Ohio Father Law Perspectives

Ohio Laws Affecting Married, Divorced & Unmarried Fathers

Archive for the tag “divorce”

shutterstock_72927181A Bucket Full of Snakes– Spousal Privilege in Family Law Cases

Spousal privilege confuses a lot of smart people.  One form of legal privilege is the testimonial privilege which prevents certain witnesses from testifying about things they know.  Familiar examples are the attorney-client privilege, the doctor-patient privilege, and the priest-penitent privilege. The privilege can only be asserted by the client, patient or penitent, and never by the attorney, doctor or priest.  The law does not favor privilege because it excludes evidence; as such, courts “narrowly construe” privilege, which means its technicalities are strictly followed.  Spousal privilege only applies to testimony in court.

Section 2945.42 of the Ohio Revised Code provides that a witness may not testify against his spouse unless the case involves personal injury by either spouse against the other.  So, unless the spouses are suing each other for bodily injury, or have “waived’ (given up) the privilege, spouses may not testify against one another if the non-testifying person properly asserts the privilege.

Spousal privilege has far-reaching implications.  Spouses routinely testify against each other in family law cases; by filing claims against each other, they are deemed to have waived (given up) the spousal privilege because they have filed court actions against each other.  Nevertheless, spousal privilege can still be critical in family law cases.

Successful Assertion of Spousal Privilege in a Custody Case

Recently, I represented the mother in a custody case and I called her husband as a witness.  The father’s attorney asked him what his wife (the mother/my client) had told him about how long she left the child alone after school.  I objected and asserted the spousal privilege.  The father’s attorney rolled his eyes and laughed.  The Magistrate adjourned, researched the issue and found that I was right.  The mother was married to the witness and what she told him is protected by the spousal privilege.

The father’s attorney then lost his momentum on cross-examination and never recovered.  Had he read the statute since the bar exam, he would have attempted to prove that the mother had given up the spousal privilege by making her statements in the known presence or hearing of another person.  Had he asked the witness in his earlier deposition before trial whether he had told anyone else what his wife had told him, he may have been able to introduce the statements by a third-party.  The spousal privilege only stops a spouse from testifying, not from running his mouth outside of court in a way that could be admissible.  As a result of all this wrangling, everything my client told her husband about the case was excluded.

Future Applications

Most family law cases have cross claims that kill spousal privilege.  Perhaps when I represent the next Defendant I could withdraw our counterclaim at the last minute and then assert the privilege when the Plaintiff attempts to introduce anything the Defendant said.  With the right case and the consent of the client, fun times could be had by all.

Copyright 2014.  All Rights Reserved.  Anne Catherine Harvey LLC

How to Nail Your Meeting with a New Lawyer

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Target Your Questions to What’s Important

Clients often hire the wrong lawyer.  One of the big reasons clients hire the wrong lawyer is because they find a list of stock questions to ask during their first appointment and insist on limiting the first appointment to their script.  They base what can be a critical decision on stock information, hire a lawyer who has not provided anything insightful, and are later disappointed with the representation.

Stock questions and answers are a waste of time.  Relying upon stock questions and answers is dangerous.

Here are five scripted questions clients ask and the reasons why they’re a waste of time.

Do you have any special training or certification in family law and divorce that distinguishes you as a “divorce specialist?   This is all over the internet for free.  If it’s not, your answer is, no.

How many years have you been handling divorce and family law cases?  See above.

How many years have you been practicing in Ohio?  See above.

Do you have courtroom experience?  This is contained in every court’s county clerk web system.  For free.

How much will a divorce (or custody case) cost & how long will it take. Impossible to know, but it depends upon many legal and personal factors, blah blah blah.

Some scripts from the internet differ a little, but they almost always contain predictable questions. Here are still more stock questions I get all the time and the reasons why they’re a waste of time.

Are you a good attorney?  Yes.  Just ask my mother.

How many cases do you win?  None.  Divorce is damage control.

Why did you become a divorce lawyer?  I like to help people? It pays well?  I get to work indoors?

How much of your practice is devoted to family law?  Google, please.

