Archive

Archive for the ‘divorce modification’ Category

Fear

Fear makes the wolf bigger than he isAs a noun, fear is defined as “an unpleasant emotion caused by the belief that someone or something is dangerous, likely to cause pain, or a threat.”  As a verb, to “be afraid of (someone or something) as likely to be dangerous, painful, or threatening.”  Fear can be a huge motivator to either do, or NOT do, a particular thing.  Sometimes fear is based in reality; sometimes, just in the perception of reality.  Fear can be crippling, can prevent one from taking necessary, reasonable action, or can motivate one to take actions that are unreasonable, dangerous, or out of proportion to the circumstances.

So what does that have to do with the law?

Family law actions are emotional things.  While the divvying up of assets, assignment of debts, allocation of custody and parent time, and awards of child support and alimony are black and white things, underlying the entire process is a mess of emotions, largely unpleasant ones.  Anger, pain, rage, desperation, panic, despair, sadness, frustration, helplessness, hopelessness….Swirling in with that horrible mix is Fear.

Fear is a huge part of any major life change….fear of the unknown–what happens with my budget when I’m limited to x amount of dollars a month?  What happens to my retirement goals when I have to pay out x dollars a month?  Why should I have to pay money to this person who is hurting me?  When will I get to see my kids?  What if my ex makes my kids hate me?  How will I pay all the expenses I need to for my kids?  What if I can’t pay the rent on this child support/alimony amount?  How am I supposed to get a job and take care of my kids at the same time? Who’s gonna hire me???  Is anyone ever gonna want to be with me again????

I would suggest that much of the reason people behave irrationally, do dumb things, say dumb things, try to avoid legal action, or any of the thousands of different ways people end up hurting themselves in family cases is out of fear:  “If I avoid the process server, they can’t serve me, and this will all go away.”  “He said there’s a warrant out for my arrest if I try and show up to court….I can’t get arrested!”

Mark Twain CourageWhile legal proceedings can be scary, the best way to deal with them is through Knowledge.  Be proactive–don’t wait until the last minute to seek legal advice.  If you’re scared about a threat made by the Other, ASK someone who knows or can find out about whether there’s any truth to the threat.  If you married a bully, be ready to deal with a bully.  Is it scary?  Hell YES it is.  But avoiding it, hiding, pretending it’s not happening, remaining willfully ignorant will do more to hurt you in the long AND short run than squaring your shoulders and addressing the situation.

Case in point:

I got divorced in 2005.  At the time, I’d been a stay at home mom, had 4 kids, the oldest of which were 8 year old twins, and had no money to my own name other than what my husband brought in.  My marriage had come apart, and my mental health was deteriorating.  I couldn’t stay married and live.  And No, I’m not being dramatic when I say that.  I was scared to death.

So how did I handle it?

I rolled over and died, in a manner of speaking.  My husband hired a lawyer, who drafted an agreement taking everything away from me except for some really minimal bits of Stuff.  I didn’t fight to get custody of the kids I’d been primary caretaker of for their entire lives.  I didn’t even attempt to stay in my house, or get alimony, or ask for half of the rest of our marital, not-insignificant assets.  I signed my husband’s agreement.  That became the terms of my divorce, and gave him custody of my kids.

I flat out gave up.  Out of paralyzing, crippling Fear.  Everything my husband said about how miserable he’d make me if I tried to get even statutory minimums under the law for ANYTHING, I believed.  All the little demeaning, demoralizing comments he threw out at me, I believed.  I was terrified–terrified of a legal fight, terrified of my kids getting hurt any worse than they already were, terrified of losing my mind before it was all said and done…Terrified.  Scared.  Panicked.

And so, out of blind, crippling, numbing, paralyzing fear, I gave up.  Everything–my kids, my home, any portion of 10 years of marriage…all of it.  Without a fight.

