Author: Brad J. Latta

Top Ten List Of What Not To Do In Divorce Court

Shout out to attorney Edra J. Pollin, although this list is probably more useful to my own clients than the general public. Entertaining nonetheless.

 

1. Do not roll your eyes, mutter under your breath or otherwise gesticulate when your spouse is testifying. Although justice may be blind, most judges are not. To the contrary, they are usually astute observers of body language who rarely appreciate one party’s use of facial expressions to mock the other spouse’s testimony. If your spouse is misrepresenting facts to the court, pass a few brief written comments to your attorney and patiently await their brilliant cross examination.

2. Do not keep referring to your child as “my” son or “my” daughter. More often than not, a parent who consistently uses the singular possessive pronoun with regard to the children is a parent who is singularly possessive about who should raise them.

3. Make sure that you’ve disclosed relevant and potentially embarrassing personal facts to your attorney early on in the case. Many years ago when I was a public defender, I represented “Jordan” who was charged with driving under the influence of alcohol. At the first office appointment, Jordan provided me with a detailed description of his performance on the roadside sobriety test, but he neglected to mention that when he exited the vehicle he was wearing a “teddy” negligee and a pair of high heels. Although Jordan’s was a criminal case which was resolved without a trial, his story bears repeating for divorcing spouses whose personal habits are relevant to their case.

4. Don’t bring your entire extended family and ten of your closest friends to your divorce hearing. During a marriage, most spouses would think twice about sharing their income tax returns or the intimate details of their relationship with third parties. When a marriage is ending, some divorcing spouses abandon this rule of privacy and assume that inquiring minds want to know everything about the divorce. If you need a support system to get you through the trial, pick no more than two people to sit quietly in the bleachers of the courtroom.

5. Don’t wear your torn blue jeans, your muscle shirt or your mini skirt to divorce court. Strange but true, months of trial preparation can be undone in an instant by a client who is dressed to tease rather than to testify. A provocative outfit may be great for the weekend after your divorce but it’s a fashion disaster for your custody case. When you select your courtroom attire, pretend you’re heading for a job interview. In some respects, you are.

6. Do not be rendered speechless if you’re asked to describe the positive aspects of your spouse’s parenting. A child custody case can be won or lost with the single question, “Can you describe some of the positive aspects of your spouse’s parenting skills?” On occasion, this question is followed by a pregnant pause as the witness scrambles to identify one favorable aspect of the other party’s parenting. If you can’t say anything positive about your spouse to the court, you’re probably not saying anything positive about your spouse to the kids.

7. Don’t display open hostility toward your spouse’s attorney. Your spouse’s attorney is probably not on your Christmas list. If you’re openly hostile toward opposing counsel during your cross-examination, you’re probably scoring more points for the other team than for yours. Keeping your cool on the witness stand is a great way of saying that you have nothing to hide.

8. Don’t read or receive text messages during the hearing. If you want the Court to pay full attention to the testimony, make sure that you do the same.

9. In a child custody dispute, don’t keep talking about “your” needs and “your” desires. Custody cases are determined based upon “the best interests of the child”. At trial, it is a safe assumption that the court doesn’t particularly care about you or your spouse, but the court cares deeply about the child(ren) you have created together.

10. Don’t tell long winded stories with irrelevant details of your spousal disputes. In divorce court, most judges have full dockets, sore backs and a desire to make it to lunchtime without an emergency hearing. If you’re asking the court for a protection order, describe the alleged spousal abuse and avoid the temptation to explain the minute details of the domestic dispute which precipitated the abuse.

 

Edra J. Pollin: My Top Ten List Of What Not To Do In Divorce Court.

Alimony Reform Sweeps the Coast: MA, New Jersey, and Florida

Elizabeth Benedict: Alimony Reform Sweeps the Coast: MA, New Jersey, and Florida.

