All to often, the parties involved in a divorce emerge from the legal process financially and emotionally devastated. Families and lives are destroyed in the process of ending a marriage. I have had cases where I honestly feared that the grief and stress from the process was going to kill my client.
Some of the negative effects of a divorce cannot be avoided. Grieving for a lost relationship is natural, and will be a part of any divorce. Some degree of financial loss is unavoidable because it costs more to run two households than it does to run one. Divorce is difficult for children of any age because of the unavoidable changes in their lives.
But, contrary to popular belief, divorce does not have to be nasty, ugly and combative. The parties do not have to "jump into the mud" or "take the low road" in order to effectively advocate for their interests and resolve the issues that arise in a divorce.
Over the last few decades, lawyers that had grown weary of seeing clients devastated by the legal process of ending marriages developed a new process for resolving the legal issues that arise in a divorce. That process was based on spouses working together, or collaboratively, to resolve the issues of property distribution, financial support, and the parenting and financial support of children. That process became known as Collaborative Law.
Through the next series of posts, I will describe the structure and process of Collaborative Law. I will also explain the tremendous benefits of the Collaborative Process. Hopefully, by the end of the series, I will have shed some light on this process so that more divorcing couples will explore this option before waging war on each other.
In my next post, I will provide an overview of the actual structure and mechanics of the collaborative process.
Friday, January 30, 2009
Monday, January 19, 2009
Custody - What information will a judge consider? Child Safety: ATV and Four Wheelers
In the last installment of this series, I will address the issue of child safety. In one of my recent custody trials, the father had allowed a child under the age of 3 to ride a four wheeler and a dirt bike. The mother argued that this behavior was very dangerous for the child and that the child was far too young to ride these types of vehicles. She further argued that allowing the child to ride these vehicles at such an early age demonstrated poor judgment and poor parenting on the father's part.
The father countered by arguing that the child had only ridden these vehicles a few times each; that the child had always worn full safety gear; that the child had always been closely supervised while riding; that the father had held a kill switch while the child was riding; that the child only rode the vehicles in an enclosed yard; and that the child had never been hurt, or in danger of being hurt while riding the vehicles.
The judge decided that the child was too young for four wheelers and dirt bikes. The judge ordered that the child not be allowed to ride four wheelers or dirt bikes until the age of 10. My feeling was that the judge did think that allowing such a young child to ride those vehicles was poor judgment, and did place the child at risk of injury. While the precautions taken by the father may have helped, the judge seemed to ultimately decide that no precautions were sufficient to eliminate the risk.
The lesson here is twofold: First, that a judge may have a very different view of what is "safe" and "acceptable" for a child than a parent. The father in this case never saw a problem with allowing his child to ride these vehicles. The judge obviously felt differently. Perhaps the judge never rode four wheelers and dirt bikes growing up, whereas these vehicles were a part of everyday life for the father's family.
The second lesson is broader: Allowing a judge to literally sit in judgment over you and your parenting of your child is risky. A judge may have been raised in a totally different environment than you and your child. What seems perfectly natural to you may seem totally abnormal to a judge. What seems perfectly safe to you may seem highly dangerous to a judge. Taking your custody case to court opens both parents up to scrutiny by someone who does not know you, your background, your family, your child or the other parent. For this reason, many attorneys recommend trying to negotiate a custody agreement before taking the first opportunity to go to court.
In the next post, I will provide an introduction to Collaborative Law, a relatively new and highly beneficial process for resolving divorce, property division, custody and financial support issues.
PLEASE NOTE THAT NOTHING ON THIS BLOG SHOULD BE CONSIDERED LEGAL ADVICE AND THAT VIEWING THE INFORMATION ON THIS BLOG DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP BETWEEN US. YOU ARE ADVISED TO CONSULT WITH AN ATTORNEY TO CONFIRM THE CURRENT STATE OF ANY LEGAL INFORMATION CONTAINED IN THIS BLOG, AS THE LAW CONSTANTLY CHANGES.
