One way the anticipated custodial spouse can probably save an ailing marriage (where there are minor children) is simply to advise the expected non-custodial spouse of how much child support he or she would be obligated to pay in the event of a divorce.

At least that’s the cynical conclusion of a study recently reported on by the Observer UK. But “word on the street” in this country does lend some support to the study’s conclusions even outside the UK.

You can read more about reaction to the study in the UK in Cash fears lead to fall in divorce rates.

You consult an attorney. You retain him/her. You give him/her a braindump of all the pertinent facts about your case. You bring him/her all the financial documents that he/she asked you for. He/she gives you some instructions about additional requirements you must fulfill. You fill out a bunch of paperwork. When you walk out of the attorney’s office, you leave the case in your attorney’s expert hands. Now you wait for him/her to tell you when it’s over. Right?

A lot of people seem to think so. But, in most cases: wrong, bad idea. Perhaps, unfortunately so. But, nonetheless: wrong, bad idea.

These days, it can be an enormous mistake to follow the “blind faith” path described in the opening paragraph of this post, even if it seems to be OK with your lawyer, perhaps especially if it seems to be OK with your lawyer.

Your case is your case. Would you leave it to your criminal lawyer to enter a “surprise-me” plea and tell you what it was after he/she entered it? Would you leave it to your criminal lawyer to try your case and let you know how it turned out afterward? Of course not.

Is custody of your children less important? Or visitation? How about support of your children? What about support for yourself or your spouse? And who gets the house? Who’ll pay the debt? Or dealing with the history of abuse by one spouse? Etc., etc.

While the arguably happy mis-perception of a no-muss, no-fuss divorce may be tempting during the early phase of your case, in some (if not most) cases, if you haven’t been minding your case from the get-go, your pleasant bubble of euphoria may eventually burst – expensively, loudly and gruesomely – leaving behind a lot of damage that cannot be undone easily, maybe not at all.

The process of divorce can vary dramatically from case to case, depending, in part, on the spouses and their respective attorneys. The process can affect the legal results in the case.

Just as importantly, it can affect the emotional outcome of the case, the quality of the post-divorce relationships of ex-spouses, co-parents and children. Make no mistake: it is you and your family who will have to pick up the pieces – alone, after the lawyers move on to their next cases, sadly, often without a backward glance.

It is important to determine at your initial consultation whether the attorney you will be retaining views the case as the lawyer’s case or as the client’s case. This will tell you a lot about the likely process of your divorce – and whether you want a particular attorney to be the one helping you to shape the process of your divorce case.

One extreme case going on right now. Long term marriage. Couple’s behavior indicates that they have not totally given up on being a couple and a family. I mention the possibility of reconciliation frequently to my client, the husband.

Wife’s lawyer embarks on a legal crusade, an expensive crusade, pouring oil on the couple’s still-flickering flames. Not unpredictably, wife has second thoughts about reconciling.

I suggest to the husband that he and his wife consider a “stay” (or hold) in the case for a while, so they can concentrate on trying to reconcile without having to deal with the “bad blood” being aroused by what had quite unnecessarily (in this case) turned into a legal battle. The couple agrees.

I contact wife’s lawyer to get his written agreement to a stay. Amazingly, wife’s lawyer rejects the stay, while acknowledging that couple is talking reconciliation.

Since, surprisingly, it is necessary, I push harder on Wife’s lawyer to agree to the stay, without having to waste time and money on taking it to the judge. Knowing he will lose this one, he grudgingly relents and agrees to a 30 day stay – providing that he be allowed to file one motion during the stay. Husband agrees.

While the parties are trying to reconcile, wife’s lawyer’s serves not an ordinary motion but a nasty (and completely unnecessary) motion. Wife tells husband that she instructed her lawyer to take out the nasty parts of the motion, but she guesses “he couldn’t help himself”.

Thirty days goes by. Reconciliation is still on track. I so advise Wife’s lawyer and request an extension of the stay.

Again, Wife’s lawyer refuses. However, Wife’s lawyer drops part of his crusade. But he replies that Wife is anxious to proceed with divorce. News to me.