Do you practice in Montgomery County (or any of Ohio’s other 87 counties)?  Google me before you call, please.  You would not have gotten an appointment if I do not practice in your county.

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All You Need is Insight

All of these types of questions contain the same flaw:  the answers tell you absolutely nothing about what the representation will be like, whether we will be able to work together, or whether our approaches are compatible.  The purpose of an initial consultation is for me to see what your legal issues involve and for you to see if the two of us can reasonably become a team.  The goal is to gain insight into the lawyer, your case and family law.

When I last hired a lawyer, I didn’t ask any questions at all.  Naturally, as you would expect, this did not work well.  I’ve given some thought to open ended questions that will engage the lawyer and client immediately.  Here are some examples, and the very short version of my answers.

How do you keep up with the changes in the law?  I have the Ohio State Bar Association app on my phone and it updates cases from across Ohio every weekday.  I read it before I get out of bed. I am not kidding.  The more interesting way I keep up with the changes and trends is social media, where I subscribe to pages that I change frequently.  I also read the Dayton Daily News, the Wall Street Journal & the Huffington Post.  The best way I keep up is by talking to other lawyers, on the phone, over the internet and even, sometimes, in person.

What are your clients’ lives like after divorce?  It is unusual for their lives to be devastated long-term because of my representation.  As the emotions subside over time, they usually do not suffer setbacks by discovering overlooked joint accounts, missed assets, or retirement debacles. If a parenting issue resulted in disappointment, there is usually a salvage plan.  My clients’ lives after divorce are what they make them, without fallout from the representation (generally).

How do you get along with my spouse’s lawyer?  I get along with most people, including lawyers.  I do not get along with some, or simply do not like, others, but I can effectively deal with them because it is my job.  There have been a few who present either a professional or personal issue for me that I tell my client about.  It is ultimately up to the two of us to decide whether the representation can be effective.

What parts of my case involve law that is in flux?  This is a great question that I’ve never been asked. Much of family law is settled, but not all; some issues (cohabitation’s effect on spousal support comes to mind) could change soon.  Any change can impact timing and strategy and should be discussed.

Will we need to prove any specific facts in my case?  We always have to provide an itemization of assets and liabilities, the terms of agreements, jurisdiction, grounds and venue, as well as the basic background in child cases.  Beyond that, specific facts can be critical in domestic violence, custody, business valuations and spousal support cases.

What is the worst thing I could do in my case?  The specifics will vary, but this is a great question because it indicates that the client is willing to take responsibility for his own behavior in the case and has sense enough to plan ahead.

What is the best thing I can do for my case?  See above.

Just Ask Me Anything.

Just Ask Me Anything.

I have never had a first meeting limited just to stock questions, but almost every first meeting will have at least one or two.  Some of this is to be expected as two strangers begin to interact about deeply personal matters.  The most effective client meetings involve impromptu give-and-take; a list of questions prepared by an unknown person is a quick way to make the interview stilted and unproductive.  A couple unusual questions can ignite the rapport between lawyer and client that will help make the whole thing helpful and lead to an effective relationship.

Copyright 2014.  All rights reserved.  Anne Catherine Harvey LLC.

Why I Love Family Law Depositions at the Dayton Law Library

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In addition to the usual trappings of a regular public library, a law library offers services to its members such as free internet, heavy law books for the technological hold-outs, and meeting rooms.  The Dayton Law Library, located on the 5th Floor of the Dayton-Montgomery County Courthouse, 41 North Perry Street, Dayton, Ohio, (just beyond the Second District Court of Appeals) provides a conference room that I have come to appreciate for reasons other than as a pit stop between cases or a place for leisurely research and writing tasks.

Depositions are a part of many civil cases.  In a divorce matter, a deposition requires an estranged husband and wife, each of their attorneys, a court reporter, and possibly an outside witness, to sit together, often for hours, in the same room.  The opposing attorney questions the other side’s witness under oath about the facts of the case.