The father countered by arguing that the child had only ridden these vehicles a few times each; that the child had always worn full safety gear; that the child had always been closely supervised while riding; that the father had held a kill switch while the child was riding; that the child only rode the vehicles in an enclosed yard; and that the child had never been hurt, or in danger of being hurt while riding the vehicles.
The judge decided that the child was too young for four wheelers and dirt bikes. The judge ordered that the child not be allowed to ride four wheelers or dirt bikes until the age of 10. My feeling was that the judge did think that allowing such a young child to ride those vehicles was poor judgment, and did place the child at risk of injury. While the precautions taken by the father may have helped, the judge seemed to ultimately decide that no precautions were sufficient to eliminate the risk.
The lesson here is twofold: First, that a judge may have a very different view of what is "safe" and "acceptable" for a child than a parent. The father in this case never saw a problem with allowing his child to ride these vehicles. The judge obviously felt differently. Perhaps the judge never rode four wheelers and dirt bikes growing up, whereas these vehicles were a part of everyday life for the father's family.
The second lesson is broader: Allowing a judge to literally sit in judgment over you and your parenting of your child is risky. A judge may have been raised in a totally different environment than you and your child. What seems perfectly natural to you may seem totally abnormal to a judge. What seems perfectly safe to you may seem highly dangerous to a judge. Taking your custody case to court opens both parents up to scrutiny by someone who does not know you, your background, your family, your child or the other parent. For this reason, many attorneys recommend trying to negotiate a custody agreement before taking the first opportunity to go to court.
In the next post, I will provide an introduction to Collaborative Law, a relatively new and highly beneficial process for resolving divorce, property division, custody and financial support issues.
PLEASE NOTE THAT NOTHING ON THIS BLOG SHOULD BE CONSIDERED LEGAL ADVICE AND THAT VIEWING THE INFORMATION ON THIS BLOG DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP BETWEEN US. YOU ARE ADVISED TO CONSULT WITH AN ATTORNEY TO CONFIRM THE CURRENT STATE OF ANY LEGAL INFORMATION CONTAINED IN THIS BLOG, AS THE LAW CONSTANTLY CHANGES.
Monday, January 12, 2009
Child Custody - What information will a judge consider? Mental Illness.
As the third installment of this series on child custody, I'll address how the judge in a recent case addressed the fact that one of the parents had been diagnosed with Bipolar Disorder.
In this case, the parent had been treated and medicated as far back as their early teens and even hospitalized. But, that medication and treatment gradually ended as symptoms improved. However, as the parent entered their early 20's the symptoms began to return, although the parent did not recognize the symptoms for some time.
After the child was born, and while the child was still young, the parent experienced an episode in which suicide was contemplated, or at least the parent's behavior made it appear as though suicide was a risk.
Immediately after that episode the parent sought treatment and began taking medication for the Bipolar Disorder. Since beginning the medication a few years prior to the trial, the parent had been very stable, with no episodes or erratic behavior.
The opposing parent made a point of focusing on this parent's mental illness at trial. The diagnosed parent countered by pointing out the self-motivated pursuit of treatment and their stability since resuming medication. There was no evidence that the parent's illness had any negative impact on the child. Further, because there was a genetic link to the parent's mental illness, there was some concern that the child might one day also be diagnosed with a mental illness. An argument was made that the diagnosed parent's family network in his hometown would be better able to support the child if mental illness became an issue down the road, because the family had experience with mental illness in the family.
The judge awarded custody to the non-diagnosed parent. However, the judge essentially made the mental illness a non-factor. The diagnosed parent was ordered to continue treatment and medication as directed by his physician (the parent would have done this without an order). The judge made no mention of the mental illness as having an impact on the child or the custody decision. Further, the diagnosed parent was given very liberal visitation, even though they had relocated to a different state. In fact, it was my feeling that the mental illness played no part in the judge's decision.
