Author Archives: Admin

Is Joint Custody Always in the Best Interest of the Child?

For those of you who have been following my blog posts, you probably remember that I have addressed this issue in prior posts. I wrote one post entitled “The Benefits of Effective Co-Parenting.” In that post, I gave examples of two family situations wherein the parties had divorced but, nonetheless, were able to effectively co parent. In those situations the fact that the parents had split, had no effect on the development of their children. That was because the parents actually remained friends and helped one another out.

In another post, entitled “What happens In Custody Disputes When Parents Have Reasonable Expectations,” I talked about a situation wherein a mother sought out a residence close to the father, so that her daughter could regularly see her dad. While the mother knew that her marriage was over, she recognized that her Ex is an awesome father. Thus, she wanted to ensure that her daughter continued to have regular contact with her father.

Those cases represent the ideal rather than the norm. In most custody battles, the issues are more complicated and contentious.

In another blog post entitled “Do Pre-Nups and Forum Shopping Pay Off-What Can Be Learned from the Break-up of Katie Holmes and Tom Cruise,” I discussed how different states view custody arrangements. I pointed out that New York favors sole custody, while California favors joint custody. I explained that Katie Holmes waited 2 years before filing for divorce from Tom Cruise, so that she could establish residency in New York. I pointed out that this paid off for Katie, in that she now has sole custody of their daughter, while Tom has visitation. Had the matter been litigated in California, where joint custody is favored, Katie and Tom probably would have had a long drawn out custody battle, with both parties sharing joint physical custody of their daughter.

Since I practice in California, this post will address the impact of joint custody arrangements in California. The legislative and judicial mentality here favors joint physical custody. Even if one parent has “primary” physical custody, meaning that the child is in that parents custody most of the time, the mind-set here is to characterize the other parents time share as being his or her “custodial” time rather than ‘visitation’ time. Thus, even the language used in fashioning custody arrangements in California has implications, and, therefore, invokes emotions.

In California, the legislative and judicial goal is to strive for “regular and frequent” contact with both parents. But is this always in the child’s best interest?

I was recently involved in a custody dispute which involved a seven month old child. I represented the mother. The child was very happy, secure and playful in his mother’s presence. The mother was calm and intuitively knew how to parent. In contrast, the father had anger issues, and felt overwhelmed by being a first time parent. I felt the father needed to take courses to get his anger under control. The Judge was more concerned about his parenting skills. Nonetheless, the Judge did not order that the father enroll in either parenting or anger management courses.

The mother expressed legitimate concerns regarding the child’s safety while in the father’s “custody.” The father’s lawyer keep harping away at the legislative preference for “frequent and regular contact” with both parents. I was able to persuade the Judge that the child should be in the mother’s care most of the time, and that visits with his father should be restricted. In the end, the Judge ordered joint physical custody, with primary physical custody to the mother. In other words, although the father’s time with the child is restricted, the court did not want to characterize his time share as “visitation” time. It was his “custodial” time. That is very typical of the mind set here in California.

This case caused me to question whether joint physical custody is always in the child’s best interest. Particularly in situations involving infants. The first few years of a child’s life are the developmental years. While the ideal situation is for children to have a relationship with both parents, one questions whether it is advisable for an infant to be exposed to anger and poor parenting skills during those crucial developmental years.

Perhaps the over-riding concern should be what is in the best interest of the child. Not what is best for the parents.

How Do Married People in California, Change the Characterization of Property?

In California, a married couple can change the characterization of property from one party’s

Discussion with a real estate agent

separate property, to both parties community property, and visa versa. They can also change the characterization of the community property of both parties, to the separate property of one party. And, they can change the separate property of one spouse to the separate property of the other spouse.

This process is referred to as a “Transmutation.” A Transmutation is a change in the characterization of marital property in California.

