Parenting After Divorce (AND during marriage!)

Today I read an Opinion piece in the New York Times, and it’s so good, I think it deserves a spot in my blog for ya’ll to read. This article is just about parenting after divorce, but gives some insight into How NOT to Get Divorced. I particularly encourage all those who have an iron grip on what they believe their “rights” are with custody. You might be cutting off your nose to spite your face.

Back to School!

Who are YOU hoping not to get in a fight with??

I’ve been divorced over 14 years now. My baby was 2 when I stopped living with him; my ex moved away from where I’d lived with my kids, into different school boundaries, 3 or 4 years later. My children went from going to schools where the staff knew me, and knew who I was, to schools that didn’t know my ex was even divorced.

What difference does that make anyway? Well, for starters, there are all these forms that parents fill out at our annual school registrations/Back to School nights, or when they register kids in a new school for the first time. Included in the information a parent provides is the name/identity of both parents. Divorced parents typically have to provide evidence that they have physical custody of kids, and that the parent is entitled to enroll the kids in that school.

But what if the district doesn’t KNOW the parents are divorced? What if the custodial parent represents to the school that a step parent is a legal guardian/legal parent/The Mom (specifically in our culture with how we give kids dad’s last name), and doesn’t mention the other legal parent at all? The school likely will not know that there IS another parent who is entitled to information about the kids, or to pick the kids up at school, or Any of That.

Tell me junior high isn’t awkward enough already...

Let me just tell you right now, up front, before school registration stuff has happened, how to avoid a fight and be a Decent Human who co-parents appropriately:

1. Do not list your new spouse as the other Parent on the registration forms. Unless your new spouse has legally adopted your children, they are NOT a legal “parent” such that they are entitled to be listed as a Parent. They can be listed as an emergency contact, as an Other individual who can get information about the kids, but they are not the Parent.
   
   To break that down into super-understandable language: “Mom” on the form is the Mom who was the Mom listed in the divorce; “Dad” on the form is the Dad who was the Dad listed in the divorce. That’s who you put in those spaces on the registration form. Period.
   
   This is ESPECIALLY true if the other parent has joint legal custody of your child(ren). “Joint legal custody” means that even if the kids don’t live full time with that parent, that parent is STILL a legal guardian, entitled to information about the kids from the school, the doctor, the church, whatever, without having to go through you.
   
   
2. As the super intuitive follow up to #1, DO list your ex spouse as the other Parent on the form when you’re filling it out. Put their name, address, email, phone number, all of it. This way the school is aware of who they are, and can provide that parent information directly (in the case of shared legal custody), rather than going through you, when asked for it.
   
   
3. Provide the school with a copy of your custody order that shows who has legal and physical custody of your kids.
   
   
4. If you have sole legal AND physical custody of your children, STILL put the other parent in the “dad” or “mom” spot on the form, but make note that the other parent is not entitled to info, etc., without your permission… and provide a copy of your custody Order to back up that assertion. You can then put the step parent in the space of Other contact, as someone who can pick up the kids at school, get info from the school, etc., on your behalf. You are doing this because even if you have sole legal custody of your kids, your new spouse is NOT a legal guardian of those children. You can delegate these types of parenting duties, depending on your state/jurisdiction, but simply marrying a Dad doesn’t make you The Mom, and vice versa.

And there you have it–how to be a Good Co-Parent, and not get in a fight on the first day of school (or after, when it’s found out that you did something creepy, mean, and underhanded to your ex, that’s NOT in the best interest of your kids).

If you are the non-custodial (or less than sole custodian) of your kids, and if your ex is a SHITTY co-parent, and refuses to provide the school with your name and status as a parent, this is what can be done to remedy the situation:

1. Go to the school office during school hours. Ask to speak with the principal or a school counselor. (Pro-tip: Call ahead and make an appointment so they’ll be there, ready to talk to you, when you show up.)
   
   
2. You will bring with you: A copy of your court-signed custody order showing you have joint custody of some sort; your drivers license; your children’s birth certificates; AND if you’ve changed your name, you should also bring a copy of YOUR birth certificate, AND a certified copy of your court order for your legal name change.
   