The lesson in this case is that a parent that has been diagnosed with a mental illness does not have to fear being prejudiced by their mental illness in a custody case. A parent diagnosed with a mental illness can limit, or maybe even eliminate the affect of a mental illness on a custody determination by showing the court that they have established a stable course of treatment, that the treatment has stabilized their behavior, that the mental illness has no affect on the child and that they intend to maintain their course of treatment.
In the next post, I will address an issue that is fairly common in North Carolina: The use of ATV's and motorcycles by children.
PLEASE NOTE THAT NOTHING ON THIS BLOG SHOULD BE CONSIDERED LEGAL ADVICE AND THAT VIEWING THE INFORMATION ON THIS BLOG DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP BETWEEN US. YOU ARE ADVISED TO CONSULT WITH AN ATTORNEY TO CONFIRM THE CURRENTNESS OF ANY LEGAL INFORMATION CONTAINED IN THIS BLOG, AS THE LAW CONSTANTLY CHANGES.
In this case, the parent had been treated and medicated as far back as their early teens and even hospitalized. But, that medication and treatment gradually ended as symptoms improved. However, as the parent entered their early 20's the symptoms began to return, although the parent did not recognize the symptoms for some time.
After the child was born, and while the child was still young, the parent experienced an episode in which suicide was contemplated, or at least the parent's behavior made it appear as though suicide was a risk.
Immediately after that episode the parent sought treatment and began taking medication for the Bipolar Disorder. Since beginning the medication a few years prior to the trial, the parent had been very stable, with no episodes or erratic behavior.
The opposing parent made a point of focusing on this parent's mental illness at trial. The diagnosed parent countered by pointing out the self-motivated pursuit of treatment and their stability since resuming medication. There was no evidence that the parent's illness had any negative impact on the child. Further, because there was a genetic link to the parent's mental illness, there was some concern that the child might one day also be diagnosed with a mental illness. An argument was made that the diagnosed parent's family network in his hometown would be better able to support the child if mental illness became an issue down the road, because the family had experience with mental illness in the family.
The judge awarded custody to the non-diagnosed parent. However, the judge essentially made the mental illness a non-factor. The diagnosed parent was ordered to continue treatment and medication as directed by his physician (the parent would have done this without an order). The judge made no mention of the mental illness as having an impact on the child or the custody decision. Further, the diagnosed parent was given very liberal visitation, even though they had relocated to a different state. In fact, it was my feeling that the mental illness played no part in the judge's decision.
The lesson in this case is that a parent that has been diagnosed with a mental illness does not have to fear being prejudiced by their mental illness in a custody case. A parent diagnosed with a mental illness can limit, or maybe even eliminate the affect of a mental illness on a custody determination by showing the court that they have established a stable course of treatment, that the treatment has stabilized their behavior, that the mental illness has no affect on the child and that they intend to maintain their course of treatment.
In the next post, I will address an issue that is fairly common in North Carolina: The use of ATV's and motorcycles by children.
PLEASE NOTE THAT NOTHING ON THIS BLOG SHOULD BE CONSIDERED LEGAL ADVICE AND THAT VIEWING THE INFORMATION ON THIS BLOG DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP BETWEEN US. YOU ARE ADVISED TO CONSULT WITH AN ATTORNEY TO CONFIRM THE CURRENTNESS OF ANY LEGAL INFORMATION CONTAINED IN THIS BLOG, AS THE LAW CONSTANTLY CHANGES.
Monday, January 5, 2009
Child Custody - What information will a judge consider? Marijuana Use.
In my last post in this series, I described how one judge dealt with the relocation of one parent in a child custody trial. In this post in the same series, I'll discuss how that judge treated marijuana use by both parents.
In this case, one parent had used marijuana one time within the last three years, and during the child's life. The other parent had used marijuana in high school (approximately 8 years earlier). There was some evidence that both may have used marijuana more recently, but nothing conclusive. Neither parent has been arrested or charged with a drug offense, and there was no evidence that either party was a regular user.
The judge did not seem particularly upset by either parent's marijuana usage. The judge did specifically order both parties to refrain from using illegal drugs in the future. But, the judge did not make drug assessments or drug testing a part of the order.
