You've been ordered to mediation, what now?

It is required in the State of Illinois that parties arguing about custody and visitation participate in mediation. Ultimately, the success of mediation depends upon the willingness of both parties to cooperate and put the child first.

Prior to mediation, please think about what issues you might be willing to come to compromise on with the other party.  You should consider legal and residential custody and visitation schedule.  Consider what type of legal and residential custody situation you are in currently.  If you currently have sole custody, you will want to think about whether or not you are willing to give up sole custody.  Sole custody means that parent makes all of the decisions and does not need permission or agreement from the other parent.  The parents are encouraged to discuss matters with each other, but agreement regarding the major decisions is not required.

Joint legal custody to both parents with residential custody to one parent essentially means that the two of you must be able to communicate and cooperate while raising the child.  You both have the ability and the right to make decisions for the child.  Major decisions regarding healthcare, school, and religion must be agreed upon by both of you or you could end up back in court.  Each parent makes the day to day decisions on his/her own when the child is in that parent’s custody.

Consider both of these types of custody carefully before you make any agreements at mediation.  It is important that you not take this lightly because custody decisions are final for at least two years.  After that time period, a parent is able to bring a petition to modify.  However, within that two year time frame, a parent is only able to ask for a modification if the child is seriously endangered or there is a substantial change in circumstances.  This is a very high standard and it is a difficult position to win.

It is important to understand the mediation process so it can be used successfully. Listed below are some warnings, suggestions, and information:

1. If you have been the victim of physical abuse, you may not be a good candidate for mediation.  If this is the case, be sure to share this information with your lawyer or, if pro se, the Judge.

2. Mediation can be difficult. Prepare yourself for potentially two hours of discussion.  The court requires at least four hours of mediation, but mediators typically meet for no more than two hours at a time.

3. Be prepared to become angry. It will happen. The key is to keep it under control and refuse to become victimized by it. Try to remain calm and continually think about what is in the best interest of your child.

4. Remain patient. Threats to leave the mediation are counterproductive.

5. Refrain from attacking the mediator or the other party during the mediation.

6. Be creative. Be willing to look at ways to satisfy the other party’s needs. At this point, the case is totally within your control.  The two of you have plenty of leeway to make your own agreement.  There is no real standard that you need to adopt as your own.

7. Be attentive. Negotiation can be extremely difficult to track. You must be very attentive to the proceedings.

8. Be thorough. Read the final agreement carefully. You may sign the draft agreement, but nothing becomes a final order until it is entered by the court.  If there is something that was not covered to your satisfaction, make sure the mediator knows and makes note of that on your draft agreement.

The mediation process creates pressure and fatigue. In one sense, this is good because it simulates the pressure and fatigue that arise at trial, so it facilitates settlement. On the other hand, your agreement must be knowingly and intelligently done, and of your own free will. So, if you find yourself getting to the point of feeling unwanted pressure or fatigue, let the mediator know. She will arrange for a break, something to eat or drink, or an end to the session. 

Above all else, remain open minded prior to and during the mediation.  Be creative regarding solutions to the problems.  Feel free to call your lawyer prior to (or even during) the mediation if you would like to discuss further any ideas, questions, or thoughts you may have regarding the mediation.

Best of luck during your mediation and, remember, this is your chance to settle matters to your satisfaction--without the Judge and lawyers--just you and the other parent.  It's in you and your child's best interest to make the most of this chance.

Practical advice....

I've been having a hard time updating the blog frequently.  So, here is a brief post to get me back into the swing of things.

At this point we've made it through the entire holiday season.  I really hope everyone was able to get through the holidays and cooperate in regards to the kids.  The most important thing is to do what is best for the kids and make them feel as though almost nothing has changed.  The easiest way to do this is to be willing to change your plans and be flexible so the kids benefit.  For example--is it really that important that you celebrate Thanksgiving on Thanksgiving Day?  Or, Christmas on Christmas Day?  Isn't it more important that you spend time with your child?  I've discovered through my own experiences that the kids don't seem to care what day the holiday is on....especially when you act like it's no big deal.

It seems like everyone waits until the last minute to plan for visitation--be it during the holidays or a long weekend, etc.  Communication is key here, folks.  You should start planning your holiday visitation arrangements AT LEAST by the beginning of October.  You may not like talking to the other party, but it is so much easier to get the plans laid out.  Then, it's done and it's one less thing to worry about.

