How to give convincing trial testimony.

Giving testimony in court is much different than a normal speaking conversation.  You might think “all I have to do is tell the truth right?”  If only it were that simple.  Yes of course you will need to tell the truth, but keep in mind that the truth as you see it might not be universal.  Also, there is a difference between simply telling the truth and giving convincing testimony.  Here are some tips I’ve gathered from my experience that will help you give convincing trial testimony.  Some of these may be obvious, but in a tense situation common sense often eludes us.  Keep these tips in mind to give a convincing presentation.

1.  Tell the Truth

There’s an old adage that “the cover-up is always worse than the crime.”  I find that is often the case.  Aside from the fact that perjury is a crime, once you are caught lying, you might never fully recover.  Everything you say from then on is from the mouth of a known liar.  Even if you think the truth will be catastrophic, people can often appreciate the fact that you told it anyway.  Conversely, it’s difficult to empathize with a liar.  If you have a situation where you think you might be asked questions with damning responses, you should talk about it with your lawyer in advance.  Sometimes a particular spin on the truth can make all the difference.  For example, suppose you’re asked about gambling debts.  Response #1:  I had to gamble because my lousy wife made me feel so horrible.  Response #2:  Yes, I have a gambling problem.  I know I hurt my family.  I’m now getting help and trying to make amends as best I’m able.  Do you see a difference?  If you lie about gambling, there might be bank statements, or people who saw you, or even casino security camera footage.  This would obviously be destructive to your case if you were caught.  Furthermore, I think there’s a kind of catharsis in telling undiluted truth.  It produces a sincerity that is nearly impossible to replicate.

2.  Be Direct

It is understandable that people feel helpless on the witness stand.  Often, people will respond to questions by attacking what they think the question implies rather than simply answering the question.  This is problematic in more than a few ways.  First, it comes off as argumentative and evasive.  Suppose you were asked if you spent late hours at the office with your secretary.  You respond saying “My secretary is one of the best people I know.  How dare you insult her that way!”  The question may well imply extracurricular philandering, but the question does not ask if you had an affair.  Another incorrect response would be to answer with a question like “Are you implying that I had an affair with my secretary?”  Witnesses don’t get to ask the lawyers questions.  Only the judge can do that.  Asking the judge or lawyers questions from the witness stand is a quick way to exhaust the judge’s patience.  If the answer is yes, JUST SAY YES!  Your lawyer will have the opportunity to cross examine or redirect you in a way that will clear things up.  For example, if the implication is not true, your lawyer could ask on cross “have you ever had any amorous or romantic interaction with your secretary?”  Then you can give your emphatic no.  Asking questions or being argumentative from the witness stand only makes it look like you have something to hide.  Just answer the question, implication notwithstanding, and let your lawyer show how ridiculous the unspoken suggestion might be.

3.  Typically, you should only answer the question asked with nothing more.

Witnesses often feel like they should add something more or explain something not asked.  Most often, this takes place in the form of anecdotal editorializing.  Suppose the opposing lawyer asks you “did you speak to your wife’s sister after the party?”  You answer “yes, and she was so drunk as usual.  She is always drunk, and she ignores her children.”  Here again, you weren’t asked about your sister-in-law’s sobriety of attention to her children.  The next question might be “how do you know that she is always drunk?”  Of course, you don’t know because you’re not with her every second of every day.  You come off as an unhinged windbag in the eyes of the judge – someone who can’t answer a simple question without putting someone else down.  Do you find people like that generally trustworthy?  I don’t, and most judges don’t.  Moreover, you might give additional ammunition to the opposing lawyer.  In the hypothetical above, you might be asked if you’ve ever left your children with their grandparents for weekend while you spent time with friends.  “Isn’t this also ignoring your children?” the opposing lawyer asks.  So now you’re a windbag and a hypocrite, neither of which help your witness credibility.  Most of the time, if you can answer a question with “yes” or “no” then that is the best answer.  A simple, direct answer is not as vulnerable to innuendo.

4.  If you don’t understand the scope of a question, ask the questioning lawyer to clarify.

Asking a lawyer for clarification, or to rephrase the question, is probably the one exception to the “no questions from the witness stand” rule.  Lawyers will often purposely word questions in a way the opposing witness will not understand.  It’s a way to disarm the witness and make them squirm.  Don’t ever be afraid to say “I don’t know what [unusual word] means.”  If you respond when you don’t really understand the question, how are you going to give helpful testimony?  It’s important to ask for clarification in a generic, con-combative way.  Suppose you were asked “isn’t it true that your tax returns omitted critical information?”  You respond “I don’t know what you mean by critical.”  The lawyer clarifies “omitted important information?”  The lawyer clarified the question, and unless you don’t speak English, you should not what important means.  You can ask for clarification on all kinds of issues e.g. time and scope of questions.  Suppose you were asked, have you ever lied to your wife?  You might want to clarify whether the lawyer means ever or about something specific.  You might want to as if the lawyer means all lies ever or only about important things.  While this seems tedious, it is actually a normal part of the process.

