Which provisions of a parenting plan are most likely to be used as a weapon in a high conflict case? Here are my nominees.

Number 3.    You need my permission to take the children out of state or out of the country. Many, many parenting plans still include a provision that one parent can’t travel out of the country, or even out of the state, without the other parent’s permission. Now I can understand the provision applying to out of country travel, at least as it relates to long trips abroad, and especially to countries that may be iffy as far as security. (Don’t get me started on trips to Mexico . . . that requires a post all to itself.) But the requirement that the other parent’s permission is needed to take the children on an out of state trip has me flummoxed. Why? Is there an allegation that North Dakota is contrary to the children’s best interests? Now, if that prohibition applied only to trips to Florida, I could almost understand it.

Even when this provision applies only to out of country trips, it is often misused by a parent forbidding a Caribbean or Disney cruise or a trip to a Mexican resort. I recommend that this provision be drawn narrowly, to provide that permission is necessary for travel out of the United States, except for trips of less than eight days involving a commercial cruise. That exception would take get rid of probably 80% of the time and money expended on fights about travel.

Note that my comments above apply only to “permission” required of the non-traveling parent. NOTICE of the trip, including all aspects of the travel itinerary and where the child will be sleeping at night, should always be given to the non-traveling parent.

Number 2.    Telephone contact with the noncustodial parent. “The parent who does not have the children is entitled to reasonable telephone contact during normal waking hours.” That’s great, except what is reasonable? And if normal waking hours are considered to be 7am to 8pm every school day, does that mean the noncustodial parent can routinely telephone the children before school? While driving to school? Immediately when school is dismissed? During dinner hour? If the parents are truly reasonable, then this clause is fine (and, one might note, they don’t need the clause at all). If the parents have different ideas about what’s reasonable, then a clause that states something more specific is in order. The parents need to discuss whether the children (not the parents) truly need to speak with the other parent every single evening. Clauses providing for telephone contact every other day, or every third day, might be much more practical. And, a clause providing that “the children will be made available on the custodial parent’s land line number every other evening between 7-8pm to receive a telephone call from the noncustodial parent for approximately 10-15 minutes’ duration” might be best of all.

And the Number 1 Misused Provision: No surprise here: the first right of caretaking clause, in all its various forms, continues to be the biggest point of contention between parents who want to fight. Whether it’s leaving the kids with a stepparent, a grandparent, your next door neighbor, or letting the little ones attend an overnight at a friend’s house, Parent A is likely to claim that if Parent B “isn’t there to exercise his/ her parenting time”, then “I get them before anyone else does.” Disclaimer: I’ve been ranting on this provision since I wrote Second Thoughts on First Right of Refusal in 2008 (and I wrote an article in a Family Law Section newsletter even before that, I think).

If two parents agree to this first right of caretaking clause after a thorough discussion and having a chance to examine how it will really work, that’s great, and in those cases, the provision should be enforced. Too often, that provision is included as “boilerplate” in a parenting plan, and one or both parents sign off on it without thinking through the ramifications. That’s where the post-Parenting Plan trouble starts.

Seth Godin’s post today can be easily applied to conversations and emails between parents:

“If you escalate (cut off in traffic, angry at the gate agent, frustrated at your boss), you’ve just added (negative) energy to a conversation.

If you escalate (high-pitched enthusiasm, a hug, encouraging words), you’ve just added (positive) energy to a conversation.

Once the energy is added, it has to go somewhere. Often, the person you’re engaging with throws it right back, or even increases it. A talented, mature person might take your negative energy and de-escalate it, or even swallow it and permit the conversation to calm down or end. But don’t count on it.

Sure, you can ‘win’ a conversation by overwhelming your opponent with energy they can’t handle. But of course, they’re not your opponent and you don’t really win. Being aware of the energy you add or take from interactions is a sophisticated technique that radically changes the outcomes of the conversations that fill your day. Add the good stuff, absorb the bad stuff and focus on the outcomes, not the bravado.”

I see examples of escalated conversations every day, usually negative and often off-the-charts so.   It’s satisfying to occasionally see the other party de-escalate, disengage, or somehow let the negative energy go and not feel obligated to respond in kind.  It’s not easy, but that talent comes with practice.    And I know the person who has mastered that talent of letting go feels better and has improved his  or her own life by doing so.

This is a fresh look at a post from March, 2011.    Another refreshed post, Part I of this title, was posted on January 20, 2013.

Once a parenting coordinator is assigned and you think there are issues to be addressed by the PC, what information does the PC need to get started?  What information does he get from the court and what do the parties need to provide?  What can counsel do to help and to get the case in the hands of the PC as quickly as possible?

