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Q: How do I get custody and visitation orders?

A: Custody and visitation orders are established either by a full agreement written up between the parties, or else by filing a motion with the Court and asking the Court to make orders. If you and the other parent are unable to reach an agreement out of Court, you will be required to attend mediation. Mediation is a process intended to help the two of you reach an agreement on custody and visitation, and worst case scenario, provide the Court with recommendations on what the Judge should order regarding custody and visitation.

Q: I don’t agree with the Mediator’s recommendations. What now?

A: You will have a chance to argue your case in front of the Judge before he or she makes orders regarding custody and visitation. Although the Mediator’s recommendations are persuasive, Judges don’t automatically adopt them. If there is time, you might want to speak with your attorney about drafting a formal declaration responding to the Mediator’s recommendations, conferring with the other side, and/or discussing the best strategy to present your proposed schedule to the Court.

Q: My husband said that if I divorce him, he will disappear with our child, what can I do?

A: As unintuitive as it may seem, filing AND serving your husband with divorce papers offers you more protection than waiting to see if your spouse follows through with his threat to take your child. Until you file, the law assumes that the two of you are married and have equal rights to your child, and law enforcement will not interfere with marital disputes unless there is domestic violence. Once there is an active divorce case pending, the law recognizes that you are separated and that there very well may be a custody dispute. After filing for divorce, you can also request emergency custody orders based on your husband’s threats. It is very important that you seek legal representation if your spouse is threatening to kidnap your child as soon as possible.

Q: My spouse told me that courts always side with mom when it comes to the children and that if I divorce her, I will lose our kids, is that true?

A: Definitely not true, please read our blog on common divorce myths at familylawyerblog.org

Q: I heard that if we fight over custody or visitation of our children, we will have to go to mediation. What is that?

A: Mediation, which has now been renamed to “Child Custody Recommending Services,” is required if there is a custody or visitation dispute between parents. This process is intended to be positive and of benefit to parents. Rather than relying on a judge to make a decision regarding your children, the mediation process tries to empower parents to determine what is best for their children.

Q: I have heard that there are different kinds of child custody. What are they?

A: There are two types of custody, legal and physical. Legal custody relates to which parent has the right to make decisions about issues such as education, school, and medical care.

Physical custody determines which parent has the right to physically have the children with him or her, absent the other parent’s right of visitation.

Custody awards are usually expressed in terms of joint and sole. Joint custody means that both parents share in the rights associated with the particular form of custody, sole custody means one parent has the rights.

Q: If I have a criminal conviction, can I still get custody of our children?

A: It is possible to still share custody of your children with the other parent even if you have a criminal background, but if you have been convicted of domestic violence or are a registered sex offender, it will be much more difficult to share custody.

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