Grandparent or Other Custodial Caretakers of Children Moving Out of State

That is a long title, but this is important news to grandparents, relatives or others who have custody of someone else’s minor children or are considering accepting custody. The new Family Court Rules of Procedure and Practice 7(2) requires a “parent” moving out of state or more than 100 miles away from the other parent to give sixty days notice. If there is no agreement on the move, then a motion has to be filed asking for it to be allowed and if there is agreement, then an agreed order is to be entered.

Even though the Rule says “parent” it would most likely be applied to anyone in a custodial role. And, the rule does not make a difference as to whether that custodian has joint or sole custody. So, it would be wise to give a written notice to the other parent or parents of the planned move and then, if no agreement is reached, file a motion to get the court to approve the move and set new timeshare guidelines. If that custodian has sole custody and a compelling reason to move out of state, then I believe most family court judges would tend to allow the move. I believe the chances of such a move being approved decrease if there is joint custody or if the move is for a convenience type reason. However, each judge has their own tendencies and each case will be determined on multiple factors.

What you do not want to do is to make the move and then end up in hot water with a judge for not following the rules.

Help is available for foreclosures

Since financial matters impact families so profoundly, and none more than the threat of losing one’s house, I encourage you to take a look at this post on my Kentucky Bankruptcy blog if this is a stress facing your home.

The Cabinet for Health & Family Services encounter a limit on their authority

The Cabinet for Health and Family Services has long enjoyed a tremendous level of deference by most Kentucky judges. In my experience, both as a prior employee of the Cabinet and now as Court Appointed Counsel for parents and Guardian ad Litem for children, I have been concerned that the Cabinet’s reach lacks the ordinary checks and balances that limit other governmental agencies. One way this unfettered power has often played out has been for social service workers to insist that parents sign “Prevention Plans” or “Aftercare Plans” that the worker devises.

These plans, containing whatever restrictions and guidelines that worker sees fit to include, create a real catch 22 for parents: if they refuse to sign them, then the Cabinet threatens to file an abuse or neglect petition against the parent and if the parent does sign them, then the worker will file an abuse or neglect petition for any failure to adhere to the requirements of the plan. The threat of abuse and neglect action intimidates nearly every parent into signing, especially when the worker explains that their children may be removed from them. That is a pretty heavy hand to play to coerce the signing of a plan that the parent likely does not agree with but may be held to regardless.

However, in a recent as yet unpublished case from the Court of Appeals for Kentucky, K.H. v Cabinet, issued on December 22, 2011, the Cabinet has run into a limit on their power. In my opinion, this is a very important case and places an essential limit on the Cabinet to insure that parent’s rights are protected while not impairing protections for vulnerable children.

The language of the Court is worth quoting here:

The Cabinet’s position opens the door to a potentially wide-reaching intrusion by the state into the parent-child relationship. If the Cabinet can show that K.H. neglected her children merely by refusing to follow the Cabinet’s recommendations, then it could also seek to enforce other views about proper parenting in a similar manner. While the state has a compelling interest to protect its youngest citizens, state intervention into the family between parent and child must be done with utmost caution. It is a very serious matter. See M.E.C. v. Commonwealth, Cabinet for Health and Family Services, 254 S.W.3d 846, 851 (Ky. App. 2008), and V.S. v. Commonwealth, Cabinet for Family Services, 194 S.W.3d 331, 335 (Ky. App. 2006). See also Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). Although these cases urge such caution in the context of termination of parental rights, the parents’ fundamental interest in the care, custody and management of their children is not diminished by lesser state intrusions into the parent-child relationship. See Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 2060, 147 L.Ed.2d 49 (2000).

We must also be mindful that an adjudication of neglect carries long-reaching consequences. This finding may be used against K.H. in subsequent proceedings, including proceedings to remove the children from the home or to terminate her parental rights. A finding of neglect may also carry a personal or social stigma far beyond the limited circumstances involved in this case. Thus, the courts should be very careful about making such a finding merely out of caution.

Furthermore, when the Cabinet seeks to compel a parent to comply with its directives, the courts must be vigilant to protect against over-reaching of that authority. It is not enough for the Cabinet to show that K.H. would be well-advised to agree to the terms of the Aftercare Plan. The applicable statutory definition requires a finding that K.H. created or allowed to be created a risk that an act of sexual abuse will be committed upon the children.

The Cabinet can no longer base a finding of abuse or neglect merely on refusal to sign a plan and parents should not cave to the threat of legal action for mere refusal to sign. Instead, “the risk of harm must be more than a mere theoretical possibility, but an actual and reasonable potential for harm.” Make no mistake: I want parents to be held accountable and for the Cabinet to be able to keep children safe from abuse and neglect, but they cannot have unchecked power and discretion in pursuing their mandates. Parents do have rights in this country.

