For many parents contemplating a divorce or dissolution of their marriage, a primary concern is which parent shall have “custody” of the child or children of the marriage.  I shall begin the article by addressing the differences between the two parenting systems in Ohio – “sole custody” and “shared parenting”.

1. The parents have different names or titles:  In a situation where one parent has “sole custody” of the child/children, that parent is designated as the “residential parent and legal custodian” and the other parent is designated as the “non-residential parent” or the “non-custodial parent”.  In a shared parenting situation both parents have the same title. They are both designated as the “residential parent and legal custodian” of the child or children.  For school district reasons of residency and tuition, one parent’s residence is typically designated as the residence of the child for school district purposes.  The parent whose residence is the residence of the child for school district purposes may have a slight advantage over the other party as he or she has the ability to change residences with the child changing school districts accordingly.  For example, in a “shared parenting” arrangement wherein Mother’s residence is the residence of the child for school district purposes, if Mother chooses to move from Beavercreek, Ohio, to Centerville, Ohio, the child’s school district changes from Beavercreek to Centerville without a need to return to Court.  Unless, of course, the Father believes the change in school districts is not in the “best interests” of the child or children.
2. The parents have different parenting time schedules, also known as visitation schedules:  In a situation wherein one parent has “sole custody” of the child or children, the parent who is the “non-residential” or “non-custodial” parent generally has visitation with the child or children on alternate weekends from Friday at 6:00 p.m. until 6:00 p.m. on Sunday.  Some parents agree that the “non-custodial” parent shall also have overnight visitation on his/her alternate Sundays.  The “non-custodial” parent is also granted visitation on one or two weekdays per week for a three (3) hour period of time usually from 5:00 p.m until 8:00 p.m. that same evening.  Clearly, the parent who has “sole custody” of the minor child or children has much more time to spend with the child/children of the marriage than the “non-residential” parent.  In “shared parenting” arrangements, some parents seek to spend approximately equal time with the child or children of the marriage.  This can be arranged by the child or children moving from one parent’s residence to the other parent’s residence each week (usually on a Saturday or Sunday evening).  Other parents continue with alternating weekends but having one parent with overnight visitation on three to four nights one week and for two to three nights the following week resulting in each parent having the same number of overnights each month.
3. The parents have different child-support obligations:  Again, in a situation wherein one parent has “sole custody” of the child(ren), the other parent is designated as the Obligor for child-support purposes. He or she is ordered to pay child support to the “custodial parent” for the benefit of the minor child of the parties pursuant to the Child Support Guidelines adopted by the State of Ohio, or as they may agree.   It is my experience in this field that the Obligors, usually Fathers, firmly believe that the child-support obligations are too high and that the Obligees, usually Mothers, firmly believe that the child-support obligations are too low.  In situations wherein the parties have “shared parenting” of the minor child(ren), there is a provision in the Child Support Calculation Worksheet for the Obligor’s child-support obligation to be deviated downward depending upon the time the Obligor spends with the child. Accordingly, if Father is the Obligor in a “shared parenting” situation and if he has parenting time with the child or children for 50% of the available parenting time per month, more than likely, he would be entitled to a decrease in his child-support obligation.
4. The parents have different decision-making considerations:   In a situation wherein one parent has “sole custody” of the minor child or children of the parties, that parent has a major role in decision making.  He or she can make the following decisions:

In a “shared parenting” situation, the parents should discuss and make mutual decisions regarding the foregoing issues as well as other important decisions which are in the best interest of the children.

Ideally, “shared parenting” certainly works best with parents who respect one another, communicate well, and who both wish to operate under a “shared parenting” arrangement.  But not all Ohio Courts take such a narrow view. Some will order “shared parenting” believing it is still in the best interests of the kids even if the parents’ communications are fractured and one party opposes it! It is important to know the Judge’s philosophy on this issue.