Suffice it to say that tensions can escalate.  Suffice it to say that attorneys are control freaks.  Further suffice it to say that who ever owns the office containing the conference room where these joyous activities takes place starts with a very real, or at least perceived, advantage.

In my salad days, back when I worked for the Air Force, I would routinely travel cross-country or beyond to conduct depositions.  I learned how to walk into the “hostile territory” of the contractor’s office for the simple reason that the contractor was never required to travel to the Air Force offices in Fairborn Ohio.  Sometimes things got argumentative, but for the most part everyone behaved well.  Of course, the fact that nobody had any of their own money, or the future of their family, at stake may have helped keep the peace.

Litigation is War

Litigation is War

Domestic relations depositions can be wild.  When I was first starting out on my own, I made a convenient young female target.  Opposing counsel would call me names, disrupt my questions, instruct their clients not to answer questions, and sigh, moan and sputter loudly to distract me.  I had a couple of nose-to-nose shouting matches.  I had a lawyer refuse to produce his client after he agreed to because I had not filed a “formal” notice of deposition.  Overall, it reminded me of roller-derby.

As I got older and more experienced, things got a little easier.  Certain attorneys, though, are chronic offenders and the drama they create in depositions is a lifestyle choice they’ve consciously made.  The state bar has recognized this reality and sends us all off to school every two years to study “professionalism.” Of course the hard-core offenders are unfazed.  Working under these conditions takes its toll.  I sometimes refuse cases based only upon who represents the other side.

One day this year my brain made a startling connection.  I routinely tell my clients to meet with their spouses at Panera Bread  or Bob Evan’s or some such place for two reasons.  First, people behave better in public places.  They could be arrested for disorderly conduct if they behaved in public the same as some of them behave at home.  Second, there is no time limit at those restaurants.  They can sit for hours and quietly conduct their business.

Voila!  Depositions are not limited to either lawyers’ office.  Neutral territory would put everyone on an equal playing field.  Lawyers are going to act better in public for the same reason as everyone else–it’s more daunting to make an ass of yourself where people can judge you than inside your privately owned property.  Bullies love secrecy.

The choice of place was a little more difficult, because restaurants charge money to guarantee any level of privacy.  The law library offers all that we need:  neutral territory, a public yet private place, and no cover charge.  There is a gigantic conference table, picture windows showing the sprawling metro view of Dayton, and plenty of spiffy oak chairs with arm rests.

Dayton Law Library

Dayton Law Library

The resistance I have met from other lawyers to this simple arrangement been astounding.  I have been accused of being the perpetrator of confrontations in depositions.  I have been accused of “dragging” a down-town attorney all the way to the court building where he has walked to from his office every day for the past twenty years.  I had one lawyer actually pull the books to research the issue–not surprisingly, he found no controlling precedent on the burning societal issue of where lawyers should conduct depositions.

I remember a funny story.  A federal judge on a particular case had pages of motions and legal memoranda from two sets of lawyers about who got to host the depositions.  This genius of a man ordered the lawyers to conduct a rousing game of “rock scissors paper” in the courtroom, on the record, in the presence of their clients, the winner to decide.  Those lawyers reportedly complied, went home and then promptly settled the case.  Word got around, and that judge never had to order another pair of legal combatants to play that game.

Asking for neutral public territory gives me credibility (at least in my own mind) against the accusations of the legal bullies in southwest Ohio.  While reflecting on this whole topic, I realized something obvious: it’s not about control of the conference room.  It’s actually about some lawyers simply being too good for the Dayton law library.

Not me!

Copyright 2014. All rights reserved.  Anne Catherine Harvey LLC

Happy Library Patron

Happy Library Patron

BIG DIVORCE PROBLEMS THAT AREN’T SO BIG AFTER ALL

shutterstock fear_175790252 [Converted]BIG DIVORCE PROBLEMS THAT AREN’T SO BIG AFTER ALL

Fear can devour divorce clients. Sometimes fear is so sharp that a person delays the inevitable. Unfortunately, fear during a divorce is normal and unavoidable.  In a few circumstances, what clients perceive as huge barriers in their cases actually turn out far smaller than they imagined going in.