I relay to client, and wife and husband speak again. Husband reports that wife never told her lawyer that she wanted to proceed with the divorce, only that she wanted to continue the stay.

Remarkably, this is still going back and forth. Unfortunately, Wife didn’t give any thought to the process of her divorce back at the beginning, Wife is overly-deferential to her overzealous attorney – and Wife’s attorney views the case as his case and views his client as little more than a chess piece for him to push around his game board.

But the couple is still working on reconciling.

I can take care of wife’s mis-guided attorney and his questionable tactics. It’s just sad that it’s necessary. And that the family has to pay for it.

Mind your case. And avoid what is happening to this family – and many other families – where one of the parties drops the ball and doesn’t mind their case.

Why in the world would a biological mother bring an action to adopt her own child?

In extreme cases of abandonment, abuse or neglect of a child, an action can be brought to terminate the legal rights of biological parent(s) to his/her own child. Usually the party bringing that drastic action is the state which has intervened to protect the child, and generally only after exhaustive efforts have been made to rehabilitate the parent’s parenting.

But an interested private party can also bring an action to terminate parental rights.

At the time that a child is legally adopted, all legal rights of the biological parents to that child terminate as a result of the adoption. An adoption case, in effect, includes a “streamlined” termination of parental rights case – without all the “rough edges”.

In a recent New York case, a child’s mother reportedly tried to adopt her own child – with the alleged intention of “quietly” terminating the legal rights of the allegedly abusive biological father of the child.

The New York courts disallowed the mother’s reportedly “sneak attempt” to terminate the father’s parental rights because they found that the mother didn’t comply with the stricter requirements of a full-blown termination of parental rights action. If the mother wanted to terminate the father’s parental rights, she couldn’t cut corners; she had to bring an action to properly do precisely that.

If you consulted a Florida attorney over the last several years about trying to obtain a change in custody of your child, you may have been discouraged and disappointed.

Because the attorney would have advised you that, among other things, to change custody, you would bear the burden of demonstrating that the existing custody arrangement was detrimental to your child. And that often that is not so easy to do.

And that advice was a bitter pill to swallow in recent years if you genuinely believed that a change in custody would benefit your child.

The Florida Supreme Court came to the same conclusion last year in an important case which took up this issue and changed the law, with far-reaching impact.

Since that case, a parent seeking a modification of custody no longer has to show that the existing custody arrangement is detrimental to his or her child.

The parent need only show that the change in custody is in the best interests of the child, the same standard that applied in the original custody determination.

(There still must also be a substantial change of circumstances, but that is more likely to be present in modification cases.)

Now, a non-custodial parent who wants to pursue a modification of custody in the best interests of his or her child need not be discouraged.

Psychologist Jerome H. Poliacoff, PhD., recently wrote an article for the Family Law practitioners in Florida, in which he endorsed equal time-sharing by both parents, where they are near each other.

Dr. Poliacoff also endorsed as a default time-sharing schedule the 5/5/2/2 plan, except where the child(ren) is (are) very young.

In Dr. Poliacoff’s example, the child(ren) spend Monday and Tuesday with Mother, Wednesday and Thursday with Father, Friday through Tuesday with Mother, Wednesday through Sunday with Father and then the entire cycle repeats from the beginning.

According to Dr. Poliacoff, research supports such an arrangement as benefitting children of divorce.

With all due respect to Dr. Poliacoff and the community of psychologists in agreement with him, I think it would be detrimental to children for the legal system to subject them to such a nomadic regimen of bouncing from house to house on command.

Equal time-sharing, also known as rotating custody in Florida, has been recognized and tried, mostly by private agreement. And, in Florida, the weight of authority unequivocally disfavors rotating custody as not serving the best interests of children. Even though frequent and meaningful contact with both parents is favored.

Today, technology, such as real-time video-conferencing via the internet (as just one example) offers far less disruptive and exhausting opportunities for kids to have meaningful contact with the non-custodial parent on a daily basis, without leaving home or losing home. The next best thing to being there – and much easier on the kids.

What do you think?

