Wednesday, May 27, 2009

School is Out!

I can't believe that school is out, or almost out, already! Where does the time go? While difficult parenting issues don't take a break for the summer, I do. Starting June 10, however, I will try very hard to post every other Wednesday throughout the summer. In September, I will be back every Wednesday with new posts about the good, the bad, and the ugly of parenting during and after divorce.

HAPPY SUMMER! ENJOY THE KIDS WHILE YOU CAN!

Wednesday, May 13, 2009

Overheard Conversations Entangle Children in Divorce Conflict

Children become entangled in their parents' divorce before the parents even know it. Long before the parents even know divorce is a serious possibility, the children know that there are problems, and often what the problems are.

Parents believe they are being discreet by waiting until the children are out of the room or otherwise occupied to discuss their marital problems with their friends. They believe the children are shielded when they wait until the kids go to bed to have that "discussion" or argument.

Unless the children are out of house, there is no such thing as their being out of earshot. Even children who don't hear you when you ask them to set the table, seem to hear private conversations at the other end of the house and are able to repeat large portions of the overheard information with great accuracy.

Unfortunately, when children overhear private conversations by or between parents, they are often left to interpret the information alone. They know that they were not meant to hear the conversation so they don't feel like they can go to their parents to talk about it. Without really understanding everything they hear, they begin to create their own versions of what's really happening between their parents and to their family. If you've ever played the children's game "telephone" you know just how mixed up messages can get over time and distance.

For the most part, parents try to be careful about exposing the children to their conflict. Many parents swear that, while the children are probably aware that the parents are upset with each other, they do not know or understand the specific arguments or discussions. The truth is, however, that most parents would be truly surprised at what their children know (or think they know) about the parents' marital problems. And they would be shocked at the turmoil and burden the children feel over having this information.

To assure that your children are not entangled in your divorce, please keep all conversations or arguments about finances, extramarital affairs, divorce or the possibility of divorce far away from the children. Don't just wait until you think they're asleep or in the other room; take these conversations out of the children's earshot completely. To minimize involving your children in your conflict, you can:

• set up a time for the children to be with a babysitter while the parents go somewhere else to talk
• arrange for the children to go to a friend's or a relative's house so you can talk freely
• limit your communications to email if the children are around
• talk on the phone about divorce-related issues only when the children are not in the same house, car, or other physical location with you

Words matter. Please shield your children from overhearing divorce-related conversations not meant for them.

© 2009, Mary Wollard, J.D., Family Solutions Center, www.cofamilysolutions.com

Wednesday, May 6, 2009

Dealing with the legal system in divorce - Enforcement

Parenting plans become orders of the court when the court adopts a plan agreed to by the parents or makes its own plan after a hearing or trial. After an order is in place, however, many parents agree to modify the plan without incident. When parents do agree on changes to the plan from time to time, the best practice is for any changes to be put in writing and signed by both parties so there is no question in the future about what the new agreement is.

Sometimes, after a parenting plan is adopted or ordered by the court, one or both parents stop following the plan. What happens if one parent changes the original plan without the other's agreement? How can you enforce those original orders?

Courts enforce their orders through contempt of court proceedings. Although the exact procedure for seeking enforcement through contempt varies from state to state, the procedure that follows gives you a general picture of the process.

A parent wanting to enforce parenting plan or support orders would file a motion asking the court to issue a contempt citation to the parent who is not following the orders. The motion should provide information about the date of the order, the provision(s) not being followed, and specifics about how and when the other parent disobeyed the order. Some courts or state judicial departments provide check-box and fill-in-the-blank forms for this. If the court finds that there is sufficient information in the motion to show probable cause that the orders have been disobeyed, it will issue a citation to the other parent to appear in court and show cause why he or she should not be found in contempt.

Because one of the possible penalties for being in contempt of court is jail, these proceedings are quasi-criminal in nature. This means that many of the rights defendants have in criminal actions are also given to parents in contempt proceedings. These rights include the right to have an attorney present, to have an attorney appointed by the court if the person cannot afford one, the right to a trial, and the right to confront witnesses.

The elements that have to be proven for the court to find someone in contempt of court are: 1) that there is a valid court order; 2) that the person knew of the court order; 3) that the person did not comply with the court order; 4) and that the person had the ability to comply with the court order, but did not.

The reality is that courts rarely send someone to jail immediately even if the person is found to be in contempt. Because the goal of the whole process is really to get the other person's compliance with the court orders, most courts will order other remedial measures such as make-up parenting time or payment of a portion of the past-due child support before they will resort to jail. Ultimately, however, it is entirely up to the court to decide what the punishment will be for someone found to be in contempt.

The contempt process can be long and frustrating for someone who just wants the original orders to be followed. If you can find other ways to work with the noncompliant parent to encourage their following the court's original orders, you will likely find the end result to be more satisfying than going through the contempt process.

