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Brandon M.
Brandon M., Family Law Attorney
Category: Family Law
Satisfied Customers: 12237
Experience:  Attorney experienced in all aspects of family law
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Since I last contacted you, a trial setting was supposed to

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Since I last contacted you, a trial setting was supposed to have taken place on January 28.
My attorney (Jim) requested a 30-day delay, because since August we had not yet received any of the requested discovery documents from my ex’s attorney (e.g. telephone records, bank statements, income tax records, etc.) We did get incomplete bank statements and all income tax records, but his attorney cited “relevance” and “over-burdensome” on all other requests.
On Feb. 29 we set hearing date for March 30, as I had requested a custody evaluation. The other attorney is objecting to the amount of time it will require to complete, (by approximately mid-August), in that it will push the litigation beyond one year. (Note: I did not know this was an available option to me, until I had done my own research, or I would have requested it long ago.)
I completed my own initial appointment with the evaluator on Mar. 22.
Just prior to the hearing on Mar. 30, I told Jim that I had prepared a very detailed visitation schedule, (which we have never had in place before, and part of my “homework” from the evaluator) which would allow my daughter to stay with her dad on his rest days (Thursday & Friday) from 6 pm Wednesday after school to 6 pm during alternate weeks. Also I noted holidays, including Easter Sunday, Thanksgiving Day, and Christmas Day, while I would have July 4th and New Years Eve—the major drinking holidays.
I had prepared a statement requesting the evaluation, in the event that the ex/attorney objected to it. The two attorneys walked down the hallway to the judge’s chamber, closing the door behind them.
When they came back into the courtroom, it had been determined that I would pay for the evaluation in full ($3,500 to start with), that all four parties, including the girlfriend, would participate on the stipulation that the evaluation be completed by July 1.
The judge granted the evaluation. The trial is set for July 23.
My daughter will turn 15 on July 8.
The reason I included he ex’s girlfriend: a.) maybe she would run screaming the other way because she does not want to be a party to the matter, and if he wants to keep her, he will settle the lawsuit; b.) I think she is major part of the enticement of my daughter to move in with her dad.
The judge left, and the two attorneys began writing notes and talking among themselves regarding the visitation schedule.
Without my knowledge, the alternate rest days were amended to Wednesday after school, until Friday at 9 pm (this was almost changed to Saturday morning). Up until the trial date the father will have all the holidays including July 4th. Also, the dad and daughter will retain the option to initiate visitation at any time at either her request or his invitation (which rarely happens anyway). We were told we would coordinate about scheduled activities by text—while allowing the girlfriend to pick my daughter up at school or other activities.
I said, “I’m NOT happy with that.” To which Jim replied, “I know, I know, I’ll talk to you at the car or back at the office.”
I was told that the lenient visitation schedule would make me look very fair and equitable. I was also informed that as long as she is a “responsible adult” with a valid driver’s license, she is allowed to transport my daughter. He said he was just giving them what the judge would have granted anyway, had the other party requested it.
During the early contacts with the other attorney, Jim sounded like he was going to help me fight this. (By the way he does not specialize in family law, but a general practice, though he handles many divorces and accordingly custody matters. Only attorney office in my small rural town).
Over the last months, in less than a handful of conversations, Jim has told me that I should find a boyfriend, see a counselor, perhaps simply let my daughter “bump her head,” by letting her go live with her dad.
Most recently he said that if this is evaluation does not turn out in my favor, we should just throw in the towel.
Here’s my problem:
I do not like my attorney completing negotiations without explanation, my knowledge or consent. (Though I would have agreed to the changes in visitation had I been informed).
I am beginning to feel that Jim has a preconception that an immature teen-ager should be allowed to make dumb decisions and suffer the consequences (i.e. “bump her head”).
This whole proceeding is crawling so slowly, is he trying let me get used to the idea that I am about to be the victim of a legal kidnapping and there is nothing I can do about it; sort of “letting me down easy?”
I also feel that Jim (like many attorneys and judges) would very much like to have this settled out of court, because he is very busy and it would be over with quickly and be one less case on his desk.
I had to provide the girlfriends correct name (by various small town inquiry-everybody knows everybody), because the ex would not provide it, so that Jim could do a court records check—she did incur
Submitted: 2 years ago.
Category: Family Law
Expert:  Brandon M. replied 2 years ago.

