Olivia K. Smith, Attorney at Law

Can my child choose who has custody in a Ohio Divorce?

November 12, 2015Filed Under: Child Custody, Dissolution, Divorce

One of the most common questions I am asked by a client is “How old does my child to have to be before she can choose what parent she wants to have custody of her after a divorce in Ohio?”

The answer to this question is that there is no specific age where the Court has to rely on a child’s wishes solely when determining who will have custody of her.

In 1991, the Ohio divorce custody statute was amended and the right for a child to choose the custodial parent was deleted. The new custody statute (contained in Ohio Revised Code 3109.04 – http://codes.ohio.gov/orc/3109.04) spells out a list of factors that the Court must consider when allocating custody of a child. These factors include the following:

Wishes of the parents
Wishes of the child
Child’s interaction and relationship with the parents, siblings, etc
Child’s adjustment to the home, school, and community
Mental and physical health of all persons involved
Which parent is more likely to honor court approved visitation/companionship rights
Whether either parent has failed to make all child support payments
Whether either parent (or other member of the household) has been convicted of a criminal offense that resulted in the child being abused/neglected (sex offenses, etc.)
Whether one of the parents has willfully denied the other parent his/her parenting time
Whether either parent has or is planning to establish a residence out of state

As you will note in #2 above, the wishes of a child are required to be taken into account in a custody analysis by the Court. However, this one factor isn’t always outcome determinative as there are 9 other factors for the Court to review. However as the child becomes a teenager, this factor is probably weighted more than if the child is 7 years old. The bottom line is that your child’s wishes aren’t always determinative of the outcome of custody but they are important and taken into consideration during a full analysis under the law. If you have any additional questions regarding your Cincinnati divorce or wish to set up a consultation please contact Olivia through the information on her website.

Holidays and Divorce: Things WILL Change

November 19, 2014Filed Under: Child Custody, Dissolution, Divorce

The weather outside just dropped from an incredibly comfortable fall cool to a damp and nasty chill in about two hours, and shows no signs of going back. You know what that means. It must be holiday season. Soon stores will be lined with red and green, and friends will argue bitterly whether Christmas music is permissible between Halloween and Thanksgiving. For so many of us, especially those with large extended families close by, the holidays carry many traditions, expectations, and norms. I remember as an eight year old being horrified that we were no longer doing Thanksgiving at my grandma’s, not at all appreciating the impossible logistics of stuffing our growing family into my grandmother’s less than 2,000 square-foot house. A couple years later when my parents divorced, lots of other things changed. This article will outline some of my experiences, observations, and retrospect on how ending a marriage affects the holidays.

The Great Schism

The initial split of a marriage with children can be hugely daunting, and the first couple years are usually the most stress-ridden for both parents and child(ren). Many married households do the same thing every year for certain holidays, and after a divorce, keeping that up is frequently impossible or unfair. Every child is different, but in my experience, children are pretty flexible when it comes to holiday traditions when both parents actively endorse the change. Children value a lack of conflict between their divorced parents (which can create incredible stress and even longer-term developmental and behavioral problems) far more than their holiday traditions. The key is usually the two parents sitting down and hashing out how all holidays will work in one sitting. It is very un-lawyerly of me to say this, but holidays are one thing that clients usually figure out better than their attorneys. No one knows your family better than you.

Sources of Conflict

Even when divorced parents have maturely hashed out a sensible and reasonable holiday schedule, problems can arise at actual implementation. Conflict often arises when one parent has a significantly larger contingent of extended family living close than the other. This was the case with my family, and that meant when my parents were together, we far more often spent holidays with my mother’s family. However I was lucky in that my parents made it work. My mother didn’t insist I spend every Thanksgiving with my cousins or make fun of the year my dad and I did a private Thanksgiving one year with a chicken rather than a turkey (it was a really big chicken), or the year we went to Furr’s Cafeteria. At the same time if a year fell that my mother’s family did something particularly big, or someone I hadn’t seen in forever was in town, they moved things around. The key to holidays, and really everything when it comes to parenting children with divorced parents, is the parents working together.