5.  Use qualifiers frequently.

Oftentimes it is prudent to leave a back door on expansive testimony.  Suppose you were asked “Did you ever take your children to the doctor without calling their mother first?”  This question could potentially cover a lot of time and a lot of doctor visits.  You might want to ask for clarification as urged above.  In any event, this would probably be a good place to have a qualifying phrase before your answer.  “As best I can recall” and “To the best of my recollection” are some of my favorites.  It can be tough to remember each and every doctor visit for a year let alone a greater period of time.  If you qualify your testimony, you leave an escape route if something comes up that you did not mention.  Then you can say you didn’t remember that particular visit, and it won’t look like you were lying.  Another helpful qualifer is “I believe…”  If you respond without prefacing, then it will appear as if you are certifying that your answer is definitely correct.  If you preface with “I believe” or “I’m not certain” then you can safely correct yourself later if need be.

These tips are not everything you will need to know.  I you have concerns, meet with your lawyer to discuss them well in advance.  There is no substitute for preparation.  However, if you keep these tips in mind, you will have a good head start.

Why you should set up an LLC for your family business.

Being a business owner certainly has its perks.  You can set your own hours, make more money based on more work, and take all the credit for growth and success.  However, as most business owners know, there is a price for autonomy.  That price includes not only self-employment taxes (which I loathe) but the potential for exposure to liability.  The downside for getting all the credit is you have all the responsibility when things go wrong.  Even honest mistakes can create substantial liability.  If you are a sole proprietor, then there is no distinction between you and your business.  Any personal assets could be at risk for business liability.

For example, suppose you do landscaping as your business.  Someone on your crew mows a yard and the lawnmower spits out a rock which strikes a vehicle parked along the curb.  Suppose the rock was visible and avoidable, but the crew person was listening to Metallica on headphones and didn’t notice.  The rock is big enough that it shatters the car’s windshield and glass flies everywhere.  Someone is in the car and the glass cuts his/her skin causing serious injuries.  Oh, and for good measure, the car is an Aston Martin.  It may seem like something only from fiction, but this stuff really happens.  You would probably be liable because the crew person was working for you and the injury occurred from normal business activities.  You could face hundreds of thousands of dollars in liability.

If you don’t have an LLC or a corporation, your personal assets could be sold to satisfy your liability.  This is because there is no legal distinction between you individually and your business.  Your house, car, bank accounts and many other assets could be seized by the sheriff and sold at auction.  Creating an LLC or corporation will provide what we often refer to as a “corporate shield.”  It doesn’t block everything, but it’s a whole lot better than running around with no protection.

These business entities are treated like another person in the eyes of the law.  Most types of liability will extend to the business only.  If you are the landscaper, you would have contracts designating your LLC/corporation as the contracting party in your place.  Then when something like the example above happens, only the business assets will be available to pay a judgment.  Obviously that would still be bad, but not as bad as losing your house.

Now some of you might be thinking, “wouldn’t insurance give enough protection?”  From what I’ve seen, most liability insurance for contractors or similar vocations won’t cover damages from negligence unless it’s property damage.  So in the scenario above, only the car would be covered.  The car might not be the most expensive part of the damage, or even if the injuries are only $100,000 while the car is $300,000, that’s still enough to ruin most people.  Most liability insurance won’t cover breach of contract damages at all.

I usually recommend an LLC for most business owners, especially small businesses.  A lot of small business owners are good at what they do, but not so good at business details.  They might bake delicious cakes, but do a terrible job of keeping records, making reports, filing papers etc.  While there is some hassle involved in managing any business, managing an LLC is typically less complicated than a corporation for small businesses.

Contact me today for a consultation on creating an LLC.

If you want Equal Rights, Take on an Equal Burden.

 

Contrary to popular belief, Father’s Rights is about equality, not misogyny.  The mission of the Father’s Rights movement is to achieve equal access and participation for men in the parenting process.  While that all sounds good, or perhaps it would make a good poster on a teacher’s wall, equality can be hard work.  There are a lot of men who feel the pain of exclusion, but they fail to capitalize on opportunities to engage in parenting.  If you want equal rights, you need to take on an equal burden.  This is the meaning for my law practice mantra “Being a Dad is not an every other weekend job.”

Oklahoma law contemplates equal rights for both men and women in custody cases.  However, a more accurate statement would be both men and women have the possibility of equal rights.  In other words, you are entitled to equal rights when the circumstances show it would be in the best interests of the children.  If you demonstrate that you are willing and able to exercise equal rights, the law cannot deprive you of that right just because you are a man.  So what can you do to demonstrate willingness and ability?

Seeking to bear a greater portion of the parenting burden is a good place to start on your journey toward equal rights.  As you begin this journey, it’s important to shed all preconceived notions of gender-specific parenting roles.  As a child, I had one of the best advantages that a future father could have: a good example.  When my Dad would come home from work, we would fight each other for a chance to pull off his boots for him.  After boots and socks were properly removed, my Dad would ask my Mom what needed to be done.  Did someone need help with homework?  Did everyone finish their bath and teeth brushing?  My Dad was a powerful example of a maxim he often uses: “Everyone works until all the work is done.”  I think this sort of tireless vigilance in parenting embodies what being a Dad is all about.  My Dad was a parent in everything from Pop Warner football to poopy diapers – the good, the bad and the ugly.

