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Ohio Family Law Blog by Guest Contributor Donna F. Ferber, .. - 1w ago

PUBLISHERS NOTE: Here is a classic from Connecticut Psychotherapist Donna Ferber, first published on the Ohio Family Law Blog on July 10, 2010. Her advice about surviving your final divorce court date is still right on target! Also, check her books and her website out at www.DonnaFerber.com

Survival Tips For Preparing For Your Day In Divorce Court

Just as each marriage is unique, so is each divorce. Your reaction to the final legal decree will vary from that of others going through this process. Your feelings will be based on your own special circumstances and will depend upon a number of factors:

  • How reconciled you are to the divorce.
  • How much time has passed between the filing of the original papers and the final day.
  • How much acrimony still exists with your spouse.
  • How much rebuilding of your own life you have already done.

Divorce Day can bring about a myriad of feelings, ranging from extreme sadness to exuberant joy to calm indifference. By knowing yourself and your own feelings about your situation, you can predict, to some degree, how you will feel.

Here are some tips for preparing for your day in divorce court:
  • Make a trial run the day before so you know how to get there and where to park. This can help with any anxiety you may have about getting lost or finding parking.
  • Ask your lawyer to explain exactly what will happen on the final day. Will your lawyer be there? Will you have to testify? Will your spouse? Ask any questions you may have. Don’t worry if you sound silly. You are not supposed to know all the answers. That’s why you hired a lawyer in the first place!
  • Bring someone – a close friend, a sibling, a parent – someone who is supportive and knows the situation. (But do not bring your children-even your adult children!)
  • Make sure you eat a good breakfast that day. You don’t want to pass out in court! Bring gum or life savers. Our mouth tends to get dry when we are anxious. Also bring a book, knitting, or crossword puzzle, or something else to occupy your brain. You may have to wait a while and having something to distract you can help lessen your anxiety and help the time pass quicker.
  • Wear something you don’t particularly like. This is especially true for women who often report they are surprised to discover they never again want to wear the outfit they wore to court. They think of it as their “divorce outfit” and simply want to throw it out.
  • Plan something for after court such as going to lunch with some friends. You can always cancel it if you feel like being alone, but it offers a “cushion” or “safety net.”
  • Plan something social for your first weekend as a single person.
  • Plan a divorce ritual. Anything goes, but do something! This isn’t necessarily a celebration (although it can be!) but rather a way to mark a significant event in your life.
A word about your kids

They need not be aware of the actual day of the divorce. It will only fill them with anxiety and trepidation. For children, the divorce begins the day one parent moves out. The rest of the stuff is legal, grown-up stuff. Let your children have an ordinary day and go about their plans as scheduled.

Finally, prepare for your day in court with courage and dignity. A positive attitude will make this experience easier and help you stay focused on the process as it unfolds.

Donna F. Ferber, LPC, LADC, is a licensed psychotherapist in Connecticut. Her newest book is available at bookstores everywhere or at Amazon.com. This article is from her first book, From Ex-Wife to Exceptional Life: A Woman’s Journey through Divorce, which won an Honorable Mention Award by the Independent Publishers Association. To read more about the author and her work, please visit www.donnaferber.com

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© 2019, Ohio Family Law Blog. All rights reserved. This feed is for personal, non-commercial use only. The use of this feed on other websites breaches copyright. If this content is not in your news reader, it makes the page you are viewing an infringement of the copyright.

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Existing Alimony Deduction Repealed Under New Tax Law

Under Ohio divorce decrees, alimony (spousal support) payments have been typically deductible to the payor and taxable to the recipient. The income tax treatment of these payments has been a significant factor in negotiating the amount of alimony. For new divorce cases not completed before January 1, 2019, these payments are now "neutral" per the new Tax Cuts and Jobs act. The existing alimony deduction has been repealed. This means that newly divorced individuals will not enjoy the benefits/burdens of alimony taxability (unless there was a executed separation agreement preserving such previous tax treatment signed prior to the end of last year).

A New Frontier For Operating Under The New Tax Law And Divorce In Ohio

What does this mean for individuals now in the process of divorcing or who get divorced after the Tax Cuts and Jobs Act in 2019? Essentially, we are now in the infancy of operating under the new tax law and divorce Courts are evaluating a fresh and starting to formulate new positions/practices. In Ohio, there is not a statutory guideline for setting alimony amount payments as there is for the payment of child support. Instead, ORC section 3105.18 lists 14 factors the Court is to consider when determining the proper amount and length for an alimony award.