   
3. Explain to the principal or counselor that you are a legal guardian of your children, and request that they provide information to you as needed to help you support and parent your children. You’ll provide them with copies of all the documents you brought so they can keep those in the kid’s file(s) at school and know going forward how your situation works.

Repeat this process at every school any of your children attend–the elementary, the junior high/middle school, the high school. The schools don’t necessarily communicate amongst themselves, even in the same school district, and as long as you’ve already got everything collected in one place for the process (and probably already took time off work, etc), you might as well get it done all at once. Besides that, then the school administrators have met you in person, they know you’re on the up and up, and they will be more likely to help you help your kids in the future.

And this is the part where I IMPLORE PARENTS TO BE GOOD CO-PARENTS AND NOT JERK AROUND THE OTHER PARENT JUST BECAUSE YOU’RE A JERK. My kids have had a stepmother for 14 of the 14 1/2 years I’ve been divorced. I totally get how the dynamics of a blended family work, and how divorced parents interact. Your children are better off with ALL of their parents–legal and step–working together. Don’t cut out the other legal parent for the sake of your own ego, or because you don’t think they’re important. They are… Just ask your kids.

Let’s not make it anymore traumatic than it has to be, mmkay?

Website Translation Tool!!!

So, it’s not a super pretty tool, but it’s pretty effective.  I found a website translation tool, so if you know someone who does not speak English, but could use the info on my blog, point them to this new link.  I’ve added it to My Links on the right side of this page, like so:

The link is right there, highlighted and circled in the pic, in the My Links section down the right side of the page.

Click on the link, copy and paste the web address into the first field, select your language, click OK, and Voila!  My page in Spanish.  Or Bulgarian. Or any of a few dozen languages.  I have no idea how good the translations are, but something’s better than nothing, no?  Here’s hoping…

 

…and it’s That Time of Year again

For whatever holidays you celebrate this winter…Have a Happy one.

I post every year about the holidays and parent time, and though I’ve said it before, I’m gonna say it again:  Please, for the sake of your own peace and sanity and that of your children, behave yourself during the holiday parent time designations and exchanges.  It takes little more than putting yourself in the place of your child to see why this is important.  And think back to your own childhood–was it a good one?  Was it bad?  And WHY?  Do you remember the holidays being a wonderful, exciting time that you got to spend with family?  Or do you remember your parents jerking you around while they tried to “get back at” each other?  What kind of holiday season do you want for YOUR children?

I had a really wonderful childhood.  My parents are still married; they like each other, even.  And they really love us kids.  We could feel it.  Even when we were dirt poor, the holidays always felt special and magical and Safe.  And Peaceful.  My children have not had the benefit of having parents who are not divorced, but they HAVE had the benefit of parents who have NOT used them as pawns to get back at each other for real or perceived offenses, particularly during the holidays.  Because I DO want my kids to have had a great childhood, my and their father’s decisions not withstanding.

Your children did not choose your divorce.  Please don’t make them pay for it, especially at this time of the year.

(For the holiday parent time schedule in Utah, see my blog post with it spelled out, or UCA 30-3-35.)

Right of First Refusal in Childcare

If you’re trying to look this up in the Utah state statutes with this term, you won’t find it.  “Right of first refusal in childcare” (commonly shortened to ROFR when lawyers start talking in writing about it) stands for the proposition that it’s better for a child to spend time with the other parent than with a babysitter.  It IS in statute, however, if you know where to look.  At UCA 30-3-33(15), the Advisory Guidelines, it says: “Parental care shall be presumed to be better care for the child than surrogate care and the court shall encourage the parties to cooperate in allowing the noncustodial parent, if willing and able to transport the children, to provide the child care.”

It takes time to teach…

So let’s break that down.

First:  parental care is better than surrogate care.  So who is a surrogate?  Anyone who is NOT a parent is a surrogate.  That means stepparents, grandma, aunts, uncles, a babysitter, a friend…ANYONE who isn’t mom or dad.

Second: the noncustodial parent–this is whichever parent is not the one who has physical custody of the kids at the time the care is needed.  That means that even if the parties have joint physical custody of a child, if it’s NOT mom’s time to have the kid, and dad needs someone to take care of him/her, Mom is the noncustodial parent in this situation, and she should be given the option FIRST of taking care of the child.  FIRST, as in, call her first before you talk to the babysitter, grandma, or stepmom about watching the child for that period of time.  If she can’t care for the child at that time, for whatever reason, then dad would go to someone else to see if they can help with childcare for that time period.

