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.

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.

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.

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.

Lawyer Tactics in Divorce: The attorney fee correlation

It has been awhile since I posted anything, and this one deserved to be said again:

The best paid divorce lawyers are the ones that get very aggressive, and downright hostile sometimes, towards the soon to be ex-spouse. They use a harsh tone of voice and demeaning terms whenever they are in court or even in mediation (at least when their client is watching). This is an odd thing on the surface since judges tire of such antics and are not swayed by emotional ploys. They are far more concerned in finding some reasonable solution than figuring out which of the spouses is the most messed up (by the way, they assume you are pretty much just as messed up as whomever you are divorcing, just in a different way). It is an even greater oddity in mediation. Such tactics practically guarantee that negotiations will fail.

So, why do these lawyers resort to such psychological assaults? Well, the most cynical answer is that it pays! People in divorces are likely at the angriest point in their lives and all that anger is focused on the one person they are convinced has ruined their life. And yet, they are now separated from the object of their wrath and under the scrutiny of the court so that they cannot cut loose on the other party as they would like to. Instead, they get the vicarious release of seeing their lawyer say hurtful, nasty things – AND IN PUBLIC TOO! It becomes worth every penny of the $250 to $300 an hour fee (not my fee, I’m talking about the top charging lawyers here). And, since negotiations break down, they get to see the show over and over again at the court’s motion hour. That is, until the money runs out. Suddenly the tune changes and it is time to either come up with another large retainer or begin to settle for less that destroying your spouse’s entire life.

When it is all said and done and the money that would have paid for your children’s college has been spent – what it left? Nothing was really resolved and there are a whole set of fresh injuries to nurse. So, if you want an expensive divorce – get an aggressive attorney. If, however, you want to get on with your life and experience some semblance of peace – find a lawyer that believes in resolving conflict rather than profiting from it.

If you want an expensive divorce – get an aggressive lawyer

The best paid divorce lawyers are the ones that get very aggressive, and downright hostile sometimes, towards the soon to be ex-spouse. They use a harsh tone of voice and demeaning terms whenever they are in court or even in mediation (at least when their client is watching). This is an odd thing on the surface since judges tire of such antics and are not swayed by emotional ploys. They are far more concerned in finding some reasonable solution than figuring out which of the spouses is the most messed up (by the way, you are pretty much just as messed up as whomever you are divorcing, just in a different way – and the judge knows that. Seriously – why else did you marry him or her to begin with?). It is an even greater oddity in mediation. Such tactics practically guarantee that negotiations will fail.

So, why do these lawyers resort to such psychological assaults? Well, the most cynical answer is that it pays! People in divorces are likely at the angriest point in their lives and all that anger is focused on the one person they are convinced has ruined their life. And yet, they are now separated from the object of their wrath and under the scrutiny of the court so that they cannot cut loose on the other party as they would like to. Instead, they get the vicarious release of seeing their lawyer say hurtful, nasty things – AND IN PUBLIC TOO! It becomes worth every penny of the $250 to $300 an hour fee. And, since negotiations break down, they get to see the show over and over again at the court’s motion hour. That is, until the money runs out. Suddenly the tune changes and it is time to either come up with another large retainer or begin to settle for less that destroying your spouse’s entire life.

When it is all said and done and the money that would have paid for your children’s college has been spent – what it left? Bitterness. That’s all, just bitterness. Nothing was really resolved and there are a whole set of fresh injuries to nurse and brood upon. So, if you want an expensive divorce – get an aggressive attorney. If, however, you want to get on with your life, be able to take a vacation, and experience some semblance of peace – find a lawyer that believes in resolving conflict rather than profiting from it.

Best Practice in Dependency, Abuse & Neglect Matters

I have written criticisms in here about practices by the Cabinet that I find unsettling and sometimes that I abhor. I have also written defenses for the Cabinet because of the monumental tasks they are required to accomplish with such limited resources. Both of these positions are open to being misconstrued and misapplied. Yes, there are some real concerns in the practices of many workers and supervisors in the Cabinet and which are fostered on up the chain of command. There are some significant systemic problems as well. However, if you find yourself in the unfortunate predicament of having the Cabinet for Health and Family Services, Department of Community Based Services (what a mouthful of a title – I feel sorry for the folks who have to answer their phones) in your life, the single best approach is to keep a mindset of cooperation; avoid antagonism. I am writing this to correct any idea that I inadvertently promoted that being adversarial with the Cabinet is the way to win your case (I mean adversarial in the sense of ones attitude rather than in the sense that the court process is an adversarial process). Those criticisms are designed mainly for a global change in the system through political action; they are not meant to fuel a personal vendetta in an individual case.

