The Canton Repository newspaper wrote an excellent article on serving as a court-appointed guardian. The name used is CASA (court-appointed special advocate) or GAL (guardian ad litum). CASAs/GALs are typically appointed for incompetent adults, or for children, in court proceedings. In almost every court, CASAs and GALs are needed. I like this article’s explanation of what the role requires, and especially how those who’ve served explain what they do. The article focuses on Stark County in NE Ohio, but the roles and experiences apply throughout Ohio.
Divorce with a special needs child–the special considerations that need addressed by divorcing parents, their attorneys, and courts could fill a book. This much-shorter blog post will try to shed light on why this topic requires more careful attention.
Divorce is a difficult and painful process for everyone involved. Parents must work out arrangements for custody, visitation, and child support. Standard child support “tables” or calculations, and general “parenting plans” spelling out visitation, guide most divorcing parents in making their decisions.
“Standard” or “general” guidelines, tables and plans are to be assessed carefully, however, when the divorcing parties have a child with special needs. A typical child support calculation, or standard visitation schedule, might be completely inappropriate for situations where a child has disabilities. Why?
Visitation often includes alternating weeks, or weekends, where a child goes back and forth between parents’ homes. For a child on the autism spectrum, for example, such a disruption in routine might be unbearable and ultimately unworkable. Or, if a child with a disability requires durable medical equipment that cannot be transported, one parent might have to visit their child where the equipment is located—in his or her ex-spouse’s home. The child’s interests must come first, and in these situations, working out visitation can be tricky.
Child support for a child on varying medicines, therapies and treatment programs that might not be covered by insurance cannot be calculated by standard tables. Child support payments might need to be made to a special needs trust to avoid disqualifying the child from receiving means-tested benefits (typically, Medicaid).
Spousal support for a parent who gives up his or her career to care for a disabled child—a full-time job—takes on special consideration. Division of retirement and marital assets must account for the parent who forfeited his or her earnings potential and social security credits to serve as caregiver for a disabled child.
This post mentions only a few of the myriad of issues that are presented with divorcing parents who have a child with a disability. Parents, their attorneys, and courts need to assess what special needs exist, how to address what is needed, and how to incorporate those needs into visitation, custody, and child support.
If you are considering divorce and have a child with special needs, feel free to contact me with any questions at firstname.lastname@example.org.
What is the difference between a divorce and a dissolution of marriage? Divorce and annulment?
Dissolution in Ohio is simply an uncontested, non-adversarial divorce. With divorce versus annulment, in a divorce the marriage is coming to an end. In an annulment, the marriage is treated as if it never existed.
What is the difference between a divorce and a separation?
A divorce ends the marriage. A legal separation takes many legally-enforceable steps you would take with a divorce—division of property, determination of child support, custody of children, division of debts, etc.–without ending the marriage.
What is required to file for divorce in Ohio?
To file for a divorce in Ohio, you need to reside in the state for at least 6 months prior to filing. You must have lived in the county where you are filing for 90 days. If you file for dissolution, at least one spouse has to have lived in Ohio for at least 6 months. If you live in Ohio and your spouse lives in another state, you can still file for divorce in Ohio.
Can same-sex couples get divorced in Ohio?
Yes. Since the United States Supreme Court’s decision in Obergefell v. Hodges, marriage and divorce rights are granted to same-sex couples.
How are a divorcing couples’ assets and debts split in a divorce?
Ohio splits marital property according to rules of equitable distribution. “Equitable” might be construed as “fair,” versus an equal division or distribution. If one spouse has gambled away significant assets, then the court might distribute more assets to the victim spouse, instead of dividing what assets remain in an equal manner.
What is the difference between “marital property” versus “separate” property?
Marital property includes assets acquired during the marriage. Assets that are not marital property are considered non-marital property, or separate property. However, some assets acquired during marriage can be considered “separate property” such as gifts and inheritances, property identified as separate property in a prenuptial or post-nuptial agreement, income derived by separate assets, among others.
If you want to discuss separation, dissolution or divorce in Ohio, contact me at email@example.com.
Do you need an attorney when getting a divorce?
Because I’m an attorney, stating “yes” might make me appear self-serving. The short answer to whether you need an attorney if you are getting a divorce is “it depends” (the classic attorney answer). I’ll narrow my answer further: “yes” you should have an attorney unless a few factors apply to your marriage.
Divorce is an overwhelming time. Whether you initiate the divorce, want the divorce or not, people are generally filled with anxiety and fear over the divorce process, finances and their future, with good reason. Add to that worrying about children if you have them, and this time is the worst time to be handling your own divorce, or making major life changes and decisions on your own. For these reasons, I believe that the majority of divorcing people should have a divorce attorney. If children are involved, having an attorney is critical.
Before discussing why you should have a divorce attorney, I want to discuss situations when you might not need one. After all, many people have gone through a divorce without an attorney. These factors might make representing yourself more of an option:
- There are no children of the marriage;
- There is no real estate and few assets from the marriage; and
- Your marriage was short (5 years or less).