Third:  “if willing and able to transport the children..”  In the above example, if Mom wants to have the child while Dad is otherwise occupied, she’s got to provide the transportation–the pick up and drop off.  If she can’t, Dad’s not obligated to use Mom for childcare on that occasion.

That’s the statute.  How does that translate in YOUR custody order?  Well, your custody order may have other factors included, like ROFR only applies if the custodial parent will be away from the child for x amount of hours, commonly like 3 or 4.  Or ROFR will NEVER apply, for whatever reason–maybe because the parties don’t get along and any time they interact there’s conflict that bleeds over onto the kids, or because you live too far away from the other parent to make it practical to use.  Or because there have been issues of abuse.  Or because the other parent can only have the kids while they’re supervised, and there’s no supervisor available on short notice.  There are definitely reasons to NOT have ROFR included in your Order, but if it’s not specifically excluded, the statute applies–even if it’s not mentioned anywhere at all in the custody order.

…if there’s no time, the life skills teaching can’t happen.

The goal with right of first refusal if for both parents to have the opportunity to spend as much time as possible with their kids.  Kids need BOTH parents, and having that extra time with Mom or Dad is important for building that parent/child relationship.  Being a good parent means encouraging that relationship.  So make sure you’re doing what you can in your own custody order to help your kids that way.  Right of First Refusal, those words, aren’t anywhere in the statute.  But they very well should be in your own parenting philosophy and practice.

Protective Orders: What They’re NOT for

While I’m not in private practice anymore, I do take the occasional one-off type thing: those cases that will have a one time court appearance or are strictly consulting, or are basic estate planning–that sort of thing.  Today I had a hearing defending a client in a motion for a permanent protective order.

I truly believe in protective orders.  When they are needed, one should ABSOLUTELY get one.  That said, I ALSO feel strongly that protective orders should not be abused.  If one is simply trying to control another person, or force a custody order, or simply to “get back” at another person for some perceived slight, getting a protective order is absolutely inappropriate.  Personally, I think people who get ex parte protective orders for the wrong reasons should have to pay the other person’s costs and attorneys fees when the motion and temporary PO are dismissed.  And maybe have some sort of sanction thrown at them by the court, like being ordered to do community service.

My client this morning who I was defending was in a situation where the protective order was being used as a tool to try and control and manipulate him.  The Petitioner in this case, his baby mama, was not in need of protection by the court.  They’re not even Utah residents–they’ve both been living in California up until she took off and came back to Utah, taking their tiny baby daughter with her.  He filed for custody in California a week or so after she left, when it became apparent that she couldn’t be trusted to allow him contact with his child.  And 3 weeks later, after dodging–but finally being served– with the California court papers, Baby Mama filed for a protective order.

Long story short, I won this one.  The protective order motion was denied, and the ex parte/temporary order was dismissed.  The reason I won is because my client was excellent at documenting stuff–he saved all the texts, emails, and Facebook messages the two had exchanged.  And he was totally upfront with his less-than-perfect behaviors.  He had also not been abusive to her–in fact, SHE had assaulted HIM; SHE had been the one threatening HIM. And in the end, we were able to prove that Baby Mama did not meet the requirements to get a protective order against my client.

Gifts from my client :).  He was very grateful, and very nice. The best kind of client to have.

I like to win.  A lot.  And when that win can knock down what I see as abuse of  protective orders, and protect a person from losing constitutional rights in a quasi-criminal action, all the better.  I hate people who cry wolf.  They truly degrade the value of the protective order, which hurts everyone out there who honest to God needs one.

Bitching on Social Media: KNOCK IT OFF

This is gonna be a little, short post, but it’s gotta be said.  STOP airing all your grievances on social media!  Keep your snarky little comments OFF Twitter!  Keep your personal, thinly-veiled jabs at the other party off Facebook!  You’re. Not. Helping.  Being pissed off about the ex boyfriend or ex husband or ex wife or ex girlfriend in a public forum is ugly, dumb, and completely immature.  ESPECIALLY if you have kids who have access to your vitriol about their dad/mom.

