@BLFblog

@BLF Blog

Mediation is an alternative to litigation

Recognizing that your relationship or marriage is coming to end is one of the most difficult decisions a person can make. Many people have an overwhelming sense of uncertainty for the future as they see their lives headed towards the turmoil of litigation over ending their marriage, custody of their children, and division of their property. There is an under-utilized alternative, however.

Mediation is a collaborative process involving the parties to a conflict work with a neutral third-party to come to an agreement as to all aspects of their conflict. In a divorce/family law case, an attorney who has been trained in the art of mediation can help you reach a comprehensive agreement that will avoid the uncertainty and cost of contested litigation.

Research shows that mediated agreements result in more satisfaction by the parties and a lower chance that they will return to court in the future. When parents raise their children together in a low-conflict situation, the children are more likely to grow up to become healthy, well-adjusted adults. The mediation process can help start you on the road to collaborative parenting. For more information, check out this article:

http://www.mediate.com/articles/HalemLCollab.cfm

If you or someone you know would benefit from a consultation to determine if mediation could work in your case, contact Bowers Law Firm at (318) 798-2540 to schedule an appointment. 

When is Awarding Custody to a Non-Parent Appropriate?

Under Louisiana law, it is extremely difficult to be awarded custody of a child if you are not the child’s parent. However, sometimes it is appropriate in circumstances where awarding custody to the parents would be harmful to the child.  

Recently, the Louisiana Second Circuit Court of Appeal decided just such a case. The child in question had been placed in the sole custody of her mother. However, the child had been living with cousins for a long period of time. The cousins eventually asked the court for sole custody of the girl.

At trial, the cousins proved that the mother had eight children in total. They were all being raised by someone other than the mother. There was a history of the children performing poorly in school. The child was left in the custody of the cousins for long periods of time with no assistance from the mother. The mother also made no effort to attend to the child’s diagnosed learning disability. When the child was living with the cousins, she did well in school and flourished. When she was living with her mother, her grades went from being an A-B student to failing.

The trial court and court of appeal agreed this was the kind of case where it was appropriate to award custody to the cousins to protect the child and give her the best chance at succeeding in life.

Cases like this are tough for the parties, attorneys, and judges. No one wants to take a child away from her parents. However, sometimes, that is what is required to give a child a chance to grow up in a happy, healthy environment. The courts did their job in this case in protecting that little girl, and they should be applauded.

Clinton BowersCustody
The Problem of Legally Presumed Fatherhood...

Louisiana law provides certain presumption as to who is the father of a child. Any child born during a marriage to the child’s mother is presumed to be the child of the husband of the mother. However, our law goes a bit further to extend this presumption to any child born within 300 days from the termination of a marriage.

Here is a scenario: Jack and Jane physically separate on January 1, 2016. They have a child under the age of 18, so they are not eligible to finalize their divorce until at least January 1st of the following year. In September, Jane commences a dating relationship with Bob. In spite of all precautions, in late November, Jane conceives a child with Bob. Jack and Jane are divorced on January 18, 2017. On January 30, 2017, Jane discovers she is pregnant with Bob’s child. She and Bob go their separate ways. Jane and Bob’s baby is born on July 25, 2017. Thus, 189 days have elapsed from the time Jack and Jane were divorced and the birth of Jane’s baby. Under Louisiana law, Jack is legally presumed to be the father of Jane’s baby even though they have been separated since January 1, 2016.

To most people, this scenario seems terribly unfair to the former husband. However, he is not without remedies. A man who is affected by this type of scenario must file an action to disavow paternity. The proceeding will involve collecting DNA samples from the alleged father, mother, and child for testing. If the former husband is not the father of the child, the DNA testing will exclude him from being the father, and the court will render a judgment declaring he is not the father of the child, thus releasing him from any further legal liability associated with the child.

Disavowal actions do not just involve the scenario of a child conceived after the parties have separated and/or divorced. A husband whose wife conceives a child by an adulterous relationship during the marriage can disavow paternity of the child even if the adulterous relationship doesn’t result in the termination of the marriage.

Time is of the essence in filing a disavowal action. The husband or former husband must file a disavowal action within one year of the date of the birth of the child. If the husband and wife were living separate and apart for a period more than 300 days prior to the birth, then the alleged father must file the disavowal action within 1 year from the date he was notified in writing that someone has asserted he is the father of the child. Failure to file a disavowal action within these time periods will result in the presumed father being “on the hook” for the rest of his life.

