What To Do When Your Spouse Won’t Leave the House

I’m assuming for purposes of discussion here that your spouse is living in your marital home and has agreed to leave but now doesn’t seem to be moving or making any plans to move. Let’s break this down to a series of “ifs:”

If you have a binding agreement specifying a date certain for your spouse to vacate the house and a judge has incorporated that agreement into a decree, that means you don’t just have a contract; you have an order from a judge instructing your spouse to move. And that means that, unless your spouse can show he is unable to comply, he is in contempt of the court. In most states, that means the judge may not only order him to comply immediately but also assess him for your attorney fee for forcing his compliance. That’s a powerful hammer you can threaten to use without actually using (as in a polite matter-of-fact conversation with your spouse) and make it clear your spouse has all the incentive he needs to get moving. Pronto.

If you have a binding agreement that’s not yet incorporated into a decree, it’s good to have but much less useful for forcing compliance. In order to force compliance, you would need either to incorporate the agreement into a decree so you can have the leverage described in the preceding paragraph, or resort to suing your spouse to force compliance on your own.

If all you have is an informal assurance from your spouse that she’ll be gone by a date certain, even if that assurance is in writing, your spouse has failed to comply with a moral obligation. You may be able to shame her into complying, but you will have difficulty forcing compliance. What the broken promise does do is to make it easier for you to negotiate a firm date for the move.

Applying Same Sex Ruling to a 40-Year Old Relationship

A judge in South Carolina has ruled that a same sex couple were married at common law for almost 30 years.

Everyone remembers when the US Supreme Court issued its landmark ruling in Obergefell v. Hodges, Case No. 14–556 (U.S. Sup. Ct. June 26, 2015), in which SCOTUS accorded to same sex relationships the same status accorded to heterosexual unions. Ruling in the wake of Obergefell, Family Court Judge Thomas White ruled that two women who had maintained a monogamous relationship over nearly four decades and had called themselves married even to disapproving family members had become married at common law. You can read more about it in the Rock Hill Herald.

White reached his decision despite the illegality of the couple’s relationship over most of its life. “The law established by the U.S. Supreme Court in Obergefell should be applied retroactively in South Carolina,” he said in his opinion. Several family law experts quoted in the Herald article seem to agree on four things about Judge White’s ruling: (1) it’s new; (2) it’s important; (3) it’s correctly reasoned and decided; and (4) it’s almost sure to be challenged on appeal.

“I want people in my situation to know they do have rights, and can get help,” the Herald quotes Parks as saying. “We were married.”

South Carolina is one of eight states that still recognize common law marriage, a marriage that forms automatically even without the exchange of marriage vows when both spouses intend to be married. Alabama recognized common law marriage until 2017 and still recognizes it for marriages formed before 2017.



A Case Not Yet Ripe for Appeal

With rare exception, parties may not appeal a divorce case until the trial court’s judgment is final. We have a recent illustration of that in Exum v Exum, Case No. 2150948 (Ala. Civ. App. March 10, 2017). The parties had been divorced since 2010. In 2015 the father asked the trial court to hold the mother in contempt; he later added a request that the court award him custody of the parties’ child.

The trial court declined to hold the mother in contempt but awarded the father “primary” physical custody of the child. In its order, the trial court instructed the parties to submit CS-41 forms and a suggested CS-42 form and said it would follow up after receiving those documents with “a separate child support order.” The father responded with forms, but it’s unclear from the record whether the mother did.

An attorney entered the case after the initial trial and filed a motion to set aside the custody modification order. When the trial court denied that motion, the mother filed a notice of appeal.

Neither party raised the issue of appellate jurisdiction, but the appeals court raised it ex mero motu (on its own). Citing a similar fact set and a similar ruling in Tomlinson v. Tomlinson, 816 So.2d 57 (Ala. Civ. App. 2001), the appeals court ruled that the mother was taking an appeal from a nonfinal judgment and that her appeal was therefore due to be dismissed.

When It Comes To Ordering Retroactive Child Support, Does “May” Really Mean “Must”?

Yokley v Yokley, Case No. 2150814 (Ala. Civ. App. March 3, 2017) is a case about retroactive child support. It’s also about the award of a house in divorce, but that issue isn’t particularly interesting, so we’ll ignore it.

The parties had two minor children. They lived with the wife during the 21 months the parties were separated before their divorce trial, but the husband provided almost no support for them. The trial court ordered the husband at trial to pay $760 per month in child support but did not make the award retroactive. On Mom’s appeal, the appeals court reversed on the issue of the retroactive child support award, citing four cases: (1) Brown v. Brown, 719 So.2d 228, 232 (Ala. Civ. App. 1998); (2) Vinson v. Vinson, 880 So.2d 469 (Ala. Civ. App. 2003); (3) Pate v. Guy, 942 So.2d 380 (Ala. Civ. App. 2005); and (4) McCaskill v. McCaskill, 404 So.3d 186 (Ala. Civ. App. 2012).

“Accordingly, based on [the cited cases], we reverse the divorce judgment to the extent the trial court declined to award retroactive child support, and we remand the cause for the entry of such an award, taking into consideration the parties’ incomes and pertinent financial provisions of the divorce judgment.”

Each of the cited cases, and now Yokley, states the rule permissively, that is that the trial court may award retroactive child support. Then each case, and now Yokley, reverses when the trial court fails to do so. Clearly, a court still has discretion to fail to award retroactive child support. Increasingly, however, the reasons for exercising that discretion must be clearly stated in the trial court’s opinion and give due deference to what the Pate court called “the well-established principle that parental support is a fundamental right of all minor children.” 942 So.2d at 385.

Alimony in Gross Must Not Exceed Present Estate

A pair of recent Alabama cases stand for the same principle, so we’ll combine them in the same note.

It takes nerve to appeal an award of $5,000 on the grounds that you don’t have it. And yes, this husband must have nerve. In Pylant v Pylant, Case No. 2150787 (Ala. Civ. App. February 10, 2017), he reported that his assets included only two automobiles in which he had a total equity of less than $2,000. He admitted that he owned some clothing, tools, and furnishings, but he argued they weren’t worth anything to speak of. The trial court ordered alimony in gross of $5,000 and periodic alimony of $250 per month, stating in its opinion that the husband “was not completely candid at trial about his finances” and that “he is fully financially able to pay the small sum awarded to the [wife].” The husband appealed.

The appeals court said that whether the husband could pay the amount of alimony in gross was not the issue. Instead, alimony in gross is paid out of the estate of the spouse at the time of the divorce. This means it cannot exceed the value of the estate at the time of the divorce. So the appeals court reversed, saying “[The] alimony-in-gross award in the present case exceeds the value of the husband’s estate at the time of the divorce, and it is therefore due to be reversed.” Because property settlement and alimony awards are interrelated, the appeals court reversed both decisions for the trial court to reconsider upon remand.

