Evidently not. The Arkansas Court of Appeals yesterday reversed a decision by the trial court on this exact issue. Father had overnight visitation every Tuesday since the child was 2 years old. Now, the child is 8 years old. Mother files for modification of the overnight visitation because the child was coming to her house on Wednesday morning and did not have his homework done. The trial court found that “the child is now school age, that’s a little
different than it was when we started,” and the early-morning return times were “a little early.” The trial judge eliminated the overnight visitation on that basis.

The Court of Appeals reversed that decision because it found that the facts presented did not amount to a material change in circumstances.

Here’s the link…
http://courts.arkansas.gov/court_opinions/coa/2008b/20081217/unpublished/ca08-379.pdf

Practice note: This was a “one-brief” opinion which leads me to believe that the mother did not file an appellate brief. Did the court of appeals hold that against her?

Every divorcing parent should make it their top priority to keep their children from getting caught in the middle of the conflict of their divorce. The following tips and thoughts are from James Roberts, RSW, a licensed social worker in Missouri and Kansas and family therapist in Kansas. Mr. Roberts practices with Madison Avenue Psychological Services in Kansas City Missouri.

Parents who are either in the middle of a divorce, thinking about divorce, or already divorced should pay careful attention to the following ways that parents put their children directly in the middle of the conflict, and do their best to avoid them!

1. Bad Mouthing

One of the most hurtful things a divorce parent can do to a child is to criticize the child’s other parent in the child’s presence. Statements such as “Your father caused our divorce”, or “if it weren’t for your mother, we’d still be a family,” are common examples of “bad-mouthing”.

2. Forcing a Child To Choose

It is harmful to pressure a child to “take sides” in a dispute between the divorced parents. Children have a right to their own thoughts and feelings about the divorce and deserve to know they will be loved by both parents regardless of the opinions and feelings they have. If parents are in conflict over custody and children are facing a decision about which home to live in outside professionals should be called upon for help.

3. Spying

A parent who asks a child questions about the other parent’s personal life is asking that child to become involved in the parents’ conflicts. Children in this situation may end up feeling they have betrayed a parent they love.

4. Making the Child the Messenger

Parents make their children do a parent’s job when they ask their children to carry messages to the other parent. Children learn indirect ways to communicate when asked to be messengers and may feel guilt over having to assume adult responsibilities for their parents’ communication.

5. Sabotaging the Child’s Routine

When parents fail to give a child medication, fail to follow through on discipline imposed by the other parent, or bend rules on bed-time, diet, or curfews out of anger for the other parent, they are involving the child in parental conflicts. conflicted parents frequently take their children to medical professionals without consulting the other parents as a way of acting out unresolved divorce disputes. This practice places parental conflict above the child’s medical well-being.

6. Compensating for the Other Parent’s Failures

One divorced parent may view the other parent as a poor parent for being “too lenient”, “too strict”, “too involved”, or “not involved enough”. Such parents often try to compensate for the other parent’s “failures’ by being the opposite kind of parent. Children in such situations suffer by not having parents who are using a balanced approach to rearing children.

7. Making a Popularity Contest of Parenthood

A parent may try to win the affection of a child out of fear that the child favors the other parent. such parents go overboard to “be nice” or refrain from being firm with their children. Children suffer in these situations by not having the advantage of a parent who is acting in the proper role of authority figure.

8. Being an Accomplice to Whining

A parent may allow a child to complain about the other parents without helping the child see a more balanced view of the other parent. If the parents either passively accepts the complaint or fails to urge the children to take up these grievances with the other parent they subtly encourage children to use indirect communication as a way of managing conflict.

9. Child Abuse Allegations

It is becoming common for conflicting parents to express their hostilities by making unfounded allegations of child abuse. For children the consequences of these allegations are negative and far-reaching. Children are drawn into evaluations, investigations, and court testimony which greatly increase the risk of prolonged confusion, hurt, and anger.

