Thursday, December 11, 2008

Grandparent Visitation and Custody

I often receive calls from grandparents wanting to know how they can acquire visitation rights with a grandchild, or even custody. It is not an uncommon situation for these grandparents to be providing the majority of the daily care for their grandchildren.


The statute provides that, under certain circumstances, any grandparent, great-grandparent, or sibling may file a petition for visitation rights to a minor child if there is an unreasonable denial of visitation by a parent. The petitioning party must show that the denial of visitation is harmful to the child's mental, physical, or emotional health.


It is becoming increasingly hard for parties like grandparents and step-siblings to convince a court to order visitation and/or custody. This is evidenced by the recent court opinion in Flynn v. Henkel, where the court ruled that the absence of the grandparent-grandchild relationship, by itself, is not harmful to the child's mental, physical, or emotional health. Personally, I disagree, but my opinion does not matter. However, courts have granted grandparent visitation in instances in which the children have developed a strong bond with a grandparent, such as where the children have lived with a grandparent for a significant period of time.


Grandparents seeking custody of a grandchild often face an equally daunting task. To a non-parent seeking custody, the issue of standing is critical. Standing means the power to bring a particular type of action. A non-parent seeking standing under the statute has the burden of showing that the child is in his or her physical custody, which requires that the child's parents voluntarily relinquished custody of the child to the non-parent. See Franklin v. DeVriendt.  The voluntary relinquishment by the parents to a non-parent must be clear and definite.  See In re Kirchner; In re Marriage of Dile (father did not relinquish custody by agreeing to allow grandparents to retain possession of the child temporarily). If the non-parent cannot establish standing, then he or she must plead and prove that the parents are unfit to have custody of the child. As you can imagine the he-said/she-said that occurs in custody disputes, standing is often hotly contested. If the grandparents are successful at defending their standing, the court then considers the best interests of the child in question.


Personally, I think that grandparents should be able to take more of a role in the lives of their grandchildren. But until things change in the current statutes and case law, grandparents face an uphill battle.





This communication is not legal advice.

This material is produced by Jon McLaughlin. It is intended to provide general information in summary form on legal topics, current at the time of first publication. The contents do not constitute legal advice and should not be relied upon as such. Formal legal advice should be sought in particular matters.



Jon D. McLaughlin, Esq.

Cannell & Maulson, P.C.

211 West Jefferson Street

Bloomington, Illinois 61701

(309) 828-5600

Thursday, November 13, 2008

Five Don'ts During a Divorce

Posted on November 12, 2008 by J. Benjamin Stevens
A divorce is a complicated procedure, legally, financially and emotionally. It’s up to you to make the process as smooth as possible in order to prevent unnecessary stress and expenses. If you’re going through a divorce or contemplating one, here’s what you mustn’t do:
  1. Don’t change lawyers midstream: It’s your personal prerogative, but changing lawyers anytime during the divorce proceedings adds to the already enormous expense through extra procedures and more time. Make it a point to investigate your attorney carefully before you hire him or her and get someone whom you trust right from the word go, someone who’s both experienced in family law and who comes highly recommended.
  2. Don’t get too emotionally attached to your attorney: If your attorney’s the caring kind, you may end up literally crying on his or her shoulder unable to take the mental stress any longer. It’s not advisable to get too close emotionally to your attorney because it complicates the process even more. Also, there are laws that prohibit a client and attorney from getting involved romantically or sexually for the duration of the case.
  3. Don’t take financial issues for granted: Don’t take your future finances for granted once you’ve decided on a divorce. Talk to your spouse about who gets the house, how taxes are going to be paid, how credit card debts are going to be resolved, how joint accounts are going to be handled, how much child support is enough, and about other financial aspects that are likely to affect both of you. If you go through this process as amicably as you can, you’re both going to save a ton of money.
  4. Don’t make your kids suffer: Just because you no longer get along with your spouse, there’s no reason to take it out on your kids. They’re already going through a rough patch knowing that their parents are about to get divorced and that their life is going to be a sort of tennis match where they’re the figurative balls being batted from one parent to another. Don’t take out your frustrations on them or abuse your spouse when they’re around. Make them understand that even though you both are splitting up, you still love them a lot.
  5. Don’t indulge in physical relations with your spouse: If your decision to divorce is final and there’s no room for a permanent reconciliation, it’s best to refrain from having sex with your spouse. You may still be living under one roof and sexually compatible, and if the divorce is amicable you may feel that there’s no harm in sleeping with each other as long as no one else knows. But there are emotional complications that will mess up your divorce and leave you with more issues to contend. If you’ve agreed to separate, keep it that way in the bedroom too.