Long-Term Marriages

Many clients first meet with me concerned that their case will be complicated just because it has lasted upwards of thirty years.  In reality, long-term marriages, where the partners start out together with clothing, wedding gifts, and starter cars, are easier to end than shorter marriages where the parties are more likely to be on their second (or third) divorce and they started off with property and debts. Usually a longer marriage means that the parties’ children are emancipated by reason of age, so there are no issues of custody or child support.  A longer marriage also means that, unless there are inheritances, personal injury settlements, or gifts, then the property and debts are probably going to be considered “marital.”  Under Ohio law, an equal division of marital property and debts is presumed to be fair.  If all the property and debts are marital, it is merely a matter of itemizing and valuing the property for an equal division. Long-term marriages tend to bring a host of emotional issues.  When a person has been married longer than they were ever single, the transition to a divorce can be very traumatic.  Most people in this situation, however, have an innate toughness and recover quickly.  Again, when the common children are emancipated, it is easier to live separate lives without the constant challenge of co-parenting while divorced. So, terminating a long-term marriage usually causes more emotional issues than legal issues.

My Spouse is in Prisonshutterstock fear_175790252 [Converted]

Not surprisingly, imprisonment often leads to divorce.  Ohio law specifically provides that “imprisonment of the adverse party in a state or federal correctional institution at the time of filing the complaint” is grounds for divorce.   The fact of imprisonment is usually easy to corroborate and service of process can be done to the party in care of the warden of the institution.

The complexities of “prison divorce” revolve around child issues.  The mere fact of imprisonment does not mean a party will never again see their children.  The fact of imprisonment greatly diminishes a party’s ability to pay child support.  In fact, Ohio law now provides that income will not be imputed to a parent who is:

“incarcerated or institutionalized for a period of twelve months or more with no other available assets, unless the parent is incarcerated for an offense relating to the abuse or neglect of a child who is the subject of the support order when the obligee or a child who is the subject of the support order is a victim of the offense.”

In the usual circumstance, the child support obligation will be set at close to nothing during the time of imprisonment.  And, the other parent is usually not surprised and is happy simply to attend a short hearing without the presence of their imprisoned spouse.

Boilerplate Language

Most divorce documents contain language such as “gross neglect of duty,” “extreme cruelty,” and my spouse will “molest and annoy” me unless restrained by order of this court.  We field many calls of panic over this language when people are served with divorce.

In reality, the language is boilerplate and taken directly from the statute for grounds and the requirements for a temporary restraining order.  I routinely reassure clients that the language is on every lawyer’s computer in town and that we will file the “mirror image” of what their spouse filed.

Incompatibility is the basis for almost all Ohio divorces.  The only purpose of a restraining order is to keep the parties in the same position as they were in before the filing.  In this instance, “molest” in this contest is an outdated legal term that has nothing to do with sexual abuse.

shutterstock fear_175790252 [Converted]Conclusion

Divorce is rough, but usually for reasons other than what clients expect in the beginning.  At least in the circumstances outlined above, I usually can relieve the immediate terror of what is taking place.

Copyright 2014.  All rights reserved.  Anne Catherine Harvey LLC

Lawyer Review Sites

 How DARE You?

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There was a time when I lived or died by on-line client reviews.  I searched my name regularly, checked the sites I knew about, and had either a terrific day or a terrible day, depending upon what I read.  While there is no doubt that on-line reviews can have a tremendous financial impact upon a business, I took what clients wrote to heart.

Online reviews are permanent.  A bar complaint is handled confidentially.  The internet is forever and the number of review sites has exploded.  Now nearly every business, from restaurants to lawn care, is subject to the on-line opinions of customers. It’s hard not to take a scathing review personally.

I am not the only one who agonized over what I read.   Some business owners have even gone so far as to file suit against their detractors, usually resulting in bad outcomes.  My fascination with these sites drove me to do some research of my own.  Common sense told me that an anonymous review was cowardly.

