You have found yourself somewhere you never thought you would, in an abusive marriage. You have had enough and decided to take the necessary steps to leave your spouse. Kevin Hickey Law Partners does not take these cases lightly. We will assist you in preparing a plan to help you successfully leave your spouse. The plan is designed to help you determine a safe location for you to stay, ways for you to establish your independence and filing for a protective order. An abusive relationship is dangerous and is of the utmost importance to prepare ahead of time by seeking an attorney that is sensitive to the situation and has your safety first and foremost.

Most pet owners agree that pets become more than just a four-legged companion; they are family. In most cases, both spouses are just as attached to the pet, so determining who gets to keep the pet in a divorce case can be a bit complex. In January 2017, Alaska became the first American state to enact custody legislation specifically for pets, allowing courts to take an animal’s well-being into account during divorce proceedings. Many states have recently followed suit by becoming involved with pet custody by deciding to treat pets more like children than property. Arkansas, however, still considers pets as property. In all actuality, the court could order the pet sold and the couple to split the profits. It is not likely to happen as that would be the last thing the courts would want to do, but if the divorcing couple cannot come to an agreement, then it is very real outcome. When in the middle of a divorce, remember possession is 90% of the fight. If you decide to waive you’re possessory or ownership interest to the animal because you think it is the easiest thing to do at the time, you should reconsider. When another person takes possession of the pet, it is much more difficult to regain and win rightful possession and control through the court system. Additionally, in order to assure your four-legged friend does not suffer the consequences of a bad divorce, it is advisable to have a pet custody agreement in place.

A pet custody agreement will have many similarities to a child custody agreement:

• A visitation schedule
• Division of costs (veterinary care, food, and other daily necessary items)
• The pet’s primary care giver/owner - who will take care of the pet the majority of the time and whom does the pet live with most of the time
• Details about the pet that include vaccination schedules, date of the last veterinary visit, medication the pet is taking, and any other details concerning the pet’s well-being

Pet custody is often overlooked when couples decide to divorce, as there are many other details for the couple to consider like child custody, the division of assets, spousal support and so on. Although it is often overlooked, sadly, the pet can become a way for a spouse to gain leverage by using their spouse’s emotional attachment to their pet. An even more disturbing situation is when a divorcing parent uses  their own child’s attachment to a pet to add an advantage to win their case.

When developing a case for which person is the best caregiver, things like who has the means, space and time to devote to the pet. A child’s attachment will also be considered in these types of cases. If a child is attached to a pet, the court will often allow the pet to stay with the child resulting in the pet living with the child’s primary caregiver. A spouse that never partook of feeding, walking or caring for a pet will have a much harder time proving a case as to why they are suddenly interested in the pet.

Also, you should be prepared if the case does end up in court, it is possible the spouse not awarded the pet will be awarded the “cash value” of the pet. As inhumane as this may seem, it is the court’s only way of equitable distribution when dividing property since a pet is still considered “property” in Arkansas.

Pet custody is a part of family law, just like a child custody agreement.  Kevin Hickey Law Partners’ expertise will not only help you with your divorce and child custody case, we will be happy to help you with your pet custody case.  We will be happy to assist you in developing a pet custody agreement that is right for you. If you are in the middle of a pet custody battle and it is too late to develop a pet agreement, Kevin Hickey Law Partners will be happy to help you prepare a case to support why you are the best caregiver for the pet.  

You are going through a tumultuous divorce and to make matters worse child protective services (CPS) becomes involved. The first thing you need to do is contact your divorce attorney. Your attorney should be present for all interviews. Additionally, your attorney should be involved with anything that involves child protective services, including all paperwork. You want to make sure you are getting the protection you need as anyone can make a report suggesting that your children are being mistreated, abused and or neglected.  Any person who believes a child is being abused or neglected in good faith should make a report to CPS or to the police. If your soon-to-be ex has made a false report, the first offense is a Class A misdemeanor. False reports thereafter are a Class D felony. Once a report is made, Arkansas law requires that the Division of Children and Family Services (DCFS) or the Arkansas State Police Family Protection Unit must assess the report. It is crucial that you work closely with your attorney during this process.

The first thing that will happen is that CPS will want to talk to you, your children and other people that may have important information like doctors, teachers, daycare workers, etcetera. The law authorizes CPS to investigate any reports of suspected child abuse or neglect. Keep in mind that CPS does not have to tell you before they interview your child and does not need your permission. The child will be interviewed at a location that is convenient and comfortable for the child. For example, at school, daycare or at home. Only after your child has been interviewed will you be notified. Additionally, CPS and the police have the authority to photograph the child as deemed necessary to document the child’s physical condition.

