Tag: visitation

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

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

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

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

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

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

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

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

Photo courtesy of Alexandru Panoiu

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

Who’s Your Daddy? Maybe Not Who You Think.

Who’s Your Daddy? Maybe Not Who You Think.

The answer to the question of who is a child’s father may not be as easy to answer as you think from a legal perspective.  (Is anything?)  The answer may be different depending on the situation.  For example, notorious breaker of the internet Kim Kardashian became pregnant with Kanye West’s baby while Kardashian was still married to Kris Humphries.  If this happened in Kentucky, Mr. Humphries would be the presumed father of the child because he and Kardashian were still married when the child was conceived.

Kentucky statute states:  A child born during lawful wedlock, or within ten (10) months thereafter, is presumed to be the child of the husband and wife. However, a child born out of wedlock includes a child born to a married woman by a man other than her husband where evidence shows that the marital relationship between the husband and wife ceased ten (10) months prior to the birth of the child.

The Kardashian/Humphries/West situation actually comes up with some frequency.  Many times a wife will have an affair and get pregnant by a man other than her husband.  Since the presumption is that the child is one of the marriage, it is incumbent upon the husband, especially in a divorce case, to make sure that the child is his.  If he fails to do that and the child forms a bond with the husband, a court may actually refuse to allow the man to disavow paternity of the child.  I have been involved with cases where the child ranged in ages from eight to fifteen where the court refused to allow a man who had always been a part of the child’s life as the child’s father to then abandon the child on the basis of no biological connection.  Nevertheless, if there is a suspicion that a child of a marriage may not be the husband’s that issue must be raised in the divorce in order for there to even be a hope of avoiding a finding of paternity.  If it is not raised during the initial divorce proceeding, it will most likely be waived absent discovery of new evidence that was not available during the divorce for some reason.

A putative father may initiate an action to establish paternity.  A putative father is a man who believes he may have impregnated a woman, regardless of whether the man is the woman’s husband.  If a putative father does not initiate an action to establish paternity, he has no legal rights to a child.  An action to establish paternity may also be initiated by the mother or even the Commonwealth of Kentucky through the division of child support.  Once paternity is established, he may be required to pay child support, other expenses, and be entitled to visitation with the child.

If you have more questions about paternity issues in the Commonwealth of Kentucky, seek advice of counsel as soon as possible.

Photo courtesy of Drew XXX

Dealing With Divorce During the Holidays

Dealing With Divorce During the Holidays

We are going into the crazy-fun time of year known as “the holidays.” It is a time of gathering together with family and friends, feasting, going to parties, and having a good time.  Unfortunately, for those going through a divorce, and especially those trying to co-parent, the holidays can be a time of endless stress, arguments and calls to their attorney.  It can really make it difficult to get yourself into the festive, holiday spirit.  Hopefully, the following tips will be useful.

  1. Relax – This is supposed to be a joyous time.  Don’t spend it winding yourself up into knots.  Be patient with yourself, definitely with your children, and with the other members of your family.  You will probably find yourself grieving what you feel that you have lost and old wounds may try to reopen.  Try to focus on the positive aspects and true meaning of the holidays.
  2. Plan ahead – Plan to do something really fun for the holidays.  Put it on the calendar so that it is something to look forward to.  If you are unable to get together with family or friends, maybe plan a vacation getaway.
  3. Create new family traditions – A divorce may mean that you can no longer have certain family traditions.  Now is an excellent time to let go of the past and start new rituals and family traditions.  Maybe the ex got all of the Christmas decorations in the divorce.  This is your opportunity to take the kids to select new decorations.  Maybe you start taking them to buy or make a new ornament each year.
  4. Be flexible – What is more important, that you and your family are together or that you are together on one specific day?  Keep focused on what is important.  My family is made up of so many “blended families” that we gave up celebrating major holidays on the actual day years ago.  We now plan our celebrations on the Sunday preceding the holiday so as not to conflict with anyone else’s plans.  It as worked out great and we all get to spend time together.
  5. Remember the children – Reassure them that holiday celebrations will continue, but in a different way.  Take time to sit down and brainstorm with them about how they want to celebrate or new traditions they want to start.
  6. Keep the children’s best interest in mind – Decide ahead of time with your ex how you are dividing the holidays.  Try to be civil with one another.  Reassure the children that you will be fine and encourage them to have a good time at the other parent’s house.  Children often take their emotional cues from the parents.
  7. It’s not a competition – The Beatles had it right, you can’t buy love.  Do not try to compete with the other parent by buying/spending more on the children.  Make a budget and stick to it.  Chances are your finances are in a bit of a strain from the divorce anyway and now is not the time to max out your credit cards.
  8. Ask for help – Talk to your family, friends, counselors or other support system.  Remember you are not alone.
  9. Be realistic – Do not be seduced by the idea of a “Norman Rockwell” Christmas or other idealized family holiday.  People make themselves crazy trying to make everything perfect.  It is the whole premise for the classic “Christmas Vacation” movie.
  10. Take it easy, one day at a time – It will get easier.  It will hurt less.  Right now just focus on one thing at a time.

This is a time to be thankful for our blessings not to focus on what we do not have.  Rather than focus on the pain of divorce, concentrate on positive things.  Even small things, a great meal, a joke shared with family and friends, or just some quiet time away can create a better perspective and brighter holiday.

Photo courtesy of Louise Docker