Negate all of the listed factors above, if:
- There are children of the marriage;
- There is real estate, significant assets including retirement plans and pensions;
- Your spouse has retained counsel; and
- Your divorce is contested.
There are so many reasons you should have an attorney that are often overlooked. One overlooked reason is taxes. Taking the income of one household and splitting it in two has many tax implications and can be very complicated. Another reason is identifying assets. Finding and dividing assets equitably requires the experience of a lawyer, unless you know how to divide a pension via a QDRO. Custody and child support also require the experience of an attorney.
If you do decide to hire an attorney, bring your last tax return and retirement plan documents to the first meeting. Bring a list of your assets and liabilities. Know what services the attorney’s fee covers, as many do not include deed preparation or QDRO preparation. Have questions prepared.
Divorce is very stressful. I recommend hiring an attorney unless you are certain, after reading the factors listed, that you do not need one.
If you want to discuss your divorce, please contact me at firstname.lastname@example.org.
Who finds it pleasant to think about their children being raised by someone else? No one. However, if you don’t tell the court who to appoint as guardian, then a judge you do not know, and who does not know your family, will decide for you. Would your child prefer to have a stranger make that decision? No. This choice is yours to make. Get paper, a pen, and try this approach.
- List everyone who is a possibility as guardian, even a remote possibility. This might include friends. Single people. People with no kids. People with grown kids. People who live far away.
- Next, take the Value Majority test. List five values that are most important to you, and choose candidates from your list who share at least three of these values with you. This is my partial values list as an example to get you started: parenting style; attitude about education, work, money; faith, religion practices, beliefs; social values; attitude about closeness with family, friends.
Now you should have a list of people who rank as good candidates. You should choose at least three. What if you have several people who meet the test and make good candidates, but you wish to shorten your list? Here are some of my observations. First, it can be disruptive to uproot children from everything that is familiar to them, so if Joe lives in your area but Jane lives across the country, choose Joe. Second, a court might not approve a person you designate who has a history involving alcohol or drug addiction, or a criminal record, even if they do share three out of five of your values. Third, please do not name married couples. Divorce happens to the seemingly best couples, and you do not want your child caught up in a custody battle. If Mike and Carol Brady both share your values and made your list, choose one as guardian, the other as successor guardian. Fourth, choose candidates who are likely to keep your children in touch with your family.
Trying this approach should result in at least a few guardian possibilities. This issue is difficult to think about, but thinking about it is exactly what needs done.
Contact me at email@example.com if you want to get started on a will to name your guardians.
It is difficult enough thinking of dying, but trying to imagine someone else raising your children makes the thought even more difficult. Every responsible parent needs to confront this difficult issue.
If you and your spouse (or the child’s other parent) died in a simultaneous manner, where would your children go? If you do not have a will that nominates a guardian, the court will decide. Do you want to let a judge who does not know you or your family, make this important decision? For most people I know, that answer is “no.”
The most important step you should take is nominating a guardian for your children, and preferably two alternates, in a will. Why is this important? Your nomination will:
- reduce the delay in appointing a guardian because the court will not have to consider factors and then make the decision;
- reduce the potential for family disagreement among those seeking guardianship if no one is named, and spare the children of dealing with family discord;
- provide for a smoother transition for children and family who are grieving;
- avoid appointment by the court of people you believe are undesirable in raising your children.
Letting your children know who you have named might ease anxiety in situations where a parent is faced with a terminal illness or other medical conditions that might cause them to fear their future (where will we live? Who will take care of us?) should a parent die. I’ve seen children struggle with these worries more than usual with parents in the military, parents who travel frequently for work, or parents in high-risk professions such as first responders.
Death is a tough topic, but you must confront it if you have children. Parenting involves making tough choices, including naming a guardian who’ll parent your children if you cannot.
Contact me at firstname.lastname@example.org if you want to discuss nominating guardians for your children.
Divorce brings to mind acrimony, fighting, negativity. When children are involved emotions can be heightened, and fighting for custody can result in putting children in the middle of a battle they cannot stop or control. For attorneys, the most amicable path for their clients who are ending a marriage is often “collaborative divorce.” With collaborative divorce, you and your spouse work with professionals outside of court to negotiate an agreement acceptable to both of you. If you are in Ohio and would like a referral for an attorney who practices collaborative divorce, contact me.
If you are considering or already in the process of divorce and children are involved, please take a moment to read the following article by Lesley Cross, a licensed professional counselor who runs a private practice, Bridges Counseling of Worthington. For more information on Lesley or her practice, visit her website or Facebook page:
Don’t stay married for the kids…but at least divorce well for their sake
By Lesley Cross, MA, LPC
I’m not the therapist that thinks parents should stay married “for the sake of the children.” But I definitely AM the one who strongly believes parents who divorce owe it to their children to divorce well.
Divorce is messy. It impacts everyone. The goal is to make life happier post divorce for all involved, but often, the newly created COD [Children of Divorce] have lifelong challenges as a result of the divorce. Unless parents handle their divorce well with respect, co-parenting, thought for the children and continued support of the other parent, the children will suffer long after the legal paperwork is filed.