Certainly the income the husband and wife receive is a significant factor. "Rules of thumb" as to alimony amounts will now change to include the elimination of the tax consequences. I have heard domestic relations judges express a diverse range of positions on how they will alter these support amount calculations. They are not at all uniform in their philosophy or approaches.

Payment amounts could go down around 20% or more to adjust for the taxability elimination. Besides repealing the alimony tax deduction, the new tax law also reduces rates. Please note that the new tax law does not affect or alter the IRS alimony deductibility rules in cases finalized prior to January 1, 2019. I expect at least for the foreseeable future that more CPA’s will be called to testify in Court as to these implications. Lots of arguments will be made on this subject until courts and appeal courts have weighed in.

Alimony Payments Still A Gray Area In Ohio

As a divorce litigator for 40 years, I can tell you the most issues are "gray" and not "black or white”. Judges opinions vary dramatically from Court to Court often times on even the same factual pattern. As time passes, Courts and experienced divorce lawyers will be better able to provide guidance. We will keep our readers posted on this topic as trends become more apparent. In the meantime, try to understand it if your divorce lawyer is somewhat vague when you inquire about the alimony payment issue since this is all brand new.

Additionally, new Ohio child support guidelines will take effect on March 28, 2019 too! More about those changes soon. Suffice it to say, that the "black or white" in the divorce world in Ohio is a lot "grayer" in 2019.

© 2019, Ohio Family Law Blog. All rights reserved. This feed is for personal, non-commercial use only. The use of this feed on other websites breaches copyright. If this content is not in your news reader, it makes the page you are viewing an infringement of the copyright.

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PUBLISHERS NOTE: Neither Jeff or MacKenzie Bezos live in Ohio. They live in Washington (where Amazon is headquartered).  Nor, do we truly know all the facts of their highly publicized divorce.  This article is hypothetical in nature assuming Jeff Bezos has committed adultery and an Ohio Divorce Court had jurisdiction.

Is Adultery Grounds For Divorce In OhIo?

In the aftermath of Jeff Bezos recently announcing that he and his wife MacKenzie will be divorcing, I was asked if the divorce was in Ohio, how his purported affair would affect his divorce. In addition, I am assuming that there is no prenuptial agreement in my answer.

In Ohio, Adultery is a Ground for Divorce.

Under Ohio Revised Code Section 3105.01 (c) adultery is a ground for divorce.  It is one of 6 statutory grounds recognized for divorce plus there is also the no fault basis of incompatibility. If the grounds were contested in a trial, the wife would have the burden of proving the adultery. In the vast majority of Ohio divorce cases, grounds are not contested and the case proceeds based on incompatibility and both parties agreeing to terminate their marriage.

In Ohio, Does Adultery Affect the Amount of Alimony?

Generally, Ohio is a no-fault state for divorce. While adultery is a recognized ground to grant a divorce, misconduct would not spill over into alimony/spousal support awards. A spouse would not be “punished” and ordered to pay more due to breaching one of the statutory grounds for divorce.  Under Ohio Revised Code Section 3105.18 there are 14 factors the Court must consider when determining the appropriateness and amount of alimony. They are:

  • all sources of the spouses’ incomes, including from property divided in the divorce
  • each spouse’s earning ability (how much a person could earn based on education, skills, job history, and employment opportunities)
  • the spouses’ ages and health (physical, mental, and emotional)
  • the spouses’ ages and health (physical, mental, and emotional)
  • the spouses’ retirement benefits
  • the length of the marriage
  • whether one spouse has custody of a minor child of the marriage and will be unable to work outside of the home as a result
  • the standard of living during the marriage
  • each spouse’s education
  • each spouse’s assets and debts, including any payments the court ordered
  • whether either spouse helped the other to get training, education, a professional degree, or increased income during the marriage
  • the time and expense it will take for the spouse asking for support to receive education, training or job experience that will allow that spouse to obtain sufficient employment, if the spouse in fact seeks that education, training, experience, and employment
  • whether a spouse contributed to the marriage as a homemaker and has a decreased earning ability as a result
  • how alimony will affect each spouse’s taxes, and
  • any other factor the court finds to be relevant and fair to consider.

Perhaps a successful argument could be made under the “catch-all” last factor that in this scenario, Husband should pay more.

In Ohio, Does Fault Spill Over into Property Division?

Generally speaking, pursuant to Ohio Revised Code Section 3105.171(C)(1), in Ohio the division of martial assets shall be equal – however if an equal division is inequitable, then the court shall divide it in a manner it deems equitable. Ohio Revised Code Section 3105.171(E)(4)– states “if a spouse has engaged in financial misconduct, including, but not limited to, the dissipation, destruction, concealment, or fraudulent disposition of assets, the court may compensate the offended spouse with a distributive award or with a greater award of marital property”.

