Anyway… recently, I ran into an old friend, Joey, from high school and we ended up talking about his life since I last saw him.  Joey was a pretty popular kid when we were in school together.  Despite the fact that our school didn’t have very strong sports teams, Joey was a star-player on our school’s basketball team nonetheless, which is why he was also popular among a lot of the female students.  And in our senior year, Joey hooked up with Deborah, a shy, yet nice girl from our school.  Everyone thought they were the cutest couple and that they were headed to good successful places.  So when Joey told me that he was getting divorced, I was shocked.  Even more surprising was when he told me how things between he and Deborah had soured to the point where they were no longer talking and that he was locked in a bitter custody battle with her.

I was shocked, even more shocked than when I discovered the drying power of ShamWow!

Joey wanted to have primary custody of the children.  He told me how other divorced guys he knew all either lost complete custody of their children or were limited only to visitations rights.  Joey didn’t want to keep Deborah from seeing their children.  In fact, he wanted her to be a very active part in their lives.  But what he didn’t want was to become like all the other divorced dads he knew.  He didn’t want to be limited to only visiting his children because he was worried that it’d make his children distant.  He wanted to know what his options were.

Well, I didn’t know what to tell him since anyone in or heading toward a career in lawyering knows that the answer to every legal question is that “it all depends.”  Laws can be ambiguous and outcomes vary all the time and are dependent on a number of things as facts can always be distinguished to appear different from other cases tried before it.

Generally, in California and most states, courts usually award custody to the primary caregiver, meaning the person who spends the most time with the child.  Usually that translates to the person who doesn’t hold paid employment and raises the child, but when both parents work, like in Joey’s case, it comes down to fitness and a calculation of time spent with the child.

Joey isn’t alone in his predicament.  A vast majority of family law cases received by LegalMatch are about child custody battles.

The best advice I could give to my friend was to seek the counsel of a qualified family law lawyer.  Because regardless of the legal situation, case outcomes are not always predictable.

Child Custody Battles In My Own Backyard is a post from: LegalMatch Law Blog

However, this post from the Wall Street Journal Law Blog shows what can happen when the legitimate mission of state Child Protective Services agencies can become sidetracked by puritanical hysteria.

According to the post, parents took innocent pictures of their children in the bathtub. When they went to a local Wal-Mart to have the pictures printed, an employee decided that these pictures constituted child pornography, and turned them over to the police.

The parents were arrested, and their daughters were taken away from them for over a year. During that time, they were required to register as sex offenders. The couple spent $75,000 in legal fees, and the mother was suspended from her job. According to recent interviews with the parents, it took a long time before they were comfortable taking any pictures of their children again, regardless of the setting.

In the end, they were cleared of all wrongdoing, the charges were dropped, and their children were returned after a year living away from their parents.

All sane people recognize that sexual exploitation of children is one of the most evil and disgusting things that human beings are capable of. I don’t know exactly how pervasive the problem is, but one instance of it is one too many. I also don’t know what has happened to our society that people would consider innocent pictures of children, the type which the vast majority of parents take, could be construed as child pornography by any person capable of obtaining employment (even if it is a job at Wal-Mart’s photo department) as child pornography.

Furthermore, this case used up limited resources that could have been used to investigate and prosecute actual instances of child sexual abuse. An argument could be made that, because of the actions of this employee, and the decision of the police and CPS to pursue this frivolous investigation for so long, real cases of abuse went unpunished, and children suffered as a result.

According to recent LegalMatch statistics from the last 12 months, reports of child abuse continue to be common. In most of the cases, the alleged abuser was a parent or someone else who had a confidential relationship with the child, such as a teacher or coach. This demonstrates the need for a robust system that protects children from abuse, and that any frivolous allegations should be dismissed, after being sufficiently investigated, lest real cases of child abuse go unpunished.

Better Safe than Sorry? When Puritanical Hysteria Harms Children is a post from: LegalMatch Law Blog

This case raises quite a few interesting legal issues, not the least of which being whether a Florida court even has the jurisdiction to rule on the parental rights of a family in Ohio.

However, it also raises other legal and practical issues: there does not appear to be much evidence supporting this girl’s claims. On the other hand, the allegations are extremely serious. What weight should be given to such allegations? In cases such as this, should there be some sort of sliding scale that decreases the standard of proof as the severity of the harm alleged increases? This may make logical sense, but raises many practical issues, as well.

