Potter Law Office LLC

Live for Today

I saw a bumper sticker today that said, “I only live for today”.

After my eye stopped twitching from the nervous tic that developed from the thought of only living for today, I started to think about that concept.

I am not sure it is possible to only live for today. We eat, sleep, work, pay bills, all of which help us for tomorrow and beyond. But the point is not lost: forgetting to recognize what is happening now makes me miss what is right in front of me. It does not make me mindful. So maybe we should live for today and tomorrow, but not just focus on one. Maybe we should take some time for each, focus on each, and give them our full attention so we miss less and enjoy more.

Or maybe I just need a better hobby.

Mindfulness

The other day I tripped walking in my yard. I didn’t fall, and I don’t think anyone saw me, but I still felt like a dolt.

While ruminating on that adventure, and being thankful I did not fall into a pile of Hercules’ (Graham’s dog) leavings, I thought about balance and how it governs my life.

I used to think it was schedules, but I am starting to realize the things I schedule are to balance out the day. I sleep, so I have to wake, I get hungry, so I eat, I want to live inside, so I go to the office, etc. Hopefully, it all balances out.

But what about when I get angry, or scared or sad? What about balancing emotions? I think that is where mindfulness comes in, and what is pretty neat is there is no one thing to balance emotions. If I am angry, I can let myself be mad, I can take a deep breath, I can try to meditate, I can go for a walk (and hopefully not trip), or do all of those things. But eventually balance comes. I just have to be patient, be mindful. Sometimes that’s hard, but knowing it will come makes it easier. And while I’m waiting I can pick up dogs*

What do I want?

Lately I have been going to yoga. Well, the way I do it “yoga” is charitable, but the instructor is nice and has not asked me to leave yet.

After yoga I get a reward of iced coffee and usually rehearse the order, so I don’t sound like a doofus. And I began to think the scariest question we hear is what do you want? Because really, what do we want? Not the standard answer of happiness, peace, safety, but truly want.

Maybe that question is so hard because there is no answer. It changes from day to day, and even moment to moment. But now I think it should not be so tough. It gives me a chance to really stop and be mindful. To think: what do I want? And, to forgo the answer I thought was there; to not assume anything. What is truly important in our lives?

Whew. Maybe I should have gotten decaf.

The Climbing Wall

At the YMCA I go to there is a climbing wall. Recently, I was look at the wall and started thinking about how the holds are different colors, shapes and sizes, but the security ropes are mostly the same. I then thought about the wall itself. The “obstacle” if you are a pessimist, or the “goal” if you are an optimist.

It struck me that we are all climbing a wall. To do that we all have the same ropes. The constants in our lives that help move us forward. But we also have colorful (sometimes too colorful) holds unique to our situation. The ropes and holds are equally important, and the wall cannot be climbed without both, even though they serve different purposes. And, relying too much on one, ignoring the other, might cause us to fall.

Maybe I was just bored on the elliptical machine and needed a distraction, but I hope not. I hope I can think more about my ropes and holds, and whether they are helping me climb the wall.

Change & Challenge

I’ve been thinking about the words change and challenge. How we say, “I hate change”, and “I love a challenge”. As if they are different words, when I think they both really mean opportunity.

My guess is we don’t hate or love either, it’s just that change sounds scary while challenge arouses a need to prove ourselves. As if the first means we are not good enough as is, but the second means we can show everyone we are better. Neither of which ring true to me.

But if we recognize that no matter how hard we try change is going to happen, and embrace it rather than fighting it, we rise to the challenge. Maybe we have an opportunity to become a better version of ourselves.

We can’t have (spell) change without challenge.

Boundaries

Earlier this week I wrote an article about boundaries, and true to form I have been re-thinking it most of this week and wondering if I did not consider the other side of the issue. Specifically, could the boundary keep you from being able to solve a problem?

The difficult answer is yes. But maybe (probably) that is okay. Maybe “solving” the problem really is not the issue, especially if it is not truly solved. Maybe in the long run the immediate gratitude of “solving” the problem is outweighed by the benefit to your psyche and knowing you can make and hold a boundary.

Solving problems is great, but I think in the end the peace of mind that can come from holding a boundary is better. The trick might be to simply learn to sit with the problem.

This personal growth stuff really sucks sometimes.

Balance

I have been thinking lately about balance.

When I was younger, I never really thought about balance. Of course, when you are built like a fire hydrant falling is not something you worry about.

