No Presumptions that Adultery Makes You an Unfit Parent

, ,

In 1978, Robert Swain divorced Nancy Swain because of her adultery.  She did not deny it.  In fact, she was living in an apartment with another man she intended to marry.

What Robert objected to was the order giving Nancy custody of their minor daughter.  His position was that exposure to an adulterous relationship inevitably causes detriment to the morals and welfare of a child of impressionable years.

The Maryland Court of Special Appeals disagreed.  It said there are no presumptions that adultery makes you an unfit parent.  Adultery is relevant only as if it actually affects the child’s welfare.  There is no presumption of harm.  Adultery will not tip the balance against a parent in a custody case.

Swain v.  Swain, 43 Md. App. 622; 406 A.2d 680 (1979)

/by James J. Gross

Taking the Children Out of State

Someone asked today for the Maryland case that prevents a parent from relocating to another state with the minor children before a custody order is entered.

Surprise!  In Maryland, there is no case and no law against it.  Some lawyers and some judges will disapprove of this tactic, especially in the middle of a school year, but it is not illegal.

Until there is a custody order, both parties have joint legal and physical custody of their children under the common law.  That means either parent can take them anywhere.

It is then up to the parent left behind to go to court and try to get an order for their return.

/by James J. Gross

Fathers and Stepfathers

,

Father’s Rights Can Get Complicated

Two of my friends called for some advice this week.  One is a father who is separated from the mother.  They have a little girl.  He wants to protect his father’s rights but the situation is complicated.

The mother has remarried and her new husband and my friend are in constant conflict over the child.  So far they have had disputes over visitation, clothing, discipline, medical treatment and sports.

As might be suspected, the mother sides with the new husband in these disputes.  I have suggested settlement, mediation and a parenting coordinator but the mother has rebuffed all of these suggestions.

My other friend is a stepfather.  He married a woman who has a little boy from a previous marriage.  The birth father sees the little boy from time to time but he lives far away and my friend really has the day to day parenting role.  He and the boy have become quite fond of each other.  My friend would adopt the boy if the father would agree.  He has all the obligations of fatherhood but none of the rights of a father.

Fathers and Stepfathers Should Cooperate

There are two sides to every issue.  It would be great if fathers and stepfathers could work together cooperatively for the benefit of the child.  But in many cases, there is too much emotion involved to make that possible.

/by James J. Gross

How to Lose a Child Custody Battle

,

Sometimes celebrities can teach us what not to do.  TMZ reports that an Atlanta family court judge has awarded Tawanna Iverson custody of her five children with NBA basketball star Allen Iverson.

The judge found that Allen “does not know how to manage the children; has little interest in learning to manage the children and has actually, at times, been a hindrance to their spiritual and emotional growth and development.  For example, he has refused to attend to an obvious and serious alcohol problem, which has caused him to do inappropriate things in the presence of the children while impaired.  He has left the children alone without supervision. He has left his young daughters in a hotel room with men who are unknown to the mother.”

The judge gave Allen visitation on the conditions that he:

  • not drink alcohol for 18 months
  • after that, not drink alcohol within 24 hours of visitation
  • engage in mental health therapy
  • attend AA meetings for a year
/by James J. Gross

Tax Planning for Divorce (Part 2-Exemptions for Dependents)

, ,

Guest Post By John Ellsworth, Esq

You can continue to claim your child as a dependent on your tax return if the divorce decree names you as the custodial parent. This is a very important rule for you to memorize.

If the decree is silent on that point, you would still be considered the custodial parent — and thus eligible for the exemption — if your child lived with you for a longer period of time during the year than with your ex. So if the child lives more than half the year with you, and your decree doesn’t mention who gets the exemption, then you get it.

Please keep in mind that it’s possible for the noncustodial parent to claim the exemption if the custodial parent signs a waiver pledging that he or she won’t claim it.

/by James J. Gross

Negotiation Tip: Segregation

, , ,

Some issues are just too big and complex to tackle all at once.  What to do about the children is a good example.

But you can eat an elephant if you take your time and take small bites.

That’s what you do in negotiations.  If you get stuck on a problem, start breaking it down into to smaller bites.  Separate the issues.

Segregate the big issue of “children” into custody and child support.

Then take custody and keep breaking it down.  Segregate custody into who will make the legal decisions, where will the child  live, and what will the time sharing schedule look like.

You can even break down legal decisions into separate pieces like who will decide which doctors to use, who will decide where the child goes to school and who will decide what religion to raise the child in.

Sometimes it’s easier to reach agreement with a series of small decisions than trying to tackle the whole thing at once.

/by James J. Gross

Divorce and Children (Part 1)

, ,

Guest Post by David Williamson, content writer at Coles Solicitors who writes on different law and legal topics. He is expert in writing about personal injury law, family law, divorce law, employment law and many other legal topics.

