South Carolina Family Law Blog : Spartanburg Divorce Lawyer & Attorney : Turnipseed, Brannon & Stevens Law Firm : South Carolina Family Law Serving Columbia, Charleston, Greenville, Hilton Head Island

I have written several posts on this blog about Parental Alienation Syndrome, such as here, here, and here.  To get another lawyer's take on this subject, I present the following article published by Dan Nunley at the Oklahoma Family Law Blog a few months ago:

Statistics show that approximately one in two marriages end in divorce and about ten percent of those divorces involve child custody battles.  During these emotionally charged proceedings, some children exhibit emotional detachment from one or both parents.  The cause of this emotional detachment is unknown and the issues involved are complex.

One suggested theory, developed by the late Richard A. Gardner, M.D., has come to be known as "Parental Alienation Syndrome" (PAS).  PAS typically portrays one parent as an evil alienator who through consistent brainwashing is responsible for turning an impressionable and vulnerable child against the innocent, enstranged parent.   As a result of this brainwashing, the child reflexively supports the alienating parent and experiences no guilt over their own cruelty towards the enstranged parent.

PAS is becoming an issue in more and more custody cases.  However, the mental health profession is far from agreement about the existence of the syndrome. Noting the lack of supporting data, the American Psychological Association has "no official position on the purported syndrome," according to its statement on PAS.

The legal community is divided as well. While many family lawyers believe the syndrome is a legitimate psychological diagnosis, others view it as nonsense. They say it's used primarily by parents who want someone to blame for their poor relationship with their children.

Read more about PAS in this recent article from Lawyers Weekly USA.

Source:  "Parental Alienation Syndrome" by Dan Nunley, published at the Oklahoma Family Law Blog.

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Too many people don't know what to look for when they are considering which divorce lawyer to hire.  Most people who are interviewing family law attorneys are in a very stressful situation, typically one that they have not been in before.  Making an important decision during a particularly stressful time can be a recipe for disaster.

DivorceZone published an article that can be helpful to people facing this situation.  This article points out that not all lawyers are created equal, and I would add that not every lawyer is "right" for every case.  It is more important in family law cases than other cases that the attorney and the client have a good, working relationship and understand each other.  This article lists the following important points to consider when hiring a divorce lawyer:

• Specialization. The reality is that the law is extremely complicated and no lawyer, not even a so-called “general practitioner” can really master more than one or two main areas of law. Divorce law itself grows more and more complicated each year. You should choose a lawyer who practices primarily or exclusively in the area of divorce and family law.
• Knowledge. Given the high hourly rate you’ll be paying your divorce lawyer, you don’t want to have to pay to give your lawyer a legal education. You want a lawyer with substantial knowledge in divorce and family law issues, who already knows the law and how it applies to your situation.
• Experience. There are a lot of complexities to divorce law that you can’t simply learn from a book. For instance, often being able to determine the correct range of alimony that’s appropriate in your case is simply the result of seeing many cases with similar facts. While every divorce case has its unique twists, you will come out ahead if your lawyer has substantial experience.
• Good Communication. The biggest beef clients have with divorce lawyers is that their lawyer does not return their telephone calls, emails or other communications promptly. You should find out what a prospective divorce lawyer’s office policy on this. Also, see how long it takes for your prospective lawyer to return your initial call – this will give you a good idea as to the level of service you can expect.
• Local Knowledge. Part of the job of a divorce lawyer is to know the attitudes of the local judges and how best to tailor your case for them. As well, even if you never set foot inside a courtroom, it is helpful if the lawyer has experience dealing with your spouse’s divorce lawyer.
• Time. Does the divorce lawyer limit his practice to just a few select cases so that he can concentrate on his clients and give them good service, or do they take all clients who walk through their doors? The reality is that the amount of work to resolve successfully the issues arising from a divorce can be quite substantial, and your lawyer will need the time to deal with this.
• Fit. It’s important that you and your divorce lawyer get along well. This doesn’t mean that you have to be good buddies with your divorce lawyer and want to invite them to dinner. However, you’ll be going through some of the most difficult experiences in your life with this person. You’ll be revealing some of the most intimate details of your personal and financial situation to this person. Your relationship with this person will last quite a long time. So, it’s important that you’re comfortable with your divorce lawyer.
• Compassion. It’s important that your divorce lawyer be understanding of what you’re going through. Are you just a file number, or does your lawyer really care who you are and what you want?
• Independent. Ultimately, your divorce lawyer’s job is to fight for you and your rights. However, many lawyers have political ambitions or care more about getting along with other lawyers than giving zealous representation. You want an independent lawyer so that your needs are not sacrificed so that your lawyer can avoid irritating a colleague.
• Plan of Action. Is your divorce lawyer able to articulate a plan of action that they are going to take to resolve your case? If not, you will find that your case just seems to amble in no particular direction, raising your legal fees without accomplishing much.

