Harton Law Firm

Accessible, Convenient, Affordable Legal Services for the People of Wyoming

Steve Harton

Guardianship for minor children

There are three types of guardians for minor children. One is a regular guardianship,  where the guardian basically steps into the role of a parent for the child. Another is a temporary guardianship, where a parent is unavailable for a limited time, such as a deployment. The third is a temporary guardianship for educational, medical and dental care purposes. In this article, we will discuss the regular guardianship.

A guardian acts as the parent of the minor child

A guardian for a minor child will have similar rights toward the minor child as a parent would. More importantly, the guardian has similar responsibilities as a parent.

These are significant rights and responsibilities. That is why a guardian must be appointed by a Court. A guardianship cannot be created by a power of attorney, or some other such document.

The guardian’s role is so important in the life of a child, that the Court will supervise the guardian’s action. That is why the guardian must file a report with the Court on a regular basis.

Grounds for Appointing a Guardian

The natural guardian of a minor child is his or her parent. Generally, the Court will only appoint a guardian if the natural parent is unable, or unwilling, to take care of the child. Some situations where this might happen are when:

  • a parent dies
  • parents abandon their children
  • one or parents have substance abuse issues
  • parents suffer from mental illness
  • a parent is in prison

Sometimes parents are just overwhelmed with financial, emotional, or other problems. Other parents are just irresponsible, and do not want to take care of their children.

Guardianship Process

Petition for Appointment of a Guardian

The process starts with the filing of a petition. The petition must state:

  1. The name, age and address of the minor child,
  2. The reasons why the child needs a guardian, (why the parents cannot take care of the child)
  3. The name and address of the proposed guardian, and why they are a fit and proper person to serve as a guardian (they are a close relative/friend willing and able to care for the child)
  4. The residence of the minor child,
  5. The facts showing that it is in the best interest of the minor child to appoint a guardian’
  6. The name and address of the person or facility currently having custody of the child, and
  7. The interest of the petitioner (why they want to care for the child, and will they receive a benefit from caring from the child).

Notice of Petition

Notice of the petition must be served on the minor child’s parents, unless the Court excuses notice for good cause. This will happen in cases where one of the parents is absent, and has had little involvement in the life of a child. The court will also excuse notice when it would be really difficult to serve the parent.

Trial on the Petition to Appoint Guardian

Most guardianship petitions are granted without trial, because the parents do not object. They either consented to the guardianship, or the court excused service of notice, so they did not file an objection. However, the petitioner, and the custodian (parent) of the minor child can all request a jury trial on the petition, if they wish.

Burden of Proof on Appointment of Guardian

The Court will appoint a guardian, if it finds by a preponderance of the evidence that the minor child needs a guardian. This is not a real high level of proof. However, a court will generally only appoint a guardian if the parent consents, or if a parent is unfit to act as a parent.

It does not matter if the proposed guardian could provide a better lifestyle for the child because they have a nicer house and more money than the parent. If the parent is willing and able to provide reasonable care for the child, the guardianship will be denied.

The Appointment of a Guardian

If a guardian is appointed, the court’s order will include:

  • The reasons why the child needs a guardian
  • The person(s) appointed as guardian
  • The duration of the appointment, and
  • The duties of the guardian.

The duration is usually until the child reaches the age of eighteen (18) years of age. However, it is always subject to termination for good cause.

The duties of a guardian are set out by statue, and will require the filing of a guardian’s report every six months.

Conclusion

The guardian of a minor child will act as the parent of that child. The Court will only appoint a guardian if the parent of the child consents, or is found to be unwilling or unfit to act as the parent. Finally, guardianship is a big responsibility, and the guardian will supervise the guardian by requiring her to file reports with the Court.

By Steve Harton

Why are lawyer fees so unpredictable?

“Why can’t a lawyer just tell me how much my divorce will cost?”

This is a frustration shared by many people. It does not seem to make sense.

When you take your car to the shop to get your brakes replaced, they can give you an estimate, and it’s usually pretty close.

