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.
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.
The vast majority of my clients with children share one huge concern: My divorce will ruin my children’s chances of being happily married.
Fortunately, the research does not support the idea that divorce, by itself, negatively impacts the odds of a child being happily married.
The research does show that the most important factor for kids of divorce is not that their parents were divorced, but the level of ongoing conflict between the parents.
So, if you want to protect your child from the negative effects of divorce, follow these guidelines:
- De-escalate conflict between you and your spouse whenever possible;
- Address conflict as quickly as possible so that mole hills do not become mountains;
- Choose a divorce process that promotes peace and problem-solving, like collaborative divorce or interest based mediation;
- Choose lawyers that promote problem solving and non-combative tactics;
- Treat your spouse as the parent of your children, and not as your enemy.
These steps will not make your divorce easy for you or your child. But, they will help insulate your child from the lasting negative impacts of divorce.
On May 8th, North Carolina voters (that is probably you) will go to the polls (hopefully) to vote on Amendment One. Amendment One would theoretically change the North Carolina Constitution to ban same sex marriage.
The actual wording of the Amendment is as follows:
“Marriage between a man and a woman is the only domestic legal union that shall be valid or recognized in this state.”
The wording is a bit confusing and a little vague legally. That has contributed to great confusion among people I have talked to as to what they would actually be voting for or against.
In an effort to help educate people on the Amendment, I have included below the Executive Summary of an article entitled “Potential Legal Impact of the Proposed Same-Sex Marriage Amendment to the North Carolina Constitution” (footnotes omitted). You can read the whole article here. This article was written by law professors at the UNC School of Law (my alma mater in the interest of full disclosure).
One thing to understand initially is that North Carolina does not recognize same sex marriage. Same sex couples cannot get married or divorced in North Carolina under current law. Perhaps that is one reason for the confusion.
My hope is that you will feel a little less confused about the Amendment and it’s potential impact before you vote on May 8th (I strongly encourage everyone to vote!). Also, this is by no means the only view of the Amendment. But, it is the most unbiased and academic one that I could find that was not from a political based group.
The proposed Amendment would not simply place this state’s current statutory prohibition of same-sex marriage into the North Carolina Constitution, as its sponsors seek.
Instead, the proposed language is problematically vague, untested, and threatens to upend years of settled law. In prohibiting state recognition or validation of “domestic legal unions,” the proposed Senate bill would introduce into the Constitution a phrase that has never been used in any prior statutory law in North Carolina, never been interpreted by its courts, and never been interpreted by courts in any other state. Taken as a whole, the bill’s language is sufficiently vague, and its
scope significantly unclear, that it would enmesh our courts in years of litigation to untangle its appropriate meaning. Moreover the eventual result of judicial interpretation of the Amendment would be uncertain. It could, however, be interpreted to upend completely the very minimal legal rights, obligations, and protections now available to unmarried couples, whether same-sex or opposite-sex.
The Amendment could be construed by courts to:
Prevent the courts from enforcing private agreements between unmarried couples, therefore encouraging the wealthier members of couples to avoid marriage so that they will not be subject to obligations to transfer property;
Interfere with child custody and visitation rights that seek to protect the best interests of children;
Invalidate protections against domestic violence to members of unmarried couples;
Interfere with end-of-life arrangements, such as wills, trusts and medical powers of attorney, executed by unmarried couples;
Invalidate domestic partnership benefits currently offered to same-sex and opposite-sex couples by local municipalities;
Prevent courts from enforcing private employers’ agreements to provide benefits such as health insurance to employees’ domestic partners.
The vague and untested language of the Amendment would therefore cause real harm to a broad range of North Carolina citizens. The proposed Amendment could be interpreted to strip the increasing number of unmarried heterosexual couples of their ability to order their relationships and property through contract, deny legal protection against domestic violence, and cut them off from custody of their children. By the same token, committed same-sex couples in North Carolina, who are already precluded from marrying, would also no longer have access to these minimal protections. Even if courts did not ultimately adopt a broad interpretation of the Amendment’s language, these couples’ rights would be uncertain during the inevitably long period of time that it took for these issues to work their way through the courts. The Amendment’s broad sweep would also interfere with municipalities’ freedom to determine domestic partnership benefits for their own employees. It could also undermine private employers’ efforts to attract top employees to North Carolina by providing employee benefits to domestic partners, as the courts and public medical facilities may not be permitted to recognize those benefits. Finally, the breadth of the Amendment’s language and its untested terminology will significantly tax the resources of North Carolina courts, which will be charged with interpreting its scope.
