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.

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.

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.

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

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.

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.

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.

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.

This bill would obviously mark a major change in family law in Alabama, and I predict it would set off an avalanche of new custody modification petitions. If you have an interest regarding the outcome of this legislation, I urge you to contact your local state legislators and voice your opinion.

Often the parents get so caught up in the emotion of the divorce, they overlook the effect that their behavior is having on their children.
In this article in the Kansas City Star, Gary Kretchmer, director of domestic relations division in Johnson County Missouri, outlines the worst things and the best things that divorcing parents can do to a child. His advice and experience echoes mine, and I commend it to any parent that is going through a divorce. Keep it in mind and your children will benefit greatly. Ignore it and they will suffer the consequences.

Worst things a divorcing parent can do to a child:

• Criticize the other parent.
• Make the child feel guilty for loving the other parent.
• Use the child to spy on the other parent.
• Ask the child to serve as a messenger to the other parent.

Best things a divorcing parent can do for a child:

• Respect the other parent.
• Use a cooperative rather than competitive spirit with the other parent.
• Try to rebuild at least a level of trust.
• Work on communicating well.

However, children too often become yet another thing parents who are already fighting disagree over. Too frequently, I have seen the parents put their children in the middle of their disputes.

When determining the custody of the minor children, the guiding factor should be what will promote the best interests and welfare of the children.

If the issue of custody and visitation is decided by a judge, the court has significant discretion. Parents creating their own agreement for the child’s welfare would make sense. However, if parents cannot come to an agreement, it is a good idea to consider mediation. If there is still no success, a decision will have to be made in court. Parents should carefully consider that though a judge may have good intentions, he or she does not have any personal knowledge of the child and your family’s situation. So, a court deciding the issue of custody should always be the last resort.

There are numerous factors in a court decision about child custody, including all the things that could effect the development of the physical, mental, emotional, moral, and spiritual faculties of the child. The court will also consider the caretaking abilities of each parent, as well as how the child bonds with each parent and other siblings and which parent has been the primary caregiver. However, in the end, the Judge is given very broad discretion in applying these custody factors.

Remember that when it comes to child custody, making an informed choice is a smart choice. And, both parents should do everything possible to make the entire process as easy on the children as possible. Remember that no matter how much pain your spouse has caused you, your children don’t and shouldn’t understand that. They love and want to be loved by both of you. For their best interests, as hard as it might be, don’t let your ill feelings for your spouse be felt by the children. You’ll be thankful later.

Researchers at Penn State University recently conducted a study in which they looked at interviews of high school students before and after a period of five years. The responses of teenagers whose parents were married were compared to the responses of teenagers whose parents had separated during the five-year period.

In the initial interview, 71 percent said that they were close to their mothers and 57 percent said they were close to their fathers. After five years, 38 percent of the teenagers with parents that were still married reported being close to their fathers. However, among the teenagers with parents who split up, only 25 percent said they were close with their fathers.

The study, which was published in the Journal of Marriage and Family, said that the closeness of teenagers to their mothers had no difference between ones whose parents were together and ones whose parents had divorced.

It was suggested by the authors that the difference was fathers being more likely to be separated physically from their children after a divorce, and they were often already not as close to the children while still married.

Here is the link to the story about the study. It is hard to tell how valid the results were. But, I can say from personal observations that I have frequently seen fathers and their children drift apart after divorce. This happens for a variety of reasons.

When you couple that with all of the sociological evidence that we have which recognize the importance of fathers in the lives of their children, the inevitable conclusion is that we must be doing all we can to make sure that fathers stay involved with their children post-divorce. The responsibility for that falls not only on the dads themselves, but also on the mothers, the Judges, and the lawyers involved in these custody cases. The stakes are simply too high not to do so.

Laura Morgan has complied a survey of each state’s relocation laws. The survey can be found here. Alabama enacted a relocation statute a little over a year ago. You can access it through this page by looking up Title 30, Chapter 3, Sections 160-169.10.

There are many cases currently being litigated on this issue and I think it is a fair assumption that this area of the law will continue to evolve as the Appellate Courts are asked to determine the constitutionalality of these statutes and as Legistatures continue to look at this vexing problem.

I have recently had parents on both sides of this issue asking me about what the law in Alabama is about “move away” or “relocation” cases. Non-custodial parents are wanting to know if they can keep their former spouses from relocating and moving with the children. Custodial parents are wanting to know if they have to get the non-custodial parent’s agreement to move.

There is a statue in Alabama called the “Alabama Parent-Child Relationship Protection Act.” You can find it at Alabama Code Section 30-3-160 which can be accessed this link (you will have to select Title 30, then Chapter 3, then Sections 160-169).

Essentially, the law requires a custodial parent to give written notice to the non-custodial parent 45 days in advance of any intended move of over 60 miles. The notice that is required is very specific regarding what must be included and the form it should take (for example, it must be sent certified mail), so review the statute carefully to make sure it includes all of the elements that it should.
Once the notice is given, the non-custodial parent then has 30 days to file a written objection with the Court. If such an objection is filed, the Court will then set the case down for a hearing for the Judge to determine whether the move is in the best interests of the child or not.

This is still a relatively new law. So, it may yet be challenged at the appellate level. But, for now, these are the rules within which parents must work.

She explained that she and her husband were having difficulties but neither of them have filed for divorce yet. She received a job offer out of town and wanted to know if she had to comply with the notice provisions of the relocation statute or if she could just move with the child and accept the position.

Here is my response to her:
“This is a good question. The relocation staute does not apply to your situation because there has not yet been an order giving either of you specific custody or visitation rights and there is no divorce case pending.

So, technically, you do not have to comply with the notice provisions of the statute. However, (and this is a big however) each of you as the parents have equal rights to access to your child.

So, if you just pick up and move without his consent, this could cause problems for you. For example, he could file for divorce in Montgomery saying you took the child and ran with no notice to him and ask the court for temporary custody of the child, or at a minimum for a court order to force you to return with the child. Then, it would be up to your divorce judge.

Because there are so many variables that could come into play and because the ramifications are great, I strongly suggest you consult with a local divorce law specialist. That way, they can advise you specifically based on all of the facts that you can explain to them. I would talk to a Montgomery lawyer because they are more likely to know about how the local judges their would view this issue.
Best of luck to you.”