Before 1984, parties could verbally change the characterization of property. For instance, property acquired or bought before marriage, is the separate property of the party who acquired it.  Previously, the owner of a separate property residence or home, for example, could “transmute” the characterization of his or her property, simply by stating that s/he intended to do so. A person could say to his or her spouse, “Honey, I love you. Therefore, my home is your home.” Back in the day, that was a valid transmutation.

However, as time progressed verbal transmutations created problems of proof. Furthermore the legislature, in its ultimate wisdom, disfavored changes in the characterization of property which were traced to “pillow talk.” Therefore, in 1984, the legislature enacted section 852 of the California Family Code. Subsection (a) provides that a transmutation of real or personal property must be in writing, it must be consented to by both parties, and it must be signed by the party whose interest is adversely affected.

So what counts as a valid Transmutation in California? I recently had a case which involved an inter-spousal transfer deed. The parties bought a home while they were married with husbands wages. Remember, wages are community property. Therefore, the home was community property. Years later, the property was upside down. At that time, wife decided she no longer wanted any responsibility for the property. So she signed an inter-spousal transfer deed, wherein the property was transferred to the husband and became his separate property.

What were the consequences of wife having signed the inter-spousal transfer deed? Well, when the parties divorced and the property was sold, wife was no longer entitled to split the proceeds of the sale. It all went to husband! I found case law which stated that an inter-spousal transfer deed satisfies the requirements of Section 852 (a)! That is because it was signed by the wife at the time of conveyance to the husband, and she was the party whose interests were adversely affected. Also, both parties signed and consented to the inter-spousal transfer deed.

But be careful. Sometimes one may think there is a valid transmutation when there is not. For instance, it has been held that a notation in escrow to divide proceeds from the sale of a family residence on a 50/50 basis, did not constitute a transmutation. Or put differently, it did not change the characterization of the proceeds from the sale of the property, from the community property of both spouses to the separate property of each spouse, after the sale. Why? Because the escrow notation was not signed by the parties.

Finally, a mere agreement to divide proceeds of the sale separate property residence, does not changed the characterization of said property from separate to community. Why? Because, once again, per the requirements of section 852 (a), the party whose interests are adversely affected must state, in writing, that s/he is aware that she is giving up his or her interest in the property.

If you are in doubt about the characterization of property at the time of divorce, it is best to consult with an attorney who is versed on this topic. People often times think they have met the requirements of Family Code section 852 (a) when they have not. I have even known a few attorneys who do not fully understand the requirements of section 852 (a).

What Happens In Custody Disputes When A Client Has Reasonable Expectations?

There is a saying in family law, that one often sees good people at their worst.

I think that saying is particularly true in custody disputes. I have seen people get upset because the other parent was a few minutes late dropping off their children at an agreed upon meeting place. Never mind that there is always traffic in Los Angeles, and, in general, that causes people to be late. I have seen people argue over an agreed meeting place to exchange their children, because of a difference of a few miles. Believe it or not, people rake up billable hours and spend thousands of dollars arguing over nonsense like that.

Even worse, I have seen people hurl unfounded accusations of domestic violence against one another, in order to gain leverage in a custody dispute. The party who is making the false allegations is often ordered to pay sanctions, and to pay the fees incurred by the other spouse for having to defend against said accusations. Although the accused party may recover the fees s/he has incurred, these battles often leave long lasting and devastating psychological  scars on the parties and on their children.

Well, my experience is about to change. I was recently retained by a woman is the polar opposite of what I described above. This woman wants a divorce from her current husband because she realizes that their marriage is over. However, she acknowledges that she will have to continue to co parent with her soon to be ex husband until their daughter is 18 years old.

Even more surprising and refreshing, is my client’s acknowledgment that her soon to be ex is a wonderful father. Accordingly, she wants her daughter to have a close relationship with her father. She wants the father to have frequent and regular contact with his daughter, and she is open to any kind of custody arrangement that will suit both of their work schedules.

Wow! This is a Judge’s dream. This is precisely the kind of thinking that family law practitioners encourage of their clients. This kind of thinking is actually codified in the California family law code!