As a collaborative divorce lawyer, I generally extoll the virtues of avoiding divorce. But, a film documentary has reminded me that to everything there is indeed a season, and a time to every purpose under Heaven.
51 Birch Street tells a powerful story. It is the story of a husband and wife that stayed married for 53 years, raised three kids, and seemed happy, but ultimately may have benefited from a divorce.
After her death, Filmmaker Doug Block discovered that his mother lived most of her marriage resenting his father, and may well have preferred to have not been married at all.
Further, shortly after his wife of 53 years died, Block’s father married his long lost former secretary.
That left Block to wonder whether his father had been in love with his secretary for decades, and whether his mother knew it.
The film raises many questions. One that sticks with me is when is it better to be divorced than to live life in misery, or pining for the person you truly love?
I watch many of my clients struggle with these questions as they go through the divorce process. Unfortunately, I can’t answer that question for them. But, 51 Birch Street will serve as a reminder to me that there may be many right answers to these questions.
As of January 1 of this year, men in North Carolina have some new protections from false paternity claims.
Since the beginning of this year, new laws have been in effect that provide new procedures for men who want to dispute that they are the father of a child.
The legislature amended or created three laws that give fathers a clear-cut process for asking a court to officially declare that they are not the father of a child.
Specifically the new laws provide a way to ask a court to overturn a paternity order, an affidavit of parentage or a child support order if the father believes he is not the father of the child.
However, the alleged father has only one year from the time he knew or had reason to know that he was not the father to challenge paternity under these new laws.
The new laws for overturning paternity orders or affidavits of parentage require two showings: First, a father must prove that the paternity order or affidavit was created by “fraud, duress, mutual mistake, or excusable neglect.” If a father files a motion alleging sufficient facts, then the court has to order genetic testing of the mother, child and alleged father to determine whether the alleged father is the actual father.
If the alleged father can prove fraud, duress, mutual mistake or excusable neglect AND the genetic tests show that he is not the father, then the court can set aside the paternity order or affidavit.
Further, a new statute allows men to ask a court to let them out of child support if they can prove by clear and convincing evidence that:
1. He has not acknowledged paternity of the child, or that he acknowledged paternity without knowing that he was not the actual father (“acknowledgement” includes public acknowledgement and supporting the child while married to the mother, sworn statements and affidavits claiming to be the father, consent orders, voluntary child support agreements, or any other legal agreement to support the child, and admissions of paternity in open court); and
2. He had not adopted the child; and
3. He has not legitimated the child; and
4. He is not the child’s legal father under N.C.G.S. 49A-1; and
5. He has not done anything to prevent that actual father from asserting his parental rights to the child; and
6. Genetic testing shows that he is not the actual father.
If the man can show all of the above facts (no juries are used in these cases), then the court is required to cancel the child support obligation. However, the man generally does not get any money back that has already been paid. (The man can get any support that he has paid from the filing of this motion until the cancellation of the support obligation if he can prove that the mother conned him into believing he was the father). The man cannot get any money back if he has been making payments to anyone other than the mother. The court also has to order that the birth certificate be changed to remove the man’s name.
Men and their attorneys have long cried out for a better way to challenge false paternity claims. They now have relatively clear processes for defending themselves from these claims.
Pre-nuptial (also “pre-marital”) agreements are what everybody calls “pre-nups”.
Pre-nups have a mixed reputation in our society. Some people see them as smart protection from gold digging prospective spouses. Others seem them as cold-hearted unromantic acts that stand in stark contrast to what you’re supposed to be feeling before you get married.
But, most people don’t know about another more positive use of a pre-nup: An antidote to an ugly divorce™.
You and your future spouse can create a pre-nup in which you agree to try to avoid an ugly divorce if the marriage doesn’t last forever.
You can sign a pre-nup in which you both agree to attempt to resolve any future divorce, custody, child support, alimony, and property division issues through collaborative divorce or mediation before you go to court.
