Grandparents: the silent sufferers when their children get divorced

When parents get divorced, they are encouraged to sort out arrangements for any children between themselves, so that things can remain as amicable as possible. The best interests of the children should be the focal consideration and both parents should continue to have a strong involvement in their lives, so long as there are no welfare issues to consider.

The concept of ‘custody’ was traditionally used to define who children of divorce would predominantly live with; however, this has been abolished and, instead, parents will make ‘child arrangements.’ The change in terminology was an attempt to remove the concept of one parent being the ‘winner’ and one the ‘loser’, and to keep parties focused on making decisions based on what is best for the children.

In the event parents cannot agree on arrangements in relation to their children, they can apply to court for a child arrangement order to be made. Their right to apply is an automatic one, which means that although a parent may worry about the outcome of the application, they can relax somewhat in the knowledge that the court will make the best decision for the children.

Unfortunately the same cannot be said for grandparents in such circumstances. When their children decide to divorce, this can mean an uncertain future in relation to contact with their grandchildren. This is due to the fact that if one of the children’s parents decides they do not want the grandparents to maintain contact with the children, the grandparents do not have an automatic right to apply to court for a child arrangement order to be made. Instead, they must apply to the court for permission to make an application for such an order.

It goes without saying that grandparents in the above position should always attempt to negotiate with whichever parent is making contact difficult for them. However, when such negotiations aren’t successful, many people argue that grandparents should have an automatic right to apply to the court for a child arrangement order.

The above argument is based on the fact that many grandparents have extremely close relationships with their grandchildren, and it can be traumatic for both the children and the grandparents when such relationships come to a very sudden halt upon divorce. Many people also find it unfair that relationships between grandparents and their grandchildren should stop because of ill-feelings between the parents. Neither the grandparents nor the children should be punished because of any animosity between parents.

Whilst there have been parliamentary debates about the difficulties grandparents face in maintaining contact with their grandchildren after divorce, no action has been taken yet. In the 2008 report, ‘Beyond the nuclear: Including the wider family’[1], it is pointed out that the government argues that if grandparents had an automatic right to apply for contact, this could impact a child’s rights being paramount. The government claims that it would be hard for a child’s welfare to be considered, or for their rights to be protected, if grandparents were not required to request permission to apply to court.

The main problem with the government’s argument is that it is not consistent. Any potential welfare issues that could emerge from providing grandparents with an automatic right to apply for contact surely already attach to the existing automatic right that allows parents, or those with parental responsibility, to apply for contact.

It is important to note that no one is campaigning for grandparents to have an automatic right to contact, as this could indeed be detrimental. Instead, they should simply be granted an automatic right to be acknowledged and considered in child arrangements.

Providing grandparents with an automatic right to apply for a child arrangement order, would signify the important role they play in many families. Eliminating the need to request permission to make an application to court would remove one huge hurdle that grandparents currently often need to go through during an already emotionally draining and troubling time. This would make the process easier and, hopefully, in cases where it is appropriate, allow contact to resume as soon as possible.

[1] http://www.fnf.org.uk/phocadownload/research-and-publications/research/Including_the_Wider_Family.pdf

 

New Presumption of Parental Involvement: Is the law too concerned with appeasing the parent?

The welfare of the child has always been the fundamental consideration for courts dealing with child arrangements following a couple’s separation. The welfare checklist set out in S8 of the Children Act 1989 provides statutory guidance that requires certain factors to be considered. Amongst other things, the wishes and feelings of the child and the child’s needs are considered, so that the most appropriate arrangement is reached. Due to the subjective requirements of each child, extreme care must be taken to ensure that the specific needs of the child are met.

Consideration must be given to where the child should live and how often they should see or speak to each parent. Until recently, these matters were addressed through residence and contact orders respectively; however, these were replaced with the all-encompassing child arrangement orders in April 2014. The purpose of the amendment was to shift the focus away from the name of the order and towards the content. Too often, parents were being side-tracked and, instead of focusing on their child’s best interests, they were becoming fixated on becoming the parent with residence. By removing the concept of a ‘winner’ and a ‘loser’, it was hoped that the focus would return to the child.

A further change to the law came into force on 22 October 2014, whereby S1 Children Act 1989 was amended to include the presumption that it is in the best interests of the child for both parents to be involved in the child’s life, unless evidence to the contrary is shown. Explaining the legislative changes, Mr Justice Hughes stated that, “No parent should be excluded from their child’s life for no good reason.”

