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What About The Kids (Part Two)

On Behalf of | Oct 9, 2015 | Divorce |

What About the Kids? (Part Two)

Drugs, Alcohol, and Emotional Disorders: What if one parent in a divorce case claims that the other parent has a serious emotional disorder, or a history of abusing drugs or alcohol? If the other parent denies it and refuses to cooperate with any evaluation or testing, the lawyer for the parent making this claim could file a motion with the Court to require appropriate testing or evaluation. The motion has to be supported by at least one affidavit from someone having personal knowledge of facts which would indicate that such an evaluation is needed.

For example, if one parent has observed the other parent acting or talking in a bizarre or dangerous manner, that parent can provide an affidavit to support a motion for testing. Examples might be eye witness accounts of bizarre behavior or physical violence, or police records of DUIs or arrests for the illegal use or sale of drugs.

In such cases, the Court can require that a parent undergo appropriate testing or evaluation. If the motion is granted, the evaluations will be ordered. For drugs the court may require tests of hair follicles or fingernails. The Court may order a D & A evaluation, that an alcohol counselor provide a report, or that random urinalysis be ordered. Testing for an emotional disorder may include a clinical interview, followed by psychological testing like the Minnesota Multiphasic Personality Inventory. Very often, the only way that serious problems of a parent can be proved in Court is through such testing and evaluations.

Without this kind of testing, the court often ends up with inadequate proof of the alleged problem. For example, one parent may takes the stand and say that the other parent flies into uncontrollable rages, and screams incoherently. The other parent then takes the stand, and denies that any of this has ever happened. Psychiatric conditions are especially difficult to prove in court. Without professional, objective testing, the court will often rule that there is inadequate evidence to prove the existence of an emotional disorder.

Temporary Parenting Plans: After a dissolution petition has been filed, but before a decree of dissolution has been granted, a Motion for temporary orders, including a Temporary Parenting Plan (TPP), is usually filed by one of the parties. If a TPP is entered by the Court, it is binding on the parents until final orders are entered at the end of the case. During the divorce process, one or both parents will often claim that the other parent is violating the Temporary Parenting Plan.

Make sure you tell your attorney about any violation as soon as possible. Violations can include disrupting or denying visitation, failure to drop off or pick up a child on time, or failing to allow contact by phone or Skype. Either parent is allowed to file a motion with the Court at any time to force the other parent to comply with a Temporary Parenting Plan. Someone who intentionally violates a Parenting Plan can be fined, found in contempt of Court, or have their custodial contact reduced or even eliminated.

Permanent Parenting Plans: When the Court is ready to enter a final Dissolution Decree (divorce), it must enter final orders, including a permanent Parenting Plan (PP). The PP can be adopted by the court if it is agreed by both parents, or after a trial if there is no agreement. The PP must follow the form adopted by the Washington State Supreme Court, and is normally very detailed as to custody, visitation, nature and time of custodial exchanges, holidays, school breaks, vacations, birthdays, and restraining orders.

If the parents have not agreed on the permanent Parenting Plan, the Court will conduct a trial so that formal testimony can be taken. During the trial, both parents can call witnesses to testify under oath. These witnesses can include interested parties like friends and relatives, caretakers like teachers and day-care providers, and professionals such as doctors, counselors, and police. In most litigated parenting cases, the Court will at some point appoint someone investigate all parenting issues, and make written recommendations about custody and visitation. Depending on the county, this report can be done by Family Court Services (FCS), a Guardian ad Litem (GAL), or a Court Appointed Special Advocate (CASA).

Modification of a Parenting Plan: After the divorce, the permanent Parenting Plan can be modified only under limited circumstances (unless both parties agree to the change). A permanent Parenting Plan can be modified only if there has been a “substantial change of circumstances” (for example, new work hours, drug abuse, child abuse, or emotional problems) after the date the PP was adopted. If there is evidence of a substantial change in circumstances which is harmful to the children, either parent can file a Petition with the Court asking that the Parenting Plan be modified. The petition to modify will be denied at the initial hearing unless the Petitioner proves that there is “adequate cause” to proceed. If adequate cause is established, and the parties cannot agree on a modification, the Court will conduct another trial to determine what would be best for the children at that time.

Mediation and other Types of Dispute Resolution: Many disputes can be settled out of Court through counseling or mediation. It is very helpful if a Parenting Plan specifically identifies the dispute resolution process to be used by the parents in such a case. Settling child custody disputes outside of Court by mediation or cooperation is usually in the best interests of the children. If attempts to resolve the dispute in this way fail, both parents always have access to resolution of the dispute through the Courts.

The Importance of Parental Cooperation: Both parents should work especially hard to maintain an atmosphere of cooperation and trust in raising their children. This is more likely to occur if both parents work to keep their emotions under control, communicate freely with each other, keep their promises to each other, and at all times keep their children’s best interests at heart. Judges and Commissioners all appreciate this type of parental cooperation. Parents who have a history of cooperation and reasonable conduct are always valued and respected by the Court.