Category: best interest

Dealing With Divorce During the Holidays

Dealing With Divorce During the Holidays

We are going into the crazy-fun time of year known as “the holidays.” It is a time of gathering together with family and friends, feasting, going to parties, and having a good time.  Unfortunately, for those going through a divorce, and especially those trying to co-parent, the holidays can be a time of endless stress, arguments and calls to their attorney.  It can really make it difficult to get yourself into the festive, holiday spirit.  Hopefully, the following tips will be useful.

  1. Relax – This is supposed to be a joyous time.  Don’t spend it winding yourself up into knots.  Be patient with yourself, definitely with your children, and with the other members of your family.  You will probably find yourself grieving what you feel that you have lost and old wounds may try to reopen.  Try to focus on the positive aspects and true meaning of the holidays.
  2. Plan ahead – Plan to do something really fun for the holidays.  Put it on the calendar so that it is something to look forward to.  If you are unable to get together with family or friends, maybe plan a vacation getaway.
  3. Create new family traditions – A divorce may mean that you can no longer have certain family traditions.  Now is an excellent time to let go of the past and start new rituals and family traditions.  Maybe the ex got all of the Christmas decorations in the divorce.  This is your opportunity to take the kids to select new decorations.  Maybe you start taking them to buy or make a new ornament each year.
  4. Be flexible – What is more important, that you and your family are together or that you are together on one specific day?  Keep focused on what is important.  My family is made up of so many “blended families” that we gave up celebrating major holidays on the actual day years ago.  We now plan our celebrations on the Sunday preceding the holiday so as not to conflict with anyone else’s plans.  It as worked out great and we all get to spend time together.
  5. Remember the children – Reassure them that holiday celebrations will continue, but in a different way.  Take time to sit down and brainstorm with them about how they want to celebrate or new traditions they want to start.
  6. Keep the children’s best interest in mind – Decide ahead of time with your ex how you are dividing the holidays.  Try to be civil with one another.  Reassure the children that you will be fine and encourage them to have a good time at the other parent’s house.  Children often take their emotional cues from the parents.
  7. It’s not a competition – The Beatles had it right, you can’t buy love.  Do not try to compete with the other parent by buying/spending more on the children.  Make a budget and stick to it.  Chances are your finances are in a bit of a strain from the divorce anyway and now is not the time to max out your credit cards.
  8. Ask for help – Talk to your family, friends, counselors or other support system.  Remember you are not alone.
  9. Be realistic – Do not be seduced by the idea of a “Norman Rockwell” Christmas or other idealized family holiday.  People make themselves crazy trying to make everything perfect.  It is the whole premise for the classic “Christmas Vacation” movie.
  10. Take it easy, one day at a time – It will get easier.  It will hurt less.  Right now just focus on one thing at a time.

This is a time to be thankful for our blessings not to focus on what we do not have.  Rather than focus on the pain of divorce, concentrate on positive things.  Even small things, a great meal, a joke shared with family and friends, or just some quiet time away can create a better perspective and brighter holiday.

Photo courtesy of Louise Docker

Can Grandparents Get Visitation with Their Grandchildren?

Can Grandparents Get Visitation with Their Grandchildren?

The short answer is maybe.  Kentucky has a “grandparents visitation statute” as do most states.  At least most states did have grandparents visitation statutes prior to the 1999 term of the U.S. Supreme Court when the high court decided the case of Troxel v. Granville.

Kentucky’s version of a grandparent visitation statute is found at KRS 405.021.  That statute says that “[t]he Circuit Court may grant reasonable visitation rights to either the paternal or maternal grandparents of a child and issue any necessary orders to enforce the decree if it determines that it is in the best interest of the child to do so.”  However, the Troxel decision says that fit parents have a constitutionally protected right to raise their children in any manner they think is best.  The problem arises when the the parent(s) determine that the manner in which they want to raise their child does not include seeing grandma and grandpa.

In the wake of the Troxel decision states across the country began striking down their grandparent visitation statutes.  Kentucky never actually ruled that its grandparent visitation statute was unconstitutional, but it became nearly impossible to win grandparent visitation in the circuit or family courts.

Then in 2004, the Kentucky Court of Appeals decided the case of Vibbert v. Vibbert.  In the Vibbert case, the Court of Appeals established a “modified best interest” standard and said that, while the parents’ wishes must be presumed to be in the best interest of the child, the grandparent can overcome that presumption without the need to show that denying the visitation would cause harm to the child.  In doing so, the court of appeals set forth a number of factors to consider including, but not limited to:

  1. the nature and stability of the relationship between the child and the grandparent seeking visitation;
  2. the amount of time spent together;
  3. the potential detriments and benefits to the child from granting visitation;
  4. the effect granting visitation would have on the child’s relationship with the parents;
  5. the physical and emotional health of all the adults involved, parents and grandparents alike;
  6. the stability of the child’s living and schooling arrangements; and 
  7. the wishes and preferences of the child

With that in mind, the court of appeals overruled the trial court and remanded the Vibbert case for reconsideration of the grandfather’s request for visitation.  Keep in mind that in Vibbert, the grandfather actually had temporary custody of the children for a period of time as a result of dependency, neglect and abuse case.