Source:  "How to Hire the Right Divorce Lawyer" published at the DivorceZone Divorce and Family Law Blog.

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This is the final installment in the excellent series of posts by Michael Sherman of the Alabama Family Law Blog on the steps to take when it becomes apparent that a divorce may be imminent.  His series takes an honest, practical approach in showing people how to protect their interests and make prudent preparations in such a situation.  Here is Divorce Preparation: Step 13 - Be Good:

Well, we have finally reached the last step in this series of posts on practical steps to consider when you may be facing divorce.  I will wrap up the series with two more posts to conclude and summarize the series.  But, first, the final step which may seem a bit silly.

It is simply this: Be Good.

Here is the principle: you are about to be under a microscope.  You are reading this blog, so I assume that you may be facing a divorce and you'd like to that unpleasant process to be as amicable as possible.  Unfortunately, that is not always possible.  Your spouse may not share that objective for some reason.  They may be influenced by others (lawyers, friends, etc.) that convince them that what you are offering is not fair.

So, there is a chance that your case will end up going to trial no matter how diligent you and your lawyer are about trying to work the case out fairly and quickly.  That being said, you should not put ammunition in the gun for your spouse to use against you.

That means no dating, no carousing, and no partying. If custody may be an issue it means making the children your number one priority (they should be that anyway, right?).  Even things that are perfectly legal and harmless any other time can be twisted to look suspicious or worse in the hands of your spouse’s lawyer.

Suppose for example that you go out for dinner and drinks with members of the office to celebrate a fellow employee’s birthday.  This sounds harmless enough.  But, in a custody case these questions may be asked: While you chose to go out drinking with your friends, your spouse was at home taking care of the children, correct?  Are you having a romantic relationship with Joe/Jane who was also at the party?  How many drinks did you have that night?  This is something you routinely did during the marriage, isn’t it (i.e. choosing social events over your family)? You drove home that night under the influence of alcohol didn’t you? Etc.

You get the point.  This is a silly example, but why even open yourself up to this line of questioning.  Don’t put the judge in the position having to decide whether you are telling the truth that this was a harmless and isolated event.

Spend time with your kids, work, stay around the house, exercise, and attend to your spiritual life. Be above reproach.  Be Good.  Come to think of it, Its not bad advice whether you are facing divorce or not.

Source:  "Divorce Preparation: Step 13 - Be Good" by Michael Sherman, published at his Alabama Family Law Blog.

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Many cases can get settled simply by getting the parties together to talk.  This type of informal meeting is called a "settlement conference."  The following steps can help you prepare for a settlement conference and improve the chances of its success:

1. Identify the issues in your case.
2. Understand how the law affects your case.
3. Know the estimated costs of trial.
4. Remain open to unique opportunities.
5. Keep a few secrets.   
6. Be determined.   
7. Be ready for a little give and take.
8. Be patient.
9. Get it in writing.

You can read much more about each of these steps by clicking here.

Source:  "Settlement Conference Success" by Helene Taylor, published at The Modern Woman's Divorce Guide.

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I previously posted how online resources can help parents better work together, which will benefit their children.  Online calendars, like Google Calendar, can help parents (whether living together or apart) keep track of their children's activity schedule, which can be hectic and change frequently.

Parents who are separated or divorced can track the child's physical custody (or visitation) schedule, as seen in this example.  Using the calendar in this manner helps both parents will know when the children will be with them on a given day, which helps them arrange transportation for the children's various activities.  The online calendar can also document which parent had the child on which day in case a dispute arises later.  As an added bonus, the calendars print out nicely (like in this sample).