So, if the Husband spent marital money or  assets in the furtherance of his extramarital affair, an Ohio Court could Order an unequal property division to compensate wife for the losses she incurred by the financial misconduct. Those losses could be for gifts, jewelry, housing, support, dinners etc. spent on the paramour by the Husband. The economic damages would need to be provable and significant. In other words, here come the forensic accountants to testify in Court on those damages and expenditures.

In Ohio, Would Adultery Affect Child Custody?

The Court will focus on what is in the best interests of the child or child(ren). So, adultery would not likely in and of itself have an effect on the custody determination. That is assuming the Court does not believe the adultery was dangerous or actually harmful to the kids. Again, to be able to allow a Court to make such a finding, a psychologist would need to present some very compelling testimony linking the adultery and the harm to the child(ren).

Adultery In Ohio Conclusion

If you are personally in this type of a situation, be sure to contact an experienced divorce lawyer to discuss the specifics of your facts. Experienced divorce lawyers know the Judges and their tendencies. Subtle factual nuances can dramatically influence the direction or strategy of the handling of your case!

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© 2019, Ohio Family Law Blog. All rights reserved. This feed is for personal, non-commercial use only. The use of this feed on other websites breaches copyright. If this content is not in your news reader, it makes the page you are viewing an infringement of the copyright.

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Ohio Bans Underage Marrriages Putting An End To Child Marriage

Ohio has banned underage marriage between underage boys and girls. In addition, for the first time the law treats both genders the same. Previously, the law in Ohio had permitted boys at age 18 but 16 for girls to marry.

On January 7, 2019, Gov. John Kasich signed into law a measure that protects Ohio children against underage marriage. This new law was initiated in part as a result of a Dayton Daily News investigation that found 4,443 girls age 17 or younger were married in Ohio between 2000 and 2015, including 59 who were 15 and younger. Ohio records showed that three girls age 14 were married, including one pregnant girl who married a 48-year-old man! Prior to this law change, pregnant girls under age16 could marry if they had parental consent and juvenile court approval.

80% Of Teen Marriages End In Divorce

On May 12, 2018, we published “Teen Marriages and the Push for Reform in Ohio” on the Ohio Family Law Blog. Click here to read it and more about teen marriages. Did you know that about 80% of these teen marriages end in divorce?

The new Ohio law boosts the minimum marriage age to 18 for both parties but allows for 17-year-olds to marry if they have juvenile court consent, go through a 14-day waiting period and the age differential between the two isn’t more than four years.

Certain Exceptions For Underage Marriage

Montgomery County Juvenile Court Judge Anthony Capizzi views this new law very positively. “The previous law led to greater risk of human trafficking, emotional trauma, and increased risk of abuse of young women. The new law codifies young men and woman as equals and sets the legal age of marriage at 18. It further does allow for certain exceptions but only for youth who are at least 17 with court oversight,” Capizzi said. “This law will go a long way to better protecting young women from the emotional and physical abuses that were allowed to occur under the old law.”

Ohio now joins six other states that set 17 as the minimum age for marriage under certain conditions, according to the Tahirih Justice Center, a non-profit focused on ending child marriage. Two states — Delaware and New Jersey — require that both parties be at least 18.

Advocates for the stricter law say under age marriage sets up girls for failure and exploitation. But it’s not just girls who are marrying before age 18: 301 boys age 17 or younger were married during the time frame studied by the newspaper, including 25 to women who were age 21 or older.

Immigration Loophole

A new Senate report dealing with immigration and underage child marriage was released yesterday. Apparently, the present U.S. Immigration system encourages child marriages. The immigration “loophole” actually opens the door for primarily girls to be exploited. In an 11 year period over 8,686 spouses or fiancées involved minors – some as young as 13. The data in this report certainly raises concerns about how the immigration system is enabling “forced marriages.”

These child marriages come about when young girls are forced by their family to marry someone to give the foreigner access to the United States.
Victims of forced marriages state that the goal of obtaining a U.S. passport in conjunction with State laws allowing young children to marry compound the problem.  Understand that we are talking about legal immigration here, not illegal immigration. Much reform needs to occur to both our immigration system and state marriage laws.  It is nice to see that Ohio has finally come out of the dark ages and increased the age to marry!

National Human Trafficking Awareness Day

Yesterday was National Human Trafficking Awareness Day, so the timing of the release of this extensive Senate report could not have been better. Many reactions to these Senate findings are hitting the media and internet. Understandably, most readers are both shocked and horrified with the data presented.  Click here to access the underage marriage report, “How the U.S. Immigration System Encourages Child Marriages”.

