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Friday, July 25, 2014

Orders Are Not Magic Wands

This issue has been popping up a lot lately with my clients, clinic clients and in talks with other attorneys.   So I thought I would write about it in so I can just print it off and save my vocal cords.   

If you are involved in family law litigation there is a reason for the litigation.   A relationship is breaking up.   Sometimes it is just two people deciding they are not comptatible.   But those cases mostly don't involve litigation.   They work out an agreement and a hearing is only necessary to formalize the agreement in an order or, in Maryland, the divorce requires a final hearing with testimony even if uncontested.   I'm talking about the ones where there is a not so amicable break up of the relationship.   

What I've been hearing lately is "I've got the Order requiring the other person to do something and they aren't doing it."    Sure you can file for contempt if you want, but if the person doesn't really want to do it, you are going to be in court A LOT until the Court finally gets irked enough at the behavior to throw the person in jail for contempt.   Basically, an Order tells someone what to do, but it doesn't change who  that person is fundamentally.    

Some examples:

If the other parent skips for job to job, has long periods of unemployment, was irresponsible about paying bills that sort of thing, a Child Support Order is not going to make the person go "Oh wait, I am required to financially support my child, I better get and keep a job."   If the parent was a deadbeat before the Order, they are going to be a deadbeat after the Order.   That parent will not suddenly become financially responsible.   What I get with this is "Why doesn't he/she pay the child support.   It's an Order."   The answer usually is "If they were going to pay it, even if unemployed they would be paying what they could."  

The above goes for alimony too.   If the person wanted to pay alimony, there wouldn't have been a fight over it.   And some people are just hopeless with money.    An Order will not suddenly make them manage their money better.   If they didn't pay their bills on time before and always faced late fees, guess what is going to happen when it comes to paying you?   Sure you can judgments for nonpayment of alimony and child support.   But if the person has no money and no job, what good is a judgment?   Or as I say "judgments make lovely wallpaper."

If the other parent never went to school functions, doctor's appointment, kid's sports games, or even wanted to spend time with the child, a Custody Order will not transform him/her into parent of the year.   Really, it won't.   If the parent always wanted to go out partying with friends on weekends rather than do stuff with the kids, that is not going to change just because that parent has the kids every other weekend.   A bad parent will just be a bad parent with a Custody Order.   Here you can't even get Contempt.   The court is not, I repeat, not going to order the other parent to take the kids if the parent really doesn't want to take the little angels.   It is not in the kids' best interest for that parent to be forced to take the kids, only to have them ignored.

If the other parent always puts the kids in the middle during the ltigation and played mind games with the kids, same thing will happen with the Custody Order.   You can have an Order that says don't mentally abuse the kids, don't talk about the other parent in front of the kids, etc.   Guess what?   They don't care.   They really don't.   They do not care how much that hurts the kids.   If they cared, they wouldn't do it in the first place.   Here, if the problem persists long enough, you might be able to get custody changed so the kids spend less time around that parent.   But the kids are still going to spend some amount of time with that parent.  The parent will just have fewer opportunities to expose the kids to the behavior.   Also, how do you prove it to the court?   "Oh the kids will tell me what is going."    Can you say "hearsay?"   I thought you could.   Yep, anything the kids tell you is not admissible.   And you are not going to the parent who forces the kids to come to court to talk about the situation.    Not unless it is an extreme case.   Because if you do, guess who is putting the kids in the middle now?   So all you got is hearsay.   The court might admonish the other parent but that is about it.   The behavior is unlikely to change until the other parent wants it to change.

In summary, you can get the Order, but don't expect miracles.   I am not saying don't try to enforce Orders but be realistic about what the court can do.   The court cannot magically transform someones personality (from the conversations I have had with masters and judges, they wish they could sometimes).   You have to accept these limitations and decide if trying to force the other parent to change is worth your time, effort and money to pay an attorney to be constantly going after the other parent.  

Monday, June 9, 2014

The Power of Two

One night at clinic, I was chatting with a client and I realized how much in family law revolves around the number 2.   Which makes sense.   In family law, you are taking 1 family and splitting it into 2.   Fortunately, that is about all the math I have to do.    But let's talk about some of the way 2 pops up in a typical case.