There is information that the Parenting Coordinator needs, especially at the beginning of the case, that can make the process move more quickly.   When the PC is appointed, he gets little if any information about the client and family.  If the client is represented by counsel, the PC doesn’t even get an address, phone number or email for the client.   The PC’s only contact information is through the attorney.    That’s why the PC’s opening letter and/ or email usually goes only to the attorney, with the expectation (and hope) that the attorney promptly forwards all information to the client.

Most importantly, please know that the PC is not automatically provided with the Parenting Plan from the court.    The first thing the PC needs, in my opinion, is the current Parenting Plan.   Sometimes this is one document and sometimes the Plan consists of several documents, court orders, and modifications.  All the documents need to be provided to the PC.

Up-front information to the PC.    Counsel can help the PC process a lot if the following information is send to the PC immediately upon appointment:

• A copy of the CURRENT, fully-executed and court-ordered Parenting Plan;
• The names and ages of all children involved, if not included in the Parenting Plan (many times this information is NOT in the plan, especially if the plan is a minute entry order from the court);
• The full names, addresses, telephone numbers and email addresses of both parties;
• Whether there are any Orders of Protection or any other restraining orders in effect (and if so, a copy of the current O/P); and
• A “heads up” on any immediately pending issues (such as telling the PC on March 10 that spring break, which starts on March 14, is a contested issue).

As noted in the January 20, 2013 post, any information sent to the PC should be copied to the other party or counsel.

Attorneys should be careful to let the clients know ahead of time that PCs cannot act on financial issues.  I find that most clients know this before coming in, but the ones who haven’t been told that are usually upset to find out that’s the case.   The same applies to a request for  a significant change to parenting time.   I still meet with a number of clients every year who want to tell me why I should recommend a change from a limited (weekend only) parenting time schedule to 50-50 timesharing, or the reverse.    While the limitations on a PC’s authority are spelled out in the order of appointment, remember that the clients rarely read that order and the limitations of authority should be repeated to the client, more than once.

The Order of Appointment specifies that a PC is to act (get information and make recommendations) on issues even if one party won’t participate (or won’t pay).  Some PC’s won’t do this, but the Order of Appointment states:

If either party fails to participate as requested by the Parenting Coordinator, then in addition to all other remedies available under law, the Parenting Coordinator may proceed and make recommendations regarding the dispute, if necessary, without the participation of such party.

It’s easy to see how the parenting coordination process can be derailed by one party’s refusal to participate, to pay, or to contact the parenting coordinator once issues are raised.  In many cases where the court  has appointed a parenting coordinator, the court is expecting some action and recommendations from the Parenting Coordinator because court time for that issue is so limited and may be scheduled far in the future.   I personally feel that a PC is shirking his duties to some extent, and failing the court, if he refuses to proceed on an important issue because one parent refuses to cooperate.    A party always has the opportunity to file a Motion with the Court and ask that the PC’s appointment be terminated (because it’s not affordable, for example).   It’s always up to the Judge if an appointment should be terminated, as the Court issued the Order of appointment in the first place.

Super-PC powers. If the attorneys or the clients want to leave some substantive issue to be determined by the PC, more than just the standard Order of Appointment of Parenting Coordinator is needed.  It is not uncommon for the parents and attorneys to agree that a certain person can make a final decision about parenting time recommendations, the designation of custody, or a substantial change to parenting time.    When that occurs, the case needs an Order pursuant to Rule 72.    While it’s tempting to always think “Parenting Coordinator” if you’re dealing with custody or parenting time issues that need resolution, it may be that the case needs a Family Law Master (Rule 72) to resolve what is needed.   If the attorneys are considering appointing either an attorney or a mental health professional as a Family Law Master, to decide issues which are not usually decided by a Parenting Coordinator, it’s a good idea to contact the professional ahead of time and ask if he’ll be willing to act in a Family Law Master  status.  Most experienced attorneys who are PCs will have experience acting as a Master and will accept such an appointment.   A mental health professional who acts in a PC capacity may not have a complete understanding of the additional powers granted to a Family  Law Master, or may not feel comfortable in that role.

This is the third of three posts about Rule 10, Arizona Rules of Family Law Procedure.   Rule 10 covers the use of either a best interests attorney or an attorney for the child in a family court proceeding.  What’s the difference between a best interests attorney and an attorney for the child?   That distinction, too complex to deal with in a Rule, comes from other sources referred to in the Comments to Rule 10:

COMMITTEE COMMENT [AMENDED 2007]

The American Bar Association Standards of Practice for Lawyers Representing Children in Custody Cases, adopted August 2003, provides guidance to the court, counsel, and litigants about the appointment of attorneys for children. The Standards include suggestions about when and how an attorney should be appointed, and in which capacity, and detail what the attorney’s responsibilities are to the court and the client.