If your child support isn’t being paid, I’m sorry.  Stuff happens in people’s lives, and sometimes they CAN’T pay you AND keep the lights on.  And even if they’re just being hateful and refusing to pay?  Public shaming doesn’t make them any less hateful.  For real.  You’re not solving your problem.  You’re simply ramping up the conflict, creating drama, and adding more tension to BOTH of your lives.

If you and your ex are engaged in some sort of court case, DON’T GO SPEWING ALL OVER YOUR FB PAGE.  You look like a vicious b*tch–and that term applies to men who do it as well.  And then you provide evidence to the other person that they can simply blow up 16″x 24″ on a poster in court to show how horrible you are.  I cannot tell you how many times I’ve advised a client to SHUT UP on Facebook or Twitter.  You’re only hurting yourself with that kind of behavior.  You think your page is totally private?  Maybe it is, and maybe someone is seeing stuff and passing it on to the ex.  You will sink yourself, and you’ll have no one but yourself to blame. Because in the words of my Uncle Terry, and the Great John Wayne,

 

 

Parent Time: This is not a “pay to play” thing.

I’ve had this question come up a few times in the past few weeks, from a few different places.  A friend from way back asked if it was legal to withhold parent time for non-payment of child support, because he knows a guy (who lost his job, and got behind) who is experiencing that right now with his ex.  And I advised a couple that their daughter cannot keep her kids away from dad because he’s not paying child support (even though that dude is actually refusing to work specifically so he doesn’t have to pay–but that’s a topic for another day.)

So why CAN’T a custodial parent keep the non-custodial from having parent time if that person isn’t paying his/her child support?

Let’s start with the focus of the issue:  The kids need to have a relationship with BOTH parents.  Parent time is not something that is doled out based upon one’s ability to pay, or even their willingness to pay child support.  Studies have shown that children in divorce do better emotionally and socially when they have both parents actively involved in their lives.  A parent time order is designed to do just that–keep both parents involved with the kids.  Keeping a child from a loving parent, just because that parent isn’t paying the other one, disrupts the child’s relationship with that parent, and really could constitute emotional child abuse.

One should never have to cross-dress just to have access to their kids.

“But it’s not fair!”  I hear this a lot (I hate the “F”–fair–word).  Why should the non-custodial parent get the benefit of having a relationship with the child when he/she isn’t even financially supporting the kid? I’ll tell you why–this is NOT about you, and it’s not about the money.  It’s about the kids.  Kids. Need. Both. Parents.  Even if one parent is a deadbeat (and for the record–I do not believe all people who don’t pay child support are deadbeats).  As (retired) Commissioner Garner of the First & Second Judicial Districts here in Utah was wont to say, children are half of each parent.  Denying a child from being with a parent is denying half of the child.   In the words of Natalie Hillard, the littlest child in Mrs. Doubtfire, “we’re his goddamn kids too!”

The divorce code specifically states that the other party not complying with the parenting plan provisions or child support order does not mean you can not comply, too.  (See U.C.A. 30-3-10.9(9)).  Parent time is part of the parenting plan provisions.

So yeah, it’s illegal.  But it’s also criminal.  If you keep a kid from a non-paying parent during the time he/she is supposed to have visitation, just because they’re not paying child support, you are committing a crime.  It’s called custodial interference, and the statute is found at U.C.A. 76-5-303.  Nothing in the statute makes an exception for non-payment of child support.  Unless you honest to God believe your child is in danger of abuse at the hands of the other parent, you cannot keep a parent with a visitation order away from his or her kid(s) during the time they have been awarded by the court.

…though it IS located in the criminal code under kidnapping…

A first offense is a Class B Misdemeanor; doing this twice in a 2 year period raises that to a Class A Misdemeanor.  Removing the child from the state when it’s supposed to be the other parent’s time is a third degree felony.  Class B misdemeanors may be punishable by a fine of up to $1000 and prison not to exceed 6 months; Class A–fine up to $2500 and not more than one year in prison; and third degree felonies may be punishable by a fine up to $5000 and up to 5 years in prison (see U.C.A. 76-3-301; 76-3-203; and 76-3-204).  The legislature was serious about parent time.  You should be, too.