What does this mean for my client? Custody is often the most litigated and contested issue in most divorce cases. People argue more over custody than they argue over dividing property and assets. Therefore, if the clients can work out their own custody arrangement, we will probably be able to settle the remaining issues out of court. The parties may be able to finalize their divorce by simply filing the right paperwork. It means that the parties will save time and money.

Most importantly, it means that their daughter will grow up feeling loved and nurtured by both of her parents, notwithstanding that they will be divorced.

Is the marriage of Kanye and Kim over?

The tabloids are hinting that Kim is considering filing a petition for dissolution of marriage.  While no specifics have been stated, the hint is that this has something to do with Kanye’s recent melt down. Also, Kim is concerned for the safety and well being of her two children,  3 year old North, and 1 year old Saint.

In California, there are only two grounds for divorce. The first, is irroncilable differences. The second is incurable insanity. Most California divorces fall under the first category.

A married person can file for divorce under “irreconcilable differences” for any reason s/he desires. California is a no fault divorce state. That means that a California judge will not probe into the reason for divorce. Accordingly, Kanye’s melt down becomes irrelevant, with regard to Kim’s petition for dissolution.

As to Kim’s desire to keep her children safe, Kanye’s meltdown may come up if the parties contest custody. It may be relevant regarding which parent will wind up with primary physical custody; and, whether the other will get unsupervised or supervised visits.  It may also have bearing on the frequency of  visits, and how often Kanye will be able to see his children.

Once custody is determined, that will have bearing on the amount of child support Kanye may have to pay to Kim, since the time each parent spends with the children is a major factor in determing support.

However, Kanye’s meltdown will have zero effect on Kim’s petition for dissolution. In fact, if the issue of fault is raised during the proceedings, the party raising the issue could be sanctioned or fined.

 

Brad Pitt cleared of charges of child abuse. What is the significance of that?

This is the result which I expected. My sense told me that the charges of child abuse, against angie-and-bradBrad Pitt, were without merit. Even if Angelina had reason for concern, I felt that she exaggerated to gain an advantage in their custody proceeding. That is never a wise thing to do. Particularly in a state like California which favors joint custody. And, encourages both parents to have a relationship with their children.

I worked in the dependency arena my first eight years in practice. Dependency cases involve representing child in the foster system who have been neglected and abused, as well as representing parents who have been accused of wrongdoing. In my experience, the social workers within the court system will not file a petition for dependency court jurisdiction, unless they believe that the children are at risk. Similarly, they will not lightly dismiss petitions unless, after a careful review, there was no finding of wrong doing.

Therefore, if the Department of child and family services cleared Brad Pitt, it is safe to say that he probably did not committ acts of child abuse.

Angelina is going to have to re evaluate her strategies. If she continues to hurl unsubstantiated allegations against Mr Pitt, to gain an advantage in a custody proceeding, it can back fire. California family law Judges really do no appreicate that.

Will Angelina’s past come to haunt her as she trashes Brad Pitt?

angelina-jolie-tattoosAccording to a recent article in the New Your post, it appears that Angelina Jolie’s trashing of Brad Pitt is quickly backfiring. For the past 12 years, Angelino Jolie has been a master at manipulating the media. People had begun to see her as a saint. She was held out as a role model mother, who traveled the world to help the less fortunate. People has forgotten about her past image. Now that image is coming back to haunt her. People are starting to remember her twisted past.

People are starting to remember the drugs, the blood viles, and her affair with her biological brother. Not to mention, the tatoos.

A colleage, who recently commented on Jolie, accurately said that when you point the finger at someone, four fingers point back at you. Angelina has been a bag of psychological tricks since she was a teenager.

As to perceptions, the public did admire her during this past decade. But they loved and still do love Brad Pitt.

http://nypost.com/2016/09/25/jolie-exposes-her-rebel-turned-saint-myth-by-trashing-pitt/

Are the allegations that Brad Pitt committed child abuse credible?

