When Mom Loses Custody

GEO CASUALNow that most North American courts are truly focusing on a child’s best interests, and not just slavishly awarding custody of young children to moms, many mothers are experiencing what dads have faced for decades. Life without Jimmy and Susie…

A case in point is the situation that American actress, Kelly Rutherford, found herself in after her two-year marriage to husband Daniel Giersch collapsed in 2009. Star of television’s Gossip Girl, Ms. Rutherford engaged in a lengthy, tortuous custody battle with the father of their two children, Hermes and Helena, who are now six and three-years old.

From the get-go it was as ugly as can be, with mean-spirited, nasty allegations tossed about for the Hollywood media to lap up. He asserted that her life was not focused on the kids, but on spa appointments, shopping excursions and her career, while she accused Giersch of dealing in drugs and weapons in South America.

Ultimately, Ms. Rutherford’s allegations backfired. Mr. Giersch, as a citizen of France, had no legal status in the United States and some media reported that his wife’s unproven complaints stymied any chance Giersch had of remaining in America after his visa was revoked.

At the end of the battle, Giersch was awarded custody of both children who now live with him in France. Ms. Rutherford was awarded access to her children with the proviso that she pay all the costs of visiting them in France. It is reported that to date she has made over 40 trips.

The financial aftermath of her court battle and access costs has led Ms. Rutherford to file for bankruptcy. Despite earning $486,000 a month from her work on Gossip Girl, she has virtually no assets and debt of more than $2 million dollars. The cancellation of Gossip Girl is another setback for the star.

And she has apparently not abandoned her quest for custody of the children. Having spent $1.5 million in legal and related fees, she is now living for free with friends in New York as she continues to battle her ex.

She recently remarked:

“Having to peel my son off my body, screaming, “Mama, save me!” when I had to give him to his father—not because he doesn’t love his dad, but because he’s too young and it was like a forced thing.”

While women have righteously sought gender equality for years, it may be that in this case Ms. Rutherford would rather have the old rules apply.

Lawdiva aka Georgialee Lang

Toddler’s Death During Access Leads to Lawsuit Against Psychologist

GEO#1Prince McLeod Rams was 15 months old and on his fourth unsupervised access visit with his father, Joaquin Rams. It would be the last day of Prince’s short life, as during the three-hour visit, he drowned in his father’s bathtub.

Hospital staff became immediately suspicious when they noticed a bruise on Princes’ forehead and dried blood in his nostrils. They contacted child protective services.

It would later be discovered that Prince’s father had purchased over a half a million dollars in life insurance on his son’s life, and that he was under investigation for the murder of his former girlfriend, Shawna Mason, who was shot to death in 2003.

Prince’s mother, Hera McLeod, who had sole custody of her son, had implored the Court to grant only supervised access to Mr. Rams. However, the Court determined that allegations that he ran an on-line pornography site, was a suspect in the death of his former girlfriend, and was also accused of raping a 19-year-old girl were unproven and speculative. Judge Michael Algeo called the allegations “smoke that’s been blowing that I can see through”.

Since being charged with Prince’s murder, the investigation into the death of Rams’ former girlfriend has gained traction and officials are also looking into the circumstances of his mother’s 2008 suicide, a death that some members of the Rams family believe was murder, not suicide. Mr. Rams received his mother’s life insurance, a benefit that rescued him from his dire financial circumstances.

Recently, Prince’s mother filed a lawsuit against psychologist Margaret Wong, who prepared a custody and access report that recommended Mr. Rams be allowed unsupervised access to Prince, expert evidence that was instrumental in the Court’s access decision.

While Ms. McLeod acknowledged that her son’s father was highly manipulative during their 18-month relationship, she suggested that a skilled psychologist, like Margaret Wong, should have detected his true character and focused on her son’s best interests, not her ex’s needs and desires.

Ms. McLeod tells the tragic story on her blog “cappucinoqueen”, while Mr. Rams writes his counterpoint at “KingLatte”. He insists he his innocent and that his son died of a seizure, however, the county medical examiner’s findings negate Mr. Rams’ allegations.

Hopefully, the truth will emerge at Mr. Rams’ trial later this year.

Lawdiva aka Georgialee Lang

Ten Signs Your Divorce is “Off the Rails”

Don’t we all like to think that if divorce was in our future, our uncoupling would be civilized, respectful and rational. For many divorcing spouses it can be that way, particularly where there are no children and minimal assets, however, all the best intentions for an amicable parting can quickly dissipate once spouses abandon the high-road for the ditch.

