Relocating Your Child – Do you need his consent?

So you are relocating next month and want to take your child with you? Even if there is no custody judgment in place, Louisiana law says “not so fast”. There are notice requirements if relocating:

  • Takes your child out of state.
  • Keeps your child in Louisiana but moves him or her more than 75 miles away from her principal residence.

In these situations, you must give notice to:

  • Any person “recognized as a parent” and
  • Any other person awarded custody or visitation.

You must send this notice by registered or certified mail (return receipt requested) or by commercial courier sixty days before relocating. Your notice must include:

  • Your current mailing address.
  • The new mailing address.
  • The new physical address.
  • Your new home and cellular phone numbers.
  • The date you plan to move.
  • The reasons for your move.
  • Your proposed revised schedule of physical custody or visitation with the child.

It must say that the other person only has 30 days to send an objection by registered or certified mail (return receipt requested). It must tell him to seek legal advice immediately.

If the other person does not object, you can move. If the other person does object, then a judge must approve your child’s relocation.

However, if the other person has “equal physical custody” of your child, he does not need to object . Unless he gives you express written consent, a judge must approve your plan to relocate before you move.

If you have to go to court, the judge will want to know two things:

  • Did you make your decision to move in good faith?
  • Is your move in your child’s best interest?

The judge will want you to answer questions like these:

  • How close is your child’s relationship with the other person?
  • How far away does the move take the child?
  • Will relocating adversely affect the child’s ability to see the other person?
  • Will the benefit to your child outweigh the damage to the child’s relationship with the other person?

As soon as you think a move is in your future, consult with a family lawyer. The lawyer can help you prepare your notice and your evidence.

Same Sex Parents and Child Custody

Same sex couples, like heterosexual ones, go to Louisiana courts and fight about child custody. In all cases, Louisiana judges are guided by the best interest of the child. Judges must also consider, however, the constitutionally protected rights of parents. Judges may not give custody to someone other than a parent unless the parent’s custody would result in “substantial harm to the child”.

Traditionally, “substantial harm to the child” meant that a parent was unfit due to:

  • Physical abuse or neglect of the child or
  • Emotional abuse or neglect of the child

Examples of an unfit parent’s behavior included:

  • Failure to provide clothes and shoes appropriate to the child’s age, sex, and the weather.
  • Failure to provide the child regular, healthy meals.
  • Beating the child.
  • Cursing or otherwise verbally humiliating the child.
  • Failing to obtain medical care for the child.
  • Failing to ensure the child attended school.
  • Being a moral hazard to the child due to criminal behavior such as drug use or prostitution.

For many years, an express definition of “parent” in custody cases seemed necessary. A “parent” was a mother or a father. There were two types: mothers and fathers by blood and mothers and fathers by adoption. In the former, a couple’s status as mother and father arose from conception by the woman as the result of her receipt of sperm from the man. In the latter, it arose by operation of law.

For many years, society disapproved of homosexual and lesbian relationships. Same sex marriage was not permitted. Today that disapproval has decreased. Marriage between persons of the same sex is a constitutionally protected right. These changes have not, however, made “parents” out of non-parents. A person who is not a child’s parent by blood or adoption is still a non-parent.

What if the parent is not unfit? Is there any hope for custody in favor of a same sex non-parent? The answer is “yes”. The “yes” answer depends on many facts. In lawyer-speak, it is fact sensitive. The case Ferrand v. Ferrand is an example of the facts that judges may consider.

The Ferrands were both women. Vincent Ferrand identified as a man. At that time, they could not marry but did exchange vows and rings. Paula legally changed her last name to Vincent’s last name. Paula was the biological mother of twins conceived by in vitro fertilization treatment after she and Vincent became a couple. Vincent paid for the fertilization treatment. He was at the hospital for the twins’ births. At the hospital Vincent and Paula presented themselves as husband and wife. Vincent signed the birth certificates as the children’s father. The couple named the boy after Vincent.

Vincent was very active in the children’s lives. He took regular physical care of them. During the four years they lived together as a family, the twins and Vincent developed a close and loving relationship. They called him Daddy.

Then Paula left Vincent and the twins and dated and got married to a man. One day, without warning, Paula picked the twins up from school and refused to allow Vincent to see them. Vincent hired a lawyer. The lawyer filed a petition asking for Vincent to have custody of the children.

The trial judge dismissed Vincent’s petition. In his opinion, because Vincent was not the legal parent of the twins (that is, by blood or adoption), he had to prove that Paula was unfit. Vincent appealed the dismissal of his case. The Louisiana Fifth Circuit Court of Appeals reversed the trial judge. It sent the case back for further proceedings and the appointment of a mental health evaluator.

