Legal Terminology

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ajm9864
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131543
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Legal Terminology
Updated:
2012-01-29 22:16:04
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legal terminology divorce child custody
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legal terminology and key concepts
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  1. Court appointed Evaluator (604 b)
    the professional appointed by the Court to gather information for the decision-maker, typically the judge. This person serves in an impartial, neutral capacity. Typically both parents are required to pay for a percentage of the evaluation, but the judge determines the percentages
  2. A (604.5) evaluator
    conducts the evaluation at the request of one of the parties seeking custody; he or she is not considered to be neutral. This evaluation usually takes place after the 604 (b) report comes in if one of the parents disagrees with the recommendations. The parent requesting the evaluation must pay for all fees associated with it. The judge must still order the evaluation to take place
  3. 215 (a) Evaluator
    charged with the responsibility of evaluating one of the parents. Usually the other parent and children are not included in the process.
  4. Tender Years Doctrine
    Introduced in the mid 19th century. It assumed that the mother is the most appropriate parent for young children. During this time period fathers could gain custody only by proving the mother to be “unfit”.
  5. Best Interest of the Child Standard
    • Replaced the Tender Years Doctrine upon passage of the Uniform Marriage and Divorce Act in 1979. The BICS required that custody arrangements be made in the children’s “best interest” as opposed to the interests or wishes of the parents. It is the prevailing standard in all U.S. jurisdictions. The standard looks at:
    • The wishes of the parents
    • The child’s wishes, assuming that the child is mature enough to offer an opinion
    • The relationships and interactions of the child with her parents, siblings, and others who affect her life, e.g., a step parent, fiancé, etc.
    • The child’s adjustment to home, school and community
    • The psychological and physical health of all individuals
    • (And in Illinois) – The ability and willingness of each parent to encourage and facilitate the child’s relationship with the other parent and the presence of ongoing abuse.
  6. High Conflict Case
    Any action for dissolution of marriage, legal separation, paternity or guardianship where minor children are involved wherein one or both of the parties demonstrate a pattern of ongoing litigation, anger, distrust, verbal abuse, physical aggression or the threat of physical aggression, difficulties in communicating or cooperating in the care of the children. Approximately 10-15% of cases.
  7. Guardian Ad Litem
    The GAL is a person, typically a lawyer, appointed by the Court to represent and protect the interests of the child. This person is usually appointed in the context of a contentious battle for custody or when there are allegations of physical or sexual abuse of a child. The GAL may investigate, write reports to the Court and participate in Court hearings and mediation sessions. The GAL may also be called to testify and make recommendation regarding custody.
  8. Child Representative
    Similar role as the GAL but is not permitted to be called as a witness or reveal client confidences. May make recommendations but they are not determinative.
  9. Attorney for the Child
    An advocate for the child in court. Has confidential communications with his client, can conduct reasonable investigations, call witnesses at trial and conduct discovery. The attorney must advocate his client’s wishes whether or not he believes them to be in the child’s best interest.
  10. Physical Custody
    Refers to the time children actually spend with their parents. In cases of Primary Physical Custody children spend the majority of their time with one parent and “visit” (sic) the other parent.
  11. Legal Custody
    refers to decision making regarding education, health care, religion – and more recently, extracurricular activities. Custody may be sole or joint
  12. Sole Legal Custody
    One parent has decision-making rights. Various time sharing plans are possible within this paradigm, although one parent makes the final decisions about the areas outlined above.
  13. Joint Legal Custody
    The parents share decision-making. Various time sharing plans are possible. Has risen dramatically since 1980.
  14. Joint Custody
    a term that confounds legal and physical custody
  15. Split Custody
    Refers to the circumstances in which each parent has sole physical custody of at least one child – that is when siblings are split up between their parents.
  16. Mediator
    A trained professional (usually a lawyer or mental health professional with an additional forty hours of training in mediation) who works with the parties to facilitate an agreement. The mediator remains neutral, independent and objective as he or she helps the parties to communicate effectively. The goal is to move away from rigid positions and towards identification of underlying interests. The outcome is a parenting plan crafted by the parents, rather than imposed by the Court.
  17. Collaborative Law
    A process wherein specially trained attorneys for each parent utilize cooperative strategies rather than adversarial techniques and litigation. The parties and attorneys sign an agreement stipulating that if the process breaks down both attorneys will withdraw. Other professionals may be brought into the process as needed, i.e., a coach for each parent, a child specialist and a financial neutral. These professionals must also withdraw if the parties choose to go to Court. Collaborative law requires the parties to divulge all relevant information, make good faith efforts, and refrain from threatening litigation. In a collaborative case, the only time the parties go to court is at the end of the case, when the divorce is entered.
  18. Parenting Coordinator
    A professional with mediation expertise who works with high conflict couples following divorce to monitor the parenting plan and resolve conflicts related to the children in a timely fashion. This role combines mediation with arbitration. If an agreement cannot be reached he or she may make a binding recommendation that goes into effect immediately. If a parent opposes the recommendation he or she must petition the court to have it reversed. The PC may make minor temporary changes to the schedule but cannot change the custody order.
  19. Special Master/Wise One
    alternate terms for Parent Coordinator, used in California and Arizona respectively
  20. Affidavit
    A written statement made by a witness, executed before an authorized official.
  21. Action
    A judicial proceeding brought by one party against the other.
  22. Pro Se
    Latin for “for himself”. A person who is pro se in court is serving as his own attorney.
  23. Petitioner
    the person filing the lawsuit or complaint
  24. Respondent
    the person the complaint is filed against

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