Gregory R. Waddell
Attorney at Law

There are two types of divorces, generally referred to as fault divorce and no-fault divorce. In a fault divorce, one party is placing the blame for ending the marriage on the other party. You may obtain a divorce from your spouse without a statutory waiting period based on the following claims: (1) adultery, or (2) where, after the marriage, either party has been convicted of a felony, sentenced to confinement for more than one year and confined for such felony, and the husband and wife have not lived together after such confinement. You may also obtain a divorce from your spouse after one year has passed from the time when either party has been guilty of cruelty, caused reasonable apprehension of bodily harm, or willfully deserted or abandoned the other.

In a no-fault divorce, the parties want to separate and divorce because of factors not listed above. You may obtain a divorce from your spouse if you have lived separate and apart without interruption for one year. If you and your spouse sign a separation agreement and there are no minor children, you may obtain a divorce after only six months. However, if there are minor children involved, the parties must be separate for one year to obtain a no-fault divorce.

If you have just separated from your spouse, or the child's parent, and have not filed for divorce with the circuit court, you may seek temporary custody of any minor children through the court if you cannot agree to custody and visitation with the other party. You may do this by filing a petition for custody with the juvenile and domestic relations district court. If there has been no determination of custody, both parents have equal access to the minor children. Also, both parents have equal access to the child's school and medical records unless a court orders otherwise.

There are two different types of custody, physical custody and legal custody. Physical custody relates to where the child lives and legal custody relates to who has the authority to make decisions about raising the child, such as where he or she goes to school, church, or for medical treatment. You may seek sole physical and sole legal custody with the other parent having only visitation rights. However, the court may decide that physical or legal custody should be jointly held, or shared equally between the parents. The court decides custody based upon what it determines is best for the child involved.

How can I establish a visitation schedule?

If you do not have custody of a minor child, you may ask the juvenile and domestic relations district court for visitation if you and the other parent cannot agree on a visitation schedule. If a court has ordered visitation and the other parent is preventing you from exercising your visitation, you may return to the court that ordered the visitation and request that the court issue what is called a "show cause order" against the other parent. The "show cause order" begins a court proceeding in which you tell the court that the other party has violated a valid order, and the court then asks the other party to show why he or she should not be held in contempt of court for failure to obey the court order.

If you are not receiving support payments from the minor child's parent, there are two ways to seek support from the child's other parent. One way is for a parent to file a petition with the juvenile and domestic relations district court requesting child support. You will have to go to court to show the court how much income you have and the other party must do the same.

However, your local Department of Social Services, Division of Child Support Enforcement, can also assist you in collecting payment from the other parent. The Division of Child Support Enforcement may be able to obtain support for you even when the other parent cannot be found. You must comply with the regulations established by the Division of Child Support Enforcement, but using that agency may be easier than proceeding by yourself in court.

If the court has already ordered a party to pay child support, you may ask the court to direct the paying party's employer to pay the child support out of the paying party's income. This is called an income deduction and should be requested if the paying party is reluctant to pay or if you anticipate difficulties in receiving payments. If an income deduction order is issued, the paying party's employer will pay the support to the Division of Child Support Enforcement and the Division will then send the payment to the recipient. For all support orders entered after July 1, 1995, income withholding is mandatory unless parties otherwise agree.

An allegation of child abuse and neglect can be filed against a parent or other person responsible for the care of a child who is under eighteen years of age. Abuse or neglect of a child includes the following behavior by a parent or other person responsible for the care of the child: (1) inflicting mental or physical injury on a child or threatening to do so; (2) putting a child at risk of death or harm; (3) neglecting a child's health or not providing the care necessary for a child's health; (4) abandoning a child; (5) sexually exploiting a child or permitting that to happen; or (6) the unreasonable absence or the mental or physical incapacity of the child's parent, guardian, legal custodian or other person standing in place of the parent, causing the child to be without parental care or guardianship.

The local Department of Social Services investigates claims of child abuse and neglect. The Department may refer serious cases to the local police or sheriff's department for a criminal investigation. If you suspect a child is being abused or neglected, you may contact the local Department of Social Services or call the Child Abuse Hotline at 1-800-552-7096. You must have some information together before you call, such as the child's name, address, telephone number, age, a description of the injuries or your reasons to suspect abuse or neglect, and any health care providers or medical treatment rendered.

You may request a protective order if you are the victim of family abuse. Family abuse is any act of violence, including any forceful detention, which results in physical injury or places one in reasonable fear of serious bodily injury and which is committed by a person against a family or household member.

The protective order can require that the person causing the abuse leave the house, have no contact with the victim, including no trespassing on the property, and no further abuse of the victim. There are three types of protective orders: emergency, preliminary and permanent orders. Emergency orders are available to individuals who need immediate protection. An abused party may request an emergency order from a magistrate. If the magistrate finds reason to issue the order, it will be in effect for at least 72 hours, allowing enough time for an abused party to file a petition for a preliminary order with the juvenile and domestic relations district court. The preliminary order is issued based on a petition filed by the abused party and after a hearing by a judge to determine that the order is required to protect the health and safety of the petitioner. The preliminary order is in effect for fifteen days. A full hearing at which both the petitioner and the accused abuser must be present will be scheduled during that fifteen-day period. If the judge finds sufficient reason to issue a permanent order during that hearing, the permanent order can be in effect for up to two years. Both parties may petition the court to dissolve or modify the order at any time.

Delinquent

A delinquent is a juvenile who has committed an act which would be a crime if committed by an adult.

Traffic violations

Cases involving juveniles accused of traffic violations are heard in the juvenile and domestic relations district court.

Children in need of services

A child in need of services is a juvenile whose behavior, conduct or condition presents or results in a serious threat to the juvenile's well-being and safety.

Children in need of supervision

A child in need of supervision is a juvenile who is either (1) habitually, without justification absent from school or (2) runs away from home.

If a person is under the age of eighteen (18) and has been accused of doing something that would be a crime if done by an adult, the case will be handled by the juvenile and domestic relations district court as a delinquency.

The juvenile will be notified to appear for an intake interview where the charges will be explained. The juvenile's parents or legal guardian must be present during all proceedings, or an attorney must be appointed for the minor.

In serious cases involving juveniles who are over the age of 14, the prosecuting attorney may ask the juvenile court judge to transfer the case to circuit court where the juvenile will be prosecuted as an adult.

A juvenile delinquent has the right to an attorney. The court may appoint an attorney to represent the juvenile if the juvenile's family cannot afford an attorney. In addition, the court may require the juvenile's parents to reimburse the court for attorney fees or other costs.

The juvenile judge has a wide range of alternatives to choose from in selecting a disposition in cases involving juveniles. The judge's choice depends upon the individual's prior record, social history, physical and mental condition, circumstances at home and the facts and seriousness of the offense.