Legal terms you may need to know

As you move forward with the legal process, there may be many aspects, which seem unfamiliar or confusing. The following outlines and defines some of the key language used in many family court systems in the United States.

If you are ever unsure of what a term means or have questions about how your case is proceeding, be sure to discuss the matter with a family lawyer.

In short, all divorce proceedings begin with a Petition for Divorce and end with a Decree, Final Order or Judgment of Divorce.  However, how the process unfolds, the quality of the agreement you create, the amount of stress and tension generated by uncoupling and the overall financial impact of arranging legal matters greatly depends on the choices you make.

Without a doubt the more energy you put into finding ways to cooperate and collaborate with the other parent, the more control you will have over the process.  Not only will you arrive at a better long term outcome for you and your children but you will also be laying the groundwork for your future co-parenting relationship.

Terms you may need to know…

Petitioner
Respondent
Family Court
Temporary Hearing
Temporary Orders
Amicus attorney
Guardian Ad Litem (GAL)
Attorney Ad Litem
Conservatorship or Custody Order
Joint custody or joint managing conservatorship
Sole custody, primary or sole managing conservatorship
Primary Residence or Primary Possession
Affidavit of Choice or Affidavit of Preference
Parenting Schedule Visitation or Periods of Possession
Custodial Parent
Non-Custodial Parent
Supervised Visitation
Guardian
Legal Aid
Temporary Restraining Order
Protective Order  
Parenting Plan
Geographic Restriction
Final Decree of Divorce or Dissolution of the Marriage

Petitioner
The parent or spouse who initiates the divorce by filing a petition is referred to as the “Petitioner” in legal documents and court records.

Respondent
When divorce proceedings are started by one parent or spouse, the other parent or spouse is known as the “Respondent” in legal documents and court records.

Family Court
The court in your jurisdiction assigned to hear and preside over family court matters such as divorce, child custody, child support, abuse allegations or issues involving the safety and or welfare of a child. How family cases are managed varies among states and from jurisdiction to jurisdiction. Some areas may have a designated court or court system that only deals with family matters, while other systems may designate cases to courts that handle a wider variety of legal issues.

Temporary Hearing
Once a petition has been filed and both parties have been notified, the Court upon request by either party may set a Temporary Orders Hearing.  These hearings are designed to decide how financial matters and the care of children will be managed until a final order is reached.

Temporary Orders
After a temporary orders hearing, the Court will issue temporary orders.  These orders provide temporary guidelines for parents regarding custody and possession of the children, child support, spousal maintenance, payment of family expenses, who will reside in the family home and other similar issues.  Temporary orders can be arranged through:

• An agreement between the parties (parents)
• An agreement between lawyers with the consent of their clients or
• A decision by the Judge after a contested hearing.

Amicus attorney
An Amicus Attorney is a “friend of the court.”  In family law matters, an Amicus Attorney is a lawyer who has been appointed by the Court to assist the Court in protecting the child’s best interests. They focus on resolving the issues concerning the children involved in divorce proceedings and custody disputes.   An Amicus Attorney assists the Court in making its determination as to what orders would be in the best interests of the child but they do not act as an attorney for the child.

Guardian Ad Litem (GAL)
A Guardian Ad Litem is a person, most often a lawyer, appointed by the Court to make decisions on behalf of a child or to make recommendations to the Court as to what the Guardian Ad Litem believes is in the best interests of the child.  The Guardian Ad Litem substitutes his or her judgment for the child’s and may make or recommend decisions on behalf of a child even if the child disagrees with those decisions.  

Attorney Ad Litem
An Attorney Ad Litem for a child is an attorney who is appointed to represent the interests and desires of the child.  The Attorney Ad Litem for a child represents the child client essentially the same as he or she would represent any other client.

Conservatorship or Custody Order
A conservatorship or “custody” order determines the legal rights and duties of each parent.  It also outlines how and when parents will spend time the child, which is also known as a “possession schedule.” The order governs how particular decisions will be made concerning the child, such as what city or county the child will live in, the choice of schools, medical and counseling decisions and when each parent will have time with or “possession” of the child. There are two primary types of conservatorship used in the family court systems.

• Joint custody or joint managing conservatorship
  In many states and jurisdictions, it is presumed that both parents will be given “joint custody” or be named as “joint managing conservators”.  Joint managing conservatorship or “joint custody” supports the idea that both parents have a right to be actively involved in children’s lives. However,” joint custody” does not necessarily mean the child will spend fifty percent of his or her time with each parent.  “Joint custody” will often, but not always, mean that significant decisions regarding the child must be made jointly by both parents and both parents must consent to decisions such as choice of schools, medical treatment, involvement in counseling or therapy, and other significant decisions regarding the child.
• Sole custody, primary or sole managing conservatorship
  “Sole custody” usually means that one parent is given the exclusive right to make significant decisions such as the area of residence, choice of schools, medical and counseling decisions and other significant decisions regarding the child.  Usually when a Court orders that one parent will have “sole custody” the other parent will be given rights to substantial periods of time or “possession” with the child.  In many jurisdictions and states “sole managing conservatorship” is only awarded in cases where there are serious concerns regarding the safety and wellbeing of a child, for instance, cases involving domestic violence, abuse, alcohol or drug use.  Other jurisdictions may award sole managing conservatorship if it is proven that “joint managing conservatorship” is not in the best interest of a child because the parents are embroiled in so much conflict that joint decisions cannot be made.

