Category: child custody

Six Things Your Paralegal Wishes You Knew

Six Things Your Paralegal Wishes You Knew

 

Many divorce and child custody lawyers use paralegals to assist them in their practice and to provide clients with excellent service.  These paralegals are often the unsung heroes of family law litigation.  Clients sometimes do not fully appreciate the role the paralegal plays in their case.  Therefore, here are six things your paralegal wishes you knew.
  • I can save you money – Many law offices bill for their paralegal’s time at a much lower hourly rate than the attorney’s time.  While a paralegal cannot practice law, they can often explain aspects of the process of your case or answer questions without you being charged the attorney’s hourly rate.  Sometimes, they may even be more up to speed on your case than your attorney because they are dealing with the incoming pleadings and discovery as it comes into the office.
  • I can cost you money if you are not organized – Part of the paralegal’s job is to help organize information on your case and help get it ready to be presented to the court.  If you have taken the time to prepare everything requested of you, organize it in an orderly fashion and provided when it is requested, you will save the paralegal a lot of time and keep your fees lower.  Conversely, if you show up with garbage bags full of bills, old shoeboxes of receipts, and folded up, coffee-stained documents, your paralegal will have to spend additional time wading through all of that to make sense of it.  If your legal team cannot make sense of it, there is no way to make the court understand it.
  • I am easier to reach than the attorney – Admittedly, sometimes you just need to hear your attorney’s voice.  However, most divorce and child custody practitioners are in court on an almost daily basis making it difficult to return calls.  The paralegal is almost always in the office.  If they cannot answer your question immediately, they can usually get you an answer fairly quickly.
  • My time is valuable – The paralegal, like your attorney, is here to help you through your case.  Paralegals are trained in a lot of things, but they are not mental health professionals and cannot be your therapist.
  • I am often just as frustrated with the system as you are – Contrary to what a lot of people believe, good law firms try to move their clients’ cases through the system as efficiently as possible.  Coordinating multiple attorneys’ schedules along with a court docket bursting at the seams can make that task extremely difficult.  Moreover, sometimes the law or a ruling is simply not fair, but there may be very little we can do about it.  We understand your frustrations and try to empathize.  Remember, we are on your side.
  • I deserve your respect – Paralegals work very hard at often thankless tasks.  You make it more difficult when you treat them with anything less than the utmost respect and consideration.
How Do I Handle Out-Of-State Timesharing?

How Do I Handle Out-Of-State Timesharing?

Child custody and timesharing cases can be some of the most difficult, emotionally charged cases.  These cases are further complicated when one parent lives in a different state.  There are a number of things to keep in mind in dealing with a timesharing schedule across state lines.

BE FLEXIBLE

This is good advice in any co-parenting situation, but is doubly important in multi-state situations.  If the parties are flexible and realistic in these situations, it makes life so much easier.  The parents have to realize that they will not be able to share the same sort of schedule as parents who live in close proximity.  Holidays will not be able to be divided in the same manner.  It may be necessary to consider alternating holidays or celebrating the holiday on an alternate day.  In my own family, we have adopted the tradition for years of celebrating major holidays on the Sunday before the actual holiday just to make sure it does not interfere with anyone else’s plans.  As our family has grown and expanded this has continued to work for our family.  After all, the important thing is the time together, not the date on the calendar.

MONEY MATTERS

Increased distance between the parents means increased expenses transporting the children.  Figure out the finances on the front end.  Will one person transport to visits and the other return the child?  Will you meet in the middle?  Dealing with the expense of traveling for visits gets even more important if air travel is necessary.  The airfare, hotels, gas money all add up over time.  The more detailed you can be in the planning, the more likely you will avoid contention in the future.