Of course it is human to want to lash out in anger at this behemoth of an agency that does not seem to care or at workers who do not seem to understand. Of course it is a tragic and trying time when your child has been taken from you and young folks fresh out of college and are not yet fully raised themselves are telling you how to raise your children. Take all of those normal feelings, go in a closet, grab a thick pillow and scream every bit of outrage into that pillow where no one can hear. After that, whenever you are interacting with the Cabinet or with your children, you remind yourself that these folks are there doing what they believe is right for your child. That is actually the case about 9,999 times out of 1,000 or more (the key word is “believes”). In fact, the vast majority of the time they are at least hitting the paper that has the target printed on it even if they are missing the target itself, let alone the bullseye.

So, after screaming it out, you need to take a good, hard look at yourself regarding how the Cabinet says you screwed up. Do this for your child because if the Cabinet is close to right, then you owe it to your child to admit the shortcoming and fix it. Yes, they may have gone about things the wrong way, denied a Constitutional right or two, misrepresented what you said or sometimes flat out lied about you (they tend to justify the means by the end and the phrase “best interest of the child”). Those are NOT to be your focus unless you want to increase your chances at a termination of your parental rights down the road. Your focus is getting your child back in your home by becoming a better parent (we can all be better parents, so take the chip off of your shoulder when I say that). Don’t just play the game; honestly consider what they say and find how it fits. Believe me, they have enough work to do without needing to take your child for no reason at all or to just mess with you. Sure, they may have grossly overreacted, but that does not change that they picked up on a legitimate issue.

Now, I am not saying to admit to things that, after reflection, really are not true and this advise mainly applies to after an adjudication or stipulation has occurred (before that: be careful what your say, talk to a lawyer if you can, but still be kind). I am surely not telling you to say or do something your attorney has advised against. I am talking about a mindset and a cooperative approach that will increase the likelihood of the return of your children. Be kind and respectful in talking to your worker, avoid blaming them or others and never cuss or threaten them.

Why? you ask. Two reasons: 1) it is the right way to treat folks, even those who seem to be harming you; and 2) it is the pragmatic thing to do when faced with someone far more powerful than you. For a variety of reasons, Cabinet workers tend to take displays of anger towards them from parents as signs of denial and defiance. They equate denial and defiance as someone who is not going to take good care of their children and a likely sign of emotional instability. They want compliance, not consternation. I know, you are right, they are supposed to be trained professionals who understand the grief process and wildly swinging emotions that kick in when one’s family is ripped apart. Just forget about that. Being right is not going to get your children home. All you will achieve by pointing out the individual flaws of your worker is someone with a great deal of authority who believes you are a lost cause. Again, I am not saying to just parrot back to them everything they say, but if they say something that ticks you off, just say “You know, I really want to understand what you are saying there” or “I really want to spend some time thinking about what you just said” and then work it through later, somewhere else, with someone safe.

This is also not to say that you don’t fight for your rights. It is just a different way of fighting. Let your lawyer fight using the tools of the system in court. Fighting does not have to involve emotional attacks. I have represented many people in dependency, neglect and abuse actions. Those that get their children back home the quickest are the ones who take the approach I outlined above. Those that are determined to right the wrongs in their case usually take the longest to see their children return. Those that are adamant about beating the Cabinet are usually the ones who lose their children for good. Remember, the Cabinet has the overwhelming advantage because the statutes give them the upperhand, because they have far greater resources that you can imagine, and because the judges believe and trust them. You can stand shaking you fist and yelling about the injustice all you like, but that approach, in my experience, always makes justice more elusive.