Is this a victory for the husband? Certainly in the short term, but the trial court easily could re-balance the current support and property division to accomplish a similar wealth effect, and the appeals court has certainly left the door open for that strategy.

And in the case of Johnson v Johnson, Case No. 2150936 (Ala. Civ. App. March 3, 2017), the appeals court considered the same principle in the case of an elderly divorcing couple. The husband in Johnson argued on appeal that his estate did not equal the award of $20,000 in alimony in gross from the trial court. The appeals court agreed and reversed. “The record does not contain sufficient evidence from which the circuit court could have inferred that the husband’s present estate was valued at $20, 000, much less a greater amount from which $20, 000 could be equitably deducted.”

On dissent, Judge Thompson argued that the trial court’s award was not alimony in gross but was property settlement, intended to compensate the wife for investments she had made in the marriage. “Given the nature of the wife’s request, i.e., that it was for recoupment of a portion of her claimed financial contribution to the marriage and not a form of future support, as well as the trial court’s specific determination that it had fashioned a ‘property settlement, ‘ I believe the main opinion errs in characterizing the property settlement as an award of alimony in gross.”

Can You Seal Your Divorce Record?

Nearly everyone going through a divorce prefers that the record for his or her case be sealed so it remains private. On the other hand, the public has an interest in protecting the justice system from private arrangements that might compromise the judicial system. And a transparent judicial system available at all times for public inspection ensures that litigants are able to predict how judges will rule in many cases, which helps them negotiate with each other with greater confidence. This, in turn, fosters greater judicial economy.

So how should judges rule when one of the parties requests that the proceedings in a divorce case be sealed? We have a useful explanation available to us in the form of Ex parte Gentry, Case No. 2160155 (Ala. Ct. Civ. App. January 27, 2017). In the midst of a proceeding dealing with a petition for grandparent visitation, the trial court in Jefferson County directed the circuit clerk to “place this entire case UNDER SEAL” (capitalization in the original). No party moved the court to take this action, no hearing was held on it, and the order provided no reason for the action. On the appeal of the children’s father objecting to the placement of the seal, the grandparents simply responded that the court sealed the case because the cases “involve[] minor children and embarrassment or irreparable harm could occur.”

In its analysis of the arguments on either side dealing the sealing issue, the appeals court quoted extensively from Holland v. Eads, 614 So.2d 1012 (Ala. 1993): “‘Generally, trials are open to the public. However, public access must be balanced with the effect on the parties.’ Ex parte Balogun, 516 So.2d 606, 610 (Ala. 1987). Nevertheless, the decision concerning access to the court records has long been recognized as within the trial court’s discretion. Nixon v. Warner Communications, Inc., 435 U.S. 589, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978). This does not mean that the trial court’s discretion should be unfettered; rather, it should be governed by legal rules and standards.”

After discussing the advantages to the public from openness and freely available court records, the appeals court further quoted Holland: “There is a presumption in favor of openness, which can be overcome only by clear and convincing evidence that an individual’s privacy interest (as set out above) rises above the public interest in accessHolland, 614 So.2d at 1016 (emphasis in original).

With reference to the Gentry case, the appeals court observed that the trial court’s order sealing the cases contained no written findings of the need for sealing the records and that “the wholesale sealing of an entire record is by its nature overbroad . . . Although no party brought a motion seeking to seal any part of the record, we conclude that, under Holland, a trial court considering whether to seal documents must hold a hearing at which the parties may present arguments regarding the necessity of sealing specific parts of the record. Any order sealing any portion of the record must contain written findings in compliance with Holland that clear and convincing evidence supports a conclusion that the relevant “privacy interest (as set out [in Holland]) rises above the public interest in access.” Holland, 614 So.2d at 1016. The appeals court therefore granted the father’s writ of mandamus insofar as it related to the court’s sealing of the case record.

Holland and Ex parte Gentry are useful in that they clarify the need for a hearing and findings of fact before sealing a family court ruling, but they don’t fully respond to the issue. It’s not at all unusual for both parties in a divorce case to desire for the proceedings to be sealed, so simply giving both parties an opportunity to register objections to sealing is incomplete. Someone needs to take account of and articulate the public interest in full disclosure and comprehensive transparent records. That’s the interest most easily ignored in cases like this.

Alabama Relocation – Sample Notice

If you’re subject to divorce in Alabama involving minor children, and if you are planning to move, you need to give the other parent notice of the move, and the notice must be by certified mail. Note that this covers not just custodial parents but non-custodial parents as well.

So what should your notice say? Let’s start with the statute, Ala. Code § 30-3-165. I have added its text below the sample notice. The easiest way to make sure your notice complies with the statute is simply to go down the list and include the information in order. Each paragraph of the notice below is keyed to an item on the list of the required elements in the statute. Your notice should be in the form of a letter addressed to the other parent by name. You don’t need to put each element in a separate paragraph; you can combine two or more sentences in a paragraph. And of course, your notice need not include the numbered references. They’re just here to help you tie each statement to the statute.

This is the notice of my relocation in compliance with the Alabama Parent Child Relationship Protection Act.

(1) My new address will be 2635 Goodroad Street, Mitchell, KS 60527.

(2) My mailing address is the same.

(3) I will not have a land line at my new address. I plan to keep my same cell phone number, 205-999-9999.

(4) Mitchell will be attending Henderson Middle School, 5764 Education Way, Mitchell, KS 60527, phone number 609-427-2864. Mallory will be attending Henderson Elementary School, 5762 Education Way, Mitchell, KS 60527, phone number 609-427-1976.

(5) My move will be during the week of July 5-10.

(6) I am making this move to accept a position as curriculum director for Mitchell city schools.

(7) I propose that we leave our custody arrangements and visitation schedule unchanged.

(8) The statute requires me to inform you that an objection to the relocation must be made within 30 days of receipt of the notice or the relocation will be permitted.


For reference, here is the text of the statute.

30-3-165. Notice

(a) When a notice is required by either Section 30-3-163 or Section 30-3-164, except as provided by Section 30-3-167, the notice of a proposed change of principal residence of a child or the notice of an intended or proposed change of the principal residence of an adult as provided in this article must be given by certified mail to the last known address of the person or persons entitled to notification under this article not later than the 45th day before the date of the intended change of the principal residence of a child or the 10th day after the date such information required to be furnished by subsection (b) becomes known, if the person did not know and could not reasonably have known the information in sufficient time to comply with the 45-day notice, and it is not reasonably possible to extend the time for change of principal residence of the child.

