Category: evidence

How Can A Parenting Journal Help Your Custody Case?

How Can A Parenting Journal Help Your Custody Case?

If you are facing a contested custody case, one of the best tools you can have in your arsenal is a parenting journal.  A parenting journal is simply a record or chronology of events that happen between you and the other party and/or children.  This may be a computer file, a Google calendar, or simply hand-written notes kept in a pocket notebook or calendar.  Things to make a note of may include:

  • Incidents that occur at visitation exchanges or missed visits
  • Negative comments made by the opposing party
  • School issues
  • Extracurricular activities
  • Incidents of domestic violence
  • Statements made by the children about abuse or neglect
  • Observations about changes in the children’s behavior

It is important that you write in your journal on a regular basis for a couple of different reasons.  The first is because this way you will get in the habit of keeping the journal.  Second, the journal is much more persuasive if it is maintained and entries are made as they occur rather than trying to “rebuild” the event from memory days or weeks later.  Do not use this journal as your private diary.  Keep in mind the entries may be used in your custody hearing and become part of the public record.

Because the entire point of making the journal in the first place is to assist you in your court case, it is also important to make journal entries fairly.  Do not use the journal as an opportunity to bash the other parent; you will do your case no favors.  This includes using profanity, personal attacks on your ex, or other “code” words for your ex.  I had a case one time where a grandparent thought they were extremely clever by referring to their former daughter-in-law as “Tulsa” (read it backwards).  If your journal is completely slanted or never has anything positive at all to say about the other parent, you will lose some credibility with the court or the GAL.  Do not be afraid to mention your own issues as well.  Remember the whole point is to help build your credibility.  You cannot do that without exposing some of your flaws as well.
Finally, organize your journal.  If you keep an electronic journal, this is relatively easy.  Most tablets, smartphones, or computer word processing programs will allow you to “tag” your entries to make them easily searchable.  This will help your attorney later when the two of you are trying to prepare for court.  If you opt for the handwritten paper journal, consider using multicolored tabs to mark your entries.
Finally, keep your journal secure and private.
Photo courtesy of Bev Sykes
Preparing to Parent Apart

Preparing to Parent Apart

As stressful as it is for you to move out of the marital home, that stress is often even worse on the children.  Children often are left out of the loop and then these children wake up one morning and are told to pack up their things to move to a new house they have never seen.  To say that they may be troubled by this eventuality is probably an understatement.  Both parents, and especially the leaving parent, need to comfort the children and reassure them while at the same time the parents need to prepare themselves for possible custody litigation ahead.

Help the Children First

There is no single right way to help your children cope with the stress of divorce and relocating.  It will greatly depend on the age and maturity level of the children, their temperament, their coping skills and their relationship with the other parent.  If the transition is particularly difficult, you should consider enrolling the children in counseling.  Your attorney should be able to make a referral for you to a qualified therapist who can assist you.

Keep a Parenting Journal

Document, document, document.  Those are three great words of advice anytime you are thinking that you may wind up in court.  The unfortunate fact is that the legal system is often less concerned about what is the truth over what you can prove.  Custody litigation involves a number of facts that are difficult to prove and often devolves down to a “he said/she said” situation.  Therefore, the sooner you begin to keep a journal documenting important facts and your interactions with the opposing party, the more documentation you will have of the events that take place while your case is pending. You need to make your journal entries as soon after the events as they occur.  In the law, this is called a “present sense impression” and can be used at trial to essentially bolster your testimony.  A calendar and journal will provide details that might otherwise be forgotten and will present an accurate, real-time depiction of how the custody situation has been handled. This can be very useful information in negotiating custody arrangements or, if necessary, making a case before a judge.

Set a Custody Schedule as Soon as Possible

Once a divorce petition is filed in Kentucky, the other party has twenty days to respond and most judges will not schedule any hearings until after the response is filed.  All of this can add up to a month or two of time where the family is in limbo and both sides are afraid to do anything.  The sooner you can reach an amicable (or at least civil) agreement where both parents get to spend some time with the children, usually, the better the children will be able to transition to the new family dynamic.  Many times once an agreement is reached, the parties and/or the judge is hesitant to alter it if the children are adjusting and doing well.

Keep the Lines of Communication Open (if possible)

Some attorneys advise clients during a divorce to not speak with their spouse at all.  This tactic tends to just increase your legal fees and you should probably be somewhat suspicious if that is the advice you are getting.  Unless there is a situation where the other spouse is violent or harassing, it is much better if the parties can sit down and discuss issues calmly and civilly and then bring their agreement to the attorneys to be memorialized.  Remember after the custody case is over, your lawyer will go back to his/her office, but you still have to deal with the other parent at least until the youngest child turns eighteen.

Photo courtesy of Daniel Lobo

The High Cost of Not Hiring a Lawyer

The High Cost of Not Hiring a Lawyer

I am often asked, “Do I really need to hire a lawyer for my divorce.”  That answer is no, there is no law that requires you to hire a lawyer to represent yourself.  There is also nothing that says you could not perform your own amputation if you need to, but things usually work out better if you hire a surgeon to do it.