A court-appointed advisor shall not function as an attorney but shall independently investigate the case and make recommendations to the court. The National Conference of Commissioners on Uniform State Laws 2005 draft of the Representation of Children in Abuse and Neglect and Custody Proceedings Act provides guidance to the court, court-appointed advisors and litigants about the appointment of court-appointed advisors, as well as their role and responsibilities.

(The latter Act was last revised/ amended in 2007, not 2005 as the Rule Comment states.)

At the risk of oversimplifying, the easiest answer to the difference between the two types of attorneys is set out in the ABA Standards of Practice:

“Child’s Attorney”: A lawyer who provides independent legal counsel for a child and who owes the same duties of undivided loyalty, confidentiality, and competent representation as are due an adult client.   

“Best Interests Attorney”: A lawyer who provides independent legal services for the purpose of protecting a child’s best interests, without being bound by the child’s directives or objectives. 

(Emphasis added)

So, the oversimplified explanation of the two roles is that an attorney for a child treats the child as an adult.    Positions for hearing are discussed with the child along with the reasonableness and legal ramifications of them, and the child’s wishes are advocated by the attorney.  The attorney does not substitute his or her judgment for the child, even if the attorney has a different view of what might be best for the child.    As with adult representation, however, the attorney can explain to his child-client that the attorney feels the child’s position or wishes are not justified or may not be adopted by the court, and the potential ramifications of taking those positions in court.  If the child insists that his wishes be promoted, the attorney must either advocate for those positions or withdraw, if he cannot.    The best interests attorney must, however, gather information from all available and relevant sources and come to his or her own conclusion about what is in the best interests in a particular case, and then files a position statement and examines witnesses designed to promote that best interests position to the court.

The age of the child-client is obviously crucial in these two roles.    While no specific age parameters are set, it would be difficult or impossible to act as attorney for a child who is simply too young to promote a position or discuss the ramifications of taking a certain position.     It is probably safe to assume that a child younger than eight is not competent to understand concepts sufficiently to be represented “as an adult”, and therefore a best interests attorney is the only option for an under-eight child.    Similarly, children age 12 and over may be presumed to have the necessary skills to understand concepts to assist in their own representation, and therefore a child’s attorney may be the best option for ages 12 and over.  That analysis (strictly my own) leaves children ages 8-12 in a zone of uncertainty.    An attorney appointed in either capacity for children age 8-12, or for children whose cognitive abilities are compromised by learning disabilities or other factors, or who show a great level of immaturity, should ask for guidance from the court if the attorney determines that he or she may have been appointed in the wrong capacity for the case.   A thorough review of the ABA Standards of Practice should also be made.   Some of the duties listed in the Standards apply to both types of representation, and the Standards give valuable advice about particular situations such as potential conflicts of interest between children of different ages and interests.

This post is the second of three about Rule 10, Arizona Rules of Family Law Procedure.    Rule 10 deals with the use of a best interests attorney, attorney for a child, and a court-appointed advisor (CAA) in family court proceedings.

How each role participates in courtroom proceedings and litigation is described in Rule 10E:

E. Participation in Proceeding by Child’s Attorney, Best Interests Attorney, And Court-Appointed Advisor.

1. A child’s attorney or best interests attorney shall participate in the conduct of the litigation to the same extent as an attorney for any party.   [Note:  This means that these individuals may call witnesses, cross-examine witnesses, file pleadings, motions and position statements, and participate in any scheduled proceedings such as RMCs and status conferences as well as hearings.]

2. A child’s attorney, best interests attorney, and court-appointed advisor may not engage in ex parte contact with the court except as authorized by law other than this rule.

3. A court-appointed advisor may not take any action that may be taken only by a licensed attorney, including making opening and closing statements, examining witnesses, and engaging in discovery other than as a witness.   

4. The court shall ensure that any court-appointed advisor for a child has an opportunity to testify or submit a report setting forth:

a. the court-appointed advisor’s recommendations regarding the best interests of the child; and

b. the basis for the court-appointed advisor’s recommendations.

The above section more clearly clarifies that a CAA’s role is similar to a Guardian ad Litem’s (GAL) role in custody cases.  GALs are no longer used in family court proceedings in Maricopa County.   The report and recommendations given by a CAA will be very similar to reports that used to be given by GALs in those proceedings.   See Rule 10I, which provides that the court “SHALL NOT appoint a guardian to act on behalf of the minor or incompetent person, except as provided by Title 14.”   (emphasis added)

5. In a proceeding, a party, including a child’s attorney or best interests attorney, may call any court-appointed advisor for the child as a witness for the purpose of cross-examination regarding the advisor’s report without the advisor’s being listed as a witness by a party.

6. An attorney appointed as child’s attorney or best interests attorney may not:

a. be compelled to produce the attorney’s work product developed during the appointment;

b. be required to disclose the source of information obtained as a result of the appointment;

c. submit a report into evidence; or

d. testify in court.

