Category Archives: Child custody and visitation.

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.

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.

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.

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.

The Benefits of Effective Co-Parenting

Two Examples of Effective Co-Parenting-These stories are true!co parenting

Good Example #1

Four years ago, I was in a hair salon, getting my hair blown out by one of my still favorite hair dressers, Mary. (I switch between two sisters). During my appointment, Mary was having a fun and lively conversation with a man, who was sitting near her hair station. I knew this man did not work at the salon, as I had never seen him there before. They were both chatting and laughing as though they had known each other for several years. My hair dresser then introduced me to this man as being “Valerie’s father.”Valerie is her now 10 year old daughter, who was 6 years old, at that time.

I had heard my hairdresser speak of Valerie’s father before. Her tone was always positive and upbeat when she mentioned him. Accordingly, I thought they were still married. Yet, that day, she explained that she had been divorced from Valerie’s father for a few years. As a divorce lawyer, I was stunned! I had never seen two divorced people get along so well. They seemed like good friends.

My hairdresser explained to me that her positive relationship with Valerie’s father makes her life much easier. They amicably share custody on holidays, without the need for a court ordered schedule. They don’t have a set place to exchange custody. They just meet up where it is most convenient for them. Sometimes that is at her salon, other times it is at his place of work, other times it is at one of their homes.  Mary told me this arrangement saves her a ton of money. When she wants to go out of town for a long weekend, or wants to go out for an evening in the middle of the week, she knows that she can leave Valerie with her father. She does not have to pay for a babysitter.  She reciprocates and takes care of Valerie for the father when he has plans. Both parents have the peace of mind that when they leave Valerie with the other parent, that she will be well cared for.

Of course, for Valerie, this means that she has a positive and healthy relationship with both of her parents. Fortunately, she does not experience the bad mouthing and acrimony that is typical of many divorced parents.

Good Example #2

My second example is of a good friend of mine, Angela, who has two teenage children, both of whom are older than Valerie. While the teenagers are more independent, there is still sometimes a need for her to arrange for someone to drive them to school, and to their extra curricula activities when she is unable to do so. This friend also likes to travel. In the past two months, she took two extended trips to Europe. The first trip was to the Scandinavian countries. She was there for three weeks. Her second and more recent trip was to the United Kingdom. She stayed there for two weeks.

Who do you suppose watched after Angela’s two teenage children when she was on her trips to Europe? You guessed it, their Father! He even stayed at her place with the kids, while she was in Europe, so that their school schedule and after school activities would not be interrupted.

Angela told me that she does not feel she could take her trips to Europe if her ex husband was not willing to take care of her teenagers when she is gone. First, she could not afford the expense of an overnight care-taken for several weeks at a time. Second, she feels confident that when they are with their father, they are well cared for. She simply does not have that same confidence in an outsider.

Angela’s ex husband lives in another town. One of my favorite parts of her story is that, at times, when it is the father’s turn to take custody, he will drive into her town and have dinner and spend the night with her and the kids. If Angela needs his help, he will stick around for a few days until she is squared away. Then he will take the kids with him to his home, in the next town over.

What does this mean for Angela’s two teenage children? It means that they are well adjusted, happy, and have a good relationship with both of their parents. Like Valerie, they have been spared of the acrimony that so many children of divorced parents often experience.

Compare and Contrast- Ineffective Co-Parenting

Most people going through a divorce, do not have the same experience as my hairdresser, Mary, or my friend, Angela. They are generally stuck on a regimented schedule and a set place to do the custody exchange. Most could not even share custody without that set structure.  If one of the parents is as much as five minutes late, the other is on the phone with their lawyer. Never mind that the tardiness, of the other parent, may be due to something as realistic as being stuck in traffic, or late getting out of work. The other parent is already imagining the worst. It is not uncommon for parties to move for a court order to be allowed to tape their conversations during the custody exchange.  In the extreme, I have had people argue over the mileage and how far they will have to drive to do the exchange. I recall one situation in which a former client actually goggled the mileage the other parent would have to travel to do the exchange. Said client then accused the other parent of lying about a one mile difference, and how long it would take her to arrive to the agreed upon exchange location.

In these situations, the parties are not emotionally capable of doing the exchange at their respective homes or work, or wherever it is more convenient. They certainly would not stay in one another’s home while the other is out of town. In most of these situation, the parties cannot even stand to be in the same room with one another!

What does this mean for the parties? Simply put, the slightest change in their custody arrangement would have to be discussed between their lawyers.  I have known lawyers to have billed thousands of dollars in a few days, just trying to get their clients to agree on a time and  location to do the exchange. Then, the lawyers have to write up a stipulation and get it filed with the court. More billable hours. The funny thing is that these parties don’t seem to realize or care when they are racking up the costs during the time that they are bickering. Yet, when they get the bill, they are always surprised!

What does this mean for their children? Even if there is a court order prohibiting both parents from speaking negatively about the other, in front the children, the children generally can sense the tension. This affects the children’s emotional well being.

Conclusion

In the good examples, above, of Mary and Angela, both sets of parents have somehow come to realize that even though their marriage did not work out, that they still have to be parents together. They have managed to get through their differences, and work things out in a way that not only is best for their children, but which also accommodates their respective needs and schedules. Not only is this psychologically healthier for all concerned, but also, it saves these parents thousands of dollars in attorneys fees and childcare expenses.