Turns out others agree.  According to a recent article in Times Magazine, the prominent Travel Channel speaker Andrew Zimmer  stated that “[y]elp essentially gives a tremendous forum for a bunch of uninformed morons to take down restaurants.” Most of these sites require nothing more than an internet connection—no identification or accountability whatsoever.  Anonymity breeds bad behavior.

Anonymity, though, is the least of the problems with on-line review sites.  Why should anyone believe the words of a total stranger who won’t stand by his opinion? Even if the review is signed, you probably don’t know the writer personally.  To give weight to this type of review, where you have no idea if the writer is, say, Bernie Madoff from his prison cell, is foolhardy.  If you walked up to a stranger at a Bengals’ game and asked for the name of the best steak-house around, there is no way to measure the value of what you’re being told.  You wouldn’t know for sure until you actually tasted the steak.  Yet, this is exactly what on-line reviews do.

Are on-line review sites legitimate at all?

Which review is fake?

1.  I have stayed at many hotels traveling for both business and pleasure and I can honestly say that the James is tops.  The service at the hotel is first class.  The rooms are modern and very comfortable.  The location is perfect within walking distance to all of the great sights and restaurants.  Highly recommend to both business travelers and couples.

2.  My husband and I stayed at the James Chicago Hotel for our anniversary.  This place is fantastic! We knew as soon as we arrived we made the right choice! The rooms are BEAUTIFUL and the staff very attentive and wonderful!!  The area of the hotel is great, since I love to shop I couldn’t ask for more!!  We will definitely be back to Chicago and we will for sure be back to the James Chicago.

Jeff Hancock of Cornell University has studied what is called “opinion spam,” or “phony positive reviews created by sellers to help sell their products, or negative reviews meant to downgrade competitors.”    Relying upon algorithms, word choice statistics, and volunteer Cornell students, he has determined that humans are very bad at spotting sham reviews. Computers, however, can detect fakes within a fair degree of certainty.  Review Skeptic has a platform where hotel reviews can be inputted to see if the computer says its real or not.

On-line reviews are suspect for another reason.  No computer can detect the relationship between the writer and the company under scrutiny. Small independent hotels were found to have far more positive online reviews on one site as opposed to another.  The reason?  People associated with the hotels were able to manipulate the reviews on the site that did not confirm whether the reviewer had even stayed at the hotel.  One restaurant received a bad review on yelp before it even opened!  Clearly, gaming the system is rampant.

That Pesky Attorney-Client Privilege

There is another layer of potential peril to lawyers with on-line review sites.  A Chicago employment lawyer responded to a negative on-line review as follows:

“I dislike it very much when my clients lose, but I cannot invent positive facts for clients when they are not there. I feel badly for him, but his own actions in beating up a female co-worker are what caused the consequences he is now so upset about.”

Ultimately, the attorney received a reprimand for exceeding the scope of what she needed to say to defend herself.  The reference to beating up a co-worker revealed the client’s identity, thereby breaching the privilege, even though he allegedly did not provide his last name on the site.  The lawyer’s attorney cautioned other lawyers to “[b]e cautious that if they choose to respond, that their response does not exceed what is necessary to respond to the review and should be mindful that they do not reveal client confidences in violation of the rule.”

So, a lawyer can be disciplined for responding to an untrue on-line review, even if she removes it, and the full name of the client is not revealed, and the review is untrue.  Like Demi Moore in A Few Good Men, I “object strenuously your honor,” to this decision.

What I tell My Clients

I have pretty good on-line reviews. Am I as good as my reviews say I am?  No, I am not–but I am also not half as bad as my bad reviews claim.   All that any client review shows is whether I successfully established rapport with that particular client on that particular case on any particular day.  That’s assuming, of course, that the review is real and not penned by my arch-enemy.

I now tell the clients who ask that on-line lawyer reviews depend on everything and to think for themselves.  What they think is all that matters.

What I Tell Myself

On-line reviews are usually unverified, frequently fake and can make or break a business, particularly a new business.  Lawyers have the added risk of disciplinary action if they  respond even remotely in kind. Lawyers must have thick skins and even broader shoulders to survive in this environment.  

