4-better-service

When Your Child Talks to the Judge: In Camera Interviews

By Rebecca Crumrine Rieder of Hedgepeth, Heredia & Rieder

rebecca crumrine riederWhen a divorce case goes to trial, emotions may run extremely high, particularly when issues of custody arise. Putting children on the stand in front of their parents can be incredibly stressful, because they feel they are being asked to choose a parent. The judge may decide to first have an “in camera” interview with the child. “In camera” is Latin for “in the room.” The room in this case refers to the judge’s chambers, or at least to the meeting place of the judge’s choice.

What exactly is an in camera Interview?
An in camera interview is a conversation with the judge in his or her office as opposed to an affidavit or testimony in open court. In camera discussions are not testimony, are not evidence and are not to be relied on in making a ruling. At its most basic, it is a conversation between the judge and the children in the case.

Who may be present in the interview?
The people who are present at an in camera interview are at the judge’s discretion but should always include:

  • The judge

  • The child(ren)

  • The attorneys representing the parents (although they do not ask questions unless given permission to do so by the judge)



Other attendees may include: 

  • A guardian ad litem, if appointed, may be present
  • A transcriptionist may also be there, although a transcript will not be made available to the parents
  • Anyone else the judge deems appropriate, such as a child psychologist

in camera means in the judges chambers

Why would an in camera interview take place?
Divorces can be emotional and difficult, especially for children. More than anything, children don’t want to upset or anger their parents. The judge is the decision maker regarding custody and parenting time and must base the decision on what is in the best interest of the child: determining what will promote the child’s welfare and happiness. The judge may wish to shield the children from as many of the harmful effects of a custody battle as possible.

Some judges conduct in camera interviews as a way to better understand the children in every case, while others conduct them only at the request of one or both sides of the case. 

Think very carefully about the impact on your child before you, or your attorney, request that your child be involved in the litigation by testifying, coming to court, or requesting that your child “talk to the judge.”  

What if I don’t want my child to be interviewed in this way?
In camera interviews are at the discretion of the judge and so not something you can decline. It’s understandable to worry that part of your divorce proceeding will take place out of your purview. However, your attorney may insist on his/her appearance for the interview, and the judge’s interest is rooted in making this challenging process as easy as possible for your child. Remember, any information from the in camera interview is not testimony and thus cannot be the sole consideration for a  ruling.

Is there a better way to get the information?
Courtrooms are imposing places with many formalities, and can overwhelm children. The more informal setting of an office, without the children worrying about the impact on one or both parents of what they are saying, can facilitate a more honest exchange.

Also, consider other means to have the child’s voice heard without injecting the child into the litigation. Such considerations include the use of a Guardian ad Litem, a person meeting specific qualifications who is appointed by the court to investigate the issues of custody and parenting time, and then make a recommendation to the court, and/or a custodial evaluator, a psychologist licensed to conduct forensic evaluations of the family and make recommendations to the court.    

Because the in camera interview is not testimony in the case, and is more informal, the judge may ask less daunting questions in attempts to put the child at ease, starting with simple ones like, “When’s your birthday?” and “Who is your favorite Star Wars character?” before gently asking the child to share some feelings about his or her life.

What occurs during the in camera interview cannot be the basis for the the judge’s ruling on custody. There must be other evidence properly introduced and relied on to support the ruling. An in camera interview does not necessarily preclude a child from testifying if the other side subpoenas the child and if the judge allows the child’s testimony in open court, but in certain extenuating circumstances in camera interviews may be helpful to the court, and to the family.  

Door to judge's chambersIs my child competent for an in camera Interview?
Not every child is competent to participate in an in camera interview. A judge must first determine a child’s competency prior to starting the in camera interview.  Factors the judge may consider include:

  • Age and maturity: Is the child old enough and mature enough to answer questions about his or her life?

  • Is the child capable of understanding an oath to tell the truth, and able to understand the importance of telling the truth?

  • What is the relationship of the parents? Is there are chance that one or both parties are attempting to unduly influence the child’s behavior?


Children often feel, regardless of reassurance from their parents, that they are responsible for the divorce. An in camera interview may or may not add to this perception.  

One possible benefit of an in camera interview is that it provides an opportunity for the judge, who is an authority figure and the decision maker, to reassure the child that it is the judge makes the decision regarding custody and parenting time, not the child.

 

 

The Gray Divorce Epidemic: Is There A Cure?