COMMUNICATE EARLY AND OFTEN

When in person visits are not possible, electronic communication becomes vitally important.  Fortunately, there are a numerous options available for parents and children separated by long distances.  Skype, Google Hangouts, FaceTime and other video chat options are available to actually allow you to see the child while you are talking.  Keep in mind that children have social lives as well, so you may need to include time for reasonable and regular communication in your parenting plan to ensure that the child is available.  Although it is not a perfect solution, it will help you maintain an active role in your child’s life.

Although multi-state parenting is a difficult situation, safeguards can be put in place to make it as workable as possible.

Photo courtesy of Kevin Dooley

Can I Prevent the Other Party From Relocating?

Can I Prevent the Other Party From Relocating?

 

In our increasingly mobile society, it is a sad reality that at some point in a coparenting relationship, one parent may decide to relocate to another state and take the child.  There are a myriad of legitimate reasons for a move.  Perhaps, new job opportunities await.  The other parent may have additional family available to help them.  The person may simply want a new start (maybe in a warmer climate).  Many people want to know if there is anything they can do to prevent the possibility of such a move.

KENTUCKY RELOCATION RULES

Kentucky has implemented the Family Court Rules of Practice and Procedure.  Those rules specify that “[b]efore a joint custodian seeks to relocate, written notice shall be filed with the court and notice shall be served on the non-relocating joint custodian.”  Once that notice is filed, the other party can file a motion to modify custody or timesharing within twenty (20) days unless the parties agree.  Whether the court allows the relocation will be very fact dependent, but if a parent is seeking to relocate solely to frustrate the other parent’s time or relationship with the child, the court will likely not allow the child to move in a joint custody situation.  If, however, the relocating parent is a sole custodian, the chances of the court approving the relocation are greatly increased and the rules less stringent.

BACKUP PLAN

Another option to plan for a possible relocation is to have a backup plan; a “Plan B” timesharing schedule if you will.  In this situation if you know there is a chance that one parent may relocate in the near future, you can build that eventuality into the parenting plan.  In that way, if there is a relocation, no additional litigation expenses are incurred, the parties would simply begin following the “Plan B” schedule.  While it may not be a particularly pleasant thought to contemplate, it is better to address the possibility now rather than having to relitigate the case.

NO RELOCATION CLAUSE

A final option is to include a firm “no relocation” clause in a final parenting agreement.  You may or may not be successful in negotiating such a provision and it will probably depend heavily on the parties involved.  Keep in mind it is unlikely that a court would ever order such a provision in a final judgment so this could only be included in a negotiated settlement.  If you include a “no relocation” clause, it will need to be very narrowly crafted.  courts are very hesitant to enforce these clauses for fear of violating a person’s right to relocate for legitimate, good faith reasons.  The courts are at all times primarily concerned with the best interests of the children and could very well override the “no relocation” clause.

If relocation is a possibility in your case, discuss the issue with your divorce/custody attorney as soon as possible to ensure your rights are properly addressed.

Photo courtesy of Karen Apricot

How Can A Parenting Journal Help Your Custody Case?

How Can A Parenting Journal Help Your Custody Case?

If you are facing a contested custody case, one of the best tools you can have in your arsenal is a parenting journal.  A parenting journal is simply a record or chronology of events that happen between you and the other party and/or children.  This may be a computer file, a Google calendar, or simply hand-written notes kept in a pocket notebook or calendar.  Things to make a note of may include:

  • Incidents that occur at visitation exchanges or missed visits
  • Negative comments made by the opposing party
  • School issues
  • Extracurricular activities
  • Incidents of domestic violence
  • Statements made by the children about abuse or neglect
  • Observations about changes in the children’s behavior

It is important that you write in your journal on a regular basis for a couple of different reasons.  The first is because this way you will get in the habit of keeping the journal.  Second, the journal is much more persuasive if it is maintained and entries are made as they occur rather than trying to “rebuild” the event from memory days or weeks later.  Do not use this journal as your private diary.  Keep in mind the entries may be used in your custody hearing and become part of the public record.