With the decision in Vibbert, grandparent visitation in the Commonwealth went from impossible to get to just really difficult.  Then in 2012, the Kentucky Supreme Court weighed in on the grandparent visitation issue with its decision in Walker v. Blair.  In Walker the Commonwealth adopted a rule similar to the Troxel holding when it said a “court must presume that a fit parent is making decisions that are in the child’s best interest.”  Grandparents must establish by clear and convincing evidence (a fairly high standard to meet), that grandparent visitation is in the child’s best interests if mom or dad refuse to allow the grandparents to have contact.  The Kentucky Supreme Court approved of the court of appeals “modified best interest” standard from Vibbert, therefore, the presumption can be rebutted with proof of the factors set forth above.

A recent decision by the Kentucky Court of Appeals makes it clear that if a grandparent cannot meet his/her burden of rebutting the presumption that a fit parent is acting in the child’s best interest, the trial court must deny the grandparent’s motion.  If the parents are not together and share joint legal custody of the child, the trial court is likely to say that it is incumbent upon the parent in favor of the visitation to allow the grandparents to see the child during that parent’s time rather than adding the grandparents to the timesharing order.

It is clear that in Kentucky, although grandparents’ rights may be alive, they are not necessarily well.  If you are a grandparent seeking visitation with a grandchild, you will need to be prepared to prove that your relationship rises to a level greater than that of a “normal” grandparent and that you have historically played an active role in raising the child.

Photo courtesy of Jill M

A Great Lawyer Knows the Judge

A Great Lawyer Knows the Judge

No, I do not mean that a great lawyer is also the judge’s best friend.  Obviously, if a judge and lawyer who appears before him/her have a close relationship, it creates a conflict of interest that would prohibit the judge from hearing that lawyer’s cases.  The same would be true if there was a high level of personal animosity between the judge and a lawyer.  I recently heard the story of a lawyer who was divorcing his wife, who was a judge.  This lawyer was actually bombarded with calls offering to pay him for the privilege of representing him in the divorce so that his future-ex-wife-the judge would have to recuse herself from all of their cases as well.

In a family law case, it is often vitally important that the attorney you choose is able to accurately predict how the judge assigned to your specific case may rule based on the facts of your case.  I routinely practice in front of approximately nineteen different judges across numerous counties in two states.  Each of those judges have different viewpoints, attitudes, and ideas about what is equitable or in the best interests of children.  There are some judges that regularly award equal timesharing while other judges are opposed to it and would never award it absent an agreement of the parties.  One judge is very generous in awarding maintenance while the judge in an adjacent county almost never awards maintenance.

Having an attorney who can anticipate how a judge may rule in your case can shape not only how your case is prepared for trial, but also possible settlement.  If the opposing party is making demands at a settlement conference that your attorney knows the judge is likely never to award at trial regardless of the evidence, it will inform your negotiation strategy.  Conversely, if your attorney is unable to predict the judge’s actions, you may wind up giving up more than necessary which could negatively affect your financial future.

During your initial consultation your attorney should be able to give you an idea of what you can expect from the judge who may be assigned to your case.  Keep in mind, some judges are easier to predict than others, but the attorney can discuss that issue as well.  If the attorney with whom you are meeting is unable or unwilling anticipate possible outcomes of your case based on different facts and variables, it might be a sign you need to hire a new lawyer.  Who you hire can make a difference.

Photo courtesy of Mike Licht

New Grandparent Visitation Case: Fit Parents’ Wishes Must be Given Deference

New Grandparent Visitation Case: Fit Parents’ Wishes Must be Given Deference

Last week the Kentucky Court of Appeals issued a flurry of reported cases.  Among them was a case that further clarified the manner in which grandparent visitation cases must be presented to the family court.  In Waddle v. Waddle the mother was granted sole custody of the parties’ minor son in part because the father was incarcerated.  The paternal grandparents filed both a separate action for grandparent visitation and also to intervene in the divorce.  Over the course of much legal wrangling, and over the strenuous objection of the mother, the grandparents were granted standard visitation (essentially alternating weekends) with the minor child.

