Episode 76 - Lessons from Other's Family Law Challenges
Leh Meriwether: Welcome everyone, I'm Leh Meriwether and with me is Todd Orston. Todd and I are partners at the law firm of Meriwether and Tharp and you're listening to Meriwether and Tharp radio on the new Talk 1067. Here we learn about divorce, family law, tips on how to save your marriage if it's in the middle of a crisis and from time-to-time even tips on how to take your marriage to the next level. If you want to learn more about us you can always call or visit us online at atlantadivorceteam.com.
Leh Meriwether: Well Todd, are you ready?
Todd Orston: Oh, I'm excited.
Leh Meriwether: Why are you-
Todd Orston: I have no idea why. I'm just stealing your line.
Leh Meriwether: That's true, I do say that.
Todd Orston: All right. But, I'm still excited.
Leh Meriwether: all right. So today, we don't ... Today, we don't really have any specific topic in mind. On occasion, we like to just pick some random questions that we've come across either from the internet and that sort of thing and just, answer them on the air. Because, as you've said before, we can learn ... Often, you can learn how to handle a situation by hearing about someone else's challenge or whatever they may be going through and how best to handle that.
Todd Orston: Well, I mean that's one of the primary purposes of the show. all right, we want to educate people and sometimes, we just talk about a topic. Sometimes, it's better, and we've done this several times now but it's better to take real world examples and then, explain how we as attorney's would analyze those problems. What kind of advice we would give and offer ... and what kind of assistance we would offer.
Leh Meriwether: So, I am picking some random questions, and neither Todd nor have I, have seen these questions before this show.
Todd Orston: I feel like I'm on a game show. Seriously. You can't back in two and two.
Leh Meriwether: You can't phone a friend on this show.
Todd Orston: I can't phone a friend?
Leh Meriwether: No.
Todd Orston: Well then, don't get angry if I get it wrong.
Leh Meriwether: Okay.
Leh Meriwether: All right, first question-
Todd Orston: Texas. That's not the answer.
Leh Meriwether: No. It's not Jeopardy.
Todd Orston: Right.
Leh Meriwether: Oh yes, you have to say what is the question.
Todd Orston: Did I buzz in too quick?
Leh Meriwether: Yeah, you buzzed in too quick.
Todd Orston: Okay.
Leh Meriwether: All right. So, Here's the question, a little bit different. Are you ready?
Todd Orston: I'm ready now.
Leh Meriwether: Okay, good.
Leh Meriwether: "How do I get legal custody of my grandkids. Me and my mom have been taking care of my two grandkids ever since birth, one and two. The other one, my daughter wants to come by and snatch them up," Now, I'm just reading the question as I see it.
Todd Orston: Yeah, yeah, yeah.
Leh Meriwether: "Snatch them up when she is ready and she does nothing for them." So, it sounds like the questioner has been taking care of their grandkids with the help of her mom. So, I guess there's a great-grandmother involved. The mother just shows up randomly, takes them places and then drops them back off. Sounds like she's being the fun mom, for this question, and leaving the grandparents to take care of everything. So, how do they get legal custody?
Todd Orston: Texas?
Leh Meriwether: No.
Todd Orston: All right. We're talking about grandparent visitation here.
Leh Meriwether: Or grandparent custody.
Todd Orston: Or custody. But to get to grandparent custody, basically you're going to have to jump through a whole bunch of hoops to terminate the rights of the mom.
Leh Meriwether: Right.
Todd Orston: All right. So the grandparents in this case is-
Leh Meriwether: If you do an adoption you do.
Todd Orston: ... Correct. Right, but you're not going to get to the adoption until the rights of the mother, the biological mother are terminated. That's what I'm trying to say.
Leh Meriwether: Right. If you go that route.
Todd Orston: One thing I would talk to this person about, hold off on any fights to try and adopt. In other words, if the biological mom is reluctant to give up rights, meaning to wave any and all of her rights to that child to pave the way for an adoption, you may want to start with a guardianship. By starting with a guardianship, the good thing is ... jumping back in time a little bit, it used to be that you could allow a guardianship. Let's say the biological mom could allow the guardianship to be put in place, and then simply by writing a demand letter, it would terminate that guardianship. Now it's not like that. Now, basically the mom would have to work it out with the grandparent or if the grandparent says, no I don't think you're stable. I don't think it would be in the children's best interest, then the biological mom would have to go to court to basically terminate that guardianship.
Todd Orston: That would give the grandparent some legal rights. It doesn't go all the way to that level of trying to terminate the biological mother's rights, which is really, that's a big step. That's really hard to do because you're going to have to go in, and first of all you're waring against your child, right?
Leh Meriwether: Right.