This result suggests that sporadic or isolated marijuana use by a parent may not be a huge factor in custody determinations. If the use is infrequent and the child is not present, then marijuana usage may not severely impair a parent's efforts to obtain custody or visitation of a child.
However, regular or frequent use of marijuana is likely to be a factor in custody determinations. There is no definitive way of knowing what level of marijuana use will trigger a serious concern for any particular judge. So, the safest course is always to refrain from any marijuana use so that there is no issue in the custody action. And, it is safe to assume that "harder" drug use will create a serious problem for parents seeking custody or visitation of a child.
Lesson: I am frequently asked by clients whether their use of marijuana will prevent them from gaining visitation or custody of their children. The outcome in this particular case indicates that the less frequent the use, the better, and the longer ago the use, the better. But, a one time use or very infrequent use will not necessarily prevent a parent from gaining visitation or custody of a child.
PLEASE NOTE THAT NOTHING ON THIS BLOG SHOULD BE CONSIDERED LEGAL ADVICE AND THAT VIEWING THE INFORMATION ON THIS BLOG DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP BETWEEN US. YOU ARE ADVISED TO CONSULT WITH AN ATTORNEY TO CONFIRM THE CURRENTNESS OF ANY LEGAL INFORMATION CONTAINED IN THIS BLOG, AS THE LAW CONSTANTLY CHANGES.
In this case, one parent had used marijuana one time within the last three years, and during the child's life. The other parent had used marijuana in high school (approximately 8 years earlier). There was some evidence that both may have used marijuana more recently, but nothing conclusive. Neither parent has been arrested or charged with a drug offense, and there was no evidence that either party was a regular user.
The judge did not seem particularly upset by either parent's marijuana usage. The judge did specifically order both parties to refrain from using illegal drugs in the future. But, the judge did not make drug assessments or drug testing a part of the order.
This result suggests that sporadic or isolated marijuana use by a parent may not be a huge factor in custody determinations. If the use is infrequent and the child is not present, then marijuana usage may not severely impair a parent's efforts to obtain custody or visitation of a child.
However, regular or frequent use of marijuana is likely to be a factor in custody determinations. There is no definitive way of knowing what level of marijuana use will trigger a serious concern for any particular judge. So, the safest course is always to refrain from any marijuana use so that there is no issue in the custody action. And, it is safe to assume that "harder" drug use will create a serious problem for parents seeking custody or visitation of a child.
Lesson: I am frequently asked by clients whether their use of marijuana will prevent them from gaining visitation or custody of their children. The outcome in this particular case indicates that the less frequent the use, the better, and the longer ago the use, the better. But, a one time use or very infrequent use will not necessarily prevent a parent from gaining visitation or custody of a child.
PLEASE NOTE THAT NOTHING ON THIS BLOG SHOULD BE CONSIDERED LEGAL ADVICE AND THAT VIEWING THE INFORMATION ON THIS BLOG DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP BETWEEN US. YOU ARE ADVISED TO CONSULT WITH AN ATTORNEY TO CONFIRM THE CURRENTNESS OF ANY LEGAL INFORMATION CONTAINED IN THIS BLOG, AS THE LAW CONSTANTLY CHANGES.
Friday, January 2, 2009
Child Custody - What information will a judge consider?
One of the most common questions that I get asked by clients and other lawyers in child custody matters is "What do you think a judge would think about 'x'?"
In an effort to show you how judges feel about particular issues, I will let you know about cases that I have dealt with, and how particular issues were treated by the judge in that case. Keep in mind that all judges are different and each judge brings his or her own background and perspective to every case.
That being said, there were four interesting issues in one of my recent custody trials. First, my client was relocating to his hometown out of state, and wanted to take the child. Secondly, both parents had used marijuana in the past. Thirdly, one of the parents has been diagnosed with a mental illness. Lastly, one of the parents allowed the child to ride a 4 wheeler and a motorcycle at the age of 2.