More Legal Reforms For Child Marriage Needed

Hopefully, the public and our Congressmen will push for more legal reforms to protect our children from exploitation or entering into marriages statistically destined to fail. We will keep you posted on developments in protecting our children from underage marriage.

© 2019, Ohio Family Law Blog. All rights reserved. This feed is for personal, non-commercial use only. The use of this feed on other websites breaches copyright. If this content is not in your news reader, it makes the page you are viewing an infringement of the copyright.

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Estate planning does not necessarily have to be complicated or confusing!

Most Adults Have No Estate Plan, Nor A Simple Will According To Study

It’s that time of year when best intentions are set forth and New Year’s resolutions are made. However, according to U.S. News and World Report, by February over eighty percent of those new year’s resolutions have been broken. For many, it is time to make a very important resolution that is easy to keep and will provide benefits for years to come. Make a will.

Many of us have heard or read lately of some of the celebrities who have died with large estates and no estate planning, creating headaches and confusion for their loved ones-celebrities such as Prince, Aretha Franklin and Michael Jackson, to name a few.

However, even those with more modest estates need estate plans to ensure that their savings are passed on to those that they intend. Surprisingly, or maybe not surprisingly, most adults have no estate plan whatsoever, not even a simple will.

Only 40 Percent Of Adults Have A Will Or Trust

According to AARP, citing a study by Caring.com, only 40 percent of adults have a will or trust. The statistics are even worse for middle age and younger adults. According to the same study, 78 percent of those age 18-36 and 64 percent of those age 37-52 do not have even a simple will. There is no reason for those numbers to be so high as estate planning can be very simple.

The reality is that most people do not want to contemplate or discuss their own mortality. However,by, at least creating a will and the appropriate power of attorney documents, one can achieve peace of mind knowing that this has been properly addressed and that one has made things easier on one’s loved ones when the time comes.

A simple will, general power of attorney, medical power of attorney and living will should satisfy the needs of most individuals. Estate planning does not necessarily have to be complicated or confusing.

So what are you waiting for? Make a resolution that you know you can keep, follow up on it by making an appointment with your estate planning attorney and you will have started the year by keeping a resolution that will provide you with benefits many years down the road.

Estate Planning Questions? Let Us Help You Start New Year’s Resolutions On The Right Foot!

At Holzfaster, Cecil, McKnight & Mues, located in Dayton, Ohio, top-notch estate planning doesn’t need to be complicated or expensive! To learn more,go to our website at www.hcmmlaw.com. Or, please contact us at (937) 293-2141 to schedule an appointment for an initial consultation.

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© 2019, Ohio Family Law Blog. All rights reserved. This feed is for personal, non-commercial use only. The use of this feed on other websites breaches copyright. If this content is not in your news reader, it makes the page you are viewing an infringement of the copyright.

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Property Division: Dividing Property, Assets & Debts in Ohio

PUBLISHER’S NOTE: I thought this basic primer was worth posting once again especially now that we are at the start of “divorce season”. Division of debts and assets in a divorce is not always a simple or cookie cutter process.”

Property Division in Ohio Can Be Complicated In Marriage Breakup – Hire A Experienced Divorce Lawyer Early

Depending upon the issues in a marriage breakup, dividing assets and debts is usually a preliminary topic of conversation.  This can be a complex and lengthy discussion depending upon the nature of the assets, length of the marriage, and title of the property. The first aspect of analyzing how the court may divide property pertains to whether or not the property was acquired before or after the date of marriage. If the property is separate pre-marital property, that property would remain the property of the initial owner and would not be subject to division.

In Ohio, property acquired during the term of the marriage is generally divided “equitably”.  While the courts in Ohio strive to create a fair property division, this may not always lead to a 50/50 equal distribution. But, an equal division is presumed to be the starting point. The Court hopes to end up with a decision, that when viewed as a whole, leaves both parties with roughly equal shares of the marital estate.

If a spouse inherits property (or is gifted specific property during the course of the marriage), it is also generally deemed as separate property and not subject to division in Ohio. An exception exists, however, if that inherited property is commingled together into a joint account or put in joint names with a spouse.  In that case it is likely to be deemed marital property subject to equitable division. [So, if you want to shield inherited property potentially from your spouse in a subsequent divorce case, do not put it in your joint names].