But when has the law ever allowed this to happen? Surely it goes without saying that as long as it is safe to do so, then parental involvement will be encouraged? Judges have been dealing with parental disputes for many years and reported cases show that even when a parent’s conduct has been questionable some sort of contact has been maintained, as long as there is no risk to the child.

“As a result, one could be forgiven for thinking that the amendment brings nothing new to the table,” says Katie McCann, Head of Family Law for Kuits. “However, what it does do is shift both parent’s involvement from being a consideration to a presumption that is not to be strayed from without good reason.” As Mr Justice Hughes goes on to explain, “This is not about giving parents new ‘rights’ but making clear… that the family court will presume that each parent will play a role in the future life of their children.”

It is important to clarify that the changes to the Children Act do not create a presumption of equal parenting. Although this idea was considered initially when the above provisions were drafted, it did not come into fruition, and rightly so. A presumption of a 50:50 split in relation to parenting would not compliment the welfare principle and would be a potentially dangerous move in some cases. The risks attached to such a presumption are highlighted by Australian family law and the devastating case of 4-year-old Darcy Freeman, who died at the hands of her father in 2009. He had been given access to his children under the Australian shared parenting law, despite concerns from his ex-wife as to the safety of this. This tragic case emphasises that a presumption of shared parenting can easily jeopardise the safety of a child, without relevant checks and balances being in place.

“The UK law appears to tread with caution by expressing that the presumed involvement may be direct or indirect,” says McCann. “Although the importance of child-parent contact is acknowledged, the law is not prepared to endanger the child and therefore indirect contact may be appropriate where there is the potential of harm through direct contact. Although this approach appears to be balanced and sensible, the motives behind the recent amendments can be questioned. There is room to argue that the introduction of child arrangement orders and the insertion of the presumption of parental involvement are both for the benefit of the parent, as opposed to the child.

“As stated above, the involvement presumption has always existed and recording it in statute simply reassures parents that, unless there is a good reason to the contrary, they will remain involved in their child’s life. The introduction of child arrangement orders does nothing more than rebrand contact and residence orders by placing them in a slightly more modern and less stigmatising packaging. Massaging the ego of the parent that does not gain the label of a ‘residence order’ appears to be the main objective. By focusing on accommodating the parents’ feelings, it can be argued that the child’s welfare becomes less of a priority and this is unacceptable.”

The government do not accept that the focus has been shifted away from the child and explain that, on the contrary, the purpose of the changes is to ensure such focus remains intact. They claim that the aim of the legislative amendments is to promote a greater understanding of how the courts reach their decisions in cases relating to parental disputes. The hope is that, in doing so, parents will be persuaded to take a less rigid approach, secure in the knowledge that their involvement is desired.

“It is still early days and one cannot be sure of the effects, if any, of the legislative changes,” concludes McCann. “However, if the government’s outcomes are achieved, it is hoped that parents will stop trying to win the ‘custodial war.’ In turn, this will ensure that focus is placed on accommodating the child’s best interests and this, of course, is the ultimate goal.”

Understanding the Benefits of the Amicable Resolution of Child Custody Disputes

child custody disputesIf you are a parent involved in a Florida marital dissolution, your relationship with your children typically will be a significant concern.  Depictions of toxic highly contested child custody disputes in popular movies and television shows can perpetrate the illusion that most child custody cases are bitterly contested.  However, many parents are able to navigate the challenging emotional issues that can interfere with parents’ communication during a divorce to achieve a mutually agreeable parenting plan.

When an amicable timeshare arrangement can be constructed based on reasonable negotiations of both parents, both the parents and kids generally will benefit.  While the benefit to kids of having their parents deal with one another in a positive cooperative fashion might be apparent, the parents also benefit because they will tend to arrive at more stable and acceptable parenting plan arrangements than a parenting plan imposed by a judge after highly contested litigation of custody issues.

