What happens when your attorney agrees to something you did not authorize?

Today reaffirmed to me that the most important thing in a custody dispute is to have a competent attorney not afraid to challenge a judge.

I want to repeat the above statement over and over and over.

I did not wake up one morning and decide that I was going to become an expert in family law.  I know what I know because my attorney years ago entered me into an agreement without my consent.  I recall throwing a fit in the hallway not realizing the judge was standing 5 feet from me.

I spent four years, about $100,000 and a United States Supreme Court writ to resolve the issue created by a careless agreement made without my permission.

 

Over and over and over again, Ladads gets involved with cases and over and over and over again we discern that the attorney made a decision without the consent of the client and that the attorney refused to file proper paperwork out of fear of “pissing off” the judge.  The excuse is always, “oh judge, I will get my client to agree, I will get him to understand”.  Judges are not gods; it is only the trial attorneys, through their inaction, that make judges believe that they are gods.  Hell, we “pray” to the court for relief…no wonder judges think they are gods.

I can say this without hesitation….never, never, never agree to be absent during any pre-trial conference. Always, always, always ensure that any conference with the judge is memorialized in some form or fashion.  Never, never, never let your attorney make a decision without your approval.  I can’t stand attorneys who take the whole “trust me, I am in charge” attitude.  Keep your client in the loop!!!!  Having said that however…..I didn’t say that you have to be in the middle of the verbal debate.  Be present…shut up……and let your attorney argue for you….but never be absent, always be aware of what is going on, and MAKE SURE your attorney explains to you what is going on.

Attorneys often make their living in front of the same judge.  If your attorney expresses fear about sticking up for you, strongly consider getting a new attorney.  A judge should respect an attorney who is willing to go to war for their client.  At the end of the day, the attorney should understand that representing their client is more important than the fall-out from pissing off their god.

To answer the question the title of this post presents, be prepared to throw yourself at the mercy of the court in hopes of undoing what your authorized representative got you into.

Parental Authority

I observed two family law attorneys discuss when an  unwed father is able to exercise parental authority. 

When a married woman has a child then by law both mommy and daddy have the exact legal authority over the child (well, actually Dad has more authority but I will save that for another discussion).  If they split up, they still exercise equal authority until a court says otherwise.  When an unwed mother has a child, by law, no father is placed on the birth certificate (unless Mom and dad both agree otherwise) and therefore Mom has all the legal authority.

I have always been taught that an unwed father can only assert parental authority over a child in two ways: 1) by court order; or 2) the mom consents to having the father placed on the birth certificate.

Two family law attorneys were arguing and one asserted that when a man signs an acknowledgement  of paternity then he has as much right to the child even without being placed on the birth certificate (remember, Mom still has to consent to Dad being on the birth certificate or Dad has to go get a court order).  Essentially, the attorney argued that once the Dad signs the acknowledgement then it was a matter of time before the birth certificate could be modified. 

Support Enforcement often requires the parents to sign an acknowledgment before collecting child support.  The Dad in turn has to take the acknowledgement to get a court order  to be placed on the birth certificate (because moms don’t usually agree to amendments to the BC because it gives the Dad parental authority).  GOING TO GET THE ORDER IS THE EXPENSIVE PART.  This is the primary reason why so many unwed fathers don’t get more rights because they have to go to court to force themselves onto the birth certificate. 

This is important because the attorney was suggesting that unwed fathers have equal rights to the child the moment that the acknowledgment is signed…..even without any further action in court.  Many women sign the acknowledgment thinking that is what they have to do to get child support without giving Dad parental authority.  Well, not according to at least one family law attorney.  He says signing the acknowledgment grants a Dad the same right as being on the birth certificate….interestng.  This would certainly be contrary to what virtually every unwed father is told when he is dragged into court for child support and told he has to adjudicate his legal rights to the child separately.  I have always preached that when you go to court for child support to make sure you get the judge to order that you be placed on the BC.  Though the attorney may be right, I think it is still safe to get added to the BC just in case.  A BC with my name as Dad sure looks a lot more solid than an acknowledgment. to lay persons (like cops, principals at a school, etc.)