Todd Orston: You're going to have to prove that the biological mom can't take care of this child, has for all intents and purposes abandoned that child, and that therefore the court should now formally terminate or sever the relationship, the legal relationship between the biological parent and the child.
Leh Meriwether: Yeah. There's actually multiple paths that can be taken, at least hear in Georgia. This next statement is focused solely on Georgia, but we've seen people take what's called private DFACTS actions, Department of Family and Children's Services, that's what they call it here in Georgia, every state's got something similar. So, they bring a private action through that government agency to say the child is dependent on the state, and then the state will place the child with the grandparents, but the thing in that situation is the state's goal is to reconcile that relationship, so they are going to put mom in a place where she can work towards being the primary custodian. That's one way then-
Todd Orston: Yeah, it's basically a reunification plan.
Leh Meriwether: ... right, a reunification plan, so that's one step if they worried that maybe mom's going to suddenly take off to another state with the kids. That's one option. Then, you have the permanent guardianship which you can file in Georgia ... I think it can even be filed in probate court, and then you've got the adoption which terminate the rights, and then you can also bring a third party custody action.
Leh Meriwether: There all under different statutes that would, basically, where the grandparent, at that point, sort of steps into the position of one of the other parents and says, "Hey, I want primary custody, and give mom just visitation rights." So, multiple paths to get there, and you need more details set aside to help figure out which is the best path to take in this sit- [crosstalk 00:07:03]
Todd Orston: Right, and it's also, "Do you have the stomach for the big fight?" The DFACTS assisted action or going straight to juvenile court trying to terminate the biological parents right, that's the bigger fight. That's a very, very steep hill you're trying to climb. The guardianship, that's a more passive approach where you can basically get some rights, and hopefully, you can even get those rights by negotiating directly with the biological mother who might not feel as threatened, right? It might be like, "Look, you just want to do a guardianship, so you can get them into school, and you can make some decisions when I'm off doing whatever it is I'm doing." "Okay, fine, I'll do that." Ah-
Leh Meriwether: The other advantage about permanent guardianship is that you can put the kids on your insurance, too.
Todd Orston: That's right, that's right. So, there are benefits to establishing the guardianship, and it's also ... hopefully, the biological parent isn't going to feel as defensive,-
Leh Meriwether: Right.
Todd Orston: ... and isn't going to immediately going to say, "I'm going to fight you, I'll see you in court." Because,-
Leh Meriwether: Exactly.
Todd Orston: ... really, you're not terminating, you're just establishing some rights for the grandparents.
Leh Meriwether: Right. Now, I've got another question that's come up. It's not exactly in our wheelhouse, but I think you and I know enough to answer this question. It's phrased under family law, but let me read this to you.
Leh Meriwether: "What do I do about a verbal agreement and one witness? My mother passed away, but before she passed away, she had a talk with my stepdad and her kids separately. She stated to me that my brother, her and my step dad had talked about what she wants to do with her money. She was leaving her Social Security, pension and 401K to her kids. She also stated that my stepdad agreed to giving us everything, and he stated to her didn't want any of the money. Now she has passed, at first he acknowledged he remembers the conversation he had with my mother, and stated he was going to give me and my brother all my mother's money when it arrives. Now that he actually has the money, he is stating that he will keep the pension, Social Security, but we can keep the 401K and split it. We have him on recording stating he would give us the 401K, but when we mentioned he had with his mother about all the money, he does not respond. Can we take this info to court and get what is rightly ours?"
Todd Orston: My quick response would be no.
Leh Meriwether: Yeah.
Todd Orston: Because, unfortunately, and again, we are speaking as to Georgia law.
Leh Meriwether: Yeah.
Todd Orston: But, this I believe is going to apply, and I'm not stating for sure, but this is probably going to apply in most states. That kind of agreement isn't worth the paper it's written on.
Leh Meriwether: Yeah.
Todd Orston: And-
Leh Meriwether: There is no paper.
Todd Orston: ... And, there is no, right exactly. [inaudible 00:09:49] So, unfortunately, that kind of promise is not going to be binding. Even if, grandma had written something out in her will saying I'm giving everything to my kids, the stepfather, her husband, would still have a right to step in and try to fight against that, because he had rights to the marital estate. Just by virtue of the fact, maybe, that his wife wrote out a will and gave everything away, doesn't necessary mean that all of that property is going to get given to other people.
Leh Meriwether: Right.
Todd Orston: So, unfortunately, all of these verbal promises that were made, even though you have it recorded, it's not going to be binding. It doesn't rise to level of a contract that you could then try to enforce.