The above subsection was included to emphasize that when acting as a best interests or child’s attorney, the role is virtually the same as acting as an attorney for an adult, in that confidentiality and work product are preserved, and that the attorney is not a witness.

Even with no recent cases or guidance from the courts or rules committees on Rule 10, revisiting this Rule seems appropriate.   Rule 10 is a primer for three main classes of representation in custody cases.   Two of these roles are more traditional attorney representation and those two roles may only be filled by a licensed attorney.  The third class of representation is a court appointment, aptly titled Court-Appointed Advisor (CAA).   A CAA may be either an attorney or a non-attorney, but in either case, the appointee must have experience appropriate to the case.

This post is the first of three to address Rule 10.   Direct quotes from the Rule are in gold, below.

Rule 10A(1), Appointment of Child’s Attorney, Best Interests Attorney, and Court-Appointed Advisor, provides:

1. The court may appoint one or more of the following:

a. a best interests attorney;

b. a child’s attorney; or

c. a court-appointed advisor.

Note:  While the Rule permits more than one of these to be appointed in a single case, the roles of the best interests attorney and the court-appointed advisor may have significant overlap.

Subparts B and C of Rule 10, go on to define who may act in these three roles:

B. Qualifications of Child’s Attorney or Best Interests Attorney. The court may appoint as a child’s attorney or best interests attorney only an individual who is qualified through training or experience in the type of proceeding in which the appointment is made, as determined by the court and according to any standards established by Arizona law or rule.

C. Qualifications of Court-Appointed Advisor. The court may appoint as court-appointed advisor for a child only a qualified individual or a non-profit or governmental organization of qualified individuals. To be qualified, an individual must have received training or have experience in the type of proceeding in which the appointment is made, according to any standards established by Arizona law or rule. An attorney appointed as court-appointed advisor may take only those actions that may be taken by a court-appointed advisor who is not an attorney.

The last sentence of sub-part C, stating that if an attorney is assigned the role of CAA, the attorney make “take only those actions that may be taken” by someone who is not attorney, makes it clear that a CAA does not examine or cross-examine witnesses.  See the discussion of Rule 10E(3) below.    A CAA has a different function in the courtroom than that of either a best interests attorney (BIA) or an attorney for the child, and those courtroom roles are more specifically addressed in Rule 10E, below.

All three roles have great access to information about the family and child, as listed in Rule 10D:

D. Access to Child and Information Relating to Child.

1. Subject to subdivision 3 and any conditions imposed by the court that are required by law, rules of professional conduct, the child’s needs, or the circumstances of the proceeding, the court shall issue an order of access at the time of an order of appointment, authorizing the child’s attorney, best interests attorney, or court-appointed advisor to have immediate access to the child and any otherwise privileged or confidential information relating to the child.

2. The custodian of any relevant record relating to a child shall provide access to a person authorized by order issued pursuant to this rule to access the records.

3. A child’s record that is privileged or confidential under law other than this rule may be released to a person appointed under this rule only in accordance with that law.

The next post will focus on how each type of role participates in the courtroom and litigation.

“He’s horrible to me; why should I be nice?”

“I have to respond to her accusations, because if I don’t, everyone will assume they’re true.”

“She just gets me so worked up. When she starts screaming in front of the kids, I get so mad I can’t help myself.”

Lots of sources try to offer advice about co-parenting, and some of it, like this article from HuffPost Divorce, is helpful where both parents are really trying.    The more hardcore cases need resources like Bill Eddy.  A book called Joint Custody With A Jerk has been around for years, and it’s pretty good. But some Amazon reviews of it claim that even with that great title, the book doesn’t deliver on how to deal with a truly mean person who’s your co-parent. Suggestions like “tell the other person that the behavior makes you ‘feel upset’” seem ridiculous if the ex is routinely telling you to go screw yourself. They KNOW they’re making you ‘feel upset’— that’s the point.

We have to accept that some people are out to make your life miserable, or worse. Some love the hostility and use every co-parenting opportunity to inflict pain. And you still have to deal with him or her, so work on the only thing you can change: yourself.

1. Recognize you can’t change the other person. Say it out loud and surround yourself with friends who will repeat that to you. If you stop trying to change him, he might (eventually) stop trying to control you. Even if he doesn’t stop, changing what you can (you and your own attitudes) will make your life less stressful. That’s winning.

2. Give up the need to get her approval, to prove you are right, and to get an apology. That’s never going to happen.  Seek the solution that you know is best for your kids OR a resolution that you can live with (even if you don’t think it’s the best one), and get the fight done with.  And then let it go.

3. Stick to the topic at hand. Keep it simple. Quit preaching. If preached to, learn to ignore, ignore, ignore.

4. Avoid words like “always” and “never”. They diminish your ability to resolve the issue by making it bigger and more dramatic than it is. “You’ve always made it difficult for me to go on vacation” is just another way of rehashing the past and showing that you can’t get over it.

