Category: custody

Pre-Divorce Planning – Part II

Pre-Divorce Planning – Part II

I was told by an older attorney years ago that “failing to plan, is planning to fail.”  As trite as that sentiment may be, it is also very accurate.  I am certain that over the years, I have won cases I probably should have lost simply because the other side did not properly plan and prepare their case.  Previously we began our discussion of pre-divorce planning.  Let’s continue with more tips on how you can plan to protect you, your family and your resources before a divorce case gets started.

  • Take down all social networking sites, websites, etc.: First, let me be clear.  The deletion of pictures, posts, etc. from a social media account, especially during litigation, could be deemed to be destruction of evidence for which you could be sanctioned by the court.  However, there is nothing improper or illegal about deactivating your account.  Be aware that the account will still remain on the social media site’s server and could possibly still be accessed.  The interconnected world we live in makes it very easy to learn all sorts of information about a person. One of the first things I do whenever I get a new divorce case is immediately run Google search of the opposing party. You would be amazed what I have found. There is no reason to make it easy for your spouse’s attorney to mine such data about you. If you have a blog, Facebook, Twitter or any other such web page, deactivate it immediately. Even if there is nothing particularly damning on it, your spouse may have your password and be able to log into the page and make changes to besmirch your reputation.
  • Open a separate checking account: Most married couples have joint bank accounts, which means that both parties have equal access to the accounts. Nevertheless, people regularly come into my office and are surprised to find that their spouse has raided the account and absconded with all of the contents. Protect yourself by opening a separate account and withdrawing one-half of the proceeds of the joint accounts to give you something to live on for a while. Keep in mind that if you withdraw the entire account, you will most likely have to repay your spouse for his/her share. Additionally, it is usually a good idea to open the account at a different bank than the one at which you and your spouse have historically done business. Smalltown banks have a tendency to get to know the parties as a couple and, in spite of laws to the contrary, routinely give out information to opposing parties because they are not aware of the pending divorce.
  • Get a complete physical: There are several reasons to do this. One, divorce is one of the top five stressors you will ever go through and it is more important than ever to make sure you stay healthy. Two, a person’s physical health is an element considered by the court for numerous issues such as child custody and maintenance. Three, it is vital that you get yourself checked if you have any reason to suspect that your spouse has been unfaithful. If he/she has infected you with a sexually transmitted disease, you need to find out before the divorce is over so your lawyer can ensure that the philanderer pays the expenses of treatment.
  • Immediately start gathering information: The unfortunate truth is that the only truth in the courtroom is what you can prove. As soon as your spouse finds out you are planning to divorce him/her, you may find that various documents and files start disappearing. As a general rule, if a document has a dollar sign on it anywhere, your lawyer needs a copy of it. This includes, but is not limited to:
  • Real estate closing documents – deeds, mortgages, notes, tax records, etc
  • Credit card statements
  • Bank statements
  • Loan documents
  • Income tax returns (last 3-4 years)
  • Paycheck stubs for both parties
  • Title statements
  • Investment account statements (Mutual funds, IRAs, stock certificates, etc)
  • Retirement & pension account statements
  • Statements of insurance benefits (health, life, and disability)
  • Keep in mind that if there is a particular asset you believe to be a non-marital asset, the burden is on you to prove that it is non-marital.
  • If there is a certain document you cannot locate and you believe your spouse has in his/her possession, tell your lawyer about it and he may be able to get it through the discovery process.
  • Plan your custody case: If you have determined that you will seek primary custody of your child(ren), you need to start planning your custody case immediately. One useful exercise is to pretend you are sitting down with the judge and you have an opportunity to explain to the judge why you should have custody of your child. Ignoring all of the rules of evidence or what is proper in court, just write down everything you would say; get it all down on paper. After you have brainstormed your argument, read back through and think about how you and your lawyer can prove each point, remember truth is not important in the courtroom if it cannot be proven. What facts will need to be established with eyewitness testimony? Are there any facts that need documentary proof? Where can you find those documents? Plan ahead or plan to fail.
  • Complete a financial disclosure/data packet: This will assist your attorney and is a required pleading in several jurisdictions. It helps act as a quick reference for you, your attorney, and, most importantly, the judge. You can download one here.

These are just some of the steps you can take to improve the chances of success of your divorce case. As always it is vital that you talk with a skilled family law attorney to formulate a plan specific to your circumstances.

Photo courtesy of Andy Rogers
Tips for Negotiating and Managing a Timesharing Schedule

Tips for Negotiating and Managing a Timesharing Schedule

As if juggling a child’s busy schedule with ballgames, play auditions, church functions, birthday parties and other activities of your little social butterfly were not enough, adding a co-parenting timesharing schedule into the mix makes it even tougher.  The timesharing schedule may be one that is negotiated through settlement discussions with the other party, reached at mediation or it may be ordered by the Court. Regardless of how your timesharing schedule is determined, there are some very fundamental and key points that you need to keep in mind.

1.  Keep It Simple

I have had cases where parents are bouncing the child back and forth night to night or during the day. The dad gets every third leap day and the mom gets each evening where Jupiter aligns with Mars. UGH!  Of course, I am exaggerating to make a point, but it is a valid point nonetheless.  Obviously, you and the other parent have some difficulty getting along otherwise, you would probably still be together.  Therefore, avoid as many misunderstandings or opportunities for argument as possible by keeping your schedule as simple and easy to understand as possible.

Keeping the schedule as simple as possible will also help provide your child some stability. Children can often adapt better if they understand and follow a routine.  They can quickly learn “Monday is a mommy day;” or “I was with mom last weekend so I will be at dad’s this weekend.”