It Is Not A Dollar-for-Dollar Reduction/Increase in Most Cases Guys!

It seems that I have to explain this over and over and over again….and sometimes to attorneys.

Let’s say you pay $1000 per month in child support PLUS $400 DIRECTLY to a daycare center to pay all the monthly daycare expenses.  For the sake of discussion, let’s assume child support was calculated with both parents earning the same amount of money (meaning the parents split the total support obligation 50/50.

Question: What is the basic support obligation for both parents? (everything you need to know is in the paragraph above)

Answer: $2400

Question: What is the total support obligation for both parents?

Answer: $2800 (basic obligation + daycare)

Explanation: Since the non-custodial parent is paying all the daycare directly then that parent must have received a $200 credit (half of $400 since the split is 50/50) meaning his half of the basic obligation must actually be $1200.  Since child support in this scenario was based upon the parents having the same income then logically the basic support support obligation of both parent is $1200 x 2 = $2400.

The second answer is easy: $2400 + total daycare

So what happens when daycare is no longer required?

Total support obligation now becomes $2400 ($2800-$400).  Parents split the obligation and the non-custodial parent gives the custodial parent $1200….NOT $1000

Bet you thought that once daycare was dropped that the $400 would come off the top and $1000 would be owed.  What you fail to realize is that you were already given a $200 credit when you were giving the custodial parent only $1000.

I see it time and time again that judges and attorneys often have a hard time with this.

(Total Support Obligation of Both Parents) x (Your Percentage of Total Income) Minus (Direct Payments)=Child Support

With Daycare:

($2800  x  .50) minus $400 = $1000

No Daycare:

($2400  x  .50)= $1200

The reverse works the same of course.  If the custodial parents want to use the daycare again, he/she would only get a $200 increase in child support for a $400 expense.

The ONLY time the amounts change dollar-for-dollar is when the custodial parent has no income (which should only occur if he/she is caring for your child while under the age of five).  Be sure to appeal anytime a judge does not impute income to a custodial parent who just wants to sit back and collect child support.

And of course, make sure you get a good family law attorney.

If you think this is complicated;  try this:  Daddy makes $4000/month and Mama makes $1500/month.  Daycare is $388 per month paid by Mama.  Daddy pays dance lessons in the amount of $30 per week.  Daddy also pays Blue Cross for health insurance in the amount of $115 per month.  Daddy pays child support for another child from a previous marriage in the amount of $500 per month but it is not court ordered.

Daddy loses in court and mama is made domiciliary parent.  There is one child under the age of five.  What does Daddy pay Mama in child support?

Once you get the Basic Support Obligation from the statutes then the answer is rather simple.

Representative Chris Hazel introduces legislation to tweak the definition of “net child care cost”

Chris Hazel has filed HB 872:  http://www.legis.state.la.us/billdata/streamdocument.asp?did=780440 

The underlined section is the addition to the law:

Section 1. R.S. 9:315(C)(7) is hereby amended and reenacted to read as follows:

§315. Economic data and principles; definitions

C. Definitions. As used in this Part:

(7) “Net child care costs” means the reasonable costs of child care incurred by a party due to employment, or job search, job training, or obtaining an education minus the value of the federal income tax credit for child care.

This bill seems to follow the jurisprudence that women should be allowed to attend college and have daycare provided to do so.  I have absolutely no idea if the case law influenced this bill but I recall discussing one of the cases of the main forum.

On September 15, 2011, I wrote on the main site:

 

Guidry v. Guidry, 6 So. 3d 845 (La. Ct. App. 3d Cir. 2009) was the case I recalled but I completely got it wrong from my memory.

A reading of Guidry v. Guidry seems to suggest that the court may have ruled differently had the mother presented evidence that she was enrolling in school.  The parties’ child was under the age of five, but was in daycare from nine to five, five days per week, and Mr. Guidry was paying the daycare expense. Thus, Ms. Guidry should have been imputed an income since she was not actually caring for the child at home during working hours.  The court however does not address what the decision would be if she had been enrolled in school.  I made a mistake in my last post unless I am thinking of another case.

