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Contempt Actions and Modifying Visitation

Wednesday, November 26th, 2014

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If you are denied court ordered visitation with your child you should contact an attorney and consider filing a contempt action. Nonetheless, during a contempt action, can you ask the court to modify the visitation or child custody provisions in your court order? Under Georgia law, visitation rights may be modified upon motion by any party or the judge during a contempt proceeding, however custody may not be modified in a contempt proceeding. O.C.G.A. § 19-9-3(b).  A recent Georgia case clarified this difference further.

In Weeks v. Weeks, the Father brought several contempt actions against Mother for denying him court ordered visitation with his child. Weeks v. Weeks, 324 Ga. App. 785, 786 (2013).  After finding Mother in contempt several times, the trial court ordered Mother jailed until “receipt of an affidavit guaranteeing supervised visitation by the father with the child.” Id. By Final Order of November 8, 2010, the trial court found that continued custody by Mother was in the child’s best interest and ordered supervised visitation by Father. Id. In December 2012, the trial court found Mother in contempt again for denying Father visitation and for blocking regular telephone visitation. Id. The trial court found that the supervised visitation was putting a damper on Father’s relationship with the child and modified the Parenting Plan by deleting the requirement of supervision. Id. In addition, “the trial court also scheduled a compliance hearing for January 31, 2013, ‘[b]ecause there have been such extensive problems with compliance with the Court’s orders in the past.’” Id. Mother filed a notice of appeal prior to the compliance hearing, and after the compliance hearing, the trial court entered an order changing physical custody of the child to Father. Id.

Mother argued that changing visitation from supervised to unsupervised was an error by the trial court because she was not put on notice of the change and the trial court was not authorized to make that change in a contempt hearing when there was insufficient evidence to support it. Id. at 787. The appellate court noted that under O.C.G.A. § 19-9-3(b), “the trial court is expressly authorized to modify visitation rights, on the motion of any party or on the motion of the judge, during a contempt proceeding.” Id. (citing Cross v. Ivester, 315 Ga. App. 760, 766 (2012)). The appellate court stated that “although custody may not be changed in a contempt proceeding, we have long held that [OCGA § 19-9-3 (b)] allows the modification of visitation rights, even on the court’s own motion.” Id. (citing Horn v. Shepard, 292 Ga. 14, 18-19 (2012)). The appellate court found that there “was more than sufficient evidence to indicate that the mother was refusing to allow visitation, even supervised, as provided in the trial court’s previous orders and that there was adequate reason to change the conditions of visitation.” Id. 787. Regarding Mother’s claim that the she was entitled to notice and time to prepare an adequate  response to the request for a change in visitation, such notice is not required by O.C.G.A. § 19-9-3(b) or anywhere else under Georgia law. Id.

By: Jason W. Karasik, Associate Attorney, Meriwether & Tharp, LLC

Man in Michigan Owes Child Support for Child Who Isn’t His

Tuesday, November 25th, 2014

Generally, child support can be explained quite simply: If you have a child who is living with his/her other parent, you will owe some amount of child support. It seems obvious to say that a person will not owe child support for a child that is not his/hers. However, a man in Michigan is facing jail time for not paying $30,000 in child support for a child that is not his. Court says man owes child support for kid who isn’t his, by Katherine Biek, ajc.com, October 28, 2014.

The facts in this case are almost unbelievable.  Carnell Alexander’s ex-girlfriend put his name down as the father of her child when she applied for state assistance 27 years ago. She put his name down only after being told that failing to list a father (or a list of potential fathers) could result in her benefits being reduced or cancelled.  Once she listed his name, the child support began accruing, despite the lack of other evidence that he was the father. Alexander didn’t even know she had listed him as the father until he was pulled over for a routine traffic stop a few years later and found out there was a warrant for his arrest for failing to pay $70,000 in child support.