JonHedgepethHHRBy Jon Hedgepeth, Hedgepeth, Heredia and Rieder

You might be hearing the term “gray divorce” more often these days, but I’m sorry to say it has nothing to do with “Fifty Shades of Gray”!  So what does gray divorce really mean?” Basically, anyone who qualifies for AARP, essentially anyone who is 49 or older, could be considered as having a “gray divorce.” More often, when we talk about gray divorce we mean older people who have no children still living at home.

 

Identifying the grays:

  • The kids are gone, so there’s no custody involved.

  • Usually, the partners have been married for a long time.

  • More than half of all gray divorces are to couples in first marriages.

  • 55 percent of gray divorces are between couples who’d been married for more than 20 years.

 

There are many possible factors driving the rise of gray divorce:

  • Feeling that the marriage has run its course.

  • Empty Nest - Couples may feel the children were the reason for the marriage, and now they have flown the coop.

  • Curiosity over whether the grass really is greener on the other side of the fence. There are also greater expectations for happiness in today’s society.

  • Social Media: People suddenly reconnect with people from their past on social media and start to think about “the road not taken.”

gray divorce

The Gray Division

One of the more interesting aspects of gray divorce is figuring out how to divide the assets.  The might be challenging for couples who have been married for decades, as the role women play in society has varied greatly. When a couple married in 1965, there was an expectation for the wife to take care of the home and family. Working outside of the home was the exception, not the rule. That has certainly changed over the last fifty years, leaving a bewilderingly wide variety of work and life experiences.

 

For marriages where both spouses worked, a divorce divides assets in a typical way. In the instance of a spouse who has never worked, there is a possibility of a non-working spouse receiving both an alimony award and social security. The rules for social security are complicated, but the law is clear:

  • First, to receive half of a spouse’s social security, the parties must have been married at least ten years and the spouse must be unmarried at the age of collection (she could have remarried and divorced and still be able to collect from the first spouse). She could still receive social security if the former spouse has not yet applied for social security, but she must be at least 62.

  • At age 62, she can receive half of her spouse’s benefits. If she’s worked and has a social security record, the benefit is based on her own benefit plus an additional amount to get the total benefit equal to half of the former spouse’s benefit. At age 66, she can apply to receive the half amount of the former spouse’s amount.  

  • At 70, if she’s worked and has a social security record, she can decide to receive benefits based on half of the former spouse’s benefit and defer her own benefit so that it will continue to increase until age 70.  At 70, she can choose to switch to receive her own full benefit if it’s greater than half of the spouse’s benefit.

 

Alimony is less clear-cut. For the most part, women today are self-sufficient and have skills to support themselves, and judges are now less patient with women who feel like it is their right to stay home. So, most alimony is rehabilitative, as opposed to ongoing.  


Rehabilitative alimony is intended to be short-lived to help get them back to where they would be if they hadn’t given up opportunities for family life. It gives them time and financial support to accomplish tasks like renewing necessary certifications or completing job training.  But it is designed to be short term during the ramp-up to self-sufficiency.

 

(Photo courtesy Nerdwallet.com)

'Twas the Night Before Christmas ... So Who's Got the Kids?

By Jon W. Hedgepeth; Hedgepeth, Heredia & Rieder

JonHedgepethHHRCustody at Christmastime is an issue as old as the holiday itself.

An unfortunate reality of divorce is that not everyone can have the kids for the holidays. As part of any custody agreement, parents need to establish who is to get the kids, and for how long.

For custody-sharing parents, the December break can be fraught with tension. The days leading up to Christmas are fun and exciting, while the following days are considerably less so. Figuring out what’s “fair,” especially when there is only one actual Christmas Day during the Christmas break, has caused countless couples to revisit their original custody agreement.

When coming up with custody and parenting time guidelines, there will always be a need to accommodate the vagaries of life. What worked last year may not work this year for a variety of reasons. Parents need to work together to decide upon a plan that is best for them and happiest for their kids.

sadsantaPractical or Scorched Earth?

The most acrimonious divorces often end up with parents actually counting the custody days and taking a scorched earth approach to shared custody. There are practical ways to look at splitting up the long holiday period in a manner that is not only more equitable but more in keeping with the spirit of the season. A good parenting plan is one you never really have to revisit because you’ve understood that for it to succeed you must work together.

The best time (and first time) to address custody is at the time of divorce. Your parenting plan should have all holiday issues addressed. People can interpret custody plans liberally, so you need to tighten them down very specifically.

Your Holiday Custody Options

With that said, there are a few basic starting points to work from when devising your holiday custody plan. Here are some options to consider:

Option 1: All or Nothing

HolidayCustodyillustration

Some families trade off the whole holiday break every year, so one parent has the kids for the entirety of the break. For many parents, this allows opportunities for extended trips or family visits. The downside is that on off-years, you will miss seeing your kids at all over the holidays.

