What Are the Different Types of Child Custody?

Types of Child CustodyIf you and your spouse decide to divorce or separate, the court will make decisions regarding custody depending on state laws as well as your particular situation. There are many different types of child custody, and you may have concerns about what is the right custody arrangement for your child. A child custody attorney can help. Call the Law Offices of Rick D. Banks to learn more.

Physical Custody

Having physical custody of a child means that you have the right to live with that child. Often, states grant joint physical custody if the child spends a significant portion of time with both parents. Typically, if both parents live close to each other, joint physical custody serves well. Living close together will lessen the stress on the child in order to allow them to maintain a normal routine.

In cases where a child primarily lives with one parent, that custodial parent will retain sole physical custody, while the other parent will only have visitation rights.

Legal Custody

Having legal custody of a child means holding the right to make important life decisions for the child. These life decisions can include choice in the child’s schooling, medical care, and religious upbringing. Most often, courts tend to grand joint legal custody, which allows both parents to make these important life decisions.

Should you and the other parent share join legal custody, and choose to exclude them from making decisions, the other parent can take you to court. While this action will not result in a fine or jail time, it can often cause embarrassment and resentment between both parents.

If you share joint legal custody and you feel the other parent won’t communicate with you, or is abusive, you can seek sole legal custody from the court. However, keep in mind that most states prefer joint legal custody. This means that it may be hard to convince the court that sole legal custody is in the child’s best interest.

Sole Custody

You can obtain either sole physical custody of a child or sole legal custody. Fortunately, most courts won’t hesitate to grant sole physical custody to a single parent if they feel that the other parent is unfit.

Generally, courts are moving towards keeping both parents in a child’s life and away from granting sole custody. Furthermore, courts may award sole physical custody to one parent, while also awarding joint legal custody to both parents. In such a situation, both parents retain decision making rights for the child, but the court will assign one parent as a custodial parent.

Joint Custody

Joint custody allows both parents to either share decision-making rights for a child, and/or physical custody of a child. Joint custody can be awarded whether both parents are separated, divorced, or no longer living together. Joint custody can include the following:

  • physical custody
  • legal custody
  • physical and legal custody

Making Joint Custody Arrangements

If the court awards both parents joint custody, they will need to figure out a schedule based on their child’s needs, work requirements, and housing situation. If you and the other parent cannot agree towards a schedule, the court will decide an arrangement for you. Once common arrangement includes having the child split weeks between staying with both parents. Other examples of joint physical custody includes:

  • alternating years or months, or even six-month periods
  • spending weekdays with one parent, while spending weekends with the other parent

Another type of arrangement is “bird’s nest custody”. This type of child custody arrangement allows the child to remain in the home while the parents swap moving in and out.

Disadvantages of Joint Custody

While joint custody allows both parents to stay involved in a child’s life, there are some disadvantages as well. These disadvantages include:

  • the child must constantly move between houses
  • parental noncooperation can negatively impact the child
  • maintaining two different homes for a child can add up in expenses

If you share joint custody, be sure to keep detailed notes of all expenses, just in case the other parent claims you’re not doing your part.

Speak to a Child Custody Attorney

When it comes to who will make decisions for your child, you want to make sure that both your child and you are protected. Speak to a child custody attorney at the Law Offices of Rick D. Banks. We can help.

How Does the Adoption Process Work?

adoption processIn order to begin the adoption process, you must first understand the different types of adoption. Below, we explain adoption procedures, and steps you need to take for each type of adoption. To learn more, contact the Law Offices of Rick D. Banks.

Stepparent Adoption

Stepparent adoption is a legal process in which a custodial parent’s new spouse can adopt that parent’s child. You’ll likely find stepparent adoption in cases where the child’s biological parent is unidentified, out of their life, or consents to the adoption. After the court finalizes the adoption, the new spouse will retain the same responsibilities and rights as a biological parent.

Second Parent Adoption

Similar to stepparent adoption, second parent adoption grants an unrelated parent to adopt a child without taking away parental rights from a custodial parent. However, unlike stepparent adoption, the couple involved in the adoption does not need to be married. It’s important to remember that not all states will allow second parent adoption.