For twelve years, Brad Pitt and Angelina were held out as model parents and philanthropists. angie-and-bradThough they were only married for two out of the twelve years that they were together, they symbolized public bliss. They traveled the world together on diplomatic missions, helping people in third world countires. Three of their 6 children were adopted from third world countries.

Now there has been an about face. Angelina filed for divorce last week. Since that time, there are unconfirmed public allegations that Brad committed child abuse. That he was verbally and physically abusive to their children on their private plane.

How can this be? How can a man who was once an icon for good parenting, suddenly abuse his children?  What would trigger such an about face?

I am viewing this news with a juandice eye. It is easy to hurl accusations, and unfortunately, it is not uncommon when people split.

I have been involved in matters wherein one party falsely accuses the other of domestic violence. It is highly scantionable to falsely accuse the other party of domestic violence. The party who wrongfully accuses can wind up paying for the other parties defense and costs, as well as the time it takes the defense lawyer to prepare for the hearing on those issues.

Accusing someone of domestic violence should never be used as a strategy or tactic.

It should be noted that the LA Police Department stated that Brad Pitt will not be investigated for domestic violence.

I am not saying that it did or did not happen. I was not there. What I am saying is that people should not jump to conclusions or automatically believe the accusations of one party against the other. Particularly if they are in the midst of a dissolution proceeding. By its very nature, divorce is contentious.

Did Harry Glassman get a windfall in his divorce settlement?

I actually do not know if I agree with the settlement in the divorce of Victoria Principal and Dr Victoria Principal and Harry GlassmanHarry Glassman. Together they had a combined networth of $50 million, which grew to about 4 or 5 times that amount during their marriage. While Glassman had a thriving practice, the bulk of the money was earned by Principal, through her acting career and skin care line. In their divorce settlement,  everything was split down the midldle. It has been said that Glassman got a windfall of $25 million.

While the goal is to divide the community property evenly, we should also look at the other legislative goals set forth in the case law and statutes. In an nut shell, the goal is to maintain the standard of living during marriage and to make sure that each party is self supporting within a certain period of time.

Another goal, that is not often discussed, is the legislative intent to make sure that parties to a divorce do not become dependent on public funds to survive, once they have been divorced. The days are now gone when one spouse could tell the other that s/he will leave the other spouse without a dime. That was one major motivation behind the enactment of community property laws.

In the case of Glassman and Principal, both are self supporting and capable of maintaining their same standard of living, after they split. From that perspective, an argument can be made that Glassman got a windfall, and that this situation does not fall within the purview of legislative intent to protect both parties to a divorce.

On a stricter reading of the case law and statutes, all income earned during marriage is community property. Thus, although Victoria earned more than Glassman, part of that money was his since it was earned during marriage. From that narrow persepctive, the judgment, which divided their net income in half, seems fair.

Will the international custody battle between Madonna and Guy Ritchie be decided in New York or London?

This past December, when Rocco was touring with Madonna,  his famous mother, in Europe, he refused to return to New York. He insisted that he wanted to stay in London and live with his famous father, Guy Ritchie.

Madonna then filed a motion in a London court, whereon she asked  Justice Alistair MacDonald to order Guy Ritchie  to put their  teenager son, Rocco, on a plane to New York. Instead, the judge ordered Rocco’s lawyer to hold onto his passport temporarily until he got a better understanding of what happened.

Madonna then filed a motion  in a Manhattan court, asking that her teenage son be returned to New York. State Supreme Court Justice Deborah Kaplan ordered Rocco to be returned home by January. However, the good Judge admonished both parties to try to work things out, and enjoy these years with their son. She noted that the parties had a temporary breakdown in communication. She said a custody court should be the last resort. Thereafter, Rocco enrolled in school in London with the blessing of both parties.

When Madonna and Guy Ritchie split in 2009, they agreed  that all custody disputes will be celebrities, M and Rocodecided in New York. This is clearly better for Mondonna in that she will not have to litigate custody issues in London. However, based on the tone of the NY Judge, it is clear that issues regarding custody will be determined by the best interest of their son, Rocco. Not what is more convenient for the parents.