What I find funny is that the domiciliary parent is allowed to go to college while the non-domiciliary parent (usually the dad) would be LAUGHED OUT OF COURT if he asked to not pay child support in order to attend college.  Again, another example of the disparity placed upon the way the courts treat men and women.

I believe that everyone should be treated equally.  Why is that men are told to drop out of school and go to work to provide support while at the same time women are encouraged to NOT WORK and get a college degree?  This is one reason why you see so many mothers who are career college students.  Why go to work?  Live off student loans, welfare and child support! Genius!

Sorry Mr. Hazel, this bill just reinforces the notion that women need only sit back and avoid employment under the guise of seeking a college degree that never seems to come to fruition.  This proposed legislation looks more like a backdoor way of making it possible to quit work, go to college, and get daycare while the ex works his ass off at a blue-collar job to provide some outrageous amount in child support.

Sauce for the goose is not always sauce for the gander in family law.

My version is as follows:

§315. Economic data and principles; definitions

C. Definitions. As used in this Part:

(7) “Net child care costs” means the reasonable costs of child care incurred by a party due to employment or the reasonable preparation for gainful employment minus the value of the federal income tax credit for child care.

Go to our forum page for further discussion on the 2012 Legislative Session.

Representative Johnson defines how a non-parent can literally be given custody

Click below to see HB 910:

Regular Session, 2012 Louisiana House Bill No. 910-Representative Johnson

CHILDREN/SUPPORT: Provides for child support obligations due to nonparent custodians and other third parties.

This bill would add some language to the existing La. R.S. 9:315 and adds new statutes, La. R.S. 9:327 and La. R.S. 9:328.  Though mostly a good proposed change, I do not like the way the law attempts to define how a non-parent can acquire “lawful physical custody”.  The last thing Louisiana is more relative butting into custody disputes claiming they have rights under the law.

I think the bill starts off with the right idea; it gives non-parents taking care of children an expedited way to acquire child support from both parents.

Here is the good part:

If the child is in the custody of a nonparent custodian as defined in R.S. 9:315.27 or a state agency, the court shall order each parent to pay his or her share of the total child support obligation to the non-parent custodian or state agency.

 

Ok, “in the custody of a nonparent”…what does that mean exactly? Look at this language from the proposed La. R.S. 9:327:

A nonparent custodian has obtained lawful physical custody if he has obtained physical custody of the child pursuant to a court order or is a relative to whom physical custody of the child has been voluntarily given by the custodian of the child. Notwithstanding any provision of law to the contrary, lawful physical custody shall not be conferred upon a person previously denied custody of the minor child by a court order.

So the “custodian” of the child can give custody to any “relative” they want? What if the other parent has joint custody? It appears now that this proposed law would allow the domiciliary parent to substitute any relative they like as the “custodian”.

I suggest this change however:

A nonparent custodian has obtained lawful physical custody if the following conditions apply:

(1) he has obtained physical custody of the child pursuant to a court order; or

(2) is a relative to whom physical custody of the child has been voluntarily given by the custodian of the child and any legal parent or parent entitled to custody or visitation consents to the nonparent exercising custody in lieu of the custodian.

Notwithstanding any provision of law to the contrary, lawful physical custody shall not be conferred upon a person previously denied custody of the minor child by a court order.

My proposed change would require consent from the non-custodial parent (not just a notification).  If the non-custodial parent objects then they should be afforded first right of refusal.

As long as the non-domiciliary parent is given some type of notice or process and afforded the opportunity to exercise his right to primary custody before the non-parent invokes “lawful physical custody” then I see no problem with this bill. The current law is unclear on “lawful” custody of a non-parent and therefore works to the benefit of the non-custodial parent since a parent’s authority should always be superior to that of a non-parent. Non-parents should have to jump through hoops to acquire custody over the parents, not made easier.

If I got something wrong then by all means make a comment. I am not perfect and this stuff is brand new.

Go to our forum page for further discussion on the 2012 Legislative Session.

