Archive for 'Child Custody'
Alabama Grandparent Visitation Statute Held to be Unconstitutional
Posted on 16. Dec, 2011 by Alabama Divorce Lawyer, Jim Jeffries.
The Alabama Supreme Court held in June of this year that the State’s grandparent visitation statute (§30-3-4.1, Ala. Code 1975) is unconstitutional and therefore unenforceable. As a result, there may be no viable way for grandparents to obtain visitation rights with their grandchildren through a divorce court.
In Ex parte E.R.G., [Ms. 1090883, June 10, 2011] ___ So. 3d ___ (Ala. 2011) the Court found that the right of a fit parent to determine, among other things, who has contact with their child is a “fundamental” right and therefore any law interfering with that right must pass the “strict scrutiny” test to be constitutional. This test is the most stringent one a court applies to determine the validity of a statute and our Supreme Court held that it was not met in this case.
The question of how this ruling affects older cases where grandparent visitation has already been awarded was recently addressed in Burnette v. Burnett, [Ms. 2100935, December 9, 2011] ___So. 3d___ (Ala. Civ. App. 2011). The Alabama Court of Civil Appeals held that a change in substantive law, such as a finding that a statute is unconstitutional, should be applied retroactively. As a result, the court overturned a previous award of visitation to grandparents.
Interestingly, the Alabama Legislature amended the grandparent visitation statute to make it more difficult for grandparents to get visitation. The court in Burnett mentioned this and specifically stated that they were not addressing the question of whether or not the amendments to the statute were constitutional since they were not in effect at the time of that decision.
What does this mean for parents and grandparents dealing with visitation issues? It’s good for parents and definitely not good for grandparents. Any parent who does not want to continue sending their child to visit grandparents can now file a motion to terminate that visitation order and have a good chance of succeeding. Grandparents who are still willing to fight for visitation will have to rely on the recent amendments to the statute and be willing to defend the constitutionality of those amendments until our courts determine whether the statute will survive.
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Transportation Costs to Exercise Visitation Are a Legitimate Reason for a Court to Reduce a Child Support Obligation in Alabama
Posted on 10. Mar, 2011 by Alabama Divorce Lawyer, Jim Jeffries.
In Alabama, the calculation of child support is governed by Alabama Rule of Judicial Procedure 32. ”Rule 32″ as it is called contains very specific instructions for how a non-custodial parent’s child support is to be determined. Once the calculation has been completed, judges are obligated to order that parent to pay that specific amount without deviation unless there is a specific reason to make the ordered amount higher or lower. One of the reasons to deviate specifically mentioned in Rule 32 concerns the situation when one parent lives far enough away from their children that they incur substantial costs to travel to see their children. These days travel to see your children in their hometown can get expensive with gas or airplane fares rising every day, not to mention hotel costs and meals at restaurants. This can be an important issue to raise in several situations.
If you are the non-custodial parent and you have to move away from your children, then this can be the basis of a motion to reduce your child support. That is especially true if you are going to be paid less money to work at your new job. In that case you can request a reduction for both reasons. Of course, anytime you are divorced and there are children involved, there is always a chance that you will have further disagreements that result in potential litigation before a judge. As a result, documenting these extra expenses with receipts, bank records and/or credit card statements is essential to giving yourself a chance to get the judge to agree with your position. Remember, the person paying child support is always the one that bears the burden to prove payment of support no matter what form.
Travel costs can also be important if you are the custodial parent and you are the one that is moving. If you notify your Ex that you intend to move and they object, litigation attempting to get a judge to allow the move can be complicated, time consuming and expensive. Offering to reduce the child support they are paying as a way to get them to agree to the move is one of many tools you can use to settle the dispute.
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Skype and “Virtual Visitation” in Alabama
Posted on 25. Feb, 2011 by Alabama Divorce Lawyer, Jim Jeffries.
I was walking down the hallway of my house the other night and I heard my 14 year old daughter having a conversation with what sounded like another boy in her room. It was late and I knew no one was there but, of course, I immediately headed that way. When I opened the door to her room I saw her sitting on her bed with her new school laptop in front of her and she was talking to and laughing at her computer.
