The Diavorce Solutionist

Are there Mother States in Child Custody

A lot of people are under the impression that some states are “mother states” or states that prefer mothers over fathers in custody matters.  This point of view infers that there are also “father states” where fathers are favored. These terms really annoy me because there are way too many factors that go into a custody determination, for either Moms or Dads to hang their hat on how the case will turn out.

Constitutional Safeguard vs. Having Father or Mother States

So way before all of the female liberation movement and such, women staying home to take care of the family was a “thing”.  Not that it is not now, but before the 1970s, it was much more widespread.  As a result, if there was a custody dispute, women were much more likely to get custody because of their role as the primary caretaker. At the same time, there were no challenges to the Constitutionality of laws that were gender-biased or courts that imposed gender bias on families.

However, today most father and mother states have custody laws that do not explicitly favor one over the other.  If they did, they would be challenged on the basis of sexual discrimination. Laws that explicitly discriminate against any gender are a violation of the Fourteenth Amendment of the US Constitution.  This, however, does not mean that some states’ laws are not discriminatory, it just means that they are indirect with it. So what they typically do is to lay out the criteria or pretexts that are “easier” to satisfy for one gender over the other.  For example, if one of the state’s primary best interest factors lists the availability of one parent to stay home and care for the child, this can certainly be viewed as discriminatory against fathers.

The Neutrality of the “Best Interests of the Child” Standard

Every father and mother states has its own set of factors that makes up what it considers the “best interests of the child custody”. The best interests of the child’s overall objective are to take a neutral position with respect to which parent should obtain custody.  It looks to which parent would provide for the child’s mental, intellectual, physical, and emotional well-being.  And although some father and mother states’ have factors that are partial to either parent, the underlying basis focuses on what’s best for the child.

Best Interests of the Child Custody Each State

States that do not have specific factors leave room for courts to interpret them the way they see fit.  This means that they have more latitude in how they consider which facts are more pertinent to meet the objective of the best interests of the child.  In these particular instances, they are able to favor one parent over the other.  So from the litigant’s perspective, it can appear to be a father or mother state.

This can be a very dangerous proposition, though, because either parent cannot focus on being the most “fit” parent because of their assumption.  The belief that you have the upper hand may actually cause you to be “lose” custody.

 Joint Custody as the Presumption

Some states have a presumption of joint custody being in the child’s best interests.  This negates the whole idea of mothers or fathers getting a favor, particularly in such father or mother states. The presumption of joint custody being the best route for the children puts the burden on either parent to make a case otherwise.  So, if the mother wants sole custody, while the father is fine with joint custody, the mother has the burden to overcome the presumption.  She must do this by showing that joint custody is not in alignment with the child’s well-being. She must prove that sole custody is better to meet the child’s emotional, intellectual and physical needs more than joint custody would.

Joint custody neutralizes the idea that either parent has an advantage over the other, and that’s exactly the legislature’s intention.

In Conclusion

The best way to prepare for a custody case is to do all the necessary research into your jurisdiction’s way of ruling.  However, this does not mean to presume anything will go in your favor based on facts that have nothing to do with the best interests standard.  Be prepared for the unexpected particularly where someone tells you that you’re in a “mother” or “father” state.

If you wish to discuss your options as a pro se (self-represented) party, please feel free to visit here.  If you are interested in our unique Pro Se Family Court Membership program, please find out more here. 

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Child Custody Home Inspection and its Use Cases

Child Custody Home Inspection: In child custody cases, the courts will have the home of each parent (or party seeking custody) inspected by the appropriate agency. Usually, the office of Child Protective Service (CPS) will be responsible for conducting the home inspection and reporting back to the court on it. The purpose of these inspections is to ensure that the home environment is safe and suitable for the child(ren) to spend any considerable amount of time there.

What is a Child Custody Home Inspection?

Depending on your particular jurisdiction, the term used may be “home study”, “home inspection”, “social study”, home evaluation” and so on. The overall objective is the same no matter the jurisdiction or the term used. The objective is to see the home environment and the child with each parent in that environment to see if the custody best interest’s standard factors are being met. Home inspections are different from custody evaluations. Custody evaluations are typically conducted by a mental health expert/professional. Home inspections, on the other hand, are usually done by social workers, child protection professionals and the like. Some custody evaluations include a home inspection component so the mental health professional may in fact have the interviews done in the home to cover both, however.