If you are involved in a so-called “amicable divorce”, are there identifiable signs that signal your divorce may be meandering to the low-road? Of course, there are. Be aware of the following:

1. YOU HAVE A NEW PARTNER Often amicable divorces remain that way until a husband begins a serious relationship with a new lady. One of the easiest ways to have your divorce come “off the rails” is to flaunt a new paramour, before your wife is emotionally ready, which in some cases is never.

2. YOU DECIDE TO CLOSE THE CREDIT CARD ACCOUNTS It is not uncommon for husbands to maintain the financial status quo until they realize their separated spouses’ credit card spending is three times the pre-separation amount. Delicacy is required to rein in the spending, without ruining the convivial settlement discussions. A useful strategy is to terminate all major credit cards except one, which remains available to your spouse, albeit with a much lower credit facility. This can only be done with advance notice to your spouse.

3. YOU TAKE THE CHILDREN ON A VACATION WITH YOUR NEW “FRIEND” You have pleasant post-separation discussions and agree on summer vacation access with your kids, but fail to tell your wife you will be bringing along your 25-year-old girlfriend. Surprises are always dangerous. You are better off to advise your spouse in advance and find a compromise if she adamantly opposes the extra company. Perhaps the girlfriend only visits for a couple of nights or not at all?

4. YOUR WIFE FINDS YOUR PRE-SEPARATION CREDIT CARD STATEMENTS WITH JEWELLERY PURCHASES SHE KNOWS NOTHING ABOUT The divorce process always involves the exchange of financial information, including credit card statements. If your wife finds purchases from Tiffany’s or Birk’s, made before the separation and she is not the recipient, watch out. Still worse, are cancelled cheques on your joint account confirming you were paying your girlfriend’s rent before you and your spouse separated.

5. YOUR WIFE FINDS OUT YOU WERE SLEEPING WITH THE NANNY IN THE MARITAL BED The marriage is now over but your wife learns from reliable sources that you were sleeping with the children’s nanny during the marriage. This is a sure-fire way to generate anger and humiliation in your wife, something that usually gets in the way of future courteous communication.

6. YOUR WIFE LEARNS THAT THE “SMALL” MORTGAGE ON THE FAMILY HOME EATS UP OVER HALF OF THE HOME EQUITY Your secret financial dealings during the marriage are now exposed and your wife is shocked to learn that what she thought was a $100,000 mortgage on the family residence is actually $250,000 as a result of undisclosed stock investments made with borrowed monies. It’s even worse if the stock is now worth considerably less or nothing at all.

7. YOU ADVISE YOUR SPOUSE THAT YOU WILL NEVER GIVE UP CUSTODY OF THE FAMILY PET You think everything is settled and leave the conversation about Muffy and Fido to the end, only to realize that neither of you will give up the family pet. Yes, judges now also decide who gets custody of the cat and dog, where the parties cannot agree. This issue can be a deal-breaker.

8. YOU GRADUALLY CANCEL MANY OF YOUR ACCESS VISITS WITH YOUR CHILDREN You tell your spouse you want to remain an active, involved parent, but your weekly visits are now monthly visits and you have failed to show up for some of your visits, leaving your children crying and your ex seething.

9. YOUR SPOUSE MAKES IT DIFFICULT TO SEE THE CHILDREN Parenting time starts off well but disintegrates when your spouse realizes her financial expectations are unrealistically inflated and she now needs leverage to obtain a better financial outcome. What better pawn than the children?

10. YOU TELL YOUR STAY-AT-HOME SPOUSE YOU WILL QUIT YOUR JOB BEFORE YOU EVER PAY HER SPOUSAL SUPPORT You are usually a traditional husband who has no problem paying child support, but believes a 50-year-old wife who worked as a bank teller twenty years ago, should immediately find full-time employment because the children are all in school. What else is she going to do all day?

Negotiating a reasonable divorce settlement can be a minefield if a spouse is not aware of the dangerous trigger points that invite hostility, embarrassment or distrust. A strategic family law lawyer is one who can assist you to manoeuvre the settlement terrain without stepping on a divorce landmine.

Lawdiva aka Georgialee Lang

Four Reasons Why BC’s New Family Law Act is Good for Fathers

British Columbia’s new family laws will be in effect on March 18, 2013. For husbands and fathers who have felt victimized and exploited by the Family Relations Act 1979, there is every reason to be optimistic that the new law will assist them to achieve the fairness and equality they have been fighting for.