(b) Except as provided by Section 30-3-167, all of the following information, if available, must be included with the notice of intended change of principal residence of a child:

(1)     The intended new residence, including the specific street address, if known.

(2)     The mailing address, if not the same as the street address.

(3)     The telephone number or numbers at such residence, if known.

(4)     If applicable, the name, address, and telephone number of the school to be attended by the child, if known.

(5)     The date of the intended change of principal residence of a child.

(6)     A statement of the specific reasons for the proposed change of principal residence of a child, if applicable.

(7)     A proposal for a revised schedule of custody of or visitation with a child, if any.

(8)     A warning to the non-relocating person that an objection to the relocation must be made within 30 days of receipt of the notice or the relocation will be permitted.

(c) A person entitled to custody of a child who is on active military service in the Armed Forces of the United States of America and is being transferred or relocated pursuant to a non-voluntary order of the government shall provide notice of change of principal residence of a child to the persons entitled to custody of or visitation with a child with the information set forth in subsection (b) except that such notice need not contain a warning to the non-relocating person as provided in subdivision (8) of subsection (b) that an objection to the relocation must be+ made within 30 days or the relocation will be permitted.

(d) A person required to give notice of a proposed change of principal residence of a child under this section has a continuing duty to provide the information required by this section as that information becomes known. Such information should be provided by certified mail to the last known address to the person or persons entitled to such notice within 10 days of the date such information becomes known.

Cite as Ala. Code § 30-3-165 (1975)

Three Ways Technology Can Haunt Your Divorce

This is an article provided by the firm of Gillespie, Shields, Durrant & Goldfarb in Phoenix. I’m proud to share it with you.

One woman confessed to murder on Facebook. Another fled to Mexico where she tweeted  “catch me if you can” along with her geolocation. A Hawaii resident uploaded a video of himself  drinking and driving. Of course, these “social media confessions” are blatantly obvious ways to  help out criminal prosecutors; but can social media also damage proceedings in family courts?  Yes. And at an increasingly rapid rate.

Phoenix divorce attorney DeeAn Gillespie of Gillespie, Shields Durrant & Goldfarb says social media and online or electronic  communications are in almost every divorce case and many custody and support hearings.  Why? A couple of decades ago, there was little people could do to  prove someone cheated, had anger management problems, etc. Family courtrooms were made  of “he said, she said” arguments. That is until everyone had a phone, email and Facebook. Now there’s proof — either a positive or negative.

Gillespie’s new rule of thumb for clients: stay off social media and watch not just what you say but also what you write. Dating apps, social media posts and texts can be especially  damaging, she said, citing some cases to backup her claims.

Dating Apps

“Life is Short. Have an Affair.” – Ashley Madison (pre-hack).

Not exactly something a user would want advertised in their divorce hearing, especially in the 33 fault states where “adultery” is a checkable box on legal papers. But after Ashley Madison’s  highly publicized hack and subsequent leak of users last year, scorned women are using their now soon-to-be ex-husband’s profiles as evidence of cheating and sometimes more importantly, as a powerful negotiation tool. And while the openly pro-cheating site gained national headlines, it  wasn’t the first time dating sites danced their way into divorce court rooms.

Since 2013, more than half of divorce attorneys with American Academy of Matrimonial Lawyers (AAML) said they saw an influx of clients using dating websites as evidence. Sixty-four percent of participating attorneys said Match.com was the most common, followed by eHarmony. As for the information most commonly used against spouses, 57 percent of divorce attorneys said relationship status, followed by salary or job descriptions at 15 percent and parental status at 7 percent.

So if you can’t wait for a legally finalized divorce to sign up for dating sites, it’s in your best interest to avoid exaggerations like these real-life examples:

  • In a custody case, a husband was seeking primary custody of his children; his Match.com profile said he was single and childless
  • In a divorce case, a husband said he didn’t cheat; his wife used his Tinder account as opposing evidence

Mobile dating apps like Tinder and Bumble and social apps like SnapChat are, as noted in the last example, also making their debuts in divorce court. While not proving an affair, having a Tinder account could serve as circumstantial evidence a spouse is flirting with the idea. SnapChat, where users send pics to friends that “disappear” after opening, also stores some data. The company recently admitted to complying with 92 percent of U.S. government subpoenas in its first ever transparency report; although what the subpoenas were for was not discussed. So far, SnapChat data has served as evidence in a high-profile murder and child pornography investigation, but no publicized divorce cases. Time will tell if these apps become as damning (or beneficial) as their online counterparts.

Couples divorcing should always keep close tabs on their phones and all its stored or saved content.

Text Messages or Emails

One of the first warnings clients hear from divorce attorneys is to be careful about what they text, email or in any other way write out to their soon-to-be ex. Texts are not too different than emails; they can be saved, printed and used in courtrooms as evidence. In fact, texts are the most common form of technological evidence in divorce cases and attorneys regularly serve subpoenas for emails. Assume every email or text with your spouse or children could appear in court, legally.

This, of course, goes both ways. If you catch your spouse lying, bring it to your attorney’s attention. It could be the game-changer in your case, proven by these examples:

  • In a divorce case, a woman denied having an affair; a computer forensic expert recovered deleted emails and proved she was lying
  • In a custody case, a father denied the mother’s allegations that he was continually disparaging; the mother showed year’s worth of texts where the father belittled her and used foul language and the courts granted her custody.

And it’s not just about thinking before your speak, or type; couples should also be wary of where they leave their phones. If a spouse leaves their phone unlocked in a public place, like their shared kitchen, the other spouse can legally look through the phone and copy the content.


The most popular social media site, especially for Generation X, has almost two billion monthly active users. Growing just as rapidly is Facebook’s appearance in family court proceedings; in a 2010 survey by AAML, 66 percent of divorce attorney respondents cited Facebook as the primary source of online evidence used against their spouse. By the end of that same year, the social media powerhouse had 608 million active users.

But how is Facebook relevant to divorce proceedings? Below are some real-life examples:

  • In a custody case, a mother denied gang affiliations; her Facebook account had multiple pictures of her showing off gang tattoos and hanging out with known gang members
  • In a divorce, a husband argues he had a low income and did not cheat on his wife before they separated; the husband’s alleged girlfriend’s Facebook showed a chronological timeline of their affair as well as photos from expensive vacations taken together
  • In a support case, a husband claimed he was unemployed and needed to transition his temporary spousal support to permanent; his Facebook said he was a “business owner” and talked about trips with his girlfriend to Las Vegas, South America and SeaWorld
  • In a custody case, a mother denied she smoked marijuana; she posted photos to Facebook of her smoking.