One morning in May, I received both a five-star glowing review and a one-star flaming review.   I chuckled about that all day.  I’ve given up watching for the reviews because I can’t safely respond without risking sanction.  I’ve noticed that Big Law is seldom critiqued in on-line reviews; boutique firms, such as my own, appear regularly.  I believe this reflects the change in legal practice to a consumer base which is a great opportunity for boutique firms.  Ultimately, my presence in the legal profession is strong enough to cast a shadow.

Can I really ask for more?

[The second review is fake.  The first is authentic, although there is no way to tell if it’s true, since it is anonymous].shutterstock lion

Copyright 2014.  All rights reserved.  Anne Catherine Harvey LLC.

“Not all prisons have bars” Amanda Hocking, Torn

Relocation with a minor child is a heart-breaker.  Just when the newly divorced parents have gotten used to the parenting schedule, the back-and-forth, and the reality of not seeing their child every day, somebody gets transferred.  Or somebody has a new love interest.  Or somebody wants to fulfill their life-long dream of living in sunny California.

                                     Can I Move with My Child? Can She Move My Child Away?

There is an entire body of law surrounding when a parent can move with a child.  If the new place is merely across the street, all that has to happen is to file a notice of new address with the court and the child support agency.   If the new place is fairly close, say around 50 miles, then the moving person will at least initially be stuck with most of the drive back and forth.  Dayton to Columbus does not change the every other weekend arrangement.  Dayton to L.A., however, changes everything for everyone.

Mothers often ask me if they can move to wherever, for whatever reason, usually far away, often for a new military husband.  I tell them that they can move anywhere they can afford to live because this is America and anybody can live anywhere.  If they want to take the child with them, however, it’s another story.

If mom is the custodial parent, the mere act of moving away does not constitute a “change of circumstances.”  In order to stop litigation and provide stability to children, Ohio law requires the parent requesting a custody change to prove that a change of circumstances has occurred.  The change must be substantial and unknown at the time of the last order.  A change of circumstance must first be proven before the court will start to think about what is in the child’s best interest.  If the other parent, usually the dad, decides to contest the move, a custody battle usually follows.

Judges call custody decisions agonizing.  Parents call custody battles hell.  The recent case of In re M.P., 2013-Ohio-3939, illustrates this point perfectly.  Pam and Rodney were divorced with a son (“Johnny”) and Pam had custody.  A year later, Pam and Rodney had a full trial on whether Pam’s plan to move constituted a change of circumstances.  Nothing changed because Pam decided not to move, after all, with her new boyfriend to Florida, 1200 miles away.  The following year she moved to Florida anyway, took Johnny with her and enrolled him in year round school.  Rodney filed for custody.

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After a second full custody trial, the Court eventually required Johnny to return home and granted custody to Rodney.  The Court held that an out of state move, along with other circumstances, could constitute a substantial change of circumstances.   The other circumstances in this case included the fact that both sets of grandparents lived near Rodney in Ohio; that Johnny had friends in Ohio he had known since his birth; that Pam’s new boyfriend was volatile and altercations had taken place; and the distance and year round school all but eliminated regular parenting time between Johnny and Rodney.

It is hard to imagine a situation where an out of  state move does not affect other circumstances that the non-moving parent can develop to keep the child at home.  In Brown v. Brown, 2013-Ohio-3456, Holli and Troy divorced and Holli took custody of their three boys.  A year later, she wanted to move from Champaign County, Ohio to South Carolina for a new job and to be closer to her parents.  A custody battle followed.

All three boys had close bonds with their immediate and extended family.  Interestingly, the Court found that the fact that Holli had been the primary caregiver was not the most important factor to consider.  In the previous case,  In Re M.P., the Court noted that Pam had been Johnny’s primary caregiver, but that could only be considered in the initial custody determination (who gets custody in the divorce), and not in a later request to change of custody.  The Brown court found that it was impossible to imagine how the children could be better adjusted to their friends and family in Champaign County and the only advantage to a move to South Carolina was a longer sports season because of the milder climate.  The Court kept the boys in Ohio and awarded custody to their father.