Leh Meriwether: Right. Now, there might be some little nuance in estate law that we're not aware of, because we don't litigate these things. But, I brought this question up because when we get right back, I want to talk about the learning lessons we can have ... anyone listening that has just gone through a divorce can take from this problem scenario right here. We'll be right back.
Leh Meriwether: Welcome back everyone, I'm Leh Meriwether and with me is Todd Orston. Todd and I are partners at the law firm of Meriwether and Tharp, and you're listening to Meriwether and Tharp radio on the new Talk 1067. Well, today we are talking about, well, just all kinds of things.
Todd Orston: We're just talking.
Leh Meriwether: We are just talking. Actually, we are taking questions that we've gotten over the internet, and we're sort of breaking them down, taking learning lessons from the situations because some of these situations are very unfortunate. Take this opportunity not to just talk about the law, but perhaps to talk about ways to avoid the unfortunate situation.
Leh Meriwether: When we left off, we had come up with a ... It was somewhat out of our wheelhouse, but I thought it was a good opportunity to talk about a certain scenario. It was about estate issue. So, the mom had passed away, and stepdad, the person asking the questions remembers their mom saying this is how she's going divide up her money, but apparently there was never a will put in place. Estate law kicks in at that point, and it tends to go to the spouse, but more so than that, if there's a pension or a 401K, and this is where it comes in to the planning. In those documents, you state who you want the beneficiary to be. So, a pension, 401k, life insurance, you state where that money is going to go inside those documents, and that's what's controlling. If you have in a 401K that it goes to your spouse, that's where it's going.
Todd Orston: Where people have gotten in trouble, where I've seen people get into trouble, they're on marriage number two or marriage number three, they have a pension where they originally did the paperwork and it was for spouse number one.
Leh Meriwether: Right.
Todd Orston: They are, again, now on marriage number two or three, and ... or they get sick, or they pass away, and all of a sudden, you look at those documents, and all the documents name the beneficiary as spouse number one.
Leh Meriwether: Right.
Todd Orston: It never got changed or modified. These are the types of things you have to be aware of. When people get divorced, unfortunately, there's so much you need to think about, sometimes people are just so happy to be through the process, and they're done and they can breath again. The problem is, some of the heavy lifting doesn't occur until after the divorce is finalized. That's when you have to make sure all the i's are dotted, t's are crossed, and you've handled all of these tangential issues that always come up.
Leh Meriwether: Right, so we've got an attorney in our office that handles wills. So, when we strongly encourage our clients to ... One of the things is rewrite their will, because that's a significant change in circumstances. You want to go rewrite your will, you want to change what's in it, you want to change who gets what. You want to wait until the divorce is over with before you do that. Then, at the same time, update your 401K as to who the beneficiaries are. Update your life insurance policies as to who is going to get that money, and if there is a pension, same thing. Any sort of documents where, when you were filling them out, they asked, in the event of an emergency who do we contact, you've got to update all those documents across the board.
Leh Meriwether: I think we are going to have a show, hopefully this summer, where the attorney handling our wills, her name's Sarah Kass, I think she agreed to come on the show. So, we will take a deeper dive in there.
Todd Orston: Yeah, and let me also say this, you made a point about waiting until the divorce is over with to change your will. That's not just a soft suggestion, okay? I've actually seen cases where someone changed their will during the pendency of a case, and it became an issue that had to be litigated. The issue becomes, well God forbid the person dies, God forbid something happens, now the will has been changed. That could impact equitable division claims and things like that. It became a big fight over whether or not that needed to be changed back, or, in essence, the new will just ripped up. So, you've now spent all of this time, money and effort changing a will that you may have to destroy, because it was untimely. You just did it at the wrong time.
Leh Meriwether: And not to mention, you're now spending money litigating it too.
Todd Orston: That's right.
Leh Meriwether: Definitely want to wait until your case is over with.
Leh Meriwether: All right, so here's the next one. I think it's a good one.
Leh Meriwether: "Can I file for child support if his father has never seen or had anything to do with him? My son is almost 11 years old, his father literally walked away when I told him I was pregnant. He's never seen him, contacted him, or had any part of his life. Can I file for child support now, and would he be entitled to pay some sort of back pay?"
Todd Orston: Yes. I'm out, I'm done. That's an easy one. The answer is absolutely, at anytime prior to the child being emancipated-
Leh Meriwether: Right, turning 18.
Todd Orston: ... you can pursue child support. You can do that through child support services. You can file your own child support action with the superior court. So, the answer is absolutely. Now, there are some nuances here, some other things you need to think about here. I'm just thinking about questions that people call with. "Can I get 11 years worth of back support?" I'll throw that one back at you.
Leh Meriwether: So no, and here's why. It goes to why you said, as long as you ask for while the child is under 18, because you can only get child support from the date you have a court order going forward. Now, you can get some funds back, for instance-
Todd Orston: Birthing.
