Getting Out: A Divorce Manual

The following is the third in a series of five excerpts from GETTING OUT: A Divorce Manual, written by the law students and attorneys of the Domestic Relations Project of the Cleveland Chapter of the National Lawyers Guild. Copies of the Manual are available from the Women's Caucus of the National Lawyers Guild, P. O. Box 02133, Cleveland, Ohio 44102. Prices are $1.00 for individual copies, and $.75 per copy for orders of 50 or more.

DIVIDING UP THE MARRIAGE

After you and/or your husband have decided how to end the marriage, you must begin to talk about custody, visitation, child support, alimony, and property settlements. Even if the two of you agree on everything, there will always be one other person who has a say in these matters. That is the judge or referee. However, usually if you and your bushand agree, the judge will too.

La Maternite' by Pablo Picasso, 1921 The only differences between a judge and a referee are that a judge is elected and a referee is not; and if you are not happy with the referee's decision, you can have a judge review it. A referee must give each of the parties a written report of her/his decision. Each party then has fourteen days in which to file objections with the judge. A judge's decision must be appealed within thirty days to the court of appeals if you are unhappy with it.

The law says what things judges and referees are to look at when making their decisions. These are not the only things they look at. Their decisions are often based upon their personal beliefs. What they believe people should do is sometimes very old-fashioned. You must remember this when you go to court because the judge will always have the final say.

You should not be dating before your divorce is final; but if you are dating, be careful not to let people (like your husband) know about it. Do not make a habit of staying out late or leaving the children with babysitters for a long period of time. Do not let people stay overnight at your house. In a contested divorce, your husband may bire a private investigator.

If you are working, you may have to show the judge that you can provide a good home for your children. Let her/him know that the children are taken care of while you are at work. Show her/him that you still have time to spend with the children.

When you go to court, dress as nicely and as plainly as possible. If the children go, make sure they are clean and neat, too. If you are asking for something like custody or alimony, be prepared to show the judge you deserve it. One way to do this is by bringing in witnesses.

When you go to court, custody, child support, and alimony are usually decided all at once. Sometimes a separate hearing will be held for custody.

CUSTODY

How Custody Is Decided When you and husband your separate, you will have to decide who will look after the children. If you can decide on custody, the judge will most likely approve your decision. In the past, the children have usually lived with one parent, most often the mother. Now, some parents are finding new ways to share the care of the children. Some judges do not like and may not approve of these untraditional arrangements. The judge is supposed to make the custody decision based on the following things:

1. What the parents want.

2. How the children get along with the parents. 3. How each child gets along at home, at school, and at play.

4. The parents' and child's mental and physical health.

5. What the child wants, if the child is 11 age or older.

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If You and Your Husband Cannot Decide on Custody

If you and your husband cannot decide on custody, the judge will decide for you. You should have a lawyer in this situation.

If you or your husband asks him to, the judge will order an investigation to help him/her decide who gets custody. The judge will then send people to see where you live and to ask questions about you. They will question neighbors, friends, teachers, and other people who know you and your children. Also, the judge may make you or your children talk to doctors and take medical tests. The judge will investigate your husband in the same way. It may be a good idea to hire your own child psychologist to testify that it is better for the children to be with you than with their father. This will cost a lot of money, but it may be important because the judge will consider this testimony when s/he decides custody. An investigation takes a long time. You may be able to get a temporary custody order in the meantime if it is necessary.

The court also can choose a guardian ad litem for the children. A guardian ad litem is someone who makes sure the children's interests are made known to the court. Usually the guardian ad litem is a lawyer. (If not, the court can choose a lawyer for the children too.) The guardian will probably make her/his own investigation and will have talks with the children. S/he will then tell the court what s/he thinks is best for the children. It is usually good for the parents to give the guardian any help s/he wants so that what is best for the children can be found. The fee for thé guardian ad litem will be added to the

court costs.

After the investigation, the judge will decide that probably one of the parents should have custody. The judge can also decide that the children should not live with either you or your husband. If the judge decides this, you can ask the judge to give custody to a relative. The judge may do this or send the children to Juvenile Court. The Juvenile Court will then find a home for the children.

Changing the Custody Order

The Domestic Relations Court always has the power to change the custody order. To change custody, one parent must file what is called a Motion to Modify. The judge will have a bearing and decide if a change in custody should be made. The judge will only change custody if there is a great change in the children's lives or the life of the parent who has custody.

Some of the reasons the judge may use to change *custody are:

1. The parents agree to change custody.

2. The child has become used to living with the person who wants custody. In this situation the person who has custody must agree to or at least not object to the change.

3. The judge decides it will be very harmful for the child to stay where s/he is now living.

Child Snatching

If your husband takes the children out of the state, it will be hard to get them back. very

Many states, including Ohio, now have the Uniform Child Custody Act. This is a law which hopefully will make it easier for people to get back their children when they are taken out of state. The law tries to have only one state court system become involved in a custody contest. For example, if California decided to give custody to the mother and the father took the children to Ohio, most likely Ohio courts would refuse to make any other custody decision.

The law on this subject is very confusing, however, and not all states have the Uniform Child Custody Act. For this reason, if your husband takes the children out of the state, see a lawyer as soon as possible!

Women and Custody

If the wife wants custody she will usually but not always get it if the children are very young. Many judges have old-fashioned ideas about women. A woman may lose custody because of the way she lives. A judge may decide not to give custody simply because she is dating someone.

More and more women are deciding that they do not want custody of their children. If you do not want custody, it will probably be best for you and the children if you do not live together. Although it may be hard, try not to let anyone make you feel guilty about not wanting to live with your children. In the end, it is your decison and your life.

Lesbian Custody

drawing by i macdonald Henry

If you are a lesbian and want custody, you will have a very hard time winning. If the fact that you are a lesbian is brought out at the bearing, you should be ready to prowe dat you are a good modger. Even then the count is very likely to give custody, your husband. Picking a lawyer is very important these cases. Make are you chosse willing to fight for yisi.

continued on p. 14

November, 1978/What She Wants/Page 5