Facebook can even become a critical player before the divorce proceedings are in motion. In another case, a hired investigator needed to locate a defendant to serve divorce papers. The investigator created a fake Facebook account of an attractive woman, “friended” the defendant, struck up an online conversation and arranged a meetup. When the defendant showed up for the rendezvous, he found not the foxy lady he expected but a process server.

It’s obvious how to avoid Facebook evidence popping up against you in court; don’t post anything incriminating or friend people you don’t know. The real trick, however, is ensuring evidence in your favor is legally obtained.

As evident by the investigator tracking down the defendant, anyone you’ve “friended” has full access to your profile and there is no longer a reasonable right to privacy. If someone hacks into another person’s Facebook account, however, they are violating state and federal laws.

At the end of a divorce, technology may be your friend, enemy or even a frenemy. To ensure it doesn’t end up haunting your divorce, follow these eight social media “rules” to keep your family law matter noncriminal and free of damaging surprises.

8 Social Media Rules While Going Through a Divorce

  1. Review and update privacy/security settings for all social media accounts and computer
  2. Change all passwords to something your spouse can’t guess
  3. Ignore or block friend requests from people you don’t know
  4. Tell your close friends and family to also ignore unusual friend requests
  5. Stop tweeting- especially about anything related to your family or the divorce process
  6. Don’t send Snapchat photos or post photos/videos to your story
  7. Ensure your LinkedIN matches what you tell the judge
  8. Conduct a Google search on yourself to find any forgotten results or images.

Wisconsin Allows Lawyer/Mediators to Draft and File Divorce Settlement Agreements

We learned today on the excellent Family Law Prof Blog that the Wisconsin Supreme Court will permit lawyer/mediators to draft and file settlement documents in family law cases. Here’s a summary of the change in the Wisconsin Bar newsletter.

In the past, couples who used a mediator had to hire separate counsel to prepare the documents for filing. More often, court officials say, those couples simply prepare the filing documents on their own. The change is expected to become effective July 1, although the court has not issued a final order, so the effective date could change.

In Wisconsin now, an estimated 70% of those filing for divorce do so without the assistance of any lawyer. So the change may reflect the gritty reality of current divorce law practice.

The ethical rules binding lawyers have been seen in the past as preventing lawyer/mediators from drafting any documents resulting from the litigation other than a memorandum of understanding. The change would allow lawyer/mediators to help divorcing couples to reach agreement on the issues of their divorce, acting as a neutral. After agreement is reached, the lawyer/mediator would then be authorized, with the informed consent of both parties, to prepare and file a settlement agreement and the other documents needed to complete the divorce.

Informed consent requires that the lawyer/mediator explain several things to each party:

  • The limits of the lawyer’s role;
  • That the lawyer does not represent either party to the mediation;
  • That the lawyer cannot give legal advice or advocate on behalf of either party to the mediation; and
  • The desirability of seeking independent legal advice before executing any documents prepared by the lawyer-mediator.

It also requires that the lawyer/mediator disclose any interest or relationship that might compromise the lawyer/mediator’s neutrality.

The drafting of divorce documents would not create an attorney-client relationship between the lawyer/mediator and either party. The rule clarifies that the lawyer/mediator would not be authorized to appear in court on behalf of either party.

In memoranda submitted to the court in support of the change, Wisconsin family lawyers were generally supportive of the change, noting that the existing policy penalized those who tried to follow the rules. The change would enable lawyer/mediators to remain neutral and provide a full solution for their mediation clients while remaining within the bounds of ethical practice.



Alaska Orders Divorce Judges To Consider Pets’ Welfare

It was just a few days ago that I posted about the status of pets in divorce. I said that family law has a rigid view of pets as property and that people in divorce just need to get accustomed to that. Now comes word that Alaska is making a liar of me.

As of a week or so ago, Alaska is now the first state to require courts to “take into consideration the well being of the animal.” It also gives judges discretion to order joint custody of pets. Here’s the article about it in the Washington Post.

My dog is curled up at my feet as I write this, and both my wife and I enjoy hanging out with him. So I get the deep emotional connection both spouses in a marriage often have with their pets. My concern is that every issue in divorce takes time for the judge and court staff to address. Time to read the pleadings, time to hear the testimony and argument, time to make a decision, and time to write the order. If we want the judge to spend more time addressing the needs and well-being of Horace the golden retriever, and if we don’t accompany our demand with the willingness to support higher taxes to hire more lawyers and staff, we are by definition saying we want judges and staff to take time away from the other issues of divorce, like retirement plans, alimony, and the well-being of children.

Judges almost unanimously say their decisions would be better and their lives more pleasant if they didn’t need to deal with such a crushing workload every working day. The Alaska statute, perhaps without intending to, will make this problem worse.


Due Process and Proving Income in Divorce

Lee’s note – 5/5/17: This note was originally based on a version of the court’s opinion that has since been withdrawn. On April 7, 2017, after rehearing, the appeals court withdrew that opinion and substituted a now one in its place. I have left the note in place, but I have added at the end a quick summary of the new language from the new opinion.

Wesley Person earned $40 million playing basketball in the NBA. Unfortunately, his success on the court didn’t transfer successfully to his life off the court. He ended up unemployed and with his marriage in divorce court. Because he and his wife could not or did not agree quietly on the terms of their divorce, we now know more than we need to about his financial affairs, cataloged and discussed in the case of Person v Person, DR 2150225 (Ala. Civ. App. January 20, 2017).

For students of domestic relations law, the case provides an excellent demonstration of the mundane requirements of complying with procedural due process and proving income in divorce. The trial court had entered a pendente lite order in the form of a temporary restraining order (often shortened by lawyers to the term “TRO”) after the wife had filed for divorce but before the complaint had been served on the husband. The TRO set child support at $6,000 per month and alimony at $10,000 per month. There’s no mention in the opinion of efforts to convert the TRO later to a permanent order. The husband made no payments at all in compliance with it.

By the time the case was tried, the arrearage on the child support and alimony stood at $320,000. The trial court set the arrearage but did not describe any plan to pay it. The trial court divided the couple’s property and ordered the husband to pay alimony of $1,000 per month and child support of $2,500 per month.

The husband argued on appeal that that original pendente lite order was void because it didn’t comply with Ala. Rule Civ. Proc. 65(b). Specifically, Rule 65(b) requires that to support an order without notice to the other party requires proof in affidavit or verified complaint that immediate and irreparable harm will result to the applicant before the adverse party or his attorney can be heard in opposition. It also requires that the applicant’s attorney certify to the court the efforts made to give notice to the adverse party and the reasons supporting the claim that notice should not be required.