2.  Help the Children Understand

Like I said oftentimes knowing what to expect can put children’s minds at ease in a co-parenting situation. Help your child understand the timesharing schedule. Make it available to your child in a way that is easy to understand. Perhaps a printed calendar posted on the refrigerator or a dry erase board. For older, more tech-savvy children, set up an online calendar with the days marked.  This is actually very easy to do with many of the online calendars because you can program in repeating events. There are also a number of apps available in the iTunes and Google Play stores specifically for family scheduling.

3.  Do Not Forget Holidays and Important Family Events

Most standard visitation schedules promulgated by the Courts have many of the big holidays spelled out.  This is often a good place to start if you are trying to develop your own parenting schedule. Also, if your family has a big family reunion or other special event each year, you should factor that into the schedule.  Some other things that may come up are birthdays, family events such as weddings or funerals.  It is a good idea to also review your child’s school calendar to determine when there are long weekends or breaks for you and the other parent to consider.

4.  Get It Documented

You and your co-parent or ex-spouse may be getting along beautifully, and that is wonderful.  However, you need to prepare for the day when you may not agree on things. In that case, you had better have your timesharing plan well-documented and filed with the Court. If it is not documented, who is to say who gets what time? If it is not on file with the Court and adopted as part of a custody order or divorce decree, the Court cannot enforce it with the Court’s contempt powers.

This also applies if at some point you and your ex change the timesharing schedule. Sometimes it evolves over time. Sometimes you have to change as a result of changed circumstances like when the child starts school. Whatever the reason, get it documented and make sure the Court file reflects what is happening with you, your ex and your child.

Getting everyone on board with your timesharing schedule and keeping everyone properly informed will go a long way to making your life as a co-parent much, much smoother.

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Photo courtesy of Dafne Cholet

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

Can I Restrict the Other Parent’s Time With the Child?

Can I Restrict the Other Parent’s Time With the Child?

A gut wrenching scenario in a coparenting relationship is when one parent believes that something unsettling or potentially dangerous is occurring while the child is at the other parent’s home.  What can you do once a child is old enough to actually convey what is happening at the other parent’s home and those fears and concerns are confirmed? First, you will need to make sure the court will share your concerns.

A recent case decided by the Kentucky Court of Appeals dealt with the issue of restricting a father’s timesharing with his daughter.  In the case of Ryan v. Ryanthe mother moved to restrict the father’s visitation based on allegations made by the parties’ teenage daughter that the father smoked marijuana.  The court entered an ex parte (without a hearing) order suspending the father’s visitation until a full hearing could be conducted.  The father immediately took a drug test showing that he had not smoked marijuana at the time the child was with him.  However, a subsequent hair sample test showed traces of marijuana in his system from sometime within the past 12-14 months.  The commissioner recommended resuming the father’s visitation, but the court actually restricted his visitation and ordered it to be supervised.  On appeal, the Court of Appeals reversed the trial court’s decision finding that the court had abused its discretion in restricting the father’s time with the child.

This case illustrates the fact that in order to restrict a parent’s time with a child, there must be substantial and concerning evidence.  Kentucky Revised Statutes 403.320(3) specifically states that “the court shall not restrict a parent’s visitation rights unless it finds that the visitation would endanger seriously the child’s physical, mental, moral, or emotional health.”  This is an objectively high standard to meet for the person trying to restrict the other parent’s time.  A further consideration is that another statute specifically states that “[t]he court shall not consider conduct of a proposed custodian that does not affect his relationship to the child.”  In the Ryan case, the Court of Appeals made a point of the evidence did not indicate that the father had ever used marijuana in the presence of the child (As a side note, with the trend of decriminalization of marijuana possession, judges seem to be less concerned about the mere fact a parent uses marijuana without proof that it is being used while the child is present.)

Situations that would certainly cause the court to believe a serious endangerment existed are abuse or neglect of the child, felony drug activity while the child is present, or mental illness and other conditions the parent may experience the prevent him/her from being able to care for the child.

Photo courtesy of angrylambie1

“What About Fido?” Who Gets Custody of the Family Pet?

“What About Fido?” Who Gets Custody of the Family Pet?

The reality is that to many people, their pets are not just like their children, they are their children.  I have been shown family photos that included pets and more than one client has had their pet’s picture made with Santa at Christmas time.

Despite the strong feelings that these people have for their pets, under Kentucky law courts do not equate pets to children.  Kentucky courts treat pets as personal property.  That means that your beloved family dog is treated the same as a microwave oven or a leather recliner.  In my years of practice, I am the only attorney I know of who has actually litigated a pet visitation issue (the other attorney in the case retired).  At the end of that case, the judge said she would never hear another one.  That is the attitude you are likely to encounter with most judges.  They will not order joint custody of a pet any more than they will require you to share time with your blender.

With all that being said, it does not mean that the parties, themselves, cannot come to some sort of agreement on sharing time with their pets.  This is an other issue in which mediation and a spirit of cooperation can end in a positive result.  Many parties are able to work out an arrangement to share time with their pets.  In such a situation, the courts will usually adopt that agreement as part of the final divorce decree.  Be aware, however, that if it becomes necessary to go to court to enforce that agreement in some manner or modify, a judge may still be dubious about the situation.

There may be additional considerations depending on your particular situation.  For instance, some veterinarians seem cautious about the idea of shared custody of a dog and do not recommend it at all for cats.  More exotic pets may be even more troublesome.  Further, keep in mind that if you got your pet from a rescue organization or pet placement program, you may have signed a contract that limited your rights to the animal and where or with whom the animal may live.  Finally, in the event of domestic violence in your relationship, it is not uncommon for an abuser to use your pet as a way of hurting you further so it may be necessary to take steps to ensure that “Fido” is protected along with you.

Photo courtesy of Stefano Mortellaro

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

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