Child Custody, General Divorce

Some tips for testifying in your child custody case

Testifying at your child custody trial can be a tremendously stressful thing. I know, because I’ve been on both sides of that. I have examined countless witnesses on the stand, and I’ve been a witness, too. Here are a few tips to maximize your effectiveness on the stand and make it as comfortable and productive an experience as possible:

  1. Take some water with you. One of the body’s responses to extreme stress is that the mouth can become dry. It can get to a level where it makes it difficult to speak, so if water is available to you at your table, take some to the witness stand with you. I’m of the opinion that it’s better to have it with you than to have to stop and ask for it. If you’re going to be testifying for a long period, you’re probably going to need some water at some point. Trust me on this one.
    2. Prepare with your attorney. Many people do not adequately prepare with their attorney for their direct examination testimony, and that’s a big mistake. It is also true that simply memorizing the answer to every single question ahead of time is a mistake as well, because that always seems forced and disingenuous. I like to give my client’s a list of the topics that I will ask about, and highlight some important facts and details that I want to make sure gets communicated to the judge. It is also important to stay as relaxed as possible, because tension tends to affect memory in a negative way. I have found that the best way to prepare for direct examination is to practice. I sit down with my clients, or at least go through a test run on the phone, prior to trial so that they can become more comfortable with being questioned and so that I can identify any potential trouble spots in their testimony. As with most things, the more you practice, the better you will perform.
    3.  Also prepare for cross-examination. Many attorneys don’t spend enough time in this area with their clients, and if you’re facing an attorney who is skilled at cross-examination, that can be a costly mistake. Of course you can’t know ahead of time what questions you’re going to face on cross, but you can try to anticipate at least some of the “dirt” that the other attorney might use to try to trip you up. Two keys on cross-examination: 1) do not let the opposing attorney anger you and cause you to lose your temper and 2) answer ONLY the question that is asked and then stop talking. The first key is obvious: it’s a bad look if you lose your composure on the stand and say or do something out of character. If you do, it will probably negatively impact the judge’s view of you, and that is critical. You only have a short amount of time to make an impression, and you don’t want your judge to think that you’re an anger freak or unstable. The second key is very hard to do, but it is critical. The example I use with my clients is the question “Do you know what time it is?” If you are asked this question, the answer I want you to give is “yes.” And that’s it. If the attorney wants to know what time it is, he or she can ask “What time is it?” It’s a different question, so make the attorney ask it. The point is not to volunteer information. If you start rambling, you will give the opposing attorney more to attack you with, not so much with the time question, but with other questions about topics much more important to your case. Your answers should be as short as possible – yes or no if the question is one that will tolerate a yes or no answer. If your answers are short and to the point, it is likely that the opposing attorney is going to ask fewer questions, and that’s a good thing. If you ramble and give him or her ammunition to use against you, though, you could have to endure a longer cross, and that’s never fun. And remember that the opposing attorney IS going to “score some points” so to speak. By its nature, cross-examination is mostly unpleasant and can feel as if you’re being attacked. And in a sense, you are. The key is to remain calm, answer the questions and remember that YOUR attorney will get an opportunity to “clean up” any “bad” testimony after the opposing attorney has finished with his or her cross.
    4.  Don’t lean toward the microphone when you are speaking. Many people don’t realize that you don’t have to be that close to the microphone for it to pick up what you say. Most courtroom microphones are wired into some sort of digital recording device anyway, and it will pick up without your having to lean toward it. Ignore the microphone unless the judge says something to you about it, and he or she probably won’t. It’s best to assume a relaxed posture on the witness stand with your back against the chair. Speak clearly and with enough volume to be heard, but you don’t have to force it. I call the best posture “relaxed confidence.”
Separation Agreements

“Waiver of Estate” provision in a Separation Agreement

So you have decided to resolve your marital issues in a Separation Agreement.  Separation Agreements are contracts, contracts contain clauses and the clauses are negotiable and important.  You should definitely be heavily involved with the attorney drafting your Agreement, and you should ask questions until you understand the legal effect of every single clause in your Separation Agreement.  One fairly common clause in a Separation Agreement is the “Waiver of Estate” clause.  Basically, the Estate Waiver clause works like this:  you and your spouse agree that, in the event that one of you dies prior to the divorce being granted, neither one of you will inherit anything from the other’s estate.  In North Carolina, this can be an important clause, because there is a mandatory one-year separation period required before either party can file for divorce.  After filing, it generally takes about 2 months to finalize a divorce, so there can sometimes be a gap of 14 months or longer between the date of separation and the date of divorce.  14 months is a long time, and a lot can happen.  Though we don’t like to think about the possibility of death, unfortunately the possibility is real, and in the divorce context, death prior to divorce does impact the division of property. Specifically, if you die prior to your divorce being finalized, your spouse is entitled to a certain percentage of your property, whether you have a will or not.  However, if you have a clause in your Separation Agreement in which you and your spouse waive the right to take from the other’s estate, you can insulate yourself from the unwanted effects of North Carolina’s inheritance laws during the period of separation.

Child Custody

Custody Evaluations

A Custody Evaluation is an investigation by a trained medical professional, usually a psychologist, in which the professional ultimately renders an opinion to the court as to what the best child custody arrangement would be for the child(ren).

The parties to a custody case can agree that a custody evaluation will be performed, and they can agree on who will do it and how it will be paid for.  That rarely happens, though, as people who are in a custody dispute rarely get along and agree about anything.

