Monthly Archives: November 2014

The Petition – Part 7 (a), (b), and (c) – Custody & Visitation

November 20th, 2014

In a dissolution proceeding, the Court has jurisdiction (or power) to make custody and visitation orders.

Joint legal custody means that both parents shall share the right and the responsibility to make the decisions relating to the health, education, and welfare of a child. Fam. Code § 3003.

Joint physical custody means that each of the parents shall have significant periods of physical custody. Joint physical custody shall be shared by the parents in such a way so as to assure a child of frequent and continuing contact with both parents, subject to Sections 3011 and 3020. Fam. Code § 3004.

Sole legal custody means that one parent shall have the right and the responsibility to make the decisions relating to the health, education, and welfare of a child. Fam. Code § 3006.

Sole physical custody means that a child shall reside with and be under the supervision of one parent, subject to the power of the court to order visitation. Fam. Code § 3007.

Does “joint legal custody” require agreement on every single parenting decision?  In short (and as was likely true in the marriage), no.  The parent with the current physical custody of the child (in other words, the child the parent is with) can make the every day decisions for the child.  Emergency care?  Yes.  Switching schools?  No.  Pierced ears?  No.  The latter decisions require joint agreement, and if the parties cannot reach an agreement, the Court may be called in to make a decision.  The Court (or the parties) can also craft “joint legal custody” orders to specify what actions require joint agreement and which do not.

Visitation can also be described as the timeshare, or the time the child spends with each parent.  The timeshare could be a week-on/week-off, alternating weekends, 2/2/3, or 2/2/5 schedule.  The timeshare depends on the parties and what is in the best interest of the children.  Different schedules may be appropriate depending on the age of the children.  Sample calendars of difference timeshare schedules are located here.

Most Courts will advise parties that it is best for parties, and the children, to have the parents reach an agreement on the custody and visitation schedule.  If the parties cannot do so between themselves or with the help of mediation, the Court will make a decision focusing on frequent and continuing contact with both parents and the best interests of the children.

If you have questions about custody and/or visitation, talk to an experienced family law attorney.

Property Division – 1 Billion Dollars?!

November 12th, 2014

In Oklahoma this week, a court ordered a husband to pay approximately $1,000,000,000 in “property division alimony” to his former wife.  Click here or here for the complete story.  While California does not have “property division alimony,” the case provides a good starting point with regard to property division and the valuation of party’s services to a community property business.

In an earlier post, the blog discussed community property and how it is divided equally at dissolution. Before dividing the asset, the court needs to how to value it.  In the Oklahoma case, one of the questions was how to value the community interest in an energy business started by Husband.  Husband’s argument was that the business took off because of the inherent nature of the business.  Wife countered that he made his millions because of his business skill and acumen.

In California, Husband’s tact would be known as the Van Camp approach; Wife would argue for a Pereira approach.  In general, a party argues for the Van Camp approach when it is the initial investment and not the personal efforts that grew the asset while the Pereira approach would focus on the personal efforts of a party driving the growth of a particular asset or property.  Pereira tends to favors the community while Van Camp favors the initial separate property interest (attributing the growth to that party’s separate property).

The Oklahoma case appears to have rewarded the community and based the company’s growth on the husband’s “skills and efforts” and less on luck and the increase in oil prices.  If you are facing a dissolution and either you or your spouse run a small (or extremely large!) business, be sure to talk to an experienced family law attorney to determine the best and most favorable approach to valuing that business prior to the division of community property.

Beware Social Media!

November 3rd, 2014

A recent Doonesbury cartoon should remind all family law parties to watch what they post to their Facebook page.

While the comic focuses on potential adultery (not a specific ground for dissolution in California), Facebook and other social media posts can potentially impact support and custody/visitation decisions.  For example:

  • Support:  If a party claiming the need for support simultaneously posts photos and status updates about their expensive vacation to Europe, you can expect the opposing party to raise this issue as an argument against support.
  • Custody/Visitation:  If a party claims that he is the best (and only) person to care for the parties’ child, and photos surface of the child holding a Solo red cup; the other parent may use this information to let the court know about the parent’s “relaxed” parenting style.

In short, if one does not want information before the Court, don’t post it to social media.  Don’t rely on your privacy and security settings.  Keep your dissolution and opinions about the other party to yourself and share only with your attorney.