First of all is Custody.   Oh boy, custody loves the number 2.   There are two types of custody  -- residential (often called physical) and legal.   Residential is where the child puts his/her head at night.   Legal is the big decisions like non-emergency medical, or religion to raise the child.  Both of these types of custody also have a 2 -- joint (sometimes called shared) and sole.   Those are pretty self-evidence.   Joint, does not mean 50/50 though.   It just means substantial time with both parents.  You can get very creative with joint residential custody.   One thing the courts tend to hate in Maryland is the week on and week off.   Parents seem to think that is the most natural way to do it, Courts do not.  

Alimony.   In Maryland we have 2 types of alimony -- rehabilitative and permanent.   Rehabilitative is what is needed to get the recipient back on their feet and on with their post marital life.  Permanent is one where the marriage was of such a length (usually over 20 years) or the receipient because of training, education or disability, or age will never be self-supporting.   The court prefers rehabilitative.   Neither one is meant to mean equal lifestyles.   Just because you were living at the lifestyle of a millionaire before the divorce does not mean you get to live like one afterwards.   And rehabilitative alimony means you are expected to get a job at some point.   No more having a job that consists of collecting your alimony check each month.

Even the grounds for divorce have a 2 component.   In Maryland most of the grounds for divorce require a 12 month separation.   And they mean SEPARATE.   Not just living in different rooms of the same house, they mean separate roofs.   There is a case where the husband was living in the garage apartment but because it was an attached garage that didn't count as separate and apart for the 12 month period.   But, there are 2 grounds that do not require at least 12 months separation -- domestic violence and adultery.   Which makes complete sense.   Both are of such a nature that they destroy any legitmate marriage.   Domestic violence is wrong and you should not have to wait a year to divorce someone who dares to treat their spouse in such a manner.   Adultery is a little different.   It's the 21st Century people have sex.   But not everyone approves of sex outside the marriage bounds.   If both spouses want to have fun, or approve of an open marriage - no adultery.   But if one believes in no extramarital relations, then the legitimate ends of marriage are destroyed by someone cheating.  

That pretty much covers it.   Today's post was brought to you by the Number 2.

Sunday, February 23, 2014

From Whom Are You Taking Legal Advice?

Probably the most common thing I hear as a family law attorney is "My brother's cousin's best friend's nephew told me I can get [x] in my case."   X, of course, being whatever the person talking to me really wants to happen in the case.   Usually, this involves being told if you get joint custody, you don't have to pay child support.

In my crankier moods I want to respond with "And where did this person go to law school?"   In nicer moods, I patiently explain why that might not be possible in this particular case.   Especially the joint custody gets you out of child support one.   That one is highly unlikely.  

People always want to argue based on what they heard, saw on tv, read in the paper, whatever.   The problem is that 1) the people they are talking to are not lawyers and/or 2) every family law case is very fact dependent.   Within the law what is possible in one case might not be possible in another.

What really baffles me is that people are paying me to give them legal advice, then challenge me when I give it to them.   I and every other attorney went to law school.   We passed a bar exam.  We are qualified by the authority that granted our law licenses to give legal advice.   Why would listen to someone with no legal training over someone who has all that?   I know, people want to hear good news.   They want to hear that what they want is possible.   I get that.  But, once you are told by qualified people that what you want is not possible and they have explained to you why it is not possible, you should listen.

Family law cases are stressful enough.   They are not fast either.   A case can take months to get to trial (but usually not years).   Involving family members and friends by listening to their legal advice over that of your attorney, only makes the matter harder and longer.  

Obviously, ask questions of your lawyer.   Make your lawyer explain until you understand.   After all, you are the one who has to live with the consequences.   But don't make a difficult matter worse by taking the legal advice of non-lawyers over that of your lawyer.

Friday, February 14, 2014

Relaunch - Refocus

When I started this blog, the idea was to use sports to explain family law.   I quickly found out that the most common problem athletes run into is not paying child support (hey they are just regular folks after all).   There were only so many times I can say "Dude, pay your child support."   So the blog kinda faltered.   Okay died like the Broncos offense when faced with the Seahawks D in the Super Bowl.   Definitely not pretty.