The Court of Appeals reinstated Vincent’s custody petition because there was evidence that Vincent had become the twins’ psychological parent. Denying the twins contact with Vincent, the only father they had ever known, might cause them “substantial harm”. A mental health evaluator would help the trial judge decide whether custody rights for Vincent would be in the children’s best interests.

If you are in a custody battle, it’s too late to re-live the past. If you are not, here are some things you can do to improve your chances of obtaining custody:

  • Get married. Marriage shows your commitment to the relationship. Marriage brings stability to your partnership and your children.
  • Get biological. If you are able, donate your eggs to your partner for use in conception. Select a sperm donor with the characteristics of the partner who will not do the childbearing. Use a surrogate and have both of you contribute sperm.
  • Share the load. Be there during labor and delivery. Participate in naming the child. Feed the baby, change the baby, play with the baby. Be active in the child’s life at every stage.
  • Stay out of court. Work on your relationship with your partner. Do what you can to keep your partnership together. Go to counseling if necessary.

Same sex non-parent partners with children are not without legal recourse. At present, however, the “non-parent’s” burden of proof to obtain custodial rights is high. Only you can put together the evidence to support your claim for custody of the children. Even if you have that evidence, you will need a lawyer who is experienced in child custody litigation and dedicated to your case.

 

 

 

 

Overtime – Does It Count? It Depends.

Does Overtime Count toward Support? It Depends.

Overtime pay increases a parent’s base income. As income goes up, a parent’s child support obligation increases. In Louisiana, does this extra pay count as part of a parent’s monthly gross income? That depends.

What is income for child support purposes?

Louisiana law broadly defines gross income for child support purposes.   The list below contains examples of what gross income includes:

  • Salaries, wages, commissions and bonuses.
  • Severance pay, pensions, workers compensation benefits.
  • Pensions, annuities, Social Security benefits.
  • Interest and capital gains.

Does the definition of gross income include overtime pay?

Yes, since your “wages” include any overtime pay you receive.

Are there any exceptions to this?

There is an exception.  Gross income does not include “extraordinary overtime” if, in the Court’s opinion, including it in gross income would be unfair.

The child support statute does not explain what this means.  As a result, each judge has to decide what is and isn’t fair in a particular case.  One Louisiana court has held that “extraordinary”means the overtime is not part of an employee’s ordinary job requirements. In that case, the husband voluntarily worked excess hours for a specific short-term family purpose. Once the family broke up, the husband returned to working only his regular hours. The court refused to include the overtime in the father’s monthly gross income.

How will a judge decide if my overtime should be counted?

Whether a court will include your overtime in your monthly gross income generally depends on two things:

  • The likelihood it will be available in the future.
  • When and why you worked overtime in the past.

Are my past earnings used to predict my future earnings?

In a word, “yes”.  To determine whether extra hours will be available to you in the future, courts look at your past federal income tax returns and your pay statements, particularly the year to date figures. Proof you earned $20,000 in additional pay every year for the past five years suggests that you will likely earn this additional $20,000 for the foreseeable future.

How do I challenge the prediction?

If you want to challenge the conclusion that overtime will be available to you in the future, you need proof. Your employer is the key. If he testifies that future opportunities will be limited (e.g. due to a downturn in your industry), you may be able to convince the court that your past overtime experience does not predict what your future experience will be.

Likewise, if your employer testifies that unusual circumstances such as a fire at the plant or a hurricane caused your extra hours, you may be able to convince the court that your past excess income was the exception, not the rule.

Do my reasons for working long hours matter?

Your reasons for working more than 40 hours a week matter. If a parent has worked extra hours for years on a regular basis just for the extra money, it may not be unfair to count that income going forward. In fact, if such a parent decided to stop working overtime just to reduce her support obligation, a court may count the overtime anyway.

Does my employer’s overtime policy matter?

Yes.  If your employer requires you to routinely work extra hours, chances are the money will count toward support.  However, an employer may expect its employees to work overtime without requiring them to do so.  If she must “volunteer” for extra work to get ahead, a court may consider that a condition of employment and attribute the extra pay to her.

How will I know if my overtime pay will be counted?

There is no way to know for sure.  The judge will make that decision.  However, your lawyer can give you an idea of what may happen if you answer these questions for him or her:

  • How much have you earned from overtime in the past three to five years?
  • Why did your employer ask you, not somebody else, to do it?
  • Did you volunteer to do it?
  • Is working more than 40 hours a week as needed a formal job requirement?
  • Would you be less likely to get promoted if you refused it?
  • Did you work extra hours for a specific reason for example, to make a down payment on a house or new car?
  • Does your company expect to have overtime opportunities for you in the future?

