July 17, 2020
Contested Divorce and Custody Issues
In many contested divorces the contest involves issues of custody of children. Frequently these battles involve two parents who are both capable and competent care givers. Typically both parents love their children. Unfortunately, parents who are getting divorced have to learn how to share their children. In most cases, if the parents were good at sharing and cooperating together they probably would not be getting divorced.
Each person has their own reason for fighting for custody. For some people it is ego. For some, it is a desire to hurt their spouse. For others it is money. Some people have a genuine belief that the children are better with them than with the spouse.
Some people fight over custody because child support is tied to the issue of custody. If a parent doesn’t want to pay child support then he or she needs to obtain primary custody of the child. If primary custody is not available then shared custody with each parent having parenting time for one half of the time available is a goal. Even 50 / 50 custody can result in lower child support payments. Of course, the parent with the lower income may fight for custody only to get child support payments or higher child support payments.
Courts approach custody from the point of view of what is best for the child. The name for this concept is “the best interests of the child standard.” This simple statement gives a judge broad discretion in making a custody judgment. This standard can be difficult to translate into presenting evidence so attorney Alan J. Pransky would tell you to consider the following:
1.) What was the custody arrangement when the couple was together? Custody trials tend to have a lot of contradictory evidence. Each spouse tends to exaggerate the other spouses flaws and minimize their own. Start with the question of who was the primary custodial parent when the couple were together. Most couples have an allocation of responsibilities within the marriage. One spouse tends to be the primary wage earner and the other tends to be the primary housekeeper and child custodian. When the wage earner testifies how dangerous the other spouse is and how that spouse poses a threat to the child, ask “How did you go to work each day leaving the children in the care of this person you claim is a threat?” When day after day a parent is left alone with the children it is hard to believe that they are a danger to the children.
2) Which parent has the strongest bonds with the child? While children may love both of their parents, they usually choose one parent over another for comfort and security. When a child is injured, which parent do they seek for comfort and protection? As children get older, which parent do they feel more comfortable talking to? Children may indicate that they can’t imagine living separate from one parent but can easily imagine living separate from the other.
3) Each parent’s plan for taking care of the children. In order to argue for custody, a parent must provide care for a child 24 hours a day, every day that the child is with the parent. This means that the parent must have an appropriate physical setting. Do both parents have separate bedrooms or is a parent proposing to share a bed with the child? Where will the child be going to school? How will the child get to school? If a parent proposes 50 / 50 custody but lives an hour away from the other parent then the child will be subjected to unreasonable commuting to get to and from school. How will the parent provide care to the child when working? How will a parent care for a sick child that can’t go to school? Will the child live in the same home as prior to the divorce and be able to continue to play with the same friends? Judges may call this evidence “stability and continuity in the child’s life” but once can tend to think of it as having a better parenting plan.
4) For many judges, the ultimate measure of the best interests of the child is the success the child achieves in school. This means that each parenting plan should be considered in terms of how it encourages success in school. A judge should consider how each parent deals with the child’s homework and school preparation. Are the parents consistent on bedtimes on school nights? How have the parents interacted with teachers in the past?
5) A court will also consider living arrangements and lifestyles of each parent andhow such circumstances may affect the child. The mere fact that a parent intends to live with a new romantic partner should not determine child custody. While some states consider such a living arrangement to be morally harmful to the child, most states don’t consider such moral evidence. Instead, courts should consider how the new love interest treats the children. Any live in partners will have to be involved in care giving for the children. A Court should view cohabitation from the viewpoint of benefits and disadvantages to the way the children are treated.
6) Increasingly courts are considering the manner in which each parent interacts with the children about the other parent. Parents should protect the child’s relationship with both parents. No derogatory comments about the other parent. No excessive questioning the child about activities with the other parent. No blaming the spouse for the termination of the marriage. Potential or actual parental alienation should be considered by a judge in a custody decision. Most experts advocate that children need quality time with both parents. There is a current trend to give both parents significant time with the child.