In contrast, people involved in a divorce, who cannot seem to get past their acrimony, constantly complain not only about the other party, but also about paying their attorneys.  Their problems and misfortunes are always someone else’s fault. Perhaps they should take stock and realize that the situation in which they find themselves, is often the result of their own choices.

Unfortunately, in the end, it is their children (and their pocket books) who ultimately suffer for their childish behavior.

 

What Are The Consequences of Violating a Court Order In A Custody Battle? The Sequel

The Bitter Custody Battle of Kelly Rutherford Comes To An End.

Last September, I posted an article in which I opined that the conduct of Kelly Rutherford would hurt her in her petition for full custody of her children. I was specifically referring to her refusal Kelly Rutherfordto follow the clear terms of a court order, wherein she was supposed to return her children to their father in Monaco, after their summer visit with her in the United States.

If you recall, Ms Rutherford took the position that she did not have to return her children to their father in Monaco, since the children are US citizens. She further opined that Monaco did not have jurisdiction to order her to return the children to their father.

Do you remember what happened back in Sept 2015? A New York Judge ordered Kelly to return the children to their father forthwith, per the clear terms of the Monaco court order.

Back then, I opined that Ms. Rutherford’s conduct would hurt her credibility, and, thereby, hinder her fight for full parental custody.

Fast forward to the present. There was a court hearing in Monaco in November 2015. The final decision was rendered. After a long and bitter 10 year custody battle, a Monaco Judge ruled that the father has primary physical custody. While Ms. Rutherford has visitation rights, she is only permitted to exercise those rights in Monaco. The order states that Ms Rutherford may spend 2 weeks per year with her children. There is also a vacation order in place wherein the parties split holiday schedules.  The children spend half of Christmas, Spring and Summer vacations with their father and their mother. But again, all visits, including holiday visits, must take place in France. Ms Rutherford is prohibited from removing the children from France.

Had Ms. Rutherford returned the children to France back in Sept 2015, per the clear terms of the court order, I think the outcome would have been different. I think that she would have been given more than 2 weeks per year with her children. I think the court would have been far more generous with Ms. Rutherford. For instance, the court may have ordered that the children spend the school year with their father in France, and all of summer vacation with their mother in the United States. I also think the vacation schedule would have been rotated. The court may have ordered that the children spend alternate holidays with each parent. Also, the holidays with mom could have been spent in the United States.

However, by violating a court order, and refusing to return the children to their father last September, Ms Rutherford demonstrated that she cannot be trusted. The court probably feared that if visits were allowed in the United States, Ms. Rutherford would, once again, refuse to return the children to Monaco per court order or agreement. Thus, her fate was sealed back in Sept.

Once again, the Moral of the Story is Never Ever Violate A Court Order!

What Are the Consequences of False Accusations of Child Abuse during custody Proceedings?

In the reverse situation, i.e., when a parent is found guilty of child abuse, the consequences can be harsh. His or her custody rights can be limited. In extreme cases, visitation can be denied. In other cases, visitation can only take place under supervision.Money, scales of justice

But what happens when the opposite situation takes place? When one parent falsely accuses the other of child abuse, merely to gain leverage in a custody dispute?

The answer is spelled out in California Family Code section 3027.1. That section provides as follows:

3027.1.  (a) If a court determines, based on the investigation

described in Section 3027 or other evidence presented to it, that an

accusation of child abuse or neglect made during a child custody

proceeding is false and the person making the accusation knew it to

be false at the time the accusation was made, the court may impose

reasonable money sanctions, not to exceed all costs incurred by the

party accused as a direct result of defending the accusation, and

reasonable attorney’s fees incurred in recovering the sanctions,

against the person making the accusation. For the purposes of this

section, “person” includes a witness, a party, or a party’s attorney.

In lay terms, this means that a person who has been falsely accused of child abuse, and who successfully defended him or herself against said accusations, can go after the person or people who made the accusations for the cost of his or her defense, or , put differently, for his or her attorneys fees. These are known as “sanctions.”  In addition, that same person may also recover attorneys fees incurred for the cost of bringing the motion for sanctions.

The people who are usually responsible for paying the attorneys fees or sanctions include the party who made the false allegations and his or her attorney.
In order to be able to recover one’s fees, that person must have had to defend his or herself against the accusations and have won the lawsuit.

The motion for sanctions must be filed before the earliest of 60 days after the judgment exonerating him or her is served, OR 180 days from the entry of such judgement.

Several months ago, I handled a matter which fell under the perview of 3027.1, for a client who lives in another state. The opposing party, who lives in California,  accused my client of domestic violence against their child while the child was in her custody. I requested that the court order a “minor’s interview.” That is when a court appointed expert, usually a PhD psychologist, interviews the minor, and testifies in place of the minor. I felt confident making this request. After having been  in practice a number of years, one gets a sense of people. I was certain that my client had not abused her child.

Sure enough, the expert refuted all of the claims of the opposing party. The Judge dismissed the DVPA  claim for lack of substantial evidence. Per statute, I later filed a motion for attorneys fees within 60 days after the judgment was entered.  At the hearing for fees, the Judge ordered the opposing party to reimburse my client for attorneys fees she incurred in defending the allegations of domestic violence, for the fees incurred in preparing the motion for santions under 3027.1, and for travel expenses incurred in coming to California to defend the allegations.

The moral of the story is, never file claims of domestic violence in order to get leverage in a custody action. It could prove to be very costly!