Foreclosure Defenses: Round 1

Reblogged from Kentucky Bankruptcy Law:

First, a shout out to Ben Carter, a former classmate of mine and one fine presenter with a flair for fashion. Thanks Ben for helping make sense out of foreclosure mayhem.

So much has been written about the dilemma of massive numbers of foreclosure actions that I am hesitant to dive into the fray. However, even though many would like us to perceive the economy issues as having resolved, I think the foreclose crisis will continue with us for some time.

Read more… 497 more words

This is not directly a family law matter, but few things threaten the stability of the family like the threat of losing one's home. So, I thought it worth sharing over here also.

Child custody, timeshare and support in Kentucky

Do I have to pay child support if I don’t have custody or get to see my child? This is a common question I hear and the answer is “yes”; child support, child custody and timeshare are different issues. So long as a parent retains parental rights, it does not matter whether they have sole custody, joint custody or no custody – child support will be awarded. Parental rights exist for any biological parent or any parent of a child born to them in marriage whether or not biological. These “rights” exist as a matter of course and no action has to occur to create them. They also arise when an adoption occurs. Custody, however, refers to a parent’s exercise of authority. I know, this does not make sense because the common meaning of the word “custody” is to have in one’s possession, care or control. Well, in family law in Kentucky, “custody” focuses on that last item: control (or authority). So, even if a parent has no authority to make decisions for their child, they still have other rights and responsibilities. One of those rights is the right to spend time with their child. One of the responsibilities is to provide financially for their child. These are separate and apart from one another so that even if you do not see your child, you are still responsible to provide financially.

Also, so long as a parent retains parental rights, they also will have a right to timeshare. This right can only be restricted if it is proven that a parent’s contact creates a harm to the child’s well-being. In most situations where parents are not together, one parent may have the child most of the time, least of the time, or roughly equal time with the other parent. Except in roughly equal timeshare, the parent with the child most of the time will receive child support even if they earn more money. In roughly equal timeshare situations this changes and the parent making the least money will receive child support and most courts modify it in various manners.

There is no statute directing how child support gets modified in even timeshare. Some judges use a “Colorado” formula that involves a multiplier (usually 1.5) of the regular statutory support amount to reflect the fact that each home has to provide extra expenses when the child stays there half the time. This multiplier could go as high as 2x in situations where the homes are very far away and each home has to provide exactly the same clothing, furniture, toys, books, and other living expenses as the other home because it is too cumbersome to take items back and forth between the homes. Other judges simply take the support given in statute for traditional timeshare situations and cut it in half. And, some judges do more of a best guesstimate process. In any situation, though, child support will be award because it is an innate responsibility for a parent to provide financially for their child.

Bankruptcy is also just a beginning

I know, not terribly original of me, but I realized some similarities in how folks looked a bankruptcy as an end just as many look as divorce as an end. So, I wrote a post entitled “Bankruptcy: Just the beginning” on my other law blog. Hope it is helpful because divorce and bankruptcy happen together so often.

Divorce: Just the beginning

Many folks come to me regarding a divorce and perceive it as an ending. Some do not want it to happen and others believe this “end” will set them free from something painful. While it does bring a few things to a close, divorce is more appropriately viewed as a beginning. And, as a beginning, it is very important how it begins because the actions and attitudes adopted early in the process will largely determine how the process will go forward.

What begins is twofold: 1) the legal process which can take many months, and 2) the process of dealing with the fall-out of the marriage and the divorce which can take years. Very few people who divorce actually sever all ties with their ex-spouse. Even when there are no children involved, ones’ ex-spouse usually continues to play some role in one’s life even if it is not one where there is little or no direct communication. The rates of second divorces being higher than first ones tends to support this notion. Having turned to divorce ones seems to make it a more ready position to take again and I cannot help but wonder if some degree of comparison between the marriages (and spouses) goes on at some level. The more obvious roles are when there are children involved or when property disputes outlive the actual marriage.

This perspective of beginning is important for a few reasons. One reason is that I caution folks to recognize that divorce is unlikely to meet their expectations for bringing freedom or joy to their life. Just as many people have unrealistic expectations about marriage from the start (which contribute to divorces), they also often have unrealistic expectations about divorce and become frustrated when it does not turn out as they thought. So, hopefully people will give deeper consideration to taking this major step if they realize it will not bring the level of freedom and joy that they expect. I believe you will find that mental health professionals would agree that the person considering divorce will have to work out the issues of the marriage relationship either in the marriage or out of it to find that freedom and joy, so no need to rush into a divorce in most cases (I’m not talking about situations of active infidelity and imminent physical danger).

A second reason for this caution is so that they can start well and a good lawyer will help with this. By starting well, I mean they will help them deal with anger, hurt and other issues in a more appropriate forum than in the legal process. I have been amazed when a person will spend hundreds of dollars in legal fees fighting over something that is only worth hundreds of dollars to begin with. This ordinarily indicates they are not really so concerned with the stuff as they are interested in resolving emotions and power struggles. If one goes into a divorce and brings contention into it, then the next dozen or so years are likely to be contentious also. However, if on goes into it being able to release things that are truly not that important, then the next dozen years are so are more likely to have a degree of peace.

