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Family Law - Who It Affects And To What Extent

- By Attorney Richard Lombardi

There are several ways to end a marriage, including an annulment, a declaration of nullity and divorce. There is also a legal seperation, which doesn't end the marriage but allows the spouses to live seperat and apart. An action for annulment is a legal action that ends a marriage by treating it as if it never happened. There are specific reasons you can use to get an annulment.  Annulments are not common and are often difficult to get.  When the court gives you an annulment, it issues an order of dissolution that divides your property and addresses issues such as child support and child custody.

An action for divorce is the most common legal action asking a court to end a marriage. You can ask for either a no-fault divorce or a fault divorce.  In a no-fault divorce, you do not have to prove your spouse has done something wrong. In a fault divorce you have to show your spouse did one of several possible things that has made it necessary to get a divorce.

In any divorce or legal separation case that involves children under 18 years old, a major issue that must be addressed is where and with whom the children will live, and who will have responsibility for making legal decisions regarding them.  This is called child custody. The parents, often with the help of the court, will come up with a parenting plan.

The details of the parenting plan will differ from case to case, but there are two main categories of parenting plans.  In the first category, one of the parents usually has full custody. When there is sole custody, the custodial parent is the one with responsibility to make legal decisions on behalf of the minor children. The non-custodial parent usually receives court-approved visitation rights with the children.  Depending on the agreement, the non-custodial parent may also share in the decision making.  That parent would have access to the child(ren)’s school and medical providers. The second category is when the parenting plan provides that the parents will be joint custodians over their minor children. In such cases, the parents are joint custodial parents, and have joint responsibility to make legal decisions for the children, including decisions regarding the residence of the children. 

In all custody proceedings, the main concern for the court in awarding custody is the “best interest of the child.”  The “best interest of the child” test means that the courts are required to balance the ability of each parent to meet the needs of the child or children.

The court will determine child custody based on the “best interest of the child” test by evaluating a number of factors.  It is rare that one factor by itself will determine custody. Instead, courts will make a finding on custody based on the totality of the factors.  These factors include the following: stability; child care arrangements; primary caretaker; drugs and alcohol; mental and physical health of parents; spousal abuse, abuse; abuse, neglect, abandonment and interference with visitation rights; child's preference; finances of each parent; conditions of home environment; educational opportunities; where the child's siblings live and court's observations of the parents.

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Richard C. Lombardi

While this website provides general information, it does not constitute legal advice. To schedule a free consultation with an attorney, please call or email us today.

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