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"Competent, Caring and Responsive"

Archives for April 2014

A Rational Solution for an Emotional Problem

Emotional Problem

Divorce has been part of life for about as long as marriage has.  Despite popular conceptions of divorce as a modern affliction, the ancient Romans had a thriving divorce rate, with the more affluent and rich Romans (especially in the later imperial period) frequently divorcing their mates in order to improve their social standing or purely as a political move, so they could marry the daughters and sisters of their allies or adversaries.

That sort of rational approach to divorce may sound cold and perverse to us today, but the fact is, divorce is a rational and legal mechanism.  It has a set structure of events and procedures, and is an attempt to impose a rational solution on what is essentially an emotional decision.  The most important aspect of divorce is this distinction between the rational and the emotional.

Don’t Step Back

As a result of the powerful emotions that lead to and flare up during a divorce, many people view divorce as a button they can push to automatically take care of the problem.  They come to the decision to end their marriage, hire a lawyer, and then try to step back from the process and let it happen without their direct involvement so they can be insulated from the gritty details.  This is one of the most important aspects of divorce: The more you’re involved the better the end result will be.  This is your life you’re making decisions about, after all.  As painful as it can be, your direct involvement in the decisions is essential.

Regret Is an Emotion, Too

Letting your emotions get in the way can lead to concrete implications, as well.  Divorce proceedings need to settle a vast array of details: Property, support, custody, visitation – just to name a few.  The more you’re actually involved in the process, the better the final terms will be for you.  If you let your emotions rule the day and pull back from the process in order to numb yourself, you’ll almost certainly look back months or years later and wish you’d been more involved, because the details of the final settlement are simply not as you would have preferred them to be.

Divorce is a tool, but it can be a blunt one if you allow emotional distress to remove you from overseeing the process.  One of the most important aspects of divorce is recognizing this dichotomy between emotional problems and rational solutions.

Knowing What To Expect in Mediation for Divorce

divorce and child custody mediationEven when there are only a few issues to discuss in your divorce mediation, the process can be lengthy and complex. Knowing what you can expect and how you should prepare can be helpful in reducing your anxiety about your upcoming family law mediation.

In some states, mediation happens with parties in separate rooms. In Idaho, most divorce and child custody mediation proceedings have both parties in the same room with their attorneys. Before the agreement is submitted to the court, it is typically reviewed by the attorneys. For this reason, retaining legal counsel that you are confident in and comfortable with can go a long way. Mediation is a different atmosphere than litigation, but you may still feel more at ease with an experienced attorney at your side.

 You should be prepared to share information with the other party and his or her attorney. This is so that the mediation can move forward as effectively as possible and so that you can work together towards reaching a settlement. Although mediation is an informal process, you should be prepared with any documentation in advance so that you can make the most of the meetings. Mediation sessions typically allow for your family law issue to be resolved much more quickly than litigation, but since you also play a bigger role in mediation, you need to be prepared to provide documentation and discuss issues each time you enter a session.

 Anything said during the mediation process is confidential unless it leads to a written settlement. This atmosphere tends to make many people feel more comfortable. You should be open and willing to suggesting different ideas or settlement offers without fear of being persecuted for them. Those offers remain confidential with the ultimate goal being a constructive conversation that leads everyone involved to a mutual settlement.

 Compromise is a critical factor in mediation. You and the other party don’t have to be involved in a stalemate to benefit from mediation, but you should be willing to discuss options and make some sacrifices in the name of resolving the issue. If you are unable to reach an agreement, you could end up in litigation anyways, which just takes more time and money from you. Mediation is most appropriate for situations where the parties are willing to talk options over and make compromises to get to a final settlement agreement.

What You Need To Know About Relocation and Child Custody

Idaho Falls Relocation and Child Custody

Several decades ago, the idea of relocation was pretty foreign.  For the most part, child custody issues were pretty cut and dry: There was a custodial parent (most often the mother) and a non-custodial parent (typically the father).  If the  parent with custody planned to relocate, they were generally free to do so.  Today, the courts strongly consider both parents’ involvement in the life of the children important.  Father’s rights, in particular, have become a bigger focus as more fathers are concerned with being active in the lives of their children, and relocation concerns are often at the forefront of many child custody discussions.

Many fathers today truly share in the parenting of their children.  If a parent wants to relocate with the minor children, this creates a major issue for the remaining parent who wants to remain active in the lives of their children.  The law and the courts look primarily to see if there is a sufficient and reasonable basis for the children to be uprooted.  Frequent reasons for relocation include: A change in employment or job opportunity; remarriage to someone living in another location; and a desire to move closer to other family members.