As an aside: there is one supervisor with the Cabinet who is terribly fond of telling parents from whom she has removed children or terminated rights that “it isn’t personal”. I think of her as the Vulcan of the starfleet Cabinet. There is nothing more personal than having one’s children taken away. I think it is her way of constantly insulating herself from the inevitable pain that goes with her chosen profession. I also think she is trying to tell parents not to hold her personally accountable for the decision; that she is just a cog in the wheel. She’s wrong on both accounts. But, if you have this supervisor or another who uses “it’s not personal” as their catch-phrase, let it remind you that your personal feelings are not safe in their hands. Find someone for whom it is personal in the sense that they care, have compassion, but can still confront you when your are wrong rather than just commiserate to share those personal feelings with.

Stall Tactic – Involuntary Termination of Parental Rights

Kentucky sets forth the grounds for a court involuntarily terminating parental rights in KRS 625.090. The statute basically gives the essential elements, all of which much be proved by the heightened standard of “clear and convincing” evidence: the child has been abused or neglected (and there are three wasy to show this) and that it is in the best interest of the child for the parental rights to be terminated (interestingly, the likelihood of the child actually finding a permanent home through adoption is not supposed to be considered in determining “best interes”, but that is a topic for another day).

After laying out those two essential elements, the statute provides a laundry list of other things, one of which must also be found to be true. Supposedly, this list is to put the breaks on a little to keep parental rights from being terminated too easily. Unfortunately, built into that list is one item that is not ulitmately within the parent’s control and is a strict liability type provision. In other words, it is either true or not and there is no consideration for intent or mitigating circumstances. The provision is KRS 625.090(2)(j). Where the legislative intent appears to be to put on the brakes, provision (j) disables those breaks and leaves parents careening toward a crash.

How this plays out is if the Cabinet for Health & Family Services worker and surpervisor wishes to do an involuntary termination of parental rights with a parent, but that parent is basically doing fair, they stall the case. Most of the families they deal with are lower income and less educated with multiple challenges facing them. Even in families with great resources, one can find issues and challenges pop up. It is even easier to find such issues when the families are also facing stressors related to socio-economic status or who are less sophisticated in dealing with government agencies. So, the Cabinet highlights those challenges. For example, the parents long term friends may have brushes with the law or be involved in drug use or alcohol abuse. Even if the parent does not have those challenges, then the whole guilt by association sets in and the Cabinet demands they give up their friends creating isolation that is not readily filled (by the way, from my experience some workers partake of illegal substances or drink to excess at times and there is no mandatory employee testing for Kentucky governmental employees, but that is also a topic for another day). Perhaps the worker is concerned about an unsafe neighborhood and they demand the parent move to a nicer one. Or, perhaps the parent has a criminal history of minor, but frequent criminal incidences and they tell the parent they want to see a pattern of stability over time – let’s say twelve (12) months. The list can go on, but before anyone realizes it, they are up against that 15 of the last 22 months from (j).

So, you say, what’s the big deal? Well, if one examines all of the other items (a – i) in list, only one of which needs to be proven, (j) stands alone. The other items all require a showing that the parent has done something horrible or continues to really mess up and is not caring for the child. However, (j) is a strict timeline and the parent could actually be doing okay during that time, but (j) still gets them. The other items show some kind of mental status or intent on the part of the parents: they are either negligent which is requires a state of mind (mens rea)for latin geeks) or act willfully. Item (g) even expressly says that the failure in it must be for reasons “other than poverty alone.” Bu, item (j) requires no state of mind whatsoever; it just happens. In all the other items (a – j), the parent has some level of control over whether the even comes to pass whereas in (j), unless there is an active judge, they are at the mercy of the Cabinet.

So, this parent who is not messing up royally, but that is also not blowing people away with their progress, loses all the safequards that the statute is supposed to afford because the Cabinet structured the case that way. The Cabinet worker can simply drag the case along, picking at issues enough justify their “cautious” approach and then suddenly say, “Oh, we’re going to terminate your parental rights – see ya’ in court and have a nice day.”

The only way to combat this stall tactic is to be active in getting the case before the court on a regular basis. Insist on having reviews every three or four months and get the progress, or lack thereof, on the record. For attorney’s representing parents, it does mean more work and it does mean the County Attorney, the Cabinet, and maybe the Judge being frustrated at filling the dockets up. For parents, it means speaking up both to the court and to your attorney. For everyone, it means remaining focused on confronting legitimate issues head on and in a timely manner. Otherwise, this loophole in the involuntary termination of parental rights statute can ensnare the unwary and once again, where Constitutional protections should be at their height, they are found at their lowest ebb.