An in-depth look at custody and the battle between Bristol Palin and Levi Johnston (Part 2)

By Erica Christian

Attorney, Cordell & Cordell, P.C., Milwaukee office

Note: This is Part 2 of a series of articles focusing on the Bristol Palin/Levi Johnston custody battle. Click here to read Part 1 and click here to read Part 3.

What are his rights?

News of the breakup allegedly came from Levi’s sister who told Star magazine that Bristol was making visitation nearly impossible.  She also participated in the Larry King Live interview which revealed he was not allowed to take the child outside of the Palin home.  Tripp has his father’s last name and Levi is publicly identified as the father.  Which leads to the question, how can Bristol dictate when and where he can see his child?

 

 

If a child is born in a marriage, in most states the parties have equal rights to their children because the husband is presumed to be the father.  In many jurisdictions, if a child is born outside of a marriage, the default is sole custody and placement with the mother.  This is why it is important to establish paternity through a court order.  In situations where the parents are in a relationship, it is highly beneficial for the father to establish paternity while they are getting along as this could prevent custody and placement issues in the event of separation.

So, how do you become legally Dad?  In most jurisdictions, genetic testing is not required to establish paternity.  Voluntary Acknowledgment of Paternity (VAP) forms are available for fathers to sign at the hospital at the time of the child’s birth.  If the VAP is not rescinded within 60 days, the VAP is a binding determination of paternity.  Thereafter, the acknowledgment may only be challenged in court on the basis of fraud, duress, or material mistake of fact.  The VAP includes various warnings and disclaimers.  It is important to read the entire document; after all, when you sign the document, you are stating that you read and understood each of the provisions.  The VAP includes a waiver of the right to paternity (DNA) testing.  By signing the VAP, the man is declaring to all, including child support enforcement, that he is the father of the child.  However, the VAP does not establish a father’s parental rights; rather, a father will have to initiate custody proceedings to pursue parental or visitation rights. 

Each state has statutes which explain the procedure for establishing paternity.  The petition can be filed by the father, mother or the state.  The state files petitions in cases where the mother is obtaining state assistance.  When the state files the petition, the focus of the state attorney is to establish child support; he or she will not address custody and placement.  The first step in a paternity action is acknowledging that you are the father.  If you and the mother signed the VAP referenced above, you have a conclusive determination that you are the father.  If not, you may be able to obtain genetic testing to confirm that you are the father.  After you are declared the father, the next step is establishing terms for custody, placement and support.

 

What can he do to obtain joint custody?

According to the news reports, Bristol is seeking sole custody while Levi is advocating for joint custody.  This could address only legal custody or it may also be referring to physical custody.  Often times, people confuse the two.  Legal custody refers to the parent’s legal right and responsibility to make decisions for a minor child pertaining to health, education, and religion. Physical custody, often referred to as placement, is the time that the child will spend with each parent.  When determining custody and placement, the “best interests of the child” is the paramount goal for the Court.

When parties disagree on custody and placement, many courts require the parties to go to mediation to attempt to resolve the matter.  Mediation is when the parties negotiate a settlement on custody and placement with the aid of a person who is specifically trained to assist couples in resolving domestic conflicts.  If mediation fails, the Court may require a home study which typically consists of a social worker interviewing both parents, personal references of the parents, and the child (depending on the age of the child).  If after receiving the recommendation of the social worker, the parties are still unable to come to an agreement, then the matter will be litigated before the Court.   The Court may appoint a guardian ad litem who will advocate for the best interest of the child in the action.  A majority of cases settle prior to trial due to the costs of trial and also the risk involved as the Judge, who is not intimately familiar with your family, is the person who will be deciding your child’s fate.

Many courts now have a presumption of joint legal custody and a shared placement schedule (though the definition of shared varies by jurisdiction from an every other weekend schedule to a 50/50 schedule). Courts are typically guided by statute in determining the custody and placement arrangements.  In my jurisdiction, Wisconsin, the Court considers the following to determine the best interest of a child:  the wishes of the parents, the wishes of the child either communicated by the child or through a guardian ad litem, the relationship the child has with each parent and siblings, the amount and quality of time that each parent has spent with the child in the past, reasonable life-style changes proposed by a parent to be able to spend time with the child in the future, the age and needs of the child, the child’s adjustment, mental or physical health of the parties or child, availability of child care services, the cooperation and communication between the parties, the need for regularly occurring and meaningful periods of physical placement to provide predictability and stability for the child, whether one party unreasonably refuses to cooperate or communicate with the other party, whether each party can support the other party’s relationship with the child, whether a party has engaged in abuse of the child or the other party, criminal records of either party and those whom the party resides with or is in a relationship with and whether either party has had a significant problem with drugs or alcohol.

I do not know enough about the Palin/Johnston situation to have an opinion on custody and placement.  I can say that both parties are under intense public scrutiny and must be aware of the impact that every move they make can have on the case.  There are definitely dos and don’ts while the case is pending.  The focus at all times should be your child and creating the safe and stable environment that your child needs.

A major thorn in cases today is the popularity of social networking sites.  Status updates, wall postings and photo uploads are now being used as evidence in all types of litigation:  a dated photo of the plaintiff skiing in a personal injury suit, a threatening post in a domestic abuse injunction hearing, or wall posts of last night’s bender from the parent who was supposed to be home with the child.  Even if your profile is set to private your posts are not safe, there are a variety of ways to still obtain the information.  So if Levi does have a Twitter, Facebook or MySpace account, he should shut down the accounts immediately.  Right alongside the social networking sites are cell phones.  Text and photo messages can also cause damage to a case.  Any time you are preparing to send a text or a message, stop and ask yourself, how many different ways can this be interpreted?  Even if the message is appropriate in the context, think of how the situation can be spun around to make you look like the irresponsible parent she has you out to be.

He should also focus on his visitation schedule.  She says he visits sporadically, while he claims she denies visitation.  The status quo is important when determining placement both for temporary and final orders.  It’s hard to argue for primary placement when the parent has never had an overnight with the child.  All visitation should be documented including requests and denial of visitation.  I advise my clients to keep a journal which details their interactions with their children.  The journal should be handwritten and entries should be made daily.  If we go to trial, we need evidence that primary placement or a shared placement schedule is in the child’s best interest.  We have to be mindful that the opposing party is probably doing the exact same thing.  Along the same line, keep in mind others who observe your interactions with your children including teachers, coaches, etc; or in Levi’s case, the paparazzi.  Everyone you interact with is a potential witness.

 

Note: This is Part 2 of a series of articles focusing on the Bristol Palin/Levi Johnston custody battle. Click here to read Part 1 and click here to read Part 3.


Erica Christian is an Associate Attorney in the Milwaukee, Wisconsin, office of Cordell & Cordell, P.C. She is licensed to practice law in the state of Wisconsin. She is a member of the Wisconsin Bar Association, the Family Law Section and the Children’s Law Section.

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2 comments on “An in-depth look at custody and the battle between Bristol Palin and Levi Johnston (Part 2)

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    The laws suck. A man has to be married in order have lawful legal rights to his kids after a break up, otherwise he has to fight in the courts?

    There is no reason why a man can’t have 50% of the time of is children if he wants it. Besides if the woman isn’t working, what kind of example is she setting by being on Public Assistance and depending on the father’s child support check?

    That it is okay to be lazy and poor with kids?

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