Want to Be Happy After Your Divorce? Learn How to Communicate with Your Ex!

In my experience, probably the single most important predictor of how happy a client will be after divorce is how well they get along with their ex. If they can’t communicate well, then every conversation makes both of them miserable. If they communicate well, then these conversations are at worst neutral, and at best strengthen the co-parenting relationship. So, I advise clients to do whatever they can to communicate effectively after their divorce. Fortunately, there are many great professionals that can help after the divorce. Dr. Katrina Kuzyszyn-Jones is one of them, and she holds workshops throughout the year. You still have time to catch the November and December sessions! Find out more at http://kkjpsych.com/.

iPad and iPhone Dangers in Family Law

Technology is great.  Information sharing and syncing across your devices is great. But, more than one problem has arisen when kids, spouses or ex-spouses see texts, emails or photos that were not intended for them due to technology. Sometimes, this happens when kids have physical access to a parent’s device. That is easy enough to prevent.  What is trickier is when the kids have their own device (iPad, iPhone, iTouch) that is synced to the parents iCloud or Apple ID.  In that case, texts, messages, photos and other things that are intended for the parent can show up on the kid’s device. In order to avoid that problem in your life, here’s an article that helps explain how to avoid your private messages ending up in front of other people:  http://www.iphonejd.com/iphone_jd/2015/02/ipad-tip-turn-off-messages.html. When it comes to this problem, an ounce of prevention is worth a pound of cure.

Shared Parenting Bill in North Carolina Senate

Children quoteCustody disputes have been highly problematic for clients, attorneys and the courts for a long time.  They are emotionally charged trials with often little evidence that points clearly towards one parent or the other as being  a better option.  So, judges are left to decide a child’s fate based on a noble, but nebulous standard of “the best interests of the child”. And, due to the repetitive nature of these cases, a court frequently has to decide these cases multiple times for just one child. The most common issue in these trials is the schedule of overnights. That is, how many nights will a child spend with each parent, and how will those nights be structured?  While this answer has financial implications due to the child support guidelines, it is largely an emotional issue for clients.  Parents often see the distribution of overnight visits as a proxy for their relative parenting value, a symbolic judgment by the court that one of them is “better” for the kids than the other.  If there has been conflict over parenting during the relationship, then the court’s divvying up of overnights frequently takes on an emotional meaning for parents that goes far beyond the practical impacts. For these emotional reasons, parents litigate custody actions far more than the legal and practical realities would otherwise dictate.  The irony of course being that the court fight itself runs contrary to the best interest of the child. And these often needless lawsuits serve as a severe drain on the court system, preventing the courts from addressing cases where children are in actual need of court protection and intervention. To try to address this dynamic two North Carolina Senators have proposed Senate Bill 711.  This bill’s short title is the Presumption of Shared Parenting Act .  The bill would rewrite the primary child custody statute in North Carolina. The first section of the proposed law sets forth a statement of North Carolina’s public policy regarding parenting of children whose custody is in question.  The first listed policy is  to “Encourage child-centered joint parenting agreement [sic] to reduce litigation over child custody matters.” The remaining policy statements collectively state that North Carolina’s policy is to encourage maximum contact between a child and each parent, that the courts should PRESUME that both parents are fit parents and that the parents’ inability to get along with each other should not be used to overcome this presumption. The statute then creates a legal presumption that “each parent will share as close to an equal amount of time with the child, but not less than thirty-five percent (35%) of the amount of time with the child as research currently suggests.” First, it is important to note that this law would make official North Carolina’s policy of encouraging parents to agree to a co-parenting plan on their own and not bring these issues to the courts.  This is a policy that I would certainly encourage.  When the very government that will be making the decision about your kids is telling you that they don’t want to make decisions about your kids, then maybe we should listen…This policy really is an admonishment to parents to act like adults and handle their co-parenting issues in a reasonable way outside of court. Secondly, the law would create a new legal presumption in custody cases. In reality, this presumption probably just makes explicit the assumption that many judges make at the beginning of a case.  That assumption is that both parents in a case are valuable and capable of parenting their children in an acceptable manner, unless somebody proves otherwise.  But, those judges that do harbor conscious or subconscious biases towards one parent role or the other would have to start from a different starting point if this law is passed. This presumption would probably function much like the current legal presumptions of a 50/50 split of marital property in equitable distribution or the presumption that the child support guidelines will be used in a child support case.  That is, somebody will have to present a fairly compelling reason (some of which are mentioned in the bill) as to why a child would not benefit from roughly equal time with each parent before a judge could legally stray from the presumption. Further, the presumption is given some clear(ish) lines by creating a floor of 35% of the time with each parent.  The bill as currently written is not clear enough on this point, however.  It does not state what “time” means.  Does it mean 35% of the overnights?  Is that 35% of the overnights in a month, a year?  Or, is it 35% of the hours in a day, week, month or year? Regardless of the exact eventual meaning, the number gives a clear indication of what is considered roughly equal time with each parent under this bill.  Anything outside of that range and the court would have some explaining to do, literally.  The trial court would have to include sufficient findings in its custody order to justify altering the 35% floor. The practical effect would, most likely, be that attorneys would have a stronger basis upon which to predict the outcomes of potential custody suits for their clients.  Much like the 50/50 property distribution presumption and child support guidelines in place now, the 35% presumption would narrow the range of predicted outcomes such that the resolution of cases would be easier.   A narrow range of predicted outcomes facilitates settlement (as can a very wide range for risk reasons, but the current situation creates a range of outcomes that is neither predictable enough to force settlement nor risky enough to scare everybody into settlement). The bill is currently sitting on the desk of the rules committee, which, to my understanding, means that it is probably dead for now.  But, given the constant and unsustainable burden on the courts created by custody cases, and family law cases in general, this bill or a future iteration will probably make its way to a vote in the not too distant future.  It will be fascinating to see what policies are delineated in that version. (P.S. If the Legislature really wants to lower the number of cases in family court, an alimony formula or presumption would perhaps go even further than a child custody presumption.) photo credit: <a href=”http://www.flickr.com/photos/85608594@N00/15300693940″>Carl Jung Children are educated by what the grown-up is and not by his talk</a> via <a href=”http://photopin.com”>photopin</a> <a href=”https://creativecommons.org/licenses/by/2.0/”>(license)</a>