Best Interest of the Child Custody in Each State

How You Can Use the Inspection to Your Advantage

Although a home visit by CPS is meant to be objective, as a parent you could (and should) use the opportunity to present your circumstances in the best possible way to help your case. Be careful of course as you do not want to be too obvious that you are trying to unduly influence the worker. Be cordial and welcoming, for example but do not overdo it. Show the worker your child(ren)’s favorite space, activity or item. Schedule the appointment at a time when you and your child(ren) are engaged in an activity that you both enjoy. Be sure that the space in clean; that you have adequate food; that safety measures are in place and that no one who does not live in the home is not present at the time.
Show the worker how you encourage learning; how you discipline; nurture their development; support them emotionally and foster a relationship with the other parent. You can ask the worker questions. You can offer to provide evidence of your being “fit” and/or of the other parent being “unfit”. However, the way you present anything must not come across as negative toward the other parent so be mindful.

Use this opportunity to give the worker what he/she needs in the event they are called a witness in your case. But again, be careful because it can work both ways you must be mindful of what you say and how you say it in custody cases. Focus on the best interests of your child(ren) no matter what. If you do not know what that is, ask before the worker shows up to your home.

What You Say In Family Court Matters

The Weight Given to Reports in Child Custody Home Inspection

The court defers to home inspection reports significantly.  The court will rarely find that these reports (the worker’s account of what he/she saw) lack credibility. If there are specific facts the court wants the worker to focus on, they might ask them to do a supplemental or follow up visit.  In addition, either party can request a follow up visit if they believe that something important was left out or overlooked.  The guardian ad litem (or child’s attorney, advocate) can also point out omissions in the report and request another visit.

If either party objects to what is in the report there is recourse. They the opportunity will more than likely must “impeach” the worker that conducted the inspection.  If the objection is to something someone else said, then the party must impeach that individual. Challenging the truth of what someone else said to the worker may be considered “hearsay”.  These third-person statements are subject to being precluded under hearsay evidence rules.

The worker that does the report is human too, they make mistakes.  Although they are given considerable deference, you must voice your concern with their method, their facts, etc. if you have any.

In Conclusion

Home studies, or whatever they are referred to in your jurisdiction, are almost inevitable in child custody cases.  No need to dread them, to avoid them or try to manipulate them in any way.   You can use them to your advantage as long as you are prepared and informed on how to do that.

Need help in handling your Family Court case on your own? 

We have services that are specifically geared toward helping self-represented litigants like you understand the common mistakes that lead to the most disappointing outcomes. To find out more about our services, visit us at WWW.THEDIVORCESOLUTIONIST.COM and join our Facebook community HERE to get some helpful advice and some FREEBIES.  Listen to our latest Podcast episode here.

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Property Division in Divorce

Property Division in Divorce

One of the major issues that often comes up in divorce is splitting property or assets. Marriage is usually as much about economics as it is about emotion so how property is divvied up is key. Consequently, parties typically pursue their entitled interests in assets and/or finances as part of the divorce. How assets or property division in divorce when they are distributed and what each party gets are all important where the parties accumulated finances and/or personal or real property.

Part 1 – Family Court Frequently Asked Questions

The Economics of Marriage

One of the basic principles of marriage is that the union would improve the economic status of the parties, and the family. Traditionally, the wife was a homemaker while the husband was employed outside of the home. This arrangement did not necessarily increase the couple’s financial status but often it afforded the parties the opportunity to establish a reputable status. Since the late 70s, however, women working outside of the home while their husband worked became more acceptable. Financial success was the objective in most cases, even though for some it was a matter of necessity.

On the other hand, women choosing to stay home to raise a family was still a preference for many. As a result, many of these women were unable to accumulate any financial security on their own since they did not earn an income. When they divorced, they were left in a much worse financial state than when they married. So, the property division laws started to develop in various states to address this.

The Economics of Divorce

It was not until the early to mid-1980s that states started to see marriage as an economic partnership. Society finally started to accept the idea that marriage was as much about economic success as it was emotional. As a result, state legislators started to enact laws that addressed how financial and property accumulation during marriage should be split upon divorce.

First, property must be identified. Property acquired during marriage needs to be ascertained to ensure fairness.
Next, estimating time of acquisition of the property is important. Property acquired before marriage is usually considered separate property. Separate property (property acquired before marriage, by inheritance or gifts) is often excluded from division in divorce. (Although there are instances where separate property may be subject to distribution based on your state’s laws.) And last, a clear understanding of how your state splits assets determines the final award.