Primary Residence or Primary Possession
This term refers to the parent who has the right to possession (“day-to-day care”) of a child most of the time.  Many times, orders regarding the parenting time a child is to have with each parent are close to equal.  The parent with “primary residence” or “primary possession” simply has the right to more days with the child than the other parent.

Affidavit of Choice or Affidavit of Preference
In some states, children are able to sign an affidavit indicating to the Court which parent they would like to live with or which parent should have primary custody of the child.  Usually, children must be at least 12 years old to sign these affidavits.  Unfortunately, parents often misunderstand the effect of these types of affidavits.  An affidavit of choice or preference only indicates a child’s preference, which is then taken into consideration by the Judge but is NOT binding on the Judge. The family court always makes the final decision about where a child lives.

Parenting Schedule, Visitation or Periods of Possession
Allocates how children will spend time with each parent.  In many cases, one parent will be designated as having “primary possession” of the child and the other parent will be given visitation or possession rights.  Many states have “standard visitation” or “standard possession schedules.” These “standard” schedules vary from state to state and may be modified by the Court depending on the facts of any particular case and the best interests of the child.

Custodial Parent
The parent a child normally lives with on a day-to-day basis. The custodial parent is often the parent responsible for making legal decisions concerning the child.

Non-Custodial Parent
The parent who does not live with a child on a day-to-day basis. The non-custodial parent is typically granted “visitation” rights or specific “periods of possession” with the child.

Supervised Visitation
When there are serious concerns about the physical or emotional safety of a child, a Judge may order that contact between a parent and a child be supervised by a responsible adult or neutral third party.  In some situations, visitation may be supervised through a facility approved by the Court for this purpose.

Guardian
Usually refers to a person who has been appointed to care for a child in the event that both parents have died or are unable to provide for the safety and welfare of a child.  This assignment of guardianship can happen through a parent’s Will or by Court order.

Legal Aid
In many states, low-cost legal services are available for those who need it. For information about what kinds of services are available in your area, contact your state or local bar association. Bar Associations can provide an attorney referral list that gives the names of lawyers or legal aid organizations that provide abbreviated, initial consultations or full representation at reduced rates.

For more information online regarding legal aid resources by state go to: http://public.findlaw.com/library/state-legal-aid.html

Temporary Restraining Order
Usually, this is a court order, which orders parties not to commit violence against each other, not to come around the other party’s residence and not to communicate with the other party in a harassing fashion. These orders can also:

• Prohibit a parent from removing children out of state
• Prevent withdrawing children from their routine school or daycare
• Prohibit the transfer of assets or spending of money other than in the ordinary course of business or as necessary to pay usual and customary living expenses
• Prevent a spouse from committing violent acts such as stalking or physically threatening the other parent

In some jurisdictions, the Courts issue a standard restraining order automatically when a divorce case is filed.

Protective Order 
This is a type of restraining order that is issued in cases where there is a recent history or real threat of immediate family violence.  These orders are usually enforceable by an immediate arrest by the police if they are violated.  A protective order will typically instruct that a person stay away from the victim’s residence, workplace and often the children and their schools.

Parenting Plan
An agreement between parents, which outlines how to manage and provide for the day-to-day, care, and needs of children. Parenting plans can cover such issues as how time is spent between households, how decisions will be made about educational needs/activities and how parents will share information with one another. In amicable situations, parents may negotiate matters on their own. In other circumstances, parents may use mediation, a collaborative law process or a neutral third party to create an agreement.

Geographic Restriction
This restricts the parent with primary residence from relocating or moving a child from a specific geographical location such as to another city, state or country without the consent of the other parent or the authorization of the Court.  These restrictions usually require that parents reside within a specific city or county.   Some jurisdictions have policies or presumptions regarding these geographic restrictions that either favor or disfavor such restrictions.

Final Decree of Divorce or Dissolution of the Marriage
A final decree of divorce or of dissolution of marriage legally ends the marriage and usually, after a short waiting period, each spouse is free to re-marry. The “Decree of Divorce” also contains the rulings of the Court or approves the parties’ agreements concerning the division of property, custody, possession, and support of the children and other decisions or agreements related to the divorce.

“Final decrees” provide a set of court orders regarding possession of the children and how to make decisions regarding the welfare of children.  In the event, that parents cannot come to an agreement over an issue they are required to follow the Court orders contained in their divorce decree.

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