Being realistic is the most commonly traveled road to mediocrity.
The other day, someone asked me whether I have ever seen a man win custody of his children in court. Yes, I have. It does not happen often; however, it happens more often than men think it happens. If you are a man and would like to win your custody case, then keep reading.
This is my theory on the way judges make decisions in child custody cases. Judges want to make sure that they make the right ruling. Or to say it the way a former judge told me a couple of years ago: “I want to make sure I get it right.” Part of getting it right involves applying the law of the state to the facts of the case. Judges use their own life experiences to determine how the law applies to the facts. Judges also bring certain biases – and prejudices — to the bench with them. One of those biases is that a child belongs with his or her mother – particularly in the child’s early years of life.
Although judges have that bias, they do not like to consider themselves biased. So they look for opportunities to award custody to the father, because doing so allows them to say to themselves: “I am not biased against fathers. Just the other day I gave a father custody of the children.”
Now, a judge is not going to make a ruling against his or her bias for just any case. It has to be a special case. It has to be the kind of case in which the facts cause a reasonable person to say: “What kind of mother is that?”
No, it is not enough for the man to be a great father (unless the man is a great father whose teenaged children tell the judge they want to live with him). Great fathers – with nothing else – typically get standard possession and child support. If you want to be the parent that determines where the children reside, you have to show the judge two things: (1) you are a great father and (2) she is not a great mother. As a tie goes to the house in a game of black jack, so too a tie goes to the mother in a custody battle.
So how do you show a judge you are a great father and she is not a great mother? Well, to show that you are a great father, you must do the things they great fathers do. Let’s start with a checklist. You need to be able to articulate the role that you play in providing for each child’s hygiene, meals and food, sleep schedule, education, emotional nurturing, healthcare, entertainment, playtime activity, and miscellaneous needs. You also need to be able to discuss the future that you envision for your child and the steps that you will take to bring that vision to reality. You will see why in a moment.
In most states, judges are directed to determine child custody by considering a number of factors. For example, in Texas, judges make child custody decisions by determining what they believe is in the best interest of the child. Judges are supposed to consider several factors when determining what is in the best interest of the child. My non-exhaustive list of factors includes the following: (1) the desires of the child; (2) the emotional and physical needs of the childnow and in the future; (3) the emotional and physical danger to the child now and in the future; (4) the parental abilities of the individuals seeking custody; (5) the plans for the child by these individuals; (6) the stability of the home; (7) the acts or omissions of the parent that may indicate that the existing parent-child relationship is not a proper one; and (8) any other factor that is important to the judge. (Note: If you are a reader who has a custody case in a state other than Texas, then you should do a search query using phrases such as, “child custody factors in [insert state]” to figure out what standard and factors your judge will apply to your case.)
By creating the checklist and writing down the role you’ve played in raising each child – and the role you intend to play — you position yourself to be able to address the factors that the judge will consider.
While you are busy gathering proof of your greatness as a father, do not forget to gather information that focuses on the mother’s faults. As I suggested above, if you are going to win your custody case, you are going to have to present information about the mother in a way that convinces the judge that she is not a great mother. Winning does not require a complete assassination of her character; however, you will have to show her parenting abilities in a negative light.
While gathering your evidence, you should keep in mind that her “issues” will only be relevant to the extent that they impact the child. To use a somewhat extreme example, evidence that the mother of your school-aged child works as a stripper from 12:00 p.m. – 2:00 p.m. is not as helpful as evidence that the mother strips from 4:00 p.m. – midnight would be. Can you see how one could have a greater impact on the mother’s ability to parent?
Here are some other questions that you might want to ask yourself about the mother of your child. Would your child rather live with you than with his or her mother? Does your work schedule provide more opportunity for you to spend time with the children? Has she failed to give your children their medications? Has she ever struck your child so hard that she left marks? Does she mentally or physically abuse your child? Are your children scared of her current boyfriend or girlfriend? Has she ever failed to supervise your child? Does she leave your child with inappropriate sitters? Is she late picking up your child from school or activities? Is she late delivering your child to school or activities? Does she miss important events in your child’s life? Does she fail to use car seats for children who are supposed to be placed in them? Does she have a valid driver’s license? Does she have any pending cases that involve alcohol and/or drugs? Does she use alcohol or drugs around the children? Has she ever disobeyed a court order? The more of these questions you can answer with a “yes,” the better position you will be in during a trial.
Once you present overwhelming evidence that you have provided for the child’s emotional needs and will do so in the future, and you present evidence that the mother is not a great mother to the child, you will be the right man to benefit from the judge’s desire to prove something to himself. Good luck. And feel free to comment below if you need me to clarify anything for you.
Are you your partner’s worst critic or the president of his or her fan club?
A non-profit organization’s mission statement is that organization’s statement of its reason for being. It is important that those who are in leadership positions within the organization understand its mission, because deviating from the mission can expose the organization and its leaders to legal liability.