Leh Meriwether: ... birthing costs, hospital bills associated. You can get that money back, and there's some argument out there, there was a case somebody mentioned the other day that I'd actually never seen before, but during the pendency of the case, you can get some sort of back support inside that case or something along those lines. I haven't seen the case, so I've got to read the case.
Todd Orston: It's very limited.
Leh Meriwether: It's very limited.
Todd Orston: It's absolutely limited, so you need to be thinking, "If I'm going to get child support ..." You need to act quickly.
Leh Meriwether: Yeah, don't wait.
Todd Orston: That's why we usually tell people, "Do not wait."
Leh Meriwether: Yep.
Todd Orston: Whether the person is a deadbeat, and that's sad, it's horrible, right?
Leh Meriwether: Horrible.
Todd Orston: It's unfortunate for the child or children, but that does not relieve that parent of their ongoing duty to financially support the child or children. Act quickly, end of story, you're going to get an award of child support.
Leh Meriwether: All right, "Is there a specific time period a person has to wait before moving in with a significant other after a divorce with children. My boyfriend wants me to move in with him and his daughters. We have both recently divorced, and I have a son. I just want to make sure our ex spouses have no legal ground to take us to court if we decide to move forward with this next step in our lives."
Leh Meriwether: You want me to take that one?
Todd Orston: You can, I mean, the only comment I will make is you can sneeze the wrong way and find yourself back in court.
Leh Meriwether: Yeah.
Todd Orston: And so, my quick comment, and then I'll pass the mic, is that common sense has to play a big part here. There is no rule that says you have to wait 24 hours or 24 months or whatever. The next day could be appropriate. I've had situations where a case was pending or a separation had occurred two years earlier, and everybody was comfortable with the person who was stepping into the shoes and was going to then be the, let's say, the mother's or the father's significant other. Therefore, cohabitation was reasonable. Okay, but there are other situations where if ... It basically comes down to, "Are you doing something that could either endanger a child or just it's an unwholesome, not a good situation for a child." You need to then think about it in those terms, and take it slowly. Introduce the child. In other words, you shouldn't say, "Oh, hi Bobby. Listen, I want to introduce you to Carl. Uh, he's my boyfriend and he's moving in tomorrow."
Todd Orston: That might result, in you know, Bobby going, "Hey daddy, I just met Carl who lives a door down from me." You may find yourself in court. So, you know, just common sense.
Leh Meriwether: So the only thing, I would add two things to that. So the first thing I would add is does your parenting plan include a morals clause? So that's a term that they use. They are clauses that are putting settlement agreements in parenting plans that say that, so long as the minor child is that the house of the parent, the custodial parent at the time, there'll be nobody over unless they're related by blood or marriage.
Leh Meriwether: So in that situation, which is the reason I do that sometimes is to block these types of things. If that's in there, you will find yourself in contempt of court. Now that may not be enough for somebody change custody, because people have actually filed for that to try to change custody just because of the boyfriend or girlfriend moved in. Back to your point, you can-
Todd Orston: But, you're in court.
Leh Meriwether: ... yeah, but you're in court, and you're spending money and you're fighting. So, usually what I say is first off, double check that you don't have a morals clause, because if you do, you can't do it. Unless you want to spend a lot of money in court and potentially face contempt of court charges. And number two, you know, going back to trying to be reasonable, you know, reach out to, if this is a relationship you've had for a significant period of time, at least six months, at least six months, I'm not a big fan of moving of boyfriends and girlfriends moving in together anyways because of the statistics on the likelihood that relationship lasting. It's not very good. I'm just being honest. The statistics don't lie. It's, you have a very low chance of that relationship lasting.
Leh Meriwether: So just throwing that out there, but you know, have a conversation with your spouse or your ex spouse, I should say the other parent and say, "Hey, look, I've been dating." What was his name? Bobby.
Todd Orston: Carl.
Leh Meriwether: Carl. "I've been dating Carl for a year."
Todd Orston: Pay attention Leh, come on.
Leh Meriwether: I'm sorry.
Todd Orston: You've known Carl forever.
Leh Meriwether: "Bobby really likes Carl, and times are tough and I'd save money if we moved in together, it's a serious relationship. I think we're going to take to the next level." You know, you sort of give them a heads up, and if you have a good relationship with the other parent that sort of minimizes the chance that someone's going to pull you back into court.
Todd Orston: What else could land us in court? Is that a good segue?
Leh Meriwether: Yeah, so just not making sure we don't cut into certain time limits we've got. So Hey, when we come back we're going to keep talking about all kinds of family law problems.