Part 2 – Family Law Frequently Asked Questions

Property Division Laws

States use one of two principles with respect to property division, either community property or equitable distribution.

Community property states are Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. These states laws indicate that property acquired by either spouse during the span of the marriage is considered marital property and subject to be divided equally. (This may not apply to separate property or property either party possessed before the marriage.) Each state may have exceptions what they consider marital, how it is to be split and so on.

Equitable Distribution states are the other 41 states. The equitable distribution states are of the belief that marital assets are to be divided “equitably” or fairly, which is not necessarily equally. In these states the parties may receive a percentage of the overall value of marital property as opposed to actual splitting down the middle. In addition, the parties can wind up with a variety of assets and liabilities as property division in equitable distribution states.

Scenarios for Property Division

A. Wife inherits a farm ranch a year before she marries Husband. The parties move onto the property after they wed. Husband works on the farm and increases its value over the course of their 14-year marriage. In the divorce he asks for half of the value of the property based on his contributions. In a community property state, he would probably not be entitled to anything. But in an equitable distribution state, he might be entitled to some percentage of the increased value that accumulated during the 14 years.

B. Husband receives a $120,000 gift from his parents during marriage to Wife. Upon divorce, Wife seeks to have this gift included in the property division part of the case. In either community property or equitable distribution, she would not be entitled to any portion of the money. However, if she contends that the money was meant as a gift to both, then she has a chance to prevail.

C. Take Scenario B, Husband deposits the cash into the couples’ joint account. In an equitable distribution state, this is considered “comingled” assets and subjects the money to property division.

D. Take Scenario B, Husband buys a vacation home that has both parties’ names on the deed. Again, this is considered “comingled” and subjects the property to division.

In Conclusion

It is important to understand the consequences of divorce upon financial success or property acquisition. Not that you should have these thoughts before marriage, although there is nothing wrong with this thinking that is what prenuptials are for. But keeping these things in mind before divorce can help you prepare better. In addition, for purposed of negotiating having some insight on property division is extremely helpful.

If you wish to discuss your divorce and how I can help please feel free to schedule a free consultation Consultation

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Parent Education in Divorce or Custody Matters

Parent Education
Parent Education

I’m a big advocate for parents improving their knowledge, skills, aptitude to be the best parent they can be. Parent education comes in various forms and numerous methods. Some are much more advanced than others, but it doesn’t hurt to participate in the basic ones.

What is Parent Education?

Parent education is the training, informing, or preparing parents for the challenges of raising children. Although parent’s education is available to any parent at any point in their parenting journey, they don’t typically seek help until they are embroiled in a child custody battle.

Parent education can help parents learn to communicate more effectively; use positivity more often; discipline without harshness and so on. Parenting education can address everything from emotional/behavioral techniques to financial skills, they vary.

Parent education can be delivered in the form of in-person classes, live stream workshops, recorded webinars, even self-study programs. They vary in their duration as well, some are several weeks while others can be as long as three months. (Read more here on the different types of parents education programs.)

Divorce Therapy and its Implications

Parent Education and Divorce or Custody

In many states, the courts require that parents participate in parent education programs when a divorce is filed or a Custody proceeding commenced. Approximately seventeen states have mandatory parent’s education when divorced is filed, whether contested or uncontested. (NJ, for example, has enacted the Parents Education Act, N.J.S.A. 2A:34-12.1 to 2A:34-12.8).

The courts have an objective in mandating or encouraging participation in parents education. They want to minimize conflict amongst parents and to ensure that the children receive adequate support from the parents during the very emotional process.

From the court’s perspective, there are advantages to the parents and the children of divorce where parenting education is incorporated. For the parents, they learn to resolve conflict on their own and not involve the courts. In addition, parents get a better understanding of their respective obligation to provide for their child(ren)’s financial needs. As for the children, they usually do better academically, transition to their new life easier, and behave appropriately in their environments. The court has a vested interest in children dealing with the divorce appropriately. Again, it keeps the parents out of court for Contempt or Modification petitions.

In some custody battles, it is advisable to parent education courses whether it’s mandatory or not.  In a case where one parent has a history of questionable discipline tactics, for instance, presenting evidence of parent education completion can allay the court’s concerns on this topic.