As a Father’s Rights attorney, I deal with many men who are stuck in antiquated viewpoints about what a man should or should not have to do.  I say “antiquated” because that’s the way most people understand these norms.  In reality, I think good Dads throughout history would not refuse to do something just because others would perceive it as unmanly.  In any event, I think all men can relate to discomfort and frustration with certain activities.  For example, I attended a church meeting recently with my wife and son.  My wife was handling musical numbers in the program, so I had to take care of my son by myself out in the congregation.  Now I’m sure my experience of what amounted to a two-hour wrestling match with me as the clear loser is not unique.  At the end of the program, as people were shuffling out the door, an older gentleman stopped by me and said “They left you all alone didn’t they?  Makes you feel like a woman doesn’t it?”  I wasn’t really in the mood to deal with him, so I managed a forced chuckle, then I looked the other way.  If I could live this experience all over again, I would change my response.  I would respond that taking care of my son and supporting my wife does not make me feel like a woman, it makes me feel like a Dad.  Maybe that sounds too self-important, but I think we often fail to recognize the importance of our roles as fathers.

Ask yourself how many times have you turned down or avoided opportunities to participate in parenting?  What about taking a sick child to the doctor?  When the mother offered to take them, did you just sigh with relief and return to the ball game?  When a recital or band concert encroached on some other activity you preferred, what was your choice?  I confess that I’ve been on the wrong side of these decisions more times than I’d care to admit.  However, as men and fathers we should always strive to do better with the time we have.

But what if your attempts to engage more often in parenting triggers conflict?  For example, suppose in the sick child scenario above, you inform the mother that your child is ill and you are going to take him/her to the doctor.  You inform her in advance about when this will take place so she can attend also if she chooses.  She then demands that you stay where you are until she comes to pick the child up to take him/her to the doctor.  She contends that she has always handled doctor visits, so your presence would only make things awkward.  What do you do?  Any sort of resistance is bound to provoke conflict.

For these situations I like the analogy of a bull fighter.  You might be tempted to match a charging bull with a charging bull of your own.  You respond to the mother stating that it’s your time, so you inviting her to be there was only a courtesy.  You add for good measure that you don’t care what she thinks, and you won’t tolerate any violation of you rights.  The result would be proverbial grid-lock; neither party makes any advances other than increasing the level of conflict.  I have seen cases where the police were called over things like this.  It doesn’t have to be that way.

What is a better response to a charging bull than an equally ferocious charging bull?  A bull-fighter.  You would never see a bull-fighter take on a bull head-to-head.  Successful bull-fighting requires finesse and foresight.  A bull-fighter will artfully dodge each charge until the animal finally tires out.  So how does this apply to conflict in custody cases?

Let’s return to our hypothetical.  The mother demands that she and only she can take the child to the doctor.  You respond saying you understand her wanting to be there, but you want to be there for the same reasons.  You are willing to compromise by letting her drive the child to the doctor, but you will be there too.  You ignore any traps or baiting techniques where she says you only want to be there so you will look good in court and that you have never been involved as a father.  Your response to these insults, if any, is you disagree with her assessment and you will see her at the doctor’s office.  She will most likely tire of the exchange and leave the matter alone.  Your job in this situation is to stay focused on what matters.  In the immortal words of Pops, a rebel-fighter from Star Wars, “stay on target!”

Sometimes these situations have unavoidable conflict.  Some people just don’t quit, and they will raise you one level of acrimony in perpetuity.  I think these situations would be far less frequent if one parent used constructive conflict resolution, but some are unavoidable.  If the situation does not jeopardize the health and safety of your children, then it might be good to make a record by text messages, emails or recordings, then just give in.  You will paint a picture of someone who tried his best to deal with an uncooperative co-parent to no avail.  You will protect your children from destructive conflict.

I often hear clients complain “why do I always have to be the bigger person?”  The answer is “because your kids are too important to risk their well-being just to satisfy your pride.”  I realize the response to this question is nauseatingly simplistic, but sometimes facing hard truths is just that simple, at least in knowing what to do.  I think oftentimes the most difficult part of facing a hard-truth is accepting it.  Living it then becomes much easier.  If you need another reason, following this pattern will be better for you strategically if you go to trial.  Judges will look at whether one party has been more flexible and compromising.  If joint custody can’t work, then sole custody is the only option.  You will be the better choice for sole custody because you are more likely to put the children’s needs first and keep the other parent involved.  Additionally, taking advantage of parenting opportunities as often as possible will show the Court that you can undertake any and all parenting responsibilities necessary to sustain an equal or sole custody role.  More importantly, it will give you more opportunities to bond with your children and build solid relationships.

Time and patience: the essential components of a come-back victory

Recall February 2017 when the Atlanta Falcons played the New England Patriots in the Super Bowl.  Anyone who watched would remember how dismal things looked for New England.  They were dismantled on all fronts, trailing 25 points.  But as my grandpa likes to say “there are four quarters of football.”  New England mounted a breath-taking comeback and won the game in overtime.  The same sort of scenario can play out in a custody case.  Just like a football game, custody cases are long and grueling.  Typically, a contested case will take at least a year to make it to trial.  This is especially true in Oklahoma County, where the family law dockets are very crowded.  While you languish in the commotion of a custody case, you may very well feel like the New England Patriots.  You came in with high hopes and the expectation that justice would be done.  Now, it seems you’re so far down in the game, you can’t possible hope to climb your way back.  Do not despair.