It turns out she was having a Skype video conversation with her Uncle who lives in Boston, Massachusetts. As I leaned in to view the screen I saw my brother-in-law and also saw myself in the bottom of the screen. I waved and said hello and he did the same back to me. Amazing!
I have had several opportunities to put provisions in agreement divorces or relocation case settlements that obligate one party or the other to have broadband connections to facilitate communications with the other non-custodial parent but this was my first personal experience with it in video form. It really was a great way to communicate and was much better than a simple phone call would have been.
Alabama has no statutory obligation requiring a court to consider Skype or other forms of ”virtual visitaion.” I am also not aware of a published opinion where this was required by a judge after a hearing. However, with the economy being in the condition it is, causing both custodial and non-custodial parents to consider relocating to find jobs, the technology that allows this sort of communication can help improve an otherwise bad situation. The technology has defenitely come a long way. Video conversations are certaily no substitution for spending time with your children but they absolutely can help give the feeling that your children are not so far away.
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A Kid’s Guide to Divorce
Posted on 05. May, 2009 by Alabama Divorce Lawyer, Jim Jeffries.
Divorce and children
Just a short note today about a nice divorce resource I found. If you have read the Alabama Family Law Blog long, you know that I care a lot about the kids of divorce. Having been one myself, I am always concerned about how my client’s divorce case is affecting their children. That is why I was excited to find this divorce resource on the web. It is an article called, A Kid’s Guide to Divorce. It is really written to the child (probably age appropriate for middle school and up). But, even if you have younger children, you and your spouse should read the article. It may give you some insight on how your children may be thinking as your family goes through divorce.
I have mentioned it here before, but frequently the children need to be reminded that the fact that mom and dad are getting a divorce, does not mean that they don’t love the kids. The article correctly puts it this way, “It’s really important for kids to know that just because parents divorce each other, they’re not divorcing their kids. Some kids think that if their parents are divorcing, it means their moms and dads will want to leave them, too.” These are the types of things you need to know go though your child’s head as you go through a divorce.
In Alabama, many of our schools offer what is called a Rainbows program. It is a divorce support program for children. I have heard a lot of good things from my divorce clients about that program. If you are facing divorce, I encourage you to see if your local school offers that or a similar program and/or to consider a therapist if your child is having difficulty adjusting to the divorce.
photo credit: Pink Sherbet Photography
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Alabama Court Overturns One Year with Mom, One Year with Dad
Posted on 03. Apr, 2009 by Alabama Divorce Lawyer, Jim Jeffries.
The Alabama Court of Civil Appeals recently overturned a trial court that awarded the parties to a divorce joint physical custody of their child with the mother to exercise custody one year and the father to exercise custody the next year. The case is Headrick v. Headrick, Case No. 2030690 (Ala. Civ. App. June 17, 2005).
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Articles on Reducing Conflict in Divorce
Posted on 03. Apr, 2009 by Alabama Divorce Lawyer, Jim Jeffries.
I recently came across this site that contains a number of articles on reducing conflict in divorce. They are written by Canadian social worker and counselor, Gary Direnfeld. There is a wealth of great information here, and I agree with most everything that I have read of Gary’s so far (though I’ve not yet read all of the articles). I found particulary helpful those artices dealing with keeping the children out of the divorce conflict as much as possible. I hope they are helpful to you as well.
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It is Up to Parents
Posted on 03. Apr, 2009 by Alabama Divorce Lawyer, Jim Jeffries.
There is nothing worse in the area of divorce and family law than to witness the disasterous effects that a divorce can have on children. Of course, it doesn’t have to be that way. A big part of our focus is devoted to trying to reduce the pain of the divorce process by taking a more proactive, collaborative approach. This is especially important when children are involved.
With that in mind, this may be the most important blog post I ever make. I want to introduce a website I recently came across. It is free and it is called www.uptoparents.org.
