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Custody


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I. What custody is.

A. Generally

Custody is where a person becomes the responsible possessor of another person. The person about whom custody is in dispute is a minor or an adult who is mentally disabled. The minor or mentally disabled person need not be the natural relative of the person who is seeking custody, but usually is a relative.

Custody can be requested by an aunt or uncle; grand parent; cousin; or even a non relative that the Court deems suitable.

The most common custody determinations are of minor children, and are between natural parents of the child or children.

The person obtaining custody is able to make all decisions regarding the health, education, and maintenance of the minor child, and is able to obtain child support from the non custodial parents.

The parties may agree to or be ordered into a joint custody agreement. The Court generally appoints a "primary custodian." This is very nearly the same thing as sole custody being vested in one party as that party is allowed to make the major decisions regarding the child, much the same as the person with sole custody. A true joint custody arrangement calls for discussion, and even negotiation, and joint decisions regarding the health, education, welfare, and maintenance of the child. Joint custody does not mean no child support, unless the time is pretty evenly split and both parties earnings are equal.

B. Contested versus Uncontested

Custody litigation is uncontested if all parties consent to the change in custody, and there are no terms or issues in dispute.

Custody litigation is contested if the parties cannot agree on every term or issue regarding the custody determination of the child. Contested custody determinations usually center around whether a parent is an unfit person to have custody of the child. The Court is to determine who is a fit and proper person to have custody, but, more importantly, is to determine what is in the best interest of the child.

Call 901-757-5557 for a free appointment to discuss your situation.


II. Rights

 

A. Child

A child over the age of 12 has the right to tell the Judge which parent with whom the child prefers to live. The Judge does not have to grant the request. The Judge must do what the Judge feels is in the best interest of the child.

B. Parents

The parent who obtains custody of the child has the right to obtain child support from a parent if there is a separation or divorce. Either parent may obtain custody. Obtaining custody vests in the custodial parent the right to make all decisions regarding the health, education, welfare, and maintenance of the child.

C. Unmarried parents

A father who has not married the mother may still obtain custody of a minor child, but it is rare. The mother must be shown to be an unfit mother, and the father must show that he is a fit and proper person to have custody of the child. Many times custody is granted to a grandparent in such a situation.

D. Grandparents

Grandparents do not always lose their rights in a custody dispute. However, they may lose their rights. Further, there is a statute to help preserve their visitation rights.

E. The Non Custodial Parent

The parent who loses custody has the right to obtain visitation rights. These rights may be set with specific days and times, or they may be general such as "reasonable" or "liberal." "Reasonable" means upon reasonable notice, and no less than every other weekend, alternate holidays, and 2 to 6 weeks in the summer. "Liberal" means any time the non custodial parent wants to see the child upon short notice. Specific visitation is generally recommended as it leads to fewer disputes. Further, the Courts, having seen the results of child rearing without one of the natural parents, are requiring more time with the non custodial parent. It is now understood that BOTH natural parents need to be part of a child's life. The child can observe each parent's behavior and decide which is more appropriate and which is to be emulated. Without such observation, the child forms a "rosy" image of the non custodial parent, and cannot make a reasonable assessment. The Courts very much frown on the parent who wants to cut off the other parent, and "raise the child without the other parent."

Call 901-757-5557 for a free appointment to discuss your situation.


III. Procedure

If the agreement to change custody is uncontested, the parties can have the lawyer prepare a Consent Order, the parties can sign it, and the lawyer can have the Judge sign it.

If the custody is disputed, and is not part of a divorce case, a petition must be filed with the Court and the opposing party served.

The case then proceeds like any other litigation: written questions are exchanged, documents are exchanged, depositions are taken, psychologists may be involved to evaluate the parties, motions are filed and argued, and a trial is held.

The Court will eventually make a decision and a written Order is signed by the Court specifying the rights of the parties.


IV. Fees

Uncontested custody: $750.00 to  $1,500.00 plus filing fees of $150.00.

Contested custody: *$5,000.00 retainer against an hourly fee of $250.00 per Hour, plus expenses and filing fees of $350.00.

Once the retainer is used, the client is billed on a Monthly basis for accumulated fees and costs.

* Retainers and hourly fees are less for associate lawyers in the Firm than for partners or principal lawyers in the Firm.

Filing fees are what the Court Clerk charges to file the

Petition for custody with the Court.

Any additional Court costs are assessed to the losing party ( or the winning Party in an uncontested matter) and billed later by the Court.

Call 901-757-5557 for a free appointment to discuss your situation.

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Phone: 901-757-5557
Cordova (Memphis), Tennessee
Talk to another attorney and talk to us.
Judge the difference.