While there are certainly custody cases that cannot be resolved amicably, we have provided an overview of benefits that can be derived from the amicable resolution of custody disputes:

  • Preservation of Financial Resources: When parties are involved a contested divorce, high conflict custody cases can be one of the most costly aspects of a divorce.  A child custody evaluator may need to be appointed with the cost of the custody evaluation paid by the parents.  If the parents cannot cooperate on simple parenting issues, the parties may be forced to return to court to handle matters that are often resolved informally between the parties and/or their Florida child custody attorneys without the need for a court hearing.  If the case is particularly egregious, the case may even require a full scale trial.
  • Lack of Finality: While the divorce process can be amicable, a marital dissolution is still a chapter in the lives of most that they would like to conclude.  If the judge is forced to impose a parenting plan, one or both parties may be extremely unsatisfied with the judgment.  This dissatisfaction may result in one or both party’s violating the terms of the judgment so that contempt proceedings are necessary to obtain compliance by the offending party.  Further, mutual discontent with the parenting plan also may make the parents more inclined to repeatedly return to court to seek modification of the terms of the custody and timeshare arrangements.  While a parent must be able to establish a substantial and material change in circumstances to justify an actual  change in the judgment, a parent may continue to file modification requests making it difficult for the parents’ to move on.
  • Positive Communication between Parents: When parents develop the ability to communicate and deal with each other effectively, this communication will permit the parties to more effectively communicate about issues concerning the kids and to coordinate their efforts when issues arise.  Parents who are able to communicate effectively can obtain reasonable adjustments in the parenting plan without the need for court intervention.
  • Minimizing Adverse Impact on Kids: While the divorce process is difficult for kids, it can be much easier when kids are shielded from animosity between their parents.  A wealth of studies have shown that children fair better when their parents deal with each other in an amicable and reasonable way than during bitterly contested custody cases.  While divorce may end marital status, it does not terminate the need to continue co-parenting so a functional co-parenting relationship can facilitate more effective parenting.

Because Florida child custody lawyers recognize the value of the amicable resolution of custody issues, they can help you navigate the emotional roadblocks that often derail the constructive negotiation of parenting plans when parties proceed without legal representation in custody cases.

A Collaborative Divorce Interview: Clients and their Attorneys

In November 2013, Tyler Nelson and Pamela Nelson of Tampa, Florida, sat down for an interview with The World of Collaborative Practice Magazine.  The Nelsons had decided to Divorce using the Collaborative Process, as they did not want to fight in Court and they wanted to focus on the best interests of their daughter.  Tyler was joined by his collaborative attorney, Adam B. Cordover, and Pamela was joined by her attorney, Joryn Jenkins.  The interview was conducted by carl Michael rossi.

You can find the full interview at The World of Collaborative Magazine, and you can find excerpts below.

Tyler: A child needs her mother and father, even if they’re not together…Pamela was the one who found out about the collaborative process and told me about it. You know, you’re always going to have some kind of fear. Is this going to work out like it should? What is everyone going to have to do to make this work out? But as soon as I spoke with Adam about everything, all of my fears were gone. He explained everything and the way it was going to work, how it was going to work. I’m pretty sure Pam felt the same way, as soon as she spoke to her lawyer, she probably went through everything. That’s the one good thing about our lawyers, that they explained everything that was going to happen before it happened.

Pamela: Not everybody knows about collaborative divorce, yet. We really didn’t know until it was explained to us. It was a better process for us, rather than go to court and fight.

Tyler: Everything that needed to be addressed, has been addressed…Everything that we wanted to agree on, we did, and everything that we wanted put down on paper, it was.

Pamela: We also have different visitation rights with our daughter. More than, likely, other people have. We already had that situated, and we just needed to put it on paper. It was kind of different than normal people, where they only see their kids every weekend. We do our schedule every week, and we split the holidays. We had to work that out, and put that on paper.

Pamela: The judge actually said that she agreed that we were doing it the best way and that we were dealing with the divorce in a good way. Instead of people fighting and it being a bad thing, it was actually a good situation.

Adam: It was interesting that, at the end of that final hearing, Tyler and Pamela had their pictures taken with the judge. It was described afterwards as being not so much like a divorce setting, but strangely enough kind of like a wedding setting. They had their picture taken with the officiating person. Judge Lee was fantastic and was praising Tyler and Pamela for dissolving their marriage in a way where they keep their focus on their children and not on fighting. To divorce in a way that
was in the best interest of their daughter.

Joryn: I can’t remember doing another divorce where the judge congratulated the parties afterwards, and I’ve been doing this for thirty years.

Tyler: (regarding an interdisciplinary team) They told me about the financial manager [Monicas Ospina, CPA], and she was great. So was the psychologist [Jennifer Mockler, Ph.D.], she was great. They were all great.