Interesting article today regarding proposed modifications to what many people feel is an antiquated alimony system. Alimony, or spousal support, can be categorized as “periodic”, or payable over time, or “in gross”, which is more of a one-time property settlement. The factors courts consider when awarding alimony include:

  • The future earning ability of the parties;
  • The contribution of each party to the marital finances;
  • The length/duration of the marriage;
  • Fault by one or both parties;
  • Other factors

Unfortunately, many times the alimony award, whether temporary or permanent, creates a financial disaster for the payer and a potential windfall for the payee. The article lists several horror stories that are reflective of some of the problems with the current alimony system in many states. Hopefully more reform will be proposed that can clean up a lot of the problem areas when it comes to alimony in divorce cases.

Judge Orders Exchange of Facebook and Dating Website Passwords in Custody Fight – News – ABA Journal

Judge Orders Exchange of Facebook and Dating Website Passwords in Custody Fight – News – ABA Journal.

Well THIS is an interesting idea. We advise our clients to monitor all social media sites they use once they retain us, partly to avoid issues like this. There are many bad things and virtually no good things that can come from having a public Facebook or other social media page during a divorce or custody case. You never know how a seemingly innocuous photo or post can come back to haunt you in a divorce or custody trial, and you can be sure that many attorneys are now monitoring other parties’ profiles as well as their own clients’. Checking into a location from Facebook or Foursquare is an equally-bad idea, which can have unintended disastrous consequences.

We check email addresses, social media profiles, and many other online activities of our own clients as well as other parties, and frequently gather useful information from such sites. Even if pages are set to “private” or otherwise hidden, information can still be found, which is why we recommend monitoring all such sites during the pendency of a divorce or custody case.

Alabama Standard Visitation (Shelby County)

I thought it would be interesting to post the standard visitation schedule we currently use in Shelby County, Alabama. Obviously visitation specifics can be negotiated and tweaked, but this is a good starting point for reference.

Alabama Standard Visitation Schedule

  A. MID-WEEK AND WEEKEND TIMESHARING: From 5:00 P.M. until 8:00 P.M. on Wednesday evening of each week, and from 5:00 P.M. on Friday until 5:00 P.M. on Sunday every other weekend. These timesharing schedules shall be superseded by the December Holiday, Thanksgiving and Spring Break schedules set forth below and shall be modified during the Summer Vacation Break each year to accommodate any special vacation plans made by either parent.

          1) Notice: If the parents are residing within the same geographic area,
then the secondary residential parent shall give notice (verbal or written) at
least twenty-four (24) hours in advance only if he/she does not intend to
exercise midweek or weekend timesharing rights with the child.

If the parents are not residing within the same geographic area, the secondary
residential parent shall give notice (verbal or written) at least seven (7) days in
advance if he/she does intend to have the child reside with him/her for a scheduled
midweek visit or weekend.

The custodial parent shall provide the noncustodial parent notice at least 24
hours in advance if weekend timesharing is not going to be possible with the child
because of the illness of the child or due to other extraordinary, unforeseen
circumstances.

If timesharing is canceled due to illness of the child or other extraordinary,
unforeseen circumstances, the parent missing the timesharing shall have the right to
compensatory time with the child within 30 days.

          2) “Friday” and “Monday” holidays: Regular weekend timesharing shall
begin at 6:00 P.M. on Thursday if that Friday is a public school or legal holiday and
shall extend until 6:00 P.M. on Monday if that Monday is a public school or legal
holiday.

          3) Homework/readiness of children: The primary residential parent shall
insure that the children have adequate and proper clothing, and the secondary
residential parent shall insure that the furnished clothing is returned. The secondary
residential parent shall insure that the children complete all assigned homework during
midweek and weekend timesharing and shall have the children bathed and ready for
bed if they are being returned to their primary residence after 7:00 P.M.

     B. DECEMBER HOLIDAYS: For approximately one week during the December holiday period each year, beginning at 5:00 P.M. on the day that school recesses for the December holiday period and ending at 12:00 noon on December 26th in odd-numbered years, and beginning at 12:00 noon on December 26th and ending at 6:00 P.M. on the day before school resumes in even-numbered years. The actual length of this timesharing period may vary each year depending upon the child’s school holiday calendar and when Christmas Day actually occurs.