So what can you do if this happens to you?  First off–you should be communicating clearly and in writing with a parent who is withholding your kids from you.  Email and request confirmation of the parent time schedule for the week, or the month, or the summer, or whatever.  Be civil.  Keep any responses.  Text the other parent about parent time.  Be civil.  Keep all responses.

If you have a statement from the other parent saying that they will NOT give you the kids for your parent time, call the police.  Request a civil standby, and go to the ex’s place to pick up your kids at the appointed hour.  When the other parent and the kids aren’t there, or if the other parent refuses to allow you to take the kids, make a police report.  Get copies of the police report. Request law enforcement refer the case to the local prosecutor.

File a motion to enforce your parent time order with the court.  This is called an Order to Show Cause.  It does not cost you anything to file, and you do not have to have a lawyer for this.  You can find forms on the Utah courts website to do this.

The caveats on enforcement:  Police and prosecutors won’t always want to charge a parent with custodial interference.  But if it were me, I would make a pest of myself until law enforcement took me seriously.  We’re talking about your relationship with your kids.  They won’t always be kids; you miss out on their growing up, and you can’t get that back.  If they don’t know who you are because the custodial parent is horrible, and you didn’t try harder, that’s partly on you.  Be the adult.  Be brave.

They’re your goddamn kids too.

The Verified Declaration of Paternity: Getting a Bio Dad Legal Rights from Birth

Baby Daddies are NOT disposable.

Because I have either (a) been living under a rock, or (b) have only interacted with unmarried parents when they were fighting, I was not aware of an option biological fathers have to gain legal rights to their children:  They can sign a voluntary declaration of paternity.  If you and your significant other are on good terms when having a baby together, but NOT married, this is a way for the bio dad to be legally recognized as the child’s father right from birth.  What this means is that bio dad has the same rights and responsibilities in relation to his child as bio mom does, as opposed to having ZERO rights in relation to his child.  The parents’ status is as though they were married when the child was born.

What this does NOT mean: A voluntary declaration of paternity does NOT put in place custody and parent time for the parents, any more than being married gives one parent or another automatic custody and parent time orders.  If you and your significant other break up, and you want to have something enforceable to address who gets to see or have custody of your child and when, you WILL need to go through a court action, just like if you’d been married and get divorced.  These are called Custody and Paternity actions (even though paternity is already established).

Dad’s aren’t just for Disneyland, ya know…

An example of the benefits (or hazards, depending on which side you’re on) of having a voluntary declaration of paternity in place:

I recently became aware of a woman who had had a child with a former boyfriend.  They had never been married, and dad hadn’t even been around for most of the kid’s life.  Dad hadn’t paid child support ever, had moved out of state, and went long periods of time without any contact with the child at all.  BUT, when the child was born, mom and dad were still in love, and they signed a voluntary declaration of paternity at the hospital, along with all the other forms they have you sign when you have a baby in a hospital.  It was done in conjunction with the form that you fill out to get a birth certificate issued.

Dad and Mom hadn’t been together in years.  Mom was living with a new boyfriend; Dad was living with a new girlfriend.  An incident occurred in Mom’s life that caused DCFS to get involved with the child.  The State was NOT going to take the child out of Mom’s custody over this, however.  But Dad got wind of it, showed up at the child’s school one day shortly thereafter, picked up the kid, and left the state with him.  He could legally do that because of that voluntary declaration of paternity.  He has just as much right to his child as Mom does; and because there was no court order spelling out custody and parent time at that time, there was absolutely nothing Mom could do about it.

I don’t tell you this story so you can go out, sign a voluntary declaration, and then break up with Mom and steal the baby.  That’s a bullshit move if ever there was one.  But as a biological father, this truly is the best way to gain legal standing in your child’s life from the beginning…and the legal part is actually FREE if you do it at the hospital following the child’s birth.

The one hitch in this:  Both the biological father AND birth mother MUST sign the paternity declaration.  This is not something bio dad can do if mom is not on board with it.  But the point is this:  Getting paternity declared or otherwise legally determined is a big deal when it comes to having the right to be involved in your child’s life, or to even have custody of your child if something happens that keeps mom from being able to care for the child (like dying, becoming incapacitated, going to jail, etc.)  For an example of HOW important it is, just check out my post about Jose Vargas and his fight for custody of his daughter against the State of Utah (DCFS).