Keep in Mind, Every Family is Different

Divorces are by nature unpleasant affairs, and their aftermaths are never perfect. Your ex may not be as sensible as my parents were, and it may force holidays to be strictly governed by your separation agreement or shared parenting plan. This author knows coordinating holidays after the end of a marriage is far harder than this article may have made it seem, but hopefully it provided a little knowledge and perspective.

Happy Holidays

Social Media and Divorce: What NOT to do

March 24, 2014Filed Under: Child Custody, Dissolution, Divorce, Misc Advice

Like probably most Americans, I can find myself addicted to social media. With the invent of smart phones, it follows us everywhere, and is an ever-ready source of entertainment almost whenever we would like (Isn’t it cruel that grocery stores don’t have WI-FI?). As you are also aware, social media can also be the source of discontent. Many of our friends and family are not content to only share their positive or productive thoughts, but would rather regurgitate every negative or passive aggressive thought they have ever had to the entire world. This social media promiscuity is further fanned in times of distress, such as ending a marriage. Because so many of us have disregarded friendly advice about such public posting in the past, or if you are unlucky enough not to have friends that call you out on it, here are several things NOT to do on social media during your divorce.

Not Cleaning up Your Profile

Sorry for the double negative there, but it could not be helped. If you are young enough to have had social media during college, you have very likely done what I like to call a Facebook purge. Not only do you unfriend all those people you did not even like in high school, but you start un-tagging yourself from all the photographs where you are (insert your preferred synonym for ‘intoxicated’), or maybe even were engaging in an illegal activity. Undergrads are dumb, and you probably were too at some point. C’est la vie, but that is no reason to keep that stuff up. Character evidence is perfectly admissible when kids are involved, and you do not want anything to mar that beautiful person you are presenting to the judge and guardian. Do not rely on “privacy,” either take it down, or ask that the poster take it down.

Making your Profile look like you are “Super Parent”

This is the other side of the profile coin. Our office does lots of guardian ad litem work, and you can make a pretty good bet, that if someone is involved in a custody dispute, whether private or brought as a result of alleged abuse, neglect, etc., that their profile picture will have their kids in it, and the whole of their pictures will make it seem like they are Mother Theresa 24/7/365. It is wise to clean up any discrediting posts or pictures, but doing this to extremes is obvious and appears disingenuous. The guardian knows you love your children, and no restructuring of your Facebook page is going to make the children’s lives with you seem like Pinterst while with your ex it is Craig’s List.

Posting Negative or Passive-Aggressive Messages or Pictures

Don’t you love when your friends post woe-is-me messages or poems on social media? No, you don’t. Not only is your online venting probably going to lower the number of people who take you seriously, but it will only compound your grief, sorrow, and/or anger. Sharing troubles is for friends, family, clergymen, and bartenders, not social media.

Harassing, Angry, or Otherwise Unpleasant Communications

I saved the best for last. Don’t… do… it… Don’t do it. Criminal attorneys tell their clients they have nothing to say to the police. Family law attorneys tell their clients they have nothing to say to their ex, certainly not on a forum that lasts forever and keeps very good records. Never put anything on social media you are not comfortable with the whole world seeing. That includes “private” messages. This rule extends to third parties as well, like girl/boyfriends and new spouses. It is very likely you are angry, and probably have plenty of reasons to be, but don’t go ruining your divorce arguments by looking like a psychopath on the internet.

Conclusion

We all love social media. It keeps us informed, allows us to stay connected to old friends, and provides us with amusing pictures of animals. However, with the increased ease of communication has come an increased ease to shoot one’s divorce case in the foot. Use good judgment, do not write about the matter online, and keep your cool. It will all be over soon.