I also found myself tweeting a lot about stuff I saw in family law that day at the courthouse or heard about  or just thought of.   A lot of that stuff does not really explain well in 140 characters.

Combining these two things made me realize its time to relaunch this blog.   Same name, new focus.   I am just going to talk about family law issues in good plain English so someone who is dealing with the court system for the first time can understand it.   Understand it enough to work with their attorney to achieve a realistic result.   What I post here is not legal advice, might not apply to a particular situation faced by a reader and quite, frankly, should not be relied on solely in court.   Family law is emotional.   You need an attorney to help you deal with the legal stuff, so you don't have to deal with it and the emotional stuff too.

Obviously sports will still creep in.   It can't be helped.   That's who I am.  Even my non-sports liking clients get sports metaphors.

Hope you enjoy the new focus.   Feel free to comment often.

Thursday, August 22, 2013

Must Be Nice

Tim Duncan recently finalized his divorce in a private hearing held at his attorney's office.  Yes, the judge left the courthouse -- on his lunch hour -- to grant Duncan his divorce in private.   His ex-wife's attorney was there so clearly it was okay with her.   No notice of the hearing appeared on any docket.   Must be nice to be able to get a judge to give up his lunch hour to grant your divorce.

Now, there are good reasons for this.   The media scrum at the courthouse might have been pretty bad if the hearing were made public.   But, on the other hand, court proceedings tend to be open for a reason -- so the average Joe and Jane can see the justice system works.   That nothing is hidden.   Hearings like this lead people believe there is one system of justice for rich folks like Tim Duncan and one for the rest of us.   I work for the rest of us.   I represent folks who going to the courthouse and spending time even in court for even a simple uncontested divorce means time missed from work.   Unpaid time missed from work.   Believe me, I wish I could get the judges to have hearings in off hours so my clients don't have to miss work.  But it's not going to happen.   First, Judges deserve their lunch hours too and shouldn't miss it just because someone wants a divorce.   Second, because the judges are at the courthouse, we go to them, they don't come to us.

Now, Tim and the former Mrs. Duncan are to be commended.   They apparently went about getting divorced with minimum fanfare and fuss.   They apparently reached an agreement and the divorce hearing today was uncontested.   This is great.   More people should do this.   Fighting over every little thing doesn't save the marriage, it just makes the end of it that much harder on everyone and means the animosity will linger longer.   Agree where you can.   Be reasonable at all times.   The sooner you reach a settlement (without being a doormat, of course) the sooner you can move on with your life.

Thursday, June 20, 2013

Update -- And Custody Goes to the Cousin

The judge has ruled in the custody case for child in the Belcher-Perkins Case.   After listening to testimony and at least one expert witness, the judge decided that the cousin of the child's mother should have permanent custody.   He felt that both the paternal grandmother and the cousin would be good guardians but the cousin was better.

He also stated all those involved should remain involved in the child's life.   However, it's not clear from the news report whether this is formally in the Order.   If it is not, I foresee lots of trouble ahead.   If there is no Order to at least allow the other family members -- especially Jovan Belcher's -- access to the child, the cousin can simply deny any and all acess.   One hopes she won't do that.   However, it happens far too often in contested custody cases.   If one person has all the control over access, then they go power hungry.

This is more likely in this family considering the cousin will have to put aside her personal feelings about the family of the man who murdered her cousin.  I hope she can for the child's sake.   The child needs to know both sides of her family -- regardless of the circumstances that led to her being orphaned.

The other good news in the case is that no family member controls the very large trust fund.   A corporate trust company is managing the funds.   This will ensure (hopefully) that there is money left when the child turns 18.   And reduces the need to control access over money fights.

Sunday, June 16, 2013

Happy Father's Day

Probably should have done a post on Mother's Day too.   Oh well, this blog covers family law issues in the sport world.   The sports I cover have mostly male player, so, Father's Day gets more attention.   Which is unusual.

Good knows we talk enough about fathers here.   Especially the ones who don't pay their child support.   I don't care how many kids you have -- pay your child support.