Source of Article Cited: Commentator, published by the Family Law Section of the Florida Bar, Vol. XXII, No. 1, Fall 2005

A few months ago, I posted about an appeal from a ruling deporting an American child, Arianna Adan, to return her to her father, who is living in the country where the child’s mother alleges that the father sexually abused her and the mother reportedly faces kidnapping charges if she returns there. According to a recent article, that case was reversed on appeal – but the case is not yet over and the final outcome is undecided.

Clients, understandably, often ask their lawyers “how will the judge rule in my case?” When you are tempted to ask your lawyer to “read tea leaves”, consider the trial court’s ruling under the Hague Convention in the case above. And the appellate court’s ruling under the Hague Convention in the same case.

And then consider the Hague Convention case concerning Shelby Cannon, as reported by MSNBC in Dad’s custody quest shows cracks in the system. According to the child’s father, the girl’s mother kidnapped her while in Ireland, assumed a bogus name and had her daughter impersonate a dead Irish child, all to evade court rulings in the US and Britain.

The mother’s reported justification was that “she could not afford a custody fight in the U.S.” While condemning the girl’s mother’s actions, the British court nonetheless ruled in her favor and denied the father’s application to return (“deport”) his daughter to the US.

Both girls’ cases are governed by the same international law. Care to make any predictions about future rulings in future proceedings in either case?

The Tulsa (OK) World recently published the article below entitled “Adult custody cases to increase” regarding guardianship of elders.

The issues discussed are hardly unique to Oklahoma, and the general information provided is worthwhile to Floridians as well. In addition to legal tools such as durable powers of attorney, Florida also permits residents to execute Declarations of Preneed Guardian.

Creating such instruments in advance, while legally competent, may ultimately save thousands of dollars in legal fees and costs; weeks (or months) of uncertainty and helplessness; and a good deal of time spent in court.

Just as importantly, they give the person who someday may need care and assistance (and his or her loved ones), the peace of mind of knowing that the people they have chosen to help them will have the legal instruments they will need to step in immediately when and if the need arises.

Florida parents should know that they can also create declarations of preneed guardian to care for their minor children and/or their property in the event of their deaths.

Tulsa World (Oklahoma)

January 29, 2006 Sunday
Final Home Edition

News; Tulsa; Crime; Pg. A1

973 words

Adult custody cases to increase

ZIVA BRANSTETTER World Projects Editor

As the population ages, guardianship cases involving incapacitated people are expected to become more common. The recent battle over an ailing oilman allegedly kidnapped using a chartered jet was unusual, but the question of guardianship for an elderly family member is becoming increasingly common, legal experts say.

The number of guardianship cases in Tulsa County District Courts has increased rapidly, growing 60 percent in the past decade to 714 cases last year. In the past six years, more than 4,000 guardianship cases have been filed in Tulsa County and thousands remain active, all overseen by one judge.

While much of that growth was due to grandparents seeking custody of their grandchildren, the number of cases involving incapacitated adults is expected to grow as the population ages.

“The court is almost overwhelmed,” said David Winslow, who spent nearly 27 years as a judge in Tulsa County, including 19 years as presiding judge over the probate division. Winslow is now an attorney in private practice and handles cases including guardianships.

“You take that number and multiply it by the last 10 years. The court doesn’t have the personnel or ability to review all those situations.”

As the population of America ages and life expectancy increases, family members increasingly face the question of how to help aging relatives manage their affairs. Between 1990 and 2020, the population aged 65-74 is projected to grow 74 percent, according to the U.S. Census Bureau.

Laws in every state allow for family members or others to serve as court-appointed guardians of incapacitated adults, called wards.

After a court determines an adult lacks capacity to manage his or her daily affairs, most guardians can make decisions including where the ward lives, how assets are spent and how health-care needs are met.

A recent guardianship case that drew public attention involved a family battle over oilman Charles Foster Doornbos. A Washington County judge granted Doornbos’ daughter special guardianship, which did not require advance notice to his wife. His daughters alleged his wife made several real estate and financial transfers and was gaining control of his millions.

The pair lived in Arizona and Doornbos’ daughters brought him back to Oklahoma on a chartered jet. His wife is now suing his daughters, alleging they kidnapped Doornbos.