Pamela: [The financial professional and mental health professional] were very helpful. They helped us with our tax returns, to see who should file for dependency exemptions to get the most out of it. And the mental health professional helped us stay on the same page with our daughter to make sure that we were doing the right thing. The psychologist made sure we were on the same page in how we were raising our daughter and determine what’s best for her.

Pamela:  (regarding the collaborative process) There’s no arguing, you know, there’s not really fighting or going back and forth or going to court or having the records be there out in public. There’s more privacy. I would definitely recommend it to anybody considering divorce.

Tyler: I have to agree with her…If you go and do the collaborative divorce, you have a lawyer there…They are not trying to make us fight. They are just there to write down what we want, and that’s the best thing about collaborative.

Tyler: We all sat down and talked. There was no arguing.

Pamela: The professionals worked around our schedules instead of us being court ordered to go to court on certain times and dates.

Pamela: (regarding going to the state-mandated parenting class) Everyone else was crying and hated their ex and wanted to kill them and I was like “well,
we’re friends, and everything is good.”

Tyler: “If anybody is thinking about doing a divorce, they should look into a collaborative divorce instead of jumping into it and going to court and fighting.”

Adam: “What I found excellent about this process and this couple, as opposed to the court-based divorces that I generally go through, is that when we were sitting around the table together with the mental health professional and financial professional, and we were talking, we weren’t just talking “civilly.”  We were talking in earnest.  We were actually just joking around at a few times and able to communicate in ways that you just couldn’t imagine doing in other divorce processes, even at a mediation table when there is the threat of litigation.

Joryn: “It is a much more protected environment, I think. It freed me up, and I’d like to think Adam, as well, to feel like we were teammates. We didn’t have to be adversaries, even though we were both representing different interests.”

Adam B. Cordover, Joryn Jenkins, Monica Ospina, and Jennifer Mockler are all members of Next Generation Divorce, formerly known as the Collaborative Divorce Institute of Tampa Bay.  Next Generation Divorce is made up of professionals dedicated to respectfully resolving family disputes.

Getting the Most Out of Your Family Law Retainer

family-lawThe day that you most dreaded in your divorce has come—the receipt of your attorney’s billing statement.  After having put it aside, and having found ten other things to open in its place, you are left with the one, unopened envelope, bearing your attorney’s logo, and certainly carrying no news of anything good.  You carefully open the envelope; you are surprised by how many pages fit into that one envelope.  Unfolding the pages of the billing statement, there it is for you to see: every single minute spent on your case, either detailed so precisely, you find it irritating that your lawyer would have been so picayune, or detailed so generally, you cannot understand how that much time was purportedly spent, doing so little.    And what is the only thing missing?  The majority of your initial retainer.

As a St. Petersburg practicing attorney with 26 years of experience in the Tampa Bay area of Florida,  the last twenty years having been spent in family/criminal and personal injury law as Attorney Hanks, P.A.,  I am here to tell you that I take no greater interest or appreciation in creating that billing statement, than you did to open and read it.  And not matter how much I prepared you for this moment when you first read and signed my fee agreement, you likely did not realize the math involved:  .10, the lowest hourly percentage for which most attorneys will bill, when applied to a $275.00 hourly rate, equals $27.50.  Ouch.   Read your letter to me?  $27.50. Sent you that email? $27.50.   That time, last week, when you called me to ask about your hearing date? $27.50.  And that is just at that hourly rate.   Applied to the higher hourly rate of attorneys in bigger cities or in bigger firms, those small activities could run $35.00 each ($350.00 per hour), $45.00 each ($450.00 an hour), and so on.  How quickly then, will your retainer be exhausted?

So, how can you prevent this?  What can you do?  My first suggestion, at least if you are not already in an hourly billing arrangement, is to ask your attorney for a flat fee quote, for part or all of your case.   This is not as unusual as it may sound.  Criminal Defense fees are standard flat fee arrangements.  Personal Injury and Probate fees are usually flat fee arrangements as well, though these will be based on a percentage of the recovery or the amount of the assets.  Professionally, I have had my fill of hourly billing arrangements, even in family law cases.  No client wants to see how much I am charging for an email response and I do not want to account for every email I send a client.  In this age of electronic communications, many of emails are sent when I am out of the office, either in Court waiting for a hearing, in a break between depositions, or even out to dinner with my family.  To have to account for them the next day or days after, becomes a burden.