Because the record contained neither of these essentials, the appeals court agreed with the husband that the order was void. It therefore reversed the trial court’s order setting the arrearage. The appeals court reversed the trial court’s order of child support because “there is no evidence of the parties’ incomes or of the needs of the children in the record.” The appeals court pointed out that, on remand, the trial court could choose to make the order of child support retroactive to the filing of the wife’s complaint for divorce.

The appeals court reversed the trial court’s alimony order because there was no evidence in the record demonstrating the wife would be unable to meet her needs absent alimony. And finally, because alimony and property division are interrelated, the appeals court reversed the trial court’s order on property division.

So now this case goes back to the trial court, where an angry but wiser judge will take evidence on the incomes of each party,  the need of the wife for alimony, and the needs of the children. Then the trial court will issue a new order spelling out its findings and issuing orders for child support, alimony, and property division.

Summary of changes in April 7 opinion: The court does not appear to have made any significant substantive changes in its ruling. There is no longer an invitation to the trial court to make the award of child support or alimony retroactive to the filing date, but neither is there any specific bar to a retroactive order. The appeals court does include language in its revised opinion pointing out that at the hearing on the husband’s postjudgment motion, the wife seemed to believe the portion of the marital estate awarded to her would be adequate to provide for her support (implying that alimony may not be needed).

Gouging People in Divorce

When you think of people getting victimized in the middle of divorce who comes to mind? Lawyers, right?

There certainly are plenty of lawyers whom I’ve watched stir up enmity between two spouses who started out cooperative, causing both of them to spend thousands of dollars in legal fees they can’t afford to pay, until they end up with a settlement that’s strikingly similar to the one they were talking about together before the lawyers got involved.

But this is not about those lawyers; it’s about the employers and money management firms that have discovered they can get one last pound of flesh out of couples who need to divide a retirement plan. I charge $300 to prepare the QDRO for the division of most defined contribution retirement plans. That’s less than most lawyers, but few lawyers charge more than $1,000 or so, at least where I practice. Recently when I told a divorcing couple about that charge, I had to add “but check with your employer; lately they’ve been adding a fee on their end.” Sure enough, their employer had added a $450 “processing fee” that somebody needed to pay, just to allow the wife to share their marital property.

Yes, the employer needed to do a little work to check my QDRO draft and make sure I had done it right, but that work was performed by salaried employees, and they performed their work at zero marginal cost to that employer. It’s not about recovering cost; it’s about finding a new way to kick their own employees in the groin.

I could almost understand if this were a big money management firm like Fidelity or Vanguard adding a charge like this. Their primarily relationship is with the employer, not the employee, and they really have no reason to care if my client lives, dies, or goes bankrupt. But this was my client’s employer, who professed to care deeply about their worker who was going through one of the most miserable times of his life. Why couldn’t they cut the poor slob a break?

Because this page discusses my practice, I need to say this: no representation is made that the quality of the legal services to be performed is greater than the quality of legal services performed by other lawyers.

Changing Child Custody After Divorce

Courts allow one of the parties to a divorce to ask after a divorce for a change in the living arrangements for a child of the divorce, but most states require a significant change in circumstances to avoid disrupting the child’s life unnecessarily. In Alabama, that requirement is embodied in the case of Ex parte McLendon, 455 So.2d 863 (Ala. 1984). The now-famous “McLendon standard” states that a parent seeking to change sole physical custody previously granted to the other parent must prove that (1) he or she is a fit custodian; (2) material changes affecting the child’s welfare have occurred; and (3) (the toughest test) the positive good brought about by the change in custody will more than offset the disruptive effect of uprooting the child.

In the recent case of Gordon v Gordon, DR 2150775 (Ala. Civ. App. January 20, 2017), we see a textbook application of the McLendon standard. Mom and Dad had divorced while Mom was a medical resident. Their mediated agreement called for joint legal custody and sole physical custody for the father. Three years later Dad filed for an increase in child support and some unspecified changes to child custody, and Mom responded with her own claim for changing to joint physical custody. The trial court increased Mom’s child support and determined that she had failed to satisfy the McLendon standard.

The appeals court mentioned Mom’s argument that the McLendon standard “is based on a misconception, violates public policy, and is a barrier to custody awards that are in the best interest of the child.” Its only response was a footnote quoting its earlier opinions: “[T]he McLendon standard is not unconstitutional[, and] the McLendon standard has not been superseded by statute.” Gallant v. Gallant, 184 So.3d 387, 405 (Ala. Civ. App. 2014).

Mom had introduced the video deposition of her expert, Dr Linda Nielson, who said research in some 40 studies had consistently shown that children in “shared parenting” arrangements enjoyed better outcomes on issues like the quality of relationships with parents, behavior, mental health, and academic performance than children in other post-divorce arrangements, even in the presence of high conflict between the parents.

When asked specifically about the disruption of changing the child’s living arrangements from one parent to another,  Dr Nielson had stated: “It’s a change, but it does not have a negative outcome, otherwise, you would not find the positive outcomes that you did in the forty studies. All of the forty studies, those children changed from a –living with one parent to living with both parents. All forty studies, the children made a change, they switched.”

Mom argued that the expert’s videotape deposition constituted “undisputed factual and scientific evidence” demanding an award of joint physical custody. The appeals court rejected this argument, however. “When the evidence is presented to the trial court ore tenus, it is the trial court’s duty to determine the weight and credibility of the witnesses [impliedly including expert witnesses] and their testimony.” Smith v. Smith, 196 So.3d 1191, 1202 (Ala. Civ. App. 2015).

How Not to Revoke a Prenuptial Agreement

This case is painful to read. Margaret Ann Harrison and Jerry Harrison were married for more than 25 years. He was almost certainly unfaithful to her. She presented evidence that, following one episode of his infidelity, she and he had agreed to cancel the prenuptial agreement they had signed the morning before their wedding as a prerequisite for her continuing in the marriage. Yet at divorce, he was able to enforce the prenuptial agreement.

The case is Harrison v Harrison, DR 2150883 (Ala. Civ. App. January 20, 2017). The husband’s and wife’s testimony was contradictory, so it was left for the trial court to determine which party was telling the truth. The wife said the husband had signed a list of her requirements at home, including the voiding of the prenup, writing “I agree to this” on the list. The husband agreed that he had signed it, but only hurriedly because she had interrupted him at work and he needed to get back to his medical practice. The wife also produced a version of the prenup with a big “X” drawn across the first page and the words “Voided 5/22/10” on page one, together with her initials and what she said were the husband’s initials as well. He said he had no memory of signing the document.

After hearing testimony from the wife’s handwriting expert, the trial court found the prenup agreement to be valid and enforceable, producing a written opinion to support its decision that detailed its findings of fact. It took a couple of passes to get the case to the point where the appeals court regarded it as an appealable final order.