Now, I recognize that this is not always possible. Sometimes, no matter how professional and amicable one party attempts to make the divorce, they cannot control their spouse. If they could control their spouse – well. . .. This does not mean it is time to fight fire with fire. That just results in massive damage to both parties. However, it does call for taking a firm (rather than aggressive) stance, deciding what is most important, and setting those boundaries. If one takes a firm stance that is reasonable, the judge is also more likely to recognize it and agree. So, avoid seeing divorce as an end to something; rather, recognize it is a beginning and, if it must be, then prepare yourself to begin it well.

A Just Distribution of Property: Domestic support obligations

I wrote a post on the Kentucky Bankruptcy Law blog about how equitable distributions as a result of divorce are treated in a Chapter 13. You can read that post here. In short, a domestic support obligation that arises from the distribution of property will be treated as a general unsecured debt in a Chapter 13. This creates a quandary for settling matters, especially in this market where houses (the major asset that is divided up in a divorce) take so long to sell.

If there is a major asset, like a house, that has equity to be divided and one party wants to hold onto it or control its sale, one strategy is to realize that equity through debt. This can be done two ways. The simplest way and best way is the party holding onto that asset to take out a loan for the amount of equity owed and give that upfront to the other spouse. That used to be easier to do, but with dropping real estate values, obtaining a loan, even a secure one, could be difficult or impossible.

A second approach would be for there to be a promissory note from the spouse keeping control of the asset to the other party and secure that loan against the property. While this is not as good as having cash in hand, it is far better to have a secured debt going into a Chapter 13 than just an unsecured domestic support obligation that can get discharged. Since it is likely a junior lien on the property, then it could still not be paid in full, but the chances are at least better.

Domestic Support Obligations and Bankruptcy

Bankruptcy of an ex-spouse after the entry of a divorce decree (the dissolution of a marriage) can have substantial implications of obligations owed by that ex-spouse to you.  I’ve written a post regarding domestic support obligations in Chapter 7 as compared to Chapter 13 bankruptcy and I encourage your to click over and read it since I am not going to go into details here.  What I do want to reiterate here is that it is important to know how child support, alimony (maintenance) and equitable distributions of assets are treated in bankruptcy.  

In order to insure you do not end up getting paid only a percentage of what is owed to you from distribution of marital assets, be sure to get your share of assets right away rather than allowing for payment over time.  The most common example is where one party wants to keep the marital residence after the divorce is final.  They agree, then, to pay their soon to be ex-spouse a set number of dollars of the equity of the house over time in exchange for retaining the house.  Later they go into Chapter 13 bankruptcy and suddenly, you only get 10% or less of what’s owed to you and they get to keep the house. 

As hard as it may be, the more financially sound thing to do is to insist of the property being sold or refinanced and realize your share BEFORE ever quitting your interest in the property.  Also, just because something is called “child support” or “alimony” does not make it non-dischargeable.  The bankruptcy court can make its own determination based on the facts of the case as to whether it is actually an equitable distribution of property under the guise of alimony or child support, so it is risky to try and realize your share of equity by increasing child support or getting alimony.  

Keeping it cool

It is so well-known that it is almost cliché that divorce is one of the most stressful experiences a person can undergo. This is because something is being ripped apart that was bonded together on every level. Both parties end up with really raw wounds and feeling vulnerable because their life has so drastically changed. Now, it is human nature to want to attack or hurt the other party at times in this process and sometimes that comes out in the courtroom (see my prior post on this). Other times, though, one of the parties does not even realize they are raising the heat of the divorce.

Today’s world of Facebook, Twitter, Google+ (and I suppose some folks still use MySpace) provides a ton of information to total strangers. In this oddly electronically exhibitionist environment, many people post or tweet comments about their soon to be ex-spouse without even considering the ramifications. At the most simple level, those comments are very capable of getting back to the estranged wife or husband and just fueling the hurt and anger. The more hurt and anger that exists in the divorce context, the less likely contested matters will get resolved. Now, that is fine with most lawyers because it insures a steady supply of work and income. However, it harms both parties because of the expense and because the wounds are made deeper rather than healing.

On the more complex level, your posts and tweets can be used as evidence in a divorce hearing. They can be introduced because they are an admission by the party that made the comment. All the attorney has to do is authentic the post or tweet by asking you on the stand, “Do you recognize this comment? Did you make this comment?” and you are toast. So, resist the urge to express yourself. Return temporarily to the olden days where people got their gossip the old-fashioned way through pure speculation rather than providing it directly with Facebook, Twitter and Google+ (sorry MySpace, I know no one who uses you). Keep the temperature of the divorce cool so that the damage is minimized and the chance of healing optimized.