If you watched the 2017 Super Bowl, you’ll remember that the Patriots didn’t come back by scoring 4 touchdowns in a minute. It took time, patience and strategy.  If you think you’re down in your case, or if you’re actually down, you will need a realistic plan and perseverance to get back in the game.  Suppose you’re 5 months away from a custody trial.  All you have is supervised visits based on false allegations raised at the temporary order hearing.  To add insult to injury, your spouse won’t even allow the supervised visits.  What do you do?  Lots of clients in this situation want to go back to court and re-argue the temporary order hearing.  However, if you don’t have any compelling, new evidence, this would probably be a mistake.  Judges typically get annoyed when you bring the same arguments back to court and expect a difference result.  If you annoy a judge, you’re more likely to stand out in the judge’s memory, and you will be a familiar, displeasing face when your trial-day comes.  You need to build evidence other than your say-so which would prove the falsity of the allegations.  You need to consistently and diplomatically insist that you receive your visits.  If your spouse refuses, you can take it up with the judge asking for an order of enforcement with make-up time, or it may be wiser to just make your record of the incident and move on.  Making a record and moving on is very difficult for some people.  Maybe it was hard for Tom Brady to cede the field to the punt team on 4th and long rather than go for the improbable conversion.  Sometimes, it really is better to live and fight another day.

Leo Tolstoy once said that patience and time are the most powerful warriors.  Time gives you the backdrop for showing a consistent pattern.  Your spouse didn’t just deny visits once, but several times.  The argument that she is non-compliant with visitation is more reasonable.  Consequently, you, as the compliant parent, become a better candidate for custody.  The suggestion that you can’t handle the kids for extended time periods seems less credible because you’ve done it several times before you head to trial.  Time and patience go hand-in-hand.  Patience keeps you from getting stuck in the moment, controlling impulses that might jeopardize the end-goal.  For example, without patience, you might go to your spouse’s house to yell and bang on the door demanding your visits.  You might give-up prematurely when you could have had a better result.  Patience helps you focus your efforts today in hopes of a successful future.  Just like the Patriots clawed back into the game slowly but surely, you steadily fill your case with helpful examples of your parental capability and efforts at cooperation.  You can’t hope for a 30 point touchdown because there’s no such thing.  There’s no substitute for careful planning and hard work.  A good plan, carefully executed, is very deadly weapon.

Road-mapping your child custody case: a sequential guideline.

Any sort of lawsuit can be confusing if being in court isn’t a part of your regular experience.  This article will provide a brief explanation of the major steps involved with a child custody case.

STEP 1 – THE INITIAL FILINGS

Your case will begin with filing a petition for dissolution of marriage (divorce) or a petition to determine paternity.  For children born during marriage, child custody is resolved as part of the divorce case.  For children born outside marriage, child custody is resolved in a custodial paternity case.  The petition is the first document filed in the case, often referred to as a “pleading.”  A petition identifies the issues of the case and what your proposed resolution would be.  Once the other party to the case receives a copy of the petition, that party has 20 days to file an answer.  Oftentimes the answer will come with a counter-petition or counterclaim.  A counter-petition/counterclaim is basically a competing petition, at-odds-with the initial petition.  The answer notifies the court whether you admit/deny certain allegations and whether you agree with the other party’s proposed resolution.

It is very typical for parties to take a position they don’t actually intend to stick with as their initial position in the case.  For example, a lot of people put that they want sole custody of the children when they file a petition or answer.  However, many people will settle for joint custody despite what their initial filing states.  It is a negotiating posture to start high then work down to a more realistic outcome.

STEP 2 – TEMPORARY ORDER

Many cases will have an application for temporary order filed along with or shortly after the petition.  An application for temporary order asks the judge to decide what temporary visitation/custody/support orders should be applied.  A custody case can take a long time before resolution, so it is helpful to have interim rules for how time-sharing and decision-making should occur for the kids while you’re working towards a trial.  If the parties cannot come to an agreement for temporary orders, they will have a brief hearing before the judge on the case.  In Oklahoma County, you will not get very much time to make your case for a temporary order.  It’s a bullet-point type of presentation, or a “cliff-notes” presentation if you’re old enough to remember what those are.  Most often, witnesses won’t testify, and all evidence is presented or described by the attorneys.  This is known as an “offer of proof.”  A temporary order is just that: it’s temporary.  The judge can modify a temporary order anytime before trial and entry of a final order.

STEP 3 – DISCOVERY

“Discovery” is the process for obtaining evidence from the other party or third parties.  For the other party, you can serve interrogatories (written questions), requests for production of documents, and requests for admission.  Basically, this is how you would find out what evidence the other party intends to use at trial.  It’s also a way for you to obtain evidence for your use at trial.  Interrogatories are just questions, which must be answered in writing and under oath.  For example, an interrogatory might ask “why do you think joint custody is not appropriate for this case?”  The answer would guide your trial strategy because you would try and counter whatever reasons were offered.  Requests for production of documents would ask for copies of income records, property records, phone records or any sort of documents you could use as evidence.  Requests for admission ask the other party to admit or deny certain statements.  For example, a request for admission might ask someone to admit or deny that the person did not see his/her child at all in the year 2017.  If the other party admitted this allegation, this admission could be helpful to the party making the request.  Discovery can often be a very tedious process.  Gathering documents and information is time-consuming and monotonous.  Get ready, it’s worse than applying for a mortgage, but it’s an extremely important part of building a case.