The appeals court quoted the trial court at length and relied heavily on the fact that this is an ore tenus case, one in which the trial court had heard direct testimony and had made a determination of the witnesses’ relative credibility. “‘When evidence is presented ore tenus in a divorce case, the judgment of the trial court premised on findings of fact that were based on that evidence is presumed correct and will not be set aside on appeal absent plain and palpable error.’ Garrett v. Garrett, 637 So.2d 1376, 1378 (Ala. Civ. App. 1994) (citing Bailey v. Bailey, 594 So.2d 166 (Ala. Civ. App. 1992)).”

So what should the husband and the wife have done if they wanted to revoke the prenup? They needed a more formal document, like the one I’ve included on this web site. Its essential elements include:

  • Formal naming of the parties
  • Identification of the prenuptial agreement together with the date on which it was originally executed
  • Recitation of consideration supporting the revocation
  • A clear and ambiguous statement that the parties intend to revoke and are hereby revoking the prenup
  • Signature and date of each party
  • Formal acknowledgement of each signature before a notary public

The trial court implied that the same requirements for the enforceability of the prenup governed its revocation. That would include an implied requirement that each party have an independent advocate at the time of the revocation. Barnhill v. Barnhill, 386 So.2d 749 (Ala. Civ. App, 1980). This seems unnecessary, inappropriate, and out of step with the majority of jurisdictions. Although the appeals court did not specifically reject the trial court’s reasoning, it did make clear that it was not making any decision that the trial court’s statement of those requirements was accurate. “We need not address whether the enforceability of a postnuptial rescission of a prenuptial agreement requires satisfaction of the Barnhill requirements, because the trial court found that the wife did not prove that the parties had mutually agreed to take any action regarding the agreement in 2010 and that finding is supported by the evidence.”

Imputing Income for Child Support

Because the Alabama child support guidelines in Rule 32 are straightforward and reasonably logical, litigation around the issue of child support in Alabama is relatively rare. However, one of the areas in which parents can disagree – and bring their disagreement to the judge to resolve – is the issue of imputed income.

Both parents submit their income on CS-41 forms, and the court determines the child support from the information on those forms using Form CS-42. But if one of the parents argues that the other is voluntarily unemployed or voluntarily underemployed, and if the court determines that they are correct, the court must (yes, I said must) impute income to that parent.

We see this issue played out in Randall v Sizemore, DR 2150905 (Ala. Civ. App. January 13, 2017). This is the second trip to the appeals court for these parties, so this surely must be getting tiresome for both of them. Dad had worked as the manager of a concrete company and had enjoyed an income of $73,000. Then the company folded, and he worked as a truck driver for other concrete companies, with income around $50,000. By the time this case rolled around, he was working as a retail salesperson for a liquor store in Mississippi and earning an income of only $22,000.

The first time the case was reversed and remanded, the appeals court had agreed with Dad that his income seemed to have dropped enough for there to be a material change in circumstances, which triggered his right to a recalculation of child support. On remand, the trial court had found that Dad was voluntarily underemployed and had “impute[d] income to the Father at the amount of his former employment.” The trial court apparently did not change child support at all or attach a Form CS-42.

After exploring the competing arguments surrounding the issue of voluntary underemployment, the appeals court reversed again with instructions to the trial court to “determine the specific amount of income to be imputed to the father, to determine the mother’s current income, and to calculate the father’s child-support obligation using Form CS-42.”

Maybe this will do it. Let’s hope so.

Should We Make Divorce More Difficult?

When you’ve been focusing on divorce as long as I have, you hear a lot – I mean a LOT – about how divorce has become too easy. “People don’t take marriage seriously any more; the first time they have an argument, somebody runs out and gets a divorce.”

The latest salvo comes from the son of a Baptist preacher turned Texas legislator who has introduced legislation to do away with no-fault divorce. He’s part of a decades-long pattern of religiously-minded men who want to impose their faith practices on public policy.

What we’re actually seeing undermines the easy assumption that divorce is too easy. What the statistics tell us is that today’s young adults, intimate as many of them are with the trauma of divorce, are so afraid of it they are reluctant to marry. The divorce rate is down, and so is the marriage rate. Today’s young adults are almost as likely as their counterparts from a generation ago to fall in love with someone of the opposite sex, and they’re almost as likely to share a household with them. What they’re less likely to do is marry them.

For years, most divorce attorneys, when challenged about how easy it is to divorce, have pointed out how easy it is to marry and have suggested that perhaps we should make marriage more difficult. Now that argument becomes less appealing. Most of us would say that when two people love each other, and particularly when they want to make a family together, it’s better for them to marry than to just shack up. We know that family law gives a measure of protection to a spouse who compromises his or her career for the sake of the family, and we know those protections seldom or never come into being in the absence of marriage. Given a new reluctance by loving couples to marry, do we still want to make it harder for them to marry?

What I can say from my little vantage point of watching people divorce over the decades is this: divorce is NOT too easy. Broken marriages are almost always accompanied by deep, searing pain, pain that spreads like an infection through both spouses to children, parents, siblings, neighbors, and co-workers. Sometimes that pain drives people to act violently. Measures to increase the waiting period for divorce or to drive up the cost of divorce or to force them to prove their spouse’s misconduct may in fact reduce the incidence of divorce, but they won’t do a thing to address the broken marriages. They will simply lead to more people remaining in broken marriages and sharing their misery more widely.

If that Texas legislator wants to use his power to improve the lives of his constituents, I have a suggestion for him: build a culture that encourages and supports marriage.

  • Make it easier and more affordable for couples who fall in love to learn how marriage would work.
  • Make it easier and more affordable for couples about to marry to engage in premarital counseling.
  • Make it easier and more affordable for spouses and their children to get counseling and community support so they can maintain a happy family.
  • Honor and celebrate couples living quietly in long-term, happy marriages as the community heroes they should be.
  • And if spouses must part company and divorce, make it easier and more affordable for them to do that too.

Wouldn’t it be wonderful if Texans could lead the way and show the rest of us how a state can support and encourage marriage? Don’t think it’s likely? Neither do I, but that shouldn’t stop us from dreaming, should it?

5 Key Facts You Need to Know About the Division of Marital Property

Our friends at the law firm of Wilkinson & Finkbeiner, LLP in San Diego were kind enough to provide us this article on key facts about the division of marital property. It looks useful, so I’m proud to share it with you.

5 Key Facts You Need to Know About the Division of Marital Property

By: Darryl Blank

Divorce can be a difficult and emotional process, especially if both parties can’t initially agree on terms that are mutually fair. Some of the most trying decisions lie with who gets custody of the children, who gets the money, the house, the ski boat and more. And these arguments can be substantially more heated if it’s involving a significantly large volume of assets. The largest, finalized divorce settlement on record in the U.S. was with Alec Wildenstein & Jocelyn Perisse. With a wealthy estate due to high-end art dealing and horse breeding and racing, the wife Jocelyn was awarded a total of $2.5 Billion up front, plus $100 million per year for 13 years. With such a large estate, it’s no surprise that it was such a heated, drawn-out case.

