Legal Question in Family Law in North Dakota

Re: Conflict of Interest, Ethical problem??

I am licensed to practice in Montana, not North Dakota. Do not take what I say here as legal advice for you specifically, just general 'counsel' based on my experience in Montana.

I do not believe the attorney's actions constitute a conflict of interest or a breach of professional ethics. But . . .

The simple answer is: contact is contact.

I have handled a large number of Orders of Protection, essentially what you're calling a "no contact" order. Almost all of them prohibit the Respondent from contacting the Petitioner, and includes third-party contact. A lot of respondents get into trouble with the Court when they defy the order and contact the petitioner. It doesn't matter whether it's "nice" contact such as a birthday card, or "helpful" contact such as sending something respondent thinks petitioner needs (such as a phone message from petitioner's boss) or a third-party contact such as asking petitioner's mom to tell petitioner "I'm sorry." Contact is contact. Violation is violation. The Court is not happy, and you will not be happy when the Court is not happy.

My general advice for just about every order is this: If a court order tells you to not do a thing, do not assume it's okay to ignore the order because the other party says "oh, don't worry about it." If it's okay to do the thing, then ask biomom's attorney to get a court order amending the previous no-contact order to allow direct payment. Otherwise, you could end up in court trying to explain to the judge why you're violating his/her order, while the other side says, "I never said that."

Some commonsense advice: (1) Pay by check so you have a written record that you paid. Perhaps make it out to the health care provider. Better yet, North Dakota law might entitle Dad to receive records such as medical records and bills. If that's the case, get the bill directly from the provider and pay directly to the provider. (2) If you decide to pay through biomom, do not enclose with the payment any kind of correspondence that goes beyond identifying the enclosure and its purpose, e.g., "Enclosed is check # 123 to Dr. Elizabeth Johnson for Father's 1/2 initial payment on Billy's orthodontia." (3) You will, of course, make photocopies of everything you send to biomom and keep all those copies in good order in a file.

Re: Conflict of Interest, Ethical problem??

Suggest: continuation per the court order arrangement if the payment/s are for a set sum and have a termination date. If not, let the ex petition the Court for a different payment arrangement order.

An opposing party's attorney is not considered a party to the action. So, If you don't have an attorney, the opposing counsel may in most instances contact the opposing party directly, even when a "no contact" provision exists, as between the parties.

Whether you or your spouse should directly pay medical expenses to his ex, instead of to her lawyer, per her lawyer's direction should be addressed to your own legal counsel.

However, the general rule is that any and all payments in litigated matters, should be made in such a way as to avoid further dispute; ie., they need to be dated, receipted and verifiable. Short term or limited payments ordered, should be paid to the third party designated by the court to receive it. Regular child support payments can be made through the court via garnishment or both.

GOOD LUCK,

PHROSKA L. McALISTER,ESQ

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