For the attorney, the basis for a flat fee in a family law case, whether the case is a divorce, child custody, child support or paternity case, is the same as the basis for a flat fee in a criminal case.  Each case is going to have the same initial, basic components, and the same, initial procedures.    For my clients, in a Florida family law case, these are the pleading stage, the exchange of mandatory disclosure (financial documents), and the attendance at an initial, family mediation conference.  I know the amount of time each one of those actions takes, both before in preparation, during, and upon its conclusion.  No matter what the dynamics of the case, these three elements will be present.  For the client, the flat fee is somewhat of a relief.  They know that their case, at least up to a point, will cost  “X” amount of dollars.   I say up to a point, because mediation may not settle all of the issues in a case.  Depending on what issues are left over to be tried, then different amounts of time will be needed to bring the case to a conclusion.  But even in those situations, I will try to provide my client with a flat fee quote for their representation beyond the mediation, and through a trial.

But what if you are already in under an hourly billing arrangement, how do you get the most out of your retainer?

1.  Understand The Billing Arrangement.  Recognize that you are under an hourly billing arrangement.  Recently, I had a divorce client, who had received a billing statement tell me, “I didn’t know you billed for emails or phone calls.”  Well, most family lawyers do, as our time I one of the things we are selling.  Whether we spend ten minutes in a phone hearing on your behalf, or ten minutes answering your email, the cost is the same.   Therefore, clients should only contact an attorney, when he or she absolutely needs advice or information.   If you call me to ask if there is anything new in your case, I will be happy to tell you that there is no new update to provide you, but I have to charge you for having had that phone conference.

2.  The Minimum Fraction of Time: Keep in mind what I wrote earlier, that the minimum slot of time for which an attorney will generally bill you, is .10—six minutes or one tenth of an hour.  If you send me five separate, short emails to review, you will spend much more of your retainer than you would have spent, had you sent me one longer email to review.  The same applies to phone calls.  Ten phone calls over two weeks, will cost much more than one longer phone conference, or even an office conference.

3.  The Attorney’s Assistant or Paralegal.  Whenever possible, is to speak to the attorney’s assistant or paralegal, instead of the attorney.   My hourly billable rate in St. Petersburg, Florida, is $275.00 an hour, but I bill my paralegal at $75.00 an hour.  If you want to confirm your hearing date or time, you can get this information from my paralegal at a much better rate, than getting me on the phone.  Now this will not work for anything that requires legal advice or consultation.  In those instances, the paralegal should put you through to the attorney, but you will then get billed for having spoken to both.  However, for any time that you are simply seeking procedural information, contact the paralegal or legal assistant.  He or she can inform you just as easily as the lawyer can, and at much less of a cost.

4.  Follow instructions.  This would seem to be unnecessary to relate, but I have found this is the source of the greatest increase in billable time, and the greatest reduction of a retainer.   It is, though, quite basic, and at the heart of any successful representation.  Comply with your attorney’s instructions.   When your attorney asks you to provide certain documents, provide them.  I have had clients who have refused to provide many of the financial documents necessary for mandatory disclosure (tax returns, bank statements, etc..), on the belief that those records are either not relevant to the case (Florida’s financial disclosure requirements are the same—whether it is a new divorce or a modification of an older custody judgment), or the client believes the records should not be seen by the other party, for the sake of confidentiality.  This leads to additional and unnecessary communications with me or my paralegal, then to letters and motions to compel filed by the other side, and finally to an actual hearing, so that the client can be told by the family law judge, what I have been telling him or her all along—provide the documents.  And at that point, the client has not only run up his or her own legal fees, but now may be subject to paying the other side’s attorney’s fees, for having to take that step.  It is simply a waste of a retainer, and potentially hampers the progress of the case on the actual issues such as alimony, child support or child custody, if the client has to raise more money to continue the representation.

If you follow these steps, you can guarantee you will make your own legal representation more affordable and more effective.  And as a result, you will be more satisfied with your attorney, and more likely to refer a friend with a divorce, time-sharing or other family law case.  So, both you and your lawyer come out ahead.

 

Mark Hanks, Attorney Hanks, P.A.

