Missouri Family Law Blog

On my forum, at www.divorcenet.com, the Missouri Community Forum, a recent discussion centered on being involved in your child’s life after divorce. This prompts today’s blog entry.

In crafting your parenting plan, be sure to include these provisions:

1. Each parent may contact the child while the child is in the other parent’s home. This should include phone and e-mail contact where possible. If either parent fears the other parent will claim harassment, the provision should recite the minimum frequency and duration of telephone contact. Hence, the provision could say, “Each parent may contact the child by telephone while the child is in the other parent’s home. Such contact may, at a minimum, and at the contacting parent’s discretion, be one call per each day on which the child spends an overnight in the other parent’s home, between the hours of 9:00 a.m. and 8:00 p.m., and may last, at a minimum, 15 minutes per call. If the contacting parent reaches voice mail or answering machine, the parent at whose home a message is left shall facilitate a return call within the same day as the message is left.”

2. Each parent shall have the right to attend all doctors, dentists, eye examiner, mental health, and other health care appointments. Each parent shall provide advance notice to the other parent of at least seven days of any scheduled appointment so that the other parent may attend. Each parent shall provide immediate telephone notice of emergency appointments or appointments to address illnesses, not susceptible of advance notice.

3. Either parent may attend school functions, or functions for an extra-curricular activity at which family members are welcome. The parent receiving notice of such functions or schedules for such functions shall provide the other parent with copies of such notices or schedules as soon as practicable after receipt of them. However, if the school or extra-curricular activity allows for each parent to make arrangements for direct receipt of such notices or schedules, then each parent shall make individual arrangements to directly receive such notices of schedules. If either parent experiences difficulties or delays in the direct receipt of such notices or schedules after making arrangements for such receipt, the parents shall work together to insure that such difficulties or delays are resolved. The goal is to insure that both parents are fully informed of the events in the child’s life so as to foster the parent/child relationship between the child and each parent.

4. The parents acknowledge that this parenting plan provides that the child principally resides in one of their households. The public policy of the state of Missouri is to promote frequent, continuing and meaningful contact between the child and each parent; and to encourage each parent to foster the parent/child relationship between the child and each parent. Neither parent’s household shall be referred to as a home that the child “visits”, to or in front of the child. Each parent’s household shall be referenced as the child’s home to or in front of the child. Each parent shall encourage the child to think of each parent’s home as a “home” of the child, rather than one parent’s home as the child’s “home” and the other parent’s home as somewhere the child “visits”. Time that the child spends with each parent is “parenting time”, and the word “visitation” or “visits” or any derivation of those words, discourages the child from thinking of the other parent and time spent with the parent as being a critical and important part of the child’s life, so the use of “visits” or “visitation” shall be discouraged. The child shall be encouraged to think of time with his/her parents as “my time with Mom” or “my time with Dad”.

Before, after and during divorce or the break-up of your household with your child’s other parent, be sure that you:

* Attend all doctor’s appointments.
* Meet and familiarize yourself with your child’s teachers or daycare providers.
* Find out the names of your child’s preferred playmates, the playmates’ parents, and the playmates addresses and telephone numbers.
* Arrange for the child to have play-time with those playmates while on your time or at your home, to encourage continuity in the child’s life.
* Visit the child’s school.
* Email the child’s teachers and/or principals on a regular basis.
* Schedule your social calendar so that your time spent with your child is maximized and quality. Do not leave the child with a babysitter any more often than absolutely necessary at the initial stages of the breakup. This is important for two reasons: First, the child needs to know you are still his/her parent and are not surrendering or abandoning your role. Second, the other parent needs to get the same message.
* Send your child birthday cards and celebrate birthday, Christmas, and other holidays in a regular and routine way. This establishes your household as a place where the child will still have routines for holidays with which the child can feel comfortable and about which the child can be excited.
* Involve your extended family in the child’s life.
* Honor the child’s other parent and treat the child’s other parent with respect.
* If the relationship between you and the child’s other parent is poor, get the two of you into counseling. Ask for it at the litigation phase. Insist on it if you must. Use it.
* Let go of your hostility toward the other parent.
* If you are the principal residence of the child, foster a situation in which both parents can be active in the child’s life. Your child will be a better person if you do.

If your lawyer will not work towards a parenting plan that honors you as a parent, get a new lawyer.