‘Dastardly Dads’ Blog

Nick sent me a link to a blog that appears to be anit-family and, in particular, anti-father (Dastardly Dads).

This blogger, who was likely abused as a child, writes:

Fathers Rights folks blame moms for child abuse. WRONG! Sexual assault, abusive head trauma, and other forms of violent/fatal child abuse are dominated by dads, stepdads, and caretaker boyfriends (60 – 90%). And as more dads are providing child care (either because mom is working and can’t find other care, or because dads are increasingly getting unsupervised visitation/custody through the family courts), more dads are are being found guilty of basic child abuse and neglect. Who’d a thunk it? 

Well, obviously I disagree (and I love the “60%-90%” statistic that was pulled right out of the sky).  “Who’d a thunk?” is what this blogger asks.  Well, I blame those responsible for the abuse regardless of the sex of the offender.  We don’t fabricate stories and blame the other parent; but some do.

This little blog apparently tracks cases accross the nation and posts alledged instances of abuse perpetrated by men.  Of course, there is never any mention of abuse involving mothers.  Regardless, I am horrified by any reports of abuse against a child no matter the sex of the offender.  Though I would suggest to this blogger that she is wrong for the record.  Women and men abuse children at about an equal rate.  Abuse comes in all forms whether it be emotional or physical.  Depriving a child of a loving parent for example is a form of abuse.

Perhaps if the author of the blog had had a good father growing up then she would not write such things.  Oddly enough, we are fighting for the very thing the author of this blog was so clearly deprived of.

Bet I nailed it.

More on the Corey Gautreaux matter and a note about the custodial status of a child at birth

KATC out of Lafayette, Louisiana ran another story about Corey Gautreaux and the alleged kidnapping of his own daughter.

Getting answers about father’s custody rights | KATC.com | Acadiana-Lafayette, Louisiana.

More video and news:

It is becoming more and more apparent that law enforcement botched this whole ordeal and I would be shocked if a lawsuit is not filed.

I wanted to write this post to explain what happens when a child is born relating to legal custody.

MAMA Married:

By law, both parents are placed on the birth certificate and child is given the husband’s last name.  Both parents are natural c0-tudors and equal.  However, even if the husband is not the biological father, the husband, by law, is placed on the birth certificate.  The husband has one year to disavow paternity.

MAMA Not Married:

By law, no father is placed on the birth certificate unless the father signs the acknowledgment at the hospital (the mother can tell the hospital who the father is but they cannot place just anyone on the BC without an acknowledgment).  By law, the child is given the mother’s last name unless the parties agree otherwise.  Once the father signs the acknowledgement, he becomes the “legal father” (assuming there is no husband).  If no father acknowledges the child, the mother essentially is the sole custodian until a father brings her to court.

The flaw in the system is that an unwed mother has to consent to placing the biological father on the birth certificate making him the legal parent.  In other words, if mama don’t want daddy on the birth certificate, then daddy has to get a lawyer to establish legal custody.  This is how moms get such an advantage.  A mom can legally exclude the dad from the child’s life until dad acquires several thousand dollars to get an attorney.  How many 18-24 olds have $2500-$5000 sitting around?  Lower income people sometimes can never afford to establish legal custody!!!!!  Oh but wait….daddy State steps in.

Here is the kicker, the State of Louisiana will go after the alleged father for child support regardless.  Many Dads think that the State is  “establishing paternity” with a DNA test.   THIS IS A LIE.  The State of Louisiana is merely gathering the evidence necessary to hold the alleged Dad liable for child support.  A DNA test through the State of Louisiana DOES NOT make a Dad the “legal father”.  A Dad must take that DNA test and go to regular district court and establish his legal status.  Once you get a court order of custody, the birth certificate pretty much becomes irrelevant.

So not only do some dads not have the money to establish custody, the GREAT FATHER STATE OF LOUISIANA can garnish up to 50% of your income for a child you cannot even afford to establish legal custody.