Your Family Attorney

www.attorneyhanks.com

St. Petersburg, Florida

Copyright 2014

How Military Divorce Differs from Regular Divorce

Military divorces are much like any other divorce. Two people decide they no longer want to be married, and go through the process of separating property, assets and determining child custody issues. However, the way these concerns are addressed, and the way things are separated between the two parties, requires a consideration of the military member’s lifestyle and benefits. Understanding how survivor benefits and military pensions are divided up, and how custody of children is determined, is important for both spouses considering divorce.

Child Custody

Many military marriages involve an active duty spouse and a civilian spouse. The lifestyle of these families adapts to the military world, with active duty personnel moving regularly for various deployments, and with the military spouse frequently away from home. Families that fit this description should be aware that the courts will rarely grant full custody to the active duty spouse.

When determining child custody, the courts always look out for the best interests of the child. It is understood that, while the active duty spouse is doing much for his or her country, the lifestyle is ill suited for raising children. Military families should assume that child custody will go to the non-active spouse, and this will likely include child support payments.

Division of Military Pensions

Active duty service members are entitled to a pension after 20 years of service. The courts answer the question how to divide up this pension in the case of divorce. Most military couples are aware that the non-military spouse is entitled to half of the pension after 10 years of marriage. However, not all are aware that this division is negotiable.

The couple can come to an agreement on the division of the pension in their own way. This includes if the marriage has been shorter than the standard 10 years, and it includes the possibility of a payout of less than 50 percent of the pension after the 10-year mark.

The 10-year and 50 percent standards are simply guidelines for the court to go on. The arguments presented by both divorce attorneys and the decision of the court can produce a number of different results. Each spouse may wind up with more, or less, than he or she was aiming for.

It should also be noted that only after ten years of marriage can the finance center pay the awarded portion of the pension to the spouse. If the non-military spouse wins some of the pension, but the marriage did not last for at least ten years, it is the responsibility of the retiree to make the payments to the ex-spouse.

Survivor Benefits

Some spouses make the mistake of assuming that the Survivor’s Benefit Plan (SBP) – the payout that happens upon the death of the military spouse – will still go them in the event of death. While the SBP can be awarded to the divorced spouse during the divorce proceedings, this is certainly not guaranteed.

If the ex-spouse is not awarded the SBP, then he or she will stop receiving pension payments in the event that the military member dies. This is something to remain aware of during divorce negotiations.

Military Divorce Lawyer

Spouses considering a military divorce should seek the help of an experienced military divorce lawyer. This will help ensure the best possible results from the divorce.

Death of a Parent: What Happens to the Child?

Child custody is often a tricky subject. Two parents going at it over who will have custodial rights of their child can turn out badly, and the laws that will eventually lead to a judge’s decision are rather complex. Unfortunately, when a parent dies with legal custody of their child, the complexity related to these issues becomes even more daunting. This is why all parents should fully understand what their child may face in the event of a parent’s death.

One Parent still Alive

Many individuals believe that if one parent dies, the other parent automatically has custody. Well, this is true in some cases, but definitely not in all. If the two parents are married and share custody of their children, the surviving parent would obviously retain custodial guardianship over the child. If the parents are divorced, however, the waters can get a bit more murky.

The granting of legal custody to a surviving parent isn’t automatic if the two were divorced and only one had legal custody. Now, it’s important to note that judges are usually inclined to grant custody to the surviving parent, but they’ll definitely consider a few factors before doing this.

The factors considered are similar in many states. According to www.dgtucson.com in Arizona, for instance, along with several other states, judges will consider the child’s wishes, any parental criminal activity, the relationship the parent has with the child and even whether or not the deceased parent stated in their will that they wanted a specific person to have custody. Regardless of what’s going on, the surviving parent, if divorced, will need to file a petition to modify custody.

Both Parents Deceased

If both parents are deceased, child custody becomes a whole other issue. As in most cases after a custodial parent’s death, a judge will grant temporary custody to someone seen as fit for raising the child. Unfortunately, if there are no surviving family members, such as grandparents, and the parents didn’t leave a will, the child could end up in foster care.

This is why it’s essential for parents to have a will stating who they’d like to care for their children in the event of their deaths. In many cases, the courts would decide upon having a child stay with other family members, but if a parent prefers to have a godparent or friend care for their child, they’ll need to have this in their will. This is also imperative if there are no other surviving family members.

In cases where both parents die and there are multiple parties seeking custody, such as a godparent and grandparents, an individual will need to file a petition for custody with the courts. This is basically the case in most situations involving the death of at least one custodial parent, and it would behoove a person to seek out a family law attorney to help in their quest for custody.