Can I Get My Spouse to Pay My Attorney Fees?

April 25, 2013Filed Under: Dissolution, Divorce, Misc Advice

Ohio courts have the authority to mandate that one party pay all or a portion of the other party’s legal fees in a divorce, dissolution, legal separation, or annulment of marriage when the court deems it equitable (fair) to do so. (See Ohio Revised Code 3105.73)

Ok, so when is it fair?

The simple (and somewhat cynical) answer would be whenever the guy or gal in the black robe feels like it. While domestic relations judges and magistrates exercise incredible discretion over when to award attorney’s fees, the legislature and case law have provided several distinct situations where it is appropriate to award all or part of a party’s legal costs.

1. One party has all the money.

In many marriages, one spouse takes care of the money. In the majority of marriages, one spouse is the primary breadwinner. When those two groups overlap, there can be problems when one or both spouses decide to end the marriage. Add the inability of the other spouse to access the marital funds, and there can be a serious problem. This is the most straight forward instance of awarding attorney’s fees. The others are a little more murky.

2. One party has made the divorce take longer or be more difficult than it should.

This is where things get gray. Courts are deeply concerned about what we call in the industry “judicial economy.” Besides wearing sandals in the courtroom, wasting a judge’s time is the absolute best way to earn the ire of the court, especially when it is to the detriment of the other party and costs everybody more money. Judges do not want to give angry spouses or greedy attorneys free reign to drag litigation out forever in an effort to hurt the other spouse or rack up billable hours. Conversely, each party has the right to seek every remedy afforded to them by the law. There is nothing in the revised code that says people have to agree. That is why we have courts.

Another problem in this situation is how much recompense the offended party deserves. Even if one spouse has dragged things out for no justifiable reason, the other spouse is probably not entitled to all of their fees being paid. Ohio judges have been far more likely to only grant a portion of the fees be paid. This portion is usually determined by the offended party showing what the other side did wrong, and how many fees were incurred as a result of that wrongful action. If the side in the right cannot show this causal relationship or calculate the harm suffered, the judge will likely deny any award.

3. Wrongful Actions/Violations of Court Orders

These instances are cousins of the second category, but deserve to be discussed separately. Even more than they expect to be respected, judges expect to be obeyed. If one party intentionally violates the rules of the court, or worse, refuses to abide by a court order, the judge may be inclined to remedy the situation via an award of attorney’s fees. This should not be seen as a vindictive punishment or something deserved by a spouse who unfortunately decided to marry a (insert four letter word). Such awards are rather intended to make sure everyone follows the rules and is as civil as possible. The boys in blue cannot solve every problem, and hitting someone in the pocketbook, especially with bills incurred by their soon to be ex-spouse, can be a particularly persuasive deterrent.

Keep in mind, however, this is an extreme remedy. Courts are unlikely to throw the book at a father who keeps the kids two hours longer than he was supposed to (unless, perhaps if this becomes habitual), or a wife that files her documents late. The best thing you can do is document every instance you believe your spouse or ex-spouse violates an order or is doing something intentionally to hurt you or the court proceedings. Secondly, do not retaliate. This will only make you miserable and weaken your position. Lastly, don’t sweat the small stuff. You are involved in or have gone through a divorce. Some unpleasantness is unfortunately likely. Not only will relative leniency benefit you should you accidentally trip up (especially in the case you share children), but calling your attorney every time you hear about disparaging remarks from your spouse through the grapevine will probably just cost you money.

The bottom line when it comes to an award of attorney’s fees is it is up to the judge. Their decision is law, and appellate courts are reluctant to overturn them. Really, the best thing you can do in these circumstances is remember the Golden Rule. It is as helpful in domestic relations as it was when you first learned it.

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Can my child choose who has custody in a Ohio Divorce?

Holidays and Divorce: Things WILL Change

Social Media and Divorce: What NOT to do

Can I Get My Spouse to Pay My Attorney Fees?

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