Post Divorce/Custody Issues

Designating a guardian of your child

November 28, 2016Filed Under: Child Custody, Estate Planning, Misc Advice, Post Divorce/Custody Issues

A question I get fairly often is: “If I die can I designate someone other than the biological parent to care for my child”.

The short answer: Yes, but it probably won’t matter.

The long answer: When creating your Last Will and Testament, you will be asked who you want to be the guardian of your child if you die while that child is a minor. In situations where the parents are married/together, the parents may contemplate the case where they die in the same accident. Often times the parents choose an aunt or uncle or close friend to be the guardian. Otherwise, it is usually a given that the child would go to the living parent in the case that only one spouse/partner passed away.

Things get a little more dicey when you are divorced or not together with the other parent and you don’t think that parent is fit to take care of the child on his/her own. You are free to name whoever you want as a guardian in your Last Will and Testament, however, at the end of the day the law prefers parents to raise their children. If you die the Probate Court will be made aware of your designation. However, in order to have the Court designate someone other than the parent as a guardian, the person seeking to be the guardian would have to prove that the parent is unfit. Then, the Court would have to analyze whether placing the child with the want-to-be guardian is in the best interest of the child. Proving a parent is unfit is a substantial burden to prove. As you can see, there are several hurdles that must occur before your wishes will be able to be honored.

If you have concerns, it is recommended to name your preferred guardian in your Last Will and Testament because if the other parent is unfit, you will want the Court to know your preferences.

Can you force a parent to have visitation with his/her child?

November 22, 2016Filed Under: Child Custody, Dissolution, Divorce, Post Divorce/Custody Issues

A question was recently posed to me regarding a parent’s ability to force the other parent to have visitation with his or her child.

You generally cannot force the other parent to exercise his or her visitation if you have full custody of your child. Visitation is considered a “right”. Similar to other rights – such as voting – you have the ability to exercise your right but can’t be penalized for choosing not to exercise that right. Your right can be taken away from you only for good cause. In contrast, supporting your child is a responsibility. A responsibility – such as paying taxes – can be forced upon you if you choose not to honor that responsibility. The Court has the ability to force the Obligor to pay child support even if he or she doesn’t want to.

One caveat to this is if the parents have a shared parenting plan (Ohio’s version of joint custody). I have heard one judge say that she would find a parent in contempt for not exercising his time under a shared parenting plan. I have never personally pursued such a finding because from a practical standpoint it just doesn’t make sense. The more logical pursuit would be to ask the Court to modify the non-compliant parent’s parenting time and increase his/her child support because he/she is not exercising the time, putting more of the burden on the other parent.

Tips for Teacher Parent Relationships after a Divorce

October 29, 2013Filed Under: Child Custody, Education, Misc Advice, Post Divorce/Custody Issues

1. Teachers, private or public, are not in the business of enforcing custody or domestic relations disputes.

You would not believe how often this is a problem. School is the focal point of most children’s days from age 5 to 18. Almost every scheduling matter and activity revolves around it, and nearly every decision made by the child during those years, from the type of clothes they wear to the friends they choose to the activities they engage in, is shaped by its rules and boundaries, boundaries enforced for the most part by teachers. Because so much of a child’s life focuses around school and related activities, disputes in the domestic relations arena frequently arise in the school context. Examples of such disputes include what classes the child takes, what activities they participate in, and how the child spends their time after school ends. Where disputing parents frequently deviate from rational thinking is when they imagine school teachers and administrators wearing black robes and holding a gavel.

Teachers and administrators do not dress this way. They do not dress this way because teachers are not judges. Judges enforce custody arrangements, not teachers. You can shout at Billy’s science teacher until you are blue in the face, but they are still probably not going to do anything when your ex picks Billy up. If your child(ren)’s other parent is not abiding by a court order, talk to your attorney and file for contempt, don’t go after the home-ec teacher managing the crosswalk.

2. Always present a united front when it comes to your child’s education.

I know this is WAY easier said than done, but at the very least read the above caption sixteen more times before continuing with the article… Now that that’s done, here is a tip on how to accomplish this.

Schedule a time to speak with your ex about you child(ren)’s school/wellbeing at least once a week. You might be thinking “good, we already do that,” but most exes don’t actually schedule such conversations, only speaking when some issue/incident comes up. Having a regularly scheduled time, even for just 10 minutes, can lend objective perspective. Also, you all will consistently know where each other stand, rather than waiting for a conflict to arise from different opinions on how to respond to an incident (i.e. poor grades, inappropriate behavior, etc.). You will already know how you and your spouse plan to respond, and do not have to worry about a divided discipline situation. Sitting down for a coffee or a conversation at an extracurricular you both go to (sports practices, art classes, etc.) would be ideal, but sometimes that can be very uncomfortable. In those circumstances, talking to your ex over the telephone after a conversation with your kids can work equally well.

3. Establish your Child(ren)’s Teachers as Neutral Masters of their Respective Universes

Two big things here: First, nothing can jeopardize your child’s academic success like undermining their teachers. If you disagree with a teacher’s teaching, curriculum, behavior towards your child, discipline techniques, etc, speak with the teacher and/or the appropriate administrator. If none of these avenues prove productive, you may need to look at the option of switching schools or electing private education.