This girl is 17 years old, meaning she will be 18 in less than a year, at which point she’ll be legally able to sever any relationship she has with her parents. Whatever the merits of her allegations (again, there does not appear to be any concrete evidence supporting them at this point), it is clear that her relationship with her parents is less than perfect. Would anybody’s interests be served if she were forced to return to her family, when she could legally move out in a matter of months? Given what we currently know about the facts of this case (not much, at this point), it seems that, whatever her reasons, she will probably choose to leave her family when she is legally free to do so.

On the other hand, if her testimony lacks any credibility, and she cannot articulate any other reasons that a court should terminate her parents’ custody over her, a court might reasonably conclude that this is simply a case of teenage angst taken to extremes.

If this girl is telling the truth, the sad fact is that her story would not be a new one, though the particular facts are unique. According to LegalMatch case data, the majority of recent cases with issues of child abuse involved alleged abuse by a parent or stepparent. While we don’t know if this girl’s allegations are true, if they do turn out to be true, it wouldn’t be the first nor the last time, unfortunately.

Religion and Child Custody is a post from: LegalMatch Law Blog

The highest court in Maryland recently ruled that expert testimony suggesting a link between vaccines and autism cannot be admitted under the relevant legal standard because (1) the witnesses were not qualified to testify as experts on epidemiology, and (2) the principles that the experts relied upon are not widely accepted in the relevant scientific field.

This follows 3 rulings earlier this year by a special federal court set up specifically to handle lawsuits against vaccine manufacturers. In all 3 of those cases, the court found that the plaintiffs, even with a very relaxed standard of proof (preponderance of the evidence – essentially requiring only a showing that the evidence favors the plaintiffs by an iota), failed to demonstrate any link between vaccines and autism.

While the causes of autism are not well-understood, multiple studies have ruled out some proposed causes. Most notably, the overwhelming majority of scientific evidence favors a conclusion that vaccines do not, in any way, cause autism. This has not stopped some individuals from repeating claims about the supposed link between vaccines and autism.

While the causes of autism are the subject of ongoing scientific debate, the benefits of vaccines are not: without question, vaccines have benefited the public health more than almost any other medical invention or discovery. Diseases such as measles, mumps, and polio, which once killed thousands of people (mostly children) per year, are now a distant memory for most of the developed world. Smallpox, which ravaged human populations for thousands of years, has been completely eradicated. Because of the smallpox vaccine, and a well-coordinated, worldwide effort, there has not been a confirmed case of smallpox anywhere in the world since 1978.

This can all change, however, even if a relatively small number of parents, no matter how well-intentioned, decide to stop vaccinating their children. Besides the obvious risks to which they’ve exposed their own children, they are endangering other children, as well.

You see, there are a small percentage of children in every population who cannot be vaccinated, either because they are too young, or they have an allergy to the vaccine. They rely on the immunity of those around them to keep them from being infected. This is a principle called “herd immunity” – in short, if a large percentage of individuals in a population are immune to an infectious disease, those few who are not immune also enjoy some measure of protection, because the disease is unlikely to gain a foothold in the population, reducing the risk that susceptible individuals will be exposed to it. As the rate of immunization decreases, the risk to everyone increases.

There are signs, however, that the anti-vaccination movement represents only a vocal minority. According to LegalMatch case statistics, of all the prospective clients seeking redress for injuries caused by defective drugs or medical devices, none of them has recently claimed autism as their injury.

This is a good sign – frivolous lawsuits linking vaccines to autism (like all frivolous lawsuits), devalue legitimate claims. And there are occasions, rare as they may be, when vaccines do cause injuries – the particular batch could have been defectively manufactured, or the doctor could administer it negligently, causing an infection or other injuries. These injuries deserve redress, but the risks of such injuries do not outweigh the benefits of vaccination.

Yet Another Court Agrees: Vaccines Do Not Cause Autism is a post from: LegalMatch Law Blog

Within the past 12 months thousands of clients have come to LegalMatch with child support-related issues.  The top concern among the requests: increased payment, decreased payment, and issues relating to enforcement.  Hundreds of these requests specifically involved people unable to pay due to job loss or changes in financial circumstances.

Courts face a tough process when it comes to these child support modification hearings because, in most cases, the money (and the paying job) is no longer there.  In those instances, the judge is looking for a solution to a problem that will probably persist for a while.