Because the entire point of making the journal in the first place is to assist you in your court case, it is also important to make journal entries fairly.  Do not use the journal as an opportunity to bash the other parent; you will do your case no favors.  This includes using profanity, personal attacks on your ex, or other “code” words for your ex.  I had a case one time where a grandparent thought they were extremely clever by referring to their former daughter-in-law as “Tulsa” (read it backwards).  If your journal is completely slanted or never has anything positive at all to say about the other parent, you will lose some credibility with the court or the GAL.  Do not be afraid to mention your own issues as well.  Remember the whole point is to help build your credibility.  You cannot do that without exposing some of your flaws as well.
Finally, organize your journal.  If you keep an electronic journal, this is relatively easy.  Most tablets, smartphones, or computer word processing programs will allow you to “tag” your entries to make them easily searchable.  This will help your attorney later when the two of you are trying to prepare for court.  If you opt for the handwritten paper journal, consider using multicolored tabs to mark your entries.
Finally, keep your journal secure and private.
Photo courtesy of Bev Sykes
Preparing to Parent Apart

Preparing to Parent Apart

As stressful as it is for you to move out of the marital home, that stress is often even worse on the children.  Children often are left out of the loop and then these children wake up one morning and are told to pack up their things to move to a new house they have never seen.  To say that they may be troubled by this eventuality is probably an understatement.  Both parents, and especially the leaving parent, need to comfort the children and reassure them while at the same time the parents need to prepare themselves for possible custody litigation ahead.

Help the Children First

There is no single right way to help your children cope with the stress of divorce and relocating.  It will greatly depend on the age and maturity level of the children, their temperament, their coping skills and their relationship with the other parent.  If the transition is particularly difficult, you should consider enrolling the children in counseling.  Your attorney should be able to make a referral for you to a qualified therapist who can assist you.

Keep a Parenting Journal

Document, document, document.  Those are three great words of advice anytime you are thinking that you may wind up in court.  The unfortunate fact is that the legal system is often less concerned about what is the truth over what you can prove.  Custody litigation involves a number of facts that are difficult to prove and often devolves down to a “he said/she said” situation.  Therefore, the sooner you begin to keep a journal documenting important facts and your interactions with the opposing party, the more documentation you will have of the events that take place while your case is pending. You need to make your journal entries as soon after the events as they occur.  In the law, this is called a “present sense impression” and can be used at trial to essentially bolster your testimony.  A calendar and journal will provide details that might otherwise be forgotten and will present an accurate, real-time depiction of how the custody situation has been handled. This can be very useful information in negotiating custody arrangements or, if necessary, making a case before a judge.

Set a Custody Schedule as Soon as Possible

Once a divorce petition is filed in Kentucky, the other party has twenty days to respond and most judges will not schedule any hearings until after the response is filed.  All of this can add up to a month or two of time where the family is in limbo and both sides are afraid to do anything.  The sooner you can reach an amicable (or at least civil) agreement where both parents get to spend some time with the children, usually, the better the children will be able to transition to the new family dynamic.  Many times once an agreement is reached, the parties and/or the judge is hesitant to alter it if the children are adjusting and doing well.

Keep the Lines of Communication Open (if possible)

Some attorneys advise clients during a divorce to not speak with their spouse at all.  This tactic tends to just increase your legal fees and you should probably be somewhat suspicious if that is the advice you are getting.  Unless there is a situation where the other spouse is violent or harassing, it is much better if the parties can sit down and discuss issues calmly and civilly and then bring their agreement to the attorneys to be memorialized.  Remember after the custody case is over, your lawyer will go back to his/her office, but you still have to deal with the other parent at least until the youngest child turns eighteen.

Photo courtesy of Daniel Lobo

What Custody Arrangment is Best for the Children?

What Custody Arrangment is Best for the Children?