When the parties can’t come to a mutual conclusion, this is where the courts, as well as family law attorneys step in to determine the best way to divide up all the assets. There are some big misconceptions about divisions of property in a divorce proceeding.  Below are explanations of some important concepts about division of property.  

#1. Equitable Distribution Does Not Mean “Half of Everything”

 Equitable Distribution is a process for division of assets that’s used by most of the U.S. state courts. Many people believe that this practice means “equal” division. However in actuality it means fair division. So instead of a strict 50/50 split in which each spouse receives exactly one-half of the property acquired during the marriage, the doctrine of equitable distribution is used to look at the future financial situation of each spouse after the termination of the marriage.

The courts will consider many different factors when determining the amount of marital property to award to either party. Some of the most important factors for property division, as compiled by the Boston family law firm Wilkinson & Finkbeiner, LLP are as follows:

  • Length of marriage
  • Conduct of the parties during marriage
  • Age, health, station, occupation, amount and sources of income
  • Vocational skills
  • Employability
  • Estate
  • Liabilities
  • Needs of each party
  • Opportunity for each party for future acquisition of assets and income
  • Present and future needs of children
  • Contribution of each party to the acquisition, preservation, or appreciation in value of the estates of each party
  • Contribution of each party as a homemaker to the family unit

#2. Not All Estate Assets are Up for Grabs in Divorce

A typical misconception of divorce is that everything of value that a person owns is subject to forfeit during a divorce trial. This belief is false! There are certain types of assets acquired outside of the time of the marriage known as “Separate Property”, like an inheritance or business venture, for example. The courts will certainly consider an individual’s amount of separate property in determining what is fair for distribution in an asset division case, but the marital property is the only thing that is distributed by the courts in a divorce.

Keep in mind that Equitable distribution is used in as a final measure. If both spouses can come to a mutual agreement about the division of the assets, then there is no need for the court to use either Equitable Distribution or Community Property.

#3. Divorce and Property Distributions Laws Vary from State to State

Getting a divorce in Massachusetts can be completely different from getting a divorce in another state. And sometimes the divorce parties decide to relocate to a different state to take advantage of certain laws and maximize their court outcome. For example, In California you have to be a resident of the state for a minimum of 6 months before you can file for a divorce. And on the opposite spectrum, in New Hampshire you don’t even have to be a resident of the state. You simply walk across the state line, pay $180 for processing fees, and you can be divorced in one day. Two other states that offer the quickest and cheapest divorce processes are Alaska and Wyoming.

The most difficult states to get a divorce are Arkansas, New York and California. New York doesn’t allow “no-fault” divorces, so this leads to lengthy, drawn out and difficult legal battles, and filing fees are $335, with a minimum of 360 days processing. Extensive time regulations make Arkansas another difficult state for separating. According to an article in Newsweek, they have a strict 540-day standard processing time for divorce, and a couple must be separated for at least 18 months before they can even file divorce papers.

Distribution rules and regulations can vary from state to state as well. For example, there are some states that don’t currently use the process of Equitable Distribution, but rather another method referred to as “Community Property.” And this process looks at an accumulation of the assets and debts that were acquired during the actual term of marriage, and then divides them evenly to each spouse.

The U.S. states that currently fall under the category of Community Property States are California, Arizona, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin.

#4. Financial Debts are Distributed just like Marital Property

Similar to how marital assets are awarded, debts can also be assigned to each spouse as well. Most people usually think of dividing up the money, etc. when it comes to asset division, but accrued debt is also important in the picture, as it is used to factor someone’s total net worth. And the rules about how these are divided in a divorce depend on if the state that you are filing with is a “Community Property” state or not. In states that don’t have community property, the remaining debts are divided based on who’s name the debt is tied to. However, the states that follow community property, both spouses have responsibility for all of the debts that were accrued during the marriage.

The most common types of debts during divorce include:

  • Credit Card Debt
  • Home Mortgages
  • Car Loans
  • Child Support
  • Student Loans
  • And more!

The courts will also determine if any of the current debts are tied to any of the existing assets, and use that to decide the distribution. For instance, if there is a large mortgage tied to a house in the division, it might be determined that the mortgage debt goes to the party that is awarded the house in the division.

#5. You Shouldn’t Handle a Divorce Case on Your Own

If you find yourself faced with a complicated divorce, including the arduous task of divvying up your current assets, it’s important to do your research and learn the ins-and-outs of the divorce process – especially regarding the specific laws and procedures of the state that you are- or planning to- file. There are many speculations and myths about the divorce process going around, so one should understand the reality of these and coordinate your divorce case for success. In most cases, and especially in those states that don’t allow “no-fault” divorces, it’s important to get an experienced divorce attorney on your side to fight for you. Not only will they know the specific laws and policies of your state, but they should have experience in divorce cases, and will know the best way to fight for your assets and compensations that you deserve.

Assigning the Tax Exemption for Children in Divorce

Alabama child support guidelines are calculated based on the assumption that the custodial parent will be keeping and using the tax exemption for the children. So typically, divorce courts have little difficulty with this issue, routinely assigning the exemption to the custodial parent.

The recent case of Henderson v Henderson, DR 2150495 (Ala. Civ. App. January 6, 2017) is a rare exception. The wife appealed the trial court’s divorce decree citing several errors she thought were in it. The appeals court affirmed the trial court on its award of the marital estate and alimony, its failing to award her an attorney’s fee, its allowing the husband to decide what to retrieve from the marital residence, and its denial of her post-judgment motion.

The appeals court reversed, however, on the award of the tax exemption to the husband.

In A.M.B. v. J.M.S., 12 So.3d 1221, 1222 (Ala. Civ. App. 2009), this court reversed a judgment entered by a juvenile court that, among other things, awarded sole physical custody of the child to the mother, directed the father to pay child support, and directed that the mother and the father alternate yearly regarding which parent claimed the child for income-tax purposes. We reiterated Alabama caselaw observing that the Comment to Rule 32, Ala. R. Jud. Admin., assumed that the custodial parent will take the income-tax exemptions for the children in his or her custody and that a trial court may deviate from those guidelines if that court enters a written statement explaining its deviation therefrom. Id. In accordance with Alabama law, this court reversed the juvenile court’s judgment and remanded the case to the juvenile court “for that court to either (1) ‘enter a statement explaining its deviation from the guidelines in awarding the father the tax-dependency exemption in alternating years’ (K.H.L.[ v. K.G.M.], 782 So.2d [804, ] 807 [(Ala. Civ. App. 2000)]) or (2) amend its judgment to fully conform to the guidelines by awarding the dependency exemption to the mother as the primary custodial parent (see Walls[ v. Walls], 860 So.2d [352, ] 359 [(Ala. Civ. App. 2003)]).” 12 So.3d at 1222. Because the trial court in the present case also failed to indicate its reasoning for allowing the husband, as the noncustodial parent, to claim the child as a dependent for income-tax purposes, we reverse the trial court’s judgment and remand the case for the trial court to enter a statement explaining its deviation from the guidelines or to amend its judgment to conform with Rule 32 as discussed in A.M.B.