But as I get older, I catch myself thinking about falling. Not that I have been falling, but now I think about it, and I don’t like it.

That led me to think about balance in in life. How I want to concentrate on one thing, but let other things distract me. Soon I am not doing anything well.

So maybe the point is that I should think about balance. Maybe taking the time to actually consider what it is I want to focus on will, in turn, require me to focus. To help me find balance.

Just a thought.

The Curse of Neutrality

Recently I wrote some articles on my theory of the five tenets, and one of those tenets is being positive. After the article posted a few people contacted me telling me how hard they thought it was to be positive, and perhaps I was not being realistic given the circumstances.

My first thought was “Really? People other than my mom read these articles?” But after the surprise wore off, I started to think, and maybe re-think, about being positive. To be honest this is really still a thought in progress, but I do see the point. Being positive is very difficult, especially if there is an established track record of negativity. However, being positive is important, even more so when negativity is the “norm”. But more on that in a minute.

Changing behaviors for me is very difficult, and my guess is I am not alone given the number of self-help books, websites, aps and podcasts available addressing every aspect of mental health and physical health imaginable. There is research showing how continuous thought, positive or negative, establishes pathways in our brains to the point it becomes a habit. For me, I think about a dirt road and ruts worn deeply enough the wheels automatically slide into them when you drive that road, and just how hard it is to steer out of those ruts if you want to change direction.

What the research talks about is how we can change the way we think, changing those ruts, if we want to. That we are not destined to be or think a certain way. I think the research is interesting (fascinating really), and would encourage you to review it and use what you like. The key to the idea though seems to be we can change if we want to, and I think there are three aspects to that thought. First, while we might say we want to change, and maybe we truly mean it, I think the question comes down to how bad do we want it? Secondly, if we want to change, how do we go about it? Third, how do we keep the change in place? To make it even more fun, it does not happen overnight, or maybe even over years, if that is a term. It is going to take time.

So what do we do in the meantime? What do we do when we just do not have it in us to be positive? Is that a failure? Is this really going to work? Do I want it to work? I really just want it to stop!

Okay, okay. Breathe. In, out. In, out. In, out.

I think it will work, but for those days when positivity is not an option, or at least not an immediate option, how about going half-way? How about consciously making the decision to not do something positive or negative? Granted, that will be difficult in and of itself, but maybe it will not be as difficult that we revert to the negative. Maybe trying to put off the response for now, to allow yourself time to process, and get to a place where you can be positive. Not to delay, not to use the time to frustrate the other person or seem like you are stalling, but to take some actual time to think about what your negative response would be, why you do not want to make that response, and then possibly reframe it into something positive.

If the “norm” referenced above is to respond negatively, and if the “norm” has not been working, why not try something different? Granted, being positive, and actually meaning it may not be possible. And really, that is okay. If I do not feel positive, then I should not have to manufacture that feeling just so someone else can be comfortable. All that will do is make me resentful of the communication, and likely make me seem disingenuous later if I try to take it back. And to be fair they would be right; I mean, I said X and they relied upon X, so X should be the rule.

But if we take a step back, tell the other person we need some time to consider a response, and possibly even the reason we need the time, ultimately everyone should be better off. The other person is probably not going to like giving that time, at least at the outset. Maybe they have an agenda or timeline and by not responding as quickly as they wanted we are throwing that timeline off. Understandable, but everyone’s timeline should be respected. If good communication is to be had then a little grace needs to be shown when someone needs more time to think and formulate a response. And really, the other person probably has been thinking and formulating their statement for some time, so it would only be fair you have the same time to process and respond, right? Because if not, then maybe the other person is not really wanting to communicate openly and fairly. If they cannot see why you would need time, and how that time might actually help the process move quicker if you can come to an agreement, then they may not have your best interests in mind.

It’s tough. Not responding when a thought is clearly formed in your mind, especially when the other person is seemingly wrong, possibly aggressive, or just plain being a jerk. And maybe your first response will be right. Maybe it will “win” the argument and the other person will have a lightbulb moment of clarity. That is not my experience though. I need a little time to give my best response. That is what the other person deserves, but just as importantly, it is what I deserve.

If it’s broken, how do we fix it?

Okay, so maybe broken is too strong. But, when a parenting plan is no longer in a child’s best interest, something must be done. When it comes to children, nothing is ever final. Parents change, children change, situations change, and modifications happen. At the same time, children usually do best with stability. But what if that stability is not what is set out in the current order? What do we do, and where do we start? Well, it depends (that all-time favorite lawyerly answer).