My overtime is not guaranteed.  I can get a letter that says so.

Most employers don’t guarantee more than 40 hours a week to employees. But this does not mean courts do not have the authority to include overtime pay in a parent’s gross income for support purposes. Most of the time, they do. If you wish to have this type of pay excluded, you will need to provide evidence to the court that it is both extraordinary in nature and unfair to include it.

Adultery – Beware its effects on alimony

Adultery does not always determine your right to receive or your obligation to pay alimony. 

Louisiana’s rules on alimony and adultery may surprise you. One spouse’s adultery does not automatically condemn him or her to pay alimony to the other spouse. In fact, a Court may temporarily award the adulterer alimony from the wronged spouse. This state of affairs is the result of Louisiana’s law on spousal support.

In Louisiana, there are two kinds of spousal support.

Interim spousal support

Temporary alimony, or “interim spousal support”, is a short-term obligation. Its purpose is to maintain the economic status quo regardless of why the marriage broke up. For example, if a wife is a “stay at home” Mom and the husband is a doctor, the Court may order him to pay her money even if she cheated on him. During marriage, each spouse has a legal duty to financially support the other regardless of fault. But, when the Court signs a divorce judgment, that duty goes away. In most cases, so does the duty to pay interim spousal support.

Courts consider the following factors when deciding if a spouse should receive temporary alimony and, if so, how much:

  • The needs of the spouse asking for it.
  • The ability of the other spouse to pay it.
  • The couple’s standard of living before they separated.

“Fault” in the break-up of the marriage is not on the list. Even a spouse who commits adultery may get interim support.

Final periodic support

Final periodic support is different. Only a spouse who meets two conditions can receive it. The spouse must be:

  • Free from fault in the break-up of the marriage.
  • “In need of support.”

Being “free from fault” in the break-up of the marriage means the spouse’s conduct did not cause the break-up. A husband may be cheating. But if his wife is a physically abusive drug addict, both may be at fault in the break-up. In short, the person seeking final support cannot rely on the other person’s bad behavior to make her case. She must affirmatively prove that her conduct was not a cause of the parties’ separation.

A spouse who is in need and free from fault must still prove how much she should get and for how long. Courts decide the amount and duration of final support payments based on many factors:

  • The parties’ income and assets.
  • Whether a party’s assets can be turned to cash (liquidity).
  • The debts of the parties.
  • The parties’ ability to earn money (earning capacity).
  • Whether child custody reduces a party’s earning capacity.
  • The party’s ability to re-educate or re-train and return to work.
  • The parties’ health and ages.
  • Tax consequences.

This is not an exclusive list. Courts can consider other factors that are not on it.

Final periodic support is limited by the net income of the paying ex-spouse. The most that a Court can award is one-third of the paying spouse’s net income.

If you’re at fault and your spouse is not, what’s next?

Talk to your lawyer about developing a strategy early in the case:

  • Paying your spouse more than 50% of liquid community assets might accomplish two goals. It may make him feel vindicated. It may also provide him with enough income or means to disqualify him from final support.
  • Think about negotiating a generous monthly support payment for a short time. That might be better than paying a smaller one for life. Spousal support is tax deductible to the payor and income to the payee. Talk to your CPA about whether a support payment may provide tax benefits to you.
  • If you have cash on hand, talk to your insurance agent about an annuity in favor of your ex-spouse. The lump sum cost up front might be less than the total payments long term. Your “ex” might consider an annuity payment as a way to be supported by you even if you die.

Conclusion

Your attorney can help you determine whether you should pay temporary or final spousal support. Armed with the facts and the law, together you can work through the issues that your, or your spouse’s, sexual misconduct during marriage have created.

 

Child Support Alone Won’t Cut It

Couples who separate, particularly those with children, almost uniformly experience a decrease in their living standards.  Costs of housing and utilities are no longer shared.  Each person must bear 100% of those expenses.  For women, who often make less money than men, this is a serious problem.  Child support and temporary spousal support (assuming you are married) often fail to make up for the decline in resources that occurs upon separation.  Furthermore, those payments do not start automatically.  Unless your partner agrees to and does in fact help you support yourself and your children, you will need to pay a lawyer to obtain that support for you.  In these difficult times, it is easy to take the short view:  Get all the support you can as cheaply as you can and learn to live with less.  Before giving up on a better economic future, you should consider retraining and reeducation.  Financial independence is the key to avoiding the poverty that often accompanies divorce.