After the interview process, CPS will conduct their investigation. The investigation will entail an assessment of family strengths and risks to the children. If the investigation reveals abuse and or neglect, the police will most likely get involved to place the child in protective custody. If the social worker does not feel the child is in danger, he or she may continue to visit your home to talk about any problems you are having regarding your child and offer help to assist you in making things better for you and your family.

If the report is found to be true, DCSF will notify you and you will have 30 days from the day you receive the notice to request an administrative hearing. This hearing will be your opportunity to appeal the investigative determination. If you do not request the hearing within the 30-day timeframe, the judge will decide the true determination and it will remain a true finding, you name will be placed in the Arkansas Child Maltreatment Central Registry.

If the report is unsubstantiated (not true), you can request a copy of the report. The report will not tell you who made the report. You must send a written, notarized request, along with a check or money order for $10 to get a copy of your report. The request must include your name and address and the names of the children involved. The request should be mailed to:

Arkansas Department of Human Services
Division of Child and Family Services
Central Registry Unit
P.O. Box 1437, (Slot S566)
Little Rock, Arkansas 72203-1437

All hard copy records of unsubstantiated reports are destroyed at the end of the month in which the determination is made, so you must act quickly to get a copy of the report.

If you are a parent of a child involved in an investigation, but you are NOT the subject of the report, your request must include a statement attesting to your legal relationship to the child.

During the investigation and proceedings, if required, it is the goal of the court to get help for the children and the parents so that they can be reunited and the children can live safely with one or both parents.

If you find yourself in a situation such as this, let Kevin Hickey Law Partners help you gather all of the necessary information and consider all of your options before deciding how to proceed.

When couples split, they try to make sure certain members of the family still see the children. Even if the relationship is strained, grandparents get consideration from their former son or daughter-in- law. While an important relationship, the grandparents are not the only family members who are important to your children.

I’ve seen large families, bonded by holidays together, birthdays, and Sunday afternoons treat cousins like brothers and sisters; I’ve seen aunts and uncles function in a mother or father role, or, depending on age, like an older sibling. During a divorce, these bonds help children find security and comfort in new circumstances and lifestyles. These crucial relationships must be maintained.

Schedules after divorce fluctuate, and one parent may not be able to always attend to his/her side of the family and the family functions. Try to maintain a connection with your former extended family. This connection may not be affable, but if your kids play well with their cousins and you have them for the weekend, try to give them a few hours. This sounds like I’m asking too much from parents who no longer see their children on a daily basis, but try to accommodate when you are able. I’m not saying trade your hours with them every weekend -- just be open to a civil relationship with their other family members so that your children don’t lose out of those special childhood relationships. You cannot anticipate when an aunt or uncle will say something that helps your child. You do not know how important the sleepover with the cousins might be to helping them feel normal when the rest of their world is spinning.

Children need to know they have the support of friends and family while their home life changes drastically. Losing relationships at the same time as they lose the family they once had hurts them during the process. One day, especially when they are older, they will recognize the thoughtfulness, and sacrifice, their parents gave towards them by nurturing familial bonds.

One thing is for certain, there is never anything certain in life. You have agreed on your child custody arrangement and things have moved along just fine until an unforeseen event occurs in your life. Life events like moving out of state, one parent becomes extremely ill or the financial situation changes for a parent, plus many, many more life-altering reasons are all reasons that life interrupts you normal routine and a new child custody agreement will need to be reached. Generally, child custody cases are never final. If both parents agree to a new custody agreement and the courts find it reasonable, then it is normally approved IF it is in the best interest of the child. The best interest of the child always controls. The courts do not care much about what is convenient for the parents if the child’s best interest isn’t first and foremost. Additionally, there are times that changing child custody agreements are not wrapped with a pretty bow and everyone is happy. Some circumstances change that are actually harming the child to stay in the current custody arrangement—a parent becomes abusive, substance abuse enters the picture, poor lifestyle choices, the list goes on and on. During these times, it is important to meet with your attorney and get things moving along as quickly as possible to avoid further physical or mental harm to your child.

One particular case, Stephanie Harris, Appellant v. Stephen Harris, Appellee (No. CA09-639, decided February 17, 2010) determined the children’s best interest was to change the custody arrangement to the appellee “who offered them hope of academic and behavioral improvement and whom the court found much more credible than appellant regarding efforts to deal with the girls ‘dismal performance.’” The court found “compelling evidence” that the minor children would be in a much better situation in Mr. Harris’ custody rather than Ms. Harris’. Although the ultimate victor in this party had overwhelming evidence and multiple occasions of blatant disregard for the initial custody agreement by the appellant, it still took the course of a nearly two-year court battle for him to convince the court he was the better custodial parent. This case further proves that the courts do not take their duty of determining the best interest of the child lightly.