First, the Court always retains jurisdiction to modify parenting plans when it is in the child’s best interests to do so. In a nutshell, if life has happened, as life wants to do, and changes have occurred, the Court can change the plan. That change can happen by agreement of the parents, or by an order of the Court after a trial, but the final say is the Court’s.

Second, Court’s do not act until a parent asks for action. Meaning, that if a modification is to happen then a formal motion must be filed. That motion and proposal must be presented to the other parent, they must be given an opportunity to object, and to forward their own proposal.

Third, the procedure for filing the motion depends how the current parenting plan came into being. If the parenting plan was arrived at by an agreement of the parties, and the Court approved the plan based upon that agreement and without hearing evidence, then the request for modification should be sufficient to allow the Court to consider the motion. However, if the current parenting plan was established after an evidentiary hearing, then any changes to that plan can only occur if there has been a material change in circumstance such that the current plan is no longer in the child’s best interests. That concept is call res judicata, which is fancy lawyer-speak for only litigating issues once. If a Court heard evidence concerning parenting time, then that evidence is off limits for future motions.

Knowing all that, and understanding there is no one way to address a modification, we have found the best way to be:

Make sure you identify the problems with the current parenting plan, and develop a clear proposal to resolve the problems.
Before filing the motion (if there is not an emergency) contact your lawyer and discuss the issues with her/him.
If possible, discuss the issues with the other parent and see if you can come to an agreement.
If you cannot come to an agreement, discuss with your lawyer how best to proceed. Usually, we contact the other parent, or their lawyer, and see if an agreement can be reached prior to filing a motion. While that may seem like an extra step, and possibly giving the other parent more time to prepare and respond, we find that being able to tell a Judge you tried to resolve the issue yourself before simply filing the motion is best. Judges like it when parents make the difficult decisions themselves, and it shows you are willing to try and co-parent, which is always good for the child.

Assuming you have tried all those steps, and you cannot come to an agreement, then filing the motion to modify will have to be done if the situation is to change. That said, filing the motion should not be something done lightly, and the old axiom of being careful of what you wish for because you may get it, rings true. If you ask a Judge for a change she/he may make a change, but it might not be what you had in mind. That is not to discourage a parent from doing what they feel is in the child’s best interests, but rather to be certain that such motions are not done on a whim or out of anger. Judges favor the status quo when it comes to children, and Judges have considerable discretion regarding children. The last thing a parent wants after asking for a modification is a decision that essentially makes no change in parenting time or (gulp) lessens the parenting time prior to the motion being filed.

So if you find yourself in a position where you need to modify the current parenting plan for your child’s best interests, you might keep the following points in mind:

Make sure you document what can be documented. Do not be obsessive and keep every text, email, or record all conversations. But if there is something you believe supports the point you are trying to make, then make sure you have a copy.
Do not overly involve the child, or make statements about how you are going to try and change the situation. Oftentimes it is a parent saying they are simply doing what the child wants, and they in turn have had discussions with the child and promised to “fix” the situation. While the wishes of the child should be considered, involving the child in a battle for parenting time is not only not in the child’s best interests, but will certainly be frowned upon by the Court.
Be patient, calm and reasonable. I know, easy to say and sometimes impossible to do. And be realistic and forgiving of yourself when you are not always able to meet this goal. Try to make it your first, second and third steps though. Trust me, it will pay off with a Judge later at trial if you are consistently the parent that is being civil.
Don’t let the situation degenerate to the point of no return, and remember that while the situation concerning the child is not ideal, or may even be bad, it can always get worse.

Above all, remember there really is no “fix”. You may end up changing the situation for the better, but it is important to remember the change is for the situation now. It is rare to find a case where no other changes occur. Again, life happens. As life happens the Court always can make another change if it is best for the child. So if you find yourself in the unenviable position of having to file a motion to modify, remain calm, keep the love you have for your child in the front of your mind, and take deep breaths. This too shall pass. Thanks again for reading.

Alternative to Trial

Most cases do not go to trial. Chances are your case will settle, either through discussions between you and the other party, or more likely your attorneys, or through other formal means. So, let’s assume you do not want to go to trial, and incur the time, expense, and stress a trial will ultimately cost. If so, then alternative dispute resolution (ADR) is likely the best option.