Equitable Division And Marriage Debts

Clients often ask what “equitable” division means. Regardless of who brought the income into the marriage or how the marital assets were acquired, usually the Ohio court will divide those assets in half. So, for example, the non-employed spouse would be entitled to half the value of their marital bank accounts regardless of whose name they are titled in. This is because Ohio law values both direct and indirect contributions to the marital partnership, i.e. such as perhaps raising children. Fault for the breakdown of the marriage in Ohio does not enter into this analysis whatsoever.  An abusive spouse would therefore typically receive one-half the bank accounts and assets regardless of his/her misconduct in the marriage.

Marital debts are also typically divided in the same manner in Ohio. If one party is allocated more than half of the marital debts (typically because he/she may be the primary breadwinner), the court may offset and reduce that parties alimony obligation to account for the non-equitable division.  It is important to recognize that judges must consider a variety of different issues and factors when dividing the marital estate. This can lead to a plethora of outcomes depending upon the factual nuances in each marriage case.

So, you ask, can a divorce court in Ohio enter an “unequal” property division award?  The answer is “Yes” in certain limited situations. Click here to read an article we posted on October 19, 2013 here at the Ohio Family Law Blog titled “Divorce in Ohio: Can the Court Order an Unequal Property Division?”

Marriage Debt? Talk To A Divorce Lawyer About Property Division In Ohio

Clearly, if facing a divorce, in your marriage, the more property you have at risk makes the decision of who you hire as your attorney an extremely important one. Equitable property division in Ohio is much more complicated than one might think in a marriage. There are many grey areas and a lot of exceptions to the general property distribution rules. Discuss your case with several experienced Ohio divorce lawyers early on in the process to increase the probability of your obtaining the best possible outcome!

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© 2018, Ohio Family Law Blog. All rights reserved. This feed is for personal, non-commercial use only. The use of this feed on other websites breaches copyright. If this content is not in your news reader, it makes the page you are viewing an infringement of the copyright.

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Protection Order A Must For Victims Of Stalking Or Domestic Violence

Have You Been Stalked And Require A Protection Order? How And Where To File Locally In The State Of Ohio

Statistics show that 8% of American women and 2% of American men will be stalked at some point in their lives. This means that 1.4 million Americans are stalked every year.  And while some times the perpetrator is related to the victim, often times they are not.

A Civil Stalking or Sexually Oriented Offense Protection Order is very similar to a domestic violence civil protection order, however they seek to protect victims even if they are not a family or household member of the abuser.  If a victim has been threated with physical harm or mental distress more than once and the incidents are closely related in time, then he or she may be entitled to a Stalking Civil Protection Order, and a victim of a sexual offense can seek a Sexually Oriented Offense Protection Order after the first threat according to Ohio Revised Code §2903.214.

In order to obtain either type of these protection orders, the victim must first file a petition for such in the general division of common pleas court of the county in which they live.  There is no cost to file.  He or she may be entitled to instant protection if they can prove that there is a threat of immediate and present danger.

Immediate Protection From Bodily Hard

This type of danger generally exists if the stalker has either threatened bodily harm, or has been previously convicted of menacing by stalking or a sexually oriented offense.  If immediate protection is needed, an ex parte hearing with the judge or magistrate will take place after filing.  The victim must be present at the hearing in order to fully explain why a protection order is needed immediately.  If the judge finds that a protection order is warranted, it will be issued and a date will be set within 10 days for a full hearing on the matter, assuming the accused can be served before then.

At the full hearing, the accused/respondent will be given the chance to defend themselves.  They are allowed to call witnesses and introduce evidence, and the victim is also given the same opportunity.  Either side is allowed to call the other as a witness in order to prove their case.  While the victim must appear at the full hearing or risk having their protection order dismissed, the respondent does not have to attend.  If the judge decides at the end of the hearing that a full hearing protection order is warranted, it will be issued and is good for up to 5 years unless a different date is specified.  Violation of these orders is a criminal offense under Ohio law.

I Am Being Victimized, Is An Attorney Necessary To File A Protection Order?

While a victim does not need an attorney to seek a Stalking or Sexually Oriented Civil Protection Order, and they are entitled to a victim’s advocate throughout the entire process, it is smart to seek legal counsel to ensure that all their legal rights are protected, especially if the abuser has a lawyer. If you or someone you know is the victim of stalking or a sexually oriented offense, contact our office today at (937) 293-2141 or email us here. We would welcome an opportunity to discuss your situation.

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Ohio Family Law Blog by Guest Contributor Gregory Ramey, Ph.. - 2w ago
Do You Dread Holiday Celebrations And Family Gatherings?