The first bit of good news is that effective March 13, 2012 the new law will apply to everyone, even if they commenced a family law proceeding under the current Family Relations Act that has not yet been concluded, with one exception. Property claims made under the old Act will be governed by that legislation, unless both parties agree that the new law should be applied.

The changes in law that will assist fathers include:

1. Pejorative terminology is removed:

The language of “custody” and “access” used in the current legislation left many parents feeling marginalized and overlooked as fully contributing parents who provided value to their children’s lives. These terms also connoted an “I win, you lose” philosophy. The language of the new Family Law Act is “parenting time” and “contact”, words that do not imply ownership of children by one parent to the exclusion of the other.

2. Endless court applications regarding children can be avoided:

For fathers who are constantly struggling to see their children regularly, or have a vacation with their child, or obtain their child’s passport for travel, or the dozens of other irritants that require fathers to go back to court, the new law has introduced and codified the role of a Parenting Coordinator. This person, who may be a counselor or a lawyer, will be empowered under the law to make binding decisions with regards to parenting issues, with the criteria being “the best interests of the child only”.

3. Informal parenting arrangements will be respected:

In scenarios where a father and mother have recently separated and have worked out a voluntary parenting plan, one parent cannot unilaterally change the plan. What often occurs is the parties will agree to a particular schedule, but when mom learns about dad’s new girlfriend, or is angry over some event involving dad, it is not uncommon for mother to unilaterally impede the regularly scheduled parenting time of the father. This new law forbids this kind of unilateral action.

4. Denial of parenting time will be treated seriously:

One of the most common complaints from fathers in high conflict marriage breakdown is the capricious, unreasonable denial of parenting time as punishment for the parties’ separation, even when the separation was requested by the mother.

The new law recognizes the importance of a father’s time with his children and will take serious steps to enforce parenting time. The key is that a father must complain to the court within 12 months of the access denial. In those circumstances the court may order compensatory parenting time to make up for the time denied. The court can also order a denying parent to go to counseling, pay a $5000.00 fine or reimburse the father for all of his expenses including travel expenses, lost wages and child care expenses incurred as a result of the refusal to comply with the informal parenting arrangement or the terms of any agreement or court order.

In my view the government has enacted new law that is meant to assist parents who do not want to be excised from their children’s lives. The important matter now is that the public be educated as to the upcoming changes so they can improve their relationships with their children.

A final note: there are many mothers who do not conduct themselves in ways described above, but when they do the emotional and financial damage to the family is devastating and destructive, both for the parents and the children.

Lawdiva aka Georgialee Lang

BC’ s Groundbreaking “Family Law Act” Coming Soon

Last July British Columbia’s Attorney-General Mike DeJong held a press conference to announce his Liberal government’s intention to update British Columbia’s “Family Relations Act”, an announcement that was welcomed in most quarters.

After months of meetings with stakeholders and detailed input from a blue-ribbon committee made up of government representatives and some of British Columbia’s senior family law lawyers, the recommendations for change were challenged, debated and then fine-tuned. To the government’s credit, they listened well.

Lieutenant-Governor Steven Point, in his recent Throne Speech, advised British Columbians that a new “Family Law Act” will be introduced this Fall to replace the 1979 Family Relations Act, news that many of us have been long waiting to hear.

How important is the new law to families in crisis? While tinkering with language may not seem innovative, in the area of custody and access it is significant. Many progressive lawyers already avoid words like “custody” and “access” because of their clients’ negative reaction to language that suggests one parent has ownership of the child, a “custodial” parent, and the other has “access”, a term that has become pejorative over time. The new legislation removes this language, replacing “custody” with “guardianship” and “access” with “parenting time”.

The drafters of the new law hope that the abandonment of these traditional expressions will eliminate conflict between parents based merely on semantics.

Some of the other substantive changes include:

1. New rights granted to common law spouses that will treat them the same as legally married spouses. Currently common law spouses are not entitled to apply for a division of family property upon the breakdown of their relationship. A complicated and ponderous legal concept may be invoked, but it is more expensive and provides nominal compensation. (the doctrine of unjust enrichment)

The new law will open the door for common law spouses to enjoy the same property law benefits as legally married spouses. The law will ensure that common law spouses who live in a marriage-like relationship for two years or less than two years, but have a child, will be treated like married spouses in respect of their family assets. This change will, of course, also apply to same-sex couples. British Columbia will lead the way as the first province in Canada to grant equal property rights to separating common law spouses.