The Mechanics of Parent Education Programs

There is usually a fee the parents have to pay for the parent education program. The fees typically range from $25 to $100. (These fees can be waived in some instances.) Nonprofit organizations and associations are most often the providers of these programs. Each state has its process of accepting or approving the parents education programs.  However, most of them have clear requirements that the programs must meet to meet the standards for approval.

There can be consequences for either parent’s failure to participate or complete the parent’s education. Of course, where they are mandatory the consequences are harsher. Failure to adhere to the court’s requirements, depending on the reason, constitutes violating a court order. Sanctions for such violations range from a change in parenting time to delaying the final judgment or order of divorce.

In conclusion

Parents education resources are not hard to come by. In all instances where parents feel they can benefit from the insight they provide they should be sought out. The advantages of the programs far outweigh the costs in almost every case.

If you wish to speak to me about your custody or divorce please feel free to contact me for a FREE 15 min consultation.

Need help in handling your Family Court case on your own?

We have services that are specifically geared toward helping self-represented litigants like you understand the common mistakes that lead to the most disappointing outcomes. To find out more about our services, visit us at WWW.THEDIVORCESOLUTIONIST.COM and join our Facebook community HERE to get some helpful advice and some FREEBIES.  Listen to our latest Podcast episode here.

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Divorce Therapy and its Implications

Divorce therapy
Divorce therapy

Are you looking for divorce therapy?

May is Mental Health Awareness Month.

Therapy is something often recommended in divorce, and certainly custody matters. Therapy can take place in many forms and settings, but the focus should be on mental and emotional support. Whether you go to divorce therapy, family therapy, co-parenting therapy or individual therapy (for your and/or your children) it helps to have professional support along the way. (Divorce coaches are another option many are using to help get through the emotional and mental strife that accompanies divorce.)

Child Custody & Abandonment

Types of Therapy in Divorce

There are stages of grief in divorce that include anger, sadness, guilt, fear, depression and shock/disbelief.  (Read more about divorce grief here.)

Having an experienced professional can help you stay focused on the important issues while managing your emotions.  Furthermore, you’re more likely to accomplish your goals if you have someone to help you to see things for what they really are. A lot of truths about yourself are likely to be discovered in therapy.

Individual therapy is usually the route divorcing parties opt for. Individual therapy allows you address pre-existing mental health issues adequately.  Additionally, it allows you to concentrate on your own feelings without feeling obligated to consider your spouse’s needs. To many this is much more beneficial than trying to candidly  discuss feelings while the source of those feelings is present.

Couples therapy is another option in divorce. This route is more laser focused than individual therapy. However, couples divorce therapy can lead to individual therapy if the parties choose. Couples therapy entails both parties talking about and working through their concerns with respect to their divorce. Child custody, visitation, property distribution, as well as communication, disagreements, etc. are all valid topics to discuss here.

Both parties have the opportunity to express their feelings openly to help them understand what happened, to prepare them for post divorce and to help the children get through it successfully.

Family therapy provides a unique opportunity for intervention for the entire family.  Family therapy can take place during or after divorce/custody. It allows the children to express their own feelings and concerns about the break up of the family. Children usually have their own range of emotions to deal with, including guilt, fear, etc. and can benefit from dealing with them in a family therapy setting.

NOTE: This article is limited to therapy in divorce actions, not specifically for custody cases. The topic of therapy and custody will be explored in the upcoming weeks.

The Implications of Therapy in Divorce Court

Although therapy has its advantages, the courts’ perspective on therapy varies greatly. Therapy can a help or hindrance as far as the court is concerned.

Procedurally, having the parties actively involved in mental health services can place a burden on the court’s agenda. Most courts give their cases a time allotment for it to remain on its active calendar. Depending on the depth of Therapy services the parties receive, the case can drag on longer. Also, depending on what the parties are treated for, their ability to comprehend everything that is going on can be jeopardized.

Substantively, the parties receiving therapeutic services  may affect the court’s decision with respect to fault (or grounds), alimony (employability) and certainly custody. (Therapy and custody will be discussed in the upcoming weeks.) With respect to fault, if you are not in a no-fault state (most are no-fault) and use emotional distress or mental cruelty as the basis for Divorce participating in therapy can substantiate that. As for alimony, most states have factors that include the emotional &/or physical health to determine the amount and duration. Same with property distribution (especially in equitable distribution states) a factor that many courts take into consideration is the parties’ wellbeing.