A dentist can tell you how much a root canal will cost.

A doctor can tell you how much he will charge for a hip replacement.

What is it about lawyers that keeps them from giving you a set price for a divorce?

Five Reasons Why Lawyer Fees are Unpredictable

There a many reasons for this, and I will try to explain five of them below.

You Are Not in Control

In a divorce, neither you, nor your lawyer, are entirely in control of your case.

The progress of your case will be influenced by the actions of two or more additional people:

  • the other side – your spouse can help get things done, or cause more work (and fees)
  • the other attorney – opposing counsel might handle the case in a way that requires more legal work (and fees)
  • the judge – some judges require more discovery, scheduling conferences, pre-trial memorandums and such, which will result in more work (and fees)
  • the guardian ad litem – if the court appoints a guardian ad litem, you will have those fees, plus additional work for your attorney (and more fees)

The actions of these other people will either ease and speed up your divorce, or make the process harder and longer. As you might guess, harder and longer will result in higher fees.

A Professional is Paid to Fight You

In a divorce case, the other side usually has a lawyer. This is a highly trained professional that is being paid to fight against you and your own lawyer.

Your spouse’s lawyer may have been instructed to make the process hard and difficult. Perhaps your spouse wants to out-spend you.

Perhaps your spouse does not want the divorce, and wants to delay things in the hopes of eventually reconciling with you. A lawyer can come up with all sorts of tactics to delay the process by requiring more legal work. More work will mean more legal fees.

Your Spouse is Unreasonable

Your spouse might drive up the cost of divorce by being unreasonable.

They might want to fight for custody, even though they work in the oilfield, and spend two weeks in North Dakota and two weeks at home.

They might want all of the property, because they made all the money during the marriage.

They might want spousal support, even after a short marriage.

They might want to make “just this last little change,” every time a settlement document is prepared.

There are many unreasonable things that your spouse might demand. Litigating for things that they are unlikely to get will result in additional legal work (and fees).

that you will need to pay for.

Your Spouse Does Not Participate

One would think that an absent spouse would make things easier. But that is not actually the case.

Say you want to hire an attorney for an uncontested divorce. You and your spouse have been separated for a couple of years, you have no kids, you have already split your stuff, and you do not have any joint debts. Neither you, nor your spouse want anything from the other. You both just want a divorce.

This would ordinarily require the filing of a Complaint for Divorce, an Acceptance of Service, an Affidavit for Divorce, and a Stipulated Decree of Divorce. We would prepare all these documents, you and your spouse would sign them, we would submit all of them to the Court, and then presto, in twenty one days, you are divorced! (This is our $995 divorce).

But, if your spouse does not participate, then we have a few additional costs:

  • If he is around here, and we can serve him, then that’s another $50 for the service fee.
  • If he is not around, and we don’t know where he is, then we have to serve by publication. This requires the drafting of the affidavit requesting service by publication, drafting the notice of Complaint, having it published in the paper (at about $400 in publication costs), and drafting the post publication affidavit. All this drafting (and filing) results in additional legal fees.
  • At this point, we would still draft the Stipulated Decree, in the hopes that your spouse will sign it and avoid additional legal fees.
  • If your spouse does not sign the Stipulated Decree, then we have to wait to see if they file an answer to the Complaint.
  • If your spouse continues to do nothing and do not file an answer, then we have to draft an affidavit and Request for Entry of Default, and a Certificate of Default (and charge more fees).
  • Once the Clerk of Court enters the default, then we have to draft a Request and Order Setting Default Hearing, and have the hearing scheduled with the Court (and charge more fees).
  • Then we would revise the stipulated decree and turn it into a Default Decree of Divorce, meet with you to go over the document, as well as to rehearse your court appearance at the default hearing.
  • Finally, we will have to actually go to Court, appear in front of the Judge, you will have to testify, and then the Judge will sign the decree.

As you can see, your spouse’s failure to participate can turn a simple, quick and inexpensive divorce into one that takes several months, and costs many hundreds of dollars of additional fees and costs.