Divorce affects everyone differently. The two main parties, the husband and wife, are of course usually the ones most notably affected. Commonly though, friends, relatives and even neighbors can be drawn into the fray in the face of the developing animosity. However, whereas adults will, more often than not eventually move on and lead normal happy lives again, perhaps with a new partner, children often experience different outcomes.

Divorce and its consequences can leave permanent scars on the psyche of children. The way a divorce is conducted and understanding the short and long-term effects it could have on children is important to ensuring they don’t suffer because of their parent’s personal turmoil.

These effects can vary drastically. However, there are some very important outcomes relative to all age groups that are wholly worth maintaining, especially if you have children and are seeking divorce. The main element to remember when considering how a child may react to divorce, (regardless of age) is always thus:

‘Removing a parent from the equation kills the illusion of the solid family unit the child has been brought up to respect.’

The results of this can manifest in a variety of ways. The most common of these by far, though, is a striking drop in productivity. Children who are raised in divorced families statistically demonstrate a lack in productivity in both school and the home. However,  that’s not to say that all children experiencing divorce will behave in this way but statistically children are more prone to acting out when involved in divorce than those raised in a family where the parents remain married.

/by James J. Gross

I’ll Keep the Kids: Country Songs We Wished We’d Written

, ,

I’ll Keep the Kids

by Montgomery Gentry

You don’t have to holler,
And we don’t have to fight.
We can settle all this, right here
Right now, tonight

No need to call no lawyer
You don’t have to pack no bags
It’s obvious, all you want is
Half more than your half

I see here on this paper
You wrote what you want down
Want me to sign over
What was ours is all yours now

Take the house that my sweat built ya’
Here’s the keys to both the cars
I’ll give you up the title to my ole Harley in the barn

Take all our family pictures
And our records off the wall
And any other sign of livin’ proof
That I lived here at all

Can’t help but not see a couple little things
Not there on your list
So if you don’t care
I’ll keep the kids

Look at dads old Gibson,
I see you wrote that down
Girl, that’s below the belt
But it’s all yours now
There’s Grandmas diamond ring
She wore it fifty some odd years
She’ll probably roll over in her grave,
But, I’ll leave it here
I’m outta here

Take the bass boat and that tractor,
All my guns and Earnhardt hat.
Every nickel we had tucked away
And twenty years I can’t get back
Take the shirt right off my shoulders
Hope it fits ole what’s his name
Take everything you think your world revolves around everyday

Can’t help but not see a couple little things
Not there on your list
So if you don’t care
I’ll keep the kids

Can’t help but not see a couple little things
Not there on your list
So if you don’t care
I’ll keep the kids

Couple little things you won’t miss…

/by James J. Gross

The Prospective Client

, , ,

Father’s Rights Under “Duress”

Danny Carr, Counselor and Attorney at Law, punched the button on his phone this morning to listen to messages left last night on his voice-mail.

“I need to hire you for a custody case.  This is Ken Woodard. Call me at 301-555-5555.”

Carr hit redial, and when someone answered, he said,  “Mr. Woodard, this is Danny Carr, returning your call.”

“I was forced to give up custody and visitation by my wife’s attorney by duress,” said Woodard.

“Did he hold a gun to your head? “

“No, but he told me I would lose if I didn’t agree.”

“That’s not duress.”

“OK, well then I found out I still have to pay child support.”

“Right.  Parents are obligated to support their children.”

“But if I don’t have custody or visitation, haven’t my parental rights been terminated?”

“No.  You are still the children’s father.”

“My wife accused me of neglecting and abusing the kids.  Can I file a petition to terminate my parental rights on the basis of her saying I’m an unfit parent?”

“No.  You can’t file a complaint against yourself to terminate your own parental rights.”

“That doesn’t sound right.”

“I have to go now, Mr. Woodard.  Good luck with your case.”

/by James J. Gross

Stay Calm in Your Child Custody Battle

, ,

“The kids need haircuts!” were the first words Michael said when he walked into the library conference room for the mediation with his lawyer.

“I’d get them one if you would pay some child support!” shot back Sandy, his estranged wife, who was already seated in the conference room with her lawyer.

Before the exchange could heat up any more, retired Judge O’Malley, dressed nattily in a tweed sport coat, looked up from his papers at the head of the conference table and peered over his reading glasses.

“Let me give both of you a tip,” he said in his slow, quiet voice that demanded attention.  “The court doesn’t like hysterical, angry witnesses.  If it’s a close call, and one party is hysterical and emotional and the other one is calm and rational, the judge is usually going to go with the one that’s calm.”

/by James J. Gross