Recent Blog Posts in September 2009 |
| September 18, 2009 |
| Idaho Trial Court Rules that Mother Cannot Move to Michigan, Even Without the Kids! |
| Posted By Thurman Arnold |
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By Thurman Arnold: I just have to blog this news from Idaho to reinforce why clients are so often better off resolving their disputes then asking judges - who mean well - to decide for them.
In Allbright v. Allbright the parties divorced and entered into a stipulation requiring 60 days notice before either moved out of Bannock County, Idaho, if it rendered the parenting plan impractical. Mother remarried, and 2 years later her new husband lost his employment. He was only able to find employment in Michigan. Mother gave notice of her intent to move to Michigan. At that time she had custody of the parties' minor daughter 54% of the time. Father responded with a motion to give him custody. The parties sought recommendations from a psychologist, who conducted a custody evaluation and recommended daughter be allowed to move to Michigan with mother. He recommended a custody manager because of the "considerable hostility" between the parents. Father wasn't happy and convinced the trial court to appoint a second custody evaluator, who recommended that Father retain custody if Mother moved.
The case was tried in the summer of 2008. At the conclusion of the case, the court asked the parties' attorneys to brief whether it had the power to order Mother not to move at all, whether with or without the daughter.
Father urged that that child's best interests were (and would always be) best served if the parents remained in the same vicinity so that joint parenting could be shared. His lawyer argued that the child's best interests trumped every other consideration or right, such that a trial court could even, for example, order divorced and warring parents to live next door to each other or in the same house if it determined that was in the child's best interests!
The trial court evidently agreed, and ordered that Mom must not move out of Idaho whether with or without the daughter. Mother was hence enjoined to become a prisoner within that state, while her new husband continued his life in Michigan.
Thankfully, the Idaho Supreme Court disagreed with the trial court, but only after Mom probably spent thousands in legal fees defending her right to move. The high Court ruled: "A court presiding over a child custody matter does not become a family czar with unlimited authority to order the parents to do anything that the court believes is in the best interests of the child."
Yet, upon Mother's request to be reimbursed for her legal expenses, the Idaho Supreme Court was unsympathetic declaring that "[b]ecause we have never before addressed the issue of whether a court has the authority to prevent a parent from relocating, we do not find that Father defended this appeal frivolously, unreasonably, or without foundation."
Thurman's comment: It is always a dangerous matter to fail to resolve matters collaboratively.
Here is a link to the Idaho Supreme Court's decision in Allbright v. Allbright.
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| September 09, 2009 |
| I am a COMMON LAW spouse under Canadian law. We have been living in California for 4 years and acquired property. |
| Posted By Thurman Arnold |
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Q. My husband and I qualify as common law spouses in Canada, where we lived until 4 years ago when we moved to Palm Desert, CA. Does this mean anything?
Gwen.
A. There is no common law marriage in California, but the following American states do recognize it:
Alabama
Colorado
District of Columbia
Georgia (if created before 1/1/97)
Idaho (if created before 1/1/96)
Iowa
Kansas
Montana
New Hampshire (for inheritance purposes only)
Ohio (if created before 10/10/91)
Oklahoma
Pennsylvania (if created before 1/1/05)
Rhode Island
South Carolina
Texas
In a handful of states (listed above), heterosexual couples can become legally married without a license or ceremony. This type of marriage is called a common law marriage. Contrary to popular belief, a common law marriage is not created when two people simply live together for a certain number of years. In order to have a valid common law marriage, the couple must do all of the following:
live together for a significant period of time (not defined in any state)
hold themselves out as a married couple - typically this means using the same last name, referring to the other as "my husband" or "my wife," and filing a joint tax return, and that they intend to be married.
When a common law marriage exists, the spouses receive the same legal treatment given to formally married couples, including the requirement that they go through a legal divorce to end the marriage.
Now, what about California?
California doesn't recognize common law marriage within this State, but it does recognize common-law marriages contracted in any other State or jurisdiction, including foreign jurisdictions.
Specifically, California Family Code section 308 provides that "[a] marriage contracted outside this state that would be valid under the laws of the jurisdiction in which the marriage is was contracted is valid in this state." Section 308.5 limits this to a marriage between "a man and a woman".
Therefore, a valid common law marriage in another jurisdiction is valid in California to the extent it is between opposite sexes.
Your common law marriage will be treated as a valid marriage here, with all the attendant rights and obligations, if under Canadian law, as interpreted in California, you qualify.
TWA
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