1) Notice [preferably in writing] of intent to exercise December Holiday
timesharing shall be given no later than December 1st each year.

C. THANKSGIVING HOLIDAYS: >From 6:00 P.M. on the day that school recesses for the Thanksgiving holidays until 6:00 P.M. on the following Sunday in even-numbered years.

1) Notice [preferably in writing] of intent to exercise Thanksgiving Holiday
timesharing shall be given by November 1st of each appropriate year.

D. SUMMER VACATION BREAK: For the first half of the children’s summer vacation break (including the Fourth of July holiday) in even-numbered years, and the last half of the children’s summer vacation break in odd-numbered years. For purposes of this Agreement, the summer vacation break is defined to begin at 6:00 P.M. on the date that school recesses for the summer and to end seven (7) days before school reconvenes for the following fall term.

1) Notice in writing of intent to exercise summer timesharing shall be given
by May 1st of each year.

2) Reciprocal midweek and weekend timesharing during summer 
     months: 
The primary residential parent shall have the same weekend and midweek
timesharing rights as the secondary residential parent enjoys during the rest of the
year.

3) Planned Vacations: Midweek and weekend timesharing during the
Summer Vacation Break shall be modified whenever either parent has specific
vacation plans for the children or the children have special activities planned, e.g.
camp. The parent missing regularly scheduled timesharing due to vacation plans shall
have the right to make-up the time within 45 days.

4) Transportation: The noncustodial parent shall be responsible for
transporting the children back and forth to the custodial parent’s home at his/her
expense for reciprocal midweek and weekend timesharing.

5) Summer school attendance: Each parent has the obligation to ensure
that the child attends required remedial summer school necessary for promotion to the
next grade. If the secondary residential parent resides outside the child’s geographic
area, he/she shall have the option at his/her expense to enroll the child in an
equivalent summer school session meeting the necessary requirements in the
secondary residential parent’s area so as not to defeat the secondary residential
parent’s ability to share time with the child during the summer.

E. SPRING BREAK: From 6:00 P.M. on the day that school recesses for the Spring Break holiday until 6:00 P.M. on the day before school resumes, in even-numbered years.

1) Notice [preferably in writing] of intent to exercise Spring Break
timesharing shall be given 30 days in advance each applicable year.

OTHER TIMESHARING SCHEDULES:

A. MOTHER’S DAY, FATHER’S DAY, & PARENTS’S BIRTHDAYS: The children shall spend Father’s Day and the father’s birthday with their father, and Mother’s Day and the mother’s birthday with their mother, from 9:00 A.M. until 6:00 P.M. on the day of the event. These arrangements shall supersede any other regularly-scheduled timesharing periods.

1) Notice: If the parents are residing within the same geographic area, the
noncustodial parent shall give notice (verbal or written) at least twenty-four (24)
hours in advance only if he/she does not intend to exercise this timesharing.

If the parents are not residing within the same geographic area, the
noncustodial parent shall give notice (verbal or written) at least seven (7) days in
advance if he/she does intend to exercise this timesharing.

B. CHILD’S BIRTHDAYS: In even-numbered years, the child shall celebrate with the primary residential parent from 5:00 P.M. the evening before until 4:00 P.M. on the child’s birthday, and the child shall celebrate with the secondary residential parent from 4:00 P.M. on the child’s birthday until 5:00 P.M. the following day. In odd-numbered years, this schedule shall be reversed. This arrangement will supersede any other regularly-scheduled timesharing arrangements.

1) Notice (verbal or written) of intent to exercise this timesharing shall be
given 7 days prior to the child’s birthday.

C. OTHER TIMES: The children shall be entitled to share time with the secondary residential parent at all other times agreed upon by the parents. If the parties are not residing within the same geographic area and the secondary residential parent has an opportunity to be in the locality of the children’s primary physical residence, he/she shall have the right to share time with the children upon one (1) week’s advance notice to the primary residential parent.