Ask me how much I regret that.  And when you do, bring tissues, because I’m going to cry my eyes out on you, even though it’s been nearly 13 years since all that happened.fear-is-the-mindkiller

DON’T YOU BE LIKE ME.  You be BRAVE.  Find your support people.  Face your fears, even if you have to face them quietly, by seeking out help online, or at a victim’s crisis center.  Get real information.  Do a little research.  DON’T GO DOWN WITHOUT A FIGHT!  For the love of all that is good and holy, I am begging you, do not let fear take your life from you.  You can do it.  I swear, it’s hard as hell, but you CAN.  And you Must.

A final Scene from the story of fear in my life:  I am at my Aunt Nancy’s house, curled up on the floor in her bathroom, sobbing out of fear and the misery that came from letting my fear cripple me when it counted most.  She is sitting next to me, on the floor, knees pulled up to her chest, her arm around my shoulders.  She is saying, “I wish I could poor courage into your spine so you can stand.”

I say to you–Imagine me pouring courage into your spine.  Stand up. You may be afraid, but don’t let it control you.  You are not alone.

Be Brave.

Advertisements

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,

229378-Life-Is-Hard.-Its-Harder-If-You-re-Stupid

 

 

Things I Care About: Do Unto Others

Golden Rule Plus

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.Even Better

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

Fathers’ Rights….Why is this even a thing?

Unless you’ve been blessed with the perfect, family-law-free life, you’ve heard about the fathers’ rights movement.  And I have to say–Why is this even a thing??  In this age where we are so concerned with equality under the law, when fathers are being told they need to step up, when it’s been scientifically proven that children with an active father in their lives fare better emotionally and socially, WHY are fathers still having to effectively beg to have an equal part in their children’s lives?  Or in some cases, ANY part in their children’s lives?

In 2014, UCA 30-3-10 was enacted with language specifically stating that the court “shall consider the best interests of the child without preference for either the mother or father solely because of the biological sex of the parent…” (emphasis added.)  How that will be used in the courts remains to be seen.  I have not as of yet seen any caselaw from the Utah appellate court (the appeals system) that mentions the issue of bias based on whether one is the mother or father.

The legislature also enacted statute in 2014 that states what the policy behind any child custody order should be.  This is embodied within U.C.A. 30-3-32, and states in part that,  absent a showing of actual harm to a child, “it is in the best interests of the child of divorcing, divorced, or adjudicated parents to have frequent, meaningful, and continuing access to each parent following separation or divorce; each divorcing, separating, or adjudicated parent is entitled to and responsible for frequent, meaningful, and continuing access with his child consistent with the child’s best interests; and it is in the best interests of the child to have both parents actively involved in parenting the child.” (emphasis added.)

Generally the standard used in determining what type of physical custody arrangement will be in place in any proceeding involving children is Best Interest–as in, what will be in the best interest of the child.  In Utah, best interest has been defined by statute, located at U.C.A. 30-3-34.  These are the factors that the court is to focus on, at the very least, in making a custody determination.

Until fathers are being given at least the same deference as mothers, we have a problem. They are SUPPOSED to be, per our law that was proposed and adopted by our elected representatives.  It is our JOB as citizens to actively engage in making sure changes that have been put in place by the legislature are actively followed by our courts.  Because to quote the Lorax,

lorax

 

For other references and support, check out the Father’s Rights Movement.  

 

UCCJEA: Jurisdiction part 2

Some time ago, in a different blog post, I mentioned the UCCJEA in terms of child custody jurisdiction.  UCCJEA stands for Uniform Child Custody Jurisdiction and Enforcement Act.  This is a uniform law that was drafted at the federal level, in the interest of creating consistency among the states in regards to an issue that can cross state lines–custody of children and custody determinations of children.  All but one state (Massachusetts) have adopted the uniform law in substantially the form is was drafted originally.  In Utah, it’s located at Title 78B Chapter 13 of state code.  The whole point of the statute is to determine which state/jurisdiction has the right to exert its authority over individuals who are trying to enter court orders about custody of children.  One of the purposes is to make sure that a jurisdiction that would be most appropriate for the court case to happen is the one that is making it happen and enforcing the orders that come out of that case.