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As we all know, the typical family from the 1950’s television shows such as “Leave it to Beaver” have become a rarity over the years.  A couple celebrating their golden wedding anniversary is not so commonplace.  Today, approximately fifty percent of all marriages end in divorce.  In the traditional family, estates usually involve wills and the use of “joint and survivorship” ownership between husband and wife or “beneficiary designations” to ensure that upon the death of a spouse everything would pass to the surviving spouse.  However, in today’s modern family, there may be a second or even third spouse and children from prior marriages.  How does an individual take care of his or her current spouse yet protect his/her children from a prior marriage?

The problem with leaving everything outright to one’s spouse in such a family is that the spouse may presumably leave everything to a new spouse or to their own children upon their death, leaving the children from one’s prior marriage with nothing.  Even providing for one’s children in one’s will may not solve the problem because in Ohio a surviving spouse has certain statutory rights.  These include:  (1) the first $40,000 of the deceased spouse’s estate; (2) the right to live in the residence one year rent free; (3) the first two vehicles up to a value of $40,000; and (4) the right to take or elect against the will and receive one-half of the net estate, unless two or more of decedent’s children or their lineal descendants survive, in which case it would be one-third.  One solution to this problem is to execute a prenuptial agreement before marriage.  Each party can waive those statutory rights allowing each spouse to pass on his or her assets upon death as he or she wishes.  Another tool is the use of what is called a QTIP Trust (Qualified Terminal Interest Property Trust).  A properly drafted QTIP Trust also allows deferral of estate taxes until after the death of the surviving spouse.

A QTIP Trust allows an individual to make provisions for a surviving spouse, yet control the ultimate disposition of property upon the death of the surviving spouse.  The income stream from the trust shall be paid to the surviving spouse, but the surviving spouse cannot control the ultimate disposition of the trust assets.  The trust may also provide that principal may be used for the needs of the surviving spouse.  A QTIP Trust is also an exception to the general rule, that to qualify for the marital deduction (exemption from estate taxes) an asset must be given outright to a surviving spouse or put in a trust in which the spouse may withdraw all of the principal.  To qualify for the marital deduction, the trust income must be paid to the surviving spouse on no less than a yearly basis and during the spouse’s lifetime.  No person, including the spouse, is permitted to transfer or appoint any trust property to anyone other than the surviving spouse.  The creator of the trust may choose to also allow the trustee to distribute principal of the trust to the surviving spouse, if necessary, for his or her health, maintenance and support.

The advantages of a QTIP Trust are that the surviving spouse is provided for, the deceased spouse controls the ultimate disposition of the property, and the marital deduction can be utilized resulting in the deferral of estate taxes until after the death of the surviving spouse.  Although complex, a QTIP Trust can be an important part of an estate plan where the primary objectives are to have flexibility in the timing of estate tax payments, along with an assurance that the remaining trust assets will pass to your children or family.  One important caveat is that for a QTIP Trust to qualify for the marital deduction, the surviving spouse must be a U.S. citizen.  If not, other estate planning tools are required.  If you are considering utilizing this type of a trust, discuss its appropriateness with your financial planner, accountant and estate planning lawyer.

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I would like to share some constructive fee-cutting suggestions for you to consider implementing after you have done your “due diligence” in selecting the right attorney for you and your issues. Many of the cases I have handled over the last 30 years are family law matters which are engagements typically based upon the number of hours spent in the representation.  The amount of time to complete these cases varies based upon many factors, including the nature of the issues, contentiousness of the parties, and the cooperation level existing between both counsel.  Recently, I have been asked by several clients what they can do to help reduce their attorney fees. Certainly, this is an excellent question especially with money being so tight and all of us having to deal with our poor economy.  Each attorney would no doubt answer this question differently.  So, be sure to ask your attorney about his or her own particular preferences.  Here are some of my simple tips to reduce your attorney fees:

1. Use email instead of the phone.  Email communications are an excellent way to keep your attorney advised as to ongoing developments.  But, realize that many attorneys receive hundreds of emails in a day.  I welcome emails, but please try to keep them as brief as possible.  Also, they work very well if you need a few short “yes” or “no” answers.  I, for one, am not the best typist, and I don’t attempt to type long and involved responses.  Utilizing emails can be a money saver for clients as the cost to communicate in this fashion usually takes less time than phone calls.  Be reasonable and use good judgment.  Don’t barrage your attorney with lots of separate emails, especially about relatively insignificant items; but rather, consolidate information or concerns in a quick-read format.  A secondary benefit of email communications is having a copy of your email in the attorney’s file to be reviewed before Court.
2. Besides emails and office conferences, don’t forget about the option of requesting a scheduled phone conference with your attorney. For updates or questions requiring a more in-depth discussion than appropriate for an email, planned phone conferences work very well.  Typically, they are also shorter in length than office conferences.
3. Try to be as organized as possible.  Many documents need to be reviewed and produced to the other side in a divorce action.  You can save hundreds of dollars by compiling the requested information yourself, financial or otherwise, in an organized fashion in labeled folders or notebooks.  This cuts down on both attorney and paralegal time.
4. Make an agenda of topics or questions in advance of your office or phone conference.  This will help assure that it will be focused, comprehensive and as beneficial as possible.  It also helps eliminate follow-up emails or calls about things you forgot to mention.
5. I can’t emphasize enough how important it is to formulate realistic goals and expectations with your attorney early on in the representation.  As difficult as it can be, set aside your emotions and develop a good strategy to attain your important legal objectives.  Fighting over everything in a divorce case is typically foolhardy and can be both emotionally and financially draining.  Do you really want to pay your lawyer to argue over inconsequential trivial issues?
6. Respond to your attorney’s requests in a timely manner.  This may seem obvious, but you won’t believe how often this can be a problem.  Lawyers have deadlines they must honor and also want to be responsive to opposing counsel’s requests.  If I ask for information or need documents, please respond and get them to me as soon as possible.  You don’t want to pay me to ask you for those items more than once.  Ideally, the lawyer and client need to work together smoothly as partners throughout the representation.
7. No one really likes to make compromises in a divorce action, but it happens in almost every case.  Recognize that negotiating a compromise is an inevitable reality in the process of concluding a divorce case.  Again, as in #5 above, put aside your feelings and carefully consider your attorney’s sage advice and
8. Establish a good rapport with your attorney’s assistant and/or paralegal.  While neither are permitted to give legal advice, they are skilled in answering many procedural questions and can often help reduce a client’s stress level.  Their hourly rate will be much lower than the attorney’s rate.
9. While most attorneys are experienced in providing basic counseling advice, we are not substitutes for licensed family therapists and psychologists.  Finding a good counselor or a support group can save you both emotional anguish and considerable attorney fees.  In addition, in many cases, it helps your attorney to work collaboratively with the counselor in adopting a more holistic approach as the divorce case progresses.
10. Be sure to see your family doctor if you are not able to sleep, are losing weight or becoming depressed.  Priority number one has to be preserving your good health.  Maintaining a strong emotional psyche will assist in facilitating communications with your lawyer and a likely bi-product will be to reduce your fees as well!

Adopting these tips will no doubt result in significantly reducing your overall attorney fees and at the same time, hopefully, improving the level of your attorney/client relationship.  Discuss this subject openly with your attorney.  He or she will likely add their own suggestions!

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Our responsibility as parents is to nurture and protect our children.  We do everything possible to ensure their physical safety and to care for their emotional and psychological needs as well. It seems a bit odd to think that many children and teens feel like it is their responsibility to protect us.

This occurs most frequently in divorce situations.  Kids are acutely aware of their parents’ emotional wellbeing and are very reluctant to say or do anything to upset their families.  One 10-year-old told me that she had lots of questions about the divorce, but knew her mom was already upset.