Hello again:

I am sorry that I was not immediately available to take your question. I understand the situation and I was able to review your last question. However, I am not sure that I know how I can help at present. What question might I answer for you?

 

Customer: replied 2 years ago.

Sorry, there must have been a character limit here is the rest of my very long question:


I had to provide the girlfriends correct name (by various small town inquiry-everybody knows everybody), because the ex would not provide it, so that Jim could do a court records check—she did incur a first offense DUI, but it was in 2006.

I had to do my own research to find out that a custody evaluation is an option.

I am certain I have more than a preponderance of the evidence, showing that the man has made very little effort to be a significant part of his daughter’s life, and that I have been a solid presence and a thoroughly attentive parent.

I am also certain I can prevail in the evaluation.

I am not sure about “changing horses in the middle of a race,” perhaps I should find an attorney who specializes in family law? Though I only have three months in which to bring another attorney up to speed. I am in this to the tune of $12,200.

Will the evaluation be cast aside if the evaluator cannot complete his task by July 1?

I was told that if the ex does not supply his telephone records also, (as I had to—I turned in everything that was requested of me) that those records cannot be used at trial (?)—Some of my strongest evidence.

Will the court really give him full custody, make me pay child support (I only take home $1,300 a month), eliminate alimony, and make me pay his attorney fees? (I do not care about the money—he can keep it all if I can retain custody—I told this to Jim, but he said “you don’t want to sell yourself short,”—all the money in the world does not make a difference if this angry, vindictive man takes her away from me—he will complete the poisoning, and this mess has already severely hurt our relationship).

Am I reacting to Jim because I am coming at this from a very emotional viewpoint, while he is simply focusing on the business at hand? He is not offering anything resembling encouragement. Is this typical?

We have a little girl who is playing her parents like couple of spinning tops—how is she given so much power in the matter?

The entire focus seems to be on the father’s rights.

What are mine?



Expert:  Brandon M. replied 2 years ago.

To rephrase, the questions are:

 

1. What are the considerations when changing from a general practice attorney to a family law specialist three months prior to trial in a family law case?

 

2. Will a child custody evaluation be set aside if not completed as scheduled?

 

3. What is the impact of the non-production of records that have been formally demanded in the discovery process?

 

4. Under what circumstances will the court award full custody, terminate alimony, and order a parent earning $1,300 per month to pay child support and attorney fees to the other parent?

 

5. Is it typical for an attorney's assessment of a situation to be pessimistic?

 

6. How much power does a minor child have in deciding her own custody?

 

With answering these questions, I will start by saying that, because the nuances of every case are different, you should not rely on this information as advice or apply it to a specific situation without a more thorough consultation with counsel.

 

1. I think that it is important that a client have confidence in their attorney. Three months is plenty of time for a new attorney to step in without prejudicing the case. As a general rule, if your attorney seems nervous about going to trial, there is a problem--either with you or with them.

 

2. When a child custody evaluation has been ordered, and when it is not completed as scheduled prior to a trial, the court basically has two options: (1) set a new trial date, or (2) proceed without the evaluation. The court wants that evaluation because of the insight it provides into the case. 99.9% of the time, the court will allow the trial date to be continued.

 

3. Generally speaking, if documents are demanded and not produced, the unproduced documents cannot be presented as evidence at trial. The non-production of formally demanded discovery can have numerous and significant impacts on a case (all unfavorable to the party failing to produce), and there is no good way to summarize all of the potential impacts.

 

4. Anything is possible for any given case, but knowing that custody is ordered according to the best interests of the child, why would the court allow a 14 year old to move into her father's home when the father has essentially be absent her entire life? How would that be best for the child? The courts are run by people, not by robots (although, I would prefer robots to some of the judges I have met) and most of the judges are parents and/or grandparents and know how kids are. It is natural to worry, but can you answer those questions?

 

5. Attorneys tend to be a bit pessimistic when assessing a case so that their client's expectations are not too high. That way, if things turn out poorly, the client is prepared; if things turn out better than predicted, the client thinks that the attorney is wonderful for having beaten the odds.

