Thursday, August 11, 2011

With Divorce, Know Your Custody Agreement And Your Custody Rights

Know your custody agreement and your custody rights.
Divorce is never easy. Dreams that once brought two people together are forgotten and usually selfish reasons tear the couple apart. Divorce is even harder when there are children involved. Some couples work well as co-parents and do the right things for their children. However, some parents create incredible headaches and hardships for the other parent. With divorce, you need to know your custody agreement and your custody rights. 

When children are involved in a divorce, there are terms set forth in the divorce decree that cover every aspect of how the two parents will move forward and it spells out the rights and obligations of each party.

I don't know how it works in other states, but in Nevada, where I was divorced in 2005, the Custody Agreement has an addendum called a Parenting Plan. This plan was hashed out in closed-door sessions with my soon to be ex-wife and facilitated by a mediator. Once all of the terms and conditions of the Parenting Plan are agreed upon by the divorcing parties, it is drafted and submitted with the divorce documents. Once the divorce decree becomes final, all of this information is recorded and entered into public record - which means anyone can look up your divorce papers and see what the terms and conditions are. The terms and conditions of the custody agreement and the parenting plan are legal binding documents and both parties must adhere to what was agreed upon or the offending party can be held in contempt of court or worse - face jail time or stiff fines.

It is very important that you keep a copy of your final divorce decree, custody agreement and/or parenting plan on file and accessible. You may need it some day.

Recently, I was forced to find my divorce papers and thoroughly review all of the aspects of my custody agreement and the parenting plan agreed upon by my ex-wife.

I am in a tough situation. I became very ill in 2010 and had no one to help me. My family decided to move me from Las Vegas to Ohio, so I could be closer to my sister and she could help me with my recovery. That put 2,300 miles between me and my then 9 year-old daughter. I've been in Cleveland since March 18, 2010. And due to my illness and my work schedule, I have not seen my daughter in person since December 13, 2009. It has been really hard. I love her dearly.

The goal of any custody agreement and/or parenting plan is that both parents put aside their differences and do what is best for the child or children. Neither parent can poison the child or children regarding the character of the other parent.

Open lines of communication are part of all custody agreements. You may have visitation rights that are only on weekends, but you should still be able to talk to your child on the phone, email them or video chat with them without completely disrupting the other household.

I'm going to use my situation as a teaching opportunity so that you understand what you should have in your custody agreement and what your rights are.

Things you need to consider are how the child's or children's time is divided between the two parents. If the child is to have medical insurance. What school will the child attend. Who pays for what. Usually, medical expenses are split. How do you split up holidays and birthdays. Where will your children be on Father's Day and Mother's Day. Are there any other holidays that you observe where the children should be with one parent or another. How will they spend summer vacation and Christmas vacation. Religious upbringing and religious holiday, how are they handled?

The situation I'm in right now is that my wife took my daughter to a counselor. My daughter told the counselor that there were a couple things that I said in our phone conversations that upset her. She loves me and when my computer died, she was upset. She knows I don't live in the best place, but we never talk about it.

I was not involved in these meetings with the counselor. I don't know how many meetings there were and what were the outcomes of any of the meetings. My ex-wife called my sister and said that I had upset my daughter and based on the recommendations of the counselor that we only write letters to each other and have only an occasional phone call. So, since July 13, 2011 I have had absolutely no contact with my daughter. It's almost a month.

My ex-wife did not call me about this decision, she sent me an email and told me to write letters and that was that. I replied in a terse fashion, since I was not included in any of this. She replies to me with an email that says she won't take any of my calls or respond to any of my emails and I should only correspond with her through her attorney. I've called the attorney four times in the last six business days and have yet to hear from him.

Here is where my ex-wife has gone wrong. If the counselor made this recommendation, my ex-wife would need to go to family court and have an amendment made to our custody agreement or the parenting plan. However, since I was not involved in any part of the process with the counselor, this is a complete farce and would probably be thrown out of court. No parent can change the rules of the custody agreement, just because they want to. You have to do that in court.

What is much more grievous is that my ex-wife has violated a very serious part of our custody agreement. Again, this is what they wrote up in Nevada in our Divorce Decree, but I'd assume that this language is part of every custody agreement in every state. Here is what ours reads.

Page 3, Lines 11-18

Section 3.5 The parties are subject to the provision of NRS 125.10(6) for violation of the Court's Order:

PENALTY FOR VIOLATION OF ORDER: THE ABDUCTION, CONCEALMENT OR DETENTION OF A CHILD IN VIOLATION OF THIS ORDER IS PUNISHABLE AS A CATEGORY D FELONY AS PROVIDED IN NRS 193.130. NRS 200.359 provides that every person having a limited right of custody to a child or any parent having no right to the child who willfully detains, conceals or removes the child from a parent, guardian or other person having lawful custody or a right of visitation of the child in violation of an order of this , or removes the child from the jurisdiction of the court without the consent of either the court or all persons who have the right to custody or visitation is subject to being punished for a category D felony as provided in NRS 193.130.

