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Coordinating Parenting Time After Judgment October 30, 2007

Posted by shelleycm in Child Custody.

No matter how comprehensive a parenting time agreement is — and attorneys do try to make them as specific as possible — even after the custody or dissolution judgment is in effect, there are almost always conflicts about parenting time for the non-custodial parent.

Here are some common examples:

  • when the parenting time agreement provides a child’s illness is the only “excuse” for missed time, then what happens if the custodial parent with a duty to deliver the child to the drop-off site is also so sick he or she can’t drive?
  • when all of the child’s clean underwear/good clothing has ended up at one parent’s home?*
  • an important family event –wedding, funeral, milestone birthday — occurs on the other parent’s “day?”
  • the child never completes school work while at the other parent’s home?

One question parents often have is whether the other parent is in contempt of court for minor infractions of the parenting plan. Technically the answer is “yes.” Should you march into court? The answer is probably “no.” Most courts don’t like to play “he said, she said” every time a conflict arises, and prefer for parents to determine a solution on their own.

Ideally, a conflict would simply never arise. Parents who work hard to be understanding and flexible have the fewest issues with their parenting time agreements. If the other parent calls and explains he or she will be late, it’s a good idea to say, “Sure, that’s fine,” knowing that the next time you have a problem, he or she will be much more likely to also be understanding. (However, if you don’t have faith that your ex will be understanding, you might want to keep a private log of the times he or she is late and the times you’ve let it slide. You might want this as evidence at a later date.)

Another good idea is to keep a shared calendar online, like on Google Calendar. You can put in each parent’s parenting time on the calendar, the child’s school and extra-curricular schedules, and important family events. Include reminders with the events, so that you both will get emailed when they’re coming up. This way, neither party will be blindsided.

Parents who are unable to pick up or drop off the child should get in contact with the other parent to give them the option of picking up or dropping off the child themselves. If one parent is sick, he or she should call the other parent to give him or her the option of caring for the child while the other party recovers. (This, understandably, generates a tremendous amount of goodwill.)

Another good idea is to keep a “Parenting Time Notebook.” Wherever the child goes, the notebook goes with him. (I recommend a bound composition or lab notebook, from which it’s very difficult to tear pages out.) On the first page, put critical information: the numbers for emergency contacts other than the parents, the child’s school address and telephone, the child’s pediatrician, and of course, numbers for each parent. Then, as the child travels from home to home, each parent records how the time has gone, if the child is or isn’t feeling well, and if the child has or doesn’t have any schoolwork or permission slips that should be reviewed.

Even if the other parent doesn’t buy into the idea of the parenting time notebook, keep it up. It’s a good record of how things are progressing for your time with your child, and the other parent may eventually see the merit of keeping it.

*Don’t laugh — it happens. I was pretty surprised the first time a client called about it, though.

Breaking Out October 25, 2007

Posted by shelleycm in News.
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This Real Simple article fits in the category of “while we’d like your business, we sincerely hope you never need to call us.”  (But if you need to, our phone number is over there on the right.)

Essentially, the article identifies a number of ruts relationships may fall into — like arguing the same way about the same things all the time, or conflicts about money, or communication, or sex — you know, the usual relationship suspects.  What makes the article blogworthy are some of the suggestions, which I’d not seen before, from my Tiger Beat days to my Cosmo days.  For example, they suggest a book club for two to spice up romance (seriously!), or going to an amusement park to spice up your sex life, or not talking so much when you’re having communication difficulties.

It’s worth a read!

(Un)Common Divorce Myth: Court-Appointed Counsel October 25, 2007

Posted by shelleycm in Dissolution, Myths.
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I had no idea people thought they were entitled to court-appointed counsel in anything other than criminal cases until I spoke with a friend who is a domestic relations clerk. He jokes that he must have a room in the back just chock full of lawyers waiting to be assigned by the way people imperiously demand court-appointed counsel in their custody or marital dissolution case.

Let’s debunk this myth, and quickly: in family law, you don’t get an attorney just because you need one and can’t afford one. In Oregon you may, with the court’s permission, get your filing fees and service costs waived or deferred, but that’s it.

This isn’t any sort of lawyer-conspiracy, but a matter of economics. The state can’t pay for attorneys for everyone who wants to get divorced or determine child custody — it’d be a huge expensive for something that is, on the face of it, entirely optional (it’s not at all like the court-appointed counsel someone would get in a felony case, when they’re facing prison time). It’d be kind of like requiring the state to pick up the tab for elective surgery.

So: having an attorney for your divorce? It’s a good idea — but it’s not the law.

New Case Law: Custody and Adolescent Angst October 24, 2007

Posted by shelleycm in Child Custody, Legal Developments, Modification.
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On October 17, 2007, the Oregon Court of Appeals decided an interesting child custody modification issue in Connelly and Connelly, ____ Or App ____ (2007). When a custodial parent faces adolescent behavior problems, can he or she lose custody of the children in favor of the non-custodial parent?

In initial child custody determinations and subsequent modifications, a court will look at the “best interest of the child” standard. Often a professional child custody evaluator will be hired to assess the situation and to make recommendations to the court.

In the Connelly case, Mother and Father married in 1989, had two children, S and T, and then divorced in 1995. Mother had been the primary caregiver for the children, and she received custody of S and T. Father had typical parenting time: weekends, holidays, summer vacations.

Ten years after the divorce, Father went back to the court to ask for custody of both children, arguing that because Mother left the children unsupervised, they had become “violent and disruptive” and were doing poorly in school.