Jon D. McLaughlin, Esq.
Cannell & Maulson, P.C.
211 West Jefferson Street
Bloomington, Illinois 61701
(309) 828-5600

Friday, November 7, 2008

Family Case in the Supreme Court

A case before the US Supreme Court may make divorce (even a no-fault divorce) a little more complicated. Under current law, parties to a divorce can release their right to the other spouse’s pension by signing a property settlement agreement which says so.  They can also lose any interest in the other spouse’s pension when a Final Decree is entered which does not award them the pension (or otherwise reserve their rights).

In Kennedy v. Plan Adm’r for DuPont Sav. & Inv. Plan, 497 F.3d 426, 427-28 (5th Cir. 2007), the Supremes will decide if a spouse may waive his or her interest in the other spouse’s pension without a Qualified Domestic Relations Order (”QDRO”).  QDROs are not exactly do-it-yourself documents so requiring one every time a spouse releases his or her right to any interest in the other spouse’s pension will likely mean more attorney fees and fewer do-it-yourself divorces.

In Kennedy, the parties were divorced in Texas in 1994. They entered into a marital settlement agreement in which the wife waived her interest in the husband’s DuPont Savings & Investment Plan (”SIP”) benefits. The parties did not prepare or sign a QDRO to that effect. The husband never removed the wife’s name as the plan’s beneficiary.

When the husband died in 2001, the Estate requested the benefits. DuPont refused and sent the benefits to the ex-wife. The Estate sued DuPont in the U.S. District Court for the Eastern District of Texas for recovery of the SIP benefits under ERISA, 29 U.S.C. § 1132(a)(1)(B). ERISA federal law preempts state laws pertaining to employee benefit plans. See 29 U.S.C. § 1144(a). Therefore, the text of ERISA is generally applied to determine such cases. If ERISA is silent on an issue, however, federal common law is applied instead. The district court applied federal common law, under which the wife’s waiver was valid because it was “explicit, voluntary, and made in good faith.” 497 F.3d at 428. The district court consequently granted summary judgment to the Estate and awarded it the benefits.

The United States Court of Appeals for the Fifth Circuit reversed and held that federal common law does not apply, because ERISA’s “antialienation” provision prohibits the wife’s divorce decree waiver. The antialienation provision prevents beneficiaries from transferring their pension plan benefits, including transfers through Domestic Relations Orders (”DRO”), such as divorce decrees. On the other hand, QDROs, which satisfy ERISA criteria, provide an exception to the antialienation provision and can be used by beneficiaries to transfer plan benefits. However, the divorce decree waiver at issue was not a QDRO. The Fifth Circuit consequently held that the wife’s waiver violated ERISA’s antialienation provision because the waiver constituted an “indirect” transfer from the wife to the Estate: When the wife relinquished her right to the benefits, the Estate, as the next beneficiary in line under the SIP, automatically received the right to them. According to the Fifth Circuit, however, the wife would have to have submitted a QDRO to transfer her interest in the pension benefits, because QDROs are the “sole exception” to the antialienation provision in cases of divorce.