When creating (or updating) a mission statement, the directors must consider whether they are going to adopt a broad or narrow mission statement. Some directors (and counsel for directors) recommend a very broad mission statement. The rationale is that a broad mission statement presents a lower risk that someone acting on behalf of the organization will have his or her actions voided for being outside the purpose of the organization. Also, if the board of directors uses a broad mission statement, then it is less likely that the board will have to amend the articles and/or bylaws at a later date so that the directors’ actions are in line with the organization’s mission.
Although there are good reasons to use broad mission statements, a narrow mission statement might make more sense for an organization. The rationale for using a narrow mission statement is that using such a mission statement will help ensure that the organization knows what its purpose is. Moreover, future boards may be less likely to stray from the organization’s original purpose if they know exactly what that purpose is.
Whether the directors choose a broad mission statement or a narrow one, they may need to consider updating IRS filings, amending their formation documents (e.g., articles of incorporation), and amending their operating documents (e.g., bylaws) if the organization’s mission is not in line with the organization’s current activities.
Are you living your dreams or your fears?
So you’ve decided that you need a premarital agreement (prenup). Whether you plan to create your own prenup or hire an attorney to create one for you, this article will help you think about some of the specific areas that you can cover. You may not cover all of the items I list. However, it is good for you to be aware that the items are issues that you should address.
- Assets, liabilities, etc.
You should be prepared to list your assets, liabilities, income, and expectations of gifts and inheritances.
You should be prepared to discuss the manner in which premarital and post-marital debts will be paid.
- Premarital Property at Death or Divorce
You should think about and discuss what will happen to your premarital property at death or divorce. You should also consider the post-marriage appreciation in the value of your property.
Be sure that you have considered each type of property, whether that property is jointly owned or individually owned.
- Property Acquired After Marriage
You should discuss and agree upon what will happen, at death or divorce, to the property that is accumulated after the marriage.
- Determine the Status of Gifts
You should determine the status of gifts, inheritances, and trusts that each person receives before and during the marriage.
- Retirement Plans
You should be prepared to select the person who is to receive each retirement plan in the event of death and/or divorce.
Consider whether a party will receive spousal maintenance at divorce. If yes, then determine the amount. If you determine that spousal maintenance is contingent on some event, then determine what event qualifies.
- Death Benefits
You should discuss your death benefits in detail. State what you will provide for in your will. You should also consider what role (e.g., executor) you want your spouse to play in administering your estate.
You should decide on the types of insurance coverage – medical, life, disability, etc. – you will have.
10. Identify Attorneys
You should identify the attorneys that will represent each party in the creation of the prenup.
11. Provide for Child Support and Custody
Some choose to discuss custody and child support matters. However, agreements concerning the children may not be upheld by a court in a divorce, because the judge may determine that the agreement is not in the child’s best interest.
12. Applicable Law
You should decide what state’s law will apply to your agreement. You should also decide what will happen in the event that you move to another state.
Some people like to include clauses that describe their expectations. For example, parties might want the agreement to say that the woman will agree to attempt to have or adopt children. Or the parties might want the agreement to say that each spouse will provide a loving environment for the other spouse. Some of these miscellaneous provisions may be unenforceable, but the parties choose to insert them because it helps them outline the emotional needs of the parties.
Sycamore Row (New York: Dell, 2014)
I recently read Sycamore Row, a novel by John Grishan. Sycamore Row is said to be the sequel to A Time to Kill, Grisham’s first novel.
Sycamore Row is set in 1988, a few years after attorney Jake Brigance successfully represented Carl Lee Hailey in the trial that was the center piece of A Time to Kill. Jake is representing the estate of Seth Hubbard, a man who makes change to his will days before hanging himself. The new will excludes most of his family and awards his multi-million dollar estate to his care taker. The will contest that ensues is exciting and worth reading.
He who knows not and knows not that he knows not, but thinks that he knows, is a fool – leave him alone. He who knows not, and knows that he knows not, is a child – teach him. He who knows, but knows not he knows, is asleep – wake him. He who knows, and knows that he knows, and uses what he knows, is a leader – follow him. — Willie Jolley (paraphrasing a German proverb)
What do you think?
There is a lot of debate about who should have a premarital agreement (a/k/a, “prenup”) and whether it is worth the trouble to ask a partner for one. In the paragraphs that follow, I will discuss the factors that you should take into account when deciding whether a premarital agreement is right for you.
The Divorce Laws in Your State
The first question you should ask yourself when determining whether you should have a premarital agreement is this: Do I like way my property will be split if I divorce without a premarital agreement? I recognize that this is a difficult question to ask because it forces you to think about the end of your relationship. But the state that you live in has already set guidelines that a judge is likely to use in the event of a divorce. Moreover, even if you live in a state that has divorce laws that you like, nothing stops your partner from moving to a state with different laws, establishing residence in that state, and then filing for divorce in that state. If you do not like the divorce law in the state where you live, or you want to make sure that your spouse cannot file for divorce in a state with laws that you do not like, then the best way to protect yourself is to take control of your future through a premarital agreement.