It’s a time of year with many holiday celebrations and gatherings. These are joyous experiences for many, but a difficult time for others. Our lives are not like a Hallmark Channel story with freshly baked cookies, fake snow, and conflicts that always have happy endings.

We know that our happiness comes more from the people whom we love rather than the gifts that we get.

However, past hurts (whether real or imagined) may feel particularly intense right now, in marked contrast to the apparent happiness around us.

Here are some particularly challenging situations.
  1. Divorce. Some kids tell me that they like the fact that their parents are divorced because they get twice as many gifts. Humor hides their pain. Most of them want what they will never get – their mom and dad back together again.

    The best gift you can give your children is to develop a business-like relationship with your ex-spouse. You need not forget yesterday’s betrayal and pain. You just need to love your kids more than you dislike your ex-spouse, and put their needs above your anger and anguish.

    Call your ex-spouse to work out the holiday visits, and don’t use your kids as messengers. Keep the conversation cordial but brief. Don’t reflect about the past, and remember that sarcasm and complaining are not effective techniques to influence someone’s behavior.

  2. Death. Holidays can be times of grief when remembering the passing of a loved one. The loss of a parent, seemingly more common lately with the drug epidemic, can be particularly traumatic for kids. Many youngsters developed very intense and loving relationships with their grandparents, and their loss can be difficult at this time of the year.

    It’s hard to talk about death in a therapy session, as we want to be respectful of the diversity of our families’ spiritual lives, including the absence of any religious beliefs. I advise kids to live their lives in a way that would make their deceased parent or loved one proud of them.

  3. Conflict within families. Holiday celebrations are not the time to convince others of the righteousness of your position, and that other’s views are diabolical. Accept the fact that not everyone shares your thoughts about politics, diversity, political correctness, racism or social media.

    Try talking less, and listening more. Ask questions and show genuine interest. Use family events as a way to connect on common grounds.

    Reflect on past positive events, and don’t discuss areas of known disagreements.

Holiday Celebrations Can Be About Optimism And Gratitude

There is no need to dread this time of the year. Use it as an opportunity to show gratitude for the people that you love, and feel optimistic about tomorrow.

Gregory Ramey, Ph.D., is a child psychologist and vice president for outpatient services at the Children’s Medical Center of Dayton. For more of his columns, visit www.childrensdayton.org/ramey and join Dr. Ramey on Facebook at www.facebook.com/drgregramey Dr. Ramey has been a guest contributor to the Ohio Family Blog since 2007.

[Reprinted by permission from the December 2, 2018, edition of the Dayton Daily News, Holiday Celebrations: How to navigate  the challenges that holidays can bring”, Gregory Ramey, PhD]

© 2018, Ohio Family Law Blog. All rights reserved. This feed is for personal, non-commercial use only. The use of this feed on other websites breaches copyright. If this content is not in your news reader, it makes the page you are viewing an infringement of the copyright.

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Ohio Family Law Blog by Guest Contributor, Daniel Pollack - 2w ago

Child Endangerment In Ohio

Could You Be Legally Charged With Child Endangerment Or
Child Abuse?

Adults who care for children have a legal obligation to ensure that those children avoid unreasonably dangerous situations. Failing to adequately protect a child may result in the caregiver being charged with “child endangerment” or “endangering the welfare of a child.”

Examples of child endangerment may include:

  • Driving while intoxicated with a child in the vehicle
  • Leaving a child alone and unsupervised with available dangerous weapons
  • Leaving a child unattended  in an unsafe area or vehicle
  • Hiring a person with a known history of sexual offenses  to supervise a child
  • Leaving a young child unsupervised or in the care of another young child
  • Providing drugs or alcohol to an underage driver
  • Opting for spiritual healing rather than conventional medicine when a child’s life is in danger
  • Failing to report suspected child abuse
  • Domestic violence episodes that take place in front of children

The Supreme Court of Nebraska recently had the opportunity to explore the contours of this concept in State v. Mendez-Osorio, 297 Neb. 520 (2017). The case revolved around a domestic incident between defendant Abel Mendez-Osorio and his partner Katia Santos-Velasquez. Santos-Velasquez testified that “from the bedroom door, she observed Mendez-Osorio sharpening his machete. Santos-Velasquez testified that Mendez-Osorio said to her, "this machete, I want it for you" and that he came toward her and told her he was going to kill her. She testified that she felt threatened and afraid.

Without pausing to put on shoes, Santos-Velasquez picked up her two youngest children from the home’s larger bedroom and fled the home to seek help. Her third child was asleep on a couch in the living room, and she did not have time to bring him. Santos-Velasquez testified that she was concerned for the safety and well-being of her children, "[b]ecause if he was thinking of doing something to me, he was going to do it to the children too." She was especially concerned for the child she left behind.”