STEP 4 – MEDIATION

Most judges in Oklahoma require mediation before the case can be set for trial.  Mediation is a settlement-exploring meeting with a mediator.  The mediator is someone trained in conflict resolution.  Sometimes the parties will be in separate rooms with the mediator going between rooms to relay offers and explain the position of each party.  In my opinion, the best mediators are lawyers with experience in the subject matter.  However, not all mediators are lawyers.  A mediator can tell one or both parties whether their position is unreasonable or if their position is likely to be adopted by the judge if the case went to trial.  There is no requirement to settle in mediation.  In fact, whether you settled or not, or how close you came, cannot be used as evidence at trial.  Once mediation concludes, the mediator will make a report on whether mediation was successful.

STEP 5 – PRETRIAL CONFERENCE

Pretrial conference is a brief meeting with the judge, usually a couple weeks before trial.  The attorneys will give the judge a preview of the case from each side’s perspective, and the judge may hear evidentiary motions or other motions.  In some counties, the clients are required to appear with their lawyers for pretrial conference.  The lawyers will discuss how much time the case will take at trial, and what issues remain in dispute.  As part of the preparation for pretrial conference, each party will typically prepare a pretrial conference statement, which outlines the parties’ positions and proposed resolutions for the final stage of the case.  Often the proposed resolution will be different from the position taken in the initial filings.  Typically, you must have all evidence prepared and organized for trial prior to the pretrial conference.  Evidence should be marked in the manner it will be used at trial, which means separated into numbered exhibits.

STEP 6 – TRIAL

If the case cannot be settled, then the only way to resolve the dispute(s) is by having a trial.  At trial, each party will call witnesses and introduce evidence.  Oftentimes, in a custody case, the parties will be the only witnesses.  Upon hearing the evidence, the judge will pronounce a ruling.  Typically, this will happen after both parties rest their cases.  Sometimes the judge will take the matter “under advisement” which means the judge wants to look at the admitted evidence, study his/her notes, and issue a later ruling after independent review and reflection.  Once a ruling is pronounced or issued, it is enforceable immediately.  This means enforcement does not require a formal, type-written version of the ruling.

STEP 7 – MEMORIALIZING FINAL ORDERS

After the judge pronounces or issues a ruling, the lawyers prepare a type-written Decree of Divorce or Final Order Determining Paternity.  Final oreders will include a Joint Custody Plan if the judge awards joint custody.  The orders will also include a child support computation and visitation schedule.  Sometimes, the lawyers and parties can’t agree on the proper wording for the judge’s ruling at trial.  In these situations, one or both parties will file a motion to settle journal entry which will be heard by the judge.  The judge will decide which party’s version is an accurate reflection of what the judge decided at trial.

STEP 8 – APPEAL

Once a type-written, final order is approved by the judge and filed with the court-clerk, a party has 30 days to appeal that judgment.  Appeals take a long time to resolve, sometimes longer than the case itself.  While your appeal is pending, the trial judge’s orders remain in effect.

Why I Chose Family Law as my Primary Practice Area.

MY JOURNEY TO BECOME A FATHER’S RIGHTS ATTORNEY

I graduated from law school in 2009.  At that time we were in the deepest part of the economic crater now referred to as the “great recession.”  I was working at a firm in Oklahoma City doing mostly business and personal injury litigation.  They offered a full-time position after I passed the bar exam, but the salary was very meager.  It was a toxic work environment, and I really didn’t like working there.  I decided go out on my own and learn from the ground up.  I teamed up with a firm in Norman, basically on an eat-what-you-kill basis.  If I didn’t produce my own work, then there probably wouldn’t be enough firm-work to make ends meet.  I used all outlets I could think of, however debasing others might consider them.  You can’t afford to be proud as a baby lawyer trying to survive.  I even used craigslist (back then it wasn’t as creepy as it is now, or at least that’s what I tell myself).

A lot of the calls I got from my pitiful marketing efforts were family law cases.  At first it was very difficult; sometimes it still is.  There is a human element to practicing family law that most people cannot handle.  Clients going through a divorce or custody case are some of the most stressed, irritable and anxious people on the planet.  How could they not be?  In that sort of mental state, even successful and intelligent people do foolish things.  Persuading clients to accept a difficult and arduous course of action while in that mental state is well…really hard.  When I first started out, it was a rough learning curve.  I would get so frustrated and anxious because I didn’t know how to lead people where they needed to go.  I kept thinking I would just keep doing family law until I got other areas of practice off the ground.  With a lot of ibuprofen, and with the support of my patient/long-suffering wife, I improved and adapted.  I saw that practicing family law was something I’m good at, or maybe even something I was meant to do.  I also saw that doing family law was a way to see direct and immediate improvement to people’s lives.  I live for those moments when the judge pronounces a ruling at trial that gives my clients more time to be with their children and more ways to be an influence in their lives.  That look of unrestrained happiness on clients’ faces is a high I never get tired of.  I also enjoy plotting a course out of the madness that is a custody dispute and seeing the peace a well-conceived plan brings into clients’ lives.  Custody litigants are in a fog of frustration and sadness, a quicksand of despair.  Often they can’t see a way out, so helping them see the reality of their situation (often less dire than what they think) is very rewarding.