This kind of pre-nup doesn’t determine the terms your ultimate resolution. You don’t have to figure it all out ahead of time. It simply determines the first process that you’ll use to figure out the details if things don’t work out.
A pre-nup cannot prevent a court from ordering financial support to a child. And, in North Carolina, a court always has the right to enter an order for the custody and support of a child if and when the court finds it necessary.
However, North Carolina courts will enforce pre-nups under current law.
There are many potential benefits of a pre-nup that requires a couple to attempt a collaborative divorce or mediation before going to divorce court. What are they?
EMOTIONAL BENEFITS: From an emotional standpoint, you would be committing to each other that even in the unfortunate event that things don’t work out, you do not want to put each other through the ringer in a divorce.
Some people have are afraid to get married. Many of those people have a fear of divorce, instead of a fear of marriage. And that fear is usually based on their understanding of what a bad divorce looks like. Maybe they have been a party to a bad divorce as either a spouse or child.
A pre-nup that requires you to first try to handle a subsequent potential divorce with dignity, grace and respect may take a lot of the fear of divorce away. And, that, in turn, may take some of the fear of marriage away. And, less fear seems like a very good thing for the health of any marriage.
FINANCIAL BENEFITS: Financially, this kind of pre-nup commits you to processes that seek to preserve your financial well being in the divorce process. Both collaborative divorce and mediation are based on the idea that people don’t want to spend their life’s savings on divorce attorneys and court battles.
LEGAL BENEFITS: Legally, collaborative divorce and mediation open an almost limitless range of options for resolving divorce issues that are frequently not available in court. These options often serve families far better than the limited options that a judge faces.
Nobody wants to think about divorce when they are thinking about getting married. But, we do it anyway. Rather than letting it be a scary idea that sits in the back of your mind, you can plan for that “what-if” before you get married.
After all, agreeing in a pre-nup not to go to war in the event of a future divorce is an act of love in itself. And, it may be a good step towards ensuring that your pre-nup never matters.
The holidays can be stressful. And they can be especially stressful for families in the midst of a separation or divorce. But, there are some better and worse ways to handle the holidays. Here are five tips to help you avoid mistakes that I’ve seen others make (it’s late in the year and my sarcasm filter is a bit fatigued, so excuse the snark):
1. Don’t Hog the Kids: Big holidays are important to kids. They want to share the experiences with both parents and maybe even both sides of the extended family. Just because you don’t care whether the kids see the other parent for these holidays doesn’t mean that it’s not important to the kids.
2. Gift Giving is Not a Competition: Don’t try to outdo or show-up the other parent with your over-the-top gift deluge. You can’t buy your kids’ love; they already love you. And, if they don’t, then that life size robotic T-Rex from the Times Square Toys R Us isn’t going to change that.
3. Respect Traditions: Kids like their family’s traditions (well, usually anyway). Traditions represent stability and predictability for kids, something they are desperately looking for in the midst of a separation or divorce. Maybe you’d rather eat a giant bowl of Aunt Bethany’s lime Jell-O mold with the cat food topping (anybody catch that reference?) than go on that caroling trip through the neighborhood. But, that doesn’t mean that the kids don’t like it.
4. Don’t Argue About The Holidays In Front of the Kids: Wanna know how to ruin the holidays for the kids? Get in a fight about the holidays in front of the kids! They’ll really come to cherish the annual holiday family shouting match. Good times.
5. Don’t Force the Kids to Choose Their Holiday Schedule: Another stellar way to take the fun out of the kids’ holidays is to tell them “You get to choose whom to spend the holidays with!” No pressure. “Dear Santa: You know, toys are great and all, but this year for Christmas I would like to be faced with a no-win decision that forces me to choose between two people that I love dearly, with the risk of terribly disappointing one of them! And, if you can fit some self-esteem and peace of mind in your sack for next year, that would be great. I think I’m gonna need it. Love, Timmy.”
HOLIDAY BONUS! (Sorry if you were expecting a Jelly of the Month Club membership):
6. Have a Conversation About When To Reveal the Santa Clause Truth: If you really want a lump of coal, then go ahead and tell your kids that Santa isn’t real without consulting the other parent. Imagine the Christmas joy when the other parent finds out that their 5 year old doesn’t believe in Santa anymore because you let the cat out of the bag! Seriously, it’s the gift that keeps on giving. If the kids at school get to your kids first, then so be it. But, nobody likes a Grinch. Except for Cindy Lou Who and Martha May Who. And they’re not real.