Does Endangerment Of Child Mean Child Abuse?

The court reasoned that the relevant statute states in relevant part, "A person commits child abuse if he or she knowingly, intentionally, or negligently causes or permits a minor child to be: (a) [p]laced in a situation that endangers his or her life or physical or mental health." The court wrote:

“We have previously considered §28-707(1)(a) and stated that under that section, "’endangers’ means to expose a minor child’s life or health to danger or the peril of probable harm or loss." State v. Crowdell, 234 Neb. 469, 474, 451 N.W.2d 695, 699 (1990). We have further stated that the purpose of criminalizing conduct under the statute is that where "’a child is endangered, it may be injured; it is the likelihood of injury against which the statute speaks.’" Id. at 475, 451 N.W.2d at 699 (quoting State v. Fisher, 230 Kan. 192, 631 P.2d 239 (1981)). Although courts strictly construe criminal statutes … we have recognized the breadth of conduct addressed in §28-707(1)(a) and have stated that "[a]s a matter of practicability for general application, child abuse statutes, by virtue of the nature of their subject matter and the nature of the conduct sought to be prohibited, usually contain broad and rather comprehensive language." State v. Crowdell, 234 Neb. at 474, 451 N.W.2d at 699.”

Accordingly, the court held that Mendez-Osorio’s conviction was supported by the evidence.

Child Endangerment Charges Will Depend Upon The Specific Circumstances

Other states have similar statutes comparable to Nebraska’s, articulating their resolve to criminalize child abuse that results from conduct which exposes a child to harm despite the fact that the child was not the direct object of the defendant’s behavior.

For instance, the Supreme Court of Delaware, in Mubrouca Allison v. State of Delaware, 148 A.3d 688 (2016), held that the “child endangerment statute provides that a person is guilty of endangering the welfare of a child if she has assumed responsibility over the child and "[i]ntentionally, knowingly or recklessly acts in a manner likely to be injurious to the physical, mental, or moral welfare of the child." It held that “an ordinary person could easily understand that leaving two young children alone in an unlocked car in near triple-digit heat for at least fifteen minutes with the windows almost rolled up could be "injurious to the physical, mental, or moral welfare" of the children.”

Like false allegations of child abuse, false allegations of child endangerment are illegal. In Colorado, for instance, a person whom the court finds has brought a motion that is “frivolous, substantially groundless, or substantially vexatious” may be required to pay reasonable attorney’s fees and the costs of the opposing party (C.R.S. 14-10-129(5)).

Child endangerment charges are highly fact specific. A legal analysis of sufficiency of evidence supporting a child endangerment conviction will depend upon the specific circumstances of each case. Human service workers and others who believe they have encountered child endangerment, and individuals who have been charged with child endangerment, should seek the advice of an experienced attorney. The attorney should be able to discuss what options are available under the circumstances.

PUBLISHERS NOTE:

In Ohio, child endangerment includes abuse, torture, corporal punishment, forcing or allowing the child to pose in sexually oriented matter, or allowing the child to be in the same piece of property where drug manufacturing or transactions may be occurring, and also includes driving a motor vehicle while under the influence. ORC § 2919.22. Ohio’s child endangerment laws apply to children under 18 years of age, as well as to mentally or physically handicapped persons under 21 years of age.

Persons convicted of child endangerment face penalties ranging from first degree misdemeanors to a second, third, fourth, or fifth degree felony, depending on the allegations and the facts revolving around each case. Child endangerment charges have other impacts that may substantially affect the accused’s life, such as difficulty finding and keeping a job, social ostracization, and a permanent mark on their record.

Daniel Pollack is a professor at Yeshiva University’s School of Social Work in New York City and a frequent expert witness in child welfare cases, including child abuse, neglect and dependency cases. Dan is a frequent guest contributor to the Ohio Family Law Blog since 2009. He can be reached at dpollack@yu.edu This article, “The Legal Contours of Child Endangerment” originally appeared in Policy & Practice, August 2018, 32 & 41.

© 2018, Ohio Family Law Blog. All rights reserved. This feed is for personal, non-commercial use only. The use of this feed on other websites breaches copyright. If this content is not in your news reader, it makes the page you are viewing an infringement of the copyright.

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Holidays Got Your Down?

PUBLISHERS NOTE: “Congratulations! We all made it through Thanksgiving. So, the mad dash of the holiday season is officially upon us. This sage advice from psychotherapist, Donna F. Ferber, from 2013 warrants a repost. Take a breath. Slow down. And just say “no”.”