“I hear her crying on the phone after I go to bed. I don’t want to make it any worse for her.”  Rather than talk with her mom, she speaks with friends at school or to her Boston terrier.  Neither can really meet her needs.

This oversensitivity to the feelings of parents also plays itself out in cases of sexual abuse. One of the most perplexing aspects of such abuse is the reluctance of many children to say something to their parents.  There are many complicated reasons why children don’t tell, but a major factor is their desire not to hurt their parents. For a 9 year old boy who was molested by an older cousin, it made sense not to say anything.

“My cousin is part of our family.  My parents would get really sad and mad if they found out about this.”

Financial uncertainties are another challenge for our kids.  They see things in the media, overhear bits of their parents’ conversations, but say nothing for fear of upsetting their parents. They feel it’s better to worry in silence rather than speak up and hurt their parents.

I suppose we should laud our kids’ desire to look after us. However, we need to know their concerns about divorce, death, money and most certainly abuse.

How can we tell our kids that we don’t want them to protect us from such topics?

1. Make meaningful conversations an integral part of your family life. Turn off the TV, computers and cell phones and talk with your kids on a routine basis. I’m a big advocate of using meal times for family discussions.  This needs to be habit that is nurtured, with an expectation that everyone contributes at the dinner table.  Listen carefully to what your kids are saying and ask questions to help them to clarify their thoughts and feelings.
2. Don’t overreact. If you want your children to talk about important things, then you need to respond in ways that encourage such discussions.  Avoid lecturing and be careful of exaggerated responses. Seek to understand your children’s perceptions rather than judge, lecture or offer your point of view.

While it’s nice that our kids want to protect us, we need to keep emphasizing that what we really want is for them to permit us to understand their private worlds.

To sign up to receive Dr. Ramey’s FamilyWise monthly E-newsletter, click here.

[Reprinted by permission from the July 12, 2009 edition of the Dayton Daily News, “Kids Who Protect Parents”, Family Wise, Gregory Ramey, PhD]

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On July 1, 2009, I received a decision on one of the more interesting cases I have worked on since embarking on my legal career.  The case started out as a custody case in Juvenile Court, but quickly spiraled into a full-scale federal trial; and subsequently, an appeal in the United States Court of Appeals for the Sixth Circuit.  It’s safe to say that this was not your typical custody case.  What made this case different, among other things, was that the family had moved to Ohio from Israel and the mother had returned to Israel.  While in Israel, she decided to pursue custody and filed a Petition for the return of the minor child under the Hague Convention on the Civil Aspects of International Child Abduction, claiming that our client, the child’s father, had kidnapped the child and wrongfully retained him here in the United States instead of allowing him to return to Israel.

The Hague Convention was ratified in 1980 and signed by the United States in 1986.  The primary purpose of the Hague Convention is to protect children from wrongful removal or retention from their nation of habitual residence and to put into place a procedure that promptly returns them to their place of habitual residence. The important considerations are that a parent must have established legal rights in their home nation, and there must have been a wrongful removal or retention from the child’s habitual residence.

“Habitual residence” is a concept that has not been clearly defined either by statute or by case law.  The concept can be tricky when the child has lived for extended periods of time in more than one country.  It is not as simple as where the child is presently residing, or domiciled,  but rather where the child has been present long enough to become acclimatized and where there is a degree of settled purpose from the child’s perspective.  There are certain factors that must be analyzed to make the determination of habitual residence.  These factors can include academic programs, sports, social engagements, excursions, and connections with people.  Additionally, when a child brings more personal possessions than usual, that can indicate settled purpose from the child’s perspective.

In our case, the child and his parents had been present in the United States for roughly six months when the mother decided to return to Israel.  At that time, the child was 2-1/2 years old.  The intention when they moved was for the family to remain in the United States permanently, and efforts were underway to obtain citizenship for the parents and the child.  They packed what they could and moved to Ohio from Israel to start their life together here.  Troubles arose in the marriage, and the mother left to return to Israel about six months later.  The father tried to convince her to stay and fight for custody here in the United States, but the mother left to return to her family in Israel.  There was a dispute over what efforts each parent made to have the mother to remain here, but ultimately, she returned to Israel where she filed for a divorce and for custody and child support.