Your Wealth Compared to Your Partner’s Wealth
If you are wealthier than your partner is, then you can use a premarital agreement to help ensure that your partner is marrying you for you – not your money. On the other hand, if you are poorer than your partner is, then you can use a premarital agreement ensure that you are financially protected.
You Have an Ex-spouse or a Child from a Previous Relationship
For those who have been married and/or have children from a previous marriage or relationship, a marriage brings about legal and financial concerns are often very different from those that were involved in your first marriage. For example, you may have support obligations. You may also have a home or other significant assets. A prenuptial agreement can ensure that when you pass away, your assets are distributed according to your wishes.
One of the Parties has a High Debt Load
If one of the parties has a significant debt load then a premarital agreement can help ensure that the “innocent spouse” does not have to take responsibility for payment the debt in the event of a divorce.
You Own Part of a Business
If your marriage ends without you having a premarital agreement, then you spouse could end up owning a share of the income earned from your business. Business partners and potential investors may be concerned about working with someone in your situation. What’s more, you might be concerned about the prospect of sharing income, at divorce, with someone who married you after you had established your business. A prenup can ensure that your income from your business remains your separate property.
Nadia Goodman wrote an interesting article about how to ask your partner for a prenuptial agreement. The article, written for Entrepreneur.com, is available here: http://www.entrepreneur.com/article/227088. Goodman quotes a lawyer, June Jacobson, who offers these five tips to help you discuss a prenup without messing up the marriage before it starts:
- Start the conversation early
- Decide the terms together
- Own up to what you want
- Listen to your partner’s concerns
- Leave room for change over time
In the paragraphs that follow, I will provide the lawyer’s tips, the author’s comments, and my opinion of those tips and comments.
- Start the conversation early.
Goodman says: “If you think you might want a prenup, bring it up with your partner during your initial post-engagement talks about what you want from the marriage.” Jacobson says: “Addressing the prenup early takes the time and emotional pressure out of it.”
I think Goodman and Jacobson offer good advice, but I think you should take it a step further. I think you should get a feel for your partner’s position on prenups before the engagement. In other words, do not ask your partner to marry you without knowing how your partner feels about signing a prenup. By having the discussion early, you give yourself the opportunity to know your partner’s position when your emotional (and financial) investment is relatively low. If your partner is not willing to sign a prenup, and a prenup is something you have determined that you must have, then you are able to walk away at the boyfriend/girlfriend stage, rather than at the fiancé stage. Plus, as you get closer to your wedding date, you and your partner will be dealing with so many issues that you are not going to want to have to introduce the topic.
- Decide the terms together.
Goodman says presenting a pre-drafted agreement to your partner is likely to “put [your partner] on the defensive.” Goodman suggests that you hire a mediator and write the prenup collaboratively so you’re both on equal footing. Goodman suggests hiring independent attorneys to review the finished draft. Jacobson says having independent counsel will increase the likelihood that the agreement will be upheld.
I think Goodman and Jacobson offer good advice here. A good mediator can help the two of you reach an agreement that feels more like the product of a collaboration. If you are the person who initiated the prenup talks, then it helps you (and the relationship) when your partner feels like a collaborator – rather than someone having something forced on him or her.
- Own up to what you want.
Goodman and Jacobson seem to say that you want to have an honest conversation about what it is that you want and why you want it. “You need to be willing to own it,” Jacobson says. “Don’t blame your lawyer or family to take the pressure off yourself.” The idea, according to Goodman, is that the conversation will go better if your partner understands your reasoning.
I think this is very good advice. When you are discussing what it is that you want, you should be sure to talk about your financial goals, your fears, and your interests. Talking through those things is a great way to start the marriage. Be sure that you think about and discuss every asset and liability that you have now and anticipate having in the future. You might also consider discussing the way that you want other aspects of their marriage to work – e.g., whether one partner will stay home and raise the children while the other works.
- Listen to your partner’s concerns.
Goodman and Jacobson say you should be sensitive to your partner’s concerns and creative about finding solutions that might be better for both of you.
I have found that mediation is useful in making sure that find solutions that are sensitive to both parties. One of the more effective ways that mediators resolve cases is to use “interest-based mediation.” This type of mediation focuses on the interests that drive the positions that the parties take. The idea is that once the mediator understands the interests, then the mediator can help the parties generate solutions that address the interests involved. I use interest-based mediation when I mediate cases, and I am pleased with the results that I see.
- Leave room for change over time.
Goodman and Jacobson suggest that your prenup should leave room for change over time – e.g., increased involvement in a business, the decision to start a new company, or the decision that a partner should leave work to care for the children. “Think through all of these possibilities and create [an agreement] that is sensitive to various outcomes,” Jacobson says.
I think it is important to leave room for change. Moreover, I think the process of considering multiple scenarios gives you an opportunity to think about matters that you may not have considered. So I have no problems with the advice that Goodman and Jacobson provide.
In conclusion, Goodman and Jacobson provide some great tips for anyone thinking about asking for prenup. By following suggestions provided above, you can make asking for a prenup as stress free as possible.