I don't care how difficult the moms are, take every second of your court ordered visitation.   There is NO excuse for not spending time with your kids.   Fine, being a professional athletes doesn't exactly lend itself to every other weekend visits.   Do what you can.   You don't have to go that party in Miami.   You don't have to go to that other sports's championship game(s).   Spend time with your kids.   Or hey, bring your kids.   They would love it.  

Two tweets (god I hate that word, someone give me an alternative PLEASE) gave some really good advice this Father's Day.  

Wanna say Happy Fathers Day to all the good dads out there. Wanna change the world? Starts w/the man in the home. Raise your kids!

"The most important thing a father can do for his children is to love their mother." - Theodore Hesbur

On that last, you don't have to be married to the Mom or living with her.   But you damn well better treat her with respect -- no matter how she acts.   And you better not bad mouth her to your kids, or let your kids see by any of your actions how you truly feel about her.   This is the mother of your children.   Without her, you would have a reason to celebrate Father's Day.   Got it?  And I don't want to hear about that she doesn't do the same.   Two wrongs don't make a right.   Be the better person.   Set a good example for your kids.   That is the best gift you can get for Father's Day, knowing your kids will grow up to be good, respectful productive members of society.


Saturday, June 1, 2013

Who Gets the Kids -- When Mom and Dad Are No Longer Around

Custody is usually decided between Mom and Dad.   After all that is the point of a custody order -- to decide with whom the kids will live when.   If Mom and Dad are living together, there is no custody to decide.   If only one parent is available for some reason such as hospitalization, incarceration or sadly, death, then that parent gets custody.

Grandparents have few rights to get custody of kids.   If Mom and Dad are both around, they have almost no chance.   Even if one parent is gone, the parents of the missing parent do not just step into the void created and act as the other parent.   The surviving available parent is sole custodian of the children.   With all the rights to determine who sees the child when as before.  

Grandparents can get custody but there are some hurdles to overcome.   In Maryland you have to show extraordinary circumstances and unfitness of parents.   These two actually go hand in hand.   If the parent is unfit, there are extraordinary circumstances.   If there are substance abuse issues or incarcerations, the parents are not fit to have custody.   Usually in those situations, the child has been left with a grandparent anyway.   The grandparent then is really just getting the court to recognize legally what the situation actually is.  The grandparents are the primary caregivers of the child, making all the decisions for the child.  

But what happens when both parents are gone?   That situation is playing out in a Missouri Courtroom beginning June 11.   The underlying facts are as follows:   Jovan Belcher of the Kansis City Chiefs shot and killed Kasandra Perkins, the mother of his child last fall.   He then drove to Arrowhead stadium and killed himself in front of his coaches.   This left a little girl with no parents.  His mother was present for the shooting.   In the immediate aftermath, she began caring for the child.   She allowed the parents of Perkins to take the child to Texas for her mother's funeral.   The Perkins family then refused to return the child.  The child is currently being cared for by a cousin of Perkins.

It is up to a judge to decide which family it is in the child's best interest to live with.   He will have to look at a lot of factors, not the least why this child is an orphan.   He will also have to evaluate whether the requests to care for the child are motivated by true love and affection for the child or money.   You see the child is quite wealthy.   There is insurance money as well as a fund set up for her.  Whoever gets custody will most likely get control of the money.

Of course, the court could craft a compromise.  Physical custody with one family, visitation with the other.   Although until the child is old enough to travel alone (which won't be for years, she is only 8 months old now), the families will have to meet.   How do the families meet knowing that a member of the Belcher family killed a member of the Perkins family, leading to the current situation?   As for the money, both grandmothers could be appointed joint trustees with a requirement for agreement on any spending.  That should keep any one family from exploiting the child.  

This is one of the hard ones.   Deciding custody between two fit parents is hard enough.   Add in a murder and it becomes the stuff that keeps judges awake at night.

Sunday, February 10, 2013

NCAA and Custody

Last week was National Signing Day.   Normally I don't care where high schoolers are going to college (unless related to me).   This blog is about professional athletes and their family law problems.   College students -- even pre-college students -- are not technically professional athletes.   But hey, the schools will make millions off the sweat of these kids and this is too good a story.

