Mediation - Resolving Your Own Differences

There is little doubt among professionals who encounter custody and visitation cases, whether those professionals be judges, referees, lawyers, social workers or mediators, that the most qualified people to resolve these cases are the mother and father.  Sometimes, however, the level of communication between the parties is less than ideal.  At other times, one or both parties may not be entirely sure of what their legal rights and responsibilities are and therefore become reluctant to negotiate "in the dark."  It is at times like these that an attorney and/or mediator can be of vital assistance in helping to bridge the gap between parties who are considering litigation. 

At the very least mediation can help crystallize the issues that cannot be resolved without the need for litigation.  Even this is a laudable goal since it will focus the scope of litigation and therefore reduce the time and expense.  But more often, parents who have reasonable expectations can craft a workable plan without the need of litigation.  This is usually ideal for both parties as it allows them to create a plan for parenting time that comports with their own schedules, rather than having a plan imposed on them by a third party stranger and then have to "make it work". 

My advice to parents who are considering litigation is to take the time to meet with the other parent with the assistance of a qualified mediator.  It is a small investment that will pay enormous financial, as well as emotional, dividends. 

Daddy Knows Best. . .Or Does He?

It is not something that is openly discussed in the courtroom.  In fact, most judges and referees charged with hearing custody and visitation cases will usually deny it.  But after practicing in a variety of counties in a variety of courtrooms, for nearly 20 years, I feel it is fairly safe to say that most judges and referees hearing custody cases, particularly those dealing with very young children, proceed with the assumption that the mother is better suited to meet a child's needs.  Perhaps it is a historically based bias, but more and more, fathers are coming to court to assert their parental rights and are too frequently met with skepticism.

To be sure, there is sometimes cause for skepticism.  There are quite a number of custody cases which are initiated by fathers whose singular purpose may be to avoid child support or to retaliate against their former partner.  Unfortunately, even good fathers, or at least well intentioned ones, are forced to overcome this unspoken "presumption". 

Knowing that is half the battle.  The other half is preparation.  A father genuinely seeking custody should be mentally and legally prepared to confront this presumption head on.  From a practical standpoint, it means being able to demonstrate that you have been actively involved in every aspect of your child's life, and not just in the month or two prior to filing the petition.  That would include attending doctor and dentist appointments, school functions and conferences, extracurricular activities, vacations, birthdays, holidays, etc.  It should also include regular contact with the child other than the allotted "visits", or "parenting time" as it is more often referred to these days.  With the availability of email, Skype and texting, fathers have no excuse whatsoever to not have regular contact with their children.  But even when those resources are not available, writing regular letters is just as effective.  To the extent a father seeking custody is lacking in one or more of these areas, it may be advisable to forestall making the application for custody until such time that the father can honestly say that he is fully involved and invested in his child's life, assuming circumstances permit. 

If you are a new father or are unsure of the many issues dealing with parenting, there are ample on-line resources such as www.fathermag.com which can help you get started or enhance your experience as a father. 

Sharing Your Divorce Experience With Your Community

The New York Times has a new, interesting section in which their readers can share their experiences which they went through in their divorces, including before, during and after.  You can click here to be directed to the site. 

It is an interesting notion that the Times has come up with because not everyone has the time, need or inclination to participate in therapy, whether individual or group.  But what we learn from others who have gone through the process can be both enlightening and comforting.  We can also learn how to avoid some of the mistakes that others made either with their children, families, or in court.  It is always traumatic for any family to suffer through a divorce.  Knowing that you are not alone, may make the process a little more tolerable. 

How Do I Get My Kids Back?

It is a jarring experience for any family to have a caseworker show up at your home and tell you that he or she is there to remove your children from your home.  The reasons can vary widely: drug use, domestic violence, excessive corporal punishment, etc.  But what matters most is getting them back.  And one thing to keep in mind is that time is most certainly not on your side.  As discussed in previous posts, with the implementation of the Adoption and Safe Families Act (A.S.F.A) which has been adopted by New York State, courts and state agencies are under strict time constraints as to how long they can allow a child to remain in foster care.  As a general rule, any agency that keeps a child in foster care for 15 of the first 22 months following a removal must initiate a termination of parental rights cases.  Those agencies that stray out of compliance with that requirement are often quickly pressured by judges and referees of the Family Court to commence those proceedings.  Discretion and patience have essentially been factored out of the equation.

The following is not meant as a definitive set of actions you need to take but rather a guideline that will enable you to both get your children back as quickly as possible and to defend yourself should the agency deem it necessary to file a termination of parental rights (or even an abuse or neglect) proceeding against you:

1. Keep a meticulous diary of every interaction with the agency or your child(ren).  This will prove vitally important at a trial as it will enable you to testify in great detail what efforts you made to have your child returned and comply with the agency's mandates without having to rely on memory alone.

2. Don't wait for agency representatives to contact you, call them constantly.  If they do not return your call promptly, call them back.  The caseworker assigned to your case no doubt has many, many cases he or she is dealing with.  Be the squeaky wheel. 

3. As soon as possible find out what services the agency wants you to engage in and make every effort to engage in those services immediately.  Just enrolling in these services can be a daunting challenge but the agency has a affirmative responsibility to assist you with this.  Make sure they do.

4. Visit with your children at every opportunity.  I know this seems obvious, but most often it is a failure to visit regularly that serves as the primary, or at least one of, the bases to terminate your parental rights.  It is no excuse that you had other things to do.  Whatever else is going on in your life, even if it involves your services, visiting with your children consistently is vital. 

