Talking to the other parent

A friend of mine did a very thoughtful blog, in which he suggested that we have parents refer to one another as the co-parent rather than the ex.  Nate Riggs had some very good insight into this issue: http://nateriggs.com/2011/01/23/the-thing-about-ex/  Nate is a very smart guy and has some excellent insight into the situation.  Also, I recommend you follow him if you are interested in learning about marketing and social media.

So I have really been thinking about this idea lately as I try to help clients navigate the difficult waters of custody and visitation.  So today, when I was grabbing lunch at my favorite Subway, I was nearly brought to tears as the man sitting at the table across from me got into a very hostile confrontation over the phone with what is to apparently be his ex-wife.  I felt bad for him, because I think he originally called just to confirm or change a pick up time for the kids, and he was probably not expecting this battle.  But the whole thing escalated to the point that they seemed to be arguing over when to have the exchange for the children - 7:30 or 8:00.  I couldn't believe it!  He was saying, "I will do this," and "You will do that."  I was afraid he was going to his something, as his face turned redder and redder.  Obviously, communication was not going well.  If I had known him, I would have tried to take his hand and give him a reassuring look to help him calm down.  But then, as if he was suddenly aware that people could hear this going on, he stormed out of the place, but only to step out onto the sidewalk.  We could still hear him, but could not make out the words.  Then I thought, how can we change this system?  And I realized we can only do it one step at a time.  So I decided to pack out and head out to talk to him.  I did not have very far to go, and he had just wrapped up the call.  So I said to him, "I understand if you want to tell me to shut up, but I couldn't help from overhearing and I just wanted to share something with you."  He was more than willing to listen.  I told him about Nate's post, about co-parenting, and about saying things like "Can we exchange the kids?"  instead of "I" will do this and "you" will do that.  I told him that I was sure that they knew how to push each others buttons, which used to be a good thing, but now is a terrible thing.  We chatted a bit about the situation.

After we parted, I felt hopeful that those kids might have a chance at having both of their parents parent them.  The man seemed very sincere and earnest and really willing to try to make it work, but he was very frustrated because he could not get himself out of the pattern of the relationship he had with his wife, which was obviously not good.  I still want to cry about this, but I am feeling hopeful.

What do you think?  What do you think we need to do to change the system?  How can we make this work and really start co-parenting practices in the best interests of the children?  Let's get a dialogue going, shall we?

My Musings on custody matters

I do a lot of custody cases where the parties are not married, and these can be the most difficult cases.  With a divorce, the parties loved each other at one time, have developed a relationship, although it is obviously not healthy at the time of the divorce, but they are used to the idea of working as a partner with that particular person.  The partnership may not be healthy, but the dynamics of a partnership are present.

In juvenile custody matters, the parties are typically not married, and likely had very little if any relationship to work on.  Usually they were dating and they were boyfriend and girlfriend, but they were just having fun, not worrying about paying bills together, saving money together, planning a future together.

And then a baby comes along.

Now you have two independent people who have to carve out not only a relationship, but an unexpected relationships that is guaranteed to last at least 18 years, whether they can stand each other or not.

And this is where the ability to compromise becomes essential.

Of course, it is not appropriate for one parent to "compromise" by giving in to all of the demands of the other party, but it is important for the parties to figure out how to work together.

But there are so many barriers to this.  For one thing, one or both of the parties may feel abandoned or ignored by the other party, or they just may feel embarrassed about the obvious - that they had a sexual relationship with that person and birth control failed or was not used.

Both parties are not used to the idea of partnering with another person to make important life changing decisions.  Until the baby came along, they were deciding where to go to dinner or where to spend a vacation together.  They were not trying to figure out how to clothe, feed and educate a child.

The new parents are also not used to the idea of deferring gratification for the benefit of another.  Usually these parents are young and they are still being told that the future is whatever they want to make of it, that they have opportunities, that the world is their oyster.

These barriers can also serve as an impetus to change and grow.  The future is still whatever you want to make of it, you just have to remember that your child needs to be part of that future.  You can still reach out for your dreams, as long as your other hand is holding your child's hand tightly.  The world is still your oyster, you just have to share it with your child.  AND you have to keep the other parent involved as well with regard to issues involving your child.