Any caring parent who has considered divorce has thought long and hard about how the divorce would affect the children.  There is little doubt that the traditional “nuclear family” is usually the best option for children; “nuclear family” meaning both parents in the home with the child.  In fact, scientific studies have routinely backed that up.  This report from the U.S. Department for Health and Human Services backed up the idea that the nuclear family was best for children.  Among the highlights of the report:

Children in nuclear families were generally less likely than children in nonnuclear families
• to be in good, fair, or poor health [Note: these three categories are considered “less than optimal”];
• to have a basic action disability;
• to have learning disabilities or attention deficit hyperactivity disorder;
• to lack health insurance coverage;
• to have had two or more emergency room visits in the past 12 months;
• to have receipt of needed prescription medication delayed during the past 12 months due to lack of affordability;
• to have gone without needed dental care due to cost in the past 12 months;
• to be poorly behaved;
• and to have definite or severe emotional or behavioral difficulties during the past 6 months.

Unfortunately, the nuclear family is not an option for divorcing couples.  This study published in the “Journal of Epidemiology & Community Health” completed earlier  in 2015 confirmed the U.S. Department of Health and Human Services report’s findings on the nuclear family.  It then went a step further and compared parenting arrangements in which the children spent a significant amount of time with both parents as compared to parenting plans where a child spends most of his time with only one parent.

Researchers said that they had expected the children residing primarily with one parent to benefit from that stability.  Indeed, that is a common expectation and basis for rulings from many family court judges.  The researchers were surprised to see that the data did not support that hypothesis.  On the contrary, their findings confirmed that children who spent a significant amount of time with both parents were better off in the long run.  The study looked at a range of psychosomatic issues, including loss of sleep, headaches, loss of appetite, depression, stress, and many others.

What the researchers found was that parental stability was far more important that housing stability.  The children who had close relationships with both parents fared much better than children who lived primarily with only one parent.  By far the children of the nuclear families in the study still fared the best and reported the fewest psychosomatic issues.  However, of the separated parent households, those children in a joint custody situation with a liberal timesharing schedule with both parents fared the better than those living with only or primarily with one parent.

This study should not be taken to mean that an equal timesharing schedule is going to work for everyone or that a schedule providing housing stability for your child will not work best for you.  Every case and family is different.  However, it does provide food for thought.  Regardless, parents who can put aside their anger and resentment of one another and work together for the best interests of the children is always the best arrangement.

Photo courtesy of aleksandra.kostina

What Can I Do If It Is Not Safe for My Child to Visit the Other Parent?

What Can I Do If It Is Not Safe for My Child to Visit the Other Parent?

A very scary scenario for a primary residential parent is when there is a situation with the other parent that may somehow endanger the children.  As we have previously discussed, generally, the primary residential parent has to do everything he/she can to make the child go to court ordered visitations.  If you fail to do that, you could be subject to contempt sanctions from the court.  Nothing in this article should be construed as encouraging anyone to disregard a valid court order.

Nevertheless, there are times when a parent believes there is good cause not to allow the child to visit wit the other parent.  Kentucky statute says that, “[g]ood cause not to comply with a provision of a decree or temporary order or injunction with respect to visitation shall include mutual consent of the parties, reasonable belief by either party that there exists the possibility of endangerment to the physical, mental, moral, or emotional health of the child, or endangerment to the physical safety of either party, or extraordinary circumstances as determined by the court.”  Usually these circumstances involve situations of severe substance abuse, criminal activity or a reckless disregard for the child’s health or well-being.

Keep in mind that this statute also says that a person who fails to comply with a valid order without good cause shall be found in contempt and appropriately sanctioned.  The court is also authorized to order the offending party to pay the other parent’s attorney fees and costs associated with the denial of visitation.

If you have determined that you believe you have sufficient good cause to deny visitation, you should contact your attorney.  Many times parents believe there is good cause to deny visitation when it is actually more of a personality conflict between the parents instead of a danger to the child.  Also keep in mind that judges hear many cases with many horrible facts and often become very jaded.  What you believe to be a serious endangerment may not concern a judge at all.  Your attorney should be able to give you some guidance on your particular judge’s “rules of thumb.”