5. And in that vein: Keep the conversations in the present. Do not bring up the past. It’s done. Move on.

6. Leave sarcasm at the door (or the office, or wherever it’s appreciated). Pissing someone off never got them to agree with you. In fact, if you’re communicating with a truly bad person who likes the fight, sarcasm is giving them the fuel to continue it.

7. Don’t get defensive or side tracked. If your co-parent is a dirty fighter—bringing up the past, calling you names, blaming — don’t get sucked in.    Try to sit back and examine, with some sense of detachment, what the other person is trying to do to you. What’s that old joke? Don’t wrestle with a pig, because you’ll get filthy and the pig just likes it.

8. Focus on your kids’ needs, not your own. If you find yourself saying how important it is to the kids that the parenting plan be strictly followed, and therefore they are staying home with a babysitter on Saturday afternoon instead of attending the Diamondbacks game with Dad (because it’s not officially his parenting time), you’re failing.

9. Don’t play games. Be as accountable, responsible and reliable as you want your co-parent to be, even if you feel the favor is never, ever returned. This isn’t being soft; it’s good common sense. I’m not telling you to be a doormat, just an adult.

10. NEVER fight in front of your children, or involve them in any way in the conflict. This includes bad mouthing, sarcasm and even eye rolling. If the other parent is doing that in front of the kids, remove them as quickly as possible. Don’t fall to the other person’s level. Try to pretend that you and your kids are witnessing a stranger acting badly, and you have to be the grown-up and get them out of the situation as quickly and safely as possible. Then don’t bad-mouth the misbehaving parent. Just tell the kids “I’m sorry you had to see that” and go on with life.

11. Stay calm. Even if your co-parent is screaming, you don’t have to scream back. It really does take two to fight. If the other parent tries to bait you (always, right?) ignore it and go back to all the numbers above. FAKE IT TILL YOU MAKE IT.

12. If you truly can’t stop yourself from reacting to their venom, accusations, screaming or whatever, then admit you have a problem and get help. If a person has the kind of control over you that means you don’t have control over yourself, you need professional help to find out why and how to change.

This is a slightly updated version of a post from October, 2011.   Most of the information about parenting coordination remains the same but it never hurts to refresh.

Parenting Coordinators have different training, backgrounds, and styles. If you are involved in the choice of the PC (as opposed to simply having the judge choose a name from the Maricopa County court roster), consider what background and style will best suit the family you’re working with. Although judges can use the roster to randomly choose a PC, the judge may not have enough information about the family to give the background and styles enough weight.

Is this a very high conflict case, with little communication between the parents? Or is this a family where the parents attempt to communicate but need help with doing so effectively? Are there Orders of Protection in place; are there therapists and counselors involved with any family members? Is the purpose of a PC to coordinate between other professionals, or to work out a few missing elements of the Parenting Plan? Should the therapist take on a more therapeutic model in order to work with the parents together to create a better working relationship, or do these parents need strict rules and structure with fairly quick decision-making done for them? All of these considerations will help the parents and the attorneys choose an appropriate PC.

It’s helpful if each attorney will speak carefully with his client to let them know that some PCs are counselors and some are attorneys, to find out which the client will be more comfortable with.

It’s also possible that after trying a PC with a particular style, the family or the PC (or both) determine that a different type of PC would be of more assistance, and in that case a change of PC can be accomplished by stipulation.

Care and Feeding of Parent Coordinators

It’s a good idea to check with the office of the proposed PC, before he is appointed, to make sure that person has time to get involved with your case.  This is especially important if immediate action is necessary or a hearing is coming up. If the family has been in the court system for awhile and has had contact with multiple attorneys or mental health professionals, also do a conflicts check ahead of time. When money is an issue (which is almost always), find out the PC’s payment and advance fee deposit requirements, and ask for a copy of their PC Agreement so your client is familiar with it before the appointment is made.

Be sure to use the appropriate form of Order to appoint the PC. Although the attorney can prepare the Order, it’s generally best to ask the Judge to enter the Court’s form of Order.  This ensures that all provisions required by Rule 74 are covered in the Order. In the Maricopa County form of Order, the provisions for payment, division of financial responsibility between the parties, requirements for the PC’s recommendations, and specific instructions to the clients are included in the appointment Order.

Please emphasize to your client that it’s very important to READ the court’s order of appointment, and important to READ the PC’s Agreement.  Those two documents explain the vast majority of questions that your client will have.  Every PC’s office spends a great deal of time answering questions that were already answered in those two important documents.