In an odd wrinkle, the marriage in Israel was a religious marriage that was not officially recognized here in the United States as a legal marriage, so the father filed for custody rights in Juvenile Court in Ohio.  This was an ongoing battle until February, 2008, when the mother filed a Petition under the Hague Convention in the United States District Court for the Southern District of Ohio for the return of the child.  Those of you who think that the federal judicial system moves slowly are normally correct; but in this case, because it was on an expedited docket, we conducted extensive discovery and pretrial proceedings in less than two months (including depositions in Ohio, Israel and Kosovo).  Most of the depositions required us to find a translator who was fluent in Hebrew.  Finally, we had to secure a number of documents from Israel.

A three-day trial was conducted in federal court in Dayton with the eventual decision filed on April 30, 2008.  Click here to read it.   The Court decided that there was a wrongful retention on the day that the mother left because it was the last date that the child was present in the United States with both parties’ permission. It next determined that the child’s habitual residence was the United States, and more specifically, here in Ohio.  The basis for that determination was that the six months he had been in the United States and the brief period he visited the year prior had been sufficient to acclimatize him to the United States.  From the child’s perspective, the United States was his home where he had a degree of settled purpose.  The trial court noted that the child was in school full-time in the United States and had been since his arrival.  His English skills had surpassed his Hebrew skills.  He had made numerous friends at school and the Synagogue, and he attended numerous parties and other activities with these friends.  He took numerous excursions, regularly going to the local Air Force Museum.  He had regular contact with his father and paternal grandmother, as well as friends and teachers.  Finally, all of his possessions were here in the United States.

Some courts have considered the intent of the parents when moving, if the child is too young, in order to determine habitual residence.  The Sixth Circuit has not officially established this test, but the trial court did address the parties’ shared intent of permanently relocating to the United States as something that it would consider if permitted to do so.

The mother decided to appeal the trial court’s decision claiming that the trial court was incorrect in its determination.  She argued that the analysis was incorrect and the factual findings were not supported by the evidence.  She made several other procedural arguments which were not addressed based on the outcome of the appeal.

The Court of Appeals determined the case on the basis that there was no wrongful retention.  It stated that since both parents had equal rights of custody under Israeli and Ohio law, there was no wrongful retention.  There was no wrongful removal since both parties agreed to take the child to the United States, and there was no wrongful retention since both parties had equal rights.  At most, the Court determined that there may have been a breach in the rights of Mother’s access to the child.  That was not enough to overturn the decision of the trial court.  It determined that there was ample evidence on the record to support the trial court’s decision.  A dissenting opinion was filed that would have reversed the decision and remanded for a more thorough analysis of why Israel was not the habitual residence of the child, rather than focusing solely on why the United States was his habitual residence.  Click here to read the decision rendered by the United States Court of Appeals for the Sixth Circuit.

The mother has requested the Court reconsider the decision.  The increasing globalization of society makes it more likely that there will be an increase in these Hague Convention cases.  If you are moving to a new country, it is important to know what steps should be taken to guarantee that you are not jeopardizing your rights of custody or access to your child.  To read the Hague Convention Treaty, click here.  If you find yourself likely to become involved in an international divorce or custody case, these cases are very fact-specific and extremely complicated.  No two are the same, and it is most often necessary for a party to secure legal representation in both countries.  For a list of the approximately 75 countries that are members of the Hague Convention, click here.  Also, merely because a country is a party to the Hague Convention does not mean that it will enforce its treaty obligations. For example, the U.S. State Department has asserted that even our neighbor Mexico is “non-compliant” with the terms of the Convention.  Don’t try to navigate these waters alone!

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