This may not sound much like legal information, but these issues need to be addressed early on in an custody or paternity case, because the way we decide to handle this matter will impact everything about the child.

If the parents can figure out how to make shared parenting work, for example, then they are both assured of having full involvement in the raising of that child.  If both parents have their own ideas of how the child should be raised and cannot reach a middle ground, there is a risk that they will always be competing and might even risk alienating the child from one or both of them.

Often a new parent will tell me all of their dreams for their child, and I am happy that they have dreams for their child, but I also know that the child is going to reach an age where the child is going to start having his or her own dreams, and as a parent we have to learn to nurture those dreams and let our child know that the future is whatever he or she makes of it and the world is his or her oyster.  I usually don't say anything, though, because I think the new parent sitting in front of me will probably have to find that out on his or her own, much as I had to do.

In the meantime, legally, we have to make decisions, such as custody, visitation or shared parenting, that will have a long lasting impact on the relationship between these three people at a time where the parents are usually not ready and the child is a complete unknown.  For example, it breaks my heart to have to remind the parents of an infant that we need have flexibility in a shared parenting plan because we do not know if the child will actually be able to attend a particular school that the parent wants guaranteed.  Maybe that school won't work because a parent has to move outside of the school's district or the child won't be able to cut it or their might be a special need that the school cannot address.  When you have an infant, you look at these comments as negative.  Once you have raised a child, you understand that these challenges are all part of the joy of raising a child and you revel in the joy that you were able to guide your child through that difficult time so that your child was able to overcome those obstacles and strike out on his or her own.

And this probably explains why I love doing this work.  Even when the parents are fighting, I know that this is just part of the process that can result in a win-win situation for the child.  My goal is to help the client navigate to a position where the child is protected and my client-parent feels that he or she has a voice in making decisions for the child and in raising the child.  This is usually a struggle, and sometimes is more of a struggle than other times, but it is a noble goal and I am happy that so many clients agree to let me be part of the mechanism that helps them get there.

Anyway, enough for musing.  Back to work.

What Columbus CEO Monthly left out....

I was recently quoted in Columbus CEO Monthly about special needs trusts for disabled adult children. While I appreciated the recognition, I was sad that so many of the things that I had raised were not included, so I thought I could include them here.

If you have a disabled adult child, there may be many services available to him or her that will help reduce the financial burden for you and give your child the independence that she or he needs and deserves. Your child may be eligible for SSI. You apply for this through the Social Security Administration, and you can do it on line by going to http://www.ssa.gov/

If in Ohio, and maybe in other states as well, your child may be eligible for services through the local board of developmental disabilities. There is one for every county. The state web page for ohio is http://dodd.ohio.gov/ The list of county boards and other related links can be found at http://dodd.ohio.gov/contacts/countyboards1.htm

With regard to support, keep in mind that if your child is disabled, then you may be entitled to receive long term child support indefinitely beyond the traditional age of 18 under the Castle case. The citation for that case is Castle v. Castle (1984), 15 Ohio St.3d 279 Here is a comprehensive article that explains it in great detail. http://www.divorcesource.com/research/dl/childsupport/97oct188.shtml

There are many more things that can be done with adult disabled children, but these resources are a great way to get started. In addition, as with any disability issue, it is a good idea to look at the Ohio State Legal Rights website to understand your legal rights. Here is the cite to that:

/http://olrs.ohio.gov/ASP/HomePage.asp

Hope some of this helps. As always, feel free to call me if you need more information.

Ohio Supreme Court case

I've been very busy lately getting ready for my Ohio Supreme Court oral argument, regarding whether the county board of developmental disability has the authority to intervene in a guardianship. While this may not sound like the most interesting case to you, it was very interesting to me. Here is a summary of the case from the Ohio Supreme Court website:

http://www.supremecourt.ohio.gov/PIO/oralArguments/09/1202/1202.asp

Here is the video of the oral argument:

http://www.ohiochannel.org/media_archives/supreme_court/media.cfm?file_id=123257&

Comments welcomed.