Please note that a PC cannot ethically get involved with a case or either of the clients until the Court’s Order of Appointment is signed. Even if the parties have stipulated to a PC, or included a statement in their Decree such as “Annette Burns will be the parties’ PC”, that is NOT an Order of Appointment. Until the court signs a formal Order appointing a PC, the PC has no authority in the case. It would be a waste of everyone’s time and money if anticipated PC met with one or both clients before the Order is entered, as the PC would have no authority to make any recommendations or get anything done in the case.

Note that the Court’s Order of Appointment can be supplemented with a separate Order (usually a minute entry) that gives the PC more information about specific issues that need to be covered. The most helpful supplemental Orders will tell the PC that a hearing is being held in 60 days on the issues of [for example] “school choice, a change of the exchange location for the children, and the allocation of spring break”. This tells the PC what to focus on immediately. It is also VERY helpful if the PC is provided with any current Orders of Protection or other restraining orders immediately.  While a domestic violence assessment is done early in each PC case, having the documents up front is very, very helpful.

If your PC is an attorney, he will likely have access to the entire court file through the ECR system (Maricopa County), so he can see all documents and pleadings filed in the case. If your PC is not an attorney, ECR may not be available to him, so keep in mind that non-attorney PCs may need to be provided more court documentation from either the client or the attorney.

There is usually little if any attorney involvement with the PC. Attorneys are welcome to write to the PC and provide necessary documentation or information, so long as all writings and documents are simultaneously provided to the other party. The standard appointment Order in Maricopa County specifically provides “If either or both parties are represented by counsel, there shall be no ex parte communications between the Parenting Coordinator and counsel except if such communication relates solely to scheduling matters.”   (Emphasis mine.)     So, if one parent’s attorney calls up the PC and says “I’d like to chat about the Jones case”, the response from the PC’s office will be “Sorry, can’t do that.”     When I am PC, I am always glad to set up a conference call to speak to both attorneys together, and I imagine that most PCs will do that if requested.

Note that a change to Rule 74 that took effect on January 1, 2011 provides: “Counsel are not permitted to attend parenting coordinator meetings unless agreed to by the parties and the parenting coordinator, or ordered by Court.” While I’ve never had a situation where counsel wanted to attend a parenting coordinator meeting with his client, I’ve heard that this was an issue with other parenting coordinators, so the 2011 rule change resolved that issue.

Part 2 of this post will address what information the attorney can offer to the clients and to the PC ahead of time to make the PC experience better for everyone.

Social media can be a weapon in a divorce or contested parenting time proceeding. Here’s some information about using social media if you’re involved in a court case for divorce or parenting time.

Social media means a wide variety of things—Facebook, Twitter, LinkedIn, Vimeo, blogging, Tumblr, Pinterest, etc. etc. For ease, I refer mostly to Facebook below, but all these things apply to anything that’s posted online.

Anything you post is fair game and likely to turn up in court.

Just because you deleted something from Facebook doesn’t mean it’s gone. If it had to do with your ex or your divorce or your frustration about those things, it’s highly likely that someone grabbed a screen shot of it while it was posted, and that the screen shot will end up in your ex’s hands.

Copies of what’s posted on Facebook ARE admissible in court and those things are sometimes of interest to the judge.

Posting about how rotten your child’s other parent is WILL be of interest to the judge and will not make you look good in court. And, the judge will want to know why you felt it necessary to publicly post things about your divorce.

Posting pictures of yourself partying or with alcohol or drugs WILL show up in court and those things WILL be of interest to the judge and a custody evaluator. Set your privacy settings so that you can’t be tagged in someone else’s picture without your consent—and be very stingy with giving that consent.

Sometimes it’s not WHAT you post but WHEN or WHERE you post from that gets you in trouble. Checking in from a bar at a time you’re supposed to be caring for your children will work against you in court.

Things you post online are good evidence of your credibility.

Things you post online may be evidence of your income, your job prospects and your parenting ability.

After a divorce or parenting time action is going on, don’t go online and delete everything in your online accounts. That’s called “spoliation” of evidence and it’s illegal. And all that stuff can be retrieved from the online provider anyway. You CAN (and should) make your online accounts inactive during a parenting time case, which is different than deleting things. A Judge might later order you to make the account active again in order to provide evidence.

When a divorce or parenting time action starts, remember to unfriend or delete not only the other party, but also unfriend his or her friends and family members and mutual friends. Anything you post that can be viewed by even a distant acquaintance of his or hers is going to get into the other person’s hands very quickly.

Don’t post pictures of your children online where they can be seen publicly, or even by friends or friends. Make sure your privacy settings are very strict. Parents often disagree about the posting of children’s pictures online. You can share pictures of your kids with family members in private ways (private emails or pages that can be viewed only by selected family members, or through services that require a password), but anything shared beyond family members could become problematic in court.

Technology traps that divorcing people fall into.

