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Ask the divorce lawyer

In this post, divorce lawyers from Thyden Gross and Callahan answer your family law questions.

The Dispute

Q: The children didn’t have school today (Friday).  My ex says I have to pick them up at her house.  I say that she has to drop them off to me. Who’s right?

Divorce Lawyer Answer:  First let’s look at the divorce order or separation agreement if you have one.

What the Agreement Says

Q:  Our separation agreement says:  “The father shall have the children on Wednesdays and Fridays from pickup at daycare/school/camp (hereinafter referred to as “school”) or from 8:30 am for any child not attending school that day.”

Divorce Lawyer Answer:  The agreement is not clear. The drafter tried to cram too many thoughts into that one run-on sentence.  It would have been better if the sentence ended with the parenthetical.

The next sentence would read:  “The father will pick up the children from mother’s home at 8:30 am on days when they are not in school.”  Or the mother will drop them off at the father’s house.  What have you been doing so far?

Past Conduct

Q:  On the mornings that I have the kids, but it is my ex’s day, if the kids are sick, I will drop them off at my ex’s.  So on her mornings, when it is my day, she should do the same.

The issue with Fridays is that every two weeks, there is no school on Friday. Teacher development day or something. So I have it worked out with my boss, that I work from home every other Friday so I can watch the kids.  This way, it is good for both of us, I don’t lose wages, and my ex also gets to go to work and not lose wages either.

I will also not pay her lost wages claims. I told her that I will not pick them up today and she’s causing her own wage loss.  I want her to pay for my legal fees as well.

The Solution

Divorce Lawyer Answer:  I agree that you should not have to pay her for lost wages.  And I agree that both of you win and it is therefore best for the children if she drops them off on Fridays.

However, the agreement doesn’t say that, so in the event of a dispute, you either have to reach a mutual agreement or go to mediation or court.  The American Rule applies to legal fees – each pays their own.

I was listening to the gang at The Kane Show on the radio as I drove to work. They were talking about a Mother-in-Law Prenup. A Mother-in-Law Prenup is an agreement signed before marriage to ensure grandparent visitation rights if one of the spouses dies or divorces.

You could also have a post-nuptial agreement, and it could be a Father-in-Law agreement. Or you could have a Grandparent’s Agreement even if the parents are not married.

While the parties may abide by the agreement, it may be unenforceable if they do not. The courts have the power to decide what visitation is in the best interests of the child. And the US Supreme Court decided in Troxel v. Granville, 530 U.S. 57 (2000), that a parent’s visitation schedule is presumptuously better for the child than a grandparent’s visitation schedule.

The grandparents can overcome the presumption but it’s not easy to do. On the other hand, the parent will have to be prepared to explain why they thought the grandparent visitation schedule was in the child’s best interest when they signed the agreement and why they do not think so now.

The cases where the children refuse to visit a parent are among the most frustrating for parents, divorce lawyers, judges and therapists.

I’ve seen judges order months of reconciliation therapy. I’ve had one judge tell me, “I can’t send a crane to pickup the child and one house and drop them off at the other house.” Another judge said “A 15 year old can go almost anywhere they want on their own. A 15 year old can go to the bus station and buy a ticket.” None of these solutions are usually very satisfying to either parent.

Now one judge in Michigan has come up with a different idea. She is holding the children, ages 9, 10 and 15, in contempt for refusing to have lunch with their father and putting them in a juvenile detention center until they change their mind. The mother’s attorney has filed a writ of habeas corpus to free the children which is scheduled for July 15, 2015.

Read more about this case.

Police have ordered DNA tests to determine whether Ariel Castro is the father of Amanda Berry’s 6 year old daughter.  He is accused of kidnapping and raping Berry and two other women and holding them captive in his Cleveland home for years.

Many will find it hard to believe that a person convicted of such awful crimes would be able to assert any parental rights such as custody and visitation.

But Maryland, DC and Virginia are among the majority of jurisdictions that do not have laws terminating parental rights upon conviction of rape of the birth mother. So is Ohio.  If Castro sues for custody and visitation, the judge will have to decide based on what’s in the best interest of the child.