2. Issues arising from reproductive technology will be covered in the new law. For example, where a child has three parents i.e. a birth mother, the birth mother’s partner and a sperm donor, each of them may have parental rights if they enter into an agreement. As well, a surrogate mother will not be forced to give up her child, just because she has signed an agreement to do so. None of these important social issues have previously been addressed in British Columbia’s family law.

3. Spousal support will not terminate upon the death of a payor spouse, but may continue and be paid from the estate of the deceased spouse. Today in British Columbia it is very difficult to convince a judge that a long-term spouse should be protected from the sudden termination of spousal support because of the payor’s death. A 60-year-old divorced woman who has no employment skills and has spent years as a stay-at-home mom can be left with no financial resources if her husband dies. This change in the law may positively impact the feminization of poverty.

4. Overall, the focus will move from a court-centered approach to out-of court resolutions. Mediation and collaborative law will continue to be highlighted. Family law arbitration will be introduced, a process where “private judges”, usually senior lawyers or retired judges, will have authority to make decisions for warring couples who wish to avoid the expense, delay, and lack of privacy intrinsic to court proceedings.

Bringing family law into the 21st century is long overdue, however, the success of the new Family Law Act will depend on lawyers and judges recognizing the policy shift that underscores this legislation. It is time to admit that a court-centred, adversarial approach simply is not working for most Canadians caught in the throes of divorce.

Lawdiva aka Georgialee Lang

Custody Battle After Divorce Poisons Children

Parents who fight over child custody and access bring out the worst in themselves and often poison their children along the way. Divorce lawyers who are stuck in the middle of high conflict family disputes often remind their clients that children deserve both a mother and a father, and that a child immersed in conflict is usually headed for a disastrous future.

Frequently, the worst of these types of conflict peter out once the children mature, interact with their peers and begin to think for themselves. Some parents also eventually recognize
their anger hurts them more than it does their ex-spouse. But not always.

A recent court case in Illinois illustrates the worst possible outcome where parents refuse to put their children first and instead continue with angry reprisals and revenge, apparently oblivious to the seeds of destruction they are sowing, for themselves and their children.

In Miner and Miner v. Garrity 2011 IL App (1st) 1103023-U the Court of Appeal dealt with a lawsuit brought against Kimblerly Garrity, mother of the plaintiffs, Steven and Kathryn, who were 20 and 18-years old when they commenced their lawsuit.

Their father, attorney Steven Miner, together with two other attorneys, filed the suit for them which claimed damages of $50,000 each, alleging their mother had intentionally or negligently inflicted emotional distress on them during their young lives.

Mr. Miner was quick to point out in media interviews that he tried to talk his two children out of filing the lawsuit, but they insisted. His protestations are unbelievable in view of the claims he advanced on their behalf.

The Garrity/Miner marriage ended after ten-years in 1995. Mr. Miner was awarded sole custody of Steven and joint custody with his ex, of Kathryn, who resided primarily with him. So how bad an access parent was Kimberly Garrity?

The children’s grievances included their distress when their mother tried unsuccessfully to obtain primary residence of Kathyrn. She also allegedly treated the children unequally, requested medical receipts from their father before she would pay her one-half share, and referred to their father as a “Disneyland” dad.

Worse yet was the claim that when her mother began living with another man, Kathryn’s distress caused her to gain weight, which was only exceeded by her mother’s gall in taking a new name when she remarried, a change that upset Kathryn.

Even more petty was Steven’s complaint that his mother forced him to wear a seatbelt when he was 7-years old, and Kathryn’s upset at her mother’s refusal to take her to a car show. Both were also slighted by either no birthday or Christmas cards, or cards that were declared inappropriate and contained no cash or check for them.

One of the “inappropriate” cards from American Greetings showed a table full of red tomatoes with the centre tomato wearing googly eye glasses. The card read “Son I got you this birthday card because it’s just like you…different from all the rest.” On the inside Steven’s mother wrote “Have a great day! Love and Hugs, Mom xoxoxox”. How insensitive!

Not surprisingly, their litany of childish complaints impressed no one and simply confirmed their outrageous sense of entitlement, immaturity and lack of gratitude. Their father’s role in their claims of “bad mothering” deserves even greater rebuke. His participation was both contemptible and shabby.

Needless to say, their lawsuit was thrown out of court, as it should have been.