The more common scenario is that one party or the other will file a Motion and ask the judge to order a custody evaluation.  Most judges will order that a custody evaluation will be performed and will spell out the details of who will do the evaluation and who will pay for it in the Order.

There are several important questions to consider before pursuing a custody evaluation.

First, do you understand what it is?  A custody evaluation means different things to different professionals.  It’s not a “one size fits all” thing.  The basic idea is that a professional, usually a psychologist, will interview the parents, the child(ren) and others, will look at various documents such as school records, medical records, etc. and will synthesize all of the interviews and document information into a report that is intended to be used to by a judge to help decide what is best for the kids.  As with any professional service, you need to find out some specifics before hiring the custody evaluator, such as who and how many will be interviewed, how much time the evaluator will spend on the case and how much the evaluation will cost.

Second, do you need one?  A custody evaluation, in my opinion, is the best way to “level the playing field” in a child custody case.   The fact is that mothers are far more likely to be granted primary physical custody than fathers.  It’s not really even close.  Everyone knows it, and I’ll save further comment on that issue or another article.  The reason the bias against fathers exists is not really as important for purposes of this article as the fact that it does exist.  Because statistically dads are far more likely to lose in court, dads are typically the ones who stand to benefit the most from a custody evaluation, as it offers a supposedly neutral professional opinion to the judge that is often very helpful to give the judge the “big picture” in a custody case.  The way custody litigation typically works is that mom testifies in her own favor, and her witnesses, most of whom are biased family and friends, tell the same story.  Then dad testifies in his favor, and his witnesses, most of whom are biased family and friends, tell the same story.   In the end, judges are usually left with two totally different stories from witnesses that are not very reliable because of their bias, and usually they just award custody to mom.  That’s just the way it is.   The legal reason, most of the time, is the “status quo.”  That means that the judge looks very carefully at where the kids have been living in the months leading up the trial, and usually in the Findings of Fact in a custody order, you will read something about the “status quo.”  I personally think that status quo is the number one factor in a custody case.  The fairness of that is another matter, and again, is the subject for another article.  The point is that, generally, I think custody evaluations are potentially far more helpful for fathers than for mothers because a custody evaluation is perhaps the only way to overcome an unfavorable status quo, and you should think about that and decide for yourself if hiring someone to evaluate your custody situation is a good idea.   It probably is a good idea unless you are OK with the “every other weekend, half the holidays and some of the summer” typical custody schedule that most dads get.

Third, how much do you have to spend?  Custody evaluations are like new cars, in the sense that you can order whatever features you want if you have the money.   If you choose, you can probably find an evaluator to do a “basic” evaluation where he or she interviews you and the child(ren)’s other parent, the child(ren) and maybe one or two other sources and maybe review a few documents for a ballpark fee of about $2000-$4000.  If you want the evaluator to interview you, the other parent and the children multiple times, and if you want to use  multiple collateral sources, such as teachers, doctors, ministers, and friends dating back many years, and if you want the evaluator to sort through extensive medical and school records, you can count on spending more than that.  A more extensive custody evaluation can easily approach the $7,000 to $10,000 range depending on the skill and experience of the evaluator and how much information you want the evaluator to consider.

Fourth, who is going to be your evaluator?  This question is probably the most important question in your entire case if you decide to use a custody evaluator.   It’s also not as simple as it seems.  Remember that if a judge orders the custody evaluation, you and the other parent or going to have to agree on the evaluator or the judge will pick one.   This is no easy negotiation for the attorneys, as both attorneys are fully aware that much is at stake in the selection of the evaluator.   In making the decision, I suggest that the best way to handle the selection process is to seek the advice of those who have used certain evaluators in your geographic area.   While there are likely many competent and unbiased evaluators available, there will undoubtedly be some with a bias of some sort.  Some will be “pro-mom” perhaps, or it may be that some are “pro-dad.”  You may be able to find that out from talking to people who have had experience with certain evaluators, or you may have to interview the evaluators yourself.  If you do, there are some basic questions you need to ask.   How many of these evaluations have you performed?  What is your opinion of the “home-base,” weekend visitation model?   Out of the evaluations you have performed, how many times have you recommended that mom should have primary custody?  How many times have you recommended that dad have primary custody?  How many times have you recommended a true joint custody arrangement where each parent has the child(ren) 50% of the time?  What is your background in dealing with children who are the ages of my kids?  If you feel that your spouse is trying to turn your kids against you, you might also want to ask the potential evaluator what his or her professional opinion is about Parental Alienation Syndrome and whether the evaluator has ever found that PAS exists in his/her reports.  This is only a list of some basic questions, but the answers will likely tell you whether you feel comfortable with the evaluator.  Remember, the custody evaluator’s testimony is likely to be the most important testimony of the trial, so it’s an important decision.

A good, unbiased, professional custody evaluation is a very valuable tool in custody litigation.  A custody evaluation is an investment, and the decisions about whether to utilize a custody evaluator and who you choose to conduct the evaluation will be critical in the outcome of your child custody case.  Making good choices can drastically increase your chances of obtaining what you want, and making poor choices can doom your case.

Alimony, Child Support

The “six-month” rule in the Alimony/Child Support context.

This article applies to a limited number of folks, but if it applies to you, a mistake could really hurt you financially.

