LegalMatch: Family Law

"My Ex Won't Let Me See My Kids!"

Not all child custody arrangements work out the way we want them to. Visitation hours are too rigid, we don’t see our kids enough, rescheduling becomes a laborious chore… But even these frustrations become minor annoyances in the nightmarish light of a stubborn ex-spouse.

An uncooperative ex can spell heartbreak for even the most determined parent. You arrive to pick up the kids and your ex isn’t home. You arrange to drive your son to his soccer game and your once-spouse has packed him off in a neighborhood carpool. You call to wish your daughter a Happy Birthday, and your ex slams the phone into the receiver.  

The court has granted you visitation rights under child custody laws, and your ex-wife or ex-husband has done everything in their power to violate them. And all you want to do is see your kids.

 

When Your Ex Won’t Cooperate

Difficult exes are one thing, but an ex who denies your child visitation rights is on the fast path to becoming a criminal. No matter what state you’re in, where you’re living, or how far away your spouse is living, you are guaranteed the visitation rights that were granted to you by the court. 

Unfortunately, the enforcement of those rights isn’t as simple as placing a phone call, and a bull-headed ex can make your life a living hell. In this case, your strongest option is sheer determination. If you want to make a case that holds up in court, you’re going to need to make the following a regular routine:

• REGISTER your Visitation Order with the State you live in, especially if it is not the state that issued the order.
• DOCUMENT all instances in which your ex violates your Visitation Order with the police, and keep copies of your police reports on hand.
• FILE collected police reports with the court and ask for a Contempt Violation, then repeat your previous documentation if your ex continues to give you trouble.

Once you have one or more Contempt Violations issued against your ex, you can ask the court to rule for modified custody or, in the case of repeated violations, to rule against your ex as an unfit parent. Either way, the court is very likely to rule in your favor and may even grant you primary custody. In some cases, parents have also been successful in suing an ex for withholding child visitation.

 

Talking To Your Ex About Child Custody Laws

If you feel like your ex might be responsive to a civil conversation, you can also discuss with them the legal implications of their continued Visitation Order violations. Some individuals don’t realize that their actions are criminal, and that they are putting themselves at risk of losing their own custody.

However, you should also be careful to avoid threatening your ex-spouse, especially if you are afraid that they might flee the State. While it is illegal for them to move without first consulting the court (and such an action is a felony in 38 states!), the reality of the situation is that it can be difficult to track an ex who has fled the State. As such, it is always best to try to keep a civil relationship with your ex—even if they’re the one acting like a child.

 

Find a Child Visitation Rights Lawyer

For up-to-date and accurate information on child custody and visitation laws, please visit the LegalMatch Law Library. Access is open to everyone.

You may also use our free legal matching tool to find a family law lawyer in your area.

Writing a Living Will.

"THE COMA."

A million movies have played with the idea (with varying degrees of inaccuracy), but the concept never seems to lose its mad-science appeal for theatre goers. “While You Were Sleeping” had its coma-influenced love triangle, “Monkeybone” painted a bizarre comic view of death and dreams, and the 1978 flick “Coma” turned the neurological disorder into an organ-harvesting thriller.

It wasn’t such a huge surprise then, when 2006 came and 39% of people said that they would reference a cinematic scene in case of a real-life coma emergency [1]. Not exactly the kind of inspiring numbers you’d hope for. Not that there’s anything easy about dealing with a family member in a coma! We aren’t exactly provided with coma-related touchstones in our everyday lives, Neurology 101 is hardly a high school staple, and for those with no real medical background, cinema and hearsay could easily provide the only input for imaginings about “being in a coma.”

And what if we do end up in a coma?

It’s a little too late to start making decisions about your health if you’re unconscious and intubated. And unless you’re prepared to rely on relatives to make the best and educated choices about your health, it may be wise to think ahead. Starting now.

Which is where a living will comes in.

Unlike a last will and testament (that document that decides who gets all your stuff), a living will is only valid so long as you’re still living. It’s an official document that specifies exactly how you want things run in case you become medically incapacitated—whether that means being “in a coma” or being affected by a degenerative disease like Alzheimer’s.

