Custody

New Grandparent Rights Law in Georgia

On May 1, 2012, the Governor signed into law a new bill that strengthens the rights of grandparents in Georgia. The new law, which is effective immediately, revises the former “no presumption” principle in child custody cases and prompts judges to rule in favor of visitation for grandparents who have financially supported or regularly visited their grandchildren. The new bill indicates a need to consider the potential health risks involved for a child who is denied visitation rights to his or her grandparents. Furthermore, the law allows judges to rule that a child’s health may be compromised without “minimal” visits from grandparents, lasting at least 24 hours in a month. The exact revision to Official Code of Georgia O.C.G.A. § 19-7-3 is as follows:

“In considering whether the health or welfare of the child would be harmed without such visitation, the court shall consider and may find that harm to the child is reasonably likely to result where, prior to the original action or intervention:

(A) The minor child resided with the grandparent for six months or more;

(B) The grandparent provided financial support for the basic needs of the child for at least one year;

(C) There was an established pattern of regular visitation or child care by the

grandparent with the child; or

(D) Any other circumstance exists indicating that emotional or physical harm would be reasonably likely to result if such visitation is not granted.”

 


Venue and Attorneys’ Fees in Custody Modification Actions – New Case Law

This week, the Georgia Supreme Court decided Viskup v. Viskup, holding that venue is still proper when a petition is filed prior to respondent moving out of the county, but service is not perfected until after respondent has already moved. More notably, the Court further determined that an award of attorneys’ fees in a child custody modification action is proper pursuant to OCGA § 19-9-3(g), even where the action is not qualified under OCGA § 19-6-2(a)(2).  

Mother filed her modification petition in Cherokee County on October 17, 2008, and Father was served October 24. Father had decided in September to move from Cherokee to Cobb County, but did not physically move until October 21. The trial court ruled, and the Supreme Court agreed, that Father was still a resident of Cherokee until his physical presence actually changed counties on October 21, and so long as the petition was filed before then, venue was appropriate.

Father also argued that the trial court improperly awarded attorneys’ fees to Mother, because the final order did not state a statutory basis for the award. The Court found that the trial court’s order on attorneys’ fees in fact contained language set forth in both OCGA § 19-9-3(g) and OCGA § 19-6-2(a)(2). Previously, Georgia law limited the application of § 19-9-3(g) only to actions covered by § 19-6-2(a)(2). Harris v. Williams, 304 Ga. App. 390 (2010). However, the Supreme Court ruled that to the extent that Harris v. Williams held that § 19-9-3(g) did not authorize an award for attorneys’ fees in an action seeking modification of child custody, it is now overruled. Finally, the Court held that because Mother’s petition fell within the parameters of § 19-9-3(g), the case did not need to be remanded for clarification of the statutory basis of the award.


“Handling” the Media (in Family Law Matters)?

On Wednesday January 18, 2012 I will be presenting a Webinar for the ABA. It is one that is interesting to me. The title? Handling the Media in a Family Law Matter. I am sure I don’t know all the answers, but preparing for it and thinking about it has been educational and enjoyable.

While there certainly is more than one way to work with the press, I have found that being forthcoming with the media, even if my answer is “I don’t know”, or “I know but cannot and will not say”, has been the best. The media have much power, but in the end, they, like we, are people making decisions and judgment calls so why make them second guess your honesty or integrity.

I am looking forward to the program. If you have any helpful tips, resources, insights or suggestions, please pass them along. It can only help improve the presentation.


CUBA! Family Lawyers trip

Cuba! To exchange legal ideas with Cuban lawyers, in Cuba, how unbelievable! I am so fortunate to be able to help with this venture next March. The idea is to promote understanding of family law in each country and to exchange ideas that will hopefully help families in both countries.

Again, the goal is to enhance American and Cuban lawyers knowledge and skills in family law, especially now that we may be on the verge of more Cuban and American family law issues as travel and immigration restrictions change. What an opportunity to learn each other’s legal systems with a view to helping Cuban and American families who will go through family law cases.

At this point I am simply excited about the program and am looking forward to it. If you have any ideas, suggestions or comments, please let me know.


ABA FLS Brochure available now

The American Bar Association, Family Law Section’s Fall CLE Brochure is out and available on line (click here to view it). The seminar will be held in Law Vegas at the Encore (Wynn) Hotel October 26-29, 2011.

We have worked hard to develop an exciting and educational program. Topics include: “Saving a Stolen Childhood: How to Prevent and Resolve International Kidnapping Cases,” and “Diminishing Returns: Effects of Illness, Psychological Problems, and Addiction on Support Calculations”.

The speakers and program producers have worked very hard to organize and create this exciting program and we hope you will join us. Please pull up the brochure, sign up and join us. Again, click here for the brochure: BROCHURE.


Custody ruling against woman with cancer

I have recently been asked to appear on Headline News to discuss family law cases. One recent one is the woman who has cancer and lost a custody hearing (click here for a link to the video).

It seems like it was a really difficult case, but like all child custody cases, this one must have been, and likely was reviewed by the judge with the focus being “What is in the best interests of the children”. Like any case, it is easy to second guess. But the factors the judge likely focused on were those that affected the children and what would give them the best shot at good, stable futures. We must resist the temptation to judge the headlines and hope that if we ever need a judge to help determine our disputes, the judge will listen to all the evidence and do what is right, especially in the case of children. We can never know, but let’s hope this judge made the right decision and these children and this woman heals (and that the whole family heals).


New DNA Testing Claims Paternity Can Be Determined ASAP

For years DNA testing could reveal the paternity of a child after birth. Then came pre-birth testing. Now comes DNA testing in the twelfth week of pregnancy. This is a game changer. Read the story by clicking here.