ADDITIONAL PARENTING RESPONSIBILITIES:

A. WAITING: Absent telephonic communication of extenuating circumstances, the child and the custodial parent have no duty to await the noncustodial parent for more than thirty (30) minutes of the scheduled timesharing period. A parent who is late for weekend timesharing forfeits timesharing for that weekend. A parent who is late at the beginning of a regularly-scheduled timesharing period other than a weekend forfeits the time until the next day.

B. TRANSPORTATION: The secondary residential parent shall be responsible for all transportation or transportation expenses associated with timesharing, except that the parties shall equally share the responsibility and cost of transportation for the child to travel to and from the secondary residential parent’s residence for December Holiday and summer timesharing each year.

If the parents are unable to agree, the secondary residential parent shall be responsible for transportation at the beginning of the timesharing period, and the primary residential parent shall be responsible for transportation at the end of the timesharing period.

Until age 11, no child shall be required to travel on any public carrier (e.g. bus, train, or airplane) unaccompanied by a responsible adult (including pre-arranged airline personnel) without the other parent’s express consent.

Approved child safety seats or seat belts when allowed by age or weight must be used at all times when transporting the child by vehicle or airplane.

C. BACKUP CARE: Assuming the parents reside in the same geographic area, each parent shall be given the opportunity and shall have the right to have the child with him/her when the child would otherwise be left alone or with a babysitter, daycare provider or facility, or other third party for any period of time exceeding four (4) hours. Both parents are encouraged to offer each other the opportunity to serve as “first choice babysitter” whenever either parent needs childcare for the child.

D. RELIGIOUS, SCHOOL AND EXTRACURRICULAR ACTIVITIES: It is in the children’s best interest to participate in religious activities, school programs and regularly-scheduled extracurricular activities appropriate for their ages and talents, such as sports, dance, modeling, and music lessons. When residing within the same geographic area, each parent has the duty to inform the other, and the right to attend, all such activities in which the children are participating. This includes the right to participate in and attend activities with the children at school, including eating lunch with the children.

The children shall have the right to attend Church and/or Sunday School at the Church attended by the custodial parent during the time they are scheduled to be with that parent.

Each parent shall make a good faith effort to deliver the child to scheduled activities on time and in appropriate attire. If not also attending an activity, the parent who delivers a child has the duty to ensure that the child is also picked up. Except for such regularly-scheduled activities, neither parent will make commitments for the child during the time the child is normally scheduled to share time with the other parent without the other parent’s knowledge and consent.

If the parties are not residing in the same geographic area, the noncustodial parent shall have no obligation to see that the child attends any extracurricular activities scheduled by the custodial parent during the regularly-scheduled timesharing periods. [For example, the custodial parent cannot refuse to honor the noncustodial parent’s spring or summer vacation time with the child simply because the child has a baseball game or practice during that time.]

E. NOTIFICATION OF RELOCATION: The primary residential parent shall give the secondary residential parent written notice at least ninety (90) days in advance of any plan to permanently relocate with the children outside of the parties’ geographic area.

F. GRANDPARENT AND RELATIVE CONTACT: It is presumptively in the children’s best interest that they maintain a relationship with the maternal and paternal grandparents and other close family. The parents should allow the children reasonable access and telephonic contact with grandparents and close family.

Mediation offers a quicker, cheaper path | al.com

 

 

 

 

 

 

Memorandum: Mediation offers a quicker, cheaper path | al.com.

Great article from The Birmingham News regarding the advantages of mediation. From the tangible benefits of cost controls and efficiency, mediation provides hidden benefits that may not seem apparent at first.

First, mediation is far less stressful than going to trial. Judges in Alabama are overworked and understaffed, and have literally thousands of cases on their dockets. Beyond the obvious truth that going to trial is exorbitantly expensive and time-consuming, there is no guarantee that your outcome will be any better. The simple act of getting a trial date scheduled can take months, the discovery process further delays things, and by the time you get to the trial date, most parties are exhausted and out of money.

Second, mediation is easier on children. A case going to trial requires the appointment of a guardian ad litem, a lawyer who represents only the children, and requires meetings with them and transport to and from lawyer offices and the courthouse. Mediation can usually be resolved in one day, which limits the stress and confusion for children.