Either way, these things should not deter you from getting help. If you are having trouble working through your emotions, or a hard time understanding what’s going on or can’t seem to focus on your objectives then you should certainly work with a mental health professional.

If you are interested in learning more about how I can help you prepare or defend your divorce or custody case for success in Family Court, feel free to contact me to schedule a FREE Consultation. 

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Surrender vs. Submission in Divorce Negotiations

Divorce Negotiations
Divorce Settlement

In divorce there is often a lot of pressure to settle cases instead of proceeding to trial. Judges, lawyers and even parties persist in attempting to get cases resolved in divorce negotiations.  Approximately 5-10%, of divorce cases make it to trial. (The proportion of custody cases is higher). The remainder of the cases are settled amongt the parties, attorneys, through mediation or at settlement conference with thr judge’s influence.

Parent Education in Divorce or Custody Matters

Divorce Negotiations 101

1. Analyze your position. This means understanding that your.

Best source of power is your ability and willingness to walk away and take another deal.

2. Know the process.

Try to carefully negotiate how you will negotiate in advance. Discussing these issues will help keep the focus on the important issues.

3. Listen actively.

Once you start discussing substantive jssues, resist the urge to prepare in your head the next thing you’re going to say next while your counterpart is talking. Instead, listen carefully to her arguments, then paraphrase what you believe she said to check your understanding. Acknowledge the other person’s feelings, emotions and thoughts.

4. Prepare your questions in advance.

You can gain more by asking lots of apprpropritate question. Try to avoid asking “yes or no” questions and leading questions. Instead, craft neutral questions that encourage detailed responses.

5. Be mindful of valuable tradeoffs.

Try to identify issues that your opposing party cares deeply about but that you value less. Then propose making a concession on that issue in exchange for a concession on the issue you value highly.

6. Stay away from anchoring bias.

Tons of research shows that the first things mentioned in a negotiation, has a powerful influence on the negotiation that follows. You can avoid being the victim of the anchoring bias by making the first offer and trying to anchor talks in your preferred direction. If the other side does anchor first, keep your desires at the back of your mind.

There are other valuable tips that help making negotiating settlement more effective. These are just a few that will make sure you are not cheated out of what is fair and equitable.

Waiving vs Settling

In divorce negotiations one key thing to keep in mind is to not give up more than you need to. In other words, it is important to maintain as much balance in what you forego and what you persist on.  There is a difference in surrender and submission in negotiations, the main one being you feel in the end.

In negotiations, surrender is when one gives a concession without receiving a corresponding benefit . Negotiation should be a two-way street, both sides giving up something while receiving something at the same time. When one surrenders they usually give up their power or authority to someone else. Oftentimes this power they give up is not voluntarily, but by some form of force.. Because of this giving up,, surrender can leave you feeling defeated, cheated and/or devalued. Even when you think you’re doing the “right” thing by avoiding worthwhile negotiations, giving in without a fight can render negative results.

Submission, on the other hand, is not about giving up power, authority or control. Submission is making an informed decision to give in. In negotiations when a party submits, it is with a knowing and understanding of all involved. The stakes, the benefits, the process etc. are all taken into consideration when one submits. The submitting party usually feels much more optimistic than one who surrenders because of the knowledge and awareness.

In conclusion

You should choose wisely in all divorce settlement negotiations. No one can make the decision for you but it can certainly help to have some skilled players to help you in the process.  If you follow the tips for negotiating you are more likely to gain valuable insight on what’s most important for you.

If you would like coaching through your divorce settlement please feel free to schedule a FREE consultation today. 

Need help in handling your Family Court case on your own? 

We have services that are specifically geared toward helping self-represented litigants like you understand the common mistakes that lead to the most disappointing outcomes. To find out more about our services, visit us at WWW.THEDIVORCESOLUTIONIST.COM and join our Facebook community HERE to get some helpful advice and some FREEBIES.  Listen to our latest Podcast episode here.

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Where Child Support & Joint Custody Intersect

child support

Child support and child custody intercepts at times, but that depends on several factors. In most states Child support is determined by statutory guidelines imposed by that state. Those guidelines usually takes into consideration parents’ income (either one or both), number of children, previous financial orders and some excepted expenses (like employment deductions). Some states also consider the custody arrangement.