Good luck!!!! Remember: Children need PARENTS, not VISITORS.

It could have been ugly.

We were all poised for trial. His father, his wife, her father and neighbor, milling in the hall with the teenage daughters. Her lawyer and me, the judge and the clerk. A bunch of exhibits, a sheaf of just-filed motions. A microphone, a table, a scattering of chairs.

But an hour later, after the girls talked to the judge, we were putting an agreement on the record. A change of custody, a relocation out of state, a temporary order. No trial, not yet at least.

Reasonable minds will differ as to whether the parties reached an agreement because they both believed that it was in the girls’ best interest to move with their Dad, or because the mother just “gave up” or thought the cards were stacked against her. I prefer to take the high road and be thankful that one mother acknowledged that her children should have a chance to live with their father, and one judge decided to let the kids give it the try they requested, and one opposing counsel took the high road instead of holding out for a run at the finish line.

Chalk this up in the “W” column for a father wanting a chance to parent his children full-time, and wish them all well. The times they are a-changin’, and just once in a while, Dad gets a chance to prove he can do as well as Mom.

Inspiration comes from strange places. As I read a novel recently, by one of my favorite authors, Ruth Rendell, I reflected on a passage in which the main character, the unparalleled Inspector Wexford, notices that his sergeant has made an unusually insightful comment. Musing over the sergeant’s recently accelerated virtues, following his remarriage after widowhood, Wexford notes that happiness does not “just make you more happy”, it makes you smarter, better, more adept at your job.

Hence, my inspiration. Happiness makes us better parents, too. How could it not? Once the strain of your failed marriage is lifted from your backs, and you let go of your resentment, suddenly, you can be better at that which is left to do. Of course, if your unhappiness is not really caused by your quarrels with your spouse, his/her absence will not be enough to make you happier and thus better at parenting the kids. Additionally, you have to let go of your anger and resentment — these won’t automatically disappear when your spouse moves out. In general, however, the old saw “staying together for the children” leads to unhappy parents, which leads to poor parents.

If you can’t repair your marriage, move on: Your kids will thank you for it, in the final analysis.

There are two kinds of clients in divorce work, for the most part.

The first type walks into your office and asks, “How much time can I get with my kids; and can we make this as painless as possible for everyone?”

The second type barges into your quiet work day and demands, “I want to get as much money as possible, and I want to make my spouse suffer.”

Ask yourself: Which type of “love’s aftermath” client are you? Which type of “love’s aftermath” client would you rather represent?

After 25 years of listening to the two types of clients talk to me about potential representation, I know which person appeals to me. I want to spend my days advocating for the person — man or woman, it makes no difference — who thinks first of the children, and then of easing the transition for everyone in the family. Of course, this comes with the usual disclaimers: I understand that where there is abuse, drug use, alcohol abuse — it is human to be angry and bitter towards the one who has been the cause of so much turmoil.

But short of that, think before you articulate your goals to your divorce attorney. Is it revenge you want? Relief from your disappointment? An outlet for your anger? Maybe you should go chop some wood. If you want a fair and equitable resolution, that protects your children from the grief of being torn between two parents whom they love, give me a call.

While I can, and do, represent genuine victims of abuse, and do so aggressively, I do not want — and no self-respecting lawyer should want — to represent someone whose goal is to be nasty for the mere sake of nastiness. I promise you, that attitude will be your undoing, in court, with your children, and in your future relationships.

Okay, usual disclaimers: If there is abuse or neglect, drug use, alcohol abuse or other very extreme situation, my comments don’t necessarily apply to your situation.

Otherwise: Papa and Mama, when you are going through a divorce, do not, repeat, do not, fight in front of your children. Get the heck out. Go to your corners. Find a time-out chair. Go for a walk. Divorce is hard on everyone, but hardest on the children. They don’t need the instability of hearing you argue.

Second piece of advice: Keep the children out of the middle of the custody dispute and any other squabbles. Don’t co-opt them! Now, that said, your lawyer might want to have the judge interview them or, with older children and rarely, have them testify. That is one issue, and you and your lawyer should carefully discuss those two potential tactics. But that is not the same as the parents involving the child in the litigation. Such an approach will always hurt the child, and might well damage the child’s relationship with each parent, including the one who talks to the child about the litigation.