The court ordered a custody evaluation. After her interviews with the family, the evaluator determined custody should remain with Mother, although both parents were inappropriate with each other as regarded the children. Both children preferred to live with Mother, and if they moved to Father’s, they would have to change schools and friends.

However, the court transferred custody to Father, finding that there had been a substantial change in circumstances and that a change would be in the children’s best interests. The court told father that he hadn’t “had a chance yet, and something dramatically different has to happen here.”

Mother appealed, arguing that any substantial change in circumstances must relate to “the capability of one or both parents to care for the child.” State ex rel Johnson v. Bail, 325 Or 392, 398, 938 P2d 209 (1997).

The Court of Appeals agreed, saying that the record did not indicate that Mother’s “lifestyle or circumstances” had significantly changed. The Court rejected the contention that because Mother did not communicate well with Father, that this was a substantial change sufficient to modify custody, because both Father and Mother had communications issues, with the bulk of the problems tracing back to Father. (However, in the past, the Court has found that poor communication by the custodial parent may be sufficient.)

The Court also wrote that although the children had been experiencing social and psychological problems while living with Mother, it is “not the child’s conduct – but instead the custodial parent’s effort – that determines whether the parent” has inadequately cared for the child.

New Resource for Divorcing Women October 15, 2007

Posted by shelleycm in Child Custody, Child Support, Dissolution.

Check out the Modern Woman’s Divorce Guide for wonderful interviews with attorneys, articles, and resources!

News: Britney loses temporary custody of children October 3, 2007

Posted by shelleycm in Child Custody, News.
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We here at the Oregon Divorce Blog confess that we occasionally — OK, sometimes — follow the antics of celebrity disaster Britney Spears. It was our luck today, though, that Britney’s woes provided a window into the world of child custody.

Britney was in court in California today, along with her ex, Kevin Federline, at a hearing regarding custody of her two sons. On Monday, the judge in the case ordered Britney to turn over the boys to Kevin, after Britney didn’t appear for a drug and alcohol test. CNN noted that both Britney and Kevin will have to complete parenting classes, as well.

Oregon courts operate much the same way. If there is an action pending before the court (either because a petition for dissolution or custody has been filed, or because a dissolution or custody determination has already been granted), one party may apply for temporary emergency custody when a child is in danger. ORS 107.097(3) provides that:

(3)(a) A court may enter ex parte a temporary order providing for the custody of, or parenting time with, a child if:

(A) The party requesting an order is present in court and presents an affidavit alleging that the child is in immediate danger; and

(B) The court finds, based on the facts presented in the party’s testimony and affidavit and in the testimony of the other party, if the other party is present, that the child is in immediate danger.

(b) The party requesting an order under this subsection shall provide the court with telephone numbers where the party can be reached at any time during the day and a contact address.

(c) A copy of the order and the supporting affidavit must be served on the other party in the manner of service of a summons under ORCP 7. The order must include the following statement:

____________________________________________________________________________ Notice: You may request a hearing on this order as long as it remains in effect by filing with the court a hearing request in the form described in ORS 107.097 (5).

ORS 107.097(3).

If the other party requests a hearing, the court must make every effort to grant the hearing within 14 days (and no later than 21 days). Id.

In Oregon, the parties to a custody dispute (whether or not the parents are married) are also, like Kevin and Britney, required to take a parenting class. Here, the parties must either complete the classes before a judgment is entered in the case, or the court must specifically waive the requirement. Each county mandates its own program, although parents may ask the court to allow them to take online classes if they have special circumstances that would make attending local classes difficult.

New Case Law: A promise is a promise October 3, 2007

Posted by shelleycm in Dissolution, Legal Developments, Property Division.
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Last month, the Oregon Court of Appeals ruled an agreement to settle a case was binding under a very unusual set of circumstances.

John and Diane Baldwin divorced in 1993. As part of the divorce, the court divided John’s PERS account. The next year, John married Karen. In 2005, John died, and Karen became his estate’s personal representative.

Diane and Karen disagreed about how to handle the marital portion of John’s PERS benefits. Karen asked the court that dissolved John and Diane’s marriage to clarify its 1993 order. When the court declined to clarify, Diane was left with 100% of John’s marital portion of his PERS benefits.

Karen filed a notice of appeal from the trial court’s order. After a settlement conference, Diane and Karen’s attorneys worked via email for months towards a resolution of the case. Finally, Karen hired new counsel and decided to go ahead with the appeal.

Diane moved the court to dismiss Karen’s appeal, because Diane said the women had reached a settlement agreement that should be enforced. Karen disagreed.

The court sided with Diane. It wrote that a settlement agreement is a contract and is governed by contract law. Baldwin and Baldwin, ____ Or App ____ (A130180). The issue of whether or not a contract exists is an issue for the court to decide. Id. The court wrote:

As often stated, Oregon subscribes to an objective theory of contracts, which means that whether the parties entered into a contract does not depend on the parties having the same subjective understanding of the agreement. Rather, it depends on whether the parties agreed to the same express terms of the contract. Newton/Boldt v. Newton, 192 Or App 386, 392, 86 P3d 49, rev den, 337 Or 84 (2004).

In this case, the court concluded the parties had agreed to the same express terms, and that the parties had haggled over some of the details was immaterial to the actual agreement. The email exchanged between Diane and Karen’s attorneys is what made the contract. Baldwin, supra. The court wrote that a different result would have been reached if Diane and Karen had disagreed about the primary issues at stake. However, because the material issues had been agreed upon, the women had formed a settlement contract. Id.

The moral of the story? This case shows just how important it is for a client to know what his or her attorney is doing on his or her behalf. It also demonstrates for attorneys that even an informal discussion via email can give rise to a binding settlement agreement for their clients.