10. Custody Fights

Some parents pursue custody fights when they know perfectly well that the real reason for the custody action is to be vindictive. Children experience custody battles between their parents as extremely stressful.

11. Child Support

Parents too often use child support by withholding it, demanding more, or making payments late when the real motivation is to perpetuate a dispute with the former spouse. In many homes children suffer directly when child support payments are not made regularly or when conflict is expressed indirectly in this way.

12. Using Noble Ideas to Hide Double Standards

A custodial parent might say “i want her to make her own decisions” when a child refused to visit the non-custodial parent but strictly enforce curfews when the same child wants to stay out late. A custodial parent might say “He has the right to his own feelings” if a child says critical things about his non-custodial parent but lecture and browbeat the same child for “talking back” at home. Children are sensitive to inconsistencies. They react to them with mistrust and cynicism.

This post is listed on the Georgia Family Law Blog (link in our lawyer’s blog list to the right). Credit should also be given to Sam Hasler’s Indiana Divorce and Family Law Blog (http://haslerlaw2.blogspot.com/) and the Missouri Divorce and Family Law Blog http://familylaw.mwortmanlaw.com/).

IMPORTANT NOTE: The article below provides some law that is applicable to New York. Remember, divorce law is different from state to state so consult with your attorney about any specific laws that you may have a question about.

Winning a Divorce
(Thanks to J. Douglas Barics (New York lawyer - www.jdbar.net) for this article.)

During an initial consultation, I am sometimes asked how many cases I have won. It’s a legitimate question. It’s also a fundamentally wrong approach to a divorce.For most civil cases, there is a clear winner and loser. If the plaintiff prevails at trial, he or she is compensated for whatever wrong befell them. Likewise, if the defendant prevails, they have defeated a claim brought against them for any number of reasons. Boiled down to its lowest form, a civil trial is simply a plaintiff saying “you did something wrong” and the defendant saying “no I didn’t.”

But there is no such distinction in the vast majority of divorces. Instead, a divorce is far more closely related to the dissolution of a business partnership. It doesn’t matter why the partnership is ending, that’s simply a given fact. What the courts are concerned with is how to fairly divide the marital assets between both spouses. Likewise, for spousal maintenance, an award of support isn’t punitive; it’s designed to rehabilitate a spouse to become self supporting whenever possible. Child support is set by statute, and varying from the CSSEA guidelines is very rare indeed.

Even custody doesn’t fall neatly into a “winner” and a “loser” in a conventional sense. Custody is decided upon what the court determines to be in the best interests of the children, and in doing so, will usually look to determine who is the better parent, as opposed to who is the worst parent.

Then of course there are the tactical aspects of winning and losing which are not apparent to laypeople. For example, if someone is facing a trial and may be liable for a million dollars, but their attorney is able to settle their case for a small fraction of that amount, is that considered winning or losing? Now turn this example on its head. Suppose someone is asking for one million dollars, and their attorney is able to settle for nine hundred thousand. Is a guaranteed win of 90% of what they are seeking a win or a loss? Remember, not only did they face the possibility of losing at trial, but also subsequent appeals and possibly years more litigation.

Two good but extreme examples help illustrate just how hard it is to classify winning and losing. The first was a custody case I had several years ago. I represented the husband. His wife was seeking temporary custody of their child. What made this case very difficult was that the husband’s parents also supported the wife; there had been a bad family fight and were taking their daughter in law’s side to punish their son. My client also wanted temporary custody too. During the pendente lite hearing, I was able to show that neither of the husband’s parents were credible, and discredited much of the wife’s allegations. The end result was the judge denying both requests.

In addition, the wife’s claims for temporary support and exclusive use of the marital home were denied as well, since the court set and fixed both party’s financial responsibilities pending the trial.

I was pretty happy with the results. For temporary custody, the odds were stacked against my client, and not only had I maintained the status quo, but I had the judge rule early in the case that the wife was not credible in her claims. This was a perfect set up to prevail on a full custody trial down the road. Likewise, the wife’s financial requests were denied as well.