Now that you’re convinced that you need to get paternity legally acknowledged, here’s more information about how to actually get it done:

The Office of Recovery Services (ORS) website has information about getting a voluntary declaration of paternity in place.  They have links to the Office of Vital Statistics website for information about how to move forward with this.  (Full disclosure:  Vital Statistics website had some broken links as of the time of this writing, but you’ll have to go through them to do this anyway, so it’s worthwhile to have the links to Vital Statistics as a resource anyway.)

The Utah Courts website also has information about the various ways to get paternity legally acknowledged for the purpose of Dad having rights to his kid, even without a voluntary declaration…you can find that here (and you don’t have Mom on board to do all of them).

And the statute in Utah, the Voluntary Declaration of Paternity Act, can be found here.

Kids need their dads involved in their lives.  Let’s not cut them out, mmmkay?

The reality is that bio dads do not automatically have rights to their kids unless they’re married to bio mom (and she can give away your kid, too, without even telling you about it, if you’re not fast enough off the line…check out this poor guy’s situation).  The state can put you on the hook for child support and you still wouldn’t have any right to see your babies.  If you really want to be involved with your son or daughter, you’ve got to get the legal stuff taken care of.  This is the most serious case of “you snooze, you lose.”  Do it for yourself, but more importantly–do it for your kid.

Things I Care About: Do Unto Others

If you’ve read very many of my blog posts, you kind of start to get a feeling for things that I’m passionate about. Like

Fathers’ Rights.  I deeply believe that the best way to keep our kids whole through the divorce process is for them to have BOTH parents in their lives.  In this world of family law, where custody seems to default to moms, we should not forget that there are a lot of really great dads out there who are heartbroken at losing time to just Be around their kids on a daily basis.  While that may not be practical in a divorce,  that doesn’t mean we shouldn’t work to keep Dad there as often as possible.  And intentionally keeping a loving father from his kids IS child abuse.  We need the courts to take it more seriously, and we need a general shift in societal thinking that defaults away from thinking that single moms are always saints.

and

Domestic Abuse.  By this I mean ALL forms of abuse.  We tend to think only in terms of physical violence as being abusive, but psychological abuse may be far more pervasive, and can take a helluva lot longer to get over.  Victims of abuse tend to be less likely to have custody of their kids, because they tend also to have less access to resources with which to hire a lawyer in a divorce.  Moms who don’t have their kids could well have been victims of domestic abuse in their marriages, and every day of their lives without their kids is just another stab in the heart by the abuser.  We as a community (especially a community like I live in here in Utah) need to lay off judging moms who did not get custody as though they’re some sort of addict or loser.  Heaping misery on the wounded is cruel; we are better than that.

and

Kids.  It seems like in any divorce action, kids always end up being the Big Losers.  They don’t get any choice in their whole worlds getting thrown into chaos; in Utah, they have no choice, really, who they get to live with.  And even if they DID have the option, how do you choose between two parents you love dearly?  I remember being a freshman in college and having a nightmare that my parents were divorcing, and that I was begging them not to, and they wouldn’t listen.  I woke up sobbing, and had to call my mom to make sure that it was just a really bad dream.  The biggest pain in my life is knowing the MY kids never got to wake up from that Really Bad Dream.  I’ve been divorced nearly 12 years, and I still feel horrible every time I think about it (like now, writing this post, and blowing my nose and wiping my eyes.)

and

Fairness.  and Decency.  and Human Kindness. and Equity.  I mean, seriously….whatever happened to these values?  I see them evidenced in some divorce cases, but way more often it’s as though the parties feel a need to feed the fight, and take whatever they possibly can, and hurt the other person, no matter what the cost.  I know I’m way too sensitive (part of why I can’t do this family law thing full time anymore), but I don’t think it’s asking too much for people to apply a little Golden Rule into their lives, even if their lives include ex spouses.  Do unto others as you would have them do to you, ya’ll.  Or better yet, don’t do things to them that you wouldn’t want them to do to you.

And if we would all live by just that one little rule, what a wonderful world it would be.