Two issues that get resolved during many folks’ divorces are Child Support and Alimony.   It seems like a pretty simple thing – the Order or Agreement specifies a time period that Child Support and Alimony will be paid.

However, there is a federal tax issue lurking in the background for those folks who have kids who will turn 18 within six months of the time that Alimony payments are scheduled to end.

Internal Revenue Code (IRC), Section 71(c) provides that Alimony payments cannot be fixed as Child Support.  A subsequent IRS Temporary Regulation (Temp. Reg. §1.71-1T(c), Q-18) states that:

“To be considered as maintenance, the payments must meet two tests:

a.Single Reduction Test: Payments are not to be reduced not more than six months before or after the date the child is to attain the age of 18, 21 or the local age of majority.

b.Multiple Reduction Test: Payments are not to be reduced on two or more occasions which occur not more than one year before or after a different child of the payor spouse attains a certain age between the ages of 18 and 24, inclusive – and is the same age for each child. Temp. Reg. §1.71-1T(c), Q-18.”

In plain English, this means that if your Alimony is set to be reduced six months before or after your child turns 18, or if your Alimony payments are set to be reduced on 2 or more occasions within a year of  another of your child(ren)’s attainment of the same age between 18-24 years old, your Alimony could potentially be treated as Child Support by the IRS.

Why does this matter?

It matters because Alimony is generally tax-deductible to the payor spouse and Child Support is not.

A real world example:  You and your spouse separate on March 1,  2015, when your son is 15.  His birthday is January 25th.  You execute a Separation Agreement on May 1, 2015.  In addition to requiring you to pay Child Support, your Separation Agreement states that you will pay Alimony to your spouse for three years, ending with the April 1, 2018 payment.

Does the person paying Alimony have a potential problem with the IRS?  Yes.

The paying spouse has deducted three years’ of Alimony payments from his federal tax income.  If the IRS chooses, because his/her son turned 18 within six months of his last Alimony payment, it can deem his/her Alimony payments as Child Support under IRC Section 71(c) and add the Alimony deductions back to his/her income and make him/her pay tax, penalties and interest on that income recapture.

How could this be avoided?  Simple.  Structure the Alimony payments such that the ending date is at least 181 days before the child’s 18th birthday or 181 days after the child’s 18th birthday.   In the example above, had the payor simply paid a little less each month, but set the last payment date at August 1, 2018, the Agreement language would likely not have triggered the language in IRC Section 71(c).

It should be noted that there have been people who have gone to tax court and successfully defended their “maintenance” (Alimony) deduction even though the payments ended six months before or after his or her child turned 18, but do you really want to have to hire an attorney and spend months or years litigating when the problem is so easily preventable?

General Divorce

Four behaviors that predict divorce

4 behaviors are the most reliable predictors of divorce:

Ever been in the middle of a heated argument when suddenly the other person pulls out their phone and starts texting?

If the answer is yes, and if you find it happening constantly, we hope that person isn’t your significant other.

This behavior, known as stonewalling, is one of four reactions that John Gottman, a psychologist at the University of Washington and the founder of the Gottman Institute, has identified as a telltale sign that all is not well with a married couple.

In fact, when Gottman and University of California-Berkeley psychologist Robert Levenson lumped stonewalling together with three other behaviors — contempt, criticism, and defensiveness — and measured how often they occurred within the span of a 15-minute conversation, they found they could predict which marriages would end in divorce with striking precision.

When the psychologists added questions about things like relationship satisfaction and how many times the research subjects had thoughts about separating to the mix, they could predict which marriages would end in divorce 93% of the time.

The figure, which comes from a 14-year study of 79 couples living across the US Midwest (21 of whom divorced during the study period), was so striking it spurned the researchers to label the four behaviors “the four horsemen of the apocalypse.”

While that initial study, published in 2002, was small and focused on a specific population, a decade of research into marriage and divorce has lent further support to the idea that divorce is associated with specific negative behaviors.

One recent study of 373 newlywed couples, for example, found that couples who yelled at each other, showed contempt for each other, or shut off conversation about an issue within the first year of marriage were more likely to divorce as far as 16 years down the road.

So what do these four “apocalyptic” behaviors actually look like in a relationship?
1. Contempt

Contempt, a virulent mix of anger and disgust, is far more toxic than simple frustration or negativity. It involves seeing your partner as beneath you, rather than as an equal.

This behavior alone, says Gottman, is “the kiss of death” for a relationship.

Take an everyday argument about buying groceries, for example. When you come home and realize your significant other has picked up habanero peppers rather than bell peppers for tonight’s stir-fry dinner, do you listen while he explains that perhaps you didn’t ever tell him what type of pepper you wanted? Do you think this over, and, when you realize that maybe he’s right, do you apologize? Or do you adopt an attitude and think to yourself, What kind of an idiot doesn’t know that bell peppers are for stir-fry and habaneros are for salsa?

The reason contempt is so powerful is because it means you’ve closed yourself off to your partner’s needs and emotions.

If you constantly feel smarter than, better than, or more sensitive than your significant other, you’re not only less likely see his or her opinions as valid, but, more important, you’re far less willing to try to put yourself in his or her shoes to try to see a situation from his or her perspective.
2. Criticism

Like contempt, criticism involves turning a behavior (something your partner did) into a statement about his or her character (the type of person he or she is).