The Court of Appeals reversed the trial court’s decision.  In its ruling, the court of appeals does a good job of summarizing the current state of the law in the Commonwealth on grandparent visitation.  First the court points out that Kentucky does have a statute recognizing grandparent visitation, but notes that the statute has been impacted by the constitutional determinations of the United States Supreme Court in Troxel v. Granville.  In Troxel, the U.S. Supreme Court said that fit parents have a constitutionally protected right to raise their children as they see fit.  This includes prohibiting the chid’s contact with certain people.  This case established that a fit parent acts in the best interests of the child.  In Walker v. Blair, the Commonwealth adopted a similar rule when it said a “court must presume that a fit parent is making decisions that are in the child’s best interest.”  In order for a grandparent to rebut this presumption, the grandparent must establish by clear and convincing evidence (a fairly high standard to meet), that grandparent visitation is in the child’s best interests.  This means that the grandparent must prove that the parent’s decision to deny visitation is clearly wrong and not in the child’s best interests.  If the grandparent fails to present such evidence to the court, then parental opposition alone is sufficient to deny the grandparent visitation.

Ultimately, in Waddle the Court of Appeals determined that the trial court had failed to make sufficient findings of fact to show that the grandparents had carried their burden of rebutting the presumption that the mother was acting in the best interests of the child.  This decision illustrates that while grandparent rights are still alive in Kentucky, they are difficult to establish in a court of law.

Photo courtesy of Brian Turner

New Published Case on Relocation and Primary Residential Parent Designation

New Published Case on Relocation and Primary Residential Parent Designation

The Kentucky Court of Appeals published a new case dealing with a decision to modify a couple’s timesharing schedule to designate the father as the primary residential parent instead of letting the children relocate from Kentucky to Mississippi with the mother.

Based on the record before the Court of Appeals the parties had a very contentious and litigious relationship since at least 2002 involving domestic violence allegations and dependency, neglect and abuse cases.  The court had previously granted the mother permission to relocate to Mississippi in 2009, but the mother later returned to Kentucky before filing a notice of intent to relocate in 2013 with the Jefferson Family Court.   The father then filed a motion to modify the visitation schedule to allow the children to reside with him most of the time and sought to prohibit the mother from relocating the children.

The Court in this case again reiterated the difference between a motion to modify custody and a motion to modify timesharing.  Specifically, the Court pointed out that the a change in primary residential parent is a request to change the timesharing not a modification of custody.  This is an important point because to modify custody, the pleading that is filed must be accompanied by appropriate supporting affidavits in order for the trial court to even have jurisdiction to hear the issue.  That is not the case in a motion to modify the primary residential parent where the parties share joint legal custody.

The Court of Appeals reviewed the facts of the record and it appeared that, while the mother seemed to remain locked in her ways of animosity toward the father and his relationship with the children, the father had submitted to anger management and other therapy to improve his skills as a parent.  Additionally, the Court seemed disturbed that the mother seemed unable to see how her actions affected her children.  This is an excellent example of how being petty and litigious can often blow up in one’s face.  Normally, you are much better off if you can present yourself to the court as the calm, stable parent who is willing to foster a relationship between the children and the other parent.  Ultimately, the Court of Appeals found that the the trial court did not abuse its discretion by refusing to allow the children to relocate with the mother.

Photo courtesy of Brian Turner

What Do I Do When My Child Does Not Want to Visit the Other Parent?

What Do I Do When My Child Does Not Want to Visit the Other Parent?

Whether it is entered by the court or agreed upon by the parties, chances are there will be a visitation or timesharing schedule established as part of your child custody case.  This schedule sets out specific times when the child is to be with each parent.  This schedule is part of the divorce decree or child custody order and is enforceable by the court.

If you are the primary residential parent, it is incumbent upon you to encourage the child to go to these visits.  “Encourage” might be too light of a wording, because the court expects you to make the child go.  If you do not, it is not the child who gets punished.  Instead, the other parent can file a motion for contempt; sometimes called a motion for rule to show cause.  We have previously discussed these motions in terms of when one parent refuses to pay child support or bills as ordered in a divorce.  It works much the same way in the realm of child visitation.  One party files a motion with an accompanying affidavit alleging that the other parent is refusing to obey the child visitation order.  If the court determines that is true, the parent disobeying the order can be sanctioned from a “slap on the wrist” and a stern lecture from the judge all the way up to six months in jail.

If you are the primary residential parent and you have a valid concern that the child is seriously endangered by the visitation such as evidence of abuse (and I mean solid evidence not just a suspicion), you can refuse the visitation.  However, you cannot simply take a unilateral action.  You will still need to file a motion to terminate the visitation with the court.  The court will conduct a hearing and if the court does not believe there was a good faith basis to deny the visitation, you could still be held in contempt and/or the other parent will most likely be allowed to make up any time that was missed.  “Crying wolf” and alleging abuse where there is none may also form the foundation for a motion to modify the timesharing and asking the court to designate the other parent as the primary residential parent.