The death of a parent can be devastating for a child. Unfortunately, months following the tragedy can be just as difficult if a custodial plan wasn’t figured out before their death. Even in the presence of a will, however, child custody can be contested. According to the lawyers at www.dgtucson.com, family law may often seem straightforward, but it can be extremely complicated. There is no steadfast rule of law that will determine who gets custody every time. Judges are tasked with deciding what’s best for the welfare of the child, and in reality, this is usually a good thing.

Florida Same Sex Separations and Collaborative Family Law

Though the U.S. Supreme Court recently struck down portions of the federal Defense of Marriage Act (“DOMA”), state DOMAs were not affected by the ruling.  This means that same sex couples cannot get legally married in states, such as Florida, that enacted a DOMA.

This also means that gay and lesbian couples cannot get divorced in many DOMA states and oftentimes do not have any legal remedy to separate.  If the domestic partners did not adopt each other’s children, even if both partners had been considered the parents of the children, then child custody, visitation, and child support laws usually will not apply.  Equitable distribution laws (laws related to division of marital assets and debts) do not apply, so separating property and liabilities can get real messy, real quick.  Further, alimony and spousal maintenance laws do not apply, so a partner who spent years homemaking and taking care of children may suddenly become destitute.  So what are separating same sex couples to do?

Domestic partners who are dissolving their relationship should seriously consider entering into a collaborative family law process.

Collaborative family law is a form of private dispute resolution that allows clients to enter into agreements and achieve results that could never be attained through a court process. Each client retains a separate attorney who advises and counsels the client and helps in the negotiating process.  A neutral facilitator, who is a mental health professional or mediator, helps the clients focus on their interests, such as the welfare of clients’ children, continued relationships with each other’s family members, or financial stability.  If there are substantial assets or debts or a business, a neutral accountant or financial planner will be brought in to educate the parties in finances, help fairly and cost-effectively divide property and liabilities, and, if requested, develop a budget for the clients’ future.

As you can see, collaborative family law is a holistic process that takes into account not only the legal, but also the emotional and financial needs of the clients.

The crux of collaborative family law is that the clients agree at the beginning that they will not seek to resolve their dispute through court battles, but rather they will come to a mutually agreeable settlement through this private process.  The clients, and their attorneys, enter into a participation agreement which disqualifies the attorneys from representing the clients in any contested court action.  This provides a safe space in collaborative meetings because each client knows that the other client’s attorney is not conducting opposition research and is committed solely to helping the clients reach a mutually acceptable agreement.  This allows clients to feel more comfortable offering and listening to potential solutions.

In truth, the disqualification clause has much more of an effect on heterosexual couples who are getting divorced, rather than homosexual couples who are separating.  This is because, as stated above, most DOMA state courts just do not have remedies that would properly address the clients’ concerns, and so attempts to fight it out in court will oftentimes be dismissed.

If you are experiencing a same sex separation, make sure to speak with an attorney who offers collaborative family law, and check to see whether the attorney has received collaborative law training that meets at least the minimum Basic Training standards of the International Academy of Collaborative Professionals.

If you have questions regarding a Tampa Bay collaborative family law process, or you want to learn more about your Florida family law rights, schedule a consultation with The Law Firm of Adam B. Cordover, P.A., at (813) 443-0615 or fill out our contact form.

Adam B. Cordover currently serves as Research Chair of the Collaborative Family Law Council of Florida and Vice President of the Collaborative Divorce Institute of Tampa Bay.  Adam successfully spearheaded an effort of the Thirteenth Judicial Circuit of Florida to draft an administrative order safeguarding the principles of collaborative family law (just the fourth such administrative order in Florida) and has completed over 40 hours of basic and advanced collaborative family law continuing legal education credit.

 

Factors That Will Determine The Outcome Of A Custody Battle

Child custody laws are meant to provide a legal structure to govern relationships between divorced parents and their children. Preferably, divorced parents are supposed to work together to have a cordial agreement to have shared custody, but this if often not possible due to resentment between the divorced spouses who tend to drag their children in the divorce and marital disputes. This raises the need for you to hire a divorce attorney or a child custody lawyer to assist you in your child custody battle.

The best interest of the child is the major focus in determination of child custody. Thus, every aspect of both parents life, both past and present, is put under scrutiny so as to determine which parent is most suited for child custody.

