Tag: timesharing

School’s Out for Summer – What Do We Do With the Kids?

School’s Out for Summer – What Do We Do With the Kids?

The weather is warming up.  You’re firing up the grill.  Maybe you have even taken your first dip in the pool or lake.  Your timesharing schedule is humming along and everyone has fallen into a certain routine.  You know who gets the kids to school, who is going to pick them up.  Things are finally going smoothly and then all of a sudden here comes summer.  What happens now?

Keep in mind that when I am talking about “summertime,” I am talking about how the court usually defines it which is the time between school years.  This usually winds up being June and July as children seem to be staying in school later and going back to school earlier and earlier.  To avoid confusion, it is always a good idea to make sure that your timesharing schedule defines “summertime” to avoid confusion.  It sounds silly, but I have seen many people who failed to do that have to pay to litigate over that definition.

Most visitation schedules have some sort of different provision for the summertime.  Some allow equal timesharing and direct the parties to rotate the children on a weekly basis.  Some spell out a schedule of large “chunks” of time for the parents usually in 2-3 week blocks of time.  If the non-residential parent lives far away and has not been able to enjoy regular parenting time with the child during the school year, the summer is often the time when that parent gets to make up for time lost and that parent will normally have the child the majority of the summer.

With all of that said, there is nothing that requires the parents to change their normal timesharing schedule at all simply because it is summer time.  Many parents adopt an “if it isn’t broke, don’t fix it” attitude.  Even in those situations, some provision should be made to allow each parent to take the children on an uninterrupted vacation for a week or so over the summer if they want.  After all, who wants to deny a child the joys of an hours-long car ride through the sweltering heat of Kentucky in July?

Your schedule should also deal specifically with out the normal “school year” timesharing schedule will resume at the end of summer.  Many judges take the position that you schedule the “school year” schedule for the entire year and then the June/July schedule overlays and supersedes that schedule so that wherever the schedule is as of the beginning of August is where the parties resume.  Sometimes it is as simple as whichever parent had the child last in July, the other parent gets the child the first weekend in August.  Whatever you work out, just make sure it is clear in your schedule.

A question that routinely comes up is the issue of child support over the summer.  The argument goes that the child support obligor has the child more time over the summer and, therefore, the child support obligation should go down.  The courts and the law, however, do not see it that way.  Child support is intended to make sure that the child has all of the necessities as much as possible such as a home, food, utilities, etc.  Those expenses do not stop simply because the child is spending more time at the other parent’s home.

With a little bit of planning and understanding, there is no reason summertime for coparents and their children cannot be full of fun vacation memories, Clark.

Photo courtesy of pjmorse

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 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

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

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

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