Tuesday, March 9, 2010

What About the Kids? Part Two

What if one parent in a divorce case claims that the other parent has a serious emotional disorder, and the other parent denies it and refuses to cooperate with any evaluation or testing? In that case, the lawyer for the parent making this claim has to file a motion with the Court for a Rule 35 Mental 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, an affidavit can be prepared to support a motion for a Rule 35 Mental Evaluation of the other parent. Examples of such behavior might be any type of physical violence, sexual abuse, abuse of drugs or alcohol, neglect of a child, or disruptive or aggressive behavior in a public place.

If emotional or psychiatric disorder of a parent is alleged, the Court can require that one or both parents undergo psychological testing, or a psychiatric evaluation. One or both of the parents will normally be required to pay for the cost of these evaluations. Very often, the only way that the emotional problems of the parent can be brought to the attention of the Court is through this kind of testing and evaluation.

After a dissolution petition has been filed, but before a decree of dissolution has been granted, a Temporary Parenting Plan is usually adopted and enforced by the Court. During that period of time, one or both parents will often claim that the other parent is violating the Temporary Parenting Plan.

If that should occur to you, make sure your attorney learns of the violation as soon as possible. Either parent is allowed to file a motion with the Court at any time to force the other parent to comply with a Temporary (or, for that matter, Permanent) Parenting Plan. Someone who violates a Parenting Plan can be fined, found in contempt of Court, or have their custodial contact reduced or even eliminated.

When the Court is ready to enter a final Dissolution Decree (divorce), a Permanent Parenting Plan will also be adopted at that time. If the parents have not agreed on such a plan, the Court will schedule a trial so that formal testimony can be taken. During the trial, both parents can call witnesses to testify under oath. These witnesses will include interested parties like friends and relatives, caretakers like teachers and day-care providers, and professionals such as doctors, counselors, and police.

After a Dissolution Decree has been entered, and a Parenting Plan has been adopted by the Court, the Plan will be modified only under limited circumstances (unless both parties agree to the change). A Permanent Parenting Plan can be modified only if there have been substantial changes since the Plan was adopted (for example, new evidence of substance abuse, child abuse, or emotional problems). If there is evidence of a substantial change in circumstances, either parent can file a Petition with the Court asking that the Parenting Plan be modified. If the parties cannot agree on a change, the Court can conduct another trial to determine what would be best for the children at that time.

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.

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.