The “Do’s and Don’t’s” of the Initial Family Law Consultation

Deciding to pick up the phone and make that dreaded first call when you feel the time is right to contact an attorney is a petrifying moment.  It’s one of those times in your life where you just have to take the plunge, dial the phone and make the call.

Once you’ve decided on the attorney you want to meet with, a sense of relief may come over you… until the day of the appointment. Panic, fear, confusion, hurt and uncertainty are all natural expectations that an experienced divorce attorney will recognize and deal with when you arrive.  But don’t let your apprehension overcome you. You made the call. You scheduled the appointment.  It’s time. You know meeting with the attorney is the right thing to do. Continue reading The “Do’s and Don’t’s” of the Initial Family Law Consultation

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.