The typical recourse for a non-paying parent is garnishment of wages or jail time.  The problem with these two options, especially in such an economically volatile time like this, is that the first is rarely an option and the latter will produce little if any payments and will likely further prolong the lack of payment problem.  These reductions in payments have forced many families to apply for welfare for the first time, risk eviction, and drastically change the circumstances relating to the family’s living situation.

A recent article about Going to Court for Child Support discussed the top 5 tips to help collect child support:

1.) Find out why the support is not being paid.

2.) Don’t delay the problem

3.) Mediate your child support

4.) Move quickly to get to a courtroom

5.) Get additional help

The one solution on either side of the divide is communication and cooperation with the system that is in place to benefit children.

Child Support in a Bad Economy is a post from: LegalMatch Law Blog

Contributing to this significant transfer of assets is an increase in the number of will contests being brought today, particularly as it relates to step-families.  Children of these families are rapidly learning that the second (or third) spouse often has significant if not greater rights than the children; intestacy shares can range from 1/3^rd to as much as ½ of the decedent’s estate when there is no will.  (Before Your Parent’s Say ‘I Do’ Again)

Even when there is a will, sometimes a new spouse will change not only the family dynamics but also the dynamics of the will or family trust.  Most Americans are familiar with Anna Nicole Smith’s short-lived marriage and protracted court battles that continue even after her death. (Daughter to Inherit Mother’s Estate ).  Anna’s litigation, however, is not atypical although most people’s estate assets are significantly less than the Marshall fortune.

In fact, some children are proactively approaching their parents about their estate plans before their parents die.  SmartMoney.com profiles Neil Finkel whose 80+ year-old father placed a large percent of his multi-million dollar estate into a trust for his son.  However, Finkel’s Dad married a woman 30 years his junior. Amy, the new spouse, and Neil subsequently waged a 2-year court battle over the father’s dwindling assets which were being eroded by the spending habits of the new wife.  Although the case was settled, it’s unlikely that the rift in the family will be healed and it could erupt again after Dad Finkel’s death.  (Before Your Parent’s Say ‘I Do’ Again)

During the past five years, tens of thousands of people have used LegalMatch to find an attorney to represent them in filing a lawsuit to contest a will or to defend the estate against a will contest.  Not surprisingly, many of the most popular states for will contests have a high concentration of residents age 65+.  Plus, this top 10 state list comprises over 55% of LegalMatch’s will contest customers: 

Your will or trust will have lasting implications on your heirs after your death, particularly in those families where there are step-children or multiple spouses.  Probate litigation is generally protracted and can tear families asunder.  Developing a proactive estate plan, even if your estate assets are small, should help to reduce family tension after your death.  However your estate plan is crafted, you will be communicating a strong message to your family. The properly drafted will can stand the tests of probate court and ensure that your intent is followed after death.

Where There’s a Will, There’s a Way? is a post from: LegalMatch Law Blog

• 48% were the child’s mother 
• 44% were their father
• 5% were grandparents
• 2% listed themselves as “other”
• Less than 1% were step-parents

Not too much of a surprise there: the vast majority of these people are the child’s parents.

These statistics also closely match a Census data footnote reporting that as of 2007, more than 6% of children were living with their grandparents. Hopefully the courts hearing these child custody cases from grandparents are not unfairly giving them less benefit of the doubt due to preconceptions of what a family is “supposed” to be. The rise in “grandfamilies” and grandparents contesting child custody may be based on the modern realities of single parent households according to the Wall Street Journal.

But wait a minute… are the WSJ’s terribly lit pictures and ominous statistics supposed to indicate that grandparents raising kids is some kind of bad development? (Not necessarily; the point instead seems to be bemoaning the economic hardships facing senior parents.) I would welcome more involvement of grandparents in child rearing. Half of my family is one generation removed from a non-western social model where this kind of family was the norm. The household was mom, dad, their mom and dad, maybe even their mom and dad, and the kids.

In my view it is unfortunate that the American nuclear family is a one generation family.  Will times like this make Americans reevaluate our own social engineering? Probably not, but it can’t hurt to establish a dialogue about it. Although the nuclear family encourages mobility and individualism, (and thus buying more stuff) creating cohesive family units and support structures may be more important now than it has been in a while. I’m not peddling some cryptically hidden “family values” social agenda, but if you’re a young professional or a young newly married couple thinking of making the big move away from mom and dad, give it a second thought. Extended family networks, rather than things like day care and babysitters, could come in handy.