Leh Meriwether: Welcome back everyone. I'm Leh meriwether and with me is Todd Orston. Todd and I are partners at the law firm of Meriwether and Tharp. And you're listening to Meriwether and Tharp radio on the new Talk 1067. If you want to learn more about us, you can always call or visit us online atlantadivorceteam.com.
Leh Meriwether: Now this whole show, we've been just taking all kinds of questions on various subjects relating to family law, even one not related to family law, only so we could learn from that and have an opportunity to teach about things you should do at the end of your divorce. Make sure you've taken care of certain documents that aren't necessarily addressed in the divorce, but that you want to make sure somebody doesn't get the money, doesn't get certain kinds of money like 401ks and everything in the event of your death.
Leh Meriwether: So-
Todd Orston: I don't want to brag, but I think I have the high score. Is this. I didn't know this was a game show, all right.
Leh Meriwether: According to my records, you're losing by like three points.
Todd Orston: Recount.
Leh Meriwether: All right, so I got another question.
Todd Orston: All right.
Leh Meriwether: My question is, "What can I do to get her back?"
Todd Orston: Change you.
Leh Meriwether: "The father of my child took her and won't give her to me saying he's filing for custody. What can I do?"
Todd Orston: If I had a nickel for every time we got those calls and spoke with those clients and represented people in that situation. It sounds like, and I'm going to make some assumptions here, they're not married, and if they're not married than usually what I explain to people is until such time as the father legitimated the relationship, that in essence creates the legal relationship between the father and the child, the mom automatically has a legal relationship. Until that time, then what should be happening, and the law basically supports, you should be able to walk over and take your child. If he won't give you your child,-
Leh Meriwether: Call the police.
Todd Orston: ... the police should be assisting you. Now, I have recently spoken with not only clients, but I had a terse conversation with a police officer who was saying it's a civil matter.
Todd Orston: "You know that your client, the mother can file something." Well, no, Sherlock Holmes, okay? That's not the way it works. The law supports the mother in a situation where no legal rights have been established and the police should be, and I'm stressing that word, supporting the mother and helping to retrieve the child. The problem is sometimes the local police don't either want to get involved, or they don't really understand the law.
Leh Meriwether: Well, they're not lawyers, they didn't go to law school.
Todd Orston: Yeah, they think of it in terms of both parents. You know, "You acknowledge he's the biological parent. Okay, well then you both have equal rights." That's not under Georgia law. That's not what the law says. So in a perfect world, you should be able to contact the police. If the police literally will not help you, you may have to actually ratchet it up and go to the GBI and contacted GBI and say local police are refusing to assist me in obtaining my child, and no legitimation has occurred, and basically he is refusing to return my child.
Leh Meriwether: Right.
Todd Orston: But other than that, really you have, the mother, has absolute legal right and the only legal right to have, basically possession in custody of the child.
Leh Meriwether: Right, and without, without father having any sort of legitimation period.
Todd Orston: Correct?
Leh Meriwether: Yep. You know, sometimes maybe, you know what, I got an idea. You can do-
Todd Orston: Ugh, we're in trouble.
Leh Meriwether: How about as a public service you go teach the police officers this area of the law?
Todd Orston: Uh, like I said, that was an interesting conversation that I had with that officer because the, the depth or how about this? The, that officer, in particular, clearly did not understand the law. And it was, sad because there was a frantic mother who was seeking help and could not get any help. And by the way, we represent tons of fathers in those situations. The difference is, we advise them properly. We tell them what they can do to establish those rights to-
Leh Meriwether: Go to court first.
Todd Orston: ... Absolutely, and you do the right thing. But when you have a mother, especially if it's a father who really has had little to do with a child that just comes in and takes a child and says, nope, you're not getting the child back, or situations where I've seen them removed from the state with fears of being removed from the country. And a mother can't get any help that, that's a shame.
Leh Meriwether: I had one, one of my first family law cases, gosh, this was almost 20 years ago, was involved.
Todd Orston: You are old.
Leh Meriwether: Thanks.
Todd Orston: I'm sorry, I should have waited until the show was over. My bad.
Leh Meriwether: Just try to keep up with you Todd. So, what happened was the father had never legitimated, but mom didn't know about that process, so she was. But she was trying to let the father be involved in the child's life. Well, one day the father just takes off, and the police didn't do anything about it. So she came to me, "How do I get my child back?" We finally tracked him down by using the school system. He'd gone moved in New York, but we found her name. Thankfully he didn't change her name or anything. We were able to find where she was in New York, and then we file an action here in Georgia because that's where the child had lived. Then all of a sudden we have two states fighting where, who, what should be controlling.