Alex Collins a star player in Plantation, Florida went to his high school to sign his NLI.  He wants to go to Arkansas (soooey).   His mom wants him to go to Miami (uh yeah whatever they say there).   She took his Letter of Intent and left the building.  The obvious solution is "Get another Letter."   Apparently it is not that easy.   Although some of these high schoolers are 18 and will most likely be 18 by the time they play for their chosen school, the NCAA apparently requires a parent to co-sign.

So end of story unless Alex can talk him mom around right?   Well, Alex did what we all did when we were kids.   Mom said no, so he asked his Dad.  They got  a new letter and signed it the next day with Dad co-signing.

Mom retaliated by hiring a lawyer.  She is exploring her legal options.   Not sure what they are with regards to forcing her son to go to a school he doesn't want to go.   He's going to play football, it's not like she has to pay for his education.

But she might have grounds to challenge the legality of the NLI.   Alex's Mom and Dad are not married.   Presumably there is a custody order.   Custody takes two forms -- physical and legal.   Physical is where the child lays his head at night.   Where does Alex sleep (or supposed to sleep, there are indications he actually lives with his coach) on a regular basis?   Physical custody won't mean anything in this mess.

Legal custody is the big one.   Legal custody is the big life decisions about a child.   What religion is he raised in?  Does he attend public or private school?   Do we allow him to play football?  And the big one -- who can legally sign documents on the child's behalf.

Legal custody can be joint or sole.   If joint, the parents must consult with each other and reach shared decisions about the child.   If sole, only one parent makes the decisions but should keep the other parent informed.

If Alex's Mom had joint custody with Alex's Dad, it may be determined that either parent could sign the NLI just as if there were no custody order.   If Alex's Mom had sole though, Dad might not have had authority to sign it.   If Dad had no authority, the signing is void.   Which means Alex is back to persuading Mom to let him cut the aprons strings and move away from home.

I am going to keep watching this to see if anything actually happens from Mom retaining a lawyer.

Thursday, November 22, 2012

Keep the Ex and the New SO Apart

Thanksgiving, that time when families comes together -- and custody handoffs occur.   Everyone wants the little angels to spend Thanksgiving with them, not the other parent.   But hey, there is a court order stating otherwise.   The Court Order controls.  

So, the split has occurred and everyone has moved on.   There is a new Significant Other in one parent's life.   Gues what, this new SO is NOT a parent.   They should not be involved in the Custody Order, the pick ups or the drop offs.   Even if the new SO lives with the parent.   If the pick up and drop off occurs at the house, the new SO needs to make his/herself scarce.   No confrontations at the front door, in the living room, in the driveway.

Did I say the driveway?   Yep, that is what happened to Halle Berry with her new fiance and her old boyfriend (who happens to be the father of her child).   Halle is already irked because she was not allowed to move to France.  Turns out dad has rights.   Go figure.   Money does not trump that.

So, Dad has the little cutie overnight and returns her today.   All nice and correct.  Until the new fiance decides to insert himself in the situation.    He approached Dad during the dropoff and tries to make nice.   Which seems like a good thing -- except it is not his job to do that.   He needs to stay out of the situation between Halle and Daddy.   It is not his business.

Now, what Dad did is not right.  He charged Fiance and started a fight.   A serious fight which ended with both men in the hospital.   Dad is also facing misdemeanor charges.   Which is wonderful example to set for his kid.   Fortunately, Halle rushed the child into the house as soon as the fight started.   But kids are not stupid.   She is old enough to know daddy and Mommy's new friend got into a fight.  

Yes Dad was wrong to treat a gesture of conciliation as an invitation to fight.   However, again, fiance needs to keep his nose of things that are none of his business.    I get more calls in my practice after the case is over where the new person in the other parent's life is causing trouble.   Talking trash, trying to take the parent's place in the kid's life, disciplining the kids, and generally interefering.   This could all be avoided if the new SO just understood - you have no rights to these kids so stay out of it.   If the parent insists on inserting the SO into the situation, rather than dealing with the other parent on his/her own, that is equally wrong.   The parents are the parents.  Period.   Keep others out of it.  

Or it leads to this -- someone going to jail.   And a child who feels horribly caught in the middle.

(okay, this one is not sports related, but it was too good a lesson to teach.   And it was Halle Berry, I am not dumb enough to miss the SEO implications of that)