Lawdiva aka Georgialee Lang

Ten Signs Your Divorce is “Off the Rails”

Don’t we all like to think that if divorce was in our future, our uncoupling would be civilized, respectful and rational. For many divorcing spouses it can be that way, particularly where there are no children and minimal assets, however, all the best intentions for an amicable parting can quickly dissipate once spouses abandon the high-road for the ditch.

If you are involved in a so-called “amicable divorce”, are there identifiable signs that signal your divorce may be meandering to the low-road? Of course, there are. Be aware of the following:

1. YOU HAVE A NEW PARTNER Often amicable divorces remain that way until a husband begins a serious relationship with a new lady. One of the easiest ways to have your divorce come “off the rails” is to flaunt a new paramour, before your wife is emotionally ready, which in some cases is never.

2. YOU DECIDE TO CLOSE THE CREDIT CARD ACCOUNTS It is not uncommon for husbands to maintain the financial status quo until they realize their separated spouses’ credit card spending is three times the pre-separation amount. Delicacy is required to rein in the spending, without ruining the convivial settlement discussions. A useful strategy is to terminate all major credit cards except one, which remains available to your spouse, albeit with a much lower credit facility. This can only be done with advance notice to your spouse.

3. YOU TAKE THE CHILDREN ON A VACATION WITH YOUR NEW “FRIEND” You have pleasant post-separation discussions and agree on summer vacation access with your kids, but fail to tell your wife you will be bringing along your 25-year-old girlfriend. Surprises are always dangerous. You are better off to advise your spouse in advance and find a compromise if she adamantly opposes the extra company. Perhaps the girlfriend only visits for a couple of nights or not at all?

4. YOUR WIFE FINDS YOUR PRE-SEPARATION CREDIT CARD STATEMENTS WITH JEWELLERY PURCHASES SHE KNOWS NOTHING ABOUT The divorce process always involves the exchange of financial information, including credit card statements. If your wife finds purchases from Tiffany’s or Birk’s, made before the separation and she is not the recipient, watch out. Still worse, are cancelled cheques on your joint account confirming you were paying your girlfriend’s rent before you and your spouse separated.

5. YOUR WIFE FINDS OUT YOU WERE SLEEPING WITH THE NANNY IN THE MARITAL BED The marriage is now over but your wife learns from reliable sources that you were sleeping with the children’s nanny during the marriage. This is a sure-fire way to generate anger and humiliation in your wife, something that usually gets in the way of future courteous communication.

6. YOUR WIFE LEARNS THAT THE “SMALL” MORTGAGE ON THE FAMILY HOME EATS UP OVER HALF OF THE HOME EQUITY Your secret financial dealings during the marriage are now exposed and your wife is shocked to learn that what she thought was a $100,000 mortgage on the family residence is actually $250,000 as a result of undisclosed stock investments made with borrowed monies. It’s even worse if the stock is now worth considerably less or nothing at all.

7. YOU ADVISE YOUR SPOUSE THAT YOU WILL NEVER GIVE UP CUSTODY OF THE FAMILY PET You think everything is settled and leave the conversation about Muffy and Fido to the end, only to realize that neither of you will give up the family pet. Yes, judges now also decide who gets custody of the cat and dog, where the parties cannot agree. This issue can be a deal-breaker.

8. YOU GRADUALLY CANCEL MANY OF YOUR ACCESS VISITS WITH YOUR CHILDREN You tell your spouse you want to remain an active, involved parent, but your weekly visits are now monthly visits and you have failed to show up for some of your visits, leaving your children crying and your ex seething.

9. YOUR SPOUSE MAKES IT DIFFICULT TO SEE THE CHILDREN Parenting time starts off well but disintegrates when your spouse realizes her financial expectations are unrealistically inflated and she now needs leverage to obtain a better financial outcome. What better pawn than the children?

10. YOU TELL YOUR STAY-AT-HOME SPOUSE YOU WILL QUIT YOUR JOB BEFORE YOU EVER PAY HER SPOUSAL SUPPORT You are usually a traditional husband who has no problem paying child support, but believes a 50-year-old wife who worked as a bank teller twenty years ago, should immediately find full-time employment because the children are all in school. What else is she going to do all day?

Negotiating a reasonable divorce settlement can be a minefield if a spouse is not aware of the dangerous trigger points that invite hostility, embarrassment or distrust. A strategic family law lawyer is one who can assist you to manoeuvre the settlement terrain without stepping on a divorce landmine.

Lawdiva aka Georgialee Lang