In cases such as this one when parents cannot agree, some of the things a judge will consider are:

• each parent’s stability
• each parent’s physical and mental health
• the child’s physical and mental health
• the child’s relationship with siblings and extended family

The judge will consider many other factors. In the case mentioned, the courts considered the following:

• the children’s failing grades in school;
• the children’s behavior problems in school;
• consistent interference in visitation by Ms. Harris;
• Harris’ failure to show up for a show-cause hearing in 2005;
• Harris was remarried and had a loving, stable environment to provide the children;
• Harris had stable employment;
• Harris maintained constant email communication with the children’s school while they were living in Atlanta with their mother;
• Harris allowed different male companions to spend the night at her home when the minor children were present violating the divorce decree;
• Harris failed to follow the decree’s allowance for unrestricted phone calls by Mr. Harris on a daily basis.

The list goes on and proving what Ms. Harris did wrong and Mr. Harris did right. The point is that you must at all times consider the best interest of your children, because the court will.

Parents who are able to amicably reach an agreement on their own, can simply submit a custody agreement (also called a ‘parenting plan’) to the court. Again, the judge will ensure the agreement reflects the best interest of the child. Be sure to check out next week’s blog about writing a successful parenting plan.

Child custody arrangements (even the “easy” ones) are complex and more often than not require an attorney to draw up the paperwork. If you are in need of modifying your child custody agreement, contact Kevin Hickey Law Partners today.

Many people are often under the misconception that their pensions and retirement funds are off limits when divorcing. That is typically not the case, because pension and retirement funds are divisible just like any other marital asset. A pension earned during marriage is generally considered to be a joint asset of both husband and wife.  Arkansas strives to maintain fair and equitable division of marital property. In accordance with Aransas law, all retirement accounts are subject to a 50/50 split between the spouses, regardless of who earned them.

Whose name and who made more money in the marriage are mute points when dividing pension and retirement benefits. Generally, any amount deposited in a pension and/or retirement account during the marriage will most likely end up split, unless a prenuptial agreement was  recorded that specifically names retirement funds and/or pensions as separate property. Division applies to:

• pension benefits during a marriage;
• retirement savings accounts that were funded during a marriage; and
• the earnings on these accounts that accumulated during the marriage.

A court order is necessary for someone to receive retirement funds and/or pensions. It must generally be done at the time of the divorce when the other marital assets are divided. The court order or court-approved settlement requiring a spouse to pay a former spouse retirement funds and/or a pension is called a domestic relations order.

In Arkansas, divisions of retirement accounts is typically handled through a Qualified Domestic Relations Order (QRDO). Since retirement accounts are held in only one person’s name, a QRDO establishes an additional named payee on the account per the U.S. Department of Labor. Note: A QRDO is only used for company-managed accounts like a 401(k) or 403(b). The Internal Revenue Service also uses QRDO’s to identify retirement assets that are legally allowed, and sometimes managed, to be used to pay child support or alimony.  If you are ordered to split up a 401K or Roth IRA account, if a QRDO is in place, the IRS recognizes the early withdrawal as pursuant to a divorce decree. You will not incur additional fees, taxes or financial penalties for early withdrawal. However, the spouse receiving the money may be liable for taxes unless he or she appropriately reinvests it.

The only retirement accounts that are divided differently are Social Security and Tier 1 Railroad Retirement benefits. A divorced spouse may be entitled to a reduced Tier 1 spouse benefit if the marriage lasted ten consecutive years, both spouses have been 62 for at least a month and the divorced spouse is unmarried. If the spouse has not retired yet and still working at the railroad, the former spouse may receive a spouse annuity two years after the divorce if both spouses are 62 and the railroad spouse is fully insured through Social Security based on earnings. Since, the award is calculated based on Social Security pay, the divorced spouse’s annuity payments are less than what would be received if the couple had remained married. A court CANNOT award a divorcing spouse part of a Tier 1 Railroad benefit as part of a property settlement. The Railroad Retirement Board oversees the railroad retirement benefit system and federal laws regulate railroad benefit division in the divorce. Receiving Social Security retirement benefits depends on a number of stipulations like the receiving spouse must be unmarried, age 62 or older, the ex-spouse is entitled to Social Security retirement or disability benefits; and the benefit you are entitled to receive based on your own work is less than the benefit you would receive based on your ex-spouse’s work. There are many other stipulations and requirements when determining Social Security benefit rights.

As you can see, the division of retirement funds and pensions can be quite complex and costly if not handled properly. Aside from real estate, retirement plans are usually the largest asset in a marriage. That is why hiring a reputable, experienced attorney like Keven Hickey Law Partners can give you the peace of mind needed during this difficult process while insuring your interests are protected. We will conduct a complete investigation in an effort to identify all retirement accounts and other benefits. Additionally, we can help you manage your assets and protect them through the process. We will protect your interests and facilitate a smooth division of assets.