Divorce Cases Are Emotional

Divorce cases, as most other cases, are often driven by emotions.

When emotions are involved, people often act in irrational ways. They may know that it does not make sense to act a certain way, but they cannot help themselves and do it anyway.

I once participated in a divorce where we were on day two of trial. There was a business involved and several pieces of valuable real estate. Both sides had presented evidence on values and arguments on who those things should be assigned to. There was really no fight about the big things.

But we were in Court still, and our clients were racking up hundreds of dollars an hour in legal fees. All because they could not agree on who should get things like the washers and dryers (there were two sets), scrap lumber in the garage, and literally, boxes of nails!

These were intelligent, successful people. They surely knew their attorneys’ time cost a lot more than it would have cost to buy new washers and dryers, and lumber and nails. But they did it anyway, because it was their divorce, and they were emotional, and they could not help themselves.

Conclusion

These are just some of the reasons why it is difficult to quote a fee for a divorce. There are many others.

While we try to make our fees predictable, there will always be some variability. The best we can do is give a pretty good estimate for how much each part of a divorce case will cost, as we go along the process.

by Steve Harton

Unemployment and Child Support

How does unemployment affect child support?

Unemployment and child support are related. It can result in lower child support payments. However, this will depend why you are unemployed. Were you laid off, or were you fired? Did you quit your job, or were you injured? Are you in treatment or in jail?

The Court will look at whether you are unable to find work, or if you are voluntarily underemployed.

Laid off and collecting unemployment

If you were laid off by your employer, then you are probably OK. Your unemployment benefits are considered your income. The benefit is usually   [Read more…] about Unemployment and Child Support

What is my income for child support?

By Steve Harton

Child support in Wyoming is calculated using parents’ net incomes. Net income is calculated by subtracting some deductions from a parent’s gross income. In this post I will explain what is income for child support purposes.

Definition of income for child support

Income means any form of payment or return in money or in kind to an individual, regardless of source.

What is included in income?

Income includes all sorts of things. Some are obvious, some are not. Here [Read more…] about What is my income for child support?

Net Income for Child Support Calculation

In Wyoming, the courts use net income for child support calculations. Net income is not the amount you see on your paycheck. It is not the amount that gets direct deposited into your account.

What is Net Income for Child Support Calculations?

Net income is your gross income less certain deductions. These deductions are set out in Wyoming Statutes Section 20-2-303(a)(iii). The are as follows:

Personal income taxes

These are state and federal income taxes that you pay. The taxes must be based on your actual situation. You cannot claim more income taxes than you should actually be paying. In other words, if you are married and have two kids, you cannot claim zero exemptions. That would increase your withholding, and result in a big tax refund. Therefore, you did not actually pay that much in income taxes.

Social Security deductions

This is pretty much self explanatory. This would also be the railroad retirement deduction you have if you work for the railroad.

Cost of dependent health care coverage for dependent children

This deduction is the actual amount the coverage costs for the children. It is not necessarily the amount that gets deducted on your check, because that probably includes coverage for yourself. However, it does include premiums for dental and vision coverage.

Actual court ordered support payments for other children

This is a court ordered child support obligation for other children. In order to deduct this, you must actually be paying the other support obligation.

Payments for back child support or arrearages are not deductible.

Mandatory pension deductions

Some companies and government agencies still have mandatory pensions. Your mandatory contributions to these programs are deductible. (This includes union dues, which are a sort of mandatory retirement deduction). However, 401k and IRA contributions are not deductible, because they are not mandatory.

Conclusion

Determining your net income for child support purposes is not as easy as looking at your check. There are a lot of “normal” payroll deductions that are not deducted for child support, such as disability insurance, 401k, etc.

How can we help?

Here at WYeLawyers, we can look at your pay, and accurately calculate your net income for child support. Even if you are representing yourself, we can help you this part right. So take the next step and set up a consultation by calling 307-382-5545.

By Steve Harton

Additional Resources