I've posted about DCFS before and my feelings haven't changed on that front.  I'm mentioning them again because I want to emphasize how important it is for people to have a lawyer during the process of dealing with DCFS.  Whether actual charges are filed or you just have to deal with DCFS and an indicated finding, you need a lawyer on your side.  The lawyer is able to guide you and help keep DCFS in line and prevent DCFS from rolling over you and your rights.

Another issue I'd like to cover briefly is that of paying your lawyer.  I don't want to preach, but people...pay your lawyer.  You go to work and do your job and expect to collect a paycheck.  A lawyer is the same way.  I feel that you are primarily paying your lawyer for our knowledge base and our service to you.  We have to eat and put a roof over our heads as well.  I don't expect you to work for free and you shouldn't expect your lawyer to work for free.  That's all I'll say.  I don't want to be all preachy.

Remember, the only real answer we can give you regarding your case is "it depends."  We can talk about best case scenario and worst case scenario.  Some judges are predictable enough that we can even predict what they will do.  However, there is never a guarantee.  If someone is making you a guarantee as to how your case will turn out, be very wary and ask more questions.  You might want to consult with another attorney as well, just to be sure.  You want to hire someone who will be honest with you and who wants to help you resolve your problems in a way that is most cost effective for you.  You don't want someone who will just run up the bill with no consideration to your financial situation.

That's it for today.  I will try to post at least once a week and begin to address some of the most commonly asked questions that I receive.  If you have specific questions, feel free to email them to me and I will address them in a post.

I'm still here....

It's been quite a long time since I've posted anything and I apologize for that.  Since the last post, I've moved the office across the street.  It is a bigger space and more cost efficient.  That, of course, means savings for my clients as well.

There is a lot going on in the legal world and I will start by sharing a very informative article from the Illinois State Bar Association regarding the new Illinois Conceal Carry requirements.  Check it out and then feel free to contact me with any questions!

Illinois Conceal Carry

The dangers of DCFS

I can imagine that an encounter with DCFS is every parent's nightmare.  I mean, sure, when I was young, I would get smart with my mom and threaten to call DCFS.  She was so horrible!  She was punishing me for crazy things like telling a lie or not doing as I was told...the horror!  Her comeback always was go ahead, they can have you!  Of course, we all knew that I would never make that call and, even if I did, my parents would not have wanted DCFS to take me away.  But, it all made good fodder for the fights during the teenage years!

DCFS is an organization that, I believe, could really make positive differences in this world.  The problem is, at this point, it seems that they rarely do.  I have yet to meet an attorney who has anything positive to say about DCFS.  We want to avoid them like the plague.  We don't want our clients involved with them at all.  We don't want our clients calling DCFS on the other parent.  It's not good when DCFS is  involved and, chances are, they will stay involved for a year or more.

What many parents don't realize is that they have rights.  Typically, DCFS shows up and the parents panic.  The parents are scared to death that DCFS has shown up to take away the children.  Because of this fear, most parents are willing to invite DCFS into the home, sit down, and spill their guts to the investigator.  The investigator will act like he has the power to do this anyway even if the parents don't want to talk to him.

It's the investigator's job to find the truth.  In order to do this, the investigator needs to talk to everyone.  I understand that.  I know, from handling divorces and custody cases, it is terribly difficult to figure out who is telling the truth.  However, there are too many times that I've seen pictures of a child with bruises and the investigator settles the case as unfounded (essentially, not guilty).  Then, when I know a tip was called in to the hotline simply out of spite, the investigator settles that case as indicated (guilty).  There doesn't appear to be any rhyme or reason to how the investigator calls the case.

I've seen an investigator question parents and children who are the subject of the hotline tip.  Sometimes, there is another child in a different household, who is not involved at all but is the child of one of the involved parents.  The investigator will tell the other parent to not allow the child any kind of visitation with the parent who is under investigation.  Often those are emotional cases and the other parent is happy to comply.  So, now, not just one, but two families are being torn apart.

My question here is where does that investigator get his power?  Does that investigator actually have the power to discontinue a court order?  I think not.  I've had this very conversation with an investigator and I reminded her that she does not have the power to go against a court order.  She was well aware of that fact, yet still carried on with trying to stop the visitation.  End result was that the investigator left a mess for the attorneys to deal with for months which costs the clients time, money and energy.

Parents in these situations are scared and that is completely understandable.  However, parents have rights and those rights need to be protected as well.  DCFS, in general, needs to revisit the law and rules that govern the organization and remember that all parties involved have rights.

