Thursday, February 23, 2012

No Lawyer for You.

Last summer, the United States Supreme Court issued an opinion that went unnoticed to most, but it certainly should not have gone unnoticed to family law attorneys.  In Turner v. Rogers, et al. 564 U.S. ___ (2011), the United States Supreme Court rejected the argument that a child support obligor who cannot afford an attorney is entitled to court appointed counsel at a contempt hearing for failure to pay child support.  Therein, the South Carolina trial court was considering a motion for civil contempt due to Turner’s failure to pay on a child support order.  Although not a criminal contempt, the civil contempt proceeding carried with it the possibility of jail incarceration.  Because of the possibility of jail, Turner requested that the trial court appoint him a lawyer.

The United States Supreme Court discussed at length the difference between civil and criminal contempt.  It then recited well established precedence the Sixth Amendment right to counsel does not apply to civil proceedings.  Id. citing Gideon v. wainwright, 372 U.S. 335 (1963); United States v. Dixon, 509 U.S. 688.  The prior precedence also establishes that civil contempt is different in that it attempts to coerce compliance with a prior court order and, if a jail term is imposed, the defendant may purge his contempt to gain his freedom.  With that, because the Sixth Amendment only applies to criminal cases, the issue is whether the Due Process Clause of the Fourteenth Amendment requires counsel as an element of providing due process.  Here too, the Court began with the presumption that the state is permitted to provide fewer procedural safeguards in civil contempt hearings.  Turner, citing Hicks v. Feiock, 435 U.S. 624.

The Court did acknowledge though that the threatened loss of liberty certainly demands due process protection.  Turner, citing Addington v. Texas, 441 U.S. 418 (1979).  Nonetheless, because it remains a civil proceeding, the court balanced the opposing interests sought to be protected in the proceeding.  In Turner, the Court found three considerations to be critical.  First, was that the contempt proceedings requires consideration of an ability to pay.  The ability to pay question is similar to the ability to pay analysis which is a prerequisite to appointment of counsel itself and done without the right to counsel.  Second, the person opposing the defendant in such cases is not always the government and is often unrepresented themselves.  Appointing counsel where the motioning party is unrepresented will create another level of asymmetry.   Third, the state proceedings had “substitute procedural safeguards” which the court believed could “significantly reduce the risk of an erroneous deprivation of liberty.”  

With those three factors considered, the Court ultimately concluded that there is no automatic right to counsel for an indigent in civil contempt child support proceedings – provided however the state has adequate substitute procedural safeguards.  And, the Court went further to explain that the holding does not apply to proceedings brought by the government as that party would then be represented by counsel.

The Ohio Supreme Court is now considering a very similar question.  In December of 2011, after the Turner decision, the Ohio Supreme Court accepted for review the Fourth District Court of Appeals decision in Liming v. Damos, 2011-Ohio-2726.  Therein, the Fourth District held similarly that indigent civil contemptors do not, as a categorical rule, have a due process right to counsel.  That case was decided before Turner.  The case was accepted because of a conflict with another Ohio Appellate District; hence, the Turner decision has not become an issue as of yet.

Wednesday, April 20, 2011

Don’t Let an F-Bomb Sink Your Custody Arrangement.

There should be no debate that many in our communities communicate in a less than elegant manner.  More directly, the F-bomb has become a verb, an adverb, a noun, an adjective, a pronoun – and in many instances, a surname.  As cavalier as this language may seem, few would argue about the negative effects such language has on and the poor example it displays for children.  And, some courts are now recognizing the ill effects when making custody determinations.

In a recent Ohio case, the Court of Appeals specifically relied on the parent’s profanity in affirming the trial court’s decision to terminate a shared parenting plan and to designate the parent without the “potty mouth” as the “sole residential parent and legal custodian.”  Sure, there were other issues in the case, but a great amount of time seemed dedicated to the parent’s language.  The trial court in fact referenced the testimony from a witness who quoted the parent as stating “’this f***ing bus driver does not know how in the f*** to park’ loud enough for other children in the playground to hear.”  The trial court relied on multiple witnesses who testified to the parent’s “socially inappropriate, public, profanity-laden tirades in front of” the child.  Ultimately, the Court of appeals affirmed the decision to terminate the shared parenting plan designating the non-offensive parent the sole residential parent and custodian.

