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

The U.S. Consumer Product Safety Commission offers the following tips on costumes, treats and decorations to help your children trick-or-treat safely this year:

Costumes:

• When purchasing costumes, masks, beards and wigs, look for flame-resistant fabrics such as nylon or polyester, or look for the label "Flame Resistant." Flame-resistant fabrics will resist burning and should extinguish quickly. To minimize the risk of contact with candles and other fire sources, avoid costumes made with flimsy materials and outfits with big, baggy sleeves or billowing skirts.
• Purchase or make costumes that are light, bright and clearly visible to motorists.
• For greater visibility during dusk and darkness, decorate or trim costumes with reflective tape that will glow in the beam of a car's headlights. Bags or sacks also should be light colored or decorated with reflective tape. Reflective tape is usually available in hardware, bicycle and sporting goods stores.
• Children should carry flashlights to see and be seen.
• Costumes should fit well and not drag on the ground to guard against trips and falls.
• Children should wear well-fitting, sturdy shoes. Oversized high heels are not a good idea.
• Tie hats and scarves securely to prevent them from slipping over children's eyes and obstructing vision.
• If your child wears a mask, make sure it fits securely, provides adequate ventilation, and has eye holes large enough to allow full vision.
• Swords, knives and similar costume accessories should be made of soft, flexible materials.

Treats:

• Warn children not to eat any treats until an adult has examined them carefully for evidence of tampering.
• Carefully examine any toys or novelty items received by trick-or-treaters under three years of age. Do not allow young children to have any items that are small enough to present a choking hazard or that have small parts or components that could separate during use and present a choking hazard.

Decorations:

• Keep candles and Jack O' Lanterns away from landings and doorsteps where costumes could brush against the flame.
• Remove obstacles from lawns, steps and porches when expecting trick-or-treaters.
• Indoors, keep candles and Jack O' Lanterns away from curtains, decorations and other combustibles that could catch fire. Do not leave burning candles unattended.
• Indoors or outside, use only lights that have been tested for safety by a recognized testing laboratory. Check each set of lights, new or old, for broken or cracked sockets, frayed or bare wires, or loose connections. Discard damaged sets.
• Don't overload extension cords.

Source:  "CPSC Reminds Parents to Keep Trick-or-Treaters Safe this Halloween"

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The American Bar Association's Section of Family Law publishes charts in its Family Law Quarterly which summarize the basic laws in each state by topic, including custody, alimony and grounds for divorce.  These charts are current as of November 2006, and they are useful as a quick reference to both attorneys and clients.  Charts are available on the following subjects:

• Alimony/Spousal Support Factors
  
• Custody Criteria
  
• Child Support Guidelines
  
• Grounds for Divorce and Residency Requirements
  
• Property Division
  
• Third-Party Visitation
  
• Appointment Laws in Adoption, Guardianship, and Parentage Cases
  
• Download All Charts

Source: Thanks to John Harding for his article on this subject published at his California Divorce Blawg.

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The new passport requirements that complicated travel this past summer have also uncovered vast numbers of parents who owe back child support.  Through its Passport Denial Program, the State Department denies passports to noncustodial parents who owe more than $2,500 in back child support. Once the owing parent has satisfied their child support arrearage, they may reapply for a passport.

Considering that millions of additional travelers are now required to have passports to fly back from Mexico, Canada, the Caribbean, and South America, collections under the Passport Denial Program are on pace to almost double this year.  States have reported collecting at least $22.5 million through the program thus far in 2007.  Perhaps this is one program that the government has finally gotten right.

Source: "New Passport Rules Help Recover Back Child Support" by Dan Nunley, published at his Oklahoma Family Law Blog.

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The South Carolina Association of Legal Investigators (SCALI) asked me to speak yesterday at their Fall Conference, held this year in Greenville, SC.  Almost 100 investigators attended my presentation on the topic of "Effective Investigations in Child Custody Cases."

During my talk, I gave the investigators three tips to help their investigations in these types of cases:

1. Let the clients know the following information:
   a.   What your investigative plan is for their case;
   b.   When you anticipate starting to work on their case;
   c.   When you will (and won't) be working their case; and
   d.   How much you anticipate charging for your services.
2. Spend time with the client at the beginning to find out as much as you can about facts that existed at time child custody was last addressed by the Court.  This can be particularly helpful in custody modification cases.
   
3. Review copies of the pleadings and Affidavits filed by both parties to help learn as much about each party's allegations so that you can help prove your client's allegations and disprove the opposing party's allegations.

The investigators present had great questions for me, and I appreciate their willingness to learn as much as they can to become the best investigators possible.  Thanks again to SCALI for inviting me to speak at their conference again this year.

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The South Carolina Family Law Blog is proud to sponsor a youth baseball team (the Braves) in the Spartanburg County Recreation Department's 7-8 year old fall baseball league.  Our season began this week, and we have a great group of kids again this year.  I have volunteered as a little league coach for several years, and it is always great to see these boys and girls learning to play baseball and work together as a team.  Go Braves!