Another (though less obvious) type of online resource that can assist separated parents are document / spreadsheet applications, such as Google Docs & Spreadsheets.  Parents have an obligation to pay certain expenses for their children, such as medical expenses that are not covered by insurance; day care costs; clothing and supplies; extracurricular activities; school lunches; etc.  It is surprising how often disputes arise because one parent claims that the other hasn't paid his/her share, only to have that parent claim that he/she never received the necessary information. 

By using an online spreadsheet (like this sample) to track this information, the parents can track the cost for any types of items, determine each parent's share, and show whether or not that amount has been paid.  Online documents could even be used as a type of journal to exchange necessary information in situations where the parents have severe communication problems.

By using these online resources, parents should be able to minimize or greatly reduce communication problems in the future.  Less friction between the parents should result in them having a better working relationship, which will certainly yield happier, better adjusted children.  Please share your thoughts on these (and other) online resources in the Comments section below.

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This post will follow up yesterday's post about the losses that children suffer when their parents divorce.  Today, we will look at ways parents can help their children cope with divorce.  The fact is that parents can have a positive impact on this process, if they will do the following:

1. Reassurance – Reassure them of your love, and your ex-spouses love for them. Remind them frequently that your divorce had nothing to do with them, that they are not at fault, and that your love for them will never change.
2. Flexibility – Be flexible to meet your child’s needs above your own. If your ex has visitation scheduled for a weekend when your son has a soccer game, let your ex go to the game, and you stay home. Try to work together to meet your child’s needs, and not get petty with visitation scheduling.
3. Respect – Never, never, never, speak badly about your ex in front of your children. Always be respectful of your ex in words and actions in front of your kids. If you want to sound off, do that with your friends, never your kids.
4. Curtail Dating – I believe that when you make the decision to divorce, you also make the decision that your kids come first. Don’t begin dating and introducing new people into your kids lives. It will only add to more loss. If you feel the need to date, do so when the kids are visiting your ex, or when they in bed at night. Your time is limited, and it should be spent with your kids. Only introduce someone to your kids if you are engaged and plan on marrying again.
5. Fake It – Sometimes you won’t feel like being kind towards your ex, and that’s when you’ll just have to fake it. Put a smile on your face, be respectful and nice. Remember, the gift of kindness you are giving is not for your ex, it is for your kids. They need that gift most of all.

Source:  "The Devastation of Divorce" by Trish Berg, posted at Inspired Parenting.

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In her article, The Devastation of Divorce, Trish Berg states that children of divorce suffer a myriad of losses when their parents divorce.  Ms. Berg says that it’s difficult to understand the impact divorce has on the children's lives until we examine the losses they suffer in this process.  She lists the following five main losses children experience during divorce:

1. Loss of Dad - When parents divorce, typically the dad leaves the home, and may not be present much in the lives of the children. This causes an emotional vacuum for the children, and they may feel rejected, alone, and unloved, no matter how much the single parent loves them.
2. Loss of Money – When dad leaves, so does a lot of the money. Economic resource are, at best, cut in half, at worst, single parent families live in poverty.
3. Loss of Security – Kids of divorce often move to a new, smaller home, in a new town, with a new school. They now have to visit their dad. If mom and dad then begin dating, an entirely new stress is added to their lives. Their sense of stability and security is shaken as their world has forever changed.
4. Loss of Harmony – Many kids whose parents divorce feel caught in the middle. The fighting may have stopped, but now Mom may talk negatively about dad, and dad may gripe about mom, all in front of the kids. Parents may play games with visitation, and hold the children as emotional ransom. This loss of harmony causes tremendous chaos and stress for kids.
5. Loss of Simplicity – Life for children of divorce can get very complicated. They have to schedule everything they do, and remember what weekends they are visiting dad so they don’t play in a soccer league with games then. They have to split heir holiday time - Christmas Eve with dad, Christmas morning with mom. And when life events hit, they have to worry about mom and dad being in the same place. Who will come to my eighth grade graduation? Will they see each other? Will they fight? Family life is now complex and chaotic, and that will last for the rest of their lives.

Note from Ben Stevens:  While I agree with many of Ms. Berg's points, her article presumes that the mother will have custody of the children.  Of course, as I have discussed previously on this Blog, that is not necessarily the case.  Fathers who are active in their children's lives have a good chance of getting custody, if they sincerely desire and take the proper steps to do so.