 TAKE AWAY FROM ALL THIS     

What is the take-away from these recent cases?  I was happy to learn that there is an expiration date to the advantage to being the primary caregiver.  Fathers are frequently beat over the head with the argument that the mother has provided most of the care, so therefore she is the best parent for custody.  While this still has heavy weight during a divorce custody battle, it cannot be considered in a change of custody after divorce.

Both of these cases had good father facts.  All of the children were older, both fathers were hands-on, and the all the children were thriving in Ohio.

The longer a child lives in Ohio, the more likely it is that he will stay.  The built-in advantage to the primary caretaker dissipates with time.  It is costly and agonizing to contest a relocation, but relocation out of state has more far-reaching (pun intended) impact upon the parent-child relationship than who has custody in the same town.

Copyright 2014. All Rights Reserved.  Anne Catherine Harvey LLC

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Victory for Fathers’ Rights on Two Fronts!

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I have many clients who are fathers in bad situations. Some fathers find themselves in bad marriages, but fear filing for divorce because they believe that the courts will always favor the mother and they will simply lose their children. Other fathers, already divorced, feel shut out of the parenting process, but fear filing for custody because they believe it is simply a lost cause. Increasingly, however, the Courts are looking to facts and not simply to gender. The latest case to highlight this encouraging trend is Neer v Neer,  Montgomery County Appellate Case No. 25876.

In Neer, the mother appealed the trial court’s decision granting the father’s Motion to Terminate a Shared Parenting Plan and Motion to Modify Child Support. Father and mother had been in a shared parenting plan since their divorce. The father found the plan unworkable because of the mother’s unilateral actions. For example, mother decided to put their teenage son on Prozac without consulting father. She later took him off Prozac without consulting father and the child became sick with the side effects of withdrawal. She failed to tell father of any of their son’s medical appointments. The mother also changed their eight-year-old son’s day care without consulting father. This caused confusion to the child and disruption to the father. The mother refused to cooperate with the new daycare provider when father was forced to work late.

The Court granted the father’s request for custody, terminated his child support obligation and ordered the mother to pay child support to the father. The Court also imputed a higher income to the mother than the mother’s reported income from a part-time job, increasing mother’s monthly child support obligation to the father.

The Neer court stated:

“Significantly, the record established that the parties’ relationship had deteriorated since the divorce to such a degree that the minor children had begun to suffer as a result of Paulette and James’ inability to communicate effectively. Paulette routinely made unilateral decisions without James’ input or knowledge that negatively affected the children in various ways. The evidence further established James is able to provide a more stable living environment.”

A mother’s routine lack of coöperation? A father who can provide a more stable living environment? The court clearly looked at the parties’ actions without regard to their gender and determined that the mother caused the problems in the shared parenting agreement. The trial court found that the mother had excluded the father in the parenting and it had adverse effects on the minor children. The language used by the Court shows that it considered each person’s abilities as a parent, period. The Court went to the trouble of considering facts instead of automatically assuming the mother just had to be the better parent.

The second area the court ruled on that was helpful for fathers rights was the ruling on the mother’s Child Support Order. The Court based the amount of child support paid by the mother to the father upon income  she should have been earning, not the much lower amount she actually earned. Despite the fact that the father earned far more than the mother, the court increased the mother’s child support obligation beyond what she actually earned.

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What does this mean for fathers? It means that you have rights and the courts will not ignore you if you have facts to back-up your custody case. Fathers should collect evidence (emails, texts, Facebook posts, dates of events) that demonstrates that the mother’s actions are destructive to the father-child relationship. In short, the Court recognized that the father-child relationship has inherent value and it protected this valuable relationship at the expense of the mother whose actions undermined that very relationship.

The father in Neer had several factors to his advantage going in to the case. For starters, he already had shared parenting and was designated residential parent for school purposes. He also had the good luck to be the father of older boys. Finally, the mother did herself absolutely no favors by messing with a trouble child’s medical care and disrupting the daycare and school schedule for the younger child for her own financial gain.