Best Interests of the Child Custody Each State

The Purpose of Child Support

Child support is intended to provide financial support for children. That generally means that each parent contributes to providing all the basic needs of their child(ren), including medical and educational too.  Although the Child Support Standards Act is the federal law governing child support, each state has its own law with respect to parents financial obligations to their children. Most states statutes base their guidelines on cost of living among other things.

There are 3 models each state chooses from, which are as follows:

Income Shares Model– this is based on the premise that children should receive the same proportion of their parents income that they would have received if the parents loved together. Most states, 41 to be exact, use this model. (Get more details here on each states guidelines.)

Percentage of Income Model– sets out a percentage of ONLY the noncustodial parent’s income. The custodial parents income is NOT taken into consideration. There is the Flat Percentage and the Varying Percentage variations. Four states use the former, while two states use the latter.

Melson Formula-a more complicated (and rarely used) version of the Income Shares Model. This takes into account each parents needs as well as the children’s. Only 3 states use this one. (See Delaware’s child support law.)

Child Custody Impact on Child Support

There is a difference in joint custody, shared custody and 50/50 custody. (Read here for in depth discussion from one of my previous blog posts.) In cases where either parent has sole or primary custody the noncustodial parent pays child support pursuant to their state statute. However, with respect to shared or 50/50 custody, where the child(ren) spend equal time with both parents obligation varies based on which Model the state uses.

With respect to Income Shares Model, the parents combined incomes and the number of children results in a figure. That figure is then divided proportionately based on the amount of time the children lives with each parent.

In the Percentage of Income Model, custody and support usually takes a different approach. Typically, only the noncustodial parent’s income is used to calculate support obligation. However, in shared  or 50/50 custody arrangements, the custodial parent’s income is a factor. The custodial parent’s income is compared to the noncustodial’s income to determine which is the highest. The parent with the highest income pays child support.

Some states’ statutes allows for the court to use discretion in rendering a final support order. In these instances, shared or 50/50, or any variation of joint physical custody, can justify the court coming up with an amount different from the statutory calculation.

In conclusion

 You should definitely familiarize yourself with your state’s child support and child custody laws before attempting to negotiate any settlements.

If you would like to discuss the options I have to help you prepare your case for settlement, mediation or trial, please feel free to set up a free consultation. Visit my Home page for details about the services I offer.

Need help in handling your Family Court case on your own?

We have services that are specifically geared toward helping self-represented litigants like you understand the common mistakes that lead to the most disappointing outcomes. To find out more about our services, visit us at WWW.THEDIVORCESOLUTIONIST.COM and join our Facebook community HERE to get some helpful advice and some FREEBIES.  Listen to our latest Podcast episode here.

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Hidden Assets in Divorce: Is it Worth It

Hidden Assets in Divorce

It is not unheard of to discover that parties in a divorce lied about some important things.  Divorce brings out the worse in even the most decent human beings. It’s almost as if the moment divorce discussions start, that the parties anticipate games of deception, defamation and trickery to ensue. Wives accuse husbands of hiding assets, while husbands accuse wives of making up allegations of abuse.  Either way, there’s almost always a high level of pointing the finger and mistrust of each other and enjoy the hidden assets in divorce.

When Legal Separation is the Better Route

The Obligation to Disclose

All civil actions, including divorce, have what is called the “discovery phase”. Discovery is typically part of pre-trial stage of a case. It gives each side the opportunity to gather and acquire information to prepare for asserting or defending it’s position in trial. In addition, it helps to “level the playing field” so that each side has pertinent information to better negotiate settlement. During this phase the parties can request and exchange material information that has to do with the finances, assets, health and personal etc.  Each party has an obligation to respond and has the right to demand answers to questions, to produce documents, to admit certain things and to be deposed.  Failure to disclose can lead to punitive consequences in some cases.

Hiding Assets in Divorce vs. Refusing to Disclose

Some people think that merely refusing to disclose (or respond to discovery) is within their right.  Even though there are some limits inherent in discovery demands, flat out refusal to respond can be detrimental.   If a party believes that the information requested via discovery goes beyond the scope of the issues in the case, there is an appropriate remedy.   The way to refuse is to object based on the procedural rules imposed by the jurisdiction.   Each jurisdiction have a set of evidentiary rules that sets forth the grounds to object and the methods to do so.

The hidden assets in divorce, is entirely different. There is no “proper” or “acceptable” grounds for intentionally hiding property.  If a party really believes that they are within their right to omit information concerning property, again they must object on evidentiary grounds.  There is no justification for intentionally deceiving the other side, and essentially the court, by not disclosing vital information.