If you or someone you know is affected by one of these scenarios, it is important that you consult with an attorney to protect your rights. We are here to help you through these types of problems.  

What to Expect When Getting Divorced

One of the first questions that a person contacting Bowers Law Firm at the beginning of a divorce usually has is, “What can I expect?” Going through a divorce can be one of the most stressful experiences that a person will go through. Fear of the unknown only makes the situation even more stressful. So, I want to shed some light on the general steps that will take place.

Generally, most divorces in Louisiana are going to be “no-fault.” This means that you do not have to prove that your spouse did anything wrong. Rather, you only must show the judge proof that you have lived separately for a certain period of time. If you have children under 18, you must live separately for 365 days. If you do not have children under 18, the time period is 180 days. Once you and your spouse have lived apart for the required time, then either spouse is legally entitled to get a judgment of divorce.

When you first meet with an attorney to discuss your options, they will need to ask you for a lot of information to help them evaluate and prepare your case. Be prepared to provide them with information about when you were married, where you were married, whether you had a covenant marriage, whether you have children under 18, your income and employment information, your spouse’s income and employment information, your household expenses, property that you and your spouse have purchased since you were married, and the reason(s) that you or your spouse is wanting to get a divorce. This information is necessary for the attorney to properly evaluate your potential claims for child custody, child support, spousal support, division of community property, reimbursement claims, use of certain community property while the divorce is pending, and possible need for injunctions/restraining orders.

The first interview will probably seem rather overwhelming. Many times, clients are apologetic for being emotional or upset. However, that is a completely normal way to feel! My personal philosophy is that lawyers are a helping profession. We are here to not only help you understand your legal rights but also to help be a part of your support process as you go through this significant and life changing event. This is an obligation I take very seriously.

After the first interview, a Petition for Divorce is prepared for the client. The petition lays out all the client’s legal claims for divorce, custody, support, etc. Usually, this will also involve sending requests for information to the other side to help prepare for court. Once the Petition is filed, the judge will issue an Order setting a hearing date to hear the claims for custody, support, injunctive relief, etc. The Petition and Order will be served on the other person by the Deputy Sheriff or the other person can agree to sign a waiver of service. Typically, court hearings are scheduled four to six weeks from the date the judge signs the Order. During this time, the other side will usually file an answer to the petition and submit their own requests for information. This is called the discovery phase.

The majority of the time, cases are resolved by the parties on or before the first court date. The ultimate outcome of your case affects your life, so you are always the one who is in control of what steps are taken in your case by your attorney. It is our job to advise you. However, no attorney should ever be forcing to make decisions that will affect the path of your life.

This post is meant to give you a general idea on how the process works. If you have a specific issue you would like to see discussed (example: how does the court compute child support), post them in the comments below. Please be aware that I cannot comment on specific cases on this blog. We are happy to schedule a consultation with you to discuss specific questions about your case.

Thanks for reading, and come back soon!

Clint

Preparing for a Child Custody Battle...

No one wants to be caught up in a nasty child custody fight. It isn't good for anyone. It's not good for the parties. It's not good for the children involved. But, sometimes, there's no getting around a fight. We've learned through the years that the public has a misconception as to what matters in a child custody case. 

One thing to keep in mind is that there is no rule that says that the courts are to favor the mother. This so-called "maternal preference rule" has long been abandoned as discriminatory by our courts. The major consideration the courts consider now is "best interest of the child." This means, the court will weigh and balance a whole slew of factors when deciding to whom custody of your child should be awarded. These include evidence of love, affection, and emotional ties with your child; the length of time your child has lived in your residence; school history; physical health; mental health; the willingness of the parties to cooperate with each other; the previous responsibilities exercised by each parent; and the moral fitness of the parties.

The court can award joint custody, sole custody, or custody to a third party. Most cases are going to fall into the category of joint custody. However, there are some instances where sole custody is appropriate to protect a child's best interests. If you think you are going to be facing a contested custody fight, then you should consult with one of our attorneys who can help you review the facts of your particular case and develop a strategy that gives you the best change for a favorable outcome.

That's all for now! Stay tuned for more @BLF Blog updates!