If I have client that is involved with DCFS, I manage that relationship very closely.  I introduce myself to the investigator (or case worker, depending upon when I'm hired) and I let them know I am here to help facilitate the process.  I advise my clients to be cooperative and I explain the process.  I've had situations where I've refused to allow DCFS to speak with my client unless I'm there.  I've had other situations where I've allowed DCFS to speak with my client anytime.  How I approach this is dependent upon how well I already know the investigator or caseworker.

Bottom line.....lawyers are expensive and people typically don't want to spend the money.  BUT, if DCFS shows up at your door with allegations against you, you would be well advised to seek experienced counsel immediately.  Don't let DCFS trample your rights.  Keep them in check.  Make them follow the rules.

If you are interested in learning more on this subject, a very good book regarding the parties' rights is Child Welfare Law and Practice.  If you click the link it will take you to Amazon.  I'm not trying to sell the book.  I just thought it would be convenient for everyone if I linked it.

Divorce and emotions....

Most of my cases are divorce and, as you might imagine, involve lots of emotion.  What I see a lot of is two people who are barely handling things and getting themselves through the process when in comes someone to stir the pot.  Often, a parent or friend or some other person, pokes his or her nose in where it doesn't belong and then one of the people involved in the divorce loses his or her cool.

This is bad.  Very bad.

Honestly, the key to divorce is cooperation.  I know it seems insane to think about cooperating with your spouse when you are divorcing.  But, it really is for the best.  It is easier to cooperate and get things done, than it is to argue, fight, let others influence the process, and just prolong the divorce.  I'm not saying you have to agree on everything.  Obviously, that's not going to happen.  If it were that easy, you probably wouldn't be getting divorced.  But, I don't think it's asking too much for both parties to be reasonable in their demands.

The best thing for you to do is hire a lawyer you can trust, one that is honest with you about the process, and let that lawyer explain your legal rights.  Then, start working within that arena.  A divorce settlement and a joint parenting agreement can be anything you want it to be if the parties can come to agreement.  Think outside of the box sometimes.  That might be what gets you what you need.  Don't allow a family member or friend attempt to negotiate on your behalf.  I will tell you right now that person doesn't have your best interests in mind.  That person likely has a score of his or her own that he or she is looking to settle.

Divorce is a terrible time.  But, it's an extremely important time.  A time when you need to have your wits about you and know your rights.  This is a time when you need to be calm and think logically.  Whatever you do, don't allow yourself to be pushed around and frightened into doing anything.  Hopefully, you are able to hire an attorney that you trust and is honest with you about everything.  That attorney is there to assist you with your legal needs and make sure the problem is approached calmly.

One other thing, communication is key.  Communicate with your attorney and make note of whether your attorney is communicating with you.  If you find yourself in a situation where your lawyer rarely returns your calls, it is probable that your lawyer is not returning opposing counsels calls either.  Not communicating prolongs the process. AND, it just upsets everyone involved.  In this world of texting and emails, there really is no excuse for not communicating basic information to your lawyer or your soon to be ex-spouse.  Leave off the commentary.  Just a simple text "I'm running 15 minutes late" is sufficient.  If the other party responds with a nasty text, just ignore it....take the high road....it's worth it in the long run.

Good luck everyone and, please, have a happy and safe 4th of July!!!

Evolving law practice

Press Release regarding foreclosure defense work.

Death book....

Sounds strange, doesn't it?  But, do you have one?  You should.  I came across this idea one day when I was surfing the internet and it's great.

Typically, everyone tries to keep all of their important documents organized in some fashion.  But, does everyone in your family know where your important documents are located?  For instance, say you're in an accident and can't make healthcare decisions for yourself.  Does your appointed agent already have a copy of your healthcare power of attorney?  If not, does your agent know where you keep that document?  The document won't do any good if it's filed away where no one can locate it.

That's where the death book comes into play.  Pull all of your important documents such as copies of your will, trusts, powers of attorney, car titles, life insurance policies, car insurance policies, investment accounts, essentially anything important that someone would need if the worst happened to you.  Organize everything in a three ring binder and note where the original of each document is located.  Include a sheet that lists all of your important contact information such as doctors, attorney, accountant, etc.

Lastly, label this book in some way that indicates how important it is....call it death book or in case of emergency book....just call it something that makes it obvious that this thing is important.  Then, make sure your family and/or agent knows about the book and it's location.

Doing this will help everyone in the event there is an accident or something happens to you.  Now...go do this before you forget!

Be happy everyone and stay safe!!!
Letisha Luecking Orlet
www.letishalueckingorlet.com