So now it will be up to the trial court how to deal with the exemption. It will either follow Rule 32 and assign the tax exemption to Mom, or it will enter a statement in the record explaining the reasons for its deviation.

A final personal observation: this divorce was filed in June of 2013. These two (and their four children) have been dealing with it now for 42 tortuous months, and it’s still not over. Hope you’re saying a prayer for them. I know I am.

Defending Credit Card Charges in Divorce

The case of Cowperthwait v. Cowperthwait, DR No. 2150252 (Ala. Civ. App. January 6, 2017) deals with four main issues, but this note will focus on the treatment of credit card charges the wife made shortly before the divorce. The two principal charges were a $2,857 charge for her attorney’s fee and a $2,500 cash advance. The trial court ordered the husband to pay the entire credit card bill of $5, 700, and the husband appealed.

The appeals court treated the two charges differently. Because the first charge was for an attorney’s fee, and because the appeals court said the trial court awarded no attorney’s fee “because the wife had made no claim for those fees,” the appeals court said the requirement that the husband pay this portion of the credit card bill could not stand. Judge Thompson’s dissent points out that the wife did try to raise the issue of attorney’s fees in trial and that her effort was thwarted by the husband’s objections, but let’s not try to guess whether she really raised it. The central issue from this case for people in divorce is, if you’ve charged an attorney’s fee on a credit card, you still need to defend that charge in the trial by showing it was reasonable, accurate, and attributable to the divorce.

On the second charge, the one for the $2,500, the appeals court affirmed the trial court on it because the husband did not submit specific evidence that the wife had used the funds for her personal benefit. The husband had pointed out the cash advance and had argued generally that, if she used the cash advance for her personal benefit it couldn’t be considered a marital debt, but he had not provided any evidence of how the money was used. “This Court does not have the obligation to search the record for substantiation of unsupported factual matter appearing in an appellant’s brief in order to determine whether a judgment should be reversed. Friedman v. Friedman, 971 So.2d 23, 31 (Ala. 2007).”

The lesson here for litigants is that an objection to a cash advance in divorce needs to be accompanied by specific evidence describing how the funds were used for the personal benefit of the person taking the cash advance. Conversely, if you elect to take a cash advance on a credit card during a troubled period of a marriage, you will want to create and maintain careful documentation showing that the funds you took out were used for the benefit of the marriage and/or the children. Also, be ready to show that personal expenses were paid from other funds that are not marital.

Alabama Allows One Parent Full Discretion Over the Other Parent’s Visitation

I’m not sure the Alabama Court of Civil Appeals realizes the full import of what it has just done. For as long as I can remember, judges have been careful to fashion visitation restrictions based on objective criteria. Specifically, they have been careful not to give to one parent the authority to stop another parent’s visitation with the child they share based solely on that parent’s opinion. About anything. Now in Watkins v Lee, Case No. 2150748 (Ala. Civ. App. January 6, 2017), the appeals court let stand a trial court’s ruling that a mother can in her discretion stop visitation with the father “if she believes that he is under the influence of drugs or alcohol or that he is placing the children in an unsafe environment or a place of danger.”

If, as they say, hard facts make bad law, these are hard facts. There’s no question that Dad is one bad dude. He has a history of drinking to excess, using and selling drugs, and beating up Mom. Like most violent men, he has a great story to tell about why. Basically, I only beat her up – repeatedly – ’cause she lied to me about my other child.

I understand the dilemma the trial court faced. It wanted to give this mother – who never married the father but shared two children with him – the strongest possible toolset to protect herself and her children. However, handing any parent the discretion to stop the other parent’s visitation is fraught with peril, as I fear we are about to find out.

What the trial court could have done instead would be to set up a bristling series of drug and alcohol tests that Dad would have to maintain in a clean state as a prerequisite to his continued visitation rights. Then Mom could stop the visitation for noncompliance. That’s objective; yet it protects the children. The trial court could also have required that visitation be supervised and/or occur at a designated public place where the children’s safety could be more easily protected.

The court’s opinion is Per Curiam, with a special concurrence by Judge Thomas and a dissent by Judge Moore. It’s possible that this bad law is happening because of bad lawyering. The Per Curiam opinion notes Judge Moore’s dissent and acknowledges the arguments he makes in it, namely that Dad’s fundamental right to access to his child is being controlled by Mom. But in a breathtaking dismissal, the main opinion says it didn’t need to consider those arguments because the father didn’t submit enough legal decisions backing them up.

“Despite their relevance to his appeal, the father has not referred this court to any of the authorities upon which the dissent relies in reaching its conclusion. Indeed, the father has not cited any authority discussing limitations on a custodial parent’s discretion to deny a noncustodial parent’s visitation.”

Justice Thomas offered a special concurrence in which she argues that the provision giving Mom the power to stop Dad’s visitation did not provide Mom more discretion than she would have in its absence, because a parent is never required to comply with visitation if it would be unsafe for the children. As Judge Moore points out in his dissent, however, “I agree that a custodial parent has a duty to protect the safety and welfare of his or her child from an objective threat of harm, even one posed by a noncustodial parent, but the restriction in this case authorizes the mother to deny the father visitation in broader circumstances. Under the language of the restriction, the trial court has given the mother the absolute discretion, based on her purely subjective observations or conclusions, to deny the father visitation.”

Judge Moore didn’t say it, but there’s also a vast difference for Dad in this case from where he would have been if Mom simply denied visitation because of concern for the children’s safety in the absence of a provision authorizing her to do so. If she denied visitation without authorization, Dad can bring an enforcement petition, with its accompanying risk that she will be held in contempt if she knowingly violated the judge’s order. Here, by contrast,  even if Dad is stone cold sober and thoroughly protective of the children, everything Mom will have done, even if she’s just confused about Dad’s sobriety, is in compliance with the judge’s order. Dad’s only remedy, apparently, is to seek a modification of the judge’s order on the grounds that there’s been a material change in circumstances. Tough standard.