Shared Parenting - Not just about the time split - Basic factors to be considered.

Often parents come to me filled with questions about shared parenting and, frequently, I find that their idea of shared parenting is to have a 50/50 split of time with the children. While this is the common idea of what shared parenting is, it is not the only way to have shared parenting.

Shared parenting (in Ohio) is basically an agreement between the parents to write their own rules for how parenting time (often referred to as visitation) will be handled, but it can include so much more, including agreements on how to deal with the most fundamental decisions that go into raising a child. There is an Ohio statute that outlines the factors to be considered in developing a shared parenting plan. It is found in R.C. 3109.04. Click here for a link to that statute: http://codes.ohio.gov/orc/3109.04 It is a fairly lengthy statute, and can be difficult to walk through, so I am going to highlight the relevant portions here.

Shared parenting is based on a plan that the parents propose. It can be a mutually agreed plan, or each party can propose a plan. Ultimately, the Court must approve the plan as being the the best interests of the child or children. The Court can also determine that shared parenting is not appropriate. The best part of shared parenting is that the parents get to set the rules for their children and not the Court. Usually, the parents are in the best position to know what is best for their children.

The best interests of the children is the standard for any allocation of parental rights and responsibilities, and these are all spelled out in the same statute. As you review these, scroll down and you will find the additional factors that are considered in shared parenting plans. If you feel that shared parenting is appropriate for your particular situation, there are many ways to approach this. If both parents can work together, they can formulate a plan, considering matters such as the child's schooling, religious upbringing and medical issues, and then have this reviewed by an attorney to put in proper format for the Court. If you cannot agree, you can still have your attorney propose a shared parenting plan, which can be adopted or modified by the Court, if appropriate. Be sure to review when shared parenting may not be appropriate and keep in mind that the Court is charged with the responsibility of determining what is in the child's best interests, regardless of what the agreement of the parties is. Also keep in mind that each separate Court may have its own rules or its own procedure when it comes to what is acceptable or not in a shared parenting plan. Now you know that shared parenting is much more than just a 50/50 split of time, and may not even include a 50/50 split of time. It is a plan for trying to meet the best interests of the child as a team, and when it works out, it can be a wonderful thing.

(F)(1) In determining the best interest of a child pursuant to
this section, whether on an original decree allocating parental rights and
responsibilities for the care of children or a modification of a decree
allocating those rights and responsibilities, the court shall consider all
relevant factors, including, but not limited to:

(a) The wishes of the child's parents regarding the child's care;

(b) If the court has interviewed the child in chambers pursuant to
division (B) of this section regarding the child's wishes and concerns as to the
allocation of parental rights and responsibilities concerning the child, the
wishes and concerns of the child, as expressed to the court;

(c) The child's interaction and interrelationship with the child's
parents, siblings, and any other person who may significantly affect the child's
best interest;

(d) The child's adjustment to the child's home, school, and community;

(e) The mental and physical health of all persons involved in the situation;

(f) The parent more likely to honor and facilitate court-approved parenting time rights or visitation and companionship rights;

(g) Whether either parent has failed to make all child support payments,
including all arrearages, that are required of that parent pursuant to a child
support order under which that parent is an obligor;

(h) Whether either parent or any member of the household of either parent
previously has been convicted of or pleaded guilty to any criminal offense
involving any act that resulted in a child being an abused child or a neglected
child; whether either parent, in a case in which a child has been adjudicated an
abused child or a neglected child, previously has been determined to be the
perpetrator of the abusive or neglectful act that is the basis of an
adjudication; whether either parent or any member of the household of either
parent previously has been convicted of or pleaded guilty to a violation of
section 2919.25 of the Revised Code or a sexually oriented offense involving a
victim who at the time of the commission of the offense was a member of the
family or household that is the subject of the current proceeding; whether
either parent or any member of the household of either parent previously has
been convicted of or pleaded guilty to any offense involving a victim who at the
time of the commission of the offense was a member of the family or household
that is the subject of the current proceeding and caused physical harm to the
victim in the commission of the offense; and whether there is reason to believe
that either parent has acted in a manner resulting in a child being an abused
child or a neglected child;

(i) Whether the residential parent or one of the parents subject to a shared parenting decree has continuously and willfully denied the other parent's right to parenting time in accordance with an order of the court;

(j) Whether either parent has established a residence, or is planning to establish a
residence, ouside this state.

