Monday, July 30, 2007

End of Summer Custody Disputes: Possible Solutions

The family law courts usually become busier in late July and August. Many custody change cases are filed and the parents want the issue resolved favorably before school starts. Unfortunately, it often takes many months or a year or more to get a final decision. Sometimes, it’s hard to get even a temporary decision before school starts. On top of that, it can be a very expensive process to be involved in.

When faced with a choice to file for custody, or a choice of how to
respond to a custody change suit, wise parents will consider whether there are any other ways for the parties to achieve their goals. The answer often is "yes".

Here are some suggestions to consider if you are faced with this issue in the near future.
  • The parents can work together through the Collaborative Law process. It would be especially beneficial to bring in a child specialist to help them come up with some original creative ideas.

  • If a parent really just wants more time with the child and recognizes that the current home is good, maybe letting the non-custodial parent pick up the child after school, or see the child in the evenings during the week or have an extra night or two overnight would help.

  • If there are school problems, maybe bringing in a tutor, or letting the other parent tutor, would solve the problem. With school issues, it really is better to have both parents working together to come up with solutions. Again, a child specialist could be very helpful.

  • Having both parents take a co-parenting class would help, especially if they were in the same class together. That way, they would both get the same information.
  • If there are scheduling problems, maybe the parties could use an on-line service to share a calendar. There are several services available at very little cost and not requiring high tech expertise.

  • The parents could also go to counseling together or even include the child in counseling. If the parties can work together somewhat, attending counseling together could be very effective.

  • If both parties have strong feelings about some issues, they could go to a mediator or meet with a child specialist to work out some creative solutions. Having a qualified, neutral professional help them would give them a better chance of success.

You may have noticed that none of the suggestions involved rushing to the courthouse, filing and getting a hearing as quickly as possible. That’s because going to court is expensive, it escalates the fighting, it damages relationships and it generally will result in some standardized order that may not be very comfortable or effective for the parents and child. Usually, one side prevails in court and the other loses. Creativity is in short supply at the courthouse. A better solution is to think and talk before filing. Don’t get caught up in the emotion or perceived opportunity to succeed by starting a court fight. A better course of action is to keep the big picture in mind and focus on what’s truly best for your child – not just what you want!

Sunday, July 29, 2007

End of Summer Custody Disputes: Should I Try to Get Custody?

Every year, at the end of July or the first of August, there is an upsurge of court filings where the non-custodial parent is seeking custody of a child, hopefully to be resolved before school starts. Immediately preceding that upsurge, the child has often spent from a week or two to a month with the non-custodial parent. Parting is not always sweet sorrow and when it is time for the child to go back to the other parent, often the battle begins.

There are four common ways that these conflicts develop.

First, there is a spontaneous start. The parent and child miss each other when they’re not together and they may have had an especially wonderful visit this time. Either the parent or child may start a discussion after thinking how wonderful it would be to live together "all the time".

A second possibility is that conditions (job, home, school, remarriage, etc.) may have changed and the change of custody might really be in the child’s best interest.

A third possibility is that one party has been planning it for a long time and has been planting seeds of discontent, envy or desire through hints or little comments made to the child or around the child. In effect, a parent can make a direct or indirect offer of some type to win over a child. Telling a child of 12 that he or she can get a computer game system or telephone if they live with the non-custodial parent can be pretty powerful. Promises of a car or freedom to do things the other parent won’t permit can work with older children.

A fourth possibility is that a party may act maliciously. That could include inventing or distorting allegations of abuse or neglect, or simply agitating behind the scenes to undermine the other parent. Often, a parent acting maliciously is actually angry over some unrelated and unresolved issue and uses the custody fight to get back at the other parent or to intimidate the other parent from pursuing some other matter.

Whatever the motivation, the difficult situation is often made worse by one side having a child, 12 years of age or older, sign a statement expressing his or her preference of the person he or she wants to designate the child’s primary residence. Even though signing that statement puts the child squarely in the middle, Texas law permits it and it is often used. (Quite frequently, the child later signs a statement choosing the original custodial parent to be the one to designate the child’s primary residence.)

Here are 5 things to consider when deciding whether to file a motion to change custody or when deciding how to respond to such a motion.

1. What would be in your child’s best interest? It’s not a
question about a parent – it’s about the child. Where is the best school? Where are the child’s friends? Which home is better, or are they both OK? Does the child have some special needs? If so, how can each parent contribute? Is one parent better able to provide support and nurturing than the other? Where is the better environment for the child? The focus should be on your child.

2. What’s really changed since custody was last determined?
While there are always changes in life, are there some significant changes that have affected your child?

3. Be careful to avoid manipulation by your child. Children learn
early that they can win by playing both parents against each other. They understand that they can create a bidding war and come out ahead. They can also punish one parent by wanting to live with the other one. If your child has initiated this process, look for signs of manipulation.

4. Figure out the underlying motivations of each party. Is this
really just a way to get to spend more time with a child? Is it intended to either get or avoid paying child support? (If so, it’s pretty short-sighted.) Have there been problems in sharing time between the parents? Does one parent really have a much better environment for the child now? Are there other conflicts between the parents? If so, is a custody fight a way to put pressure on the other parent?