Say your partner has a nasty habit of leaving his or her used cereal bowl — calcified, uneaten cereal-and-milk remnants and all — around the house.

Do you wait until he or she gets home to mention that the behavior bothers you, and gently suggest that he or she put the emptied bowl in the sink or dishwasher instead? Or do you think to yourself, “Why am I dating the type of person who abandons half-eaten cereal bowls around the house?”

Over time, these personal detractions can add up, feeding darker feelings of resentment and contempt.
3. Defensiveness

If you find yourself regularly playing the victim in tough situations with your partner, you might be guilty of being defensive.

Take being late to a cousin’s wedding, for example. Are you the first to say, “It wasn’t my fault!” when you finally arrive? Or do you think it over before you accuse the other person, realizing you probably shouldn’t have taken a 2-hour shower when you only had an hour to get ready?

Taking responsibility for your role in a tough situation can be uncomfortable, but it’s often what keeps a bad situation from escalating, says Gottman.

He’s found that for couples who divorce within the first several years of their marriage — one of the times when divorce rates are highest — “entering negativity is like stepping into a quicksand bog. It’s easy to enter but hard to exit.”
4. Stonewalling

You know when an argument is about to start. You can feel your heart rate increase and your voice get just a tiny bit louder. But the moment things start to get heated, do you pull out your phone, walk away, or simply ignore your partner?

Blocking off conversation can be just as toxic for a relationship as contempt because it keeps you from addressing an underlying issue.

We know: Getting into arguments with your partner is the opposite of a good time. But these temporarily uncomfortable situations are oftentimes the place where you can start to come to big realizations about your own behavior and solve potentially damaging problems.
Don’t panic

It’s important to keep in mind that occasionally displaying any one of these behaviors — or all of them, even — is completely normal.

It’s when these negative behaviors happen so frequently that they replace more positive interactions with your partner that can be cause for concern.

Simply recognizing that you’re doing something that could be hurting your relationship is the first step to actively combating it. If you can figure out how to avoid the behavior or replace it with a more positive one, you’ll probably make the relationship even stronger.

From January 30, 2015 www.businessinsider.com

Child Support

Dealing with Child Support Enforcement

If you are a non-custodial parent and are unfortunate enough to have to deal with your district’s local Child Support Enforcement office, this article is for you.

To give you some background and general information, the Federal Government mandates that certain social services programs be administered at the State level. The idea is that certain medical, educational and economic services are needed by folks in the 50 states, and the States must provide the services.

In North Carolina, the state government agency that oversees these various social programs is the Department of Health and Human Services.

DHHS has several “divisions,” and one of those divisions is the “Division of Social Services,” or DSS. DSS provides services to families and children.

DSS provides training and assistance at the county level for the Child Support Enforcement units. For purposes of this article, I will refer to the county Child Support Enforcement units as “CSE” from this point forward. CSE units include caseworkers, child support attorneys and other employees in counties throughout North Carolina.

One federal law which applies to child support cases is “Title IV of the Social Security Act of 1975.” This is the law which provides money to administer the Child Support programs in states and counties, including in North Carolina. You may have seen the phrase IV-D on your Court Orders or other documents. “IV-D” is a type of child support case in which a custodial parent is receiving services from a county Child Support Enforcement office. There are other types of child support cases, including “IV-A” and “IV-E,” but that isn’t the focus of this article. In addition, there are also child support cases that do not involve the Child Support Enforcement Division, in which the parties have chosen to handle their child support issue privately and thus have an Order or Agreement that does not involve CSE.

There are several things to remember when you receive letters, notices, motions and other court paperwork from CSE.

One, the folks at CSE are paid by the State of North Carolina to see that as much of your money as possible will be taken from you and given to your child(ren)’s custodial parent. Notice that I did not say that the money will go to your child(ren). I said that the money will be given to child(ren)’s other parent. That is a critical thing for you to understand because although many CSE caseworkers and attorneys pretend that they are working “for the children,” it is a fact that a great majority of the child support money that is given to your child(ren)’s other parent does not get spent on your child, but instead gets put in the other parent’s pocket and wasted on non-child expenses (and just so you know, there is very little that you can do about this – the child support laws are excellent at taking your money from you, but they are horrible at ensuring that the money goes to your child(ren). That’s a topic for another article, though, and I’ll leave it at that for now. CSE personnel may fully understand this, but make sure you understand that they don’t care. They don’t work for you, they don’t care about your situation and many times they take full advantage of people who do not know the law and do not have an attorney.

Two, there are many laws in place that are supposed to be followed in the determination of how much child support a non-custodial parent has to pay, but there are a lot of CSE caseworkers and attorneys who either don’t know what they are or don’t care what the law says. If they take advantage of you because you don’t know the law and don’t have an attorney, that’s your fault. Again, they don’t work for you, they don’t care about you, and many of them don’t care if what they are doing is dishonest or unethical. There are many ethical and upstanding CSE caseworkers and attorneys out there, but there are some sleazy ones, too. You can protect yourself by either consulting with or hiring an attorney before your court date.

Three, you are setting yourself up for frustration if you expect to be treated with “fairness” by CSE personnel. They aren’t paid to be “fair.” They are paid to take as much of your money as possible. They aren’t “on your side.” It’s not their job. In my practice, I have worked with several CSE caseworkers and attorneys who are honest, hardworking, fair, ethical people. And unfortunately, I have also worked with some who are dishonest and unethical. Because the dishonest and unethical people exist, you need to protect yourself as much as you can by consulting with or hiring an attorney to protect your interests.