The basics:

A child must have been present in the state with intent to remain for at least 6 months prior to a custody action being started in that state.  If no custody orders have been entered as to these children ever, being in the state 6 months gives that state home state jurisdiction.  If a parent takes the kids and leaves a state that WOULD have had home state jurisdiction, the other parent can file in court for a custody determination in the state that WOULD have had home state jurisdiction.  In easier language:  If I live in Utah, and my spouse takes my kids and moves to Colorado, I can file for a divorce with custody in Utah any time within the first 6 months the kids are gone, because until they’ve been in Colorado for 6 months, Utah still has home state jurisdiction.  OR, if I’ve been living in Colorado, but take my kids and move to Arizona, and no action for custody determination is filed within 6 months in Colorado, I can file for custody in Arizona.  My kids being in Arizona for 6 months changes home state jurisdiction from Colorado to Arizona.

home-sweet-home

Not always so clear…

Sometimes a child may not have a home state.  In that case, a parent can file where he/she lives for a custody determination, so long as another case hasn’t been filed in the state where the child is currently located.  An example:

I had a case where parents were not and had never been married.  ORS in Utah had opened a child support case for the child, as both parents lived in Utah.  Both parents and the child lived in Utah for 5 years, with dad and his family having significant contact with and interaction with the child.  Mom then moved to Colorado with the child.  She had been in Colorado 11 months when she relocated  with the child to New Mexico.  Dad filed for a visitation order in Utah; by then, child had not lived in Utah in the previous 6 months; HOWEVER, the child technically did not have a home state at all, because she hadn’t been in New Mexico long enough for it to have home state jurisdiction (she’d only been there a couple of weeks).

Colorado would have been the home state, but because neither parent nor the child lived there, and no action had been filed in Colorado, it wasn’t an appropriate state to make a custody determination.  We had a hearing regarding jurisdiction in this case.  The court found in favor of my client, since there were not competing court cases involved (mom hadn’t filed in NM), dad was located in Utah with the intent to remain, and the child had significant connections in the state of Utah.  The Utah court had the right to, and was inclined to, take jurisdiction over the custody determination of this child.

Notice I said the court in Utah “was inclined to” take jurisdiction in that case.  A court CAN decline jurisdiction if it feels that it’s not appropriate to take jurisdiction–like if neither parent lives in that state anymore, but it would still be the home state. Example:  I live in North Dakota.  I move with my kids to Idaho; dad of kids also moves to Idaho.  After being in Idaho long enough for me to file for divorce–which is 60 days–I file for divorce.  Technically Idaho isn’t the home state, and wouldn’t have jurisdiction to make the custody determination.  But none of us, meaning neither parent nor the kids, live in North Dakota anymore.  So ND would likely decline to take jurisdiction, choosing instead to allow Idaho to handle the case, since Idaho is a more appropriate jurisdiction to determine best interests of the kids, etc.

Some cases are fairly cut and dried, like the ones I noted above.  Others….”ees grey area.”  What if the parents were both located in, say, Oregon when they got divorced, but since that time, both parents have moved to other states.  Could the non-custodial parent change the jurisdiction of custody to his state?  Sure.  So long as the custodial parent doesn’t challenge that action, or file her own action in the state that WOULD have home state jurisdiction.  Will it hold up under court scrutiny?  Maybe, maybe not.  The arguments exist to both support it and deny it.  A lot of it comes down to the inclinations of the court, and whether another state has been asked to take jurisdiction over child custody.  And whether Oregon, in this example, will relinquish its right to continuing jurisdiction. Lots of “ifs,” thus “grey area.”

'It's only a gray area if you've got a good lawyer.'

Maybe 😉

Clear as mud?  If you’ve got questions, feel free to message me, and hopefully I can clear that mud to at least dirty water ;).

 

Something Utah got WAAAY Right: A Family Law Help

So I’ve mentioned before that while I think family law is a disaster in Utah, the Utah state statutes for child custody and parent time are fan-frigging-tastic.  I have recommended the use of them to many other people who are in other jurisdictions, just because they’re so orderly, specific, and DETAILED.  And the holiday division makes life SOOOO much nicer for everybody involved during all of the holidays.  However, there are those who are getting static because the other party is saying something like “we’re not in Utah, and I don’t have to follow Utah law, so suck it!”