If your attorney agrees with you that there is a sufficient basis to deny the visitation, your next step is usually to file a notice with the court of an intent to deny the visitation.  This notice does not actually give you any authority, but it is primarily to provide some protection when the other parent files a contempt allegation against you.  You should not just rely on this notice and act unilaterally.  The best thing is to be proactive and follow that up with a motion asking the court to address the issue either by suspending the visitation or imposing safeguards to adequately protect the child during the visitation.  Understand, the court will do everything it can to encourage and allow both parents to spend time with the child.  Each case is different and you should discuss yours with your attorney before doing anything that might subject you to sanctions.

Photo courtesy of Alexandru Panoiu

Should I Get a Prenuptial Agreement?

Should I Get a Prenuptial Agreement?

Many people who have felt the sting of a divorce decide to once again take the plunge and tie the know once again.  When they do, they often want to minimize the chance of going through the divorce experience again.  That is where a prenuptial agreement comes in.

Prenuptial agreements are also called antenuptial agreements, premarital agreements, or prenups.  Prior to approximately 1990 they were not even allowed in the Commonwealth of Kentucky because it was believed that they would actually encourage divorce.  A Kentucky Supreme Court case allowed couples to determine how their assets and debts would be divided in the event of a divorce thereby bringing Kentucky into line with a number of other states on this issue.

The issue of whether you should even bother with a prenuptial agreement really depends on your situation.  If either one of the soon-to-be-spouses has significant assets that they wish to keep separate from the other spouse, a prenuptial agreement is a definite consideration.  If neither party is coming into the marriage with any significant financial holdings, there probably is no real need for one.

If you have determined that a prenuptial agreement is something that you want to consider, it is important to understand what can be covered and what cannot.  Moreover, the actual drafting and way the document is executed is important as well.

A prenuptial agreement can cover a number of issues such as:

  • What property is each party’s non-marital property
  • What property will remain each party’s non-marital property
  • How marital property will be determined in the event of a divorce
  • How each party’s property will be divided in the event of a divorce or even death
  • How debts will be divided in the event of a divorce
  • The effect commingling assets will have in the event of a divorce
  • How income and appreciation in value of assets will be treated in the event of a divorce
  • What happens to each spouse’s retirement benefits in the event of a divorce
  • Whether maintenance will be awarded and how much

A prenuptial agreement cannot deal with any issues involving child custody or the payment of child support.  Those issues will have to be decided upon either by agreement of the parties in event of a divorce with approval by the court or the court will have to make the final decision.  The reason for this is that the court is the final arbiter of child custody and, more specifically, the child’s best interest in the event of a couple’s divorce.  That decision cannot be predetermined prior to the marriage even taking place.  Additionally, child support is typically seen as a right of the child which cannot be bargained away by either parent prior to the divorce.  In fact, many judges are loathe to allow child support to be waived absent a showing of good cause in the event of an actual divorce.

In a future post, we will discuss the actual execution and enforceability of a prenuptial agreement.  For now, if you think a prenuptial agreement may be right for you, it is important that you meet with your family law attorney, estate planning attorney and financial adviser to discuss your options.

Photo courtesy of scienceatlife

How Do I Enforce My Visitation With the Children?

How Do I Enforce My Visitation With the Children?

Often when divorced parents fight about time spent with the children, it is not really time spent with the children that they are fighting about.  Instead, it is usually one (or sometimes both) of the parents using the children to get back at the other parent.  This often leads to the primary residential parent refusing to let the other parent visit with the children according to the schedule ordered by the court.  If you find yourself in that situation, what should you do?