Autonomy Buckets

One frequent topic of co-parenting discussions is how much autonomy each parent will have when making decisions about the children.  How will decisions be made by the parents to benefit the children now that interaction and communication between parents is less frequent and maybe more difficult?

I like to talk to clients about “Autonomy Buckets”, a concept I learned from Cat Zavis, an attorney, mediator and expert communicator in Washington state.

Is Your Divorce Attorney Wearing Two Hats?

Some clients wonder why their collaborative divorce attorney cannot represent them in court if collaborative does not resolve their case.  Some clients find it difficult to find the nerve to talk to one divorce attorney; the thought of having to meet two of them is daunting.   One reason is that North Carolina law requires a collaborative divorce attorney to withdraw if and when a lawsuit is filed.

Authorization of Medical Care for Children

Parents, have you ever wondered how your child will get medical care when they are being watched by a babysitter, grandparents or other child care source?  Have you ever gone on a business trip or vacation (I know, dream on) without the kids and wanted to make sure that the person keeping your kids could get them medical care if something happened? 


 

Well, fortunately, if you live in North Carolina, then the following statute and form allow you to authorize someone else to consent to health care for your child in those situations.  It is important to note that your signature has to be notarized, so make sure you take care of that if you are going to rely on the form.  But, this form provides an easy and effective way to make sure your kids can get medical care when you are not around.  You’ll need to give a properly executed copy to the person caring for your child so that they can provide it to the doctor, hospital or other medical facility.

 

§ 32A‑34.  Statutory form authorization to consent to health care for minor.

The use of the following form in the creation of any authorization to consent to health care for minor is lawful and, when used, it shall meet the requirements and be construed in accordance with the provisions of this Article.

 

“Authorization to Consent

to Health Care for Minor.”

