Category: custody

Does My Spouse Have a Right to My Medical Records?

Does My Spouse Have a Right to My Medical Records?

If you are involved in a custody case or possibly even a maintenance case, the answer is yes.  Although as a general rule medical records are private, once you put your health at issue, you have effectively waived that privacy right.  Your spouse’s attorney can then force you to produce them through the discovery process or subpoena them directly from your medical provider.  Under Kentucky’s Family Court Rules of Practice and Procedure you can be required to sign an authorization for the release of such information to the opposing attorney.

Your physical, mental and emotional health is always at issue anytime you ask the court to make a determination of child custody.  Moreover, if you are seeking maintenance and claiming that your health in some way inhibits your ability to work and earn a living, then you have made your physical health a factor for the court to consider and essentially given the other side the right to snoop through your medical history.

If this becomes an issue in your case, you should talk to your lawyer about your concerns.  This is not a time to be shy or to keep things from your attorney if there are potentially dangerous or embarrassing things in your medical history.  Your lawyer may be able to file a motion with the court to limit the information that the other side can get or to prevent it from coming in altogether if it is not actually relevant to a case.  If your lawyer knows all of the facts of the situation he can better advise you on how to proceed and protect your interests in court.

Photo courtesy of Seattle Municipal Archives

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

What is the Role of a Guardian Ad Litem in a Custody Case?

What is the Role of a Guardian Ad Litem in a Custody Case?

A guardian ad litem (GAL) may not be able to fly, but she may still be a superhero.  GALs are practicing attorneys who are appointed in different types of legal proceedings.  Their role is different depending on the type of case in which they are appointed.  When the current Family Court Rules of Practice and Procedure went into effect in 2013, they provided that the family court may on its own motion or on the motion of a parent or custodian appoint, among other appointments, a GAL.

Often in particularly acrimonious custody disputes a GAL will be appointed to assist the court and to represent the child in proceedings before the court.  A GAL’s direction in these cases has often been confusing an miss-mashed between rules and statutes affecting divorce proceedings, dependency/neglect/abuse proceedings, and even cases involving representation of inmates.  The Family Court Rules of Practice and Procedure, even though allowing appointment of a GAL in custody cases are conspicuously silent as to the role of the GAL in such a proceeding.

The Supreme Court recently published an opinion clarifying the role of the GAL in a custody proceeding.  In the case of Morgan v. Getter, the family court appointed a GAL who filed a report with the court making a recommendation that the sixteen year old daughter be allowed to relocate to Florida and the father be the primary residential parent.  The trial court refused to allow the mother’s attorney to call the GAL to the stand so as to cross-examine the GAL about the report or the recommendation.

The Supreme Court pointed out that there is a separate statutory provision allowing a trial court to appoint a friend of the court (FOC) to perform an independent investigation and file a report with the court.  In that case, the FOC would be subject to cross-examination about his findings, report and investigation.  The high court clarified that a GAL’s role in a child custody case is to actually act in the best interests of the minor child using the lawyer’s independent judgment.  To that end, the GAL may file motions, call witnesses, present evidence, but should not file a report with the court nor be subject to cross-examination.  The Supreme Court noted that there may be instances in which the lawyer’s determination of the best interests of the child may conflict with the child’s actual wishes and the GAL, if the child consents, may be required to report that conflict and the child’s wishes to the trial court.  The costs of the GAL’s fees can be apportioned to the parties as costs according to the rule.
This is a fairly radical shift in GALs’ responsibilities in these types of cases in Kentucky. However, it does clarify the direction that the GAL should take by adopting a best interests approach as opposed to simply advocating what the child wants; a decision that may be impossible for a child to articulate given age or maturity level.  When that happens, leave it to the superhero to save the day.
Photo courtesy of Jeffrey Kontur
Don’t Email (or Text, Facebook, or Tweet) While Angry!

Don’t Email (or Text, Facebook, or Tweet) While Angry!

We’ve all been there.  You get an email or text message that really makes you angry and you want nothing more than to fire right back.  After all this person has just insulted you, or hurt you, or even threatened you.  That fight or flight instinct kicks and before you know it you have typed out a scathing reply that cuts the sender to the quick, possibly even questioning his/her parentage and/or intelligence.  Before you hit the “send” button, stop and think.

We have previously discussed how things you post online or share electronically can be used against you in a divorce and custody case.  It is even more common for emails and text messages to be used in divorce and custody proceedings.  Oftentimes, those messages are written in the heat of the moment and things are said (typed?) before the writer has given much thought or much less tried to cool down.  It creates some cognitive dissonance for a judge when someone is trying to portray themselves as a paragon of moral virtue and the opposing attorney has copies of emails and text messages in which that person is swearing like a drunken sailor.

Other problems arise when written communication becomes the only means of communicating between parents.  As this article points out, the nuance of the English language is lost in written communication.  You lose tone of voice, a great deal of context and most definitely body language, so it is imperative to be clear in your communications to avoid mixed signals.  I represented a father one time and he and the mother of his children insisted on only communicating by text message.  It was terrible.  These two could not get along to save their lives and if anything could be misconstrued it was going to be.  I begged him to pick up the phone and call her on occasion before flying off the handle.  It is no telling how much each of them spent on attorney fees simply because they refused to communicate effectively.

Finally, these messages often wind up containing very damning evidence that can totally torpedo your case.  Why give your opponent the ammunition?  I have had cases where people admitted to affairs, drug use, theft, abuse, and abandonment of their children in texts and emails.

Before you hit the send button, use the same test used by the Office’s Dwight Shrute.  Stop and think.  Take a deep breath.  Ask yourself some questions.  Would you want this read in court?  Would your attorney advise you to send this message?  How is this going to help you and your children in the long run?  Remember don’t type angry.

Photo courtesy of RA Torsten Kellotat

My Ex Has Now Become a Disneyland Parent & I Feel Like the Bad Guy!

My Ex Has Now Become a Disneyland Parent & I Feel Like the Bad Guy!

Often in a divorce or child custody situation, one parent compensates for feelings of guilt by being overly generous with the children.  Sometimes it is simply a matter of the parent trying to “buy the children’s love.”  This is usually accompanied by a lack of discipline at that parent’s house in an effort to become the favored parent or to make the time with the children “special.”

When you are the custodial parent, it can be extremely frustrating.  James Lehman, MSW at the Empowering Parents has an excellent article on this situation here.  The thrust of Mr. Lehman’s article is that, as the custodial parent, you should shift your focus away from the other parent’s behavior.  Do not make the shift so jolting on the children.  When they return from the Disneyland parent’s house, give the children half an hour or so to unwind, unpack,  maybe watch a little TV or get a snack rather than immediately ordering them to start cleaning up their room.  Do your absolute best to be an outstanding parent by keeping a routine for the children including bedtime, family meals, chores, and homework.  Whenever possible, encourage family activities as well as individual time with each child.  Have a game night (there is a reason the families on the boxes of those board games always look so happy).

If you still have the relationship where you can, you should try to talk with the other parent about how their actions are affecting the children.  Sometimes a person who has never been the primary caregiver is completely lost as to how to handle situations when the children come over for the weekend.  They compensate by spending a lot of money.  This parent may not even realize there is a problem.  The more the two of you can do to present a stable, united front to the children, the better it will be for the children.

Stability and consistency help ease a child’s feelings of anxiety and loss over the breakup of his/her parents.  It is not easy to be the strong one, and you may often feel like “the bad guy,” but you have to think about the long-term good of your child.  If you have more questions, contact the Alford Law Office.

Photo courtesy of Andy Castro