Things get tougher when the child gets older and becomes a teenager.  When the teenager decides she no longer wants to visit and has a life of her own it can make it difficult for the non-residential parent to maintain that relationship.  It still remains the obligation of the primary residential parent to push the child to attend the visitation.  Some judges are more lenient than others, but many judges are loathe to allow a child to begin to decide whether the court’s orders will be followed.  In situations where the residential parent cannot get the child to cooperate, the parent may be left with no choice but to file an action against the child as an out of control teen (also known as a status offender) and ask the court for assistance.  Many parents hesitate to do this for fear of creating a record for the child or even giving the other parent ammunition to take them back to court.

Another point to be aware of is the fact that visitation and child support are two totally separate issues.  If the other parent stops paying child support, that does not give you the right to stop visitations and vice versa.  Courts do not appreciate these sort of “self-help” remedies.

Photo courtesy of DeptfordJon

No One In My Family Has Ever Been Divorced and I Feel Ashamed. Will My Children Feel the Same Way?

No One In My Family Has Ever Been Divorced and I Feel Ashamed. Will My Children Feel the Same Way?

Change is tough.  Changing how you view yourself is even tougher, but when you have children it is important.  Despite what you may feel, there is much less social stigma to divorce now than there was even twenty years ago.  The pendulum has swung so far that my children came home from school when they were little and told my wife and I that we were the odd family because we were still married.  Even with that being the case, perception is often our reality and it is not uncommon for people going through a divorce to feel this way, but it is important you protect your children from those feelings.

One of the best ways to overcome any sense of shame is to encourage the children to take pride in their new family unit.  Urge the children to look forward to the future with a sense of possibility for what is to come.  Although you cannot possibly predict the future or how your children will feel, you can mitigate their feelings of guilt by helping them to understand what is happening and reenforcing that they bear no responsibility for the divorce.  Remind them that both parents still love them and will continue to love them (even if the parents no longer love each other, but you do not have to point that out).  Whatever you do, you must refrain from projecting your own feelings onto your children.  They are not your sounding board or counselors and do not need that burden.  Let them react in their own way and experience their own feelings.

This is your opportunity to really step up and be a role model to your children.  They will see you overcome obstacles and tackle new challenges while demonstrating a newfound sense of independence.  As a family you will move forward and overcome this hurdle of life.  You can be a wonderful teacher to them in this time.  If you have more questions about how to deal with these issues, I would encourage you to talk with a therapist or your children’s guidance counselor.  If you have questions about your legal rights, contact the Alford Law Office.

Photo courtesy of Andy Bullock

I’ve Been Told Not to Speak Ill of My Spouse to the Children, But I Know They Are Bad-Mouthing Me!

I’ve Been Told Not to Speak Ill of My Spouse to the Children, But I Know They Are Bad-Mouthing Me!

I always encourage clients to “take the high road” and refrain from making derogatory remarks about the other parent.  Part of it is strategic because if a party winds up looking like a jerk in court, the judge will usually make sure that things do not go well for that person.  More importantly, however, is avoiding the damage this sort of behavior can cause your children.  It can be devastating for your child to hear you running down the other parent.

Think about this from your child’s perspective and remember your own childhood.  There is a reason that there are cliches in movies and entertainment about not talking about another kid’s mom or that “my dad can beat up your dad.”  Your child needs permission to love each of you regardless of any bad behavior by the other parent.  Children strongly identify with their parents and rightly so.  Remember, it took both of you to make the child and half of them came from each parent.  Negative comments about one parent can reflect back on the child.

Although some level of disagreement is normal in this situation, finding a balance or a way to keep it from the child as much as possible is essential.  Your children will take their cues from you on proper behavior.  If you are talking behind the other parent’s back, your child will think that it is appropriate to talk behind people’s backs.  If every conversation you have with your spouse devolves into shouting and cursing, that is how you are teaching your child to communicate.  Keep in mind your child’s feelings and the stress they are experiencing and do everything you can to reduce their stress.  The best way to support youencourage a strong relationship with the other parent.  It is important to work to create a comforting and caring environment to help ease this major life adjustment, refraining from involving your child in your frustrations with his other parent. If his other parent talks badly about you, let him know that sometimes grown-ups act out when they feel frustrated and suggest he ask his other parent to stop, if it is bothering him.  Explain to your child that he does not have to choose sides.
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At this point, you are probably thinking “This is all well and good, but my ex really knows how to push my buttons!”  I will leave you with the wise words of Mark Twain, “Never argue with stupid people, they will drag you down to their level and then beat you with experience.”  If you have more questions, contact the Alford Law Office.