 

I, ____________, of ____________ County, ____________, am the custodial parent having legal custody of____________, a minor child, age______, born________, ____.  I authorize____________, an adult in whose care the minor child has been entrusted, and who resides at____________, to do any acts which may be necessary or proper to provide for the health care of the minor child, including, but not limited to, the power (i) to provide for such health care at any hospital or other institution, or the employing of any physician, dentist, nurse, or other person whose services may be needed for such health care, and (ii) to consent to and authorize any health care, including administration of anesthesia, X‑ray examination, performance of operations, and other procedures by physicians, dentists, and other medical personnel except the withholding or withdrawal of life sustaining procedures.

[Optional:  This consent shall be effective from the date of execution to and including____________,_____].

By signing here, I indicate that I have the understanding and capacity to communicate health care decisions and that I am fully informed as to the contents of this document and understand the full import of this grant of powers to the agent named herein.

 

            (SEAL)

Custodial Parent                                                                                           Date

 

STATE OF NORTH CAROLINA

 

COUNTY OF

 

On this ________ day of__________, ____,  personally appeared before me the named_________, to me known and known to me to be the person described in and who executed the foregoing instrument and he (or she) acknowledges that he (or she) executed the same and being duly sworn by me, made oath that the statements in the foregoing instrument are true.

 

 

 

Notary Public

 

My Commission Expires:

 

 

Kardashian Pregnancy Highlights Big Legal Issue

 

Medical College of Virginia (MCV) Hospital?__SQUARESPACE_CACHEVERSION=1357832809755″ alt=””/

As described in this article, Kardashian is pregnant with Kanye West’s baby (“I ain’t sayin’ she’s a gold digga”, right Kanye?). But the baby was conceived while she was still legally married to NBA semi-star Kris Humphries.  

In California, that means that the law will presume that Humphries is the biological father of the child, even though they all believe and/or know that West is the actual father. 

The law is the same in North Carolina.  In this state, the law presumes that any child born or conceived during the marriage is the biological father of the husband.  This is true regardless of whether the husband and wife are separated when the child is conceived. 

In fact, this is one of the strongest presumptions in North Carolina law and can be very difficult to overcome.  It takes both the cooperation and agreement of all parties and/or some legal wrangling to overcome this presumption.

In my experience, most people are stunned to find out that a child conceived after a separation by someone other than the mother’s husband is legally presumed to be the husband’s child.  Typically both the mother and the husband are shocked.  The biological father can be either upset or ecstatic, depending on his perspective. So, his cooperation may or may not be easy to obtain.

The reason for this law is that the public (often referred to as “the State” in legal writing) has an interest in making sure that there are as few illegitimate children as possible.  The public wants as many children as possible to be legally attached to two parents.  Historically, there was a social stigma to being an “illegitimate” child.  It seems that this stigma has greatly faded with changing social norms. 

However, there is also a strong financial purpose behind the law.  The public (i.e. taxpayers) does not want to financially support children if it can find a father to support the child.  Since every parent in this state has a legal obligation to financially support their children (unfortunately, the law does not and cannot require emotional or actual parenting support), the public tries very hard to find a father for children. 

While new laws enacted in 2012 make it a little bit easier for husbands to fight against this assumption, it remains a very powerful law. 

The bottom line is that married individuals need to be very careful about conceiving children between separation and the entry of a divorce.  Conceiving during this time period creates very serious consequences, usually of the unintended variety. 

 

Collaborative Divorce: How Do You Define the Enemy?

Many divorce clients want their attorney to fight for them.  That can mean a lot of things.  In my experience what most people really want is an attorney that will help them obtain the best possible outcome.  “Fight” is just an easy one-word way of saying that.

But, if your attorney is fighting for you, they have to fight against something.  The question then becomes:  What are you fighting against?  How do you define your “enemy”?

In the traditional, adversarial, litigation based divorce process the enemy is typically defined as your spouse.  Therefore, you fight your spouse.  Your time, money, energy and emotion are spent fighting your spouse.  And, your spouse’s time, money, energy and emotion are spent fighting you. (And what happens to the kids in the midst of all that fighting?)

