Tag: family law attorney

WHAT TO EXPECT IN DIVORCE COURT PART 2, FROM YOUR DIVORCE LAWYER

WHAT TO EXPECT IN DIVORCE COURT PART 2, FROM YOUR DIVORCE LAWYER

As we previously discussed, understanding what to expect in divorce court can greatly reduce the stress you will undoubtedly experience.  Similarly, you should know what to expect from your divorce lawyer. This will allow you to plan and be of the utmost assistance in the presentation of your case.
1.              In the weeks leading up to your hearing expect the requests for information from your divorce lawyer to increase. These may be requests for updated financial documents, photographs, possible witnesses and contact information, etc. The quicker you can respond to these requests the better prepared your attorney can be. Your lawyer must have time to review the information you provide, most likely provide it to the other lawyer, and determine how best to present such information to the court. Waiting until the last minute to provide requested information to your lawyer will only make it more difficult to prepare for your case.
2.              Expect to meet with your lawyer to prepare for your hearing. Your lawyer should be going over trial strategy, possible evidence, and possible witnesses throughout the representation as he builds your case. As the trial date nears, these meetings should increase and include an explanation of what you can expect at trial and as well as your testimony.
3.              Expect that on occasion you may have difficulty reaching your attorney.  Just as the time your attorney will spend with you and working on your case, understand that he will from time to time have to spend that same amount of time on other cases. Rest assured, when the time comes, your lawyer will be focusing on your case and putting other cases on hold.
4.              Expect your lawyer will be communicating with your spouse’s attorney. While you may have extremely hard feelings towards your spouse, or even your spouse’s attorney, understand that family law attorneys routinely have cases with one another and regularly communicate. Moreover, the rules of procedure and the Court will expect the attorneys to communicate to try to resolve as many issues as possible.
5.              Expect that your divorce lawyer will be prepared. During your discussions and trial preparations, your lawyer should be able to explain to you a trial strategy, how that strategy will be presented and what the other side may present. This will further help you to be prepared yourself and more calm on the day of trial.

Divorce court is scary; no question about it. However, having a prepared and skilled lawyer at your side can calm those fears.
Photo courtesy of peggydavis66
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

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

Should We Consider Marriage Counseling?

Should We Consider Marriage Counseling?

Most counselors would tell you that they wish you consider marriage counseling before contemplating a divorce.  Nevertheless, I would like to think it is never too late to salvage the relationship if both parties are committed to the effort.  Marriage counseling as most people think of it is generally short-term therapy consisting of between six and a dozen sessions.  However, some types of therapy may be more ongoing.
I recently heard from one couple who had successfully saved their marriage after almost divorcing only two years into the marriage.  That have now been married six years and still see a marriage counselor on a monthly or bi-monthly basis just “to keep things running smooth.”  This couple learned that marriage counseling not only helps them deal with current issues they are having but also how to spot the mole hills before either party makes them into giant mountains.  People often find that marriage counseling not only strengthens their relationship, but also helps their overall mental health because problems in a relationship also usually lead to other personal problems such as chronic depression, anxiety, and stress.
A word of warning if you consider marriage counseling; assuming the counselor is doing his job correctly, both parties should be made to feel somewhat uncomfortable during the process.  That is just part of change and obviously if you want the counseling to work, a change is going to have to take place.  Additionally, in order to give the counseling a real opportunity to succeed both parties need to make some commitments:
   Commit to attending a set number of sessions.  Most counselors would recommend at least six sessions.
   Commit to improving the relationship
   Do not make any big moves in dissolving the marriage.  This may include actually filing for divorce, moving out of the house, or continuing a relationship with a paramour
   Follow the recommendations of the counselor.

Keep in mind when looking for a counselor that different counselors have different approaches.  Some counselors are focused solely on maintaining the relationship absent abuse or danger.  Other therapists are more focused on the mental health of the individuals involved and remain somewhat neutral as to saving the marriage.  Regardless, the survival of a marriage is a long-term effort and commitment.  Setting aside time to work on your relationship is important to its success.
Photo courtesy of Pascal
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
Jennifer Lawrence & Other Celebs Learn – Your Photos Are Never Completely Private

Jennifer Lawrence & Other Celebs Learn – Your Photos Are Never Completely Private

You have zero privacy . . .”
Scott McNealy, then CEO of Sun Microsystems

The latest photo scandal for Jennifer Lawrence, Victoria Justice and other celebrities illustrates an important point to remember in your divorce or custody case.  Your photos and your information are never as secure as you think they are.