One issue that people frequently ignore in their divorce is opportunity cost.
Opportunity cost is defined by my computer as “the loss of potential gain from other alternatives when one alternative is chosen.”
That’s a fancy way of saying that when you are doing one thing you are giving up the potential benefits of another. It means that if you go west, then you give up whatever good things you would have found by going north, south or east.
So, what does that have to do with divorce?
In divorce, people make choices from the day someone says that they want out until the divorce, and frequently far past that point. They make choices about what to do with their energy, peace of mind, money, kids and stuff. The choose how to behave towards the soon to be ex-spouse.
In most cases, clients give some thought to the impact of their choice; i.e. “when I do this, the result will be ‘x’.” They think about the effect that will be brought about by their decision.
What they generally fail to consider is the how that compares to the other possible decisions that they could make. That is, they spend a lot of time thinking about what they’ll find if they go one direction, but very little time thinking about what they give up by not going another.
For instance, when people choose to use an adversarial process for their divorce, they don’t give much thought to the benefits of non-adversarial processes that they are giving up. They see what they hope to gain by duking it out, but they fail to see what the have given up.
In many cases, people fail to see that choosing to fight about something is also a choice to forgo the peace of mind, free time or money that they could enjoy if they were to choose another way to handle their divorce.
I frequently ask clients to consider what they could do with their time, energy and money if they resolved their case quickly and did not have to deal with their divorce anymore. That gets them to think about the opportunity costs of the decision they are considering.
Sometimes, it makes sense to continue the tough work of negotiation or a court battle. But, that decision should only be made once the client considers the opportunity cost of that decision.
If you are considering a divorce, you may want to spend some time considering what you would do with the time, money, peace of mind and energy you can save by choosing to resolve your case through collaborative divorce, mediation or other non-adversarial processes.
One of the biggest challenges that many clients face in their divorce is how to communicate with their spouse or ex-spouse. This especially important when a couple will be co-parenting down the road.
When children are involved, productive communication is crucial to protecting the kids from the ravages of a divorce.
That is easier said than done. So, the question becomes how to productively communicate? There is a lot of information about how do to that. But, in my experience, a lot of it is somewhat hard to really grasp and put into practice in the heat of the moment.
One suggestion that I use is to speak to your spouse or ex-spouse the same way you would speak to your child’s teacher at a parent-teacher conference.
After all, there are some strong similarities in the conversations. The goal of a parent teacher conference is frequently the same as communication between divorced or separated parents: discuss issues regarding the kids and possible ways to address those issues. Further, you may disagree with something the teacher says, you may be offended, and you are certainly emotionally invested in the topic of the conversation, i.e. your child.
Think about how you would speak to your child’s teacher. What tone would you use? What things would you say and not say, even if you were thinking them? What would be your goal?
I suspect you would adopt some combination of the following techniques in a conversation with your child’s teacher:
Asking questions to clarify information
Making an effort to understand what the teacher is saying
Acknowledging the joint interest in your child’s well being
By contrast, you probably would not do the following in a conversation with your child’s teacher:
Blame the teacher
Accuse the teacher
Insult the teacher
Threaten the teacher
Why? Because you understand that the teacher has a lot of influence over your child and spends a lot of time with your child. Because your relationship with that caretaker is very important to your child’s well being. Because you know that you’re going to have to see that teacher again. Because you actually want to have a productive meeting. Because you want what is best for your child.
That being the case, why would you treat your child’s other parent differently? After all, isn’t your child’s other parent going to be at least as influential and important for your child as the teacher?
Yes, there may be emotional reasons for treating your ex-spouse differently than your child’s teacher. But, are your emotional issues more important than your child’s well being?
In my experience, having a parent adopt a tone appropriate for a parent teacher conference sets the stage for a productive collaborative conference or mediation. And it gives clients an easy reference point, a convenient “go to” mode when they feel themselves struggling to communicate well.
In my experience, this technique frequently helps, and rarely, if ever hurts.