International or Domestic Adoption

This is the most common form of adoption. It allows a couple, or single parent, to adopt a child in need from another country or the United States.

All Types of Adoption Require Consent

No matter the type of adoption process that best fits your needs, they all require consent from the child’s biological parents. The only time consent is not needed is when the court legally revokes parental rights for some reason, such as neglect or abuse.

Since parental consent is often an emotional step in the adoption process, it can also be highly complicated. Many states will even grant biological parents the right to revoke their consent up to three months from signing away their rights. Furthermore, most states also mandate that parents must wait to consent to an adoption until the child is born.

You Must Complete a Home Study

Before adopting a child, you will need to complete a home study. This home study will educate and evaluate your adoptive family in order to ensure that the adoption will meet the child’s best interest. Often, a social worker or state agent will conduct the home study. You will need to provide the following information during the study:

  • Your consent to undergo a federal background check
  • Information that proves financial stability
  • Your family’s medical history
  • Your birth certificate
  • Any personal references

The home study representative must also conduct a visit to your home. During this visit, the representative will make sure that your home is ready to adopt to a child. Keep in mind that the whole home study adoption process can take an entire year to complete.

What Is the Legal Process of Adoption?

During the adoption process you must obtain court approval before it can be finalized. You will need to submit a petition to the court for adoption. You must all pay any filing fees and participate in a hearing process before a judge. At your hearing, the residing judge will determine if you fit all the state requirements. Below is a description of the hearing process:

Step 1: Notice

You need to give notice of the hearing to everybody directly involved in the child’s life. This can include the child’s biological parents, adoption agency, or legal guardian.

Step 2: Petition for Adoption

With your adoption agency, your adoption petition will include:

  • Basic information of all parties involved
  • Legal reason for the termination of the biological parent’s rights
  • A statement indicating the adoption serves the best interests of the child
  • A statement that you understand your rights and duties as a parent

Step 3: the Hearing

During your hearing the judge will ask you under oath if you understand the impact of your adoption. If the judge feels you fit state requirements and that the adoption served the child’s best interest, then the court will grant your adoption.

Speak to a Family Law Attorney Today

To learn more about the adoption process, talk to a family law attorney at the Law Offices of Rick D. Banks today.

3 Alternatives to Divorce

alternatives to divorce courtDivorce courts operate under the same rules that other courts use when dealing with disputes. These rules often don’t work well when it comes to solving divorce disputes. Fortunately, there are alternatives to divorce court. But there are also some situations where going with traditional divorce court is the best option for all of the parties involved. To learn more about divorce and alternatives to divorce, contact the Law Offices of Rick D. Banks today.

What Are Alternatives to Divorce Court?

There are three ways you can resolve your divorce issues without using a divorce court:

1. Determining a solution together

If you’re on good terms with your spouse, sitting down and working out the issue together is one of your best options. You both can reach agreements as to how your assets and debts will be divided. You can also both determine who will need to pay alimony, if at all. Some couples sit down in one meeting and reach an agreement on all these issues. However, for most other couples, it may make more sense to spread the tasks out over a period of several meetings.

2. Seeking mediation

If you think you’ll need the help of a third neutral party, mediation is your best bet. With mediation, the mediator will guide you both through the process of coming to an agreement on the important issues. Your mediator can help you determine how property will be divided, who will pay alimony, and how child custody will work.

3. Utilizing collaborative law

Collaborative law is a new and growing method of handling divorce proceedings. This method allows both spouses to hire attorneys with the sole aim of avoiding divorce court. If an issue arises that cannot be resolved and one spouse insists on settling it in divorce court, both attorneys are then withdrawn from the case and both spouses must hire new lawyers to start the process over. If you and your spouse are adamant about avoiding divorce court, then this is your best method.

When Divorce Court Is Your Only Option

The above alternatives to divorce are far superior than divorce court. However, there are still certain circumstances where divorce court is needed. Some of those circumstances can include the following:

1. If your spouse is abusive

If your spouse holds a history of abusing or intimidating you, then seeking an alternative to divorce court can be much harder. Because of the abuse you suffered, you may tend to give up and lose most arguments. For that reason, any settlement your spouse puts forth will more than likely be unreasonable.

