality, there are families out there who are willing and able to help these children. While extremely rewarding, adopting children with special needs takes commitment and perseverance. Here’s what you need to know if you are considering adopting a child with special needs.

Who is eligible to adopt a child with special needs?

The legal requirements for special needs adoption are no different from a traditional adoption. The decision needs to be made by the family after considering the capacity to parent a child with special needs, as it can be a challenge. A wise step would be to discuss your concerns with other experienced adoptive parents to make sure you are making a decision that is right for your family. Basically, factors that will be considered include the age and health of the parents, and will obviously include background checks to be sure the potential family poses no threat to the safety or well-being of the child.

Understanding what the child may have experienced in foster care

A common concern for potential adoptive parents is what life was like for the child while he or she was in the foster care system. It not uncommon for children with special needs to have been removed from their homes because of abuse or neglect and subsequently placed in foster care. There are resources available for families considering adoption that can shed some light on the common experiences of foster care children, as well as potential issues that adoptive families may face.

If you have questions regarding adoption, or any other family law matter, contact us online or by calling Brad J. Latta at (251) 304-3200.