Here are some of the factors that will determine the outcome of a custody battle:

Stability

This is a general term referring to different aspects of an individual’s life. You need to have your life together for you to be awarded sole custody of the child. The factors to be considered here include your ability to provide safe home, environment and social setting for the children, your employment status and financial security, criminal history and psychological stability (history of substance abuse, mental illness, and child neglect or abuse). Thus, you must prove in court that you are more stable than your partner.
Relationship With The Children

The court knows that quite often, spouses file for full custody of the child just to hurt their ex without necessarily having developed a relationship with the children. Thus, it is important to leave out personal vendettas out child custody cases because the court will investigate whether you have strong ties with your kids. Thus, the court is likely to award custody to the parent with stronger emotional ties with the children.
The motive

Just as mentioned earlier, some parents may seek custody just to get back at their spouses. Though it’s normal for parents to want to be with their kids, you must prove to the court that it is in the child’s best interest to be awarded sole custody. For instance, a father asking for sole custody of children less than 5 years does not consider that this can emotionally hurt them or can create an emotional barrier with their mother. Thus, the court is likely to award custody to the parent who can prove that his or her motive is in the best interest of the children.
The wishes of the child or children

The child’s wishes can also be taken into consideration in determining custody cases. Nonetheless, this factor is greatly dependent on the age of the child where the preference of children below 6 years old may not hold as much weight in court as the preference of children above 12 years.
Other factors that will determine the outcome of a custody battle includes:

* The health of the parents and the child’s age, sex and medical needs
* Impact of changing living arrangements to the child or children
* Quality of life, including health, education and social life while living with one parent
* Effect on the child’s established lifestyle which includes school, home, church etc.

Is It Possible To Win a Child Custody Battle Without a Lawyer?

(Guest family law blog post based on family law practice in the US and generally; Views are those of the author and not necessarily those of FamilyBlawg)

Are you wondering is it possible to win a child custody battle without a lawyer? Well, the good news is that you can get some respite from the struggles involved in child custody proceeding. This is because you can embark such a proceeding without legal representation.

Here’s a list of 5 Easy Steps To Win A Child Custody Battle Without A Lawyer:

Step 1:
Go to a clerk in the court and obtain a motion for child custody or modifying a child custody form. The court clerks will typically maintain these forms, required to address a range of custody issues. Some locations allow you to download relevant forms available on the court’s website. Indicate to the court that that the existing custody arrangement is no longer serving the best interest of the child. Complete the motion for modifying the child custody form. Take care to follow all the instructions given by the court clerk.

Step 2:
Study your state’s existing child custody laws. You can easily undertake this by accessing the legislature website of your state. Additionally, you can visit a Legal Aid office or law library, where you could read about the relevant legal provisions, find forms or copies of motions, ask questions and understand more about successful child custody cases.

Step 3:
Keep a detailed record of all calls and visits with your child. If you have issues with the other parent not allowing you visits or late visits of the other parent, write them down to use during the hearing. Participate in all social, psychological and home evaluations. This will facilitate your case in moving forward quickly. It will indicate to the judge that you are co-operating. You could give a specific example if there is a change in circumstance, in order to support your request to change custody. For instance, if the custodial parent has developed a problem related to substance abuse, it can serve as a sufficient status quo alteration in the given situation.

Step 4:
Obtain your hearing date either from an administrative assistant for the judge assigned to your case or from a clerk of the court. On the day of the scheduled hearing, present all the evidences to support your request for child custody or to support the requested modification of an existing custody arrangement. Learn all the local court procedures and rules. Every court has their procedures and rules for custody cases. Find the procedures and rules followed by your court.

Step 5:
Prepare for the court hearing a week in advance. Gather all the important evidence, motions, exhibits, rules and laws. Make a short summary to be read aloud in the court, favoring your case. Mark all the important key points for you to remember. Reach on time to attend your hearing. Carry all the notes, exhibits, responses and your evidences supporting your child custody application. Dress appropriately, preferably in a business attire. Address the judge appropriately, as “Your Honor,” speak clearly and follow all the court rules.

Remember, the decision to obtain or modify child custody, is an emotionally challenging and legally complex procedure, under the family law proceedings. Prior to taking any action, you must correctly comprehend the essential elements associated with an existing order for child support without undertaking any legal assistance.