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Ky Family Law Blog

Posts tagged Kentucky Divorce
Displacing Divorce Myths Part 1: When does the child decide?

In all my years of practice I have heard from numerous clients the age in Kentucky that children get to choose who they want to live with. I have heard 10, 13, 16 and 17 as ages thrown out there. In my own personal experience, it was 11, when my parents sat me down and told me I got to pick who I wanted to live with. The state of Kentucky says that there isn’t an age that children get to pick who they want to live with. In reality, when they are adults is the only time they actually get to decide anything and in Kentucky that is 18.

 

The preferences of a child is one factor that Courts are allowed to consider, however, the child’s preference may not be that persuasive to the Court depending on your situation. In Kentucky, custody or visitation/parenting time is to be determined in accordance with the child’s best interests.  In determining a child’s best interests, the Court is required to consider all relevant factors. One of the many specific factor listed for the Court’s consideration if “…the wishes of a child as to his custodian.” 

 

 

Most mental health professionals caution against ever putting a child in this situation, from personal experience, I can say that many years later, this is still fresh in my mind. The Courts are reluctant to put a child in a position to voice a choice of one parent over the other.  It may be more appropriate to avoid asking a child directly as to preferences and putting that child in the middle of the parents’ divorce. This will shift the focus ofgathering  information from the child indirectly and from third parties as to a child’s preference and focus truly what is in the best interest of the child.

 

The focus of the Courts should be, if a child has a preference, what is the basis for the preference-is the basis of this preferenceThe issues that commonly arise are: whether the parents are manipulating a child to obtain a desired preference; or whether the child is manipulating the parents to get whatever he or she wants or perceives he or she needs.  In addition, there is the possibility of parental manipulation.  Teenagers are good at leaning towards the parent who will be more liberal in their parental supervision. This results in the teenager using one parent against the other. This isn’t because the teenager doesn’t like a parent, but probably because they are more interested in their friends, school or activities In reality  a child’s preferences may not be in the child’s best interests.  The eventual Court determination may indeed be contrary to any such preference.

Parties to a divorce need to understand that a preference of “well let’s just let the child decide, can be highly problematic. Children should never be empowered to make decisions that their parents cannot or refuse to make. Every case is different so the factors for a family are different as well. If a parent places too much emphasis on one factor (what the child wants) this may not be in the best interests of the child. It may create controversy, create further divides in the family structure and at the end of the day be costly for everyone involved.

 

Should I Talk to My Attorney?

Of course you should. This seems like the simple answer, but you would be surprised how many clients chose not to talk to their attorneys. Cooperation and communication with your attorney, is probably one of the most important things you can do in your case. Actually, it is the most critical thing that you can do, otherwise you leave your attorney in the worst position to fight for you.

You will get out of your family law case, almost as much as you put into your family law case. Garbage in – garbage out is a great expression to illustrate this point. If you do not give your attorney your cooperation, you may not get a good result and it may not matter how good of an attorney they are in your community.

What can you do or what can your attorney do to make this process easier?

1. Communication: It is important to talk to your attorney and have them talk to you.

While this does not mean you need to speak with your attorney every day, it is essential that you either communicate by telephone or e-mail about the status of your case every week to two weeks. Frequency of communication varies in every case, but I always attempt to contact a client once in every two week period, even if that is as simple as an e-mail saying we are still waiting for documents or a decision.

Contact obviously picks up during busy segments of your case, especially if there is a hearing approaching, discovery must be completed, or we are talking about settlement.

To make sure you know what is happening in your case, discuss the best way to communicate for you and your attorney up front.

2. Let your attorney know where you are

You have moved out of the house and established your own residence. Then you find that living a separate life is fairly simple and you don’t have to worry about your ex-spouse anymore. This is what you imagine divorce to be like, so you just go on living life and stop paying attention. The problem is that you haven’t told your attorney you have moved on and an even bigger problem YOU ARE STILL (legally) MARRIED!

It is important that if anything changes in your life, your address, your phone number or your e-mail address that you communicate this to your lawyer, so they can communicate with you. Just because your life has settled down doesn’t mean that your case has. There are still trial deadlines, discovery deadlines and other procedural requirements that have to be taken care of and your attorney can’t do it without your help.

Don’t miss a critical deadline, or lose your attorney,  due to fact that you did not update your contact information.

3. Don’t hold your attorney back

An attorney can only offer you good advice, if the attorney has the information available to them to give you that advice. Often clients will not authorize an attorney to conduct discovery, follow through on information because the client wants a quick settlement. Settlement is great and most cases do settle, but agreeing to settle just to get it done is not necessarily the smartest thing.

If this is your position, then you should expect your lawyer to ask that you sign a form that you have been advised you are settling the case against his or her advice.

It is usually better to talk the alternate route and let your attorney do their job and make sure you are protected.

4. Disclosure: Tell your attorney everything!

The worst feeling in the world for an attorney is to be sitting in the Courtroom at your trial and hearing that you transferred $25,000 out of joint checking, or that you were arrested for DUI.

Your attorney is your advocate and your voice in this case. He or she cannot do the job if you do not provide all of the facts about your case, your financial situation, your drug history, information that might effect custody and visitation of the children and any other relevant and requested documents and data. To put it another way, your attorney cannot effectively do their job if you withhold information, even if that information may be harmful to your case or embarrassing for you.

Why is that? An effective family law attorney is like a chess player. They need to know how to use the information in the case, how to advocate for you by highlighting the good points and trying to diminish the bad. If a chess player can only see half the board, even the best chess player is set up to fail.

I try to make sure my clients know what I am looking for when we meet and expand on the information provided to me by my clients. I don’t just take what you provide, say thank you and move on. Many of my clients don’t understand this process, the language of this process or why they have to go through this process.

5. What should your attorney be doing?

Your attorney should make sure that you have the opportunity to communicate, participate and remain in contact with your advocate, so you can be involved in this process. As the client, you should take advantage of the opportunity to use your lawyer.

It is a big waste of money to hire a lawyer because you think you need to and then simply not participate in your case or talk to your attorney. I always try to make sure that the client knows what is going on in their case by going over their expectations of me and my expectations of them.