Leh Meriwether: Thankfully, I convinced the judge here in Georgia to call the judge up in New York and convinced them the judge up there that Georgia was a proper jurisdiction, explained how he had no legal rights because he had never legitimated. And so the court in New York released jurisdiction of the case, and it came to Georgia. The Georgia judge issued an order demanding that he immediately released the child. She got that order, got a certified copy, drove up to New York, and thankfully the New York police department and enforced the order, honored the order and went with her to pick up the child, and brought her back.
Todd Orston: Yeah. But that's months of litigation.
Leh Meriwether: Oh my Gosh.
Todd Orston: And, that's the sad part. The sad part is it shouldn't take that much time in that much effort just to get your child back.
Leh Meriwether: Yeah.
Todd Orston: And, I understand in every situation, the police can't go racing around searching, you know, scores of homes and whatever, trying to find the child, but-
Leh Meriwether: You know, in some respects, you know, you're almost better off convincing ... if you've got a father that somewhat involved. Okay, convincing him to go ahead, and let's do a consent legitimation, and come up with a parenting plan so you have a court order that says that dad has this time with the child or children, and mom has this time with the child or children. That way then, it's clear you can take that order to the police, and they will tend to enforce that more often,
Todd Orston: If you are going to be the parent, which you should be, that promotes that contact between the unlegitimized father and a child or children, then you absolutely ... I agree with you 100%. Then absolutely need to do it. Now, there are some people, where father is not involved and they're like, "I'm actually happy with that fact because they're a deadbeat or whatever."-
Leh Meriwether: Glad.
Todd Orston: ... and in that case then you know, I'll often tell people, well then you have to be careful what you start. If you do open up that Pandora's box, if you go after, sometimes we'll have to have that conversation, if you go after that person for child support, a lot of times the retaliation move,-
Leh Meriwether: Oh yeah.
Todd Orston: ... is to fight for custody, so you have to be careful what you do, what you initiate and what kind of action you file because, there may be a result, okay, that you weren't anticipating.
Leh Meriwether: So. all right. all right. Here's another one.
Leh Meriwether: "Do I need counsel to file contempt of court? I have a court ordered visitation rights to see my child, but his mother has done everything possible to keep me away. When he got taken, I tried reaching out to my son that same day, and I was unsuccessful three times. His mother went to her attorney about calling, and he said I was interrupting their bonding time, and if I didn't stop then he would revoke any rights I have. I've spoken to other attorneys, and each of them had told me to pretty much give up fighting period, and if I refuse to do that to my son. His mother is leaving our 10 year old son home alone for hours so she can go to work or to the club. I'm worried about my son's wellbeing," and it goes on and on, but let's go back to the initial questions.
Todd Orston: But yeah, the initial question is, "Do I need an attorney?" The answer is no. Right? I always tell people, "Do you need an attorney to bring any kind of inaction?" No, there's no legal requirement, but the analogy I sometimes use is, "Do you need a dentist to pull a dead tooth?" No, you don't. You're going to experience a lot more pain if you try, and do it yourself.
Leh Meriwether: Yeah!
Todd Orston: So, you may experience a lot more pain trying to-
Leh Meriwether: If you do it real quick. Is that okay?
Todd Orston: All right. You and all your woodworking tools. I'm sure you could. You could do it, but you understand the point. The point being that having an attorney help you, they're going to understand the system. They're going to understand what should be said, shouldn't be said, what should be filed, what shouldn't be filed. You're going to experience, hopefully, a lot less pain than if you try and circumnavigate that court system on your own.
Leh Meriwether: And I will say, I'll add this one more thing. Maybe this questioner, or this father, just is low on money and can't afford an attorney. At a minimum, at a minimum, organize everything you've got, and go have a consultation with a lawyer. Just say, "Here's my situation. I can't pay for the lawyer's time, his or her time," and sit down with them and say, "Here's the situation, here's my court order." Show up very organized and say, "How do I go about seeing my son? What should I file?" And most attorneys, most of them will help you. I mean, I met with someone recently that-
Todd Orston: Yep.
Leh Meriwether: ... that they did that, that exact same thing and I was able to actually, while I was in the meeting, drafted a blank form for them to use and they just filled in the details, put their name at the bottom. We didn't put our signature on it. And, he's going to come back after he files when it's time for a court appearance. So I mean that you don't necessarily have to fully engage a lawyer, but at least consult with one.
Todd Orston: There are other options.
Leh Meriwether: Other options.
Todd Orston: Yes.
Leh Meriwether: Up next we're going to address a question from someone who has a domestic violence situation, and part of their question is could they be facing real jail time?
