Custody Lawyers and Custody Fights: Three of the Most Important Things to Remember

By Andrew J Thompson, Attorney

A short list of things you should always bear in mind if you are in the midst of or considering a change of custody includes the most important legal, financial and personal considerations that will arise as you go forward.  The following list is neither exhaustive nor necessarily in the order of highest priority, but it is intended to give you a general sense of what to prioritize as you go through this gut wrenching process.

  1. Self-Control: If there is anything that’s more important in these situations, I could not say what it would be.  The temptations you face to lash out, to go for the jugular and to lose your cool, will be greater and stronger in this type of conflict than it is likely to be in any other battle in your life – bar none.  You need a good, competent legal advisor to help you think through the emotional impact of the important decisions you make in this regard.  Your relationship(s) with your children are at stake and in play while all this goes on.  It will serve you very well to be patient, understanding and not to react to what the other parent or his or her attorney does, and this is very, very hard to do.  Find the internal and external drivers that help you remain calm as much as you possibly can. On the other hand, don’t kid yourself and pretend like you can deal with the situation with no emotion – no one could.  Just remember that every time you are nudged into a strong reaction, you are hurting your own case.  Do whatever you can to effectively manage your emotions and reactions as you are in the heat of battle.
  2. The True Value of Your Children: In a custody fight, you have to learn that your children should and hopefully do, mean more to you than just about anything or anyone else in your life.  Short of taking care of yourself, which your children need for you to properly care for them, they rely on you to take care of them.  Regardless of what the other parent thinks, your kids need you and they need you because they are so precious and important.  Valuing them in the way they should be valued to you means at least three things in this context: (1) Understanding they need you to fight FOR them as the important people they are – this sends a message to them that they are valued and you care deeply, and it will mean a great deal to their own sense of self-worth; (2) Understanding the balance between  fighting FOR them and the hurts that the conflict with the other parent causes. Whether you are pursuing the fight or on the defensive, the negative impact the fight can have on your children is tremendous.  Learn to discern when to push harder and when to relent; and (3) the process is very expensive because of how important it really is.  In a way, you are in a fight for their lives.  Be prepared to put the full financial resources it takes to meet the objectives of giving your kids the very best.
  3. A Good Advocate Prepares a Whole Case: One of the hardest things for a parent to realize in the midst of custody litigation is that their attorney’s perspective on the weaknesses, shortcomings or areas for improvement in a client’s case may be as helpful as any strong and aggressive arguments or cross-examinations in the courtroom.  Clients need to know things like: aggressive behavior toward school or health care providers will hurt them in a courtroom; comments made on facebook or elsewhere online are harmful to the person making them far more often, and fights over things you cannot change will always hurt you more than it will help.  If you get down to the point of dealing with the salient facts, the ones that will win a case for you, you will be much more efficient and have a much great chance of prevailing.  As an attorney who has handled over 100 custody matters in my years of practice, I have learned over time that success in your objectives is a function of identifying the factors that will help you win, developing a cohesive strategy around them, and having the proper and full resources you need to implement and execute that strategy.

         A custody battle is never easy.  But if you keep some key thoughts in mind as your pursue what is best for your children in your relationship with them, you may be surprised at how attainable your goals will be.  Listen carefully to wise counsel – and make sure the counsel you are getting – is wise indeed!

Answer to a Complaint on a Promissory Note

By Andrew J Thompson, Attorney
Email: andrew@thompsonlawindiana.com

Various provisions of the UCC, via IC 26-1-3.1-101 and the following sections of the law, concerning negotiable instruments, including promissory notes, provide specific defenses to anyone who is claimed to owe money on a note or other instrument.  These include:

ISSUANCE OF THE NOTE: Section 105 presents a defense of fact over whether the note was ever properly issued.  Non-issuance is a defense to the note itself.

INTENT OF THE PAYOR: Section 110(a) makes the initial (original) payee of an instrument dependent upon the intent of the issuer of the note.  If defendants (since we’re assuming a case has been filed, we will refer to “defendant(s)” in this article) on a note did not know the party with whom they were entering into the transaction, a Plaintiff must be able to demonstrate the Defendants ever intended the note to be issued to the lender.  This can be difficult if the note has been transferred or endorsed to a new payee, unless it is either admitted by the Defendants or the circumstances around the signing of the note more or less clearly demonstrate the intent of the defendant.  This can be harder that it might appear on its face.  The  defendant is the only one who actually knows his intent and proving inferences of that intent can be difficult, especially where the defendant can give reasons why he did not choose to do business with the specified payee.  For example, where there was a long, loan closing and the original payee was not identified until the last minute – and then its identity was not discussed with the defendant, it is hard for a Plaintiff to argue or show the defendant intended to do business with the original payee.

DURESS: Section 305(a)(1)(B) nullifies the obligation of the Defendants if they can prove they were under duress under which to close the loan at the time they did and without the opportunity to properly read and consider the terms involved.  In reality, this happens quite often.  While the lender might argue that it was acting under duress to close a loan on a timetable the defendants needed – it must be remembered that the lender prepared all the documents for the closing and had its own closing agent.

FRAUD: Section 305(a)(1)(C) provides the defense that fraud that induced the defendant to sign an instrument with neither knowledge nor reasonable opportunity to learn of its character or its essential terms, neither of which Defendants had in this case as evidenced by their designations of evidence to the court.  This requires a bit of additional proof over duress, but the presumption of what the fraud includes (denial of knowledge or the opportunity to learn the essential terms).

SIGANTURES: Section 308 provides that Defendants’ denial of the signatures on the mortgage, returns the burden for establishing the validity of signatures squarely on Plaintiffs who want to enforce the terms of a note against the Defendant.   Usually handwriting expertise is very helpful in making this determination, even when it involves using copies of signatures.

ALTERATION: Section 407(b) provides that a material alteration to an instrument destroys its ability to be negotiated to a third party and if the alteration is done by the Plaintiff to the lawsuit, it discharges the party whose obligation is affected by the alteration…Defendants’ obligation on the mortgage was affected, as there was no obligation for the mortgage at all, but for the alteration(s), and therefore their obligations are discharged.

There are plenty of other defenses that affect the maker (defendant) of a note or other instrument.  If you believe you have a defense to a claim on a promissory note and would like to explore your rights further, please contact the Thompson Law Office at (317) 604-1276 and reference this article to receive a free consultation.

 

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