Problem Solving

There are a great many roles a lawyer fills in their client’s lives.  Often we are counselors other times we are advocates.  Even within a specific role — like divorce lawyer different individual lawyers attack that role with different abilities and approaches.  

I see myself first and foremost as a problem solver.  I truly believe that the vast majority of my clients hire me to solve their problems:  “Keith, my marriage is broken.  Help me and my children get on with our lives.”  I am not being hired to beat up the other side, or even actually to get custody or get a divorce.  My job is to solve the problem, divorce, guardianship, adoption, custody, and child support are just the means to completing the underlying job — solving the problem.  

Other lawyers see themselves as litigators.  Their job is to take their client’s problems to a judge.  They believe their job is to give their client their day in court.  In my opinion, they are advocates without being counselors.  They may be experts at presenting their client position to a judge but they have left the main job to the judge.  They are trusting and relying on the judge to solve the problem.

There are also lawyers that are just hired guns.  Their job is to beat up the other side.  They are neither advocate or counselor they are in the business of pain.

Contrast that with criminal defense lawyer.  Their primary job is creating and pointing out problems.  Where I am trying to solve problems, the criminal defense lawyer is trained to point out any plausible problem.  Their job in criminal court is to say “There is a problem with the warrant; there is a problem with this arrest, there is a problem with the confession…”  When that approach comes in contact with a domestic case, it only creates hard feelings and havoc.   

More than anything, you need to think though what it is you are hiring a lawyer to do.  Then you need to meet with lawyers until you find someone that understands that approach and is willing to do the job you are hiring them to actually do.  

My Role as Counselor

The are two main roles for an attorney: counselor and advocate.  

The role of counselor has four important facets.  

1. To explain what the law requires you to do.  For example, if you have minor children and relocate after a custody order has been entered, you are required to send a very specific notice to the other parent.  

2. To explain what the law forbids you to do. For example, after a petition is filed the law forbids you to change insurance coverage without the court's permission.  

3. To explain the things the law allows you to do.

4. To give you strategies for your case and your life in general.  For example, it is always in your best interests to be the reasonable party -- the party always acting in the children's best interests.

MY Role as Advocate

Family Law requires a balance.  My role as advocate is basically to take the law as I understand it and build a story around it with the facts of the case presented by the evidence and my client.  As an advocate, I build a narrative about case.  I take my client and the other side, warts and all, and build a story about what has happened in their lives and what that tells the Judge about probable futures.   

I use this analogy often: every year I go to my doctor and he tells me to exercise more and lose ten pounds.  This is like my role as counselor, telling my clients how act to achieve their goals.  But then, after that, my doctor takes me as I have really lived and works to keep me as healthy as he can.  My role as advocate is like this second step with a doctor.  I take the way you really lived and try to help you and the Court fit that into your goals.  

Common Law Marriage and Same Sex Marriage

Common Law and Same Sex Marriage

Background of Common Law Marriage.

     Oklahoma continues to recognize common law marriage.  According to the Oklahoma Supreme Court, a common law marriage is formed when parties with capacity have a meeting of the minds that they are then actually married. "Capacity" just means parties that have the ability to form a valid marriage.  Capacity used to mean a single person over the age of consent could marry a member of the opposite sex. To determine if there has been a "meeting of the minds" the court will look at the actions of the parties — did they live together, do they have children, do they wear wedding bands, did they file taxes jointly, do they own property as a married couple, do their friends think the parties are married, etc.  Meeting of the minds is just a way of saying the parties formed an agreement.  Sometimes, the parties actions (like filing joint taxes) will make it appear there is a common law marriage even when the moment of the agreement is less than clear.

    A common law marriage is a valid marriage just like any other marriage.  A common law marriage, even though it is formed without a ceremony by an agreement, once formed, cannot be terminated by a simple agreement.  Even if the parties agree that the they are no longer married — they are still married.  Just like every other marriage, a common law marriage exists until death of one of the parties or until a court of competent jurisdiction grants a divorce.  

Background of Same Sex Marriage.

    In the fall of 2014, at the conclusion of a Tulsa County lawsuit, Oklahoma began to recognize marriages between same sex couples.  In allowing same sex couples to marry, Oklahoma expanded the "capacity to marry."  Capacity to marry now includes the right for gay men and lesbian women to be married to one another. 

     When Oklahoma began recognizing same sex marriages, licenses were issued and ceremonies were immediately conducted across the state.  

Two Concepts Combine.

    Once Oklahoma had both common law marriage and same sex marriage, if a same sex couple had a present agreement that they were currently married (as opposed to an agreement to get married at some point in the future) then at that moment they formed a common law same sex marriage.  

     Very few states have both common law marriage and same sex marriage.  I am unaware of any cases that have litigated this issue, but the impact on inheritance and the break up of a relationship could be significant.  Truth is, the citizens of Oklahoma, though they may not understand the technical details, expect that common law marriage exits.  Even to this day, millions of dollars continue to be at stake over questions of common law marriage.  

    It is important for everyone to be mindful that the changing landscape of the law will have some unforeseen consequences.  People often form a common law marriage by accident for a medical insurance benefit or a tax benefit.  Now the universe of people that can do that has expanded to include same sex couples.  

Custody and Divorce

Custody is such a dangerous word.  Thousands and thousands of dollars are spent by parties trying to get sole custody or force joint custody.  Most seem not to even know what they are fighting for.  Worse, there are lots of statutes, appellate cases, lay people, and other sources that throw the word around without regard for what they really mean.  

There is a statute in Oklahoma that, more or less, says the custodial parent is the one with the most overnights with the child.  Dozens of Oklahoma cases say that no, it is not that.  

There are cases that use the word custody to mean the time you spend with your children.  Again, dozens of Oklahoma cases say that no, it is not that.  

Other states use word like conservatorship...  

When family law judges and quality family lawyers in Oklahoma, and specifically Tulsa County, use the word custody, we are referring to decision making authority on the big life decisions.  Where the child will reside, where the child will attend school, which medical option to take, or perhaps what religion the child will be a member during childhood. There really are not that many big decisions. 

A sole custodial parent makes the final call on big life decisions.  

In a joint custody arrangement, those decisions are made together by the parents according to a written plan.  

That is all custody means, how big decisions are made and who makes them.  

It is not about time, generally both parents are losing time with their child — going from unfettered time to time metered at best by an agreement and at worst by a stranger in a black robe.  

John Lennon wrote that life is what happens to you while your are busy making other plans.  And so it is with custody.  Most of life is not the big decisions, it is the little every day decisions that matter.  Do you spend the time to take your kid out one on one? Do you ask about their day at school? Do you follow up with questions about friends and teachers? Did you take the time to discipline your child, because even though that is not the way you want to spend your now limited time with them, that is your job, to invest in disciplining them.  THAT is life.  

That is where I try to keep my client's focus in a custody battle, on life, not titles.