 Option 2: Half and Half

Another option is breaking the holiday in half, with one parent getting custody for the first half and the other parent the second, or with one parent getting the kids through Christmas Day and the other through New Year’s Day.

This isn’t always popular, since it means one parent gets the kids for Christmas, traditionally a fun holiday to spend with kids, while the other parent has the kids for New Year’s Eve, traditionally a fun holiday to spend with adults. One solution is to carve out a block from Christmas Day to New Year’s Day, so the same parent gets both the high and the low.

Option 3: The Usual Routine

Some families simply maintain their regular custody routine through the break, preferring to keep a successful schedule instead of disrupting it. This can work well, although it can also lead to one parent having custody on the actual holiday for several years in a row.

Option 4: Creative Solutions

Finding a creative solution means finding a solution that works for you and your family. Maybe one parent stakes a claim on Christmas Eve and the other on Christmas Day, and they build their holiday custody agreement around maintaining this new holiday tradition.

One final note: There are more complaints about visitation before big holidays like Thanksgiving and Christmas than at any other time because people may have made informal agreements in the past and then backed out on them. When people give a little extra time to the other party they expect reciprocity, but that’s hard to enforce. Judges aren’t necessarily going to move any faster just because you want to spend this particular Thanksgiving with your kids.

There’s no single “right” approach to handling holiday custody, but it really helps if the parents can agree on a united plan of action. Trying one approach and finding it doesn’t work isn’t a failure, just a sign. Eventually, working together, you will find an approach that both works for your own special situation and also makes all of your following holidays happier.

###

The January Effect: Start of New Year is the Busy Time for Divorce Filings

 

By Jon Hedgepeth, Hedgepeth, Heredia & Rieder

JonHedgepethHHR

 

Most of us start off the New Year with resolutions to make a change for the better -- lose weight, exercise more, spend more time (or less) with family and friends. As a family law attorney, I know that for some people, their firmest New Year’s resolution is to seek a divorce as soon as the New Year begins. 

Family law attorneys know to expect an uptick in divorce cases as soon as they return to work after the December holiday break. What’s driving this post-holiday divorce rush? There are a few different motives, none as “Grinchy” as you might think.

 

Jon Hedgepeth on 11Alive: http://www.11alive.com/story/life/2016/01/20/divorce-filings-spike-january/78996606/

 January Effect smaller“Pencil me in for that divorce the first Tuesday in January”

 

Parents who are considering divorce in the summer or fall may put it off as kids adjust to a new school year. A few months later they’re anticipating the holiday season and decide to give the kids one last Christmastime as an intact family. By January, with the holidays over and children firmly established in the school routine again, parents may feel things have stabilized enough that the kids will be better able to handle the disruption of a divorce.

 

This thoughtful approach can be a positive sign: timing your divorce with the happiness of the kids in mind is a good start to what can be a contentious process.

 

One more excellent reason couples might wait a little longer is that in order to file jointly for taxes, they must be married on Dec. 31. Waiting until the beginning of the new year to file makes untangling commingled finances a little bit easier, and makes January an even more attractive target.

 

“I can’t take one more year of matching Christmas sweaters with you” 

 

Waiting for a convenient slot on the calendar is not the only driver of post-holiday divorce. For a happy family, the chance to spend so much time together is a gift on its own. For the unhappy couple, all that forced imitation of happiness may be the last straw. People in an unhappy marriage who manage to interact with each other as little as possible most of the year often find themselves in close quarters for extended periods during the holidays … when escaping to work isn’t an option.

 

There are other stressors, including having overexcited kids around all day, having arguments over where to spend the holidays, and more arguments over holiday spending.

 

For those couples, the long-pending decision to divorce can crystallize suddenly. The abrupt decision made during a seemingly endless holiday results in a phone call to a lawyer as soon as possible -- when everyone has returned to a normal schedule after the holidays.

 

In both cases, the desire to put off bad news until after the holidays plays into the timing. The combination of a new school year, the quick approach of the holidays, and the advantage of prolonging the marriage through December encourages some families to postpone seeking divorce until the New Year, while the enforced togetherness of the holidays encourages others to seek divorce as soon as possible.

 

Together, they make January a perfect storm for uncoupling.