If you get hauled into court for child support by the State of Louisiana and you are not the “legal” parent, then at a bare minimum make damn sure you are adjudicated the father and get a court order mandating that you be placed on the birth certificate.  Be sure that the court order the mother to sign whatever paperwork is necessary to modify the birth certificate.  Of course, if you can afford to get an order of custody then the birth certificate becomes less important.

Unfortunately, in the vast majority of cases, a biological dad cannot petition the court for a surname change.  The mother pretty much has to agree if a biological dad wants his kid to have his last name even after the biological dad is placed on the birth certificate.

Had Corey Gautreaux not signed the birth certificate, then he would not be considered the “legal” father.  Obviously, since his daughter has his last name (and we know they were not married) then at some point the parents made an agreement to have this done.

There is a BIG, BIG difference between being just the “biological” father and the “legal” father.

State law needs to be modified so that whenever a DNA test is done to establish paternity then the actual father be placed on the birth certificate (or at least have a spot for “legal father” and “biological father”.  The problem under Louisiana law is that a birth certificate is treated more like a social document instead of a factual document.  Guess what, in Louisiana, the State has gone after the legal father and biological father for child support under the concept of “dual paternity”.

The law is outdated as it was written so that a husband’s paternity could not be questioned.  Nowadays, DNA tests can be bought at the drug store and therefore the law can no longer protect something that can so easily be revealed due to technology.  Louisiana law protects a husband’s rights, not a biological dad’s.  When a dad is not married to a pregnant woman, he must rely upon her to do the right thing, or bring her to court.

A biological dad gets rights under one of two circumstances:

1)  The mother’s good will;

2)  Legal action

A legal dad has rights by default unless a court says otherwise. (unless you live in Avoyelles Parish where they charge you with crimes for being a father).  Cops just don’t understand the difference and need better training.  Even a mere review of the information contained in this blog post would have been enough education to avoid the Gautreaux debacle.

If the mother is married to someone other than the biological dad when the child is born (or within 6 month)…then bio dad must SUE BOTH the husband and the mother for custody since husband in the “legal” father of the child.

In the Gautreaux matter, the mother did everything by agreement at birth and we of course applaud her for that.

Regardless of who the “legal” Dad is, once a custody order is established, you must abide by the orders of the court.  A “legal” parent can be charged with “kidnapping” if a court order is being violated.

Make sense?

This is not meant to be legal advice.  Contact an attorney if you are seeking legal advice.

Forgive any typos.  This was meant to be informative, not pretty.

Oh and BTW, they say Corey was charged with simple battery…you can spit on someone and be charged with simple battery.  So the State Police say they issued a news alert because of a “battery”…wtf?

The Parental Kidnapping Prevention Act

Nick mentioned that several people had sent some emails about the Parental Kidnapping Prevention Act and how it applies in the Grautreaux matter.  Let me try to explain.  Before this Act was passed, many parents who were not awarded custody “kidnapped” their children and ran to another state in order to seek a new court ruling in their favor.  The PKPA, along with other laws, now govern jurisdictional concerns and ensure enforcement of individual state custody orders.  Custody determinations are entitled to full faith and credit in all states.  The Act focuses on parents not entitled to custody (for example, someone whose rights have been terminated or parents violating a court order of custody).

In the Gautreaux matter, both parents appear on the birth certificate and the child has the father’s last name. There was no preexisting custody order and both parents are entitled to custody since neither parent is superior to the other in this matter.  Since there is no custody order to enforce, the term “kidnapping” cannot apply and therefore Mr. Gautreaux cannot be guilty of kidnapping his own child.

For those arguing that a father is not “legally entitled” to custody without legal paperwork then I suggest you tell us how a mother is “legally entitled” to custody without legal paperwork.  The maternal preference laws have long been abolished.

Many of you have said that a parent cannot kidnap their own child under any circumstances.  While this may make sense in a perfect world, this is not the case exactly.  If you are not entitled to custody or are keeping a child in violation of a court order without good cause then, yes, you can be held accountable for your actions and be considered a “kidnapper”.

Just wanted to clear that up.

This is not meant to be legal advice.  Consult an attorney if you are seeking legal advice.