Representing yourself in court is called being pro se (you have now fulfilled your quota of pompous legal terms for the day).  The problem with trying to represent yourself in a divorce is that things rarely work out as well as you had hoped they would.  Many people start off with the best of intentions that their divorce will be “uncontested” only to find that they cannot agree on some very important issues.  This is only the beginning of the problems with self representation.

Another major concern is that you may not get everything to which you are entitled.  Many people I talk to on a daily basis are surprised by what the law entitles them to in a divorce.  If you do not know  to what you are entitled, you have no idea what to ask for and can wind up “leaving money on the table.”  This can make the prospect of starting over in a new life as a single person much more challenging if you have even fewer resources.  Your lack of knowledge and hopes of saving yourself a few thousand dollars on an attorney could wind up costing you tens of thousands of dollars.

That same lack of knowledge of the law can also be a detriment to you if you have to go to court.  Courtrooms are operated using a complicated set of rules and procedures that attorneys often spend years learning and studying.  If you are representing yourself, you are held to the same standard as an attorney and you must know all of these rules inside and out.  Additionally, you are responsible for knowing and understanding all of the substantive law that applies to your case and whether an argument or motion you file is considered frivolous or without foundation.  If your lack of knowledge or procedure results in unnecessary litigation or your pleadings are deemed baseless or harassing you could wind up owing the opposing party’s attorney fees.  At a minimum, a skilled attorney on the opposing side will most likely be able to prevent you from presenting all of the evidence you want the judge to review and otherwise put you at a tremendous disadvantage.

The final concern is that you will let your emotions take over.  An attorney’s job is to look at your case, the facts and the law objectively and advise you as to the best course of action.  When you are representing yourself, there is a real fear that emotions such as anger, hurt, the desire for revenge will take over and cloud your judgment.  This can cause you to make some very, very stupid mistakes causing you to act like a hurt and angry spouse instead of a rational attorney.  Settlement negotiations wind up going nowhere, which results in you having to go before the judge, where you again let your emotions get out of control and you wind up with an even worse result.

There is a reason that the old adage “he who acts as his own attorney has a fool for a client” is an old adage.  It is just as correct today as when it was first uttered probably hundreds of years ago.  Do yourself a favor and hire a lawyer.

Photo courtesy of Pat Loika (cropped for space)

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

Is My Spouse Spying On Me?

Is My Spouse Spying On Me?

Probably.  If you are in the middle of a divorce or custody case, you should at least assume you are being watched to prevent you from doing anything you would not later want used against you in court.  What about actual spying?  The fact is, it happens all the time in these cases.  You may feel like it is tinfoil hat type stuff reserved for people with paranoia, but over the years I have seen this happen over and over again.

In one particularly hostile case, we hired a private investigator to inspect a client’s house.  He found enough stuff to equip James Bond.  There were cameras hidden in the house, taps on the phone lines and even a recorder hidden underneath her house.  The husband, who was living a few miles away at his mothers, would go over to the house when he knew she was gone and retrieve the tapes from under the house.  It was crazy.

In another case the husband “just happened” to show up at the same place as his wife.  He would even sometimes send her text messages that obviously showed he knew where she was.  This was unnerving to say the least.  It turns out he had a tracker on her car as well as tracking software on her phone.

So how do you know if your spouse is spying on you?

  • The first thing is assume that your spouse is spying and behave accordingly.
  • Watch out for strange changes in behavior like “coincidentally” being at the same place you are.
  • Listen for clues in texts and conversations that your spouse has been watching you.  People often are not that smart and many times tell on themselves.
  • Does your phone or computer start acting strange?  Is it suddenly running slower or do there appear to be new programs that you do not recognize?
  • Does the home phone make an odd buzzing or clicking noise?
  • Has your spouse suddenly started buying things for the house?  Cameras and microphones can be hid in numerous places, e.g. new furniture, knick-knacks, picture frames, etc.  I knew a private investigator who carried a recorder that was built into a pen to record conversations.
  • Do you share an iTunes account?  If so, you can track anyone else who shares that account with the Find My iPhone App.  There are similar methods with Android phones and there are other apps specifically designed to track people that can be surreptitiously installed on someone’s phone.

So what do you do if you think your spouse is spying on you?  It usually involves hiring someone to check things out.  Often a private investigator or other security consultant can inspect a home or car for bugs or other electronic devices.  A computer expert can scan your computer and hand-held devices for malicious software.  Also check the credit card bills and bank statements for unusual purchases.  Most of these types of devices are bought off of various websites or even Amazon.com.  The important thing is that if you suspect it is happening, do not ignore it.  Talk with your attorney and make a plan for it.  Remember, just because you are paranoid does not mean they are not following you.

Photo courtesy of Mike Mozart