Four, once a Child Support Order is entered, it is VERY difficult to change it. In some cases, it’s impossible.

If you have read this carefully, you understand how critical it is consult with an attorney about your case. That’s the big piece of advice from this article – GET AN ATTORNEY when faced with a child support court date.

The child support statutes in North Carolina are not that difficult to understand. Basically, and this is a very general summary, most child support cases involve putting numbers into a child support calculator. The calculator then shows the amount you have to pay. Here’s what goes in:

1. Your income
2. The other parent’s income
3. The cost of the children’s health insurance
4. Work-related childcare expenses.

It seems simple enough, but sometimes it is anything but simple. For example, what if your ex won’t give the CSE folks his or her income information? What if he or she makes $50,000 per year but lies to CSE and says he or she makes $25,000? The CSE folks may care if your ex is lying, but they may not. They may put the trial off until your ex provides the information, but then again, they may not. What if they hand you a worksheet with the wrong income on it and tell you “accept the deal” or go to trial? You may know your ex is lying, but if you have to go to trial against the CSE attorney, you have to prove it. Knowing something and proving it in court are two different things.

Child Custody

So you have a custody order, and your ex-spouse won’t follow it.

So you’ve “settled” your child custody issue and you have a schedule. You may have a schedule in a Separation Agreement, or you may have a Court Order that dictates when and where you get to see your kid(s).

This post will focus on remedies for the situation where your ex-spouse is playing games and does things that keep you from seeing your kids when the Agreement or Order says that you can. If you have a Separation Agreement which has been “converted” into a Court Order by Incorporation, then the available remedy is Contempt of Court, the same as it is for those with a “regular” Court Order. For those folks with an Incorporated Separation Agreement, the rest of this post will apply to you. For those of you with a Separation Agreement that was not incorporated into the Divorce Judgment, your remedy is Specific Performance (via a Breach of Contract lawsuit) as opposed to Contempt.  After the Specific Performance is ordered by the judge, if there are repeated violations, that Order is then enforceable by Contempt just as with any Court Order.

Contempt is a remedy where you ask a judge to enforce a Court Order.  You’re basically telling the judge that your ex won’t follow the Order, and you’re asking he or she to do something to your ex as punishment.  The punishment can include jail, but in the child custody arena, it is rare that a judge will incarcerate someone for violating a custody order, at least on the first offense.  Usually if a person is found to be in willful contempt, the judge will award some “make-up” time with the kid(s), order that the custody provisions be complied with in the future and threaten the offending party that if they violate the Order again, he or she may go to jail.

It is important to note that this post is primarily useful for those folks who are in high-conflict situations where the child(ren) are being used to settle a score with the non-custodial parent.  For the majority of reasonable folks out there, they can work out their minor schedule problems and quirks without need for court.  However, there are situations where the parent who is given primary custody abuses that power and control and uses the child(ren) as a weapon to settle the score with the non-custodial parent.  In those instances, court may be the only option.  I am of the belief that if a custodial parent will not follow the judge’s orders and repeatedly takes time away from the non-custodial parent, taking them to court until they get the message is the best, and most efficient, way to solve the problem.  It makes no sense to me to continually ask the other person to stop violating the Order and argue about it over and over.  Instead, I think letting them explain to a judge why they feel the judge’s Order doesn’t have to be followed is the quickest way to solve the problem.

If you’re like most folks, the custody schedule language in your document is terrible. The reason is that a lot of attorneys simply do not know what they’re doing when drafting custody provisions. The key to good, enforceable Court Orders is specificity and detail. There are too many Orders out there where the custody provisions are too general and vague to be enforceable.  An example is this phrase:  “Parent X shall have visitation at the times and places as agreed upon by the parties.”  If you are having problems with your ex about a custody schedule and you agreed to this language in your schedule, it’s your fault.  Or your attorney’s fault.  It’s somebody’s fault, because that language is useless – it is unenforceable.  If you have this language, or similar language requiring “agreement” with your ex on the visitation, stop reading and call an attorney to file a Motion to Modify Custody so that you can get a Court Order with language that is specific enough to be enforced.

Why does specificity matter?  Because in a Motion for Contempt (also known as a Motion to Show Cause), you must indicate what the Court Order said and specifically what the other party did to violate it.  In the above example, the reason you are wasting your time filing a Contempt Motion is that the Order doesn’t contain any specific dates or times that you will have the kids, so it is impossible to prove a violation.  Had the Order said “X will have the children from Friday at 6:00 p.m. until the following Sunday at 6:00 p.m. on an every other weekend basis beginning on June 24, 2012,” then you could point to a specific weekend that was taken from you and prove that a) it was your weekend and b) the other parent didn’t let you have the kids.

Another reason specificity matters is that it takes “interpretation” out of the equation.  For example, imagine this clause: “Parent X shall have the children during the first and third weekends of each month.”