5. What is this going to cost, financially and relationship-wise? Can you afford a custody fight that could cost tens of thousands of dollars? Is there a better use for that money? If you have gotten along well with the other parent, a custody fight will probably end the cooperation and peaceful coexistence. If the relationship is already not good, there may not be as much at stake, but that may mean that the other parent will fight harder out of anger. Either way, there will be a substantial cost.

A decision to file for a change of custody during the summer should not be made lightly. Before filing, one should carefully consider any hidden agendas, the costs involved, the reasons for changing and possible alternatives to filing.

Saturday, July 28, 2007

Adding a Financial Professional in a Collaborative Divorce

While there are several different versions of Collaborative Law utilized around the country (and now, the world), in Texas we usually at least suggest, and often insist, on bringing a Financial Professional (FP) into the process either at the outset or very early. Understandably, the initial reaction of some people is that they can’t afford the cost of another professional. In reality, there is usually a cost savings as a result of the help provided by the FP. That savings is a result of several factors.

First, a qualified FP who is trained in Collaborative Practice can be invaluable in coordinating the gathering, organization and analysis of the financial facts in the case. Generally, the FP starts out with more knowledge of finances than either of the attorneys and can help the parties focus on the important information, help them locate the information and then put the information into a format that is easy for all to work with. That usually turns out to be a more efficient process than one where the attorneys gather and organize the information.

Second, having a single, neutral FP managing the financial information means that one professional, often charging less than either attorney, is carrying out a major part of the Collaborative process. There is no duplication of effort and the clients end up saving a lot of money. Additionally, one of the major roles of Financial Professionals is to analyze and explain the tax consequences of various courses of action. As a result, the parties can make sensible decisions where both can benefit and save money. Who doesn’t enjoy saving money?

Third, a good FP can not only save time and money – sometimes they save the process and make it possible to successfully complete the case. An FP provides a neutral voice with expertise. Occasionally, near the end of the process when the issues and options have been narrowed, it helps to have a neutral trusted advisor who can explain things to both parties. Sometimes, it is necessary to explain the same issue in different ways to each party so that each understands it. A well-trained FP can recognize that need and will have the Collaborative communication skills to be able to do so. Often a suggestion or question coming from an FP can have a much greater impact than if the same suggestion or question had come from one of the attorneys. The neutral Financial Professional may be in the best position to get the parties to reach an agreement on the final issues when negotiating is often the toughest.

It is important for the parties in a Collaborative Divorce to understand that bringing in a trained Financial Professional will pay off for them in many ways. They can save a lot of time by allowing the FP to efficiently manage the financial information. They can save money by allowing a single professional to handle a lot of the work that otherwise would be done by two expensive attorneys. Finally, they can avoid the cost of failing to reach a final agreement and having to hire new attorneys and go to litigation. Generally, a trained FP can help the parties understand the financial issues and see the benefits of reaching agreements on various issues. Adding a Financial Professional makes success more likely and less stressful for the parties.

Monday, July 23, 2007

How to Protect Your Child Dependency Tax Deduction

Grant Griffiths, in his excellent Kansas Family Lawyer blog, brought up a timely subject that was also covered in detail in IRS web site .

The problem underlying the Tax Court case that was cited in the blogs was that the non-primary-custodial father had lost his copies of Form 8332 in a fire. There wouldn't have been a problem is he had kept extra copies in a safe deposit box or with family or friends. Another possible solution would be to get his ex-wife to sign another form. It's reasonable to assume that they probably weren't on the best of terms if he decided he would have more success by going to Tax Court. As it happened, he was wrong.

The message from all this is clear: Plan ahead. Keep important documents safe and make extra copies of them. It's a good idea to start working on taxes now so that you have time to get all the records you need.

Sunday, July 15, 2007

A Win-Win Custody Battle Strategy

Many times, at the start of a divorce, parents see custody of the children as an either-or situation: one parent has custody and the other is relegated to a visitation/possession schedule. In situations where both parents sincerely would like “custody”, and it’s not just a strategic move for some ulterior purpose (such as gaining more property or paying less child support), the either-or/win-lose mind set can lead to really damaging actions by both parties. In such an approach, the natural inclination, often encouraged by attorneys and friends, is to attack the other parent. Many people think they should devote a lot of energy to proving the other parent is “unfit”.

Actually, it is often true that both parents are good parents, which makes it really hard to prove each other unfit. Attacking each other is expensive in the short-term, both financially and in terms of relationships, and it’s probably not really very persuasive with a judge or jury. It’s hard to keep a good relationship with someone who is saying terrible things about you in public. Judges want to know what good parenting qualities each parent has. In reality, one of the most important factors is who has spent the most time with the children, although there can be many things that are influential.

Instead of limiting yourself to only two options, winning it all or losing, there is another, more productive way to approach the custody issue. The approach may require more maturity than some parties can muster, but, for those able to shift gears, think rationally and be patient, the following approach can be rewarding for them and their children. These steps can lead to a better solution for all, especially the children.