###

Myths of Family Law

By Hannibal Heredia, Hedgepeth, Heredia & Rieder

Everyone thinks they know how family law works, but what we see in our pop culture is often at odds with what happens in the real world. Learning about the differences can be an eye-opening -- and sometimes expensive and emotionally painful -- experience. Let’s take a look at some common situations and the “myths” vs. the “realities.”

 

IMG 1065-1 heredia

Hollywood Says I Get Half

 MYTH: “I get half of everything in a divorce, no matter what. I’ve seen it in so many movies!”

 REALITY: Apologies to Tinseltown, but it is not that straightforward. First a judge has to determine if assets are separate property (owned by just one spouse as defined under Georgia law) or marital property (jointly owned as that is defined under Georgia law). Then a determination has to be made by the judge (or jury) about what constitutes “equitable distribution” in this particular case - what is fair.

It’s Mine If My Name is on the Title, Right?

 MYTH: “If my name is the only one on the title, then I retain sole ownership.”

 REALITY: Not necessarily. Property that was originally separate property may become marital property if certain actions are taken over the course of the marriage as provided under Georgia law. Having a spouse’s name added to a deed on what was separate property has a great potential to make that property marital property.

What About the Stuff I Had Before I Got Married?

 MYTH: “If I brought it to the marriage, I can take it away when the marriage ends.”

 REALITY: Again, not necessarily. A house both spouses lived in may be considered marital property if certain actions are taken during marriage, even if only one spouse is on the deed. Setting aside assets as separate property in a prenup can provide protection.  

Prenups Don’t Really Help

 MYTH: “Prenups can easily be overridden by a judge during a divorce.”

 REALITY: Celebrities may challenge their prenups, but that doesn’t mean they will win. A prenup is a legally binding contract and like all contracts has the strength of law behind it. Courts routinely enforce prenuptial agreements, so they can be a valuable tool in preserving your assets. On the other hand, be careful not to sign a prenup giving away rights you would have had otherwise in a divorce.

My Spouse Makes More Than Me, So I Will Get Alimony

 MYTH: “The spouse who makes less, or a non-working spouse, is automatically entitled to alimony from the breadwinner spouse.”

 REALITY:  This is another of those areas where the judge has discretion and will look at factors including: Do both partners work? How long have they been married? What is the standard of living the support-seeking spouse had during the marriage? Does one or both spouses have additional financial resources?

 All these factors and more will go into determining how much alimony, if any, will be paid, and for how long. In general, however, alimony can be less generous, and often doesn’t last as long, as it did for earlier generations.

Does Adultery Matter?

 MYTH: “Adultery isn’t an issue in modern divorce cases.”

 REALITY: In fact, adultery is one of the most common grounds for divorce in Georgia and can still have an impact on certain issues in a divorce. Adultery that is the cause of the dissolution of marriage may bar the “cheating” spouse from receiving alimony. Also, a spouse who allowed their paramour to spend time around the children may find this has a negative effect on their custody arrangements.

Baby Mamas and Baby Daddies

 MYTH: “Both parents of a child share rights and responsibilities for a child whether they are married or not.”

 REALITY: In Georgia, the mother is considered to have sole custody and all legal rights until the biological father legitimates the child. If the father neglects to do this and falls out with the mother, he can find himself cut off from his child until he initiates a legal action to set out his rights. Even after initiation of the suit, Georgia law will allow the court to consider whether it is the best interests that the child be legitimated.

Do Adoptions Have to be Expensive?

 MYTH: “Adoptions are always ruinously expensive, costing tens of thousands of dollars.”

 REALITY: Adoption certainly can be expensive, with costs ranging to $30,000 or more depending on the agency used. In-family adoption, special needs/foster care adoptions and charitable adoption agencies can all lead to a much more affordable adoption.

My Retirement Account Can’t Be Divided, Can It?

 MYTH: “If you try to split an retirement account, you’ll end up paying big penalties.”

 REALITY:  Most retirements accounts and some pensions are divisible in a divorce. Some accounts, such as an IRA, can simply be transferred to another IRA without the need of an additional court order.  Other accounts, such as 401(k), need an an additional court order to be prepared so that the account can be divided. Once the spouse receives his or her share from the other’s spouse retirement account, the receiving spouse may have to pay taxes and penalties if he or she withdraws funds from the account after the division.  Many pensions,such as those related to a governmental entity, cannot be divided by the court.   

The Takeaway

 Go into any legal proceeding with an open mind. Know what outcome you want but be willing to listen to your attorney about how likely that outcome really is. If your lawyer says that your expectations are not realistic, it may be time to revise them. Remember your attorney wants the best-case scenario for your case, because then you both end up with the best result possible.

###