In divorces involving issues such as child custody and support, many men are not aware of the rights they may or may not have. In this podcast, Newark divorce attorney Rosalyn Charles discusses and answers some of the most common questions men have during and after divorce – including how to increase parenting time, prevent parental alienation, and dispute false domestic violence claims; what rights a man has if his ex-wife remarries or starts a new relationship; the effect a paternity test can have on child custody and support; and much more.
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Hosted by: Diana Shepherd, Editorial Director, Divorce Magazine
Guest speaker: Rosalyn Charles, Family Lawyer
Family law and divorce attorney Rosalyn Charles – previously a prosecutor and municipal court judge – has been practicing law in New Jersey for more than 20 years. She provides family law services to clients throughout Northern New Jersey.
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Read the Transcript of this Podcast Below.
Is there any reason why fathers should not be awarded custody of their children just as often as mothers in New Jersey?
There is no reason why a father can’t be awarded custody. We speak in terms of custody, meaning physical custody or residential custody of their child, just as often as a mother. There’s no reason why it shouldn’t happen.
How can a father increase his chances of being awarded the primary custody of his children?
There are many factors that go into awarding custody, and a lot of that has to do with what the court considers the best interests of the child. Oftentimes, at least traditionally, fathers have not been involved as deeply with the children as the mother. However, in this world where both parents indeed work and oftentimes both parents are spending about the same amount of time with the kids, how can a father then increase his chances of being awarded custody?
If that’s his ultimate goal, he needs to show a nexus and a kinship with that child. He has to demonstrate that to the court. He needs to show involvement with those children and demonstrate that to the court. The father can indeed overcome those hurdles and become the parent of primary residence.
If there is a lot of conflict between the parents, can they still share equal parenting rights and responsibilities?
The short answer is no. Conflict – what does that mean? Does it mean that there is abuse in terms of physical abuse? Does that mean that there is just a lot of arguments? Does that mean that they are diabolically opposed in how they should raise this child?
It makes the whole process very difficult. It’s one of the things for the court to look at. In general, when it comes to parenting, what is the relationship or how is the parental relationship between the two? How can they co-parent? There are certain things that the court will do to assist in that process. They have various classes that the parents can involve themselves in, which is technically like parent therapy.
Ultimately, the court is interested in both parents being involved in their children’s lives equally. They will do what they can to foster that relationship, but a high-conflict situation between mother and father makes it very difficult to co-parent. The courts will try, if permitted, to overcome that conflict.
Why is it important to have both parents in their children’s lives post-divorce?
Well, it’s very basic. Kids love their parents, and unless there is some overriding reason that a child for some reason has been alienated from that parent and that parent has been the one to do the alienation, most kids want their parents involved in their lives. It makes for a well-rounded adult psychologically, emotionally, in all levels. It’s just the way it should be.
Most people have heard the phrase “deadbeat dad” to describe the father who refuses to pay child support for his children. How common is this really and why does it happen?
I would say it’s not really that common. We as a society have a tendency to focus on the negative, to focus on the individuals who are not paying. For every one dad, or even mother, who is not paying child support, there are hundreds of fathers and mothers who are indeed paying child support.
How common is it? It happens, but I would say the overriding factor is most parents who are obligated to paying child support do indeed pay. If they indeed fall upon some kind of financial difficulties, they openly make up those deficits.
What can a father do to help prevent parental alienation during and after a particularly high-conflict divorce?
A father needs to exercise his rights as a parent. Now, we speak high-conflict post-divorce, not that it would really come into play if indeed the father has had the opportunity to exercise his parenting rights during the course of the litigation.
No matter how much Mom and Dad are fighting, that parent, that father, needs to make sure that throughout the high-conflict litigation that he is indeed seeing his children, interacting with his children – spending as much time as he can with those kids during that litigation. What I am suggesting is, don’t stay away during the litigation.
Be involved throughout the entire process. No matter how nasty the divorce might be for the parents, the children at least would know that Mom and Dad, but particularly in this case Dad, are there. Then after the divorce, that relationship between father and children will only just get better.
Domestic violence is a very serious matter. However, if a man suspects that his ex is going to falsely accuse him of spousal assault or child abuse as a tactic to get sole custody of their children, what can he do to dispute those claims?
Well, it is just an allegation. You have to prove domestic violence. Sometimes individuals do indeed utilize on domestic violence as a tactic, but the question is, is it real? We speak in terms of the allegation. However, ultimately that allegation has to be litigated in the courts, and judges are not as apt to put in what you call a Final Restraining Order without proofs.
