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Custody Traps
1.
When a legal action is initiated which involves a child, if a parent is not
residing in the same home as the child, he or she will presumptively be
considered the non-custodial parent. The only way to avoid this trap is
to not leave the home, or allow your child to be taken out of it.
2. If an injunction is
issued to "temporarily" keep the child under the care of one
parent, the excluded parent will presumptively be considered non-custodial.
Any pre-trial orders which impede your ability to parent your
child can be immediately appealed. If you wait for trial, you waive
your right to later raise these issues.
3.
Pre-trial if a parent consents to pay child support, the judge and both
attorneys will take this as a signal that he or she agrees to be the
non-custodial parent.
4. Any
consent order a parent agrees to (even during a contested
hearing) cannot be appealed. You do not have to "consent" to
anything, even if your attorney says otherwise. Remember, attorneys are
officers of the court, and quite possibly friends with the judge and
opposing attorney. They are required to zealously represent you, and to
uphold the constitution. Expect neither.
5.
Normally an investigation of the parents will be done. This can be anything
from a college volunteer working for CASA, an attorney called a Guardian Ad
Litem, a private investigator, up to a pediatric psychologist. Their job
is to invade the privacy of your relationship with your
child, and transfer as much wealth as possible to themselves. Also you will
either be encouraged or mandated to attend counseling, to achieve the same
goals. Using constitutional law you can object to an
invasion of your privacy and your child’s. If you fail to object, you
waive your rights.
6. At
trial your attorney should have a pre-trial brief prepared which carefully
identifies the applicable laws and how your case applies to those laws
(including constitutional law). Few attorneys will do this. Most will present your case with no reference to any laws whatsoever, and
simply allow the judge to rule as he or she wishes.
7. Also at
trial both parents are considered to be voluntarily submitting the question of
child custody to the court. Your attorney can assert that you do not want
custody of your child decided by the state. If you don’t do this, it will be
considered waived for appeal purposes, as will any applicable state and
constitutional laws not raised by your attorney in his or her oral arguments.
8. If
you ask that the law be followed in your case, expect intimidation tactics
such as your attorney threatening to resign, or being told visitation with
your child will be reduced. If any of this happens, request a brochure or
other method whereby you can file a complaint with your state board of
responsibility. To make a complaint in
Tennessee call:
1-800-486-5714
9. If
you receive an unfavorable decision at trial, your attorney can file a
motion to reconsider, or a notice of appeal. If you are appealing there are
strict time limits on this, which if not followed will cause your case to be
thrown out. Items you consented to at trial, will not be appeallable.
10.
Appeals are usually taken to a state appellate court, then if needed an
application is filed to your state supreme court. The state supreme court has discretion whether to take your case or
not, and they probably won’t take it. If your state supreme court does not
give you a favorable ruling, you can appeal properly preserved
constitutional questions to the United State Supreme Court, which virtually
never takes a family law case. Wherever your case stops, all orders
will be considered final.
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