How to Handle Difficult Child Exchanges

The best divorces don’t need lawyers.   I may have said it before on here, and I will say it again.  The best way for a marriage to end (if there is such a thing) is that both people agree on the division of property and parenting time.  Then they submit that to the court, the court stamps it, and they are on their way.  This way hopefully the adults can stay friends, and it puts the least stress on the children.

Sadly, this is not always the case.  Sometimes parents use the children as pawns against the other parent.  They will tell the children hurtful things about the other parent, or they will deliberately be late or early to a drop off.  One of the most frustrating and traumatic things is when the parents fight in front of the children at an exchange.  Think of how scary that must be!  They are already stressed out because they don’t understand why they’re not a family anymore, and then the parents add to it by causing a scene.  No wonder so many children scream and cry at exchanges.

If this is your situation, and you want it to stop, don’t worry.  There are many things that you can do, both large and small, to make it go smoother.

Most people want to rush into the most drastic measures.  This can mean keeping the child away from the other parent or getting a restraining order.  This is NOT  the way to go.  Always try to work things out civilly before going to drastic measures.  (Please note, though, that if your life or health are being seriously threatened by someone who has abused you before, you need to contact an attorney or women’s shelter immediately.  The cycle of domestic violence is much more than these simple problems.)  You can start off with small things first.  If you are currently exchanging at a home, try to move it to a public location.  If there is a park near your home where the kids like to play that is a good option.  Most people behave much better when they are at a place that others can see them.  Along the same lines, you can always have someone present with you to be a witness in case things get out of hand.  That witness tends to make people behave.

If that doesn’t work, try moving to a police station.  I am willing to bet that every police station in the country does child exchanges.  You can’t leave your children there, but you can stand in the lobby and wait for the other person to come in.  This way there is an even better witness present—an officer.  They often have surveillance cameras in the lobby as well.  I have used these videos more than once in trial to prove that the other party starts the fights and is dangerous.  If there is a need the officers can also walk you out to your car.

I have had clients that couldn’t even do a police station.  If that is the case, try to find somewhere that is a supervised exchange location.  Here in Denver it is called the Karlis Center.  The parent who is dropping off the children comes at drop off time.  The center has great staff, play areas, and a play ground outside.  The parent who is leaving can tell the kids goodbye and go.  Then the parent who is picking up the kids comes 15 minutes later and takes them home.  That way the parents don’t even have to be in the same parking lot.  This often fixes the problem, and exchanges can be peaceful again.

Only if you are seriously being threatened should you go get a restraining order.  If you just don’t like to see the other person, or you think they’re just talking, then you should not try. Restraining orders will only be granted for the long term if the other person is currently threatening your health or your life, and you have some way to prove it.  Threatening your property, or just cursing at you, is not enough.   Unless you are really in danger, usually they only serve to make the situation worse.  The other person gets mad at you and then refuses to communicate.  The only way to get through the whole process is by open communication between you, denying the other parent time and contact with the child unnecessarily escalates the conflict.  Keep calm for the sake of your children and take the least drastic measures first.

Do whatever you can to help make the divorce as easy and smooth on your children as possible.

Why “Parenting Time” and not “Custody”

Family law in Colorado is different than almost anywhere else in the country.  We are blessed with an active and progressive bar association and bench (lawyers and judges) that takes an active role in making the law as good as possible.  Don’t get me wrong, it is certainly not perfect.  But it is much better than many other states out there.  One of the big differences in Colorado is that we don’t have “custody“, we have “parenting time” and “decision making.”

When I first heard this in law school I thought it was silly.  What does the name matter?  What we’re talking about is who has the kids, isn’t it the same either way?  Turns out that it is much more than a name.   When a parent has custody in the traditional sense it is an all or nothing matter.  The parent who is awarded custody has most of the time with the child and has the right to make all of the decisions without having to consult with the other parent.  That means that a parent who looses custody really is cut out of a lot of the child’s life.  So it makes sense that the parents would fight tooth and nail to get to have custody of the kids.  Who wants to be cut out of their child’s life?