Source:  "The Devastation of Divorce" by Trish Berg, posted at Inspired Parenting.

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Birthdays and holidays can be especially problematic for newly divorced parents who share custody of their children. Naturally, it will take some time for your family to adjust to the new parenting arrangement. Avoiding confusion, ambiguity and the resulting conflict is essential to maintaining healthy relationship with your children. Emily Doskow at Nolo has written an excellent article outlining 10 tips for recently divorced parents seeking to enjoy holidays without conflict and disappointment.

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.

Source:  "10 Tips for Divorced Parents" by Hugh W. Barrow, published at the Kentucky Family Law Blog.

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From the Family Law Taxation blog:

In order for a taxpayer to be entitled to the dependency deduction, the taxpayer must satisfy rather explicit statutory requirements. In the case of a divorce or separation, this can be particularly difficult for the individual that does not have custody (referred to as the "noncustodial parent") -- even if the individual was "granted" the deduction as part of the divorce proceedings.

Dependency deduction for noncustodial parents: The noncustodial parent is not entitled to the dependency deduction unless the individual attaches a valid written declaration (IRS Form 8332 or its equivalent) to their Federal tax return for the year the deduction is claimed. In the event a written declaration relinquishes more than one year, then the original must be attached to the first claimed year and a copy attached to each subsequently claimed year.  For a discussion of these rules -- see FAQ: Dependency Deduction.

In Chamberlain v. Commissioner, the U.S. Tax Court ruled that the former husband (taxpayer) was not entitled to the dependent deduction for one of his children because he didn't attach a valid IRS Form 8332 (Release of Claim to Exemption for Child of Divorced or Separated Parents) to his 2003 Federal tax return (the child credit was also denied because it is premised on being entitled to the dependent deduction for the child). The Tax Court concluded that the attachment of a Post-It note referencing the initial (1995) Form 8332 didn't satisfy the statutory requirement of attaching a valid written declaration.

The taxpayer's former wife executed a Form 8332 in which she relinquished the dependency deduction for one of their two children beginning in 1995 and for all future years. The taxpayer claimed that he attached the original Form 8332 to his 1995 return, but that a subsequent fire destroyed all of his copies. The IRS was unable to provide a copy because their 1995 tax return information had been destroyed (pursuant to IRS document destruction policies).

This result may seem harsh, but as the Court indicated, "Although we are sympathetic with [taxpayer's] plight, we are bound by the wording of the statute as enacted and accompanying regulations when consistent therewith."

Source:  "Dependency Deduction Goes Down in Flames: Tax Court Rules Noncustodial Parent Is Not Entitled to Dependency Deduction Because a Valid Form 8332 (or Equivalent) Wasn't Attached to His Tax Return" published at the Family Law Taxation blog.

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In child custody cases, parents often accuse each other of leaving the child inadequately supervised.  The allegations can be that the child was left home alone or left with someone who cannot properly supervise the child (such as relatives who are too old or too young).  Left Unsupervised: A Look at the Most Vulnerable Children, a 2003 study published by the non-profit research organization Child Trends addressed the large number of children are left without care and supervision by their parents.

Surprisingly, most States do not have regulations or laws about when a child is considered old enough to care for himself/herself or to care for other children.  Some states have guidelines or recommendations that are usually distributed through child protective services at the county level.  Similarly, reports of child neglect can be made to the S.C. Department of Social Services, though the response their tends to be very inconsistent and erratic.

As a practical matter, the difficulty in this area centers on the fact that every child is different.  Establishing a rule that a child must be X years old to stay home alone or supervise other children would not solve this problem, because some children are mature at an early age, some are immature, and many fall somewhere in the middle.  Wise parents base their decision about leaving his or her minor child unsupervised upon careful consideration of the child's maturity and emotional stability.

Family dynamics also must play a part in a parent's decisions about child care. Should a sibling be left in charge of younger siblings? If so, how old should that sibling be? How long should or could he/she be in charge? In some families, it would never work to leave one child in charge because of family dynamics, sibling rivalries, or other special challenges faced by one of more of the children.  The maturity and capabilities of the elected babysitter should be the controlling factors.