Would the case have had a different outcome if the children in question had been two-year-old twin girls? Perhaps. The point of Neer is that the Courts are now looking to specific facts and not simply perpetuating the myth that gender controls a person’s parenting ability. It is always easier for a father to win a child dispute case when the mother is what I call a “Imperial Mother.” The fact that the mother in Neer was willing to appeal the case despite her own actions indicates that she herself was counting on the historical bias in favor of mothers. She’s done a favor to fathers everywhere by elevating the case to the appellate level.

I found the Neer case on my Ohio State Bar Association app where I read advance sheets on family law every morning before work. If you have questions about this case, or concerns about your legal rights as a parent, I’d be glad to speak with you.

Copyright 2014. All rights reserved.  Anne Catherine Harvey LLC.

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Ohio Home School Law: A One Parent Decision

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December Means Overtime for Santa & Divorce Lawyers

zombies

You know the song “We Wish you a Merry Christmas?”  It goes like this:

“So BRING us some figgy pudding.

And BRING some right now.

We WON’T go until we get some.”

The words to this Christmas song have always fascinated me. As a child, I imagined sinister carolers camped out on the porch & our not even knowing what “figgy pudding” meant or where to get it.

Why is this image so disturbing? I think because it is the heart & soul of passive aggressive behavior. Unfortunately, parents use passive aggressive techniques against each other while navigating Christmas parenting time schedules.

Court is not meant to micromanage lives. Don’t get so caught up in getting “some piggy pudding” that you camp out until you get what you want.

Yuletides.

Grunt Work is Parenting Too

Kid:  Knock-Knock

Dad:  Who’s There?

Kid:  Canoe

Dad:  Canoe Who?

Kid:  Canoe help me with my homework??

      Homework, soccer, girl scouts, and the holiday dinner menu at the ex’s house are examples of non-legal issues that are now fair game in custody litigation.  I spend a substantial amount of billable time on these issues and, unfortunately for the clients, the more deeply involved the lawyers and courts become on what I call “lifestyle” questions, the higher the legal bills and the less satisfying the results.

The courts follow some fairly straight forward rules on lifestyle questions.  For example:

HOMEWORK.  It better get done.  This means that if your ten-year-old has a 10 pm bedtime and your mid-week parenting time is from 6-9 pm, homework trumps other activities.  The legal theory cited by the courts in support of this has a very long Latin name, but I’ll translate:  This is what it means to be a parent.  So, even though the parenting time is “your” time, the courts expect adult behavior from the adults and this means getting the math done.  For custodial parents, this means sending the assignment with the child.  For adults who cannot accomplish this, http://www.ourfamilywizard.com independently tracks the exchanges.

SOCCER-BALLET- BAND CAMP.  Children have lives and the courts expect parents to facilitate these burgeoning lives.  So, this means that if your child has an 8 am game Saturday morning, across town, and it’s raining cats & dogs, you get up early, feed him (more on that below), and drive him there.  The courts are not sympathetic that you’re spending “your” parenting time driving hither and yon, because this is what it means to be a parent.  And, unless the child is so severely over-scheduled that his grades are dropping or his health is compromised, legal arguments that your ex deliberately signs the child up for everything just to ruin “your” parenting time are not well received.

      DINNER MENUS.  Fights about fast food, obesity, and white vs wheat are the worst.  Again, unless your child has a genuine medical issue, he is going to survive your ex’s food selections.  If you child is obese, his parents (the adults) should collaborate with a nutritionist.  The courts expect no less.

The bottom line for Fathers:  Parenting time is the child’s time.  Don’t spend too many lawyer hours fighting lifestyle choices.  Some of the best talks a dad can have with his child take place in a car, going to the 3rd soccer game that weekend, after a Friday night of homework and Chicken McNuggets.

The bottom line for Mothers:  Parenting time is the child’s time.  It does not help for you to remind dad about the hundreds of trips you make to baseball vs the measly few he has to make, because he’s probably still stinging that you have more parenting time.  Unless you’re willing to swap places altogether, schedule-wise, then provide him the schedule, equipment, homework whatever, and send your child off with a smile.

 

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