How a court handles relocation cases depends upon several factors.  First, the court is looking at whether or not the pending matter is an initial determination (such as at the time of a divorce) or a modification of an existing order.  If no previous order or decree exists, the court will consider the reason(s) for the move and look to determine what the best interest of the children would be.  If a custody order or decree already exists, the moving parent needs to first show that there has been a “permanent and material change of circumstances” or in other words, a significant reason to support the children to move.  Once this is shown, the court will look at what is in the best interest of the children, like an initial determination.  Consideration also needs to be given to what the court order(s) and decree(s) say.  Many orders and decrees have specific language about how far the primary custodial parent can move without getting permission from the Court or the other parent.  Sometimes there is specific language regarding notifying the other parent of a contemplated move.

A move across town or even to a nearby town (30-50 miles away) generally does not require getting the court’s permission.  However, the other party may object to the move and may petition the court to either change custody or require the moving party to keep the children in the same schools, provide transportation, etc.   A move more than 50 miles usually has a larger impact on the ability for the parent having secondary custody to have reasonable opportunity to be with the children and to attend sporting events, concerts, parent teacher conferences, etc.   Longer distances also have a tiring effect on children who have to frequently travel between parents, which also interferes with their extracurricular activities and social events.  The “visiting parent” is often put in circumstances where he or she is perceived as interfering with the child’s desires.  My experience has been that over time, the amount of time spent with the parent having secondary custody becomes less and less.

Nevertheless, in many cases relocation is necessary and parents need to recognize what impact the move will have on the children and their personal relationship with the children.  If the opportunity presents itself when the parties are discussing relocation, some of the things that you may want to consider include:

  • Should you use a mediator to aid in the discussions?  Often having a mediator lead the discussions before the parties become entrenched in their positions could save thousands of dollars.  With relocation cases there is often a pressing need to relocate quickly.  If a new position is open, the prospective employer probably will not wait for the litigation to be completed before filling the position with another person.  Motions and supporting documents either requesting permission to move or to prevent the move are filed with the Court and take substantial time.  Meeting with a mediator quickly can save both time and money as explained in the material on my website, AttorneyIdaho.com.
  • What will work in the long run?  I have seen many situations where the parents enter into agreements that are not sustainable in the long run.  For example, people may agree to the same visitation as when the parties lived close to each other (such as every other weekend) .  However, with any significant distance,  the road becomes old  for everyone, particularly the children.  My experience has been that if the parties are within a couple of hours of driving distance, monthly visitations are generally workable.
  • What is each parent’s ability to transport the children?  Who should be responsible for what transportation? Some parents are very afraid to drive, particularly on slick roads.  Some parents do not have reliable transportation.  Other parents have work commitments that make it difficult to be at a particular place at a specified time (e.g. “halfway” at 6:00 on Friday).  There is also the question as to whether someone else can or should provide the transportation, such as a new spouse.  If the distance is great, airline transportation may be the best option.  This requires  the parties to consideration what airports are to be used (e.g. major airports are often used to allow for direct flights, age of the children,  the need and cost to have an escort, etc.  If unaccompanied, extra fees could be charged.
  • Where should parenting time take place?  Parents can think creatively on where to have parenting time.  If the distance between the parents is significant, some visitation could take place in the city where the children primarily reside.  This would enable the children to participate and parents attend or participate in extracurricular activities, etc.
  • What can be done on a regular basis?  A parent far away can still have regular contact with their children.  Discussion topics could include availability of the children at specified times, access to telephone, Skype, Facetime, etc.  Will both parents agree to have the necessary equipment? Length of call according to the age of child should also be considered.  For older children, will they be allowed to have their own phone for messages, texts, etc.?

An experienced family law attorney can help to guide you in making solid decisions in a relocation situation whether you are the one contemplating a move or having to decide how you should react to the other parent proposing to move with your children away from you.  Please feel free to contact us to help you with your situation.

David A. Johnson has been providing quality legal services in East Idaho. As both a private attorney and as a former Bonneville County Prosecuting Attorney, Mr. Johnson has substantial courtroom experience. Mr. Johnson has handled cases all over the State of Idaho. His primary areas of practice are in Bonneville, Bingham, Butte, Jefferson, Madison, Fremont Bannock and Jefferson Counties. In addition, to Idaho Falls, we serve residences in the Blackfoot, Shelley, Firth, Rigby, Rexburg, St. Anthony, Ashton, Ammon, Driggs and Victor, Idaho. [Read more..]