The iCloud. If you use iCloud or any other web-based service to back up your phone, laptop or other device, remember that your iCloud account may be linked to a shared family iTunes account. If your spouse has the password, he or she can login into iCloud from any computer and access email, texts, calendars and any other information you choose to store on the cloud.

Browser history. Deleteit. Whether you researched divorce laws, lawyers, or a new place to live, you are leaving a trail for your spouse to see.

Linked Devices. The iPad you left at home may still be connected to your iPhone. If that’s the case, your calendars, email and some text messages may be viewed on the iPad. If you are going to leave the iPad in the hands of your soon-to-be-ex, you should remove your personal information from the machine and stop the iCloud or other automatic connections between the devices.

Location services on your phone or iPad can be used to track your whereabouts. Location services applications that allow you to locate a missing phone, laptop or other device can also be used to locate you. If you have “Find my iPhone” or “Find my iPad” enabled and your spouse knows the password to that account, your spouse can either track you, or simply erase everything on your phone/ iPad. Not pleasant.

If you get a new phone and give the old one to one of your children, REMOVE ALL YOUR DATA. Restore the phone to factory settings. If you don’t know how to do this, take it to the provider store and have them do it.

Automatically stored passwords. Your Facebook and other password may come up automatically on a computer you leave at home, your iPad and your phone. Be more diligent than ever in protecting all your electronic devices, and don’t leave them in a car or lying around your office.

Automatically stored credit card information. Many people leave their credit card numbers with trusted sites like Amazon. If your spouse has access to that account with stored credit card information, s/he can order tons of merchandise sent to himself/ herself. Get on Amazon and any other sites where you’ve regularly ordered from, change the password (see below), and/ or delete all credit card information.

Don’t forget bank account access information. A spouse can view all your bank information, including the location of ATM withdrawals, all your debit card use, and bank balances. And, by using inter-account transfers or bill pay, a spouse could have money transferred/ paid out of your account, either directly to the spouse or to pay his/ her bills.

Change Your Passwords/ Change your Passwords/ CHANGE YOUR PASSWORDS. It’s very common for a spouse to know the other spouse’s most common passwords, or at least be able to answer the secret questions to get into an online account. A divorce is the time to start over with entirely new passwords that have never previously occurred to you. Find a song that your spouse would never think of and use the first letters of a favorite line of that song as your password, combined with a number that means something to you but isn’t a number that you’ve used in the past or that your spouse would associate with you. Using your own or your children’s birthdays in passwords is gone forever.

As far as “secret questions”, they are rarely very good for keeping secrets.   Your spouse is bound to know your mother’s maiden name. Use the most obscure “secret question” you can find.  I recent saw one provider using your maternal or paternal grandfather’s first name—-that’s a little more likely to be unknown to your spouse.   You also don’t have to honestly answer the security question.   You can decide that your mother’s maiden name, for security question purposes, is “Streisand”.  There’s no law against making up something to enhance security.

The new passwords should apply to all email accounts, bank accounts, and online accounts of any kind. Even your NetFlix account could cause you problems, so change it along with anything else.

Lifehacker.com is a great way to stay current in password and online safety.

Two-factor authentication  is available for many accounts including Gmail, Facebook and Dropbox.  Here’s a good Lifehacker article about two-factor authentication.   When you set your new password, find that provider’s double-authentication procedures and set them up. Yes, these additional authorization is (briefly) a hassle, but the benefit is that if someone tries to access your account from an unrecognized computer, you will receive a text message telling you about the attempt. Access will only be permitted after you enter a passcode that is texted to you. Once you’ve entered the passcode for your own computers or iPad, you can indicate that those computers are “recognized” and won’t need passcodes for those computers.

Open a new, secure email account to communicate with your attorney. Apply two-factor authentication (above) to that account. NEVER use an office email account (owned by your employer) to communicate with your attorney, as that can breach the attorney-client privilege. You have no reasonable expectation of privacy in email communication s made on an office account, as that account belongs to your employer. Many employer-based accounts even include a clause at the end indicating that all emails remain the property of the employer. This means that your employer can access these emails, read what you thought was privileged information, and the employer may have to produce that information pursuant to a subpoena.