Although further custody disputes will be decided in New York,  Madonna should heed the advice of the New York Judge and try to co parent with her ex. She also needs to show good faith, and that she is not trying to interfer with the father’s custodial time. Thus, it is to her credit that she agreed to allow Rocco to attend school in London. The last thing she would want is a ruling similar to the one rendered in the Kelly Rutherford international  custody dispute.

If you have been following my blog posts, you will recall that in the Rutherford matter, the final court ruling held that all future visits are to take place in Monoco. That was because Kelly Rutherford  violated a court order, and refused to return her children  to their father in Monoco at the end of their summer visit with her, in the United States.

 

Do Prenuptual Agreements and Forum Shopping Pay Off? What Can Be Learned From The Breakup of Katie Holms and Tom Cruise

The shorthand answer to that question is that with careful planning, a divorcing couple can Kattie, Tom, Suriavoid a long drawn out court battle.  They can resolve the major issues within a matter of weeks, thus avoiding the stress and expense that is inherent in most dissolution cases.

First, Tom and Katie had a prenuptial agreement regarding their finances, in the event that they ever split up. Therefore, they avoided a long drawn out court battle over division of property and assets. Katie gets $15 million does. That is $3 million for each year that the couple was married.

A prenuptial agreement is a tool used by wealthy people or people with assets. It gives them the ability to alter the normal rules regarding spousal support and community property in the event of divorce. It is a contract between engaged people that takes effect when they get married.

Since the parties financial situation may change during the course of their marriage, it is not always possible to predict, in advance, whether or not a prenuptial agreement will be legally enforceable when the parties separate or divorce. That is why it is important to hired skilled legal counsel when entering into a prenuptial agreement, to ensure that you have adequately complied with all of the legal requirements. While the cost of drafting a prenuptial agreement may be costly, it is far more cost efficient than not having one, and having to litigate property issues when the parties divorce.

A prenuptial agreement cannot include issues regarding child custody and child support. However, Katie was able to get control of the child custody issue by careful planning. First, she moved with her daughter to their home in New York. She stayed in New York long enough to make sure she met the “residency” requirement. She changed her cell phone number and fired all of their New York staff. (She probably did this to get away from the influence of the church of Scientology). She then filed for divorce in New York, rather than California. In New York, there is a presumption of sole custody. While in California, there is a presumption of joint custody. Also, in New York, judges are more likely to listen to arguments regarding the influence of fringe religions, such as Scientology, on children. I am also told that New York is a little more sensitive to mothers who are filing for sole custody.

Thus, by carefully planning this out, and making sure that she met the residency requirements to file for divorce in New York, Katie was able to select a jurisdiction, where the law is more favorable to her position.  In the end, Tom Cruise agreed that Katie would have primary physical custody of their daughter,  Suri, while he would have regular and meaningful ‘visitation’ rights. The distinction between joint physical custody and visitation is important when dividing up parental rights and responsibilities.  Katie also has exclusive say over the choice of her daughter’s religion and education. She enrolled her daughter into a private catholic school. Had this matter been decided in California, they probably would have had joint legal custody. That means that Tom would have had equal say in his daughter’s education and religion.  The parties could have very likely been back in court battling over these issues long after the divorce was final.

As to the issue of child support, in California, that is done by guideline. It is based on the time that each party spends with the child, and the respective incomes of both parties. In any event, I doubt if child support was an issue of contention for Tom and Katie. I cannot imagine Tom Cruise refusing to pay child support, or arguing about the amount. He probably does want his daughter to be financially secure.

So the moral of the story, or the lesson to be learned from the split of Tom and Katie, is that with careful planning, parties can resolve major issues of finances, property division and child custody and support within a matter of weeks, if not days. (Tom and Katie settled most of these issues within 11 days after she filed for divorce)! Thus, they can avoid the stress and expense of what otherwise could have been a long and drawn out court battle.