Someone has to be quite crafty to utilize that and to be successful in the utilization if you’re suspecting that your spouse is going to file some kind of false claim. Oftentimes that happens when mother and father are still in the same house during the course of the litigation. Although everyone doesn’t have the financial means to move away, sometimes it is advisable to take up residence someplace else.
Sometimes it is advisable to go around with a cell phone all the time recording things as they begin to unfold. I’d say protect yourself, but ultimately if an allegation is filed, that’s all that is – it is an allegation. But he or she can prove that allegation, so I would say contact an attorney and stand up for your rights.
If a paternity test discloses that a father is not the child’s biological parent, could that impact his ability to get sole or joint custody of this child?
It really depends on what the father wants. The short answer is no, because ultimately if that father loves that child, even if it’s not his biological child, that’s not going to impact whether or not he can get full custody or even exercise his parenting rights. The courts really don’t care who the biological father happens to be. The courts care about who the psychological parent happens to be. If that dad is a psychological parent and wants to continue that relationship with that child, no court is going to stand in the way of that.
Let’s say that a father who has been paying child support discovers via a paternity test that one or more children of the marriage are not his biological children. Can he stop paying child support for those children in light of the test results?
That’s a fact-sensitive question. We would like to say yes, but it’s not necessarily true. It backs into my last answer with respect to paternity. Who is a psychological parent of that child? Who else is able to support that child financially besides that particular father? Now, indeed if the dad loves all the children whether they’re his or not, unless he can bring someone else into the picture like the biological father, it’s difficult to say whether or not he would be relieved of child support duties in that particular case. There are instances where the biological father might step in and start to support that kid.
If the parents can’t agree, what are the steps to creating a co-parenting plan and who creates it?
There are experts out there that you can utilize in the course of litigation, even post-litigation, towards trying to alleviate some of those differences. They are typically referred to as parent coordinators. Parent coordinators are oftentimes attorneys and sometimes child psychologists.
They work with the parents to openly develop what is in the best interest of these children and try to explain to the parents and show the parents that, ultimately, it is in the best interests of the children that you get along and that you work through your differences. It would be a parent coordinator, be it an attorney or psychologist or an attorney working in tandem with a psychologist.
If the father who is the sole or major breadwinner is also the non-custodial parent and, let’s say, has been offered a great job in a different state or maybe even country, can he apply to have custody changed so as to take the kids with him? What about moving the whole family, including the ex-spouse – have you ever heard of something like that?
I haven’t had that within my particular experience. But if a parent is going to move out of the state or out of the country, surely he or she can make application for the custody and move the children. Now the question is, what’s the pushback? Is mother in favor of this? The judge is going to go into an overall analysis of what is in the best interest of the child.
If a dad decides that he’s moving out of the state or out of the country, I can’t imagine any judge out there who’s going to permit Dad to now apply for custody. The application can be made. Unless there’s pushback from Mom, the application would be granted. If Mom is against it, I suspect Mom would win.
What ultimately would happen though is that the judge or the court system would attempt to foster a situation where, again, Dad can be actively involved in the children’s lives. That might be a situation where Dad spends the entire summer with the children, that the children travel back and forth quite often during their school recesses. But, again, the whole situation is fact-sensitive, and ultimately the judges or the court is going to look at what is the best interest of those children. I will say that is stable home environment with consistent contact with a school system and with things that they are accustomed to. It’s going to be one of the overriding factors.
If someone’s ex-wife marries a very wealthy man, can he start making spousal or child support payments?
Typically, in any divorce situation upon remarriage, alimony or spousal support stops. However, child support has nothing to do with the financial status of the new spouse. It has all to do with the financial status, the employment or the monies available, or the income of the other spouse. No, child support does not stop, but spousal support would indeed come to an end.
Would the answer be the same if the ex-wife had simply moved in with her new boyfriend rather than married him?
At least in the state of New Jersey, cohabitation would play a role in spousal support. I would say yes, but you’re going to have to show that their cohabitation involves a melding of you and your non-spouse live-in finances. That’s not necessarily a high hurdle to overcome. In many ways yes, the answer would be very similar to a situation where the ex-wife or the ex-husband remarries.
If a father is concerned about how that new live-in boyfriend is treating his children, does he have any legal remedies?
Of course he has legal remedies, but I think every parent would be concerned about how someone who has now moved into the space with your children is treating your children. If he has legitimate concerns – meaning something documented or even just your child saying that “so and so mistreated me” – yes, an application can be made in court and an examination of the home environment may be ordered.