Now, despite having a DNA test that proves he’s not the father, he shockingly remains on the hook for the money.  A Michigan judge said that Alexander is still required to pay $30,000 owed to the state since he never signed a summons issued to him.  But Alexander has alleged that he wasn’t even aware of the child support case or summons because he was in prison at the time it was filed. Even the ex-girlfriend is stepping up to try to help Alexander.  According to the article, she knows that his predicament is her fault, and she has reached out to the court on his behalf.  In addition, the real biological father is in the child’s life now, which makes everything that much more preposterous.  Despite all of these facts, which seemingly discharge Alexander of this obligation, the Michigan court is remaining firm: pay the back-owed child support in the amount of $30,000 or go to jail.

If you are a man who is being alleged to be the father of a child, and you do not believe you are that child’s father, get a DNA test immediately. Then, if you are ever served with a child support case, do not ignore it, just because you have DNA results proving you are not the father. Make sure you timely respond to the case and submit your DNA results. You will need a court order declaring you are not the father to make sure you do not end up on the hook for child support payments. Once you do get this order, keep it in a safe place so you can find and use it as needed in the future.

Break Ups and Social Media

Tuesday, November 18th, 2014

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This site has featured several articles about how social media can have an impact on your relationship and/or divorce. It is important to remember that airing your dirty relationship laundry on social media sites such as Facebook can do more harm than good. However, despite knowing that anything posted on Facebook can be seen by, at a minimum, your Facebook friends (or more depending on your privacy settings), people, including those in the public eye, often can’t seem to resist publicizing tidbits about their relationships.

U.S. Senate candidate, Thomas Ravenel, recently ranted about the mother of his child, actress Kathryn Dennis, on Facebook, then announced that their relationship was over. Thomas Ravenel on Facebook: Relationship with Kathryn Dennis is over, by Andy Paras, The Post and Courier, October 27, 2014. Specifically, Ravenel’s post read as follows: “When the allegations surfaced that I had assaulted Kathryn Dennis’ hairdresser, I pleaded with Kathryn to leave the Bravo shoot in Jekyll Island. They had even packed her bags and had lined up a driver. She told me she was coming to clear my name but then she backed out at the last second and delayed telling the truth by 1 an ½ day. $900K of my campaign money down the drain. The investigators even told me that if she would have just come collaborated the accuser’s story I would be cleared. The temptation of missing film time was more valuable to her. So telling. Our relationship is over.” Ravenel was clearly angry and wanted to tell his side of the story when he wrote that post, but he comes off looking childish and petty. As a political candidate, this is likely not the impression Ravenel wants to have.

It is prudent to take a step back, take a deep breath and think before airing dirty relationship laundry on social media. When you post in anger, there is a high probability you will write something you later wish you could take back. You can certainly delete the post, but you cannot erase it from the minds of those who already read it. Not only can these posts exacerbate an already contentious divorce case, but they may also be used against you in court. For this reason, most divorce attorneys will recommend that you refrain from posting anything about your relationship/divorce on social media sites until the case is over.

 

Same-Sex Marriage Update

Saturday, November 15th, 2014

Last month, the United States Supreme Court declined to hear several cases brought by states seeking to keep same-sex marriage bans in place. By declining to hear these cases, the Supreme Court has implicitly paved the way for same sex marriages in five states. Same-sex marriage gets tacit victory from Supreme Court, by Ashley Fantz and Bill Mears, CNN, October 6, 2014. Indiana, Oklahoma, Utah, Virginia and Wisconsin appealed rulings in their respective states overturning bans on same sex marriages. The Supreme Court’s refusal to hear these appeals essentially means that same sex marriage is legal in those states, as the state courts had ruled the gay marriage ban unconstitutional.

According to legal experts, this inaction by the Supreme Court could impact other states as well. The same circuit appeals courts from which these appeals arose also cover Colorado, North Carolina, South Carolina, Kansas, West Virginia and Wyoming. As such, these states may, too, have to soon lift their bans on same sex marriage and begin issuing marriage licenses. There would then be 30 states permitting same sex marriage – a clear majority in this country. (This number includes the states mentioned above and California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Vermont, Washington, and the District of Columbia.)