© 2009, Mary Wollard, J.D., Family Solutions Center, www.cofamilysolutions.com

Wednesday, April 29, 2009

Dealing With the Legal System in Divorce - Evaluators

When parents aren't able to reach an agreement about parenting issues during or after a divorce, the court will often appoint one or more evaluators to do an investigation and make recommendations to the court.

The kind of evaluator appointed will depend on the issues the court is being asked to decide and the allegations that have been made against one or both of the parents. The background, education, and training of these evaluators generally depend upon state laws, court rules, or special directives governing the appointments. For the most part, these evaluations will be done by mental health professionals, attorneys, or lay people who have been specially trained in child development, family systems, and domestic violence. The actual term for the evaluator varies from state to state and region to region. Some common terms are custody evaluator, parenting evaluator, parental responsibilities evaluator, special advocate, child and family investigator, and parenting time evaluator.

During the course of the evaluation, the evaluator spends a great deal of time with the family and has access to information from schools, therapists, and other people who know the family. Because evaluators have such a wealth of information from so many sources, they can have a great deal of influence with the court. The evaluator reports the results of the investigation, draws conclusions from the information, and makes parenting recommendations to the court.

Because the evaluator has influence with the court, the appointment of an evaluator can be intimidating. But don't let yourself become defensive if an evaluator is appointed. The best thing you can do is to provide the evaluator with all the information s/he needs to provide the court with a reasoned, unbiased, and well-informed report and recommendations.

The evaluator's focus is on what is in the best interests of the children. Most states have specific criteria for a "best interests" analysis. The evaluator is more likely to have a favorable view of you and your relationship with the children if your focus is more on the children than on yourself or the other parent. Too many parents diminish their focus on the children by allowing their anger with each other to dominate the evaluation process.

Talk to the evaluator about each of the children; their strengths and weaknesses, their joys and fears, their favorite subjects in school and their worst. Talk to the evaluator about yourself; your strengths and weaknesses, and your joys and fears. If there have been problems with your parenting in the past, if you haven't been as involved with the children over the years as you now wish you had been, tell the evaluator and talk about what you would do differently now. Only after you have talked about the children and yourself, should you then talk about the other parent, including their strengths as well as their weaknesses.

Part of the evaluation process usually includes an opportunity for the evaluator to meet with each parent and the children together to observe their interaction. Often the evaluator will provide an activity for you and the children to do together while the evaluator observes, but be prepared with an activity for you and children to do during the observation should the evaluator have a more unstructured style. Observing you and the children playing a game, building something, or working a puzzle together gives the evaluator information about your parenting style, the bond between you and children, and what effect, if any, the conflict between the parents has on your relationship with the children.

If you are unable to resolve parenting issues without a contested court hearing an evaluator will likely be appointed to assist the court in making orders concerning custody or parental responsibilities. During the evaluation process, if you keep the focus on the children, rather than on the conflict between parents, you will help the evaluator make positive recommendations about you and your parenting abilities.

© 2009, Mary Wollard, J.D., Family Solutions Center, www.cofamilysolutions.com

Thursday, April 16, 2009

Dealing with the Legal System in Divorce - Attorneys

With attorneys and divorce, it's not all or nothing. Attorneys can help you in several capacities, providing as little or as much assistance as you want.

One-time consultation. Prior to or during your divorce, you can consult an attorney on a one-time basis to ask for advice about:

• the divorce laws in your area and how they might be applied in your case
• specific issues important for you to be aware of and how they might best be addressed
• whether an agreement you are considering is complete and best for you and/or the children

You will pay the attorney just for the time s/he spends meeting with you and/or reviewing any documents you've brought or asked to have reviewed before or after the meeting.

Off-and-on consultation. You can consult with an attorney on a pay-as-you-go basis throughout your divorce process for advice about:

• the process, the paperwork, and the basic laws
• specific property and debt, parenting, and support issues
• how to handle yourself in court, what kind of evidence you will need for court and how best to present it.

Most attorneys are happy to help you with your on-going questions, and paying for the meetings as you go helps you keep your costs down while still allowing you to feel confident that you're not in this entirely alone.

Full-time representation. You can hire an attorney to represent you throughout your divorce. When you retain an attorney for full representation, the attorney:

• deals directly with the court on your behalf
• communicates and negotiates with your spouse, or with your spouse's attorney if there is one
• manages your case and prepares all documents and agreements for a final resolution

Most attorneys will ask for payment of a certain amount up front that they will use as a retainer to be billed against as the case proceeds. Attorneys generally have an hourly rate and bill in portions of an hour for everything they do, including talking to you on the telephone or by email.

Whether you consult with an attorney from time to time or decide to retain an attorney to represent you in your divorce, ultimately you are in control of your case. An attorney can help you in many ways, but you must make the final decisions towards your final outcome.