We’ve seen the standard language in an Arizona Decree of Dissolution and/ or Property Settlement Agreement:

“[Husband/ Wife] is awarded the tax dependency exemption for the minor child so long as [his/her] child support obligation is current not later than December 31 for the year in which the exemption is to be claimed. [Husband/ Wife] is ordered to execute and deliver IRS Form 8332 releasing the exemption to [Husband/ Wife]. ”

Unfortunately, things don’t always work out the way the Decree anticipates. Let’s say that Husband is awarded the dependency exemption, provided that his child support is current. That language, by the way, comes directly from Arizona’s Child Support Guidelines, Section 27, which states:

In any case in which the current child support obligation is at least $1,200 per year, there should be an allocation of the federal tax exemptions applicable to the minor children which as closely as possible approximates the percentages of child support being provided by each of the parents. If it is determined that a party who is otherwise entitled to the dependency exemption based upon the above percentages will not derive a tax benefit from claiming the dependency exemption, the exemption should be allocated to the other party. The allocation of the exemptions shall be conditioned upon payment by December 31 of the total court-ordered monthly child support obligation for the current calendar year and any court-ordered arrearage payments due during that calendar year for which the exemption is to be claimed. If these conditions have been met, the custodial parent shall execute the necessary Internal Revenue Service forms to transfer the exemptions. If the noncustodial parent has paid the current child support, but has not paid the court-ordered arrearage payments, the noncustodial parent shall not be entitled to claim the exemption. (Emphasis added)

EXAMPLE: Noncustodial parent’s percentage of gross income is approximately 67% and custodial parent’s percentage is approximately 33%. All payments are current. If there are three children, the noncustodial parent would be entitled to claim two and the custodial parent would claim one. If there is only one child, the noncustodial parent would be entitled to claim the child two out of every three years, and the custodial parent would claim the child one out of every three years.

For purposes of this section only, a noncustodial parent shall be credited as having paid child support that has been deducted on or before December 31 pursuant to an order of assignment if the amount has been received by the court or clearinghouse by January 15 of the following year.

Note that the Guidelines don’t mention IRS form 8332 in any way.

You being the intelligent attorney that you are, you make sure the requirement of a signed Form 8332 is in your final documentation. Then your client calls you and states that the ex-spouse never executed the Form 8332 for the required year, even though his child support was clearly current, and even though the Decree requires her to sign. What do you tell the client?

Clients are often told (either by attorneys or by their tax preparer) to attach the copy of the Decree that awards them the exemption. Does that work? Not according to tax court decisions. In Hanson v. Commissioner, David Hanson did attach the Decree that awarded him the exemption. But the award was not “unconditional”. Per the child support Guidelines’ wording as stated above, the award of the exemption was conditional upon current child support. As the IRS is in no position to determine if child support is current (and has no interest in getting involved in that issue), the Decree language did Mr. Hansen no good. His only recourse was to return to State Court and ask that court to enforce its order, presumably including monetary sanctions for the loss of the exemption, against his ex-spouse.

Even after chasing an ex-spouse down in State Court to obtain a signed Form 8332, it may be too late. In Browning v. Commissioner, Mr. Browning could not get the 2007 Form signed by his ex-spouse until sometime in June 2012. The ex-Ms. Browning had in fact claimed the exemption herself on her 2007 return, even though it was awarded to Mr. Browning. By the time she finally signed the Form 8332, statutes of limitation on the 2007 returns had elapsed, meaning that if the IRS allowed Mr. Browning to take the exemption on an amended return, the exemption would have been used twice. Mr. Browning, therefore, lost with the Tax Court.

Villagrana v. Commissioner    In this case, Wife was required to execute the appropriate form releasing the exemption to Husband, if he stayed current in child support.    The Court here affirmed the requirement that the form itself must be attached to Husband’s filed return for him to claim the exemptions.

Armstrong v. Commissioner   In this case, the tax court actually felt sorry for the child support payor, and yet didn’t offer him relief in the form of the exemptions.    Because he didn’t have the signed Form 8332, he was out of luck.

And finally, in George v. Commissioner,  the Tax Court had to get involved in the issue of child support arrears (which I’m sure it was not happy about), because the Wife was subject to an order of the lower court to sign the form, and yet she claimed that child support was not current.   She did sign, but claimed the form should be disregarded because the condition was not met.   The Tax Court was at least somewhat consistent when it ruled that because the form was signed, Husband got the exemption, presumably leaving the issue of child support arrears to be hashed out in state court.    The Tax Court punted somewhat by stating:   “If the State court did err by ordering Ms. George to do something that legally she should not have been required to do, then her remedy is not found in the U.S. Tax Court but rather in an appeal to the State appellate court.”

Credit for the compilation of these recent exemption cases goes to Peter J. Reilly of the Forbes.com blog “Passive Activities”.

IRS Publication 501 covers dependency exemption issues and requirements, including Form 8332.

The bottom line:  Before fighting about the dependency exemptions in either state or Tax Court, quantify what it’s worth to your client. In 2012, each exemption is worth $3800.  That’s not a $3800 savings to the filer; that’s a $3800 deduction.   At a 25% tax rate, one exemption is worth $950 per year to the tax filer ($3800 X 25% = $950).      As a single filer’s income exceeds $75,000 per year, the exemption starts to phase out and is worth even less.     At a 33% tax bracket, the exemption is worth nothing.     See “Value of Dependency Exemption” for more information.