When your ex is denying you visitation, before you hire a lawyer, write to your ex.  This can be by email, text message, or certified mail, but write to him/her in some manner in which you can show that the message got to him/her.  In that message, remind them about the visitation schedule.  Then describe the ways in which the other parent’s behavior is inconsistent with that schedule.  Keep your description limited to what you can observe and refrain from petty name calling, disparaging remarks, or what you believe the motivations for these behaviors.  In your message set out the specific time and place where you will be to visit with the children on the next scheduled visit in accordance with the court order.

Be at the appointed place and time.  If, after twenty minutes or so, the ex does not show, do not get mad or make a scene.  If the meeting place is at a business you might purchase something of nominal value and save the receipt or even bring a witness; something to prove you were there and on time.  Then write the ex a second message.  Again, just like before, confine your comments to behaviors you can observe and do not go into the ex’s possible motivations.  If the ex does not show at the second appointed time and place, then it is time to contact a lawyer.

The lawyer can file a motion for rule to show cause.  This is a motion that is filed when you believe the other party is violating the court’s order.  You are asking the court to order the other person to appear before the court and explain (or “show cause”) why he/she should not be held in contempt of court.  Sanctions from the court for contempt could be anything from a slap on the wrist, to fines, an award of attorney fees, and even jail time.  However, this is a court proceeding and the truth is whatever can be proven in court.  If you follow these steps you will have your proof and show the judge the truth.

Photo courtesy of potential past

Should I Move Out of The House or Will It Hurt My Case?

Should I Move Out of The House or Will It Hurt My Case?

You have decided it is over, maybe papers have been filed, all you want to do is be away from the other person.  But should you move out of the house?  I am asked that question with some regularity. Many people are scared that they might be accused of abandonment, but with the advent of Kentucky’s no-fault divorce system, that is no longer a concern.  Nevertheless, it does not necessarily mean that you should immediately move out.

The first question is whether you will be asking the court to designate you as the primary residential parent for your children.  If so, you will want to stay with the children and maintain as much stability for them as possible.  Therefore, remaining in the home would be best.
If you believe that ultimately, you will want to keep the residence, it is usually a good idea for you to remain in the home.  Oftentimes, once one party moves out he/she establishes another residence, it is very easy for a court to see that the living situation is working and award the house to the party still residing in the house.  That is not to say it happens every time, but it often comes into the court’s decision making process.
If you have decided to leave, you need to think about the process rationally.  Leaving is going to most likely increase your emotional and financial stress.  Whether it is to escape domestic violence or you have simply decided that leaving is the best thing for you and your family, you need to approach this situation with a great deal of planning.  You will never have a better opportunity to prepare for your divorce case than when you are in the home.  Consider the following points:
  1. Figure out the finances.  If you are leaving you need to assess both parties’ incomes (or lack thereof), document that income, and work out a budget.  The last thing you need to do is stretch yourself too thin by renting a place you can barely afford and then get hit with a child support obligation.
  2. Prepare for co-parenting.  Help the children cope with mommy or daddy moving out.  Kentucky now requires some form of co-parenting class in divorces involving children.
  3. Itemize the property and debt.  You will never have a better opportunity to catalog the property that may be in dispute than when you are in the home.  Do it before you leave.  This includes the residence itself, intangible assets (financial records, stocks, bonds, etc.), business interests, and physical assets such as furniture, artwork, vehicles, etc.
  4. Marshal your resources.  Make sure you have access to as much money as possible.  Divorces are expensive and so it setting up your new place.  Talk with family and friends about helping you with loans/gifts.  Access bank accounts and credit accounts.  You may consider selling some items, but discuss this with your attorney first.
  5. Do not think that just because you have moved out that you can behave in any manner you like.  You need to assume you are being watched or that your actions will get back to your spouse.  It is best not to date or do anything that might make you look bad in court.  Talk with your attorney about possible dos and don’ts.

Moving out of the marital residence is an important decision that should not be taken lightly or without preparation.  Make sure you understand all of the relevant issues before you make a move.  Above all preparation is key.  Do not do anything without discussing it with your divorce lawyer.

Photo courtesy of Meathead Movers