(2) In determining whether shared parenting is in the best interest of the children, the court shall consider all relevant factors, including, but not limited to, the factors
enumerated in division (F)(1) of this section, the factors enumerated in section
3119.23 of the Revised Code, and all of the following factors:

(a) The ability of the parents to cooperate and make decisions jointly,
with respect to the children;
(b) The ability of each parent to encourage the sharing of love, affection, and contact between the child and the other parent;
(c) Any history of, or potential for, child abuse, spouse abuse, other domestic violence, or parental kidnapping by either parent;
(d) The geographic proximity of the parents to each other, as the proximity relates to the practical considerations of shared parenting;
(e) The recommendation of the guardian ad litem of the child, if the child has a
guardian ad litem.

(3) When allocating parental rights and responsibilities for the care of children, the court shall not give preference to a parent because of that parent's financial status or condition.

Recent Ohio Case Law Update

Here are some recent Ohio cases involving family law issues. This is being provided as a service to you, and you are cautioned to consult with an attorney prior to applying these cases to your particular situation, as there may be several other factors that would have to be considered in analyzing your particular situation, including other Ohio cases that are not listed here.

(Clicking on case name will take you to Casemaker link and you must have a password to access that. Clicking on the link will take you to the publicly available link.)

w Tabatabai v. Tabatabai, 2009-Ohio-3139 (9^th District)

Link: http://www.supremecourt.ohio.gov/rod/docs/pdf/9/2009/2009-ohio-3139.pdf

Trial court's award of a civil protection order against plaintiff's husband, entered on Form 10.01-I or other form approved by the Supreme Court of Ohio and signed by a magistrate and a judge, is a final appealable order under R.C. 3113.31(G); this decision overrules Mills. In awarding a civil protection order against victim's husband, trial court did not err since it conducted an independent review of the magistrate's findings that husband threatened to kill victim, that he was violent and that he had a number of guns.

w Curington v. Moon, 2009-Ohio-3013 (2nd District)

Link: http://www.supremecourt.ohio.gov/rod/docs/pdf/2/2009/2009-ohio-3013.pdf

Trial court's grant of civil stalking protection order was proper since R.C. 2903.211(A)(1) is not void for vagueness because statute contains a "knowingly" scienter requirement. Trial court’s grant of civil stalking protection order was proper where defendant's failure to provide hearing transcript triggered presumption of regularity in trial court's proceedings and there was no plain error; fact that municipal court had issued no-contact order as part of defendant's conviction of telephone harassment did not require its being afforded jurisdictional priority, since criminal prosecutions for menacing by stalking and civil stalking protection orders are not mutually exclusive remedies, and actions that may have been subject of prior convictions may be used to prove menacing by stalking for civil protection order, R.C. 2903.211(D)(1).

w Amlin v. Amlin, 2009-Ohio-3010 (2nd District)

Link: http://www.supremecourt.ohio.gov/rod/docs/pdf/2/2009/2009-ohio-3010.pdf

In modification of dissolution child support determination, reduction of obligor’s income was properly denied, despite obligor’s claimed expenditures for rental properties that resulted in a loss, since obligor produced no receipts or expense vouchers showing actual cash expenditures that were ordinary and necessary, sole evidence was an income tax return, purposes of Internal Revenue Code and child support guidelines are vastly different and trial court was not required to unquestionably accept all expenses deducted in previous tax returns.