Leh Meriwether: Welcome back everyone, I'm Leh Meriwether and with me is Todd Orston. Todd and I are partners at the law firm of Meriwether and Tharp, and you're listening to Meriwether and Tharp radio on the new Talk 1067. If you want to learn more about us you can always call or visit us online at atlantadivorceteam.com.
Leh Meriwether: Well, when I left off, we were talking about a question that come across about domestic violence. At least it appeared to be domestic violence, and the question was, "could I be facing real jail time? I don't know what to do and I've been to jail before ..." and I on the break, I tried to read the question, and it didn't really make sense.
Leh Meriwether: So I'm not reading the question on the air, and I'm going to decipher, what I think the questioner is asking. So, this gentleman was at a club where there appears to be an ex-girlfriend, and he was there with some friends that got into it at the club. What's unclear as where they every living together, but outside the club, I guess they got into it again, and she pulled a pistol on him, and they just walked away. The next day apparently he ran into her again, and she pulled a pistol on him again, and her new boyfriend said he was calling the police to have him arrested. So, now he's very nervous.
Todd Orston: And the question was, can I be facing-
Leh Meriwether: Could I be facing jail time? And this-
Todd Orston: Okay, the good thing is, as convoluted as that is, simple answer. No. I mean a with-
Leh Meriwether: If his story is true.
Todd Orston: Now on the criminal side, I mean, if there's, if there is an allegation that rises to the level of criminal conduct, could he be charged with a crime or arrested or arraigned, and ultimately potentially convicted of a crime that could result in jail time? Yeah. I mean, if the facts and evidence are there to support that kind of a criminal action. If what we're talking about is a temporary protective order-
Leh Meriwether: Right, because-
Todd Orston: ... then the answer is no, because protective orders, it's a civil matter, and jail is not an option. It's not an issue.
Leh Meriwether: At least for the first hearing.
Todd Orston: For the first hearing, well even for the last-
Leh Meriwether: But, if you can if you violate-
Todd Orston: ... if you violate it-
Leh Meriwether: ... then you got to go.
Todd Orston: That's the teeth in the Family Violence Act statute has to do with noncompliance with the ultimate, with the final order, or even the temporary order, the ex parte order. If you violate the order of the court as it relates to a family violence protective order, it can result in them bringing criminal charges against you for aggravated stalking, which is a felony and more often, I mean more and more I am hearing about cases where not only are people being charged with that crime, but the prosecutors and the prosecutor's offices are actually moving forward with the prosecution of those crimes, asking for jail time.
Todd Orston: So. the answer is if this is the first... I mean this is just the case.
Leh Meriwether: If she's filing a family violence protective order against him, all it's going to say is stay away from her.
Todd Orston: It's going to be a stay away order. If you violate that stay away order, then you could be opening yourself up to real problem.
Leh Meriwether: Take this little nuance, in this case, he apparently ran into her the next day. So they live in a very, they live in a common area. I think they even ran into her somewhere near a gas station. So, clearly they live close to each other. Here's one thing, and we had this in a case before, what we have to tell the client is, "When you see ... if y'all shop at the same grocery store, you can't shop there anymore."
Todd Orston: You're talking about, right? You're talking about if you go to court, if it is for a family violence protective order, if the court finds that there are grounds,- [crosstalk 00:37:27]
Leh Meriwether: Even on an ex parte where you haven't had your day in court.
Todd Orston: ... Correct. Then, absolutely, you need to ... Look, it's self preservation.
Leh Meriwether: Yeah.
Todd Orston: He's just got to think of it that way. Would you rather just, you know, say, "You know what, I'm not leaving. I was here first." and then potentially, you know, the police show up and go, "Ah sir, you're within a 100 yards," or whatever it is. "Uh, we're arresting you." Do you want to take that chance? Now we have. I've also told people though, look, the best practices get up and leave.
Leh Meriwether: Yes, leave.
Todd Orston: But I've had situations where I had a client who was literally at a restaurant eating, and we believe, purposefully, the other party that had taken out the TPO that they had this TPO walks into that restaurant, makes eye contact and still sits down and you know, and basically get served. So the question then becomes, okay, do you need to literally just, even though you're two bites into your meal, raise your hand, say check please and flee the restaurant. Best practice. Unfortunately I have to say yes. Whether or not-
Leh Meriwether: And at the same time, get the name and telephone number of the waiter and oh, who are the managers at night.
Todd Orston: Great advice, absolutely.
Leh Meriwether: Because I've had that happen, and then they filed for a violation the next day.
Todd Orston: Yeah. If you don't leave immediately, then you better have some evidence to show that you know, you were there first, and basically it just would've been unreasonable. And then maybe you're ... but you're taking a risk here, maybe if she calls the police and the police show up and you explain all that to the police, maybe you get some reasonable policemen, and maybe if they don't arrest you, you get a reasonable prosecutor, who is going to say, "You know what, I'm not doing anything with this. That was unreasonable for you to come into the restaurant when he was already there."