The Oklahoma Supreme Court ruled Jan. 20 that the man was in no danger and his daughters must release him to his wife.

Winslow said people may prevent such problems in several ways.

“The adult has the capacity, if they will exercise it, to have durable powers of attorney. They can set up trusts, and they can pick people who will be their guardian, who will be taking care of them when that moment comes when the gray matter isn’t mixing right.”

A study by the General Accounting Office released last year found that guardianships can lead to abuse of the elderly if not properly supervised. The report found wide differences among what state courts require from guardians and a lack of collaboration between state and federal agencies.

Most courts surveyed by the GAO also failed to track the number of active guardianships or maintain a database on abuse, the study found.

Brenda Cowett, who heads the probate division for the Tulsa District Court Clerk’s Office, said nearly all petitions requesting guardianship in Tulsa County are approved.

A review several years ago found that hundreds of Tulsa County guardians had not filed their annual reports, Cowett said. State law requires guardians to file yearly reports stating how they are spending the ward’s assets and other actions they have taken.

Cowett said the court clerk’s computer system now notifies officials when guardians fail to file reports, and some guardians have been removed as a result. Prospective guardians also undergo a criminal background check, she said.

Tulsa County Sheriff’s Sgt. Randy Pierce learned more than he wanted to know about guardianships after he was shot in 1998 by a man later ruled mentally incompetent. Pierce sued the man and obtained a $650,000 judgment in 2002. He has been unable to collect the judgment because the man’s attorney set up a guardianship.

Pierce said he worries about the victims of people who have their assets shielded by guardianships.

“If they do have assets, they can just go stick it in a guardianship and prevent themselves from making any kind of payments,” Pierce said.

Ziva Branstetter 581-8378
ziva.branstetter@tulsaworld.com

How guardianship works Here are some highlights of Oklahoma’s guardianship law:

The guardianship law applies to minors and incapacitated persons in the state. It also applies to minors’ property in the state or to incapacitated persons living in other states.

When a petition is filed seeking guardianship of an adult, the court must determine whether the person is incapacitated due to mental illness, a developmental disability, physical illness or drug or alcohol dependency. To be found incapacitated, the person must be unable to make responsible decisions related to health and safety or be unable to manage financial resources.

Guardians can be special, general or limited. Special guardians are appointed for up to 30 days when the person’s health or financial resources are shown to be in immediate danger. General guardians make all decisions regarding the person, his property or both. Limited guardians are granted specific powers over the person or his property.

When a guardianship is granted, the order will outline what kinds of powers and responsibilities the guardian has. The guardian is required to file a plan regarding care of the ward.

Any adult who is not incapacitated may choose a guardian of person or property in advance. Section 3-102 of the state guardianship code outlines the procedure.

For educational purposes only and not intended to infringe on Copyright 2006 The Tulsa World

It is no secret that some custodial parents face constant challenges collecting child support, and that other custodial parents face similar challenges from time to time. Most custodial parents have already heard the most common explanations / justifications.

But here’s one from South Carolina that most probably haven’t heard (or ever thought to hear). S.C. Police: Man Faked Death More Than 25 Years Ago to Avoid Paying Child Support.

Based on the report, the non-custodial parent could not have had any contact at all with his children for all those years…

Advice Columnists: Move over and make room among your ranks for 10 year-old Libby Rees.

Libby’s first book is a self-help volume aimed at children of divorce. Libby ought to know what she is talking about, because she is a child of divorce herself.

Parents planning to divorce just may want to check out “Hope, Help and Happiness” first, to get a kid’s honest, fresh perspective upfront.

You can read more about Libby’s story at 10-Year-Old Writes Advice Book.

According to a provocative article in the Virginian-Pilot, relatively inexpensive home DNA kits have become popular purchases – by men firmly established in their roles as fathers to children.

The article correctly points out that such tests, by themselves, generally have no legal significance.

But, the article underscores, the arguably unreliable tests may have enormous social significance and consequence – particularly to the innocent children to whom these men acted as fathers – at least up until the test results came in.

The article pins the blame squarely on the manufacturers of these apparently profitable home DNA tests. But that may be a somewhat oversimplified view that calls for deeper examination.