Now You See It – Now You Don’t: The Impact of Form on Substance

Non-lawyers often assume that they can sign a document requiring notarization and then have another person bring it to their lawyer later to notarize the signature. This practice is strictly forbidden by Louisiana law. In Eschete v. Eschete, 2012 CA 2059, Louisiana First Circuit Court of Appeal, a husband was able to void his donation to his wife of his interest in the family home because the notary and witnesses were not in the room when he signed it. The act of donation was signed at Ms. Eschete’s lawyer’s office. Mr. Eschete signed it in the presence of a secretary. However, the notary and the other witness, although they were nearby in other rooms, were not physically present in the room where the donation was signed by Mr. Eschete. No one disputed that eventually all of the necessary signatures wound up on the document. Mr. Eschete did not deny that he had signed it. The issue was strictly whether the act of donation was in “authentic form”. If it was, it was binding on Mr. Eschete. If it was not, Mr. Eschete was entitled to have it nullified. After hearing the testimony, the trial judge found that the notary and one of the witnesses had not actually seen Mr. Eschete sign the donation. He granted Mr. Eschete’s petition and set the donation aside. Litigants in domestic proceedings involving community property are often called upon to sign “authentic acts”. You should be aware that the notary and the two witnesses must see your signature being affixed to the document. The inconvenience of waiting until all of the necessary signatories are present before the document is executed is small compared to the possible consequences if you do not comply with the law regarding authentic acts.

The Right to Confront Court Appointed Expert Witnesses in Custody Matters

Judges in Louisiana are authorized to refer litigants in custody matters to mental health professionals such as psychologists for an evaluation of their fitness as parents.   Because judges choose the professional he or she is considered the court’s expert not the expert of either party. The opinions of these professionals are not binding on judges but may be considered among other factors. Judges usually defer to their experts’ opinions when deciding custody matters. Judges receive the expert’s opinion in the form of a written report which must also be provided to each party.   Each party also has the right to to cross-examine the expert during the trial of the custody or visitation dispute.   In Barker v. Barker, Louisiana First Circuit Court of Appeal, 2014 CU 0775, Mr. Barker asked the court for a modification of a custody judgment. The judge appointed Dr. Lambert to evaluate the medical, educational, and social issues presented by the parents’ claims. When the case was called for trial, Dr. Lambert had not yet provided the judge with a report and was not present in court. Over the objection of Ms. Barker, the judge heard the case. He told the parties that he would decide their case after he had received Dr. Lambert’s report. Approximately 1 ½ months after the trial, Dr. Lambert delivered his report to the judge. Neither party received a copy of the report or had an opportunity to cross-examine Dr. Lambert. The judge denied Mr. Barker’s request for a custody modification and Mr. Barker appealed. The Court of Appeal reversed the trial judge’s decision and sent the case back for another hearing in order to give each party a chance to read the report and to cross-examine Dr. Lambert. The Barker case reaffirmed the rights of litigants in custody cases to due process in connection with the reports and opinions of court appointed experts. If an expert is appointed in your custody case, make sure you obtain a copy of the report and talk to your lawyer about whether you should insist that the expert appear at trial and be questioned.

Burning the Birthday Candle at Both Ends – Adultery Laws and Divorce

Two pretty women whisper and flirt with handsome man

Jason Biggs’ wife, Jenny Mollen, surprised him on his birthday with prostitutes according to the July 7, 2014 edition of US Weekly. He “didn’t have a good time” and “didn’t complete the mission”. His wife “found the whole thing to be quite hysterical”.

Will Ms. Mollen wish Jason happy returns of that day? It seems unlikely that Jason will be looking forward to them.

What does it mean if your spouse says that he or she does not mind if you look elsewhere for sex?

What does it mean if your spouse brings people home for you to sample?

In Louisiana, such outrageous behavior would violate an important foundation of marriage – sexual fidelity. Even if the offer to commit adultery was refused, the offer may constitute cruel treatment and support the wounded party’s decision to leave the home and divorce. If you are the victim of this type of mistreatment, you should consult with a lawyer about your legal rights.

Paper is Not Mightier than the Sword – Protection from Spousal Abuse.

The July 7, 2014 edition of People describes a young couple’s murder at a high school reunion in East Peoria. Lori Moore’s ex-husband shot her and her new love in the head in front of 100 people. An off-duty FBI agent drew his gun and killed him before he could injure others.

Many women in Louisiana believe that a restraining order can protect them from an abusive former spouse or partner. It is important to realize that a court order is only a piece of paper.

If your spouse or lover is determined to injure you, paper will not get in the way. You should immediately report spousal abuse to the police. Legal proceedings such as petitions for restraining orders can provide some protection. But you should never rely on them as fool proof shields against violence.