My love of family law solidified when I became a Dad.  There is nothing better than quality time with my son, and I consider it my honor to help other Dads increase their presence in the lives of their kids.  Dads face unique challenges in custody cases.  While there isn’t as much conspicuous bias as in the past, I still see a lot of favoring for Mothers.  As a Father’s Rights lawyer, I don’t seek to diminish Mothers’ influence on children; rather, the goal is to have equal influence for both Mom and Dad.  I’m proud of my small role in helping men live up to their God-given responsibility of being a Dad.

I was blessed with enough work to open my own office in October 2017.  Having my own office gives me freedom and flexibility to limit my case-load to a level where I can give personal advising to my clients and be accessible to them.  Give me a call today to see if I’m a good fit for handling your custody case.

 

Grandparent Rights in Oklahoma: Brief Overview

I get calls all the time about grandparent rights.  Someone is estranged from his/her children and wants to see their grandchildren or someone’s child doesn’t have or can’t exercise visitation rights, so the grandparents want rights of their own.  Oklahoma does have grandparent rights, but only in limited circumstances.

First, the Court must make a finding that visitation with the grandparents is in the best interests of the children.  Next, the grandparent must prove parental unfitness OR show that the children would suffer harm or potential harm without the granting of visitation rights to the grandparent of the children.  It’s a little more complicated than that because the “OR” option requires proof by clear and convincing evidence that the children would be harmed without visits from the grandparents.  Proving this, according to the statute, would rebut the presumption of parental fitness.  FYI, the law presumes that parents are reasonably capable of taking care of their kids unless evidence proves otherwise, sort of an “innocent until proven guilty” type of thing.

Additionally, there must be a disruption of the “nuclear family” through certain events.  These events are specifically listed in the statute and include a divorce, a parent going to jail for a felony conviction, termination of a parent’s rights etc.  The statute has a common theme that the grandparents’ must have a relationship with the children prior to the disrupting event.  In other words, you can’t suddenly be interested in your grandkids once your child dies and expect to get grandparent visitation.  The children wouldn’t be harmed by denial of visitation with you because they don’t know you.

In any event, the statute provides that grandparent visitation cannot be allowed when both parents in an “intact” family object to grandparent visits.  I assume that this limitation is there because of the constitutional protection for the right to parent children.  It would probably be unconstitutional for a judge to order visitation over the parents’ objection.  As a society, we typically don’t want the court to substitute its own opinion for that of the parents if there’s no objectively imminent harm.

The Oklahoma grandparent visitation statute is long and complicated.  There is much more than I could include in a blog post (or at least one people would have patience to read).  I think the underlying idea is that it’s cruel to separate children from grandparents merely because one parent doesn’t want them to visit.  From what I’ve seen, parents denying grandparent visits is often a form of retribution for perceived wrongs arising out of the parental relationship e.g. I will punish you for cheating on me by not letting the kids see your mom.  The pettiness often involved in parental custody battles exists for grandparent visitation disputes too.

Most professionals agree that grandparent bonds with grandchildren is a good thing.  A lot of the time, it helps kids learn emotional/social intelligence and provides an extra layer of security.  It provides a greater outreach of love and support through the difficult process of growing up.  I know that I personally have benefited immensely from having a strong relationship with my grandparents.  Their love and teaching helped me through some of my toughest life challenges.

However, while grandparents have a tremendous ability to benefit children’s lives, they can also get in the way sometimes.  Here a few tips and/or food for thought for grandparents of kids with divorced parents:

  1.  Do not speak negatively about your child’s former spouse.  Kids are extremely impressionable.  If they’re within earshot, they will record, repeat and internalize the sentiment.
  2. Follows both parents’ rules; even if you think the rules are ridiculous.  Don’t create rule-instability by having rules which conflict with the parents’ rules.  More instability is the last things kids with divorced parents need.
  3. Give notice of intended visits i.e. don’t do pop-ins.  I think this is a good rule of thumb for all grandparents.  Failing to abide by this simple courtesy is almost sure to provoke a court-involved conflict.
  4. Keep both parents informed of important developments while the kids are with you.  You may hate your son/daughter’s ex, but that doesn’t mean they don’t deserve to be in the loop.  You should be sure to have current contact info for both parents to ensure this occurs.

If you want more information or advice on how to obtain court-ordered grandparent visits, feel free to contact me.

 

 

Changing horses midstream: the dilemma of hiring a new lawyer.

During my time practicing law, I’ve noticed a disturbing trend.  Many cases, including child custody/divorce cases, take several years to complete.  You may have experienced this yourself first hand.  For these situations, I have to ask myself “does it have to be this way?”  Most of the time, the answer is a resounding “no.”  If it does not have to be this way, why do so many cases take years to complete?  I think the blame often lies with the lawyers.  Many lawyers get so overworked that cases naturally get neglected just because the lawyer simply doesn’t have time to deal with them.  There are also many lawyers who don’t like having trials, and some lawyers are afraid of the courtroom.  Other lawyers hold out beyond hope for a settlement that never comes.  Are you in this situation, where your case drags on with no end in sight?