I will address each of those issues, the outcomes and the lesson to be learned in my next posts. First, I'll address the relocation issue.
Relocation issue: In this case, the judge did not allow the relocating parent to take the child with them. The new location offered a strong family support network and the child had spent months of his life in the parent's home town with grandparents. Child care would have been provided by grandparents in the new location. But, the judge seemed to adopt the "if it ain't broke, don't fix it" approach. Even though the parent in North Carolina was relying solely on neighbors and friends for child care, there was some evidence that the child was doing well in North Carolina. So, even though the relocation provided more family support, the judge seemed to favor the status quo.
Lesson: The law requires the judge to do whatever is in the "best interests" of the child in custody cases. It is difficult to convince a judge to allow one parent to move away with the child. It is not impossible, but you may need evidence that the child's current location is bad for the child in some way, and that the new location will help solve those problems. Unless there is a big difference between the proposed location and the current location, convincing a judge to relocate the child is an uphill battle. The lesson for me as an attorney is that judges will frequently apply a "if it ain't broke, don't fix it" approach in these cases, even if a relocation can provide a better situation for the child.
Next week I will address the judge's handling of the marijuana use by each parent. Until then, have a Happy New Year!
PLEASE NOTE THAT NOTHING ON THIS BLOG SHOULD BE CONSIDERED LEGAL ADVICE AND THAT VIEWING THE INFORMATION ON THIS BLOG DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP BETWEEN US. YOU ARE ADVISED TO CONSULT WITH AN ATTORNEY TO CONFIRM THE CURRENTNESS OF ANY LEGAL INFORMATION CONTAINED IN THIS BLOG, AS THE LAW CONSTANTLY CHANGES.
In an effort to show you how judges feel about particular issues, I will let you know about cases that I have dealt with, and how particular issues were treated by the judge in that case. Keep in mind that all judges are different and each judge brings his or her own background and perspective to every case.
That being said, there were four interesting issues in one of my recent custody trials. First, my client was relocating to his hometown out of state, and wanted to take the child. Secondly, both parents had used marijuana in the past. Thirdly, one of the parents has been diagnosed with a mental illness. Lastly, one of the parents allowed the child to ride a 4 wheeler and a motorcycle at the age of 2.
I will address each of those issues, the outcomes and the lesson to be learned in my next posts. First, I'll address the relocation issue.
Relocation issue: In this case, the judge did not allow the relocating parent to take the child with them. The new location offered a strong family support network and the child had spent months of his life in the parent's home town with grandparents. Child care would have been provided by grandparents in the new location. But, the judge seemed to adopt the "if it ain't broke, don't fix it" approach. Even though the parent in North Carolina was relying solely on neighbors and friends for child care, there was some evidence that the child was doing well in North Carolina. So, even though the relocation provided more family support, the judge seemed to favor the status quo.
Lesson: The law requires the judge to do whatever is in the "best interests" of the child in custody cases. It is difficult to convince a judge to allow one parent to move away with the child. It is not impossible, but you may need evidence that the child's current location is bad for the child in some way, and that the new location will help solve those problems. Unless there is a big difference between the proposed location and the current location, convincing a judge to relocate the child is an uphill battle. The lesson for me as an attorney is that judges will frequently apply a "if it ain't broke, don't fix it" approach in these cases, even if a relocation can provide a better situation for the child.
Next week I will address the judge's handling of the marijuana use by each parent. Until then, have a Happy New Year!
PLEASE NOTE THAT NOTHING ON THIS BLOG SHOULD BE CONSIDERED LEGAL ADVICE AND THAT VIEWING THE INFORMATION ON THIS BLOG DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP BETWEEN US. YOU ARE ADVISED TO CONSULT WITH AN ATTORNEY TO CONFIRM THE CURRENTNESS OF ANY LEGAL INFORMATION CONTAINED IN THIS BLOG, AS THE LAW CONSTANTLY CHANGES.
Subscribe to:
Posts (Atom)
Posts