Do you love your kids? Then be Solomon the Wise — don’t let the baby get split in half!

Hear this: A lawyer is not a mental health professional. I had a discussion recently with a psychiatrist about divorce and that is the one thing we both agreed had to be remembered. A lawyer has limits, just like everyone — he or she cannot listen to your emotional problems, brainstorm about how to adjust to being suddenly single, or give you ideas about how to handle your grief. Now, that said, lawyers are compassionate, most of them, and they will spend some time letting you vent. But they are not trained to help you cope with your separation and divorce, or with the fact that your child’s other parent does not want you in the child’s life or does not want to be in the child’s life.

I have a friend who calls himself a “love’s aftermath” lawyer, and he refers people to Kubler-Ross’ “On Death and Dying”. That is a good book to read. I often recommend “How to Survive the Loss of a Love”, which you can find on Amazon.com. You might seek and use a referral to a mental health professional, and your lawyer can assist you with that.

Divorce is hard; adoption is exciting but challenging; paternity cases are sometimes very gut-wrenching. But know your lawyer’s limits: If you need a professional to assist you in the personal adjustments that this life change is visiting upon you, get one, and keep that effort separate from your lawyer’s handling of the legal aspect of your litigation. You will ultimately be better served and come through this time of change with a better outcome and a healthier outlook.

Years ago, when Alan [White, my legal assistant and trusted friend] and I first started the Corley Law Firm, we had a client who was arguing with his soon-to-be-ex-wife over her wedding ring, which she had left behind one evening when she went out about town posing as a single person. He did not want to return it; she wanted it back. After several phone calls between lawyers, I said to him, “Give me the damn ring.” I looked at it: A slender gold band with no stone. I asked where he had gotten it and how much he had paid for it. “Fifty dollars, at Service merchandise,” came the reply. I told him he had a choice: He could return the ring to her and I would take $50 off his bill; or I would resign and he could do whatever he chose to do with the damn ring. He took the former.

Thus was born the benchmark by which Alan and I judge our prospective clients. Do we suspect they will be “damn ring” clients? If so, we do not take the case. We do not have time or energy to waste over $50 rings. We understand the sentiment: People associate the feelings they have for the person with an object. But divorcing people need to let go of the objects, and probably need to let go of the feelings, too. We aren’t therapists — we can’t show them the way — but we can and do tell them that we don’t want to spend any of our time fighting over things that don’t amount to much of anything in the grand scheme of things.

I’ll caution you — don’t let your life get wrapped up in small, insignificant things, and certainly, don’t let your divorce go down that path. You don’t need the damn ring. Give it back.

At a recent Case Management docket in Jackson County, I watched a judge dealing with pro se [self represented] persons to a divorce involving children and property. The wife had prepared a settlement agreement and parenting plan. In a short, ten minute session, the judge asked the husband if he agreed. With respect to the judge, I observe here that each time the husband indicated he did not agree, the judge indicated that if he did not agree, the process would be delayed so the husband could get an attorney. “You can disagree, but if you want to agree, I can do this here and now”, was the clear if not precisely articulated message. In the end, the couple got their divorce, but there is no way of telling if the husband really agreed with the terms or just did not want the delay promised if he refused to go along.

I am sure this particular judge meant well, and I hope it all turns out all right for that family. But I shudder to think of the problems that can arise if a divorcing couple doesn’t know how to divide pensions, 401Ks or complicated school schedules of their children. There is a constant friction between the citizen’s right to be their own advocate or their lack of funds to hire an advocate, and the unmistakable reality of how complex our lives are, so that the unjoining of a couple can lead to genuine, complex problems if not properly accomplished.

Many of us try to do our part by low-cost representation — “quality divorce lawyer at a reasonable price” — but we have overheads to pay and families to support. I myself am not wealthy — I do not charge high enough rates to be — but even so, I have to get some pay, and I do my share, and more, of formal pro bono (”free”) work. It is hard to sit on my hands and watch people “get divorced” in the style I have just narrated. I know the pitfalls that exist in the law. I don’t know if we can change the laws governing property and parenting to make them less complicated, and I don’t see any way to get people representation any cheaper than it is already available. This is the age-old quandry in the law that is particularly evident in divorce court, since this is somethng that people need and want, rather than a civil claim that they are pursuing for the potential of redress that might not always be necessary in order for the claimant to be made whole. A divorce, when unavoidable, must be obtained despite the cost, and if the parties cannot afford an attorney, they are opening themselves up to future problems because their judgments might well fail to address, or improperly address, critical issues.