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One of the many factors that the Court considers in child custody cases is the school and educational resources available at each parent's residence.  In other words, if the parents live in different school districts, how do they compare to each other? 

If both parents live in the same city or county, the information is usually easy to access and present to the Court. However, when the parents live in different states, it is somewhat more difficult.  In cases where the parents do not live in the same location, this issue can be even more important.

Fortunately, SchoolMatters.com is an online resource that enables parents (and their attorneys) to compare schools based upon performance of students on standardized tests, teacher-pupil ratios, and other critical factors.  This resource is a service of Standard & Poor's, and it is free.

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I have previously written about how the Family Court considers a child's preference in custody cases.  On his new Minnesota Divorce and Family Law blog, Gerald Williams addressed this subject a few weeks ago, as follows:

If I had to name the question that comes up most often, it would be this one: how old does a child of divorced, separated or unmarried parents have to be to decide which parent the child wants to live with? In typical manner, the answer is not a simple one. There is no fixed age when a child celebrates a certain birthday and suddenly holds the trump card to influence a family court judge's decision regarding child custody. It is safe to say that a 3-year-old is too young to decide. And a 17-year-old with car keys and an attitude can wield a certain amount of control over where they spend the night.

It is the ages in the interim that make things more complicated. At some point between age three and seventeen, most youngsters gains sufficient maturity to express to a guardian ad litem or custody evaluator a preference to live with one or the other parent. The guardian ad litem or custody evaluator may pass that information on to the family court judge if it believed to be sufficiently reliable and not based on the undue influence of the "preferred parent." But that point in time is not the same for every child. Therefore, it is something that is considered on a case-by-case basis.

Moreover, in most cases, if the child expresses a reliable preference for one parent, there will be other factors that support placing the child in that parent's custody. The family court might be informed that the child has such a preference, but also that the "preferred parent" provides the child with a more stable home environment, has a significant other or extended family members with whom the child has a good relationship, and/or is more inclined to support the child's contact with the other parent.

That gives the family court impetus to award custody to the "preferred parent" without resorting to the child's preference as a basis for the custody decision. Family court authorities and children's therapists are loathe to place a custody decision on the shoulders of the subject child. A child custody arrangement is required by law to be based upon the child's best interests as a whole, and if at all possible, the family court will avoid rendering a custody decision that can be said to be based primarily on the child's preference.

Source:  "Child Custody: Where Does The Kid WANT To Live?" by Gerald O. Williams, posted at his Minnesota Divorce and Family Law blog.

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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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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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A mother who lost custody of her three children in a divorce has argued to the Washington Supreme Court that she should have had an attorney appointed to represent her.  The woman, who only has a ninth-grade education, attempted to get pro bono representation, but she was declined because of the complexity of her case.  As a result, she ended up representing herself, while her husband had an attorney.

Her appeal focuses on the open courts provision of the Washington state constitution includes an open courts provision, which says that justice in all cases should be administered openly, and justice shouldn’t be delayed.  The argument being made by the mother's appellate attorney is that "access" in this instance means "meaningful access," which requires a lawyer.

You can read much more about this novel theory in the article referenced below.  You can also follow this case, King v. King, No. 57831-6-1, at the Washington Supreme Court's website.

Source:  "Mom Wants State to Pay in Custody Battle" by Stephanie Francis Ward, published in the ABA Journal eReport.

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For many people, conceiving a child is easy, but figuring out who should pay child support for that child can be complicated.  In South Carolina, if a child is born during a marriage, the husband is presumed to be the legal father of that child.  If the wife had an adulterous affair, the husband will need to bring add her lover as a party to the Family Court case so that the lover can be declared the legal father of that child.  Should the husband fail to do so, he could be stuck with all of the financial responsibility for that child, even though it isn't his biological child.

The National Center for Health Statistics reports that more than a third of children born in the United States are born to unwed parents.  The alleged father may (or may not) be the biological father, depending on the mother's sexual activity.  When one of my clients is alleged to be the father of a child, I typically recommend that he have a DNA paternity test conducted to be sure that the child really is his.

AskMen.com reports that there has even been a group founded to deal with such issues:  U.S. Citizens Against Paternity Fraud.  Its founder, Carnell Smith, has even proposed mandatory DNA testing upon the birth of a child, because, as he claims, “it's not a crime for someone to lie about which man is the father… [and] the mother doesn't have to return the money and rarely, if ever, is she prosecuted for perjury, for fraud."

I don't know that I would go as far as Mr. Smith has suggested, but I do believe that every child should have the right to know and have a relationship with his/her parents, as long as those parents act reasonably and responsibly.  What do you think about his proposal?

Source:  "Child Support When It's Not Yours" published at AskMen.com.

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