Not surprisingly, outrage followed this decision on both sides of the debate. Even those who support same sex marriage would have preferred a definitive answer on the issue. Legal experts do believe a more definite answer is on the horizon, but that the Justices are just not quite ready to take it up. Certainly this is not a topic that is going away anytime soon and we will continue to keep you updated as the Supreme Court and the various states address the issue.

 

Divorce Illegal in the Philippines

Tuesday, November 11th, 2014

In the United States, many people take the daily freedoms we have for granted – including the freedom to divorce. There are laws that people must abide by in obtaining a divorce, but the result is the same. If spouses no longer want to be married, they have a legal option to dissolve their marriage. Such is the case in most of the world, except for the Philippines. Currently, the Philippines is the only country in the world, except for Vatican City, which has no divorce laws. The fight to make divorce legal in the Philippines, by Sunshine Lichauco de Leon, cnn.com, October 6, 2014. Spouses are, therefore, trapped in their marriages, whether they want to divorce because of adultery, abuse, or just irreconcilable differences. The have the option of legal separation, declaration of nullity, or annulment, but these options are very fact specific, extremely costly and time consuming. In addition, they do not give people what they are looking for – a complete and total separation from each other.

There is, however, a new bill before Congress that seeks to afford Filipino citizens the right and opportunity to divorce. The proposed bill still comes with strict restrictions. For example, “married couples must have been living separately for a minimum of five years with no hope of reconciliation…or legally separated for at least two years.” Id. This is a long time to remain tied to another person, particularly if one spouse wants to get remarried, or if there are allegations of abuse. The proposed bill, however, promises to be much quicker (once you get through the waiting period) and less expensive than the current available options. In addition, there would be procedures in place for settling outstanding issues such as division of property, child support and spousal support.

While legalizing divorce sounds like a no brainer, there is strong opposition to the bill, particularly from religious groups. A representative of the Catholic Church, which accounts for a large majority of the Filipino population, has said, “We are opposed to legislation which would enable the state to break the marriage bond so that the couple can each remarry.” Id. In addition, the church fears that it will encourage unnecessary divorces and cause damage to the children involved. While separation of church and state is mandated by the Philippines’ constitution, according to the article, “many lawmakers and citizens believe the political pressure being exerted by the Catholic Church reduces the chance of he bill passing anytime soon.” These leaves many unhappy people trapped in unhappy, or even abusive, marriages with no chance of legal escape. Hopefully the politicians can stand strong against religious pressure and give these people an option to have a better life.

 

Small Acts of Kindness Can Help Co-Parenting

Sunday, November 2nd, 2014

When you go through a divorce and there are children involved, you and your ex-spouse are tied together for life – whether you like it or not. But regardless of how you feel toward your ex, there are small acts of kindness you can undertake to show the other parent that you appreciate their love and care for your children, and to try to make the co-parenting experience as painless as possible for everyone:

  1. Help the children acknowledge/celebrate their other parent’s birthday. – Take them shopping for a card or gift. Help them bake a cake. Encourage young children to draw a birthday picture. It doesn’t have to be anything elaborate or expensive.  Your ex will appreciate it and your children will be proud that they can give their parent a little something to celebrate.
  2. Make copies of artwork/school work that your child brings home to give to the other parent. – Often only the parent with whom the children live will have the benefit of seeing all the work that comes home from school.  The other parent may only see schoolwork at teacher conferences but, likely, would appreciate having copies of what the children are doing at school. Many young children come home with a plethora of art projects that could easily be split between the parents.
  3. Make copies of photos of the children’s childhood. – It is likely that only one parent has the pictures taken of the children/family during the marriage. If the pictures were taken before digital cameras, make color copies for your ex. If the pictures are all on the computer, upload them to a photo-sharing site and send them to your ex.
  4. Make sure the children have all their “lovies” and other necessities before going to sleep at the other parent’s house. – Nothing will ruin visitation or custodial time faster than a child forgetting his favorite blanket at the other parent’s house. Do your best to make sure your child has everything they need to be comfortable and, if a child forgets something, offer to bring it over.  Your ex, and your child, will thank you.
  5. Say thank you. – This one is easy, but often forgotten. If your ex does any of the above for you, or anything else thoughtful, thank him/her for it. Showing your appreciation will hopefully make him/her continue with these kind actions and lead to a better co-parenting experience for all!