This case also made the point that although in Ohio a modification of a prior order declaring parental rights can only be made with a finding of “changed circumstances,” the termination of a shared parenting plan does not require the “changed circumstances” finding.  R.C. 3109.04(E)(1)(a) will require the finding of changed circumstances and a determination of the best interests of the child to allow modification of the prior order.  With a termination of a shared parenting plan, however, the court even on it’s own motion, as provided in R.C. 3109.04(E)(2), may terminate the plan with nothing more than a determination that termination is in the best interests of the child.  

Therein may lay the greater danger to a potty-mouthed parent in a parenting punch-fest.  With a motion to terminate a shared parenting plan, even routine foul language in front of the children may be enough to tip the scales toward a change in custody. 

Wednesday, March 30, 2011

Where Do Parents Rate?

Parents that have ever been on the receiving end of an investigation by social worker or agent of the local child services organization, or Department of Job and Family Services in Ohio, will describe their desperate feeling of helplessness.  The great amount of statutory extra-judicial authority given these departments is nothing short of shocking to parents confronted with demands from the child services agents.  They are exponentially outraged when they discovery their children have been interviewed by such agents without parental consent.

Child services across the nation are now re-evaluating their child interview practices in light of the decision of the Federal Ninth Circuit Court of Appeals in Camreta v. Greene. In the case, the Oregon Department of Human Services received a report of alleged abuse against a nine-year old child by a parent.  A department caseworker and local police officer decided to interview the child at school, without parental consent or a warrant. The charges against the child's father, Mr. Greene, were dismissed.  The family then filed a Section 1983 lawsuit against the caseworker and officer for violating her daughter's Fourth Amendment right against unreasonable search or seizure   The Ninth Circuit Court of Appeals found a violation by applying the traditional probable cause warrant requirement as opposed a reasonableness balancing test.  Camreta, the social worker, claimed the analysis should instead be the reasonableness balancing test which has been the analysis where the invasion is something less than an arrest, for instance a less intrusive Terry stop which only requires reasonableness.

It is certainly exciting that the United States Supreme Court had agreed to hear the case, in other words, it granted certiorari which is an order to the lower court that it shall review the decision.  Oral arguments were had before the high court on March 1, 2011.  The actual oral argument recording can be heard at  Those hoping for an opinion from the Court on the merits, may be disappointed.  A great portion of the dialogue in the case addressed the question as to whether the opinion had an current justiciable claim or a live case or controversy. It seems the Greene family and the child had since moved from the state of Oregon.  Some members of the Court wondered how the Court might dispose of the case if there is no longer a case pending below as the lower court found in favor of sovereign immunity for the social worker.

Should the Court reach a decision on the merits, the opinion could be far reaching.  There were multiple questions which specifically inquired about at what length of time does an interview amount to a seizure and at what age a child has a capacity to consent to the seizure.  In Ohio, the police are permitted to interview children without a Miranda waiver executed by both the child and the parent, which is known elsewhere as the “independent advice/interested adult standard.”  If the Court issues an opinion on the merits, the reasoning of the Court will certainly have a remarkable effect on other such standards relating to investigations involving children.

Thursday, March 10, 2011

The Separation after the Divorce - W.I.N. Your Future.

You spend all day in Court, maybe you’ve had days of trial, maybe things were amicable.  Regardless, you are not finished yet.  Even after the Judge signs your divorce decree and you have received your certified copy, there are still things left for you to do.  Certain designations do not change by virtue of the ink drying on your divorce papers.

If your former spouse was designated as a beneficiary of a life insurance policy that you are maintaining, that designation will remain until you take affirmative steps to change the beneficiary designation.  The same holds true for retirement plans.  You must take affirmative steps to change the beneficiary designation.

You will also want to update your Last Will and Testament, your Living Will, and your Health Care Power of Attorney.  Although your former spouse is no longer entitled to the statutory benefits under probate law, if you made a specific bequest to your former spouse in your Will, that bequest remains until you change it.  You will also likely wish to designate a new executor under your Will as your former spouse is probably your current designee.  The same holds true for your Living Will and Health Care Power of Attorney.

That said, if your Divorce Decree requires that you are to maintain a life insurance policy with your ex-spouse as beneficiary, or it requires that you designate your ex-spouse as a beneficiary of a retirement plan, you must abide by the Decree or face possible contempt charges.