A living will usually covers a number of medical questions: 

• Which medical treatments are you willing to receive for your illness?
• Will you allow doctors to perform CPR or restart your heart?
• Will you permit the hospital to intubate you for breathing or feeding?
• Will you permit the use of painkillers? Dialysis?

Even for those of us who aren’t remotely worried about making these kinds of decisions, it can be a good exercise to discuss your preferences and values with your loved ones. While it may seem morbid at first, exploring issues surrounding quality of life, health, and even death can end with you learning more about yourself, your family, and your relationship with the world around you.

For discussion about or assistance with legal issues surrounding wills, visit our Wills, Trusts, and Estate Administration Law Forum.

by Kate Beall

Alienation of Affection, Marriage, and Lawsuits.

Ever heard of “Heart Balm” laws?
You might want to look them up-- or you could end up being sued by your ex-fiancé.

A cuckolded plumber from Mississippi recently won $750,000 in a similar case, suing his ex-wife’s millionaire lover (and employer) for “alienation of affection” and stealing his bride. Plumber Johnny Valentine had his case when a paternity test confirmed that his wife’s child had been sired by another man.

The Associated Press quotes the Mississippi high court as saying that the purpose of such a suit is “the protection of love, society, companionship, and comfort that form the foundation of a marriage.” A bold statement for a court interfering in the sex lives of consenting (if not so mature) adults.

 

Alienation of affection lawsuits are still active in Hawaii, Illinois, Mississippi, New Hampshire, New Mexico, North Carolina, South Dakota, and Utah. So if you’re living in one of these states and considering an extramarital affair, beware of local laws.

Living in Alabama, California, Colorado, Florida, Indiana, Massachusetts, Michigan, New Jersey, New York, New Hampshire, Ohio, Pennsylvania, or West Virginia? You can take a deep breath and relax, because these states have all put Heart Balm laws in place for your protection. If you aren’t under the protection of these or similar laws in your State, think twice before you slip on that engagement ring. You could be sued for loss of benefits related to marriage, losses incurred as a result of a broken promise to marry, and even emotional damage such as anxiety, stress, or depression-- all because you changed your mind about getting hitched.

by Kate Beall

When Child Care Becomes a Legal Concern.

Nearly all parents want the best for their children. Mothers and fathers alike are often loathe to part with young children, and turning over child custody can be extremely trying—especially for new parents. Whether you’re taking a night off to catch the latest Bond flick, or stealing a week away to recoup from the rigors of child-rearing, your child’s safety is still priority. But even the best-intentioned parents aren’t perfect judges of character.

When Anahi Ferrando joined the Army in 2005(1), she decided to impart legal custody of her daughter, a 5 year-old quadriplegic, to her boyfriend Michael. But while Anahi served in Iraq, her child began to waste away, starved and neglected by the boyfriend assigned to be her legal provider. By the time the child’s grandfather obtained an ex parte protective order, she weighed only 13 pounds.

Child neglect, like that committed by Anahi’s boyfriend, is merely one of several forms of child abuse. And “neglect” can mean anything from inattention to a child’s emotional needs to depriving a child of food and shelter. As child abuse and neglect are both criminal offenses, they should be dealt with by a skilled criminal law and police lawyer.

 

What responsibilities go along with child custody?

Child custody brings many responsibilities to the table, but these obligations may vary depending on the type of child custody involved. In the case of Anahi Ferrando, Michael was given legal custody over daughter Jade Anzures. Legal custody is the most extensive custody that can be given over a child, giving an adult the right and obligation to make decisions about that child’s upbringing. This obligation extends to cover healthcare, religious, and educational decisions—but it also means that the custodian is entrusted with the safety and well-being of the child in question.

Michael violated his child custody obligations and crossed over into child abuse when he chose not to provide proper food or care for 5 year-old Jade. Grandparents custody and visitation rights were invoked only after it became clear that Anahi’s daughter lacked proper parental care.