 

6.

Child custody is determined based on the best interest of the child regardless of the minor child's age, so there is no age at which a minor child gets to choose where they reside; however, the preferences of the child will be taken into consideration and weighed based on their age and maturity. In practice, the court typically starts listening to the child's preference in earnest around age 13, and tends to defer to their preference by their 16th birthday. A 13 year old who doesn't want to visit with a parent because "I dunno... it'd be kinda cool" will not and should not be taken seriously, but a 13 year old who can explain the importance of the proposed arrangement to their personal developmental and emotional needs will typically have their opinion weighed more heavily. So it really depends on the kids and on the situation.

 

A 14 year old who wants to party won't be taken seriously. A 14 year old who wants to better develop their relationship with the non-custodial parent will be taken seriously, but that would not begin to justify a full-custody situation.

 

Let me know if further clarification is needed, and please keep in mind that the experts are not credited for unaccepted answers; even where I cannot solve every problem in a case, my hope is that you can at least feel confident in your knowledge of your rights so you can get the best legal outcome under the circumstances, whatever that outcome may be. Please remember to click accept once you are finished. Thank you.

 

Customer: replied 2 years ago.

Is it okay for the attorney to add or take away aspects of an agreement without consulting his client? That made me very uncomfortable, even though he was probably correct.

Will being so “generous” really ‘help’ my case?

Giving the girlfriend the right to transport our daughter upsets me. What if it were my boyfriend, would they grant him transportation rights? (I do not have a relationship at this time). Her dad has only picked her up from an activity on three occasions. Surely I could pick her up or drop her off at her dad’s house—that’s all I do is take her place to place every day.

Is payment of child support mandatory in Nebraska?

For example, if I offered to waive the child support in exchange for retaining custody, would he be able to agree to that, or is it a statute which cannot be waived. (Again, this has nothing to do with the child for him, and everything about the money).

If he were to secure custody (which won’t happen) would I be required to pay child support, or could I be excused due to a huge difference in income? –He makes over $25 an hour, while my salary is less than $10. (I would not even be able to stay in this house). He was supporting a family of four on his income, which at the time of the divorce was $21 an hour.

Expert:  Brandon M. replied 2 years ago.

The new questions are:

 

7. Is it okay for the attorney to add or take away aspects of an agreement without consulting his client?

 

8. Will making generous compromises help a client's case in a child custody dispute?

 

9. "What if it were my boyfriend, would they grant him transportation rights?"

 

10. Can child support be waived in Nebraska?

 

11. You are also asking about how child custody works in Nebraska.

 

Again, because the nuances of every case are different, you should not rely on this information as advice or apply it to a specific situation without a more thorough consultation with counsel.

 

7. An attorney may not make material changes to an agreement without permission or consultation with the client. Since what is material to one person is not necessarily material to another, it is not a good idea to make a firm offer or acceptance to any change without consulting with the client, but it is only an ethical breach if it is, in fact, material.

 

8. Sometimes it makes sense to compromise, but sometimes not. It depends on what is important to you, how hard you are willing to fight, and what the trade-off is.

 

9. I have no way of answering #9. It simply involves too many variables, and it is too hypothetical to address responsibly in this forum. I am sorry. If this question was originally presented, I would have told you this up front.

 

10. Child support can generally be waived in Nebraska. It can't be waived in the situation where the parent owed support is receiving social assistance, since the state has a right to pursue child support on behalf of the child to offset the cost of the social assistance. So, if the parent is receiving welfare or foodstamps, for example, then the state can collect child support from the other parent with or without anyone's permission. But generally, it can be waived.

 

11. You are trying to estimate what child support might be under different scenarios, but it is not as simple as saying "I make this much, he makes that much, how much would have I have to pay?" Although income and custody time are the most significant factors, other factors come into play, so I would just refer you to Nebraska's child support guideline calculator: http://www.supremecourt.ne.gov/forms/supreme-court-child-support-forms.shtml

 

Let me know if further clarification is needed, and please remember to click accept once you are finished. Thank you.

Brandon M., Family Law Attorney
Category: Family Law
Satisfied Customers: 12237
Experience: Attorney experienced in all aspects of family law
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