The following points help parents to divorce well and consider the ways in which they can make the divorce easier for their children.
- Don’t put the child in the middle.
Sure, Mom and Dad don’t have to see each other every day or communicate on a regular basis anymore. But the kids are now stuck in the middle. “Ask your Mom….” “Be sure to tell your Dad….” They’re stuck and no longer do they have the role of a child with two loving parents but instead are in the middle playing the mediating messenger. This isn’t a role they asked for and one that they find to be very stressful and frustrating. The child finds that they start to pull away from both parents and hide information from both to prevent being stuck in the middle further. Teens may limit face to face communication and prefer to text instead to avoid the emotional connection or blaming that comes from in person discussions. Parents must not expect their children to take sides or choose where they live and for what duration because that is a pressure non-COD can’t begin to understand. Leaving the communication to the adults and removing the child from the middle is critical.
- Don’t bash the other parent.
Divorcing parents must get along. True, the marriage didn’t end as happily as it started. But the divorce is not permission to continue the fight. The adults got out of the marriage. They’re free. The kids didn’t. They are forever now COD and unless the parents can get along, respect the other parent, encourage a loving and strong bond with the other person and truly invest in the welfare of the children together- the negative impact of divorce is one that will stay with the child forever. This means divorced parents do not have the right to bad mouth the other parent to the child. They cannot yell at the other parent while the child watches and overhears. They don’t get to complain about the other parent publically. Doing so not only creates insecurity, confusion and hate in the child. You don’t have to like your ex- but you must be supportive of your child to have a loving relationship with that parent. Bashing the other parent is in fact publically hating half of who the child is. They know this and find it to be confusing and hurtful. It also is difficult for the COD to succeed with relationships if they feel they are hurting one parent by having a strong relationship with the opposite parent. The COD needs and should be encouraged to have strong bonds with both parents (and step parents if applicable.) When parent alienation goes too far it borders on child abuse, leaving emotional scars far worse than parents may realize.
- Don’t overshare information with the children.
Divorced parents must not share too much information with the children. Children do not need to know the financial battles of divorce and child support. They do not need to know the other’s opinion on who Mommy or Daddy is now dating or what they’re doing with their personal lives. Comments such as “that’s nice your dad got you new shoes, too bad he can’t pay his child support this month” or “If you mom hadn’t left us for her new boyfriend we wouldn’t be in this situation” not only harm the relationship but expose the children to information inappropriate and harmful for them. This forces them into a role too mature and emotionally confusing for them to navigate.
- Divorced parents must still parent as a unit.
Communication lines must be open. Secrets can’t be kept about what happens at one household or another. Shared values and parenting steps need to be agreed upon. Plans for major events, celebrations, and holidays need to be handled with respect. Nothing ruins the holiday mood like listening to parents fight over who has the children when – or worse- spending the holidays at 3 locations so everyone “wins” (because no COD feels that was a win for them.)
While ideally both parents still support the child in his/her events (school plays, sporting events, birthday parties, etc.) the child now has the added stress of determining who to see first after the event. If possible, parents should sit together or close to one another at events as the child has a constant loop in their head of self questioning “If I walk to Mom first then Dad is left out. If I go give Dad a hug now Mom will be offended.” When the child is at one parent’s home they are hesitant to talk about, call or text the other parent out of fear that they will upset the parent they are with. It’s a constant battle of choices that plays in the child’s head trying to not upset or hurt the person they are with; the reality is person hurting the most is the child themselves.
Failure to follow the above 4 steps creates a trauma for children of divorce that is linked to lower self-esteem, academic and social struggles, younger and sometimes risky sexual exploration, self mutilation, self-hate, lack of trust, struggles in their own romantic relationships and substance abuse. Divorce is sometimes the best option for all parties involved, but choosing to divorce comes with great responsibility to divorce well for the sake of the children and their future.
…are not as strong as in other states. Custody and visitation are both permitted but both are very different in difficulty to obtain.
In Ohio for a grandparent to get custody of a grandchild, the child’s parents need to be proven unfit or unsuitable to parent. This is a difficult obstacle to overcome and prove but can be done. The court will make its decision of “unsuitability” based upon whether custody with the parent has an adverse impact on the child. The court will not base its decision on whether society disapproves of the conduct of the parent–if there is no adverse impact on the child, there might be no finding of “unsuitability” of the parent.
Visitation is a different journey. If a grandparent has had an active and involved role in a child’s life, there is a good chance that a grandparent can petition successfully for visitation rights in Ohio. In fact, Ohio permits grandparent visitation, by statute, in three circumstances:
- when married parents separate or terminate their marriage;
- when a parent of a child is deceased; or
- when the child is born to an unmarried woman.
Grandparents can ask a court for visitation even after the parent’s divorce is final. Regarding visitation, the court will make its decision based upon what is the best interest of the child.
The takeaway here is to act quickly. Contact an experienced family law attorney in your state if you want to pursue custody or visitation rights with your grandchild.