To help parents ensure that their children are safe, the University of Michigan Health System has compiled an excellent resource Babysitter Safety - What Parents and Sitters Need to Know.  This website includes the following types of information:  how to choose a babysitter, things to tell the sitter before you leave, information sitters should have, resources for sitters, the dangers of leaving kids home alone, information about problems associated with sibling sitters, and more.

Source:  "Home Alone: Child Care and Babysitter Issues" by Jeanne M. Hannah, published at her Updates in Michigan Family Law blog.

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Cheating spouses now have one more way to get caught in their philandering.  Electronic toll collection systems are emerging as a powerful means of proving infidelity.  Attorneys can obtain records from these services and use that information to prove that a spouse was not where he/she claimed to be. 

The Associated Press reports that agencies in seven of the twelve states surveyed indicated that they would provide electronic toll information in response to court orders in criminal and civil cases, including divorces.  Even if the state agency refuses to provide the information, it can frequently be obtained from the other spouse through the normal discovery process.

Source:  "Toll Records Trip Up Philanderers" by Chris Newmarker, published at The Huffington Post.

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This is the twelfth installment in the excellent series of posts by Michael Sherman of the Alabama Family Law Blog on the steps to take when it becomes apparent that a divorce may be imminent.  His series takes an honest, practical approach in showing people how to protect their interests and make prudent preparations in such a situation.  Here is Step 12 - Consider Hiring a Private Investigator:

We continue our series on practical steps to consider when you are facing an imminent divorce.  We are now on to Step 12 - Consider hiring a private investigator.

Alabama law does consider “fault” when deciding how to divide property in a divorce.  Additionally, depending on the facts, adultery can affect custody determinations.

If your spouse is committing adultery, then you are better off having proof of it then not.  This is the case even where you fully intend to settle your case.  In fact, often having proof of an affair is what gets the case settled at terms that are fair to you.

It is not fun to find out your spouse has cheated, and you may be like many of my clients who have said they would rather not know.  But, you should think carefully before making that decision.  Talk to your lawyer.  Assuming you’ve chosen a good one, listen to their advice.  If you are going to get proof of it, now is the time.  Your lawyer should be able to talk to you about the costs involved (it is not cheap) and how to improve your chances of making the surveillance effective, should you choose to go that route.

Source:  "Step 12 - Consider Hiring a Private Investigator" by Michael Sherman, published at his Alabama Family Law Blog.

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Last week, TechnoLawyer published BlawgWorld 2007, a remarkable collection of 77 essays from some of the most influential blawgs.  I am honored to have two of my blogs, The Mac Lawyer and The South Carolina Family Law Blog, featured in this e-book.  BlawgWorld 2007 also includes the 2007 TechnoLawyer Problem/Solution Guide offers a new way for law firms to find answers to management and technology questions.  This outstanding e-book is now available for immediate download, and I urge you to click HERE (or the graphic at right) to obtain your free copy today.

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What happens when one parent wants to change custody after there is already an existing child custody order?  I have received several inquiries on this topic recently, which is very common this time of year, since school resumes in a few weeks.

In these cases, the parent wanting the change has basically two options, depending on the circumstances of each particular case:

• If both parents agree that custody should be changed from parent A to parent B, the best solution is usually to pursue a child custody agreement.  This process generally involves having an attorney draft a written agreement, which both parents then review.  If it meets with everyone's approval, the parents then sign it, and a hearing is scheduled to ask the Court to approve the agreement.  An Order is issued, which incorporates the agreement into it and most importantly, makes it enforcible if either parent attempts to violate its terms.
• If the parents do not agree, then the non-custodial parent will need to file an action asking the Family Court to change custody of the child.  Typically, the parent seeking custody must prove that there has been a significant or substantial change of circumstances since the parties were last before the Court on this issue.  Next, the Court must determine if the change of custody is in the best interest of the child.  As I have discussed previously on this blog, the Court takes many factors into consideration as part of its analysis, including the child's preference.

Of course, as I noted above, child custody cases are very fact specific, and each case is different.  If you are facing this situation, the best thing you can do for yourself and your child is to seek the advice of an experienced, qualified family law attorney who can help you analyze your case and determine what steps, if any, you should take.

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