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.

Surrogacy

September 23rd, 2014

Surrogacy is defined as “the practice by which a woman (called a surrogate mother) becomes pregnant and gives birth to a baby in order to give it to someone who cannot have children” (Merriam-Webster).  Laws vary state to state as noted in this recent New York Times article.

In California, surrogacy is lawful (and regulated).  The Family Code speaks about it here.  In short, the parties enter into a contract whereby a woman will become pregnant via in vitro fertilization and birth a child that is not intended to be her own (nor is she genetically related to the child).  She may enter into the contract with a married couple, those in a domestic partnership, or a single person.  The contract needs to clearly spell out the terms including, but not limited to: the persons from which the egg and sperm came (unless anonymously donated) and the identity of the intended parent(s).

Be sure to speak to an experienced reproductive rights attorney before signing a surrogacy contract.

 

 

Constitution Day – 2014

September 17th, 2014

Family law is usually considered a state law issue – removed from federal and constitutional issues.  However, gay marriage and even grandparent visitation rights are two family law issues impacted by the U.S. Constitution.  Is there a constitutional right to gay marriage?  Can a parent deny visitation to a grandparent?  The Constitution has an answer.

This blog previously addressed constitutional/family law issues here.  Grandparent rights and the right to raise your child are discussed in Troxel v. Granville (2000) 530 U.S. 57 (“liberty interest [as defined in the 14th Amendment] at issue in this case–the interest of parents in the care, custody, and control of their children–is perhaps the oldest of the fundamental liberty interests recognized by this Court.”

Happy Constitution Day!

 

Domestic Violence

September 17th, 2014

Domestic violence has reared its ugly head in the news recently.  There are resources for victims of domestic violence.  For resources in Alameda County, click here; Contra Costa County, click here.  The legal system also addresses domestic violence in the family law court system.

Victims can request Domestic Violence Restraining Orders (“DVRO”) which can include stay-away orders, custody/visitation orders (if children involved), and support orders.  A person can request a DVRO in conjunction with a family law case (dissolution or paternity), but a previously existing case is not required.

If domestic violence is an issue in your case, be sure to talk to an experienced family law attorney who can help you navigate the legal system and obtain the help and legal protections you need.

Fewer Marriages Do Not Necessarily Result in Fewer Children

September 16th, 2014

The New York Times recently published an opinion piece entitled “Beyond Marriage“.  The author discusses the reduction in the number of marriages (and possible causes), but cites studies that say:  40% of children are born outside of marriage.  The author suggests a number of ways to assist these mothers and their newborn children.

Even if a couple is not married (or even if they are no longer in a romantic relationship), either parent can attempt to establish paternity of the child via a Petition to Establish Parental Relationship.  Once the parental relationship is established, the father then has rights to custody and visitation of the child (subject to the the “best interest” of the child) as well as the legal obligation of support.  Parents can also sign the Declaration of Paternity to facilitate the paternity process.

If you are a parent of a child born out of wedlock, be sure to talk to an experienced family law attorney to help determine your right and obligations as well as those of the other parent.  And perhaps most importantly, the rights of your child.

If Parents Can’t Agree

September 8th, 2014

When divorcing parents (or parents in a parentage action) who share joint legal custody cannot agree on how to raise their child(ren) (whether it be faith, school choice, or sports), one or both parents may ask the court for assistance.  California already requires parents to attend court-ordered mediation with Family Court Services.  In an opinion piece this Sunday in the New York Times, Dr. Robert E. Emery suggests the legal system should encourage more cooperation between parents, including the honoring of what he calls “parental agreements”.

A “parental agreement,” according to Dr. Emery could include an “enforceable contract… that a parenting coordinator could make decisions for them in the future if they fail to agree.”  In California, parents may stipulate to appoint a private child custody recommending mediator (sample Stipulation & Order here and here).

The Recommending Mediator can work closely with both parents to help them reach an agreement on an array of parenting issues. The parents can set the scope of the Recommending Mediator’s work.  For example, the Mediator can help with planning extracurricular and religious activities, but could not opine on the custody labels.  If the parties cannot reach an agreement, the Recommending Mediator makes a decision.  However, that decision can be challenged in the court, and a judge will ultimately be left to decide what is in the “best interest of the children.”

A Recommending Mediator may be helpful in reaching a resolution with the other parent in your case.  If you have custody/visitation questions or want to know if a Recommending Mediator is right for your case, be sure to talk to an experienced family law attorney.

 

International Custody – “Trial Period” Abroad Keeps Child in the U.S.

August 28th, 2014

The 9th Circuit recently ruled that the “habitual residence” of a child is based on the “shared, settled intent of the parents.”  In other words, where did the parents intend for the child to live.  The habitual residence is important in Hague international custody cases for a number of reasons including that if a parent wrongfully removes a child from the habitual residence country, the court must order that child be returned to that habitual residence country for adjudication of custody and visitation rights  An earlier Supreme Court Hague case is discussed here.

In Murphy v. Sloan, even though the child had spent several years in Ireland, the parties intended the time away to be a trial period.  The parties last agreement was that the child’s home country was the U.S. and the time in Ireland was a trial only.  While one party (the parent in Ireland) may have changed her mind, the Court looked back to the final “shared settled intent of the parents.”

Acclimatization (“Certain circumstances related to a child’s residence and socialization in another country”) by the child in the new country may overtake deference to the habitual residence.  However, the necessary acclimatization to Ireland was not found in Murphy, and the mother’s request to have the children returned to Ireland was denied.  (Note:  Mother can still attempt to regain custody; however, she must do so in a California and not Irish court.)

International custody disputes may involve California, federal, and international law.  Be sure to speak to an experienced family law attorney who is familiar with the Hague convention as well as state and federal law.

US Parents in International Abduction Cases to Receive More Assistance from the Feds!

August 26th, 2014

US parents who are fighting for the return of their children to the United States received some legal help with the passage of the Sean and David Goldman International Child Abduction Prevention and Return Act of 2014.

The law, signed by President Obama on August 8, 2014, was named for and written in response to a New Jersey’s father custody dispute when his child was wrongfully kept in Brazil.  He argued in US and Brazilian courts for many years before his son was returned to the US.  According to this article, the bill will “help the State Department put increasing pressure on foreign governments to send home American children who were abducted overseas.”

Congress found that “more than 1,000 outgoing international child abductions are reported every year.”  The bill provides the assistance of the United States government to US based parents in international custody disputes by requiring “better reporting and support from the State Department so that left-behind parents are not on their own in overseas battles to win the return of their abducted children.”

Whether your custody dispute is domestic or international, be sure to speak to an experienced family law attorney who can advise you as to your rights as to the proper forum to adjudicate custody and visitation issues.