1. Think about, discuss and decide what your ultimate goals are for the kids. What outcomes would you like to see? Many people would want some of the following (or similar) goals:

The kids having a great relationship with both parents
The kids having a great relationship with their extended families
Financial security for the children
Having a safe, secure home for the children
Having good schools for the kids
Providing for a college education for the children
Providing sports opportunities for the children
The opportunity for the kids to learn music, art or other interests

Each parent can decide what he or she thinks would be important goals for their children. Broader, underlying goals are more helpful and meaningful. If both parents think of goals in broad terms, they often can agree on them.

2. Look at the big picture. What are the resources to work with:

Financial abilities of the parents
Parental/family member time available
What homes and schools are available and affordable
What the parents’ neighborhoods are like
The existing relationships between parents and children and the roles each parent plays with the children
What community resources are available
What special needs, if any, a child has
What interests the child has

3. Brainstorm options. Think up as many different solutions as you can. Sometimes it is helpful to get help from a parenting expert. Spend some time and try to be non-traditional or unconventional. Don’t limit yourself to “standard” solutions. Open up your thoughts to come up with some crazy ideas because they might just turn into good ideas.

4. Evaluate your options. See if they can help achieve your identified goals. Criticizing and testing your options can lead to the discovery of other ideas and can help you narrow down the choices until you are left with an idea or ideas that work.

Implementation: This process can helpful if just you do it, but it is really better if you can do it with the other parent. Collaborative Law is one way to accomplish that. This is actually a very common approach to problem-solving in Collaborative Law. Even in traditional litigation, you can use this system alone or together with the other parent. If you work on this alone, you can create a better plan to present in court or in negotiations. If both parents work together through this process, there’s an excellent chance they will reach an agreement that will be satisfactory to both parents and to the children.

Please give this a try and let me know how it works for you!

Saturday, July 14, 2007

The Challenge of Parenting as Families Change

Many divorces, and some post-divorce situations, involve parents who have good intentions and motivation, but just aren’t sure about what they can do to create the ever elusive “quality time” when they are with their kids. The reality is that when families split up, most things are going to be different. On top of that, the kids are getting older all the time, so their needs, interests and relationships are changing, independent of their parents’ situations. We really have two worlds changing in different ways at different speeds at the same time.

Parents can’t stop their kids from getting older, but they can adapt their own approaches to spending time with their kids. We all know that spending time is very important, but how to make the most of the time is what parents sometimes need help with. Following are some ideas about how to change time from a quantity to quality.

1. Participate with kids – be active. Don’t leave the kids alone to always entertain themselves, and don’t just sit around with your children. Do active things, such as: go somewhere interesting (to the kids), play outside with them, play games inside with them, visit friends, go camping, ride bikes, walk, hike, run or do other sports. Don’t just watch and supervise; interact and play with the kids.

2. Share interests with the kids. Either become interested in what the kids are doing or develop new interests with the children in sports, hobbies, art, reading, computers, movies, collecting things, etc. Your kids might even adopt some of your activities if you show how they can have fun.

3. Praise your children. Be sincere and don’t go overboard, but give positive recognition whenever you can, especially to reinforce good behavior or activities. Help them study and praise good work and good grades.

4. Look for opportunities for growth. Find activities that can be physically or mentally challenging. Some kids will respond positively to challenges and competition, so keeping score of things may be helpful. Create a competition for book reading (# of books or pages read), exercise, sports or any other activities that interest you and the children. Encourage your children to put forth their best efforts.

5. Develop routines. This applies to whichever home they are in. It helps in many ways to develop routines. Kids will expect and look forward to activities they enjoy. It’s easy to find fun things like movie time, pizza night, a favorite TV show to watch with you, a visit with favorite cousins or friends, going to garage sales, or taking periodic short trips. While not as appealing to the kids, it’s a good idea to have some other things scheduled that are necessary, but less fun, such as doing homework, chores and practice time for music, sports, dance, etc. Doing those necessary activities will help develop responsibility.

6. Help others. There are always opportunities in communities of any size to help others. Volunteers can help in litter clean-ups, food drives, clothing drives, park projects, serving meals at holidays, working at a library, zoo, museum or other public place, doing fund-raising, etc. Children can actually accomplish good things and feel good for their efforts. It’s also a good way for kids to learn about new things and make new friends. On a more personally pragmatic level, children interested in going to certain colleges or in obtaining scholarships are evaluated on their volunteer hours and efforts. It’s never too early to start.

7. Enjoy your time. Think of things that are fun for you and the kids. Be creative. Research and find new activities by checking on the internet and by reading magazines and newspapers for new ideas and new activities.

As families go through divorces and other changes, parents need to develop new ways of spending time with their children. Trying to maintain or recreate old ways of spending time with kids will not work for long. As the kids keep developing their own lives and move toward more independence, parents have to adapt and be creative in order to share fun and meaningful time with their kids. You can make a difference with your children by planning new and fun activities with them, and you’ll enjoy it, too!