The adversarial way of handling a divorce assumes that dumping all of these resources into fighting each other will produce a “fair” result.  And, fair generally means equally bad for both of you. In fact, divorce attorneys love to say, “A good result is one that everybody is equally unhappy with.”

In contrast, the Collaborative Divorce Process does not make your spouse the enemy.  Instead, for each spouse, the enemy is the set of challenges and practical issues that can make divorce so difficult for you and your family. 

Instead of using your resources to fight against the mother or father of your children, collaborative divorces use the combined resources of both spouses to fight against the practical problems that frequently come with divorce.  These issues (and others) are most often the real enemies to a divorcing couple: 

  • Insufficient money to support two households
  • Emotions that derail effective decision making
  • Practical difficulties in co-parenting children from two households
  • Differing parenting styles in two households
  • Complicated valuation issues for assets or debts
  • Overwhelming debt that cripples each party financially
  • Blending new relationships into the family
  • Paying for college and meeting financial needs of family
  • Planning for retirement while meeting financial needs of family

The adversarial process most often produces a result that is equally bad for each party without solving any of these problems.  

The Collaborative Process most often produces a result that is beneficial for both parties (and their kids) and solves many, if not all, of the issues in that list. 

In divorce, the reality is that the enemy is not really your spouse; the enemy is the set of problems that come with divorcing your spouse.  So, it makes sense to choose a process that recognizes the real enemy and focuses your resources on defeating those issues, instead of trying to defeat each other.  Collaborative Divorce is that process.

(Special thanks to Michael Kothakota of Wolfbridge Financial, a combat veteran, for introducing the concept of “defining the enemy” to me.)

Toddlers & Tiaras: A Cautionary Tale of Child Custody and Privacy

Most lawyers will tell you that there are many hidden perils of taking your family law matters to court. 

One of those hidden perils is the loss of your privacy.

Privacy has many forms.  One form that people frequently don’t consider is the loss of privacy in child custody actions.

This loss of privacy takes the form of the government interfering in parenting decisions that it would have no right to inquire about if you were not in court.  In court, everything you do as a parent and every decision you make regarding your children becomes a matter for public scrutiny.

This recent story about Lindsay Jackson, a “Toddlers & Tiaras” mom, is a cautionary tale:  Jackson lost custody of her daughter, Maddy Verst, at least partially because of her decision to put her daughter in pageants. 

If the case were not in court, then it is hard to imagine that a governmental agency would have grounds to inquire into this kind of issue in a family.  No one has the power to tell a parent not to put their child in pageants; unless you are in court.

But, once the matter goes to court, parenting decisions and behaviors that have been sheltered by your privacy are open to judgment and review by a court, and the public.  And like Bill Verst, Maddy’s father, most parents in court are only too willing to bring up these kinds of issues in front of a judge.

Clearly, Lindsay Jackson believed her daughter’s participation in pageants was good for her daughter, a positive experience and an unquestionable parenting decision.  Turns out, the father, the court and the court’s psychologist did not agree. 

Before you run to court to open up your family’s life and your parenting decisions to judgment by a court and the public, you may want to ask whether you want to sit in the crucible of explaining your parenting decisions to a judge.  Your privacy may be more important than your need to fight.  And, while you may consider the decisions you’ve made for your kids to be above reproach, the people in power may not agree.

Fortunately, you can resolve your child custody issues without sacrificing your privacy and without opening your family and your decisions up to public scrutiny.

Collaborative law and mediation allow you to work out the issues while maintaining your privacy and your family’s privacy.

 

 

New Article Explaining Collaborative Divorce

I am happy to announce that co-author Michael Kothakota and I have published our latest article on Collaborative Divorce in Resolved:  Journal of Alternative Dispute Resolution.  

Interdisciplinary Collaborative Divorce:  A Process for Effective Dispute Resolution is intended to provide a brief but thorough explanation of the interdisciplinary collaborative divorce process for both practitioners and clients.  

Each professional and prospective client must determine whether the ICD process is appropriate for their situation.  But, our hope is that this article will provide an introduction to the process and help people make more informed decisions.

If you have questions about collaborative divorce after reading the article, then please do not hesitate to contact me to discuss the process and whether it may be right for your family or your practice.