With that in mind, I provide for you here, for your copying and pasting pleasure, the basic, general rundown of parent time in Utah for kids ages 5 and up, without all the statute formatting that you’d get otherwise.  That way it really DOES just look like a great parent time plan.  And if this isn’t exactly perfect for you in your situation, no worries…At least you’ve got someplace to start from.  I have even just used the holiday division in my cases where the parents have joint physical custody, because it just makes planning so much simpler.

S0 best of luck… and may your co-parenting be peaceful.

Parent time/Over 5 years:

One weekday evening, non-custodial parent chooses, from 5:30-8:30p.m., or from the time school is out until 8:30 p.m.  If the non-custodial parent does NOT choose a day, default day is Wednesday.  If the non-custodial parent chooses a different day, then THAT day is THE day—no switching around without okaying it with the custodial parent. (When school is NOT in session, if the non-custodial parent is available, that mid-week visit can go from 9 a.m. until 8:30 p.m.)

Every other weekend, beginning Friday at 6p.m. until Sunday at 7p.m.  OR if the non-custodial parent is available, from the time school gets out on Friday until Sunday at 7.  When school is NOT in session, the non-custodial parent can have the child for the weekend beginning at 9a.m. on Friday, if he is available to be with the child personally.

A step-parent, grandparent, or other responsible adult designated by the non-custodial parent may pick up the child for visitation, so long as the non-custodial parent will be with the child no later than 7p.m. (assuming a 5:30p.m. pickup time).  The non-custodial parent MUST inform the custodial of who will be coming to pick up the child if not the parent.

Holidays:  The non-custodial parent will have the child for holidays as described below.  The custodial parent will have the child on the opposite schedule.

ODD YEARS EVEN YEARS
Child’s birthday on day BEFORE or AFTER, 3pm to 9pm Child’s birthday ON THE DAY OF the birthday, 3pm to 9pm
MLK Day weekend, from Friday 6pm-Monday 7pm President’s Day weekend, from Friday 6pm-Monday 7pm
Spring Break 6pm the day school lets out to 7pm the day before school resumes Memorial Day weekend, from Friday 6pm-Monday 7pm
July 4 beginning 6pm the day BEFORE the holiday until 6pm on the day AFTER the holiday Pioneer Day beginning 6pm the day BEFORE the holiday to 6 pm the day AFTER the holiday
Labor Day weekend from 6pm Friday to 7pm Monday Columbus Day from 6pm the day BEFORE the holiday until 7pm ON the holiday
Fall School break (if applicable) from day school is out at 6pm until day before school starts again at 7pm Halloween on the day it’s celebrated (if not on the 31st) from after school until 9pm, or if NOT a school day, from 4pm until 9pm
Veteran’s Day from 6pm day BEFORE the holiday until 7pm ON the holiday Thanksgiving holiday from Wednesday at 7pm until Sunday at 7pm
The first half of the Christmas school holiday from the 6pm the day school gets out until 1pm on the day halfway through the holiday period if there are an EVEN number of days in the vacation, or until 7pm if there are an ODD number of days The second half of the Christmas school holiday from time indicated in ODD years description until 6pm on the day before school resumes—the point being to equally divide the holiday between both parents
   

Father’s Day always with Dad, Mother’s Day always with Mom, from 9a.m. to 7pm of the holiday for each parent.

Summer extended parent time—4 weeks total for non-custodial parent, 2 weeks of which is uninterrupted parent time.  (During the “interrupted” time, the custodial parent gets a mid-week visit as described above.)

Custodial parent also has 2 weeks uninterrupted parent time, when non-custodial does not have weekends or midweek visits.

**For children under 5:  The only difference is in the extended parent time in the summer. 

18mos-3 years: 2 one-week periods, separated by 4 weeks, at the option of the non-custodial parent, one of which is uninterrupted. (custodial parent has 1 week uninterrupted as well)

3yrs-5yrs:  2 two-week periods, separated by at least 4 weeks, at the option of the non-custodial parent.  1 two week period is uninterrupted. (custodial parent has 1 week uninterrupted as well.)

starting-line

Gotta start somewhere…

The Happy Childhood After Divorce: Myth or Reality?