My own views aside, the husband felt that he “lost” and promptly found a new attorney who promised he would “win” custody. Several year and several lawyers later, the husband still hasn’t “won” yet, and I suspect that he always feel like he lost.

In the second case, I represented the wife. Without going into details, the husband was determined to litigate every issue. We had the divorce, numerous motions, and related family court matters. The wife won on every significant issue. The husband appealed each loss, and we won on every appeal. The divorce went to trial, and we prevailed on every issue. Following the divorce, the husband brought numerous post judgment motions and family court proceedings. From a legal standpoint, we were running circles around him. Yet I would not classify this as a win by any means. We “won” the case when we changed tactics, the wife learned how to represent herself pro se on the simple issues. She also learned how not to let it show that any of this was bothering her. Perhaps she had even reached a point where it wasn’t. But once the ex husband realized that he wasn’t making his ex wife spend a small fortune in legal fees, and wasn’t bothering her the way he used to, the barrage of litigation stopped. In that case, breaking the pattern of control was winning.

By Martha Neil, American Bar Association

As a stunning federal corruption case was unveiled this week against Illinois Gov. Rod Blagojevich, many wondered why he is being represented by a well-regarded Chicago attorney rather than a nationally known big-name white-collar criminal defense lawyer such as, say, Winston & Strawn’s Dan Webb.

The answer to that question may now be clear: According to the Wall Street Journal, Winston & Strawn stopped representing Blagojevich after he failed to pay some $500,000 in legal fees.

“Earlier this year, Mr. Blagojevich, strapped for cash and burdened by a years-long federal investigation into his administration, stopped paying a portion of the millions of dollars in legal fees owed to the law firm Winston & Strawn,” the newspaper writes, citing as sources unnamed “people familiar with the matter.”

Both the governor and his counsel declined to comment, the article states.

‘Jury Duty’ Scam Snags Social Security Numbers in 11 States

By Martha Neil, American Bar Association

At least 25 people in Eagle County, Colo., have been victimized this year in a “jury duty” telephone fraud that has also operated in at least 10 other states.

Duped by a claim that they failed to show up for required jury duty, the victims have provided their social security numbers to callers. As a result, their identities are being stolen, reports the Denver Post.

“As part of the scam, a caller tells people who have answered their phone they’ve missed a jury duty assignment. When the victim protests the accusation, the caller asks for a Social Security number and date of birth to verify identity and to cancel an arrest warrant,” the newspaper recounts.

The article doesn’t say whether anyone has been charged in connection with the scam.

In my opinion, these 5 tips are excellent advice for anyone going through a divorce. #1 is especially true - the more you can organize your documentation for your attorney, the lower your hourly fees will be. This will also assist your attorney in being more prepared to handle your case. This is a win-win!

Here’s the link to the AOL article….

http://money.aol.com/top5/general/divorce-mistakes-to-avoid

Christina Rowe has some insight on this popular issue in divorce circles.
By the way, Christina’s website, Secrets to a Successful Divorce, is one of the best I’ve seen on divorce topics - especially for women.

Here’s the link…
http://secrets-to-a-successful-divorce.blogspot.com/2008/11/is-your-ex-hiding-cash-one-of-most.html

Hiring a lawyer is one of the most important decisions you will ever make. Bonnie Robertson has some excellent advice for selecting the right one - and what to watch for as your case proceeds.

Tip #1
You have the right to know everything about your case. When you hire a lawyer, you have the right to expect a copy of every letter, every motion, and every document regarding your case that leaves your lawyer’s office. If you are receiving anything less, you lawyer is not living up to his or her obligation to communicate with you openly about your case…

Here’s the link for the rest of Bonnie’s tips…
http://www.robertson-law-firm.com/CM/Custom/What-Your-Lawyer-Doesn-t-Want.asp

Great ideas for keeping the Grinch away and grouchiness to a minimum this holiday season.

Here’s the link…
http://www.tinkerx.com/2008/11/22/christmas-spirit-22-60-ungrinchy-ideas-for-2008/