No answers, here, just thoughts. Divorce, Missouri-style, in 2008, is friendlier to the unrepresented litigant, but, I think, deceptively so. Our court has seen fit to put guidelines for the self-represented on its website, but no amount of warning can truly prepare someone for self-representation, because plainly and simply put, the non-lawyer can never foresee all that needs to be done and all the ways in which they need to do each task.

I’m not sure what the moral of the story is. I will keep trying to provide representation at a reasonable cost, and hope that everyone finds someone to do likewise when they are in need of a family law practitioner, whether for divorce, legal separation, adoption, or any of the other actions peculiar to the family law practice. That’s the best I can do. I might not be able to take on everyone who needs me, but I do what I can.

Two things emerge from a long and stressful week: An unsuccessful attack on the NonPartisan Missouri Plan for selection of judges in certain Missouri Counties, including Jackson County; and a trial in which a child has disclosed sexual abuse by her father wherein I represent the mother.

Of the court-selection process, I can say this. The move was intended to give the Governor decisive power in selecting judicial nominees, and to give the General Assembly the final say in the selection of judges in those counties in which judges are not elected. I found that to be a monumentally poor idea and am very glad it failed. I do not want to see judicial appointments became the purview of politicians in the county where I practice.

I believe that people who proposed and endorsed this misguided effort wanted to diminish the role of lawyers in the appointment of judges by outweighing their 3-member committee representation with a 4-member gubenatorial election. I do not think it is unwise to ask members of the Bar to have a substantial say in the appointment of judges, because they are more likely to be uniquely qualified to do so. Judges should be selected by ability to judge, experience at the Bar, and other relevant experiences and characteristics. They should definitely not be elected, since election most often turns on spending power, and that spending power turns on the contributions of private interest groups in many cases.

Of the trial, which is not complete, I can say this and no more: Serving as a judge is an awesome responsibility. I have had many intimate or flat-out state that I would be a good judge, but I disagree. I am an advocate. I take sides. A judge must weigh the evidence and determine which side is the more credible — whether it is more probable than not that X is true or Y is false, using the civil standard. That is the job of the judge, and most perform with admirable skill in executing their duties. In a custody case, the judge must determine what custodial arrangement is in the child’s best interest, and must reach findings of fact that act as logical stepping stones leading to the conclusions that will guide the parenting of the child into adulthood. That job is the sole province of the judiciary, and it is an awesome and heavy burden that I do not envy, but the carrying of which I admire.

Families in crisis need wise and compassionate judges when bringing their divorce and custody cases for determination. Our children deserve well-qualified judges, and I believe that Missouri has done an excellent job of devising methods for judicial selection through the Missouri Court Plan. It is not for me to say that counties in which judges are now elected should adopt a selection process instead; but our watchdogs would do well to examine the Bench throughout the state, with an eye towards promoting the selection of judges who have no allegiance other than to justice, and who serve no client other than the truth.

Millions of Americans facing divorce, and few of them really understand the process. Where there are children involved, the adults need to put aside their own confusion and deal with the uncertainty that the children are experiencing. But guess what? they never do, and that is the sad ugly truth of divorce, American style.

Mama does not want Daddy to come home; Daddy thinks Mama is a bad parent; who is right, who is wrong? Often, unless there is abuse, neglect, alcohol use, drug use or gambling, with quantifiable triggers for the emotional quagmire, neither of them is right and both of them are right. Mama cannot live with what Daddy has done; Daddy cannot live with what Mama has done; but many times, the behavior that ’causes’ the divorce has nothing to do with the children or the parties’ abilities to parent.

We need to ask ourselves: What do we do about this mess? How do we diffuse the conflict? If Mom and Dad are both reasonably fit parents, we start by making the language neutral. It is not “my home” and “Dad’s house” — it is “my home” at both parents’ houses. And everyone involved must cultivate this view. Yes, they are just “words”, but they are words that can sting and stain and leave a stench. So choose words that don’t hurt — “time” or “parenting time” instead of “visitation”, for one thing. Don’t set your child up to think of his other parent as a stranger.

Short rant–but one that I want to have stick in your head.