This seems pretty straightforward, right?  It’s easy to tell when the first weekend of the month is, right?  Not so fast.  What if Friday occurs on April 30 and Saturday occurs on May 1?  Is that the “first weekend” of the month of July?  Dad may think it is, but Mom may have a different opinion.  You can easily see how this situation could end up in court.  Dad schedules a trip with the kids during what he thinks is his weekend, but Mom says “that’s not your weekend.”  She keeps the kids, they don’t go on the trip, Dad files a Contempt Motion and they go to court.  It is highly unlikely that a judge is going to hold Mom in contempt under this scenario because the clause that Dad is trying to enforce is ambiguous.  The clause does not define “weekend” well enough to be able to establish which weekend was the “first” one in May.  Had the Order simply been specific and said “Parent X shall have the children during the first and third weekends of each month.  For purposes of this clause, the “first weekend” of the month is defined as the first weekend in which Friday, Saturday and Sunday all fall within the same calendar month.”  As an attorney,  I personally don’t like rotating weekend schedules that try to define the “first” and “third” weekends or “first, third and fifth” weekends because those kind of schedules are just breeding grounds for disputes, but you get the idea.  A lot of anxiety and anger can be avoided with proper drafting and specificity.  Of course it is almost impossible to remove all ambiguity from a custody order, especially when dealing with parents who insist on trying to find every little possible ambiguity to exploit, but with careful drafting and attaching calendars to Orders, many of the problems can be prevented.

If you are a parent who is prevented from seeing your kids because your ex is playing games with the Order language, or just violating it because he or she is angry, one thing you can do is file a Motion for Contempt.  For some situations, the only way to stop the offending party from violating the Order is to take them to court and let the judge make it clear to him or her that Court Orders must be followed and there are consequences for not doing so.

 

Child Custody

Judge says mom “poisoned” kids – came down hard on them for kids not eating lunch with dad.

From WCNC.com,  Charlotte, NC.  What do you think of this?

Three Oakland County children who refused to go to lunch with their father, as part of a bitter divorce and custody battle between their parents, are spending their summer in the county’s juvenile detention center, according to court records.

“We’ll review it when school starts, and you may be going to school there,” Oakland County Family Court Judge Lisa Gorcyca told the children during a June 24 hearing, referring to the center in Waterford Township called Children’s Village, where authorities house as many as 200 juvenile offenders.

Gorcyca, who blamed their mother for poisoning the children’s attitude toward their father, ordered the children be sent to the center for defying her orders — while in court — that they go to lunch with their father.

The children — ranging in age from 9 to 14 — were deemed in contempt of court last month by Gorcyca for disobeying her orders to “have a healthy relationship with your father.”

The oldest boy told the judge during the hearing that he apologized for “whatever I did to you.”

“But I do not apologize for — for not talking to him because I have a reason for that and that’s because he’s violent and he — I saw him hit my mom and I’m not gonna talk to him,” the boy said, later telling the judge, “I didn’t do anything wrong.”

“No, you did,” Gorcyca replied. “You — I ordered you to talk to your father. You chose not to talk to your father. You defied a direct court order. It’s direct contempt, so I am finding you guilty of civil contempt.”

After sending the older boy to Children’s Village, Gorcyca gave the two younger children — a 10-year-old boy and a 9-year-old girl, a chance to go to lunch with their father in the courtroom cafeteria, but they refused.

“I’ll go with my brother then,” the 10-year-old told the judge.

Speaking about the children to their mother, Dr. Maya Eibschitz-Tsimhoni, Gorcyca was vehement.

“Your children — you need to do a research program on Charlie Manson and the cult that he has. Your behavior in the hall with me months ago, your behavior in this courtroom … is unlike anything I’ve ever seen in 46,000 cases,” said Gorcyca, who has a young son and is known for her normally pleasant demeanor in court.

DETROIT FREE PRESS

Helping kids cope with post-divorce move

The judge told the mother she could not visit her children this summer, according to a court transcript of the hearing.

Referring to the contempt orders and sending the trio of kids to summer behind institutional walls, Gorcyca told the older sibling: “I wanted to do this because of your horrific behavior a long time ago and your dad begged me not to. … One day you are going to realize what’s going on in this case and you’re going to apologize to your dad.”

The two boys and their sister each had a court-appointed lawyer at the hearing, according to records. But the attorneys said the children refused to cooperate and, in some cases, wouldn’t talk to their lawyers. The attorneys for the children did not object to Gorcyca’s order.

“Your dad is a good man. And wipe that smirk off your face,” Gorcyca said to the 10-year-old, as both he and his sister defied the judge’s order to have lunch with their dad.

The children are caught up in a highly contentious divorce case that began more than five years ago between their father, Omer Tsimhoni, an internationally prominent traffic safety researcher and GM engineer who works frequently from a GM research lab in Israel, and their mother, a pediatric eye doctor and widely known glaucoma researcher who is an assistant professor of ophthalmology at the University of Michigan and has an office in Canton.

The case has resulted in dozens of court appearances throughout the years and has led to the children being ordered to spend time with their father. After repeatedly refusing to cooperate with Gorcyca, the mother at the June 24 hearing finally agreed that the children should spend time with their father and agreed to the lunch date. But Gorcyca said to her “it’s too late.”

Omer Tsimhoni “desires a resolution to the current circumstances that would allow his children to live in a healthy home and not the Children’s Village,” said a new release issued Wednesday from his lawyer, Keri Middleditch in Birmingham.

Middleditch blamed the mother for “alienating” the children from their father and for creating the situation in which the judge ordered them into juvenile care.

“The court took severe action to attempt to remedy a heart-wrenching situation, solely created by Dr. Eibschitz-Tsimhoni,” Middleditch said, calling Omer Tsimhoni a “loving, caring father who desires a healthy relationship with his children.”