Finally, mediation is the last resort to a client and their spouse determining their fate. A client and their spouse alone understand the nuances of their relationship and are in the best position to work out issues such as custody, visitation, and property division. Going to trial puts these issues into the hands of very capable judges, but judges that do not know the parties and will not be able to understand the emotions and details from a long marriage. Mediation gives the parties control over their divorce, which ultimately makes things easier on everyone.

 

Grandparent Visitation

This is sort of old news, but it’s an important change in the law in Alabama regarding grandparent visitation. The Alabama Supreme Court in June of this year ruled the preexisting Alabama Grandparent Visitation Act, enacted by legislature in 2010, was unconstitutional. The Act, which allowed grandparents to seek visitation rights with their grandchildren even if the parent has given up or lost parental rights, was found to not properly protect parents’ fundamental right to decide how to raise their children. “The state can interfere with that right only if the parents are shown to be unfit, Justice Tom Parker wrote in the main decision, in which Justices Tom Woodall and Kelli Wise concurred.”

“The justices recognize the vital role grandparents and grandchildren play in each others’ lives, wrote Justice Glenn Murdock, himself a grandparent who recalled his special relationship as a child with his own grandparents.

“Ultimately, however, the question present is whether the government has the power to mandate, through the use of force if necessary, the physical removal of children from fit custodial parents,” he wrote. “As between fit parents and the government, I must chose the parents.””

-Eric Velasco, The Birmingham News

This is an important change in the law regarding grandparent visitation in Alabama, and will certainly be the cause of future litigation and controversy.

Read more here: http://blog.al.com/spotnews/2011/06/alabamas_top_court_overturns_l.html

L.R. and D.E.R. v. C.G. and M.G.

The Alabama Court of Civil Appeals released an interesting opinion recently regarding termination of parental rights. Widely held as one of the highest burdens to meet in any area of the law, this opinion does nothing to diminish the fact that terminating a parent’s parental rights remains extremely difficult and is only granted in extreme, rare circumstances.

In L.R., the Court of Civil Appeals considered a case where the maternal grandparents received custody of the parties’ three minor children after a trial where it was revealed that the mother and father both had a history of drug use and criminal trouble. Morgan County DHR removed the children from L.R. after an investigation revealed that the two older children were subject to sexual abuse at the hands of neighbors with whom the mother had left them. As part of the DHR safety plan, they were placed in the custody of the maternal grandparents, and permanent legal and physical custody in June 2008.

In June 2010 the maternal grandparents filed a petition to terminate the parental rights of the mother and father, and the Juvenile Court of Morgan County entered judgments terminating said rights. The mother and father appealed.

In its analysis, the Court of Civil Appeals reiterated the standard for termination of parental rights, subject to Ala Code 1975 12-15-319, which provides that the juvenile court must have “clear and convincing evidence” that the parents of a child are “unwilling to discharge their responsibilities to and for the child, or that the conduct or condition of the parents renders them unable to properly care for the child and that the conduct or condition is unlikely to change in the foreseeable future” before it can terminate parental rights. Here, the facts showed that the mother and father were improving their situations, wanted a relationship with the children, and that terminating their parental rights would further no real purpose, as the children were all adjusted and doing well.

Once again, terminating a parent’s parental rights remains one of the heaviest burdens to meet in almost any area of the law.

Read the full opinion here: http://www.alabamaappellatewatch.com/uploads/file/2100215.PDF



			

Introduction

Welcome to my blog! I’ve been told I need one for a while, so consider this the taking of the plunge.

I opened my own private practice law firm in Birmingham, Alabama in 2008 with a focus on family law and domestic relations. Unbeknownst to me, specializing in family law ends up bleeding into many other areas of the law. When a divorce client needs a will, suddenly you’re an estate planning lawyer, and when a child support client goes to jail, well, you unwittingly become a criminal defense attorney. It’s exciting and challenging, and a journey that I’m happy to be a part of.

Check out my website, www.bradjlatta.com, and check back here for regular updates.