The Ramifications of Hiding Assets

Objections to discovery requests are not surefire, they can be disputed.  In the event that objections are dispute, the judge usually makes the final decision either way.  Refusing to turn over information with the intent to deceive the other side though, has a different set of consequences.  As I stated above, there is an obligation to provide information, share documents or show up for depositions in all divorce proceedings.  Being honest with the discovery that is provided is also a must.  Although there are consequences for failure to disclose, the sanctions for lying (hiding assets is in fact lying) can be catastrophic.

Perjury, unfavorable court decision in custody or property distribution and/or monetary sanctions are all possible consequences for hiding assets.

If you think the other side is intentionally misrepresenting their net worth, it is your duty to prove this.  Methods like subpoenas, depositions, asset searches, investigations, etc. are all useful tactics to reveal this to the court.

If you wish to schedule a FREE 15 min. consultation, please feel free to schedule one here.

15 Minute Free Consultation

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Child Custody & Abandonment

Child Custody & Abandonment

In child custody & abandonment situations (and child support too) biological parents can have their rights terminated by court. Even though the right to being a parent in the USA is a fundamental one , pursuant to the Fourteenth Amendment, states have the power to infringe on those rights. Of course Due Process, also afforded by the Fourteenth Amendment, applies making it a requirement that laws & procedures are fair.

Where Child Support & Custody Intersect

What is Child Custody & Abandonment?

Abandonment, with respect to custody, is when a parent voluntarily fails to have any sort of contact with their child and fails to provide financially for the child for a specified period. It is NOT parental alienation, which is willful interference with the non- custodial parent having contact with their child.

Abandonment can only occur when the biological parent is aware of the child being born. So a parent who seeks Abandonment where the other parent is unaware of the child even exists will have to first prove otherwise. In some states, the period of abandonment only starts from the moment the parent is made aware of the child’s existence.

Proving Abandonment

 Proving abandonment is not easy feat, not by a stretch. The courts are not sweet on the idea of depriving parents of such a basic right under most circumstances. The burden is on the parent seeking termination to prove that all the elements are met upon a preponderance of evidence.

Those elements include:

  1. That the non custodial had noticed of the child; and
  2. That they willfully chose to withhold contact; and
  3. They failed to provide any financial support; and
  4. Set period of continuous non-contact & support; and
  5. Termination is in the best interests of the child; and
  6. That a stepparent is ready to adopt the child.

These requirements vary from state to state.

Objections or Defenses to Abandonment                                          

Non-custodial parents may have some valid reasons for being absent or not providing for their child. As I stated above, instances where the custodial parent intentionally interferes with contact is one of them.  There are others, like lack of notice of the petition, having no knowledge of the child having been born or if he can prove that termination would not be in the child’s best interests.

A child born out of wedlock, where the father never acknowledged paternity or where paternity was never established, may also be a defense. Most states require that paternity be established first. If the father’s location is unknown, the court may require that the mother incorporate “due diligence” methods  in locating him.

Also, if there is not a “fit” stepparent ready to adopt the child, then chances are the court will not order the termination.

A Finding of Abandonment 

If all of the elements are met and the court believes that termination is in the best interests of the child, then the biological parent no longer has obligation to support the child.  Emotional, physical and financial support are no longer the responsibility of the terminated parent.  However, there are some exceptions with respect to the child’s rights to that parent’s entitlements, property, estate, etc.  In some states, adopted children may have legal rights to the possessions of their biological parent in the event of that parent’s death.

It is advisable to discuss, in depth, the legal ramifications of termination with all parties involved.

In Conclusion

Child abandonment is a very complicated issue and requires the assistance of an experienced attorney.

If you need assistance with your child custody matter, please feel free to contact me for a FREE 15 min. consultation.

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“Good” and “Not so Good” Co-parenting is Still Coparenting

Co-parenting

Co-parenting can go as smoothly as the parties allow it to.  It doesn’t have to be complicated or have a lot of conflict. However, it does not mean that when parties disagree on issues that it is unsuccessful.  Co-parenting simply means that parents communicate effectively and collaborate on important decisions regarding their child(ren).  Disagreements, confusion, etc. are not necessarily nonexistent when parents co-parent successfully. Judges understand the nuances involved when faced with the challenges of coming up with a workable co-parenting agreement.