What options are available, and which option would be the best fit for your case? It depends upon the issues in your case, and the status of your case. Are we arguing over children, finances, or both? Is this the original divorce/paternity action, or a motion filed months or years after orders have been issued? Once you identify those issues we can better determine how to proceed. But the reality of the situation is that participating in ADR increases the likelihood of settlement, and in my experience even if the case does not settle in ADR the process is not a waste of time.

It is important to understand the different forms of ADR, and usually they fall into the following categories:

Mediation – The goal is to assist parties in defining the issues involved in the case, communicate with the parties on those issues and possible resolutions, and help the parties to reach an agreement. Other than cost, there is no downside to mediation. Please take that with a grain of salt in that I have participated in hundreds of mediation cases, both as a mediator and as an attorney representing the party in mediation. I believe in the process because it requires the parties to meet, to communicate their positions, and allows the mediator to provide guidance to the parties in reaching a settlement. Often it is the mediator making suggestions the parties had not considered, resulting in settlement. Granted, cost can be an issue, but when compared with the time and expense of a trial, mediation is the better alternative. Additionally, mediation is confidential, and so if the parties do not reach an agreement, none of the information learned in mediation (with some rare exceptions) can be used later at trial.
Domestic Conciliation – This is the next step above mediation, with the goal being to work with parties that have a history of being unable to communicate and reach agreements. The first tier is trying to improve communication skills and develop solutions to lessen conflict. This is not a confidential process, and while the first part of domestic conciliation is to help the parties reach an agreement as in mediation, if they do not reach an agreement then the domestic conciliator prepares a report to the Court prior to the parties proceeding to trial. The Court is not required to give the report any weight in making its decision, but that is something that can occur, especially if the domestic conciliator does a good job of identifying the issues and possible outcomes.
Parenting Coordination – For parties that have a history of disagreement, the next stage is parenting coordination, with the goal being to assist parties in reaching an agreement to resolve disputes, and educating the parties regarding co-parenting and communication skills. But, if the parties are unable to reach an agreement, then the parenting coordinator is able to investigate the matter by speaking to third parties, and after completing an investigation, make recommendations to the Court regarding a resolution of the issues in question. Again, this is not a confidential process, and even though assisting the parties in reaching an agreement is the first step, if an agreement cannot be reached then the parenting coordinator issues a report similar to the domestic conciliator. The difference is the parenting coordinator makes recommendations to the Court as to how the issues in the case should be decided. Again, the Court is not required to follow the recommendation, but if the parenting coordinator provides convincing information to support the recommendation, then the Court can rely upon the recommendation at least in part in its ruling.
Case Management – The last stop for high conflict cases with the goal being to assist parties by providing a procedure to facilitate negotiation and resolving issues concerning their children, co-parenting, and communication. If everything else has failed, and parties simply cannot cooperate in parenting their children, a case manager can be appointed to resolve disputes. Unlike the other forms of ADR, a case manager has considerable authority in resolving parenting disputes, even going as far as making recommendations to the Court regarding a change in custody, residency, or parenting time for the children. The Court still has the final say on such issues, but if the parties are to the point of participating in case management, and the case manager provides solid reasons for the suggested changes, Courts tend to follow those recommendations at least in part.
Arbitration – Arbitration is the process where an arbitrator is appointed to resolve the issues in the case. The arbitrator takes the place of a Judge, and arbitration is similar to a court proceeding in that evidence is presented to the arbitrator and binding decisions are issued. Generally arbitration is used in cases dealing with financial issues, and much like mediation, cost is the main barrier. Additionally, it is not something family lawyers work with on a regular basis. But, if your case deals with complicated financial or legal issues, then arbitration may be a better (and quicker) option than waiting on a trial date. Lastly, arbitration can be included as the method for settling future disputes once a divorce is finalized, thereby saving the parties time and money if post-divorce issues need to be addressed.

The end result you should take from the above is this: Judges do a good job of reviewing cases and making decisions, but most will say the parties themselves are best suited to come to a decision. A Judge’s job is not to side with one party or the other, but to review the evidence and issue rulings. It is important to remember a Judge may not see the evidence the same way you do, and the resulting ruling could be different than expected. Also, negotiated settlements are generally best because while not perfect, they are the product of the parties coming to an agreement. That agreement can be built upon if there are future issues like parenting time and child support, and let’s face it: there will be those issues and we may as well start building the foundation now.