A Guide to Happier Holidays: Replace HO–HO-HO with NO-NO-NO!

Well, the holiday hoopla is ramping up. Displays of sparkly red and green stuff has taken center stage in our stores, catalogues are arriving in droves, internet sites are offering deals, discounts and sales on every imaginable product. Magazines at the grocery checkout display unbelievable glossy covers of gorgeous people, in gorgeous houses, serving gorgeous food. Now with the sudden drop in temperature and the promise of snow this week, the reality that the holidays are descending on us is unavoidable.

It feels impossible to slow this down or simply get a grip. It is like being swept up in some tinselly tidal wave. I don’t want to shop yet; I still am cleaning out the garden! Yet, as the heat clicks on, and my sweaters and even gloves begin to take center stage, it cannot be denied. Here comes the holidays.

Much has been written about how to maintain our sanity through the holidays – hints of shortcuts for meals, warnings about overeating and over-drinking, and financial gurus pleading with us to set limits on our spending. All of these techniques are designed to make the holidays more manageable and more enjoyable and to avoid January regret when the bills and the scale indicate much too much indulgence.

Maintain Sanity Through The Holidays

This week a group of women met to discuss the difficulty of saying “No”. Those “No’s” were directly, externally, mostly focused on people who asked us for things we either did not want to, or could not, do. The group agreed while NO is tough, they all are now experiencing the empowerment that comes with setting limits that comes with simply saying “No”. While we may “feel bad” disappointing another, many of us have not considered that according to Psychologist Judith Sills, PHD, “‘No’ guards us against exploitation.” Wow! Such a small word can wield such power. We can choose not to be taken advantage of simply by saying no!

As the holidays approach, it occurs to me that we need to ramp up our NO skills, not just our exercising it with others, but within ourselves as well.? When we are tempted by that drink, that gooey dessert, to stay up too late, or splurge on the overpriced yet perfect gift, we are called on to practice saying, “NO”. This time it is not to a persistent child, an over-demanding boss or even a cranky clerk in a store testing our boundaries. Now it is about learning to say “NO” to ourselves. NO at the holidays is mostly an “inside job.”

The denial elves dance around in our brain, urging us to say “Yes” to everything we crave, feeding us rationales that really are denial. They say things like, “I deserve this drink (or dessert)”, “One more won’t matter”, or the line made famous by Scarlett O’Hara, “I’ll think about that tomorrow”. The truth is this – you deserve to be healthy, one more WILL matter, and thinking about it tomorrow is merely procrastination.

Getting Support For The Holidays

Well placed inner NO’s honor and empower us.  We learn the joy that comes with self-discipline and not giving into immediate gratification. It helps us develop patience, resilience and ultimately to reach our long-term goals.

The Dali Lama, in the book “The Art of Happiness”, speaks about the difference between pleasure and happiness. Eating the gooey dessert, buying an overpriced gift, indulging in drinking too much or other excess behaviors may bring us a moment of pleasure. However, happiness, true happiness, is not acquired by giving into those impulsive pleasures, but by recognizing that happiness is, in truth, about setting boundaries, accepting limits and finding joy in empowerment rather than indulgence.

Visualize what you want to be dealing with in January – a closet full of expensive stuff, jeans that don’t zip, credit cards that will take months to pay down, or a sense of peace and accomplishment as you move into the new year with less clutter, no?debt and a scale that is not your enemy. Saying “NO” now, will bring a big healthy “YES!” later.

Having trouble with “NO”? Consider this: the more we choose the healthy path, the easier it becomes. Plus, as we behave in new ways, we are?rewiring?our brains and the payoffs are invaluable. If you find you are struggling with “NO”, consider a self-help group such as a 12- Step Program or working with a trained counselor or therapist. Getting support and positive feedback for taking care of yourself can be the best gift of all – the gift of self-care.

2013 Donna F. Ferber, LPC, LADC, is a psychotherapist in private practice in Farmington, CT since 1986. She is the author of the award winning From Ex-Wife to Exceptional Life: A Woman’s Journey through Divorce, which is now available in Kindle format for $9.99 as well as in paperback. To read more about the author and her work, please visit www.donnaferber.com

[Reprinted from Donna’s November 9, 2013, blog article: “A Guide to Happier Holidays: Replace HO-HO-HO with NO-NO-NO”.

© 2018, Ohio Family Law Blog. All rights reserved. This feed is for personal, non-commercial use only. The use of this feed on other websites breaches copyright. If this content is not in your news reader, it makes the page you are viewing an infringement of the copyright.

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