The Court’s decision on this issue could have a significant impact on those who failed to prepare a QDRO to waive their pension benefits. Should the Court decide that the only valid means of waiving a pension is through a QDRO, the impact on attorneys will also be significant, as former clients will need QDROs to effect their settlement agreements.

Stay tuned….

Source: The Nat’l Legal Research Group’s “Lawletter.”



Jon D. McLaughlin, Esq.

Cannell & Maulson, P.C.

211 West Jefferson Street

Bloomington, Illinois 61701

(309) 828-5600




Monday, September 22, 2008

5 Common Financial Mistakes in Divorce

1. Hanging onto the house at all costs.
Many couples scrambling to obtain a divorce settlement wish to keep the house at any cost. However, keeping the four bedroom marital home may be a financial undertaking that neither party can absorb in the post-divorce environment. Maintenance and child support to the recipient parent can help fund the mortgage and taxes, but some parties find that the burdens of keeping the marital home post-divorce outweigh the benefits, especially in this current home market/mortgage environment.

2. Failing to make a clean financial break.
Clean separation of assets and debts is another difficult task, but one that Howard Dvorkin, the founder of Consolidated Credit Counseling Services says is absolutely necessary, or the consequences can be devastating. Although the task may seem insurmountable, “the alternative is much worse,” says Dvorkin. “Having a spouse drive up your debt when you’re not married anymore” can seriously affect one’s credit score.

3. Counting on your ex to honor financial commitments.
Depending on your former spouse to comply with financial arrangements is also a huge mistake, according to this article. Although both parties in a divorce are beholden to a court-ordered divorce agreement, creditors are not bound by the terms of the divorce judgment. If your ex fails to pay on debts or loans, you may be hurt when applying for future financing.

4. Forgetting to change your will and beneficiary forms.
Wills and trusts can also be seriously impacted by divorce proceedings. Parties in divorce should separately seek counsel for the redrafting and execution of new estate plans, reflecting the wishes of the maker of the will and/or trust prior to the time of the divorce.

5. Overlooking taxes.
Finally, never forget which amount of money in your divorce settlement is maintenance, and which amount is child support. While child support payments are not taxable to the recipient, maintenance payments are.

Jon D. McLaughlin, Esq.
Cannell & Maulson, P.C.
211 West Jefferson Street
Bloomington, Illinois 61701
(309) 828-5600

Wednesday, September 3, 2008

A Note To Stay-At-Home Moms (or other primary caregivers)

A Note To Stay-At-Home Moms (or other primary caregivers)

The law is sometimes counter-intuitive. I spoke with a nice lady today who was very unhappy in her marriage. When she could stand it no more, she told her husband that and then she left him. She did not take the children with her, however, because she did not want to disrupt their lives. Now this former stay-at-home mom is being kept away from her children by her now very angry husband.
By thinking of her children and trying to maintain normalcy for them, the nice lady feels like she is being punished. Her husband says he is filing for divorce and that he will seek sole custody. She feels caught flat-footed and she is concerned that he may have a leg up in court. He certainly has an emotional leg up over her right now as she is miserable. He assured her that he wouldn’t keep her from the children…. yet that is exactly what he has done!
If you are a primary caregiver and you are thinking about ending your marriage, part of your exit plan should include a meeting with a family law attorney (or two, as varied input can be a good thing). In some cases, leaving your children with the other parent may make your case for custody an uphill battle. Or maybe it is the right thing to do. Your individual facts will matter so get some advice in person BEFORE you make a move. It is much easier to plan than to scurry and react.

Jon D. McLaughlin, Esq.
Cannell & Maulson, P.C.
211 West Jefferson Street
Bloomington, Illinois 61701
(309) 828-5600

Thursday, August 28, 2008

Divorced Parents' Rights in the Religious Upbringing of Their Children

Parents have a constitutionally protected fundamental right in the care, custody and control of their children. This constitutional guarantee includes the parents' right and freedom to expose their children to their own particular religious beliefs. However, when interfaith spouses divorce, disagreements over the religious upbringing of their children can ensue. In such circumstances, state family courts may be called upon to balance the competing interest of the parents and the children in an effort to resolve the dispute.