5. Make sure you communicate with your attorney regularly and, in that vein, it is of critical importance that your attorney and the agency have up to date contact information for you.

Understand that while agencies may be quick to remove your child, they are not nearly as quick to return them and if your child has been removed from your home you can expect to have to fight for them to be returned.  This means being able to show that you have planned for their return.  Planning for your child's return requires, preparation, vigilance and consistency.  Following the steps provided above and any others you can come up with, with the assistance of your attorney, will be a great start.

"Are You My Mom"?

A mother who had not seen her son since she gave him up for adoption over 50 years ago, finally met her son.  The full story can be found here.  The son's first words to his mother were "Are you my mom?" 

It is a miraculous story.  But more importantly, it is illustrative of a fundamental problem in the law that comes up quite frequently in cases in which an agency is seeking to terminate a person's parental rights.  Ever since the Adoption and Safe Families Act (A.S.F.A.) was enacted in 1997 by the federal government, and subsequently adopted by New York State, there has been a push to achieve permanency in children's lives at all possible speed.  This reaction was intended to prevent lingering stays in foster care that seemed to go on for years without any final resolution.  More can be read about the law here. 

However, a fundamental principle is often lost here.  The bond between parent and child can and often does transcend time.  This problem is most notable when a parent is incarcerated and the court seems willing to terminate parental rights almost on that fact alone because the parent has not been around.  Similarly, the abandonment cases give rise to the same issues.  What the law ignores is that in many situations, time can have a beneficial effect.  Parents who either could not or did not have the wherewithal to be parents can develop into wonderful parents, all the stronger for the hard lessons they have learned.  And a child's need to be with that parent can be profound. 

It is one thing to find that someone has permanently neglected or abandoned a child.  But in the dispositional phases of those cases, courts need to consider more carefully their willingness to sever that precious tie. 

Bound to a Loveless Marriage

It is hard for many of us to imagine that in the 21st century, there are still people who through religion, cultural, social or familial issues feel they have no choice but to stay in a marriage.  There is an interesting story today in the New York Times, and one that I have literally heard firsthand from numerous members of the Orthodox Jewish community.  The story can be found here.  It is a story about, among other things, the way a woman in the Orthodox Jewish community found her way into a marriage without really knowing the man she was marrying and finding great difficulty trying to extricate herself from that relationship.  Sadly, this is not a story unique to Orthodox Jews.  Women in particular, but sometimes men, have reported feeling obligated to remain in marriages or relationships because of the pressure being brought to bear on them by pastors, ministers, rabbis, etc.  Just as often, however, the pressure comes from parents, friends and others in our social circles.  Make no mistake, the pressures these people feel is both tangible and sometimes crushing. 

It is often helpful to these people to find someone outside of these networks or circles of influence to speak to.  It may be a friend, a therapist, or even an attorney. 

Of course, there are many reasons people choose to stay in loveless marriages/relationships: convenience, children, economics, etc.  But when these relationships veer into abusive behavior, it is during these times that the pressures, wherever they are coming from, become unbearable.  What's more, the abuse adds a whole new dimension of emotional trauma which can complicate the situation even more.

If you or someone you know finds themselves in such a situation, it is critically important that outside help be sought.  A therapist can offer a tremendous amount of support, both emotional and by way of referrals to agencies or individuals that can offer other types of assistance.  Attorneys too can help show people who feel trapped in these situations a way out.  At the very least, they can provide them with invaluable information about what their rights and options are.  Often, as with my office, these consultations cost nothing more than your time.  But it is time well spent. 

You can also click here for help in reaching many New York State Domestic Violence Hotlines. 

In short, there are many, many options for people stuck in relationships or marriages whether the reason is social stigma, domestic violence or any of the countless reasons in between.  But there is no reason to suffer through these emotionally trying situations alone.

Another Chilling Reminder

While not necessarily a topic that comes up in Family Court all that often, it is one that concerns parents all over the world.  It is, in essence, every parent's worse nightmare: a child abduction that leads to a child's death. 

NBC News reported here that a 10 year old girl, Hailey Owens, was found dead in the home of the suspected killer, Craig Wood, a forty five year old man who was also an "athletic coach" at a school in which he was also employed as a paraprofessional, someone who works specifically with children with severe special needs. 

As someone who has served as a coach for my own children's sports teams, this is even more jarring incident.  But in every tragedy all we can hope for is to try to learn what we can so that we might bring at least some meaning to an otherwise senseless act.  In that sense, we can learn that we can scarcely be too careful with our most important treasures and that it is always best to err on the side of caution rather than have to spend a lifetime confronting the overwhelming guilt that comes from repeatedly asking. . ."What if. . .?"  Of course, we want to grant our children some independence as Hailey's parents did by letting her walk to a friend's home by herself.  But stories such as these make us second guess those decisions and make us reluctant to grant that independence.  In the process, we try to hold on, and control, and supervise our children later and later in their lives.  As a result, we risk raising sheltered, frightful children who are hesitant to act for themselves. 

Surely, there is a middle ground, but this case imposes a tremendous burden upon all of society because it makes us question not only when we should grant that independence, but perhaps even worse, makes us question our collective decision as parents to trust even those we supposedly and are socially programmed to trust, teachers, religious leaders, coaches, club leaders, and, ultimately, family members. 

I have and will continue to try to find the right balance between granting independence and making sure my children are safe.  All we can do, is hope the lessons we try to teach our children will be enough to save them.