Most Common Relationship to Children in Child Custody Disputes is a post from: LegalMatch Law Blog

Nonetheless, here at LegalMatch.com tens of thousands of people have logged on to find divorce attorneys within the past 12 months. I was curious about their demographics, and here is what the data was telling me:

• The Median Age for a person seeking a divorce in the US: 37
• Median Number of Children: 1

37 years old seems about right for a starter divorce.  Plus, the Median number of children matches US Census results; the national average for children per household in the US is 0.90.

Not much stands out here separating your average divorcé from your average U.S. citizen, which is not surprising considering almost half of all marriages end in divorce in the United States.

So now we know who is getting divorces…are they decreasing in number? Not from what I can tell.

Looking back over the 12 month period, there is no significant difference in month to month numbers, nor is there any decline in the numbers from 2008 to 2009. And again, this is tens of thousands of customers seeking divorce, not just a small sample size.

Fear not divorce attorneys! The American Divorce Industry is apparently alive and well.

So Who is Getting Divorces in the U.S.? is a post from: LegalMatch Law Blog

Out-of-wedlock births have been on the rise since the late 1990s.  There were over 1.7 million households consisting of unmarried couples with children in 2004, compared with just 200,000 in 1970.  According to a report conducted by the Pew Research Center, almost 37% of children in the U.S. are born to unmarried women, and 47% of adults between the ages of 30-50 have cohabitated with a significant other at some point in their lives.  Currently, approximately 50% of children are born to unmarried, cohabitating couples, while in 1993, only about 33% were.

LegalMatch statistics, compiled from online intake reports completed by respondents across the nation, support these numbers.  According to 2008 LegalMatch case data, 40% of couples involved in child custody disputes are living together and have never been married to one another.  About 12% of respondents (comprised of men and women) chose “other” to describe their relationship status; a significant number of these “other” respondents stated that they are cohabitating or have cohabitated with their child’s other parent in the past, but never married him or her.  About 9.5% of respondents answered that they are separated and haven’t yet filed for divorce, while 7% stated that they are divorced and now married to someone else.  Finally, 6.7% stated that they are divorced and they, as well as their spouse, are living alone. 

Notably, fathers aren’t necessarily absent from the homes of unwed mothers.  A 2002 report conducted by the National Center for Health Statistics showed that about 20% of new mothers under age 20 were unmarried yet cohabitating with the father of their child at the time of birth. 

While younger adults have expressed less moral concern over out-of-wedlock children and cohabitation, many older adults have expressed significant concern over these trends.  Perhaps as part of a backlash, Arkansas and Utah have expressly barred unmarried couples from adopting, but these statutes may reflect a prejudice toward homosexual parents rather than any bias against unmarried couples in general.

LegalMatch Cases Prove Unwed Women Having More Children is a post from: LegalMatch Law Blog

Nebraska’s amended law, which contains an age limit of 30 days old, now conforms to nationwide norms as well as the purpose behind safe haven laws.  Safe haven laws were enacted to protect young children from immediate danger, not as a way to deal with misbehaving or difficult children.

Questions have been raised as to what will happen to the 35 children who were abandoned during the time when LB 157 was in effect.  Under LB 157, parents cannot be prosecuted for abandonment by leaving their children at a licensed Nebraska hospital; yet, these parents could face other charges and consequences.

For example, if authorities discover that a child was subjected to abuse or neglect before being left with the state, County Attorneys have the choice to file charges.  Additionally, parents who abandoned their children will not be free from all parenting responsibility.  Courts regularly make parents to take parenting classes, participate in therapy, and engage in conflict resolution education – all in an effort to eventually reunite with their children.  Moreover, parents may need to pay child support while their children are in state custody. 

Although Nebraska’s simplest option (a.k.a. LB 157) is no longer available to parents, this is probably a good thing – so long as other resources are offered and made easily accessible.  If not, however, children face the very real prospect of neglect, abuse, or worse.  Some may claim that parents shouldn’t be able to hand off their parental responsibilities to the state, but if social services are not made available, innocent children – and ultimately society at large – suffers.  Therefore, authorities should make parents aware of their options, and not be judgmental when they seek help. 

For now, parents can get state assistance by calling social services, 211, or local United Way organizations.  Parents can also visit their local DHHS office online.  Various resources within the community, including parent support groups, crisis hotlines, faith-based organizations, and treatment centers, can be helpful.  Finally, parents may contact law enforcement after exhausting other options, or if other options are simply not feasible.

Fixed But Still Broken is a post from: LegalMatch Law Blog