© 2009, Mary Wollard, J.D., Family Solutions Center, www.cofamilysolutions.com

Thursday, April 9, 2009

Dealing With the Legal System in Divorce - The Courts

The court is often the first thing people think about when they consider divorce or separation. For some, having the court involved in making decisions for their family is the last thing they want. Others hope the court will become deeply involved and make specific orders in their case.

If you bring a divorce or parenting case to the court, it will eventually enter a decree ending the marriage or granting a legal separation. Whether the court also makes orders regarding property and debt division, parenting, and support depends upon you.

If the two parties are able to reach an agreement that resolves the issues in their divorce or separation, the court will generally adopt that agreement as an order and will enter the decree without any further involvement. Even if the agreement resolves the issues in ways that the court cannot or would not, the court will usually approve the agreement as long as it is fair and is in the best interests of the children.

Courts are reporting a large increase in the number of family cases being filed without attorneys. Many courts have forms available at little or no cost for people without attorneys to be able to file the necessary court documents for their family case. There are often also complete instructions available to help you fill out the forms correctly. To look for free or low cost forms in your area, call the court clerk in your county or search the internet for "family court forms your state." If you stick to sites that are official government or court sites, you are likely to find official forms.

Because of huge caseloads, courts often require the parties to a divorce or separation to attend mediation before the court will allow the parties to schedule a contested hearing. Even parties who think mediation would be a waste of time are often surprised to find that they can agree on some or all of the issues when they are forced to sit down with a neutral third person who can help the parties break down the issues and deal with them one piece at a time.

If you do end up in a court hearing, it's important to keep in mind that the court has only a limited amount of time to devote to each case before it. Be prepared and be organized about you want to present to the court. You can help the court help you by presenting your case clearly and without anger. If you feel the other side is a scoundrel, give the court specifics and then trust the judge to "get it". If you know the other side will tell the court something bad about you, you might want to consult with an attorney about whether you should consider telling the court yourself. Your honesty and forthrightness might make the issue seem less important to the court.

Finally, when you are trying to navigate the courts on your own, be nice to the clerks and court personnel. These are the people who can help you the most. They are often overworked and underpaid. Smile at them when you are asking for their help and thank them when they give it. These courtesies can help you have a successful and positive court experience.

© 2009, Mary Wollard, J.D., Family Solutions Center, www.cofamilysolutions.com

Thursday, April 2, 2009

Parenting Plans That Work - It's All In the Details

It's impossible to draft a parenting plan that covers all the details that arise when raising children. At some point, you just want to get the major things down and be done with it. Most parenting plans cover regular parenting time and holidays. Here are three smaller details many parenting plans don't address, but should:

Haircuts & Piercings

It might seem a bit mundane to include details in your parenting plan about when, where, and how the children will get their hair cut. But these are details that can cause increased conflict in a family. When the children are very young, haircuts are day to day decisions that don't really merit much attention in your parenting plan. And body piercing is not even on the radar! As the children get older and start to express their independence, however, hair and body piercing can become major issues between parents, and between children and parents. It is worth including a general statement in your parenting plan about a shared philosophy regarding the children's independence in general and the expression of that independence through their hair and body. You can include in your parenting plan a general statement that you understand these issues might arise in the future and how you intend to address them when they do.

Emergency Room or Hospitalization

How and when should the other parent be notified when a child goes to the emergency room, is hospitalized, or has a serious medical issue? This can especially be an issue when parents don't live near each other and/or parenting time with one parent is infrequent. I had a case where a child was hospitalized after a serious traffic accident and the out-of-state parent was not notified at the time. In fact, the parent did not learn of the incident at all until several months later when one of the other children mentioned it. This situation was full of missed opportunities for the child and the parents; opportunities for the parent to show the child how much s/he means to the parent, and opportunities for the child to bond with the parent and experience the parent's genuine love and concern. Whether or not your parenting plan provides for shared/joint parenting, the plan should assure that each parent is notified if a child is hospitalized or has a serious medical issue.

Driving

Hard as it might be to imagine that your young children will one day be driving, time does march on and the children do grow up. Unless your children are already close to driving age when you are preparing your parenting plan, you don't need to put all the details about driving in the plan. But you should discuss driving when you're preparing your plan and include some general agreements about the issue. Will you share the cost of driver's education? Will you expect the child to contribute toward that cost? Will driving depend on grades or any other criteria? Even if you choose not to address these issues in your original plan, you might include a statement as to your thoughts on driving and how you will address driving-related issues in the future.

During a divorce or separation, working together on a comprehensive parenting plan seems daunting and uncomfortable. If you take the time in the beginning, however, to give some serious thought and discussion to future parenting issues, you and your children will all benefit.

© 2009, Mary Wollard, J.D., Family Solutions Center, www.cofamilysolutions.com