In modification of dissolution child support determination, trial court did not abuse its discretion in imputing income of $20,800 to obligee; trial court considered statutory factors, and obligee had 19 years experience and income in family business that was not likely obtainable elsewhere, had limited education and was currently employed at $9.50 per hour.

w Saylor v. Saylor, 2009-Ohio-3109 (5th District)

Link: http://www.supremecourt.ohio.gov/rod/docs/pdf/5/2009/2009-ohio-3109.pdf

In divorce action child support determination, trial court abused its discretion in using health insurance costs of much higher than the amount that wife testified to and that was stipulated to by the parties; it was not error for the court to equally apportion child daycare expense since their payment by wife's parents was not guaranteed in the future.

w Sinclair v. Sinclair , 2009-Ohio-3106 (4th District)

Link: http://www.supremecourt.ohio.gov/rod/docs/pdf/4/2009/2009-ohio-3106.pdf

Trial court abused its discretion in improperly limiting duration of civil protection order to one year, reasoning that divorce proceeding automatically alleviated need; trial court erred in concluding divorce decree removed threat of domestic violence. Protection order is an additional remedy, R.C. 3113.31(G).

w Gartrell v. Gartrell, 181 Ohio App.3d 311, 2009-Ohio-1042 (5th District)

LinK: http://www.supremecourt.ohio.gov/rod/docs/pdf/5/2009/2009-ohio-1042.pdf

In divorce action, trial court's rescission of prenuptial agreement was proper on grounds that agreement was void as against public policy by encouraging divorce or profiteering by divorce, Gross; parties entered prenuptial agreement that provided a significant sum to wife for a marriage of very short duration, and thus the terms of the agreement encourage divorce or profiteering by divorce. In divorce, trial court's rescission of prenuptial agreement was improperly based on grounds that agreement was merely negligently prepared where neither husband-attorney nor his counsel read agreement before execution, that constituted more than ordinary negligence; husband had practiced law for 20 years, faxed back changes to first draft and signed without further review, which constituted gross negligence.

w Rodgers v. Rodgers, 2009-Ohio-3059 (8th District)

Link: http://www.supremecourt.ohio.gov/rod/docs/pdf/8/2009/2009-ohio-3059.pdf

In ex-wife’s Civ.R. 60(B)(5) postdecree motion to divide marital asset, namely ex-husband’s pension, trial court did not abuse its discretion in denying the motion since motion was not filed for more than 27 years after the divorce and property settlement where she does not argue that he hid this asset from her or committed fraud in some way, but that the pension was “undisclosed” from the court, not her; a party may not circumvent the one-year limitation applied to Civ.R. 60(B)(1), (2) or (3) by seeking to vacate a judgment under Civ.R. 60(B)(5) when the ground is duplicative of a ground subject to the time limitation, and the record reveals no reason why ex-wife or her counsel could not have discovered the pension at the time of the original proceeding or any valid reason for the 27-year delay. No evidentiary hearing was required where ex-wife did not allege operative facts that would entitle her to relief under Civ.R. 60(B)(5) since she did not give a reason in her affidavit for waiting 27 years before requesting the relief.

w Hesseling v. Hesseling, 2009-Ohio-3116 (4th District)

Link: http://www.supremecourt.ohio.gov/rod/docs/pdf/4/2009/2009-ohio-3116.pdf

In divorce action, award of spousal support to wife was too financially burdensome on husband, where spousal support, child support and other financial obligations imposed by trial court consumed more than 75 percent of his pretax income since husband would be unable to pay the support without significant economic hardship.

w Nemeth v. Nemeth, 2009-Ohio-3144 (11th District)

Link: http://www.supremecourt.ohio.gov/rod/docs/pdf/11/2009/2009-ohio-3144.pdf

In divorce action, wife's motion for leave to file mandamus action is denied; wife's argument is without merit that, despite being declared a vexatious litigator, she should be allowed to bring this action to challenge the propriety of certain judgments rendered in the underlying divorce case. Wife has not satisfied the standard to be granted leave to proceed under R.C. 2323.52(F)(2); there is already a final judgment in case, wife has already appealed it and she had an adequate remedy at law, so she could not state a viable claim for mandamus.

w Underhill v. Underhill, 181 Ohio App.3d 298, 2009-Ohio-907 (2nd District)

Link: http://www.supremecourt.ohio.gov/rod/docs/pdf/2/2009/2009-ohio-907.pdf

In marriage dissolution postdecree proceedings, trial court erred in concluding that husband’s failure to object to magistrate’s decision determining liability only as to property settlement but not determining amount to be paid, later divested trial court of subject matter jurisdiction to consider objections once all of the issues had been resolved; requiring objections to decisions that are interlocutory in nature does not promote judicial efficiency, and absence of an objection did not divest trial court of subject matter jurisdiction to consider objections once all of the issues had been resolved.