The second part of this is to not attempt to enlist your child’s teachers in a dispute with your ex. Not only will this almost certainly make the teacher uncomfortable in general, but it will make them less comfortable/likely to share their opinions on what is best for your child, fearing you will use it as ammunition in your dispute with your ex. Also, saying things to your child like “your teachers agree with me, but we can’t do X because of your Mother/Father” only discredits you and your ex as parental figures. Do enough of that and get ready for your children to try to play you and your ex off one another.

Conclusion

Having a perfect relationship with your child’s teachers is hard enough when you and your ex were one legal entity, and ending a marriage can make a united front of mom, dad, and teacher very difficult, but if you follow the advice listed above, it should be a little easier.

5 Common Mistakes to Avoid in an Ohio Divorce

March 29, 2013Filed Under: Dissolution, Divorce, Misc Advice, Post Divorce/Custody Issues, Property Division

Common Mistakes to Avoid in an Ohio Divorce

1. Unproductive/Negative Communications and Contact with your Spouse

This category is listed first because it is the one that seems to cause my clients the most downright misery. Unproductive, negative, and rude communication is likely a reason why you and your spouse are not compatible and seek separation. Whether or not they or you are at fault, it is a bad and ugly thing that must be avoided to the furthest extent possible, especially in divorce proceedings. Considering you have likely been so connected with your spouse (children, families, residence, etc.) for so long, it is likely impossible or unhealthy to cut off communication completely (that is of course unless there is a fear of violence), but do your absolute best to limit communications and contact to necessary and productive meetings. If your spouse insists on being negative, rude, or inflammatory, cursing at you, telling lies to friends and family, bothering you at work, etc. tell your lawyer about all this, and they will advise you on how best to react. The worst thing you can do is reciprocate or respond, even when you are in the right. Responding only fuels their anger, making them think they are getting to you.

2. Dividing any Assets before first making a Complete Inventory

A common thing that happens when spouses begin to talk about divorce, even at that first conversation or fight, is the phrases “Who gets what?” or “So you are gonna take X, so it’s only fair that I get Y.” I will simply say this is a bad idea, not as much that you might be forming oral contracts by these conversations (which you almost certainly are not), but this type of informal tit for tat could confuse later parts of your divorce proceedings or limit your scope of what is actually fair. Even before you have the first discussion with your attorney, write out all the assets and debts you and your spouse hold together or separately. List their respective values if you can. Note any sentimentalities you might have, and include the time the assets or debts were acquired, and under what circumstances they were acquired.

3. Communicating too much or too little of the Divorce process to your Children

Divorce can be awful for a child, but you are the person who has the biggest impact on how it affects your children. Unless your child(ren) is an infant, they will understand that something is going on, and if they are old enough, they will resent being kept completely in the dark. Conversely, the last thing you want to do is have your child intimately aware of or (even worse) involved in the disagreements you have with their other parent relating to the divorce. The vast majority of children want to be left completely out of a divorce. They may wish to be primarily with one parent or the other, but do not press them on the subject. If you believe your spouse is pressuring your child(ren) to say or feel one way or the other, consider asking the court to appoint a Guardian ad Litem to represent their best interests. What your kids want is support and love, show that to them, and insure them that you will do whatever is best for them. It will help both them and you get through this.

4. Letting Family Members (yours or theirs) have too much influence in Your Divorce Proceedings

Most will read this heading and think, “of course, I’ve already thought of this. This is my divorce, not theirs.” And that’s good. This section will simply list a few things to look out for. A lot of your friends and family upon hearing of your divorce will come up to you or call you to say “we are behind you, no matter what.” That’s awesome. Problem is, what are they doing back there? Many of your loved ones will want to be your sword and shield. Swords and shields are for warfare, and no matter how nasty a divorce gets, that’s not what you need. Better to have reason, closure, and security, and no one is secure when bullets are flying. So take charge. Tell your friends and family that you have this down. You will need anything and everything they can give you in love, support, babysitting, covering at work, ears when you’re pissed off and need a good rant. Tell them the best thing they can do for you is lift you up on their shoulders, not defend you from the nastiness of this split. You are strong enough to do that all on your own with so many shoulders to lean on.

5. Letting Your Attorney Dictate your Divorce Proceedings

As much as it is aggravating when clients do not take my advice, this is not my divorce. It is YOURS. I work for you, and it is YOUR LIFE I am counseling you on. While we as attorneys are ethically bound to advocate your interests, and I personally can say that I have accumulated wisdom gained by past experience that can help you through situations I have experienced in the past, we cannot weigh your interests as accurately as you can. To effectuate the best relationship with your attorney, be candid about all the facts of your case, especially the facts that could make you look bad or those you think your spouse will use to make you look bad, and also of your feelings at each stage of the proceedings. A good attorney will likely know the best way for you to move forward, and will have the cool head to weigh the situation objectively, but only because they have witnessed persons like you in these situations, not You.

Designating a guardian of your child

Can you force a parent to have visitation with his/her child?

Tips for Teacher Parent Relationships after a Divorce

5 Common Mistakes to Avoid in an Ohio Divorce

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