I previously discussed the fact that your Facebook and other social media can be used against you in court.  Nevertheless, people often feel much more secure having their own “private” stash of photos, videos, etc.  These “private” images almost certainly will not remain “private” once a civil suit is filed.  If anonymous hackers are able to seemingly routinely get their hands on private photos of celebrities, how much easier will it be for someone close to you (i.e. a spouse or lover) to figure out a password or supposedly secret hiding place?

Unless you wind up with a child as a result of a one night stand, most likely the person on the other side of your divorce or custody case kno
ws you quite well.  Most likely, they can guess your password to your phone without a lot of effort or they know that supposedly super-secret hiding place you use.  Those will be some of the first places they look to dig up dirt on you.

In the years I have been handling divorce and custody cases, believe me I have seen people who felt the need to record, write about or photograph some pretty bizarre things.  The relevance of these depends on the facts of the case and may actually be of dubious value from a litigation standpoint.  However, their value for settlement negotiations can be immeasurable when the writer, video star or photo subject really, really does not want them released into the public record.  The value of these can go up exponentially if you are seeking maintenance and have already started a new relationship and decided to “document” it.  Why put yourself at risk?

Anything that is photographed, written down or recorded has the potential to be used against you in court.  So before you decide to be a star in your own movie or you decide the world needs photos of you in your unmentionables (trust me, we don’t), ask yourself if you would want your grandma to see it.  Unless your grandma looks like this, in which case you should just cut to the chase and decide if you would ever want a judge to see it when deciding if you are a good parent.  The best advice is simply to keep your privates private.

Photo courtesy of Amy Wilbanks

How Do I Know If It’s Time to Hire a Different Lawyer?

How Do I Know If It’s Time to Hire a Different Lawyer?

The decision to change attorneys is a costly one.  It takes an emotional toll when you are already emotionally vulnerable.  It takes a financial toll and it takes a toll on your time when all you want is to get this process over.  You will have to go through getting to know your new attorney and how his office works.  Your new attorney will need time to get up to speed on your case, which will cost you money.  All of this will most likely delay the proceedings.

Nevertheless, if you feel your current counsel is not adequately representing your interests or if you feel that you can no longer work with that lawyer (sometimes called a breakdown of the attorney/client relationship), you might be well served by changing attorneys and should not hesitate. The sooner you act, the more likely you will be able to ensure that your rights are protected and that you have an attorney in whom you have faith and can trust to represent your interests.

Before you go through the expense and trouble of hiring a new attorney, you should take a hard look at your case and ask yourself some things:

  • Have I expressed my concerns to my attorney?  I mean, have you calmly and reasonably talked with your attorney about what is bothering you and not tried to get attention by being rude or demanding to the attorney or the office staff.  (FYI – that is never effective at getting a response you want.)
  • When I expressed my concerns, did my attorney take steps to remedy the situation?  This would apply whether we are talking about moving the case forward or simply handling an issue of communication between you and your attorney.
  • Is my lawyer open and receptive to what I have to say or does he get defensive?  Again this might depend on how your present your problem to the attorney, but attorney’s are professionals and should not get their feelings hurt if you are expressing a legitimate concern.
  • Am I blaming my lawyer for the bad behavior of my spouse or opposing counsel?  Try as you might, there is no way to litigate someone into not being a jerk.  Don’t blame your lawyer.
  • Have I provided my lawyer with all of the information he needs to take the next action in my case?  As a lawyer, it is impossible to go into battle with an unloaded gun.  Give your attorney all of the ammunition he/she needs.  You have responsibilities in this case as well.
  • Am I blaming my lawyer for things over which he/she has no control?  Sometimes, the law just is not on your side.  Make sure you ask whether it is your lawyer’s fault or if it is the law or even the judge that govern’s the outcome.
  • Is my lawyer keeping promises for completing action on my case?  Basically, is the lawyer doing what he says he is going to do?
  • Do I trust my lawyer?  Much like in a marriage, once the trust is gone, you need to go elsewhere.  Remember, you are putting your future and the future of your family in this person’s hands.
  • What are the relative advantages of hiring a new attorney compared to the costs?  Weigh out the pros and cons of changing lawyers.
  • Do I feel like my lawyer will support me to achieve my goals in this case?  Has my lawyer ever even asked me what my goals are?

You should make every effort to avoid changing attorneys in the middle of your case.  It can make a difficult situation even tougher.  There is an old adage that says you should never change horses mid-stream, but you might be on a horse that just can’t swim.  If that is the case, you should probably find yourself a canoe.

Photo courtesy of Stephen