This is a serious offense. I'm trying to get someone to return a call, so I can try to settle this reasonably. But I may have to take more serious action. If it means going to court, then this part of the custody agreement kicks in:

Page 15, Line 4

Section 29.0  LITIGATION/ATTORNEY'S FEES
Section 29.1 Should litigation arise concerning the terms and conditions of the Agreement, or the breach of same by any party hereto, the prevailing party shall be entitled to attorney's fees and costs in an amount awarded by the Court.

The opening paragraph of the Parenting Plan reiterates what the above law states regarding concealment of the child.

It is the intent of the Plan that each of the parents, XXXX XXXX, natural mother, and Roger Blazic, natural father, will make every effort to maintian free access and unhampered contact between the child XXXX XXXX, DOB: XX-XX-XXXX and the other parent. Neither parent will do anything, which will estrange the child from the other parent or impair the natural development of the child's love and respect for each of the parents. Bot parents understand that parenting requires the acceptance of mutual responsibilities and rights insofar as the child is concerned. 

There are a total of ten items from the Parenting Plan that my ex-wife has violated and some of them repeatedly. I want it to stop.

Issues like having access to all school and professionals that come in contact with my daughter - I'm supposed to have their names and numbers and be allowed to independently consult with them. I have nothing.

All schools, health care providers, formal day care providers, and counselors will be selected by the parents jointly - my ex-wife acts unilaterally and has never discussed any of this with me. I don't know my daughters doctor, her dentist, and I didn't even know the counselor who started this whole mess.

My ex-wife is supposed to notify me as soon as reasonably possible if my daughter requires medical attention and give me the names and contact information for the health care provider. Twice, my daughter has called me from the waiting room of a Quick Care facility to tell me she was waiting to see a doctor. Did I get anything from my ex-wife - a call, an email? Nothing. And those are the only two times I know about. There may have been more.

I'm supposed to be provided, upon receipt, with any report cards, test results, parent-teacher meeting results, photo order forms, etc. I've received report cards and test results. But my daughter has been seeing a school counselor for the last several years. I have never had one update on what is happening with that. Even if nothing is happening, an email that says, "Nothing is happening with the school counselor," would be common courtesy.

My ex-wife was supposed to supply me with the address and telephone number of any place she moves to, and I am required to do the same - if the child is going to be living with me. That is supposed to be done no less than 10 days before the move. About four or five months after she moved, my daughter sent me a letter and the return address is how I found out where they were living.

When they travel, I'm supposed to be provided with travel itineraries - flight info, where they are staying, phone numbers, etc. My ex-wife seems to feel that this is an invasion of her privacy, she only did this twice and they've taken about 50 trips since our divorce. It makes sense to provide me with this info. If they're driving to California and they got in an accident and wind up missing for several days, I'd like to be able to call the police and say, "Look for them in San Diego or on the way to San Diego," instead of saying, "Check North America." Providing me with this info is part of the plan and she can be held in contempt of court for violating it. I only find out about the trips through my daughter. She'll say, "Oh, we're going to San Francisco," or "We just got back from Arizona or Texas or wherever they went."

The parenting plan specifically says, "Each parent will be entitled to reasonable telephone communication with the child." I was instructed that "reasonable" meant - don't call every night at dinner time or butt into family gatherings. In other words, don't be a pest. I, however, never call my daughter. They are always running around and I would be butting into something. I've left the calling completely up to my daughter. She calls between one and six times a week, depending on what is going on. Our calls are always fun and we laugh a lot. She plays computer games and tells me about them on the phone. I help her with homework, spelling, and answer questions about things she heard kids at school say - and not all of that is pleasant. I'm doing the best I can in a long distance situation.

In addition to reasonable phone communication, "Each parent is restrained from reasonably interfering with the child's right to privacy during such telephone conversations." My daughter always talks on the speaker phone, so my ex-wife can hear everything that goes on. I never talk about my X anyway. I act like she's dead and not worth talking about. My ex-wife set up an email account for my daughter, but it comes through on her email program, so I have zero privacy with email. I've sent my daughter three or four emails in the last week and I've heard nothing back. I really don't think my daughter has seen any of the emails.

You can see the kind of items that are part of a comprehensive Parenting Plan/Custody Agreement. It's not fun, but it is necessary. You cannot let the other parent bully you or treat you like a doormat. If you are having problems, go back to the documents. They are legal and binding. Your Divorce Decree creates a set of laws by which BOTH parties have to adhere to; otherwise, they can be found in contempt of court or worse - face jail time or stiff penalties.

With divorce, you need to know your custody agreement and your custody rights. You have every right in the world to be able to communicate with your child and know what goes on in their life. Never forget that.

Related article:
My Ex-Wife Cut Me Off From Talking To My Daughter On The Phone

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