Fortunately, if you still want to seek an alternative to divorce court, there are skilled mediators trained in overcoming abusive partners. These mediators can explain to your spouse first hand experience of what will happen if a fair settlement cannot be reached and the case must go to trial. However, keep in mind that many seasoned abusive partners will avoid any form of mediation.

2. If your spouse refuses to communicate

Unfortunately, some spouses may refuse to cooperative simply because they do not want to take responsibility for the divorce. The reality of the divorce may cause them to clam up or lash out. In this instance, divorce court may be your only option.

3. If your spouse is missing

Obviously, if you spouse is missing, it’s impossible to sit down with them and workout the divorce. Your spouse may have skipped town to avoid facing the divorce. In a case like this, you may be able to obtain a judgement that declares that the marriage is terminated, or also called dissolved in some states.

Speak to a Divorce Attorney Today

While seeking an alternative to divorce court is sometimes preferable, there are still some circumstances where you cannot avoid it. To learn more, contact the Law Office of Rick D. Banks today.

How to Make a Prenup, and Why You May Need One

how to make a prenupBefore you and your significant other get married, you may want to sign a prenuptial agreement. Also referred to as a “prenup”, this written contract typically states each piece of property both parties own and the rights to that property in the event of divorce or death.

At the Law Offices of Rick D. Banks, we can help you draft a prenup that us clear and legally sound. Contact us today to learn more.

Why Do You Need a Prenup?

Prenups are not just for the wealthy and privileged. In fact, more and more couples of modest means are turning to prenups for a number of different reasons, which may include:

Passing property from a prior marriage to your children

If you hold property from a prior marriage that you want to pass on to your children, you may want to sign a prenup before your new marriage. In your prenup, you can specify exactly each asset you own that you wish to pass down to your children.

Determining financial rights and duties

Whether you’re wealthy or not, creating a prenup is a great way to determine the financial rights and duties of each partner. This way there are no financial surprises during the marriage.

Avoiding arguments if there is ever a divorce

If you ever get divorced, drafting a prenup can help avoid any arguments that may arise during the divorce proceedings. Typically, most arguments during a divorce arise from dividing property or determining who will receive alimony. Fortunately, in your prenup you can pre-divide your property and pre-determine who will receive alimony, so that if you ever get divorced, you will already have those factors figured out.

Protecting yourself from debt

If your future spouse has any outstanding debts, you can use a prenup to protect yourself from their debt.

What If You Don’t Make a Prenup?

If you choose not to make a prenuptial agreement, in the event of divorce or death, your state’s laws will determine how the property you acquire during your marriage will be divided. Furthermore, in some cases, state law can even divide assets you owned before that marriage.

Because the law sees marriage as a contract between two people, that contract includes automatic property rights between each spouse. When a prenuptial agreement is not made, each spouse usually holds the following rights:

  • Sharing ownership of any property acquired during the marriage, which in the event of divorce or death, will be divided up.
  • Incurring the debts of your spouse.
  • Managing and controlling marital property, including the right to give it away or sell it.

If you do not agree to the rights above, you should consider making a prenup. A prenup is the only way to ensure that your property will be divided fairly upon divorce or death.

Speak to a Family Law Attorney to Learn More About How to Make a Prenup

In the past, the court has viewed prenups with somewhat skeptical eyes. Prenups typically involved signing a legal waiver by a less wealthy spouse. They were also thought to encourage breakups.

However, today the law is more open and friendly to prenuptial agreements. In fact, every state now permits them and legislatures are more willing to uphold them in court. Still, it is important to remember that prenups that don’t meet state requirements will be set aside.

We advise drafting your own prenup with your partner before you consult any lawyers. Talk with your spouse and write down assets and property you wish to divide between yourselves. However, keep in mind that your prenup should be written in a way that is understandable, clear and sounds legal. Once your prenup is written, you will need to have separate lawyers review it. Having multiple attorneys review it strengthens the validity of it to the court.

Contact the Law Offices of Rick D. Banks Today

At the Law Offices of Rick D. Banks, we can help you draft and review a prenuptial agreement that protects you and your interests. Contact us today.