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

One Mom’s Emotions Almost Canceled Out Father’s Rights

In England, a family judge found that a mother would be unable to cope with the father seeing their two daughters, ages nine and six after she broke down in court and said the thought of it made her feel exhausted.  A psychologist supported her view but the court appointed child advocate disagreed.  The judge banned the father from having any direct contact with his children, except for cards, letters and gifts once a month.

The father’s lawyers appealed the judge’s decision, saying it had been based on a momentary display of emotion from the mother in the witness box.

Father’s Rights and the Best Interest of the Child

The Court overturned the family judge’s order, acknowledging that it was “a very big ask” for the mother to accept that her children’s best interests lay in having two parents, not just one.  “Where, however, it is plainly in the best interests of a child to spend time with the other parent then, tough or not, part of the responsibility of the parent with care must be the duty and responsibility to deliver what the child needs, hard though that may be.”

The court urged all separated parents to see the bigger picture and consider the harm that legal disputes cause children.  It said mothers and fathers had a responsibility and a duty to help children maintain contact with the other parent. Mothers rights and fathers rights are equally important.

Source: Article by Tim Ross, Political Correspondent, The Telegraph

Tom Cruise and Katie Holmes were able to settle their divorce quickly.  Part of this was due to the fact that they had a prenuptial agreement.  A prenuptial agreement determines alimony and property distribution in the event of divorce.

But you cannot provide for custody, visitation or child support in a prenuptial agreement.  The reason for this is that the court has jurisdiction to determine what is in the best interest of the children based on circumstances at the time of divorce.

Likewise, child support will depend on custody and income at the time of divorce.  The parties can agree on custody, visitation and child support in a separation agreement or marital settlement agreement and the court will normally approve such an agreement.  These issues related to the child are the ones that Cruise and Holmes had to negotiate and resolve.

Two Mothers and Father’s Rights

In 2011, a young girl in California had two mothers.  One went to prison.  The other was hospitalized.  The girl’s father tried to assert his father’s rights to gain custody of the child.  The state appellate court ruled that he could not be the legal guardian of the girl because California law allows a child to have only two parents.  Custody was given to the state.

Sen. Mark Leno, (D) San Francisco, has introduced a bill to amend the law in California so that a child can have more than two parents if it is in the best interests of the child.  Leno said, “There are more than Ozzie and Harriet families today.”

Delaware, Pennsylvania and the District of Columbia all permit a child to have more than two parents.

Under the proposal, families with three or more parents would share custody, financial responsibility and visitation for the child, based on a judge’s determination of each parent’s resources and time with the child.

Benjamin Lopez, legislative analyst for the Traditional Values Coalition, said Leno’s bill is just  a new attempt to “revamp, redefine and muddy the waters” of family structure in the drive to legalize gay marriage.

The court has ruled that Joseph Reyes will be allowed to take his 3-year-old daughter, Ela, to church according to the Chicago Sun-Times.  Rebecca Reyes, who has full custody of the child in their divorce proceedings, said the father was breaching an agreement they made that Ela would be raised in the Jewish faith.

The court also ruled that the father would have Christmas and Easter holidays with the child and the mother would have the Jewish holidays.

But Reyes still faces contempt sanctions for taking his daughter to church in violation of a previous court order.

by Jill H. Breslau

Typical timesharing schedules, like 50/50, or 5-2-2-5, or 4-3, or weekdays and weekends do not take into account the needs of children are different at various ages and stages of development.  Frequently, the approach to visitation is to consider the schedules and convenience of the parents first, figure out a logical access schedule, and then see if the children can adjust to it.

But a baby doesn’t need the same kind of access schedule that a 12 year old does.  Their basic needs and developmental tasks are different.  The baby’s “task” is to learn to bond, because all future emotional relationships depend on early bonding.  The baby needs continuity and frequency of contact, because for a baby, when someone goes away for weeks at a time, it is as if they died.

A 12 year old on the other hand, needs time with parents that takes into account his or her need to develop peer relationships and extracurricular activities.  And any children with issues like ADHD or special needs may have unique requirements that parents should consider when setting up schedules.

It is not easy to look at life through your child’s eyes. But a good parenting plan and child access schedule does just that.  You are a parent for the long haul; your children grow and change, and so should your schedule.  The way to begin to establish a schedule is by understanding the needs of each child.