Same Sex Marriage and Divorce

Wednesday, October 29th, 2014

As more and more states are legalizing same sex marriage, the number of same sex couples who have gotten married has naturally increased. Like with any marriage, same sex spouses may encounter marital problems and make the difficult decision to get a divorce. However, divorcing a same sex partner may not be as procedurally straight forward, particularly if the couples has moved from the state in which they were married to a state that does not recognize same sex marriage. For example, same sex marriage is currently prohibited in Georgia. OCGA §19-3-3.1(a). Further, the law in Georgia is clear that the courts “have no jurisdiction whatsoever under any circumstances to grant a divorce or separate maintenance with respect to such marriage or otherwise to consider or rule on any of the parties’ respective rights arising as a result of or in connection with such marriage.” OCGA §19-3-3.1(b). Thus, if a same sex couple gets married in New York (where same sex marriage is legal) and then moves to Georgia, they will have absolutely no recourse in the court system if their marriage later falls apart.

So what is this couple to do? The answer is not clear. Most states require that a party be a resident of that state for a certain period of time before they may file for divorce there. In Georgia, for example, a person cannot file for divorce unless he/she or his/her spouse has lived in the state for at least 6 months. OCGA §19-5-2.  While each state has different residence requirements, they all have some sort of time requirement in place to prohibit people from shopping around for the best place to get divorced.  This puts same sex couples in a very difficult position.

It is possible that the majority of same sex couples will remain in the state in which they were married, since that state clearly provides rights and protection to same sex couples. However, sometimes a spouse may have to move due to a job or otherwise.  While the outcome is not clear right now, hopefully, if same sex marriage continues to become recognized in more states, a solution will be found.

Alimony in Georgia: How Much Does Length of Marriage Really Matter?

Wednesday, October 22nd, 2014

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Among the four parts of Georgia divorce, which include equitable division, alimony, child custody, and child support, alimony is probably the most popular subject by far. Although alimony is oft discussed, it is also likely the most misunderstood component of Georgia divorce.

The misconceptions regarding alimony include, among others, that alimony cannot be awarded to men, that alimony is a lifetime award in all cases, and that alimony cannot be terminated once awarded. Another very popular misconception about alimony is that the length of the marriage dictates the award of alimony. Put plainly, many believe that less alimony will be awarded for shorter marriages and more alimony will be awarded upon the dissolution of longer marriages. Although the length of marriage is one of the factors that Georgia courts use to determine the amount and duration of alimony, if alimony is awarded at all, this is only one of several factors. According to Georgia law:

“The following shall be considered in determining the amount of alimony, if any, to be awarded:

   (1) The standard of living established during the marriage;

   (2) The duration of the marriage;

   (3) The age and the physical and emotional condition of both parties;

   (4) The financial resources of each party;

   (5) Where applicable, the time necessary for either party to acquire sufficient education or training to enable him to find appropriate employment;

   (6) The contribution of each party to the marriage, including, but not limited to, services rendered in homemaking, child care, education, and career building of the other party;

   (7) The condition of the parties, including the separate estate, earning capacity, and fixed liabilities of the parties; and

   (8) Such other relevant factors as the court deems equitable and proper.”

O.C.G.A. § 19-6-5. As indicated by the above cited statutory law, in addition to the length of marriage, there are 7 other factors that a court is required to consider in determining the award of alimony. Thus, even in the case of a relatively short marriage, the presiding court may make a large award of alimony.

This contention is made clear in the case of Sprouse v. Sprouse, 285 Ga. 468 (2009). In this case, decided by the Georgia Supreme Court in 2009, the Supreme Court upheld a grant of 13 years of alimony, based on a marriage that lasted only two years. Although such an award for a marriage of only two years is extremely rare, at trial, the trial judge determined that since the total length of the couple’s relationship was 13 years, including time they were together prior to getting married, the court considered the award of alimony appropriated. The Supreme Court agreed.

This case is a prime example of why seeking the guidance and advice of a team of divorce professionals is necessary for anyone seeking to begin the divorce process in Georgia. Georgia family law is one of the most complex and fact driven areas of law, so only experienced Atlanta divorce attorneys, familiar with Georgia divorce law and tendencies of local judges, can accurately anticipate and prepare for how a court may rule.

International Custody Battle In The Headlines

Sunday, October 19th, 2014

In a divorce case involving children, the final divorce decree will set out in detail the custodial rights of each parent.  This includes who has primary physical and/or legal custody, when the child will physically be with each parent (visitation), and which parent has final decision making authority.  The divorce decree will also detail other guidelines the parents must follow post-divorce, such as that a parent must notify the other if they are moving out of town and that a parent cannot take the children out of the country without the consent of the other parent.

A violation of this last guideline recently resulted in a United Airlines flight returning back to Washington Dulles International Airport at the request of the FBI.  Alleged international parent kidnapping diverts flight, by Katia Hetter, cnn.com, September 5, 2014. In that case, the mother was attempting to fly to Beijing with her child. Once the flight landed back at Dulles, federal law enforcement officers met the plane and took a mother into custody “on suspicion of committing an international parent kidnapping.”  Apparently, the mother and father had a recent custody agreement, which prohibited either party from travelling outside the United States with the child “without express written and notarized consent of the other party, provided in advance of the trip.” In an interview with law enforcement, the mother admitted violating this portion of the custody agreement.

Not only is this mother in contempt for violating a provision of her custody agreement, it is a federal crime for parents “to remove or attempt to remove a child from the United States, or retain a child outside the United States with intent to obstruct another parent’s custodial rights.” 18 U.S.C. § 1204.  At this point, the mother’s intent is not known, but it can probably be assumed that she was not going to take the child for a quick weekend to Beijing. Thus, now she will be the defendant in multiple court actions and has a serious chance of losing custody of her child.

Midlife Eating Disorders and Divorce

Wednesday, October 8th, 2014

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Divorce is often hard on both parties, both emotionally, mentally, physically and economically. The loss of a relationship, the economic consequences normally associated with divorce, and the stress that comes along with the divorce process can lead to myrid health and wellness concerns. Depression, anxiety, and stress related physical symptems are the wellness concerns most popularily linked to divorce. But, there is another wellness concern associated with divorce that may be surprising to most: eating diorders.

When one thinks of eating disorders, the thought that may immediately come to mind is that such disorders are only suffered by highschool or college aged individuals. However, it is not uncommon for men and women to experience such disorders in midlife after dealing with the stress and emotional strain caused by divorce. Many people who get divorced in midlife have not been on the dating scene inseveral years. So, loneliness or fear or rejection may lead to them to engage in unhealthy weight control practices to maintain what they view as an acceptable or more “marketable” appearance. Additionally, the feelings of chaos caused by divorce may also compell individuals to take control of, or order, one of the few areas of life they still feel as if they control, eating.

Because eating disorders are emotionally based, it is imperative for those suffereing with any form of eating disorder to seek professional help to deal not only with the disorder by also with the underlying emotional or stress related issue. If you or anyone you know has gone through a divorce or is currently going through the divorce process, and may be dealing with an eating disorder, contact the National Eating Disorders Association hotline at 1-800-931-2237 for more information and assistance.