Leh Meriwether: Yep.
Todd Orston: And, you're taking a chance.
Leh Meriwether: The judges don't like that either.
Todd Orston: Yeah.
Leh Meriwether: All right. This one should be quick. "How do I get my daughter back? My daughter has lived with her father for the last three years, and she's 14 and wants to live with me now."
Todd Orston: Election, okay so-
Leh Meriwether: Which is only in Georgia.
Todd Orston: Right. So in Georgia, there is the 14 year old election. Now it's 14 years or it says 14 years, but it actually starts at age 11, where the court can start to listen to or will start to listen to the opinion of a child as to who the child wants to be the primary parent.
Todd Orston: All right, at 11 court's going to give a little bit of weight to the opinion as the child gets older, more and more weight is given to that opinion. At no time ... It used to be where it was, you know, basically if a child said, this is what I want, it was almost that the judge was, absent some showing that that would really be harmful to the child, the judge was almost obligated to do what the child wanted. Now it is, and always remains an opinion, but the court is going to put a lot of weight and give a lot of weight to the opinion of, especially in older child who says, I'd like to live with one parent or the other.
Leh Meriwether: All right, another quick question. It actually goes in line with a one we answered earlier, just a little bit different twist. "Can I have the survival benefit pay modified so that my current wife and children get my death benefit." Here's the catch. "My spouse was awarded, my ex-spouse was awarded, survival benefit pay in our divorce. I've remarried and have three kids. Can I have the survival benefit pay modified to pay out to my current spouse and kids if I pass away?
Todd Orston: That is talking about outside of wheelhouse. I'm not exactly sure, but I can tell you some of the problems that I've seen. Some of these plans almost ignore the fact that people get divorced. They just don't think of it, or they just choose not to deal with it. Because I have seen some people go back and say, I'd like to change the beneficiary and have to jump through a whole bunch of hoops because they're saying, "No, no, no. At the very ... here's the rules. At the very beginning you needed to name your beneficiary, and then it remains that person forever. You can't change it." Okay, which doesn't make sense if you know you did that when you were married to somebody, and now you are getting divorced and you clearly don't want that person to remain the beneficiary. Technically, I would say, I believe you can. What the process is, I'm not sure.
Leh Meriwether: Well now, you may not have heard this part. So, the former spouse was awarded the survival benefit pay. So it's a court order.
Todd Orston: Oh, I didn't catch that. See, I lost the game.
Leh Meriwether: Booyah. I win.
Todd Orston: Boyhah. He wins. All right, well then that's much different. I mean, at that point, obviously if somebody is awarded an asset then you can't do anything to interfere with that person's ownership of that asset and you have to do everything if it's not in that person's name. I can tell you right now, most agreements, good agreements, all good agreements are going to say you need to cooperate and do whatever is necessary to effectuate the enforcement of that order. So if you have to sign documents, whatever you need to do, you need to do it. Otherwise you could be held in contempt.
Leh Meriwether: Yeah. So there's two quick scenarios I want to run. First, the learning lesson here, because this person's even asking this question, is if you are the spouse that has receiving a benefit, you need to take special action to make sure that benefit is secured. Now I can't tell you what specific action that is, because every situation is different, every pension is different-
Todd Orston: The federal industry is different.
Leh Meriwether: ... the federal government's slightly different than the Air Force. I mean there's nuances in that when it comes to like military retired benefits or survivor benefits, pension survivor benefits, but you need to go whoever the plan administrator is, and submit your court order to them to make sure they cannot, somebody cannot change it later. If you do change it later, if this person asking where to change it, what would happen is you could be subjecting your, let's say the other person didn't take action on it, you could be subjecting your new wife and children to a lawsuit, because they could get sued because he violated the previous court order.
Leh Meriwether: And, you don't want to do that to your kids and your spouse. So, that needs to be something else that's figured out there.
Leh Meriwether: Hey everyone, well, that about wraps up this show. If you are enjoying this show, do us a favor, our show is actually, you can find it not only in their station but online, in iTunes and most podcast directories, write us a five star review.
Leh Meriwether: If anything less than that, don't bother you.
Todd Orston: Or six-
Leh Meriwether: Or six.
Todd Orston: I mean, if you can add an extra star go for it.
Leh Meriwether: That would be great. Hey, and if you want to read more about us and, and find out more about family law, check us out at atlantadivorceteam.com. Thanks so much for listening.
Leh Meriwether: This audio program does not established an attorney client relationship with Meriwether and Tharp.