This site allows parents going through a divorce to shift their focus to the well being of their children. Each parent separately reviews a list of commitments and makes a checkmark beside each one that (1) they recognize as important to their children’s protection and (2) they are ready, willing and able to observe.
After that, the site generates a list of Agreed Commitments (the ones that both parties separately agreed were important for their children and to which they were committed to observing).
This is a powerful exercise that can make a major beneficial difference in the lives of the children of divorce. By completing the exercises and making these commitments each parent shifts their focus from conflict and competition to a cooperative parenting approach – and that is what each child of divorce needs and deserves.
I sincerely hope that any parent reading this that is going through a divorce will take a look at the site. Then, if your interest is truly what is best for your children, I hope that you and your spouse will complete the exercises and make these commitments for the sake of your children.
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Create a “conflict-free zone” for children of divorce
Posted on 03. Apr, 2009 by Alabama Divorce Lawyer, Jim Jeffries.
My friend and fellow family law blogger, Grant Griffiths of the Kansas Family and Divorce Lawyer, has an excellent post today from the Billings Gazette. The article address steps that parents can take to protect their children from the conflict that often arises in the context of a divorce. It should be mandatory reading for all parents involved in a divorce.
Here are a couple of my favorite tips for divorced or divorcing parents from the article:
- Treat the other parent with respect and avoid making derogatory statements about the other parent in the presence of your child.
- Avoid arguments, scenes, threats, fights and violence, especially when your kids are present.
- Reassure kids they can still count on both parents.
- Settle on a workable parenting plan that gives kids access to both parents.
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New Alabama Case re: Religious Practice & Custody Rights
Posted on 03. Apr, 2009 by Alabama Divorce Lawyer, Jim Jeffries.
The Alabama Supreme Court recently entered a ruling in the case, Snider v. Mashburn which affirmed a trial court’s change of custody from Mother to Father based on the conduct of Mother’s new husband, providing an extraordinary discussion of the limits of a trial court’s ability to consider religious practices and training when those practices alienate children from one parent.
The Family Law Prof Blog has a very good, though brief, discussion of the case that can be found here. Also, the Birmingham News ran a story about the decision here. – Thanks to Ben Stevens of the South Carolina Family Law Blog for the tip on the article.
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How to Make the Holidays Easier on Children in Separated Families
Posted on 03. Apr, 2009 by Alabama Divorce Lawyer, Jim Jeffries.
The Bozeman Daily Chronicle recently published an article entitled “Holidays tough on children in separated families.” The article describes how children whose parents are separated or divorced often face great tension trying to juggle visitation schedules and the stress that often come with it. This is particularly the case where the parents fail to communicate and work with one another for the children’s interests.
The article offers several tips for making the holidays more enjoyable:
1. Settling things in advance avoids last-minute disappointments and anxiety.
2. If you’re splitting the holiday, make the switch at a reasonable hour. Midnight on Christmas Eve isn’t a reasonable hour.
3. If you and your ex-spouse can’t agree, consider a mediator, someone “who will help you play nicely in the sandbox.”
4. When negotiating, realize that neither side gets 100 percent. Compromise is key and “don’t use your kids as trophies.”
5. Consider setting up an alternative holiday a few days before or after Christmas. Have two celebrations.
6. Encourage your child to call the absent parent during the holiday and make sure you leave the room and give him or her some privacy when the call takes place.
7. Never badmouth your ex when the child is within earshot. Kids see themselves as half mom and half dad. Criticism of a parent breaks down their self esteem. Plus, “kids think they have to fix their parents’ emotions.”
8. Don’t grill the kids about what happened at the ex’s house. Let them volunteer information if they want to.
9. Watch out for manipulation by the kids trying to “milk” the holiday, especially as they grow older. That’s another reason why it’s important to communicate directly with your ex.
10. With older children, be sure to ask for their input. Ask them what their ideal Christmas would be then work out what is possible. The adults need to make the decisions, but the kids need to feel like they’ve got a voice.
Thanks to Ben Stevens at the South Carolina Law Blog for the tip on this article. You can read the rest of the Bozeman Chronicle article at this link.