If you would like to extend custody for your child to someone else, or would like to claim custody of a child that you feel is improperly cared for, it is in your best interest to consult with a family law lawyer. However, if you ever suspect that a child is in immediate danger (in an emergency situation), please call your local police station or State Child Protection Agency.

 

(1) The Salt Lake Tribune, "Man accused of starving G.I.’s quadriplegic child plans to fight charges." 27 July 2007.

Ten Relationship Tips for Divorced Parents.

As a divorced parent myself, I know from first hand experience how difficult life can be when you're now juggling numerous relationships, the majority of them having been modified in some way or another by the divorce. Of course the primary altered relationship is that with your former spouse and to whatever degree it's probably only a bruised one at best, only slightly singed by regret, guilt or anger. 

Here's ten tips that I picked up from the Kentucky Family Law Blog that were in turn pulled from one of Nolo Press's many fine books and articles. These tips were authored by Emily Doskow - they sure would have been helpful to me those many years ago.

1. Be Flexible

Where your children are concerned, the best present you can give your child is to head off conflict about special days like birthdays and holidays. The collaborative rule for you in this situation is adjust your agreements to fit your kid’s needs.

For example, if the kids express a strong desire to spend a holidays or birthday with your ex, understand the importance of allowing them to do just that, regardless of whose time it is “officially.”

2. Be Proactive and Plan Ahead

Always keep in mind that your new family arrangements require much more planning than when everyone was living under the same roof. One way to avoid disappointment is to communicate early and often with the children and your ex. Give your children’s mom plenty of time to think about your proposals and to respond. And keep in mind that pushiness usually produces more resistance than cooperation.

3. Be Kind and Generous

Especially during holidays, keep any bitterness you still feel over the divorce between you and your ex. If you can’t say anything nice, just smile. Avoid putting the children in the awkward position of taking sides. Be as generous as you can with your kids about their relationships with their ex and the rest of the family. Encourage them to talk about the gifts they received and activities they engaged in with other family members they see over the holidays. Let them know they can show happiness with both parents. Help your children shop for the other parent, as well as their sibling, grandparent, or stepparent.

4. Keep Your Word

Be particularly careful to follow through on whatever promises you make related to the holidays. It’s extra important to keep promises to your kids around holiday times — the holidays are a big deal for kids.

5. Include the Kids In Your Planning

Whenever it’s reasonable, let your children help make the choices about when and where to celebrate the holidays, and with whom. But before asking their opinions, make it clear that all plans must be cleared with everybody involved. This will help teach your kids to be part of the collaboration between you and your ex.

6. Create Two Holidays or Birthdays

Having two holiday or birthday celebrations for the children — one at your house, one at Mom’s — is often a positive solution for extended families. Just make sure that the plans you make are collaborative and that they are made well in advance. This arrangement reinforces for the kids that they have two homes and cements new family rituals and holiday customs.

7. Avoid the Indulgence Trap

Many divorced parents, especially dads, are still reeling from their personal hurt and guilt over the divorce. They may be overwhelmed by these feelings and respond to the children’s pain with too much money or too many gifts. Try to stay away from this unhealthy dynamic with your kids.

8. Take Care of Yourself If You’re Alone

Holiday time can trigger a resurgence of memories and melancholy feelings, especially if you are surrounded by couples and families. As holidays or birthdays approach, if you know you’re not going to get to see your kids, be sure to make your own special plans for the day.

9. Build New Family Traditions

Divorced parents, especially dads, often make the mistake of trying to duplicate exactly the pre-divorce family traditions. But you’ll be much happier and more satisfied if you create your own traditions for your new family.

10. Nurture Your Blended Family at the Holidays

If you remarry or get into a committed relationship and your new partner has children, they will undoubtedly have their own ideas about how to celebrate holidays and birthdays. Discuss with your new partner ways that you can bring together the children from both sides of the family, and get all the kids involved with planning what you’ll do together and incorporating everyone’s traditions.

Birthdays and holidays are special times for you and your kids. Communicate clearly and stay calm and flexible, and your extended family will have something to celebrate.

For more information and advice, check out our Family Law Forum.