I got divorced a very long time ago…11 years this past March, actually.  The State of Utah had instituted at some time prior the requirement that parents who are divorcing take a divorce orientation and parenting in divorce class.  They’re technically 2 classes, but they teach them one after the other in a 3 hour block.  My divorce was extremely traumatic for me, but I remember that class being a bright spot.  Not because I actually REMEMBER any of it, just what the takeaway was for me:  My kids did not have to end up being a statistic.  They could turn out just fine, being totally well-adjusted, even though their dad and I were no longer married.

The classes started out with the terrifying statistics about how kids of divorce have a higher chance of being drug addicts, having poor self-esteem, acting out, getting poor grades, and on and on and on.  The parade of horrors of kids in divorce, if you will.  But then the kicker–what can I do as a parent to keep this from happening?Security blanket

If you google this, you’re going to find a number of great articles.  I’m pulling my information from this Psychology Today website article, by Wendy Paris.  First off, what children need to thrive:

  • Children do well when they have good relationships with both parents or primary caregivers, adults who basically get along.  But those parents don’t need to be married or living in the same house.
  • Children benefit from emotionally stable parents—adults who are recuperated enough, in the case of divorce, to focus on the basic job of parenting, including establishing stability, exercising fair discipline, providing love and being emotionally responsive.  But those parents need not be married or living in the same house.
  • Children need adequate resources such as food, safe housing, and social support.  But they don’t need a mansion with every toy available, and those resources can be provided by parents who are not married or living in the same house.

Ms. Paris’ info comes from a 20 year study done regarding children of divorce, that was conducted by child development expert and Cambridge University professor Michael Lamb.  Solid data, not just Wishes and Dreams.  So what can you do to make sure that your kids are in the 80% of divorced kids who turn out just fine (and yes, that actually is the number–more are fine than not)?  Back to Ms. Paris’ advice:

Parents make home

 

Co-parenting.  It’s not a competition between two homes. It’s a collaboration of the parents doing what’s best for the kids.  –Heather Hetchler, www.cafesmom.com

 

Five Principles for Positive Co-Parenting:

  1. Because we know that high conflict between the parents is one of the most damaging experiences for children, we can foster cooperation with our co-parent, and work to squash conflict.
  2. Because we know that children benefit from stability, we can focus on establishing new routines that work in our newly structured lives.
  3. Without a spouse around to blame for, well, everything, we can let divorce challenge us to be a better, more focused parent and to bring our personal strengths to our child-rearing.  We also can look for ways that the very characteristics of our ex that annoyed us in marriage (“He’s such a neat freak!” or “All she cares about is hiking!”) may benefit our children; how great to have one parent who likes the outdoors.
  4. We can create positive moments for our children that have nothing to do with the state of their parents’ love life. We can foster engagement in outside activities and with other supportive adults.
  5. Because we understand that being emotionally present for our children rests on our own recuperation, we can prioritize taking care of the care-givers, ourselves.

This requires two parents who are actually willing to put aside their own pettiness and hatefulness for the Other.  If 80% of kids turn out all right, there must be a LOT of parents who are capable of doing this.  Which means YOU CAN TOO.

In my practice of law, I pretty much only dealt with the ones who were at each other’s throats; they were either deeply entrenched in their own desires in the divorce, or they were trying to enforce the decree they already had in place.  I really wanted to write something positive in my blog today, and after my experiences with other people’s divorces, my own in the very early stages, and my husband’s, I needed a break from conflict.  And ya know what?  There’s a lot of good out there that can be reality in a family with divorced parents.  It can be a reality in your life as well…  Happily Ever After, in real life, without the ideal.

That’s something to smile about :).

https://www.facebook.com/plugins/video.php?href=https%3A%2F%2Fwww.facebook.com%2Fsherryischerry%2Fvideos%2Fvb.100001002740529%2F984276941615721%2F%3Ftype%3D3&show_text=0&width=400

(If you haven’t seen this video of a little child named Tiana discussing co-parenting with her mother, you really ought to…and a little child shall lead them…)

 

%d bloggers like this: