Archives: Recommendation

In most instances, people who take the time to visit a website like this are either enmeshed in domestic relations problems or trying to be supportive of those who are.  No one likes being in this position but statisticians tells us that this is a pretty common event in modern society.

Folks in the “system” are often frustrated.  Very few people want their relationships to fail or to fight over how they will allocate their income, their assets or how and when they will see their children.  But that is what occurs when relationships fail.

When these sad events occur, people tend to want advice.  Of course there is lots of free advice from friends, family, co-workers, and people at the gym who passed a bar exam in Indiana ten years ago and worked briefly for a law firm doing securities work in Indianapolis.  Divorce lawyers who really do this work charge what some would call an unfair amount of money undoing the damage of free advice.  “No, you are not automatically divorced after ninety days or two years or whenever.”  “No you are not entitled to live the frivolous lifestyle you and your spouse had for the last three years of your marriage.” “No, you don’t always get one year of alimony for every three years you were married.” Of course, you were getting much better free answers from your friends who “only want to help.”  In 2008 when your financial adviser told you that Citigroup was a buy at $60 a share, he wasn’t out to ruin you.  He just didn’t know better.

Almost like the sixth sense, people will reach out for free advice when intuitively they know that “professional” advice won’t be what they want to hear.  What does a client want to hear?  They are entitled to live the lifestyle they enjoyed during the marriage.  They want to hear that a father who has left a mother for another won’t get an overnight visit with his child.  The person who wants the divorce must pay the other spouse’s legal fees.   So, check with mother, sis or your brother in Istanbul first before checking with your lawyer.

Anyone involved in the divorce process can tell you it is frustrating, time consuming and expensive.  For most, this is absolutely true.  But part of the reason it is frustrating, time consuming and expensive is because clients (a) don’t like what their counsel is telling them and (b) tend to ignore advice they don’t like because they are getting free advice they do like.

This leads to today’s topic; the unasked question.  It comes out of an experience last week where a client’s former spouse sued him to increase the child support.  While we did not know her income (and the payee’s income has very little to do with the child support amount), our initial analysis was not only that support would not increase, it would most probably decrease.  At the support conference on the modification we exchanged data and the hearing officer came back with a recommendation that did involve a five percentage increase.  We reported all of this to our out-of-state client.  And while we reported that we did not agree with the conference officer’s analysis, the recommendation was not completely off base and merited consideration particularly if one looked at the cost of the next stage of litigation.  The client saw the point and wrote back that much as he loved his lawyer, he did not feel impelled to fight over principle given the dollars involved and that he knew that such a fight was only going to adversely affect their shared child, who would be caught in the middle.

It’s not always that easy.  But what is frustrating to lawyers is that their clients will often tell them things like: “He/She will never get overnight visits given what has happened.” Or “She will have to pay child support based on her last year’s reported earnings” even though she was part of Merck’s recent reduction of 9,000 employees.

The great unasked question is: “What is the likely income if we litigate?”  That is often a complex question with many moving parts.  But it is a question best posed to your own lawyer with the companion question of: “What is the estimated cost to litigate.”  Today, in many instances, the uncertainty of “winning” coupled with the relative certainty of investing in litigation make the question vitally important, and thus, well worth asking.

Anyone who has had their chance to participate in a child custody proceeding at any level knows that the procedures are slow.  Typically courts are requiring parents to attend a parenting class and/or informal mediation before the real games begins and we get to a ruling or order.  This is frustrating but it has a purpose particularly for those who are new to the system.  But some families find that the power struggle between parents produces the need to return to court again and again; often over relatively trivial matters.  The other factor that plays into this is that in most instances, what is needed is not a complete record and adjudication but just a “decision”.  Can a four year old travel to the Middle East with his Father?  Should a nine year old play football if he has already had a concussion?  Does the father’s fiftieth family reunion take precedence over mother’s previously scheduled vacation plans?  In each of these cases, the timeliness of the decision is usually more important than the result.  This has given birth to a new business called Parent Coordination.

The parent coordinator is conventionally a lawyer or mental health profession appointed by agreement of the parties to make these “little” decisions on an informal basis and without the need for a record hearing or legal advice.  They are not appointed to change custody decisions but to smooth them out.  They are supposed to apply practicality and speed to a process that often lacks both features.  I recently watched a full hearing on whether a young child could/should travel to Lebanon for a family reunion.  The “trial” consumed about two hours of judicial time.  As a neutral observer, it occurred to me that most of the issues fully explored at trial could have been pretty careful explored in about 30 minutes of careful informal interview.

 

So what kinds of things do these coordinators take on?  The language from a Mercer County, NJ form agreement does a nice job of explaining:

 

Each party specifically agrees that the Parenting Coordinator may make recommendations regarding possible conflicts they may have on the following issues and that such recommendations are effective as orders when made and will continue in effect unless modified or set aside by the Court of jurisdiction (the parties may exclude specified items from the list):

Dates and times of pick up and delivery

Sharing of vacations and holidays

Method of pick up and delivery

Transportation to and from visitation

Participation in child care/daycare

Bedtime

Diet

Clothing

Recreation

After school and enrichment act ivies

Discipline

Health care management and cost

Alteration in schedule which do not substantially alter the basic time sharing agreement

Participation in visitation (significant others, relatives, etc.)

Other (specify)

The Parenting Coordinator will have the authority to make recommendations on the following issues.  The recommendations shall be submitted to the Court, which may approve them and enter them as Court orders.  These recommendations will be effective when adopted by the Court, and can be reviewed only upon a hearing de novo at which the moving party has the burden of proof.

Private school education and cost

Religion and religious training

Attendance at religious services

Significant changes in vacation and holiday schedules

Supervision of visitation

Time share changes which do not alter the child’s primary residence

Appointment of counsel for child

Participation by parents and/or child in physical examinations.

Participation by parents and/or child in psychological examinations, assessments, and psychotherapy including selection of a therapist for the child when the parties cannot agree. The cost of psychotherapy for the child shall automatically be shared by the parties equally in the absence of any provision to the contrary in a current Court order.

Participation by the parents and/or child in alcohol and drug monitoring/testing.

The Parenting Coordinator’s role can become a powerful one and therein lies the rub.  A common complaint is that the parties have gone from too little access to judicial intervention to too much. Because they charge an hourly rate for their services, clients have had access to parent coordinators on weekends and evenings.  That can seem like a good thing but, in some instances, one party will insist that every dispute, no matter how trivial, requires a “ruling” from the parent coordinator.  This is something you may want to think about before signing up.  In many instances these agreements are tailored to limit access to parent coordination.