The lawyer for the children’s mother, Lisa Stern, declined Wednesday to speak about the case.

Contact Bill Laitner: blaitner@freepress.com or 313-223-4485.

 

Child Custody

A perspective on “joint custody”

This is an article from the Separated Parenting Access and Resource Center (S.P.A.R.C.) which explores some common arguments against “joint custody.” Basically, these are a few of the arguments that you may face in court if your estranged spouse will not agree to joint custody.

In North Carolina, there are two kinds of custody – legal and physical. “Legal” custody generally means decision-making – who will make the major decision about health, education and welfare? In my experience, most courts grant joint legal custody fairly liberally. In fact, if a judge in North Carolina chooses to deny a parent joint legal custody, there must be specific findings of fact in the Order that legally supports the denial of that right. That means that most judges grant joint legal custody. This makes sense because the fact is that there are very few legitimate reasons why both parents shouldn’t be involved in the decisions about the health, education and welfare of their children. An example of where joint legal custody matters would be in the area of medical treatment – ADHD, for example. If you don’t have joint legal custody, the bottom line is that you have no say in whether your child is medicated or not, you have no mechanism for forcing the other parent to notify you about which doctors or therapists are treating your child(ren) or about the time and location of the medical appointments. The article below deals primarily with physical custody arguments and not legal custody.

The other form of custody is “physical” custody. This is generally defined as the time that the child(ren) are going to be living with each parent. Most people think of joint physical custody as the “50/50” arrangement, where each parent has the child(ren) half of the time. The “50/50” arrangement is only one type of joint physical custody arrangement, though, and there are other variations which could just as easily be considered as “joint physical custody.” In fact, the child support statutes in North Carolina define joint physical custody for purposes of the child support worksheets as an arrangement where one parent has the (child)ren for more than 123 overnights per year.

Here is the S.P.A.R.C. article:

“If you intend to seek joint custody and the other parent isn’t agreeable to such a proposition, be aware that you will have to overcome numerous arguments designed to make joint custody seem like a bad idea.

More judges are comfortable with the idea joint custody these days, however, most of them are still very hesitant to order joint custody if one parent objects strenuously.

What follows are some of the “classic” arguments designed to prevent joint custody from being considered by the judge. Each one of these “classic” arguments has a counter argument that can be used to nullify it. Study these arguments carefully so you will be prepared to refute them as needed. Also understand that there are endless variations of the basic arguments, although most of the variations will fall under one or more of these basic versions.

If you find you’ve come across (or up against) a new argument, please contact us with the details so we can add it to this list.

The “Children Need Stability” Argument
This argument revolves around the false notion that children need unvarying sameness (stability) above all else, to the exclusion of the other parent’s involvement if necessary. The classic refrain is that the child “won’t be able to manage” (cope) with two different caretakers, two different homes, etc. This argument makes it seem as though having both parents involved will somehow “upset” to the child or that the child will become “confused” when going back and forth between the parents. In the “Stability” argument, emphasis is placed on geographic location, rather than parenting skills or involvement. There are other variations on this theme, but they all center on the child being unable to deal with two homes.

Yes, children need stability, but even more important is the need for consistency and predictability, or an awareness of what is to come. Children cope quite well with change when they know what to expect; not knowing what’s coming next is the cause of most of the stress that children experience. Children don’t get confused when both parents take care of them in intact families, confusion for children occurs when one parent suddenly leaves or is forced out of the child’s home and life. Giving both parents parenting time with the child contributes to continuity in the child’s life, not confusion.

The “Parents Won’t Cooperate” Argument
In this argument the unspoken assumption is that because one or both of the parents won’t cooperate with the other or one parent won’t agree to joint custody, any form of joint custody is impossible. This presumption allows either spouse to decide to “not cooperate” and thereby ensure that no form of shared parenting is ordered by the court. This tactic is often used by mothers, since they are overwhelmingly more likely to gain custody.

Refute this argument by noting that divorce rarely occurs because of non-cooperation related to parenting issues; more often it is due to infidelity, drug and/or alcohol abuse, emotional or mental health issues, financial pressures, and a host of other reasons- but rarely over issues related to non-cooperation in parenting skills or styles. Even though the parents are unable to stay married to each other they may still be able to collaborate on tasks needed to raise their children.

By ordering both parents to work together the court makes it clear that both parents are important. Another factor is that over time, the animosity level between divorced parents often drops. Emotional wounds heal, and the task of raising children can serve as a focal point of cooperation. Conversely, stripping a parent of the ability to help to raise their own children creates tremendous feelings of animosity, bitterness, and hostility in the “discarded” parent- making the chance of real cooperation much less likely.

The “Child Gets Upset When Away From His Mother” Argument
When you hear this argument, look for an insecure mother, or a mother that has managed to create an overly-dependent child through too much attention, or from spoiling the child, or possibly by the use of scare tactics (such as negative statements about the other parent). This ‘dependency’ is, in actuality, a self-fulfilling prophecy. The more the child is kept with the ‘favored’ parent, the more dependent he or she will become.

It’s not unusual for children to be a little anxious when separated from the parent they spend the most time with (this is especially true of young children), but this is not a valid reason to deny or limit the other parent’s time with the child. In fact, this is a good reason to increase it- no child should be so dependent on a parent that it affects them in a negative way. Once the child learns that they can be away from the ‘favored’ parent without anything ‘bad’ happening, they will become more self-assured and experience less separation anxiety.