Long-Distance Co-Parenting

Signs of “Good” of Co-parenting

There is an underlying concept of what “good” or “favorable” co-parenting looks like and it’s based on several principles.  The principles center around maintaining the best environment for the mental, emotional, intellectual and physical development of the child(ren).  To ensure that these principles are given the utmost consideration there are some vital tips parents should keep in mind.

  1. Maintain clear boundaries. This means that each parent should keep in mind the things they have control over and those they do not.  Know your limits and have reasonable expectations.
  2. Set & keep a predetermined schedule. The more precise and exact the time, location, etc. the parenting schedule is the better it is for all involved.
  3. Be flexible. Setting a precise schedule does not mean that you need to firm and uncooperative when it comes to emergencies or unexpected/unforeseen events.  Life is full of these sort of things so it is important to remember that when co-parenting.
  4. Extend courtesies to each other. You don’t have to love each other anymore but treat the other parent the way you want them to treat you.  (In my Michelle Obama voice “they go low, you go high”.)
  5. Keep the kids out of it. This means the child(ren) should not be relaying messages, made to choose sides or witness any negativity about either parent.
  6. Communicate, communicate, communicate. Talking, texting, emailing, using an app, etc. whatever means or method you choose you should definitely communicate.  You don’t have to respond, especially if you’re tempted to respond negatively, but you should definitely include the other parent in the important things.
  7. Attend events without tension. You can share events, occasions, etc. without conflict.  (Of course if there’s a history of any sort of violence this may not be the best thing.) You can go in shifts, agree to stay in a certain area or similar, but you don’t have to anticipate tension when attending an event at the same time.
  8. Respect each parent’s role. Each parent has a role in their child’s life.  Never mind what you think of it, how important it is or how meaningful it is, it exists.  You should respect the other parent’s role no matter what.
  9. Check yourself. You have an obligation and a duty to keep yourself in line when it comes to co-parenting.  If you each do this then the other does not need to.
  10. It’s about your child(ren), not either of you. This is self-explanatory.

“Not So Good” but Effective Coparenting

As I stated above, effective co-parenting can still exist despite all of the elements mentioned.  Of course, studies have shown that low conflict co-parenting rears emotionally and mentally stable children.  However, children are not doomed because they were not raised by “ideal” co-parents.

I want to highlight the fact that I am not referring to “parallel parenting” where each parent don’t communicate and raise their children in two separate households with hardly any interaction with each other.  That is very different from the “not so good” co-parenting I am referring to.   That being said, let’s explore co-parenting situations where all the elements I discussed are not present.

  1. You won’t agree on EVERYTHING. And it’s perfectly ok.  How many times did you actually agree when you were together?
  2. Things happen. It’s life, surprises come up that should not turn your entire world upside down if you have to change things around.
  3. Biting the bullet, so to speak, won’t kill you. Choose your battles wisely, some things are best left unsaid or not responded to.  There will times when the other parent tries to ruffle your feathers, be the bigger person.
  4. Keeping a record of interactions is wise. It is not problematic to keep some sort of diary/journal of all interactions like pickup and/or drop off just to maintain some organization.
  5. Short conversations or exchanges are not antagonistic. Being civil sometimes means keeping the conversations to a few words or phrases and that’s it.
  6. Different parenting styles is acceptable. No need to parent the same way, in fact, it’s more beneficial if you don’t.  You should have the same intentions but don’t have be identical in your means of acquiring them.
  7. You are are not obligated to feel comfortable being in their presence. It is not wrong if you opt out of attending certain events because you don’t want to be in the same room.
  8. Sharing is not always caring. Keeping some things, that are not important, between you and your child and/or your new significant other is not detrimental.
  9. Having a new significant other is not a bad thing. Many people think dating or having a live-in paramour looks bad to the other parent and/or the court.  This is not necessarily the case as long as they don’t pose a risk to the child(ren).
  10. Your kids having issues with either or both of you it totally fine. Kids can be manipulative and controlling, so they will push your buttons this should not affect your co-parenting.

In conclusion

Co-parenting may look different for each family, this is totally acceptable.  Every single family has it’s own set of issues, expectations, etc.  So if your co-parenting relationship seems unique because of any of these reasons it’s ok. Try to focus on your overall objective, that is to ensure that your child(ren)’s well-being is paramount.

If you would like to speak with me about the services I provide please feel free to schedule a FREE 15 min. consultation here.

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