Allowing a judge to decide parenting time and decision making separately means that it is not an all or nothing battle.  Even if one parent only gets every other weekend, he or she can still be involved in making decisions for the child like where they go to school or what medical procedures to approve with the doctor.  That way even if the parent doesn’t get to see the child much they still get to be an active part of their lives.

Language also makes a huge difference.  My professor (the excellent Prof. Clarie Huntington who sadly left CU for greener pastures) said that Colorado attorneys who were around when the terminology changed reported that just changing the words had a huge effect on the parents and the courts.  They realized that the point of caring for children is sharing the responsibility between the parents.  Just using a different term made all the difference in the world.  And it’s true when you think of it.  Colorado lawyers, courts and CFIs all now refer to it as a parent enjoying parenting time, or exercising parenting time, not a parent having custody.  Having custody is a possessive word, it seems like noone else can have it if you have it.  However, if you are exercising or enjoying your parenting time, you are sharing the time with the child with the other parent.  And in most situations that is as it should be.

Remember that while you are ending your relationship with your significant other your child still sees that other person as their father or mother.  It is important that you as the parent as us as lawyers foster a good relationship with both parents.  Only then will the child grow up to be a healthy, whole person.

Disclaimer: Nothing on this page is intended as legal advice, and should not be taken as legal advice.  If you have a question you should consult with a lawyer.  Meggin is certified to practice law only in the state of Colorado.  Because of Colorado’s specific and often progressive laws this information will probably not apply to any other state.  If you live in another state you should consult with a lawyer near you.  This post does not confer any attorney client relationship, and no such relationship is formed until you and I have entered into an express contract.  If you have any questions about any information on my blog please contact me at Meggin at MRutherfordLaw.com .

Adoption–YAY!

I love the show Modern Family.  If you have a family you should watch it.  They do such a good job at capturing all of the little things that happen between people who love each other and sometimes want to strangle each other.  That, and you don’t go an episode without explosive laughter more than once.  The reason that I mention this is because when I went to type in the title of this week’s post I remembered  a scene from the show.  For those of you who have not yet experienced the hilarity, one of the families involved is a gay couple who adopted a little girl from Vietnam.  Mitch is the traditional “male” role who is a lawyer and brings home the bacon.  Cam is a big guy who you just want to hug (and who used to be a football player) and who is the “stay at home mom.”  He hears on Oprah about a girl who found out she was adopted when she was a teenager and had a bad reaction.  So he wants to make sure that Lily, their daughter, knows that adoption is a good thing.  So every time anyone says the word “adopt” he goes “YAY!!!” and claps his hands, and then goes back to normal conversation.  He is hoping to make a positive connection for Lily.  By the end of the show they say “adopt” and Lily claps her hands.

Adoption really is one of the happiest things that can happen to your family.  I think that it is equal to having a new baby.  You are giving a home to a child who needs one, or you are solidifying your family by making the step parent a full parent.  Anytime you make or grow a family it is such a happy occasion.  As a lawyer, I don’t get to help with very many happy occasions, so I am always ecstatic to be able to assist with adoptions.

There are many different forms of adoptions and each requires different legal methods to ensure that they are done properly.  Some examples include: (1) adoption of an unrelated child through a system (like social services or an adoption agency), (2) adoption of an unrelated child not through a system (so a friend or someone you know), (3) adoption of a related child (for example: a grand parent adoption) through a system or not, (4) adoption of a foreign child (always through an agency), (5) adoption of step children, or (6) adult adoption.

Because there are so many different aspects to these issues I am going to address them individually over time.  This episode features the kind of adoption that is most sought after: the newborn adoption.

There are many ways of families connecting in order to complete an adoption.  Sometimes a mother knows that she does not want to keep the child, but personally knows someone who wants a child.  In that case they do not need to go through an agency to find a home for the baby.  Often, though, prospective families and mothers will go through an agency to find each other.  If that is the case, the agency will do all of the paperwork for you.