Types of Post-Divorce Disputes Regarding Religious Upbringing of Children
Upon divorce, the parent who is awarded the physical custody of their child or children is referred to as the "custodial parent." The other parent is the "noncustodial parent." In some circumstances, parents may be awarded joint custody. In general, disputes over the religious upbringing of children of divorce may be divided into three categories including:
<![if !supportLists]>·        <![endif]>Custodial parents who wish to restrain a noncustodial parent's imposition of their own religious values on their children;
<![if !supportLists]>·        <![endif]>Noncustodial parents who object to a custodial parent's religious beliefs as too extreme;
<![if !supportLists]>·        <![endif]>Noncustodial parents who object to the lack of religious values of the custodial parent; and
<![if !supportLists]>·        <![endif]>Regardless of the type of dispute, courts typically must consider what would be in the best interest of the children.

Rights of Custodial and Noncustodial Parents
In the majority of states, the custodial parent is granted the right of directing the everyday management of their children's upbringing, including their religious indoctrination. Despite this right however, most courts hold that the custodian is not thereby entitled to restrain the noncustodian from exposing their children to their own religious beliefs. Thus, the custodial parent's rights in the religious upbringing of their children are not exclusive.

In contrast, a minority of states have held that the right to determine the religious upbringing of children exclusively lies with the custodial parent. In these states, custodial parents are generally entitled to restrict the noncustodial parent from introducing the child to another religious perspective.

Exception to the Majority Rule: Harm to the Child
Although most states bestow both parents with the absolute right to expose their children to their own religious beliefs after a divorce, there is one exception. Where conflicting religious experiences would cause clear and affirmative harm to the child, the noncustodial parent's rights may be restricted. What constitutes sufficient "harm" to justify the restriction of a noncustodial parent's rights is determined on a case by case basis. Generally, while mere confusion or stress to the child is typically inadequate, stress that is so severe as to manifest into physical symptoms might suffice.

For example, one court found sufficient harm where a boy suffered severe stress from attending and keeping up with both Catholic masses and Jewish services, including bar mitzvah lessons. The boy's stress had caused him to develop encopresis, a bowel control problem, which was alleviated after he was removed from the bar mitzvah lessons, as ordered by the court.

Objection That the Religious Beliefs of the Custodial Parent Are Too Extreme
A general agreement exists among the states that a noncustodial parent seeking to modify custody of their children, due to religious differences, must demonstrate that the custodial parent's beliefs would cause them harm. Where the noncustodial parent can sufficiently show that the custodial parent's religious beliefs are "too extreme," a court may be willing to modify custody. For example, a custodial mother who follows a sect touting that any non-believers are "God's enemies" and who teaches her child to lie to God's enemies could be considered too extreme.

A request to modify custody based on extreme religious beliefs of the custodial parent typically requires the court to balance the interest of the parties. On one hand, the court must consider the custodial parent's right to free exercise of religion and rearing of their children. On the other hand, the court must also determine what is in the best interest of the children. However, custodial parents' rights in the religious upbringing of their children are very heavily protected and courts rarely find the requisite showing of harm to the child. 

Objection That the Custodial Parent Lacks Religious Values
In cases where the noncustodial parent is seeking to modify custody based on the fact that the custodial parent is "not religious enough," courts do not typically grant the modification. For example, where a custodial Orthodox Jewish mother fails to observe certain tenets and practices of the faith, the noncustodial father will likely not be granted a modification of custody solely on that basis. In addition, a court would typically not allow modification where the religious noncustodian objects that the custodial parent lacks faith of any kind. These types of cases are also subject to the "harm to the child" exception, but sufficient harm is similarly difficult to demonstrate.