Contested child custody cases can be very difficult. If you can’t agree with your spouse about custody of your children you should consult a child custody lawyer for advice and assistance.
June 1, 2020
Divorce During COVID-19: What to Know
The COVID-19 Pandemic is clearly unprecedented in the course of human history, impacting daily life like no event ever before. If you are divorced or contemplating a divorce, here are some important things to know about how COVID-19 will affect your life:
- Courts Are Open – While many non-essential businesses are closed, courts technically remain open. Even a pandemic does not prevent the public’s right to access the justice system. It is supremely important to parties of divorce and custody cases for courts to continue to function because of the ever-evolving nature of family law disputes. Many divorce courts are using tele-video conference (e.g., Zoom, Google Meet, or Microsoft Teams) to conduct status conferences, hearings on contested motions, and even trials. There is no reason to wait until the pandemic is over or for the country to “reopen”; the courts are functioning.
- Child Support Modification – Most child support laws allow a modification if there is a substantial change in circumstances, which can include the significant increase or decrease in income by one of the parents. The Coronavirus Pandemic has caused an economic calamity, with unemployment at historic levels. Once the Paycheck Protection Program runs out, and people stop receiving full unemployment benefits, income levels will drop. If you lost your job, or your business has experienced a downturn, this would be a substantial change in circumstances that you can use as a basis for modifying your child support obligation. You have to act fast, however, as a child support obligation is extremely difficult if not impossible to get out of without paying, and you can be subject to interest and penalties.
- Spousal Support Abatement – Much like child support, spousal support (known as “alimony” or “maintenance”) can also be modifiable depending on the circumstances. The economic downturn of the COVD-19 pandemic is cause to seek a modification of support, or even an abatement. An “abatement” is a legal term meaning to stay or pause the support obligation. If you are paying spousal support, you may be able to abate your payments until you recover economically.
- Parenting Time – The pandemic is not a reason to interfere with the other parent’s visitation time with their child. Despite being a health disaster, many family law Courts have issued orders and guidelines stating that parenting time and visitation must continue as agreed or ordered in the era of social distancing. Many parents are expressing serious concern that the other parent is not adhering to social distancing guidelines. While a judge might ultimately agree that a parent is not doing enough to protect themselves, it should be brought to the court’s attention instead of simply refusing to exchange the children.
Thanks to our friends from Hecht Schondorf LLC for their insight into family law during the pandemic.
August 26, 2019
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July 17, 2019
Is a drug recognition expert involved in your DUI case?
Interviewing the officer who arrested the driver and the driver
The DRE may become involved after an arrest, in which case he or she will gather all the facts of the arrest from the officer involved. The DRE will also talk to or further interrogate the driver.
Examining the driver’s physical condition
There are several physical signs that indicate impairment that should be obvious to someone with the DRE training. The DRE will examine the driver’s eyes, vital signs (blood pressure, pulse and body temperature), pupil size, muscle tone and nasal and oral cavities. The DRE will also check for signs of drug injection.
Testing for divided attention
Two of the standard field sobriety tests include a mental component designed to reveal impairment: the one-leg-stand and the walk-and-turn. The driver must complete a simple physical task while remembering and successfully following the instructions the officer provided.
Submitting chemical sample for analysis
If the initial BAC testing was a breath test, then the driver will also undergo a blood or urine test, possibly both. These results will be analyzed for drugs and alcohol.
July 15, 2019
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Safety technology belongs in every vehicle
June 21, 2019
Proving causation: an obstacle in many malpractice cases
Those who believe they have a strong case may wish to have it evaluated by a lawyer. Most attorneys who specialize in personal injury have a network of professionals who can help build up cases. Investigators may obtain proof of negligence, and medical experts may measure the extent of injuries and their related costs. Expert witnesses may come in to offer testimony. A lawyer may start by striving for a settlement out of court, litigating only when negotiations fail.