Sometimes the trust relationship between lawyer and client deteriorates so that you don’t feel like your lawyer has your best interest at heart, or perhaps you just have fundamental disagreements about how to present the case.  If this is your situation, do you really want to put your rights to your kids in the hands of someone you don’t trust?  If I had a client who told me he/she didn’t trust me, I would most likely recommend that they hire someone else.  It doesn’t have to be an insult.  Sometimes a different personality just suits the situation better.  If your case sounds like the descriptions above, you may consider hiring a new lawyer.

Will it be detrimental to your case if you hire someone new?  Maybe.  It depends on how complicated the case can be.  A case may very well have a long and wholly-relevant history that cannot be internalized without weeks of preparation.  If this is indeed the situation, then the prospective, successor lawyer should tell you this up front.  In this situation a continuance would be needed to give more time for preparation.  If you can’t live with yet another delay, then you should probably keep the lawyer you have.  Sometimes judges won’t grant continuances even when, or especially when, a new lawyer enters the case.  If a new lawyer cannot be ready to take the case to trial by the scheduled date, then you should not hire this lawyer.

Oftentimes, a seemingly complicated case just needs a fresh view to uncomplicate the case.  Have you ever stared at one of those magic eye pictures so long that even a regular picture looks like a blurry mush?  Sometimes cases can be like a magic eye picture; you’ve looked at it so long that you can’t really make heads or tails of it anymore.  A fresh view may breathe new life into a once hopelessly complicated case.  It’s not so much that the current lawyer is defective.  Sometimes you can get bogged down with irrelevant or unimportant details while gathering evidence.  Someone who wasn’t involved with the tedium of compiling evidence may be able to see patterns and solutions that the other lost along the way.

Money is another consideration for hiring a new lawyer.  Duh right?  If a case is close to trial, a lot of time will be required to prepare.  I don’t take these kinds of cases without a sizeable retainer (minimum $3,000).  If you’re not in a position to pay up to $5,000, you should look at other options.  If a lawyer is willing to accept less than $3,000 for a case close to trial, I would be skeptical about the lawyer’s capability.  Someone like that would make me wonder about the time they intended to spend preparing, or whether they might try to nonchalantly suggest continuance at the last moment.  I would wonder if they knew what they were doing at all.  The phrase “you get what you pay for” is as true with lawyers as anything else.

Making the decision to fire a lawyer is something you should think about long and hard.  You should meet with your lawyer to see if the disagreements or distrust can be resolved.  Once you are sure that you cannot go forward with your current lawyer, you need to fire him/her.  The best way to do this is by sending a letter where proof of receipt can be shown.  A fax or email will do the trick, but if you like the feel of actual paper, you can send a certified letter.  Sometimes lawyers will pretend they didn’t get notice of being fired so they can bill more time or try to convince the client to reconsider.  Sending notice of termination through a self-proving-receipt-confirmation-method will help avoid this issue.

The letter doesn’t have to be long or even give a reason for termination.  It just needs to clearly state that you no longer wish for the lawyer to represent you.  I would also add direction stating that the lawyer should file a motion to withdraw as soon as possible.  Some lawyers delay doing this hoping the client will change his/her mind or hoping to get more money before the judge signs the order of withdrawal.  Once the old lawyer is out, your new lawyer can file an entry of appearance as successor counsel.  Sometimes an order substituting counsel can be entered accomplishing the withdrawal of one lawyer and entry of the other with one document.

Deciding whether to hire a new lawyer is a tough decision.  Hopefully this article gave you some food for thought.

 

Father’s Rights: the price of equality.

Father’s rights is about equality for both male and female participation in the parenting of children.  It has never been about misogyny; equality is the goal.  Sadly, there are some men out there, especially in the many labyrinths of internet comment sites, who rant and rave about how they can’t see their kids because of gender bias.  I dare say that many of these men fail to be accountable for their own actions or inaction that led to their situation.  The father’s rights ethos calls upon men to act in a way that equals the importance of their role.  Often this requires sacrifice, and most of the time, it requires hard work.  Men sometimes find themselves doing things that they should not have to do, paying money they should not have to pay, and having restrictions with no foundation in fact…all to be able to see their kids.  It happens frequently.  Some will get caught up in victimizing themselves, refusing to pay support or to take anger-management counseling etc. because they “should not have to do it.”  They are right that they should be treated fairly, and a lot of the time they must sacrifice a measure of pride to receive rights they should have had in the first place.  However the end goal must take priority over the hardship of the moment.  Fathers’ rights means putting your kids first as the highest priority.

