Archive for 'Settlement Options'
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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What is mediation?
Posted on 24. Apr, 2009 by Alabama Divorce Lawyer, Jim Jeffries.
Mediation is a process where a neutral third person (in Alabama it is usually a lawyer trained in mediation) assists the parties in resolving the issues in their divorce case. Mediation is not binding, which means that the mediator does not make decisions about the case. The mediator’s role is to try to facilitate an agreement between the parties. So, unlike a trial, the final decision making authority lies with the parties (with counsel from their lawyers).
Mediation can be very effective and has successfully led to the resolution of many cases. There are some financial costs involved. So, if you think it may be appropriate for your case, I would get your lawyer’s opinion about whether they agree that your case is a good candidate for mediation or not.