Conceivably now, a couple could learn the paternity of their child in the first trimester of pregnancy, when termination of the pregnancy is legal in most places. Just think of the issues this raises. If the pregnancy is the result of an extra marital, or extra relational encounter, does this make it more likely that a pregnancy will be terminated? What if technology and science progress to the point where paternity can be established “the morning after” or at one month of pregnancy?

And perhaps the ability to know who the father is, so early on, will encourage more mothers-to-be to tell their partner that there may be doubt about the paternity of their expected child. Or at least the mother-to-be could get a test with her paramour and hopefully exclude him as the father early on, thereby perhaps saving her relationship with her husband or significant other?

This new technology, if accurate, could change many lives and many relationships. Some say ignorance is bliss. This may be one such occasion?


ABA meeting informative and rewarding

The Annual American Bar Association meeting, held this year in Toronto, has been quite interesting.  I have gone to meetings for all sorts of committees (Commission on Youth at Risk, and many others) and seminars on all sorts of topics (including gay marriage and the future of marriage and family law).  At a committee breakfast, I learned of a social media initiative to educate parents on how their children may perceive their parents or other’s views on homosexuality.  They have created a video that may go viral (thekidsarelistening.org).

There are also programs on line to help lawyers learn how to represent children including how to interview children located on the website of the Litigation Section of the ABA. This was done by the Litigation Section’s Children’s Rights committee.

But most importantly, as always, is the camaraderie. Seeing local metropolitan Atlanta judges and lawyers as well as family law attorneys and judges from across the country is very enjoyable for me. We are all here to learn and help and the amount of energy that lawyers are putting into improving our society and our communities is evident.  Lawyers and others rising early and going to working meetings at 7:00 am on a Sunday to address the needs of foster children and child trafficking is really heartwarming.

I am glad to be an active lawyer and part of something bigger.  Even though the ABA may support various ideas that often generate much discussion and disagreement, it is a peaceful way to effectuate change, and a most valuable endeavor.


ABA Annual Meeting special one for me

The 2011 American Bar Association Annual meeting which begins this week in Toronto (click here for a link to the home page for the meeting), holds special meaning for me. On Friday August 5, 2011 I will be sworn in as Chair of the Family Law Section (FLS) of the ABA. I am so honored and excited. The FLS has 10,000 members who are all interested in the practice of family law, whether they are lawyers, judges or law students (over 9,000 are lawyers). Our goal, and mine, is to improve the practice of family law and to minimize the negative impact family law can have on families. My platform will be a continuation of our “Families Matter” project which has the reduction of such an impact on families as its goal.

Practicing family law has been gratifying, knowing that we can and have helped many families. It also can and has been frustrating. When bad results happen to good people, especially to children, it can be devastating. But our job is not to be devastated and depressed, but to persevere and find better solutions. Through the ABA we are working to improve the system and to hopefully help all families achieve better results that are better for the whole family. Of course this is a difficult task, but it is one that any civilized society must undertake. All family law professionals (lawyers, judges, psychologists, accountants and others) play a role. Is our system perfect? No way. In fact, our systems vary from state to state and from community to community. But we are evolving. Today, family law is not an area of the law that is looked down upon. To the contrary, it is an area of the law viewed by many as one of the most important areas of law that exist. What other area has the ability to affect families and futures as much as ours? And with that comes a significant burden, a burden to help families and a burden to improve society.

I am glad to be in a position to help families. In my practice I often have that opportunity, and as Chair of the Family Law Section of the ABA, I have been given an even greater opportunity. I will try my best not to squander it and to do what I can to help families and professionals who are helping those families. If there is anything I can do, I hope you will call on me to serve you. It will be an honor to serve and I am sure, an experience I will never forget.


Celeb Divorce, now J-Lo and Marc Anthony

Our country seems fascinated with the family lives, especially divorces of celebrities. Perhaps that is because we see celebrities as role models or who we often aspire to be. Thus it is interesting to see how famous people act, or react in situations that many of us non-celebrities also face.

The Lopez/Anthony divorce just happens to be the most current celebritiy divorce. What is interesting to me is only that it is so interesting to everyone else. All major news organizations reported on it immediately, even though there was really nothing to report. Perhaps it is that we romanticize our celebrities. We want their marriages to work since they are who we aspire to be?

Celebrities have many issues the average person will never have to face (crazy visitation schedules, nanny issues and significant asset division and/or support payments). But ultimately, celebrities are like anyone else. They get their feelings hurt, they have pride and they sometimes feel a need to “win” almost as if that is an achievement. But most often, they ultimately realize that it is best to put the legal process behind them and to resolve matters. Using lawyers to do their communicating often has its limits and almost always, celebrities figure out what they want to do and then tell their lawyers to “make it so”. They are used to controlling their own destiny and often more confident than the average person in their own decisions. After all, their own decisions got them where they are.

There are also many celebrities who meet with us (divorce lawyers) and never file anything. When they finally do make the decision to seek a divorce, they usually know what they want and are ready to make a deal. It would not surprise me if Jennifer Lopez and Mark Anthony, like many other famous couples, had already investigated the process for a very long time and had a good idea of what the outcome should and would be long before one or both of them made the decision to end the marriage.

And the way they handled it is the way it should be done. A joint statement like they have done letting the world know they are mature enough to handle it privately for the sake of their children is wonderful.

When two wealthy people fight, judges often are more upset. Every day in Family Court, judges see regular people scraping to survive and raise their children every day. It seems Ms. Lopez and Mr. Anthony recognized this and it is admirable that they have resolved matters outside of court. That is how it should always be done, in my opinion and I hope others will follow their example, if they decide to divorce.