My mother is a great lover of cliches.  She put a poster in my room with the words “To be good one must struggle; to be bad one has only to quit.”  I have found this cliche to be true in life and the obstacles we face.  Winning a fathers’ rights case often requires struggle and persistence.  It is a process and not a quick one.  It requires patience and calculated decisions.  For example, suppose your temporary order identifies a meeting spot for visitation exchange.  Your ex derisively tells you “we’re busy so you will have to pick them up at home.”  Do you A: respond saying that you are going to make her pay in court for violating the order; B: Diplomatically say that you would prefer to follow the order, but rather than not see your children, you will pick them up at home; or C:  Not respond at all.  The correct answer is B.  You shouldn’t have to carry a greater burden than what your order requires, but if you shift your focus to the greater goal, spending time with your kids, then you will take advantage of every reasonable opportunity.  You should view gaslighting and trap-setting as an opportunity to make your case.  Imagine the effect in court when someone argues that you don’t really care about your children.  You will be able to genuinely respond that you do care, so much so that you were willing to go above and beyond the literal requirements of your order to spend time with them.  You make a temporary sacrifice to achieve the greater goal.  As another example, suppose someone makes a fraudulent accusation of abuse in your case.  The judge orders you to attend anger counseling and group therapy.  Do you A: Throw up your hands in frustration and yell “I give up!” B: Refuse to attend the class and when the judge asks why you did not attend you respond “I shouldn’t have to.” or C: Attend classes, sitting in the front row while taking notes and participate actively in group therapy while encouraging/inspiring other attendees.  The correct answer is C of course.  Think of how compelling your testimony will be when you tell the judge that you did not agree with the order to attend classes/therapy, but since that was the order, you decided to get everything out of attending that you could.  You will describe your experience and the insight you gained.  Perhaps your therapist or teacher could be called to testify about your constructive participation in classes/therapy.  Are you catching the vision?

Fathers’ rights requires paying the price of equality.  Give me a client with unshakable resilience and rock-hard grit and that is someone I can work with.  The price of equality is often a path littered with hardship, but the end goal is more than worth the price.  I think Rocky Balboa said it best: “It ain’t about how hard you hit, it’s about how hard you can get hit and keep moving forward…how much you can take and keep moving forward. That’s how winning is done!”  Winning a custody case requires perseverance and patience, but with a clear plan, and a good lawyer, you can improve your situation.

 

 

Is it yours, mine or ours? Navigating the labyrinth of separate and marital property.

Oklahoma law provides for an equitable division of marital property and marital debts.  That seems straightforward, but it can be complicated to identify exactly what is marital.  The easiest bright line rule is property accumulated before marriage.  If you had it before your marriage, and you did not change sole ownership to joint ownership, most likely the property is separate and therefore not subject to division in divorce.  For real property, this can be tricky.  If you owned the property before marriage, but later changed title to joint ownership, a presumption arises that you intended to gift the separate character of the property to your spouse.  In other words, by changing title to joint ownership, you intended to change the the property from separate to marital as a gift.  You can rebut that presumption, but it takes more than he said/she said evidence.

Property owned before marriage can have both separate and marital components.  If real property is improved using marital funds, then the enhanced value of the property is marital.  For example, a house increases in value after adding a pool and sun deck.  The house was worth $150,000 before the improvement and $180,000 afterwards.  If the house was owned by one spouse before marriage, but the couple used money earned during marriage to add the pool/deck, then the $30,000 increase in value is marital, but the original $150,000 value remains separate.  Paying down a mortgage using marital funds is another aspect of enhancing value.  Suppose a house had $30,000 of debt at the time of marriage.  Subsequently, that debt was paid off during marriage, using money earned during marriage.  The house is now worth $30,000 more to the couple, and that $30,000 increase of value is marital property.  As you can see, even the simplest of rules for distinguishing between separate and marital property can be complicated.

Property received by gift or inheritance is another separate/marital distinction.  This type of property is considered separate.  Suppose your grandmother wants to gift mineral interests to you.  Assuming the gift results in title transfer to your name only, the mineral interests would be separate property, not subject to division in divorce.  But let’s say you go out and build a well on the property, using your own two hands, because you have the skill to do that kind of work.  The property increases in value due to your hard work.  The increase in value is marital.  This concept is referred to as “joint industry” or the active efforts of either spouse.  Increase in value resulting from joint industry is marital property.  Ok, so what if you don’t do anything to the property, but an oil boom increases it’s value without your active efforts.  Is the increase in value marital?  Probably not.  This is what we call a “passive increase of value.”  The increase in value stems from market factors outside your control.  Therefore, the increase is not from joint industry, and it is not marital.

There are lots of rules for distinguishing between marital and separate property.  I can’t go over all of them in this post.  However, I hope you get a general sense for how distinctions between marital and separate property work.

Marital debt works in much the same way.  If the debt was contracted during marriage, it will most likely be considered marital debt.  I have clients who get flabbergasted when a credit card in one spouse’s name is treated as marital debt.  “That’s her card!” they say.  Interestingly, the name attached to the debt is not what makes it separate or marital.  If you’re worried about a spouse running up credit cards, or contracting other debt without your knowledge, it would be a good idea to sit down and review a credit report.  The debt, even while titled in one spouse’s name, and incurred without the other spouse’s knowledge, could still be divided by the court between spouses.

Student loans are one potential exception to this rule.  Presumably, student loans are for education which increases earning power.  After divorce, only one spouse will benefit from increased earning power funded by student loans.  As only one spouse benefits from the fruits of this debt, the court will likely order that incurring-spouse to pay the student loans.  Bear in mind, the court is not required to assign student loan debt to the spouse benefiting from it.  That is just the way it typically works out as the “equitable” way to treat that debt.

As stated above, an exhaustive description of all rules for distinguishing between marital and separate property or debt would be impractical if not impossible.  If your case involves issues on whether property is separate or marital, your best bet is to consult with a competent attorney.  I just happen to know of such an attorney.  Call Burr Law Offices today to discuss how we can help you with your property/debt division divorce case.