The “Child Gets Upset When They See The Other Parent” Argument
Sometimes this argument also takes the form of “the child is scared of the other parent” or “the child doesn’t like the other parent”. The first version may simply mean the child is unfamiliar with the other parent, or it may mean that the child has been conditioned to be scared of the other parent (through the use of negative statements by the ‘favored’ parent). The second and third versions of this argument may indicate something more serious, such as Parental Alienation Syndrome (PAS).

Most children naturally want to love and bond with both parents unless there has been some sort of actual abuse going on. It is important to find out if the child is actually making these kinds of statements or if these are claims made by one parent in an attempt to prevent or reduce contact with the other parent. If the child is in fact making these statements, the possibility of PAS should be investigated.

If the child truly appears to be upset or fearful of contact with the other parent, the most probable cause is simply unfamiliarity with that parent. Children thrive on familiarity and spending time with a ‘stranger’ may indeed make them nervous or upset. The common-sense cure is to gradually increase the time the child spends with the ‘unfamiliar’ parent, preferably in an environment that the child is accustomed to and feels comfortable in. Reducing contact with the ‘unfamiliar’ parent will only increase the child’s unease with that parent.

The “Child Can’t Adjust To Different Parenting Styles” Argument
Unless the parents have extremely and radically different parenting styles, this argument can be dismissed by pointing out that this issue is almost never a point of contention in intact families. It would be unusual, to say the least, if both parents had identical attitudes and parenting styles; such is rarely the case in ‘whole’ families where the parents are together. This line of reasoning is probably one of the most baseless and unfounded ‘arguments’ against joint custody.

This argument can also be refuted by documenting and comparing the parenting styles of both the mother and the father, and then demonstrating that they aren’t really all that different. Concentrate on comparing items like disciplinary styles, hygiene practices, educational desires, and religious orientation. When compared side by side, it’s likely that you’ll find more areas of agreement than disagreement, and the areas and scope of disagreement will probably be relatively inconsequential.

The “Father Wants Joint Custody To Maintain Control” Argument
Essentially, this argument totally discounts the idea that fathers love their children and want to be a part of their lives. It also presumes to label the father as a ‘control freak’ simply because he desires some say in how the children are raised, as if he had no right to do so. This argument is best countered by showing that the father has played an active role in the children’s lives (or has tried to). Keep in mind that many fathers are prevented by the mother from taking an active role in raising the children. If the mother has interfered with the father’s involvement, it’s likely that you’ll see this argument used. You can also help to refute this argument by asking the court to recognize that both parents have a right to provide input concerning significant issues in the children’s lives.

The “Father Wants Joint Custody Just To Lower His Child Support” Argument
As in the preceding argument, this argument seeks to discount the idea that fathers might actually love their children and want to be a part of their lives. This same argument is often used when the father seeks sole custody; however, rarely is it said that “the mother wants sole custody just so she can get more child support”. This argument is a little harder to counter because most States will lower a child support obligation commensurate with time spent in the care of the other (non-custodial) parent. As in the preceding instance, showing that the father has played an active role in the children’s lives (or has tried to) can be an effective answer. Also, since the reduction in support is generally not a huge amount, it may be worth it to run the calculations so you can show the relatively small size of the decrease.

The “Tender Years” Or “Father’s Can’t Nurture” Argument
Thankfully, this argument has all but fallen by the wayside. To use this argument these days would likely indicate desperation on the mother’s part, not having anything more substantial to use as a ‘reason’ for opposing joint custody. Most judges will no longer ‘buy’ this argument, and it may in fact work against a mother who tries to use it. This argument is rooted in gender bias, and is unlikely to influence many judges these days. It is unlikely that you will hear this argument put forth in a modern courtroom; any attorney proposing it would most likely be accused of gender bias.”

General Divorce

Settle vs. sue

When you have decided that divorce is inevitable and you lawyer up, you have a choice to make. And it’s an important one. You have two paths you can travel. One involves negotiating prior to filing a lawsuit, with the hope that your marital issues can be resolved in a document called a Separation Agreement. The other is sending your lawyer to the courthouse to file a lawsuit and begin the litigation process. Two things should drive this decision: how much money do you have and how much emotional energy are you willing to spend? There are certainly those cases where settlement just isn’t an option, usually because the two sides have too much bitterness and anger or the two sides are just too far apart in their perceived outcomes. If your case is one of those, you might not be able to escape court. Most cases, however, can be settled without court action. In fact, most cases settle anyway, whether a lawsuit is filed or not. So if you’re one of those folks who is either limited in money or emotional energy, you would be wise to consider hiring an attorney who has an eye on the ultimate goal of the CLIENT, which is a fair settlement, and not an eye on how much money he or she can extract from you by keeping the hate going in a long, drawn-out court proceeding. It is easy to find such an attorney. They are everywhere. They will join in the spouse-bashing and agree with everything you say. They will not tell you about the potential limitations of your case, the negative effects of handling a case that way on your kids or advise you not to go to court. Instead, they will talk tough about ‘destroying’ the other spouse and his or her attorney. And in the end, you will likely get about the same outcome that you could have gotten for far less money had you hired an attorney who focused on YOUR best interest instead of theirs.

a blog from a divorced dad and divorce attorney.