The most important aspect of adoption is ensuring that the biological parent(s) of the child have terminated their parental rights either by choice or by state action.  Every parent has the constitutional right the the “care and custody” of their child.  This means that unless the parent shows a complete lack of ability to care for the child, or the parent signs away their rights voluntarily, then the parent gets to keep rights to their children.  If you are adopting a child from the state social services system the parent’s rights have already been terminated (or, if you are fostering to adopt, they are in the process of being terminated.)

Once the biological parent(s) has decided that she wants to go through adoption she needs to know what process will happen to transfer the child from her to the new parents.  There are very different procedures for each method (whether you go through an agency or you don’t), and you need to make sure that you are following the correct rules.  If you choose to go through the state or an adoption agency then you can get an expedited process.  If you are doing it without an agency then you need to make sure that you know the steps and that everything is done correctly.  It will take longer, but it could be less expensive.  If you are not going through an agency I strongly recommend that you use an attorney.  If you do not do every step properly and then five years later the mother changes her mind, you could be stuck in a very long legal battle.

If you choose not to use an agency then you will have to do several things.  The mother will have to attend adoption counseling that is approved by the courts.  During this counseling she will learn about her options outside of giving up the baby, and how the community and the state can help support her if she keeps the child.  She will also learn how permanent her decision is and the long term effects on her and the child.  If she decides after learning all of these things that she still wants to give up the child then the counselor will sign a paper for the courts saying that she knows what she is doing.  The mother will then also have to sign an affidavit that says that she has learned many specific things and she still wants to give up the baby.

In Colorado a mother can surrender her child at birth, or even before, either to the state, an adoption agency, or another person for adoption.  If the mother and the prospective adoptive parents are going through an agency then they can get an expedited process through the courts.  With the proper affidavits, counseling, and preparation before the birth of the baby they can have the adoption done in about two weeks after the baby is born.  The birth mother can even sign the affidavit stating that she wishes to surrender the child before the child is born, and then the agency will complete the required paperwork as soon as they can.

There is a safeguard, though, to ensure that the mother is not bound to surrender her child after it is born if she doesn’t want to.  Imagine that you are a young girl who thinks she wants to give away the baby.  But then she has the baby and in the rush of actually seeing the little one decides that she does want to try to make it work.  Because of that situation the law states that the agency or potential adoptive parents cannot file the petition for adoption until four days after the baby is born.  This gives the mother the chance to decide whether she wants to keep the baby after she has had the chance to see it.

But lets not forget about fathers here.  Our culture often overlooks the important roll that fathers play in children’s lives.  Fathers are not supposed to want to keep the baby if the mother does not want to.  But many good men may decide that they want to raise their child if the mother is not able, or willing, to do so.  For this reason there are requirements of notice to the father.  If the mother knows who the father is she must tell the agency or prospective adoptive parents.  They must then notify the father of the prospect of the child being adopted and give him the chance to step up.  If he chooses not to take the child, then his rights have been terminated.  There are many other scenarios that may happen with giving notice to the father, and your situation may be unique.  Always consult with a lawyer if you are unsure of what should happen with the father of a prospective adoptive newborn.

Adoption is such a happy process, even if it can be bittersweet.  If you are considering an adoption make sure that you consult with an attorney or with a licensed adoptions facility to make sure you are doing everything correctly.  I wish you the best in this journey.

Disclaimer: Nothing on this page is intended as legal advice, and should not be taken as legal advice.  If you have a question you should consult with a lawyer.  Meggin is certified to practice law only in the state of Colorado.  Because of Colorado’s specific and often progressive laws this information will probably not apply to any other state.  If you live in another state you should consult with a lawyer near you.  This post does not confer any attorney client relationship, and no such relationship is formed until you and I have entered into an express contract.  If you have any questions about any information on my blog please contact me at Meggin at MRutherfordLaw.com .