w Algren v. Algren, 2009-Ohio-3009 (2nd District)

Link: http://www.supremecourt.ohio.gov/rod/docs/pdf/2/2009/2009-ohio-3009.pdf

In divorce action in which son claimed ownership of closely held corporate stock, wherein wife filed declaratory judgment action to determine whether son had any interest in corporation, trial court erred in granting summary judgment for wife; existence and transfer of certificates are not required as a matter of law to prove gift of corporate shares by husband to their son since a certificate only represents a share and it is not required in order to prove ownership. However, there is a fact issue concerning number of shares son owned where husband filed gift tax returns as to the shares but some returns were unsigned, there was a stock sale restriction document stating that son and husband were sole shareholders that was witnessed by wife, corporate income tax returns indicated husband's transfer to son and there were share certificates in son's name. In divorce action in which son claimed ownership of closely held corporate stock, wherein wife filed declaratory judgment action to determine whether son had any interest in corporation, trial court did not err in finding that the restriction was binding on son, husband and company, despite claimed failure of consideration for restricted stock sales agreement; agreement has marginal effect since it is evidence only of son's ownership, agreement would have evidentiary force even if not legally binding, trial court would not be constrained by it in division of marital property since restriction applies only to voluntary transfers and not to transfers by operation of law and it was supported by consideration, as set forth in its recitals.

Social Media and Lawyers - my perspective

I am officially a big fan of all the new social media. I twitter, I am on facebook, myspace, linkedin, jdsupra, justia and an assortment of other places. Obviously I have this blog and my blog on fibro, and I try to be everywhere. Many lawyers who talk to me about this complain that it is just too much to do, and they are already too busy. I agree that it takes work, but once you have set yourself up, I think that it makes so many things much easier.

For example, on Facebook I have been able to easily reconnect with people I have not seen in over 30 years. And it is so pain-free. I can quickly scan what is going on in their lives. I can also keep in touch with more recent acquaintances, professional and otherwise. I just have to remember that what ever I put out there is out there for the whole world to see. I also have to remember that my opposing counsel or my opposing party is likely to be reading some of these things.

Of course, you can spend hours looking for people on Facebook, too. That can be a lot of fun and very rewarding, but you have to make sure it does not cut into your work time. This is true of anybody, including lawyers.

When I served on the school board, I remember a school board member asking why do we need to have so much technology in the schools for our kids, when it used to be that a pencil and paper were adequate. Surprisingly, that was only eight years ago. Look at how things have exploded. Paper and pencil - who needs them? I have diddlebug on my Centro, and those notes are saved forever on my Centro and on my computer. I can do Sudoku puzzles, take notes in court, keep track of my billable time, read major newspapers, get a weather report, get a tweet about local traffic conditions and all in the "Palm" of my hand, and all without paper or pencil.

However, social media does open up a new area of concern. It is more public than you can even imagine. There are people I run into on the street that I recognize from one of these social mediums, and they look familiar, but I can't quite place them. Then I realize that I followed a twitter link to their web page and learned all about them, all without meeting them. Or there are Judges who are following me on Twitter - better not insult any of their colleagues, right? (Not typically my style anyway, but something to keep in mind.) And Facebook becomes a mixed bag, when you have clients following you as well as old friends from high school who just want to keep reminding you of those embarassing things you did before you were even old enough to drive.

That is why you need to take the time to understand how the medium works. You can put controls on who sees what, but you need to pay attention and not just skip through the "fine print" on the websites. Learn to adjust your settings. Learn to rethink the settings as time goes by. Find software that can help you make your participating more in tune with your time schedule. Learn to make it work for you.

Anyway, I am loving the social media explosion and I love being toward the forefront, although I think everyone is going to catch up with me real soon. Just like anything, make sure you understand what it can do for you and what you can do with it. Use technology, don't let it use you.

That being said, I better get back to my 300 emails so that I don't miss anything important.