And, do not overlook the years you and your spouse shared credit.  Immediately begin to establish new credit in your sole name and remove your ex-spouse as an authorized user on any card or line of credit.  Remember these credit relationships are contractual between your bank or lender and you and your ex-spouse.  These contractual relationships are not typically controlled by your divorce decree.

Once you are officially divorced, you will still need to look at these various issues to be truly separate.  When you have your signed divorce decree in hand, remember to now W.I.N. your new future:

     *  Wills, powers of attorney, and estate documents;
     *  Insurance related documents; and
     *  New credit and remove your ex-spouse as an authorized user.

Thursday, February 3, 2011

Unwed and Out of Luck?

If you are an unwed father, don’t wait until your child’s mother moves 2,000 miles away to initiate parentage proceedings.  

A common misconception is that a father, who was never married to the mother of his child, automatically has parenting time/visitation rights with his child.  There is no such automatic right, not even in cases where the father is ordered to pay child support.  

When the mother and father are not married at the child’s birth, a presumption of paternity may exist.  Ohio Revised Code section 3111.03 provides for a presumption if an acknowledgment of paternity has been signed and filed.  This typically occurs when the father signs the birth certificate.  Once there is a presumption of paternity, the payment of child support can be ordered administratively, meaning the Child Support Enforcement Agency can establish a child support order.  The same does not apply to parenting time.  Many unwed fathers believe that once their wages are subject to garnishment for child support they have the benefit of a standard visitation schedule.  To be afforded a standard visitation schedule, a father must request such a schedule in a court proceeding.  Only then will the father have an enforceable court order, the violation of which amounts to contempt of court by the mother.

All court orders pertaining to the parental rights of unwed parents are decided in the Juvenile Court.  Some courts will require genetic testing before making a “judicial finding” of paternity, even in cases where the father has signed the birth certificate.  That does not mean that a father is prevented from having parenting time until genetic testing results are received and a finding is made.  A court may make an order for temporary parenting time if it is requested by the father.  Revised Code section 3109.043 allows for the court to issue temporary parenting time and custody orders taking into consideration whether the father is named on the child’s birth certificate, whether the child has the father’s last name, or whether there is a clear pattern of a parent and child relationship between the child and the father.  Some factors a court will look at are whether there has been an informal schedule or if the mother, father, and child resided together as a family.

If the issues of parenting and the allocation of parental rights and responsibilities have not been addressed by the Juvenile Court, then there simply is no enforceable visitation schedule.  If there has been no allocation of parental rights and responsibilities, there typically is no residency restriction, which means an unwed mother can move out of state with the child without first consulting the child’s father.

Certainly many unwed parents are capable of working out a visitation schedule, with some parents never needing Court involvement.  Unfortunately some unwed fathers may feel that they get to spend time with their child at the whim of the child’s mother.  Get your foot in the door at Juvenile Court and level the playing field while everyone is in the same area and coordinating schedules and transportation does not involve plane tickets and unaccompanied minor fares.

Wednesday, December 29, 2010

In Hot Water for Snooping (in spouse's email.)

Though the crime of illegal wiretapping is not a new concept, only recently has it received nationwide attention in the divorce and custody arena.  A Michigan man currently faces criminal charges for accessing his wife's email because he suspected she was having an extra-marital affair.  He faces incarceration if convicted.

Ohio law will make it illegal to "intercept" email which leaves open the argument that reading another's email may also constitute illegal interception of email.  Certainly the use of a program to "capture" email would be illegal.  Under Ohio law, the crime of Interception of Wire, Oral or Electronic Communications is a felony of the fourth degree and is punishable by up to 18 months in prison per occurrence. You can find it at R.C. 2933.52.  The issue is new to Ohio, but if you see the annotations to that code section, there is actually an entire category titled "cordless telephones and baby monitors and the like, interception." So, it is easy enough to imagine where the case law might lead.

To get a bigger picture of the law, understand that Ohio is considered a "one party" state.  So long as one party to the conversation is aware of the taping, it does not run afoul of the anti-wiretapping provisions of R.C. 2933.52.  Here is a nice state by state guide of wiretapping laws:  In fact, there have been instances where attorneys have been charged and convicted of federal crimes for using illegally recorded telephone conversations.  In the instance of one highly regarded attorney, the federal conviction was reversed entirely on appeal.   

To see more about the Michigan man in hot water over email snooping check out "Is snooping in your spouse's email a crime?" at the link below: