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Recent Blog Posts in February 2010 |
| February 20, 2010 |
| Overcoming PARENTING CONFLICTS With OURFAMILYWIZARD.COM |
| Posted By Thurman Arnold |
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Overcoming PARENTING CONFLICTS with OurFamilyWizard
Visitation and parenting exchange disputes often occur simply because of confusion or poor communication skills between parents, but they can be deeply embarrassing and distressing for children and a source of continuing anxiety and reactivity on the part of parents. Sometimes these disputes can reflect a pattern of parental alienation. They can cost divorcing parents needless expense when they feel impelled to report these frustrations to their attorneys, taking time off from work battling about who really said what and when in court, and where they feel forced to engage each other within the legal system. This wastes valuable judicial resources with a court process that tends to perpetuate conflict rather than ending it.
As a custody, visitation, and move-away lawyer I commonly receive complaints from my clients - and sometimes allegations about them - concerning failed visitation exchanges, holiday plans, or unseemly conduct between family court litigants. Often these complaints are evidenced by texting and emails, but usually they are reported to me as my client's memories of angry telephone calls back and forth. Either way, it is difficult for me to know and prove what was really said and in what order, or to sensibly provide proof to opposing counsel, family judges, or to court mediators and evaluating therapists. Even where a text log can be created or downloaded, or where emails exist, it is not only time consuming to put them into a declaration or letter form but the fact is that nobody who is umpiring such conflicts wants to read them all. Family Court judges are overburdened and don't have the time. If a non-judicial professional spends the time to review them and reports back to the Court, this probably means they are being paid by you or the other party to do so. Email communications are one of the more unwieldy forms of evidentiary records to wade through, since what occurred is contained in email threads that appear in reverse order in the form of replies.
Moreover, in my experience, people having highly charged parenting conflicts typically write texts and emails that range from being merely improvident to outrageous. Often these folks are writing with the expectation someone will read and buy into their position later, and at other times they just say something provocative or mean and hit 'send' before they can be mindful of what they are doing and how it might be interpreted later. Or how the negativity trickles down to their children.
This is a real problem for families, and it is financially and emotionally expensive.
Many Courts particularly in Los Angeles and Orange counties California, have ordered high-conflict parents to enroll with www.OurFamilyWizard.com
with some very positive results in terms of dialing down the hostilities between them and so reducing trips to court. These include a significant decline in these cases finding their way back to court. This only benefits children and the parents themselves.
www.OurFamilyWizard.com
presents a valuable mindfulness tool which holds possibilities that range from simply offering a forum for notification of soccer games, birthday, and vacation time with grandparents and others and confirming homework assignments and parent-teacher conferences to creating a 'safe' environment where one or both parents can avoid those nasty phone calls or ugly emails that so often trigger a never ending cycle of action and reaction. As such, it promises to impose some accountability, to help parents reflect upon their speech and even body language, and to make children's lives easier. It can be a valuable tool for judges and mental health professionals, as well as lawyers, to have an easily accessed record of what really happened.
www.OurFamilyWizard.com
has a number of useful features. It provides a Calendar that maps out visitation schedules and any imaginable event, like doctor visits, birthdays, or other reminders. Parents have the ability to confirm or modify their intentions as to any given event. Parents can offer to switch visitation days, and there is a record of the offer and whether or not it was accepted and if so upon what terms. It has a separate Journal function that allows private or shared entries, and gives the parent an appropriate place to praise or vent about the other parent.
It has an Expense Log function that enables parents to make requests about child support or expense reimbursements, and even to upload medical or school uniform and any other invoices so that the other parent can verify the authenticity of the requests. Payment can even be made between banks on-line with a fee far below what credit cards charge.
It allows for email or text notification of posts. There is a message board.
Benefits to using www.OurFamilyWizard.com
- It can provide an exclusive means of communicating for high-conflict parents. This allows the parents to avoid phone calls at any hour of the day or night that sometimes turn accusatory or demanding. One can take their former partner out of the loop in that sense, which may be less disruptive to new mates or even one's children who don't have hear her mother or father arguing by cell phone on the way home from school.
- It can be a one stop scheduling forum and marketplace for parents who are not in high conflict, but who are naturally time-challenged and pressured over remembering where they are supposed to be and when.
- It provides a record that cannot be undone or manipulated after the fact. For instance, emails threads can be manipulated and changed by a parent in that one can always rewrite one someone supposed said within the thread and print it out and submit it as evidence. These changes earlier on in an email thread might even go unnoticed because people don't usually suspect it and so check the thread for falsification before submitting it to courts.
- Where parents have agreed, it has been so ordered, or where records need to be subpoenaed if a family court dispute does arise, the information is available in an efficient way. The owners say they can respond to a subpoena with an appropriate declaration from the custodian of records, which makes them admissible over objection for lack of foundation and hearsay, with 24 hours.
- One can modify some functions - like schedules up to the day of an event -but thereafter entries become locked and so cannot be altered after the fact.
- It can help parents become more mindful of what they say. If parents resist the desire to attack the other parent or make unfortunate derogatory comments about the other parent or their new spouse or boy friend or girlfriend and so on, it can de-escalate conflict and reduce tit-for-tat.
- Record print outs can be obtained without subpoena when it so agreed and utilized in court proceedings.
- A parent who is being harassed by the other can use the system as a shield not only from personal vitriol but also in defending against a campaign of case making by the other parent.
- It makes huge sense in domestic violence settings.
Potential disadvantages to using www.OurFamilyWizard.com
- It requires Internet access and costs about $100/year.
- If given permission, or if ordered by the Court, other people can be granted access to the records. These people could include judges, lawyers, family mediators, and mental health professionals. While this may be a good thing, as a family lawyer I see this function as dangerous because:
Hearsay which would otherwise not be admitted in a family court proceeding might be reviewed by one of these persons. There is no way of knowing how judicial officer's or evaluator's views and hence their recommendations for orders were caused or affected by what they read, or even what it is that they read. - A particular problem is also that one or both parents may still skew the facts or write or an imaginary audience. In other words, a parent can insincerely make offers 'for the record' that appear reasonable at first glance but that are really more sinister in terms of promoting their own agenda. In this sense it can be wrongfully used as a posturing sword.
- If one parent by nature is less vocal or less computer savvy than another, then their silence in response to repeated commentary or requests could be misinterpreted by a reader.
- In cases where one parent is constantly firing off messages or offers or demands, the other parent may be forced to be in constant response.
These of course are not shortcomings of the Family Wizard program, but are a consequences of the tendency of people in high conflict relationship breakup to manipulate appearances.
At least where court proceedings are concerned, which does appear to include the majority of users and to be a major justification for the product, the disadvantages can be minimized if judges and lawyers tailor ground rules for what functions will be used and how they will be used. These would include stipulations about who can access the on-line account, and what foundation is required before the records are introduced into evidence.
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| February 16, 2010 |
| OVERVIEW OF CUSTODY APPLICATIONS AND PROCEDURES in California |
| Posted By Thurman Arnold |
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There are numerous types of cases that may involve custody determinations between parents and even nonparents (although nonparents typically need to be joined into the action since they are not automatically parties to their own child's divorce, for instance). These commonly include divorce proceedings, legal separations, paternity actions, and domestic violence applications. Guardianships involve custody but they are not covered here.
California Courts have jurisdiction to issue initial temporary custody awards, permanent custody awards, and to modify existing orders after a final custody award has been entered.
Whenever custody is on the table, visitation is as well. Typically child support is also at issue, although in order for a court to consider any request the moving party (the party who filed first) sets "the menu" for what the court can consider and make decisions about. The responding party does not set the menu, and must file their own separate application for orders to bring in new matters. It is imperative that a moving party (the party making requests) check the correct boxes on the
FL-310 and the Notice of Motion or OSC cover sheet. The reason for this is to ensure the other party receives 'due process,' meaning that they have fair notice of what the hearing is about and a fair opportunity to respond and to provide all relevant information in opposition.
Otherwise, if only the custody boxes are checked then any given court may refuse to discuss finances. Different judges do it differently, but it is important for you to do it right.
As a practical matter, in order to file for custody orders some underlying action must be filed. This could include a DCSS or other governmental application although you cannot control when and if that is filed.
Once the underlying action is filed, or together with it, a parent seeking orders may file an Order to Show Cause or Notice of Motion. If you represent yourself, you can obtain complete forms packets from your local court clerk. That application must be accompanied by the
FL-310 which tells the Court what it is you want and why you want it.
While you can handwrite the evidence you want to give the court on the FL-310, this is not a good idea. Better to set your information forth on the attachments sheets. Even better to type it out and attach it.
If you are seeking child support (or spousal support) orders, you must also submit a current Income and Expense Declaration which is California Judicial Council form
which is
Form FL-150. It is important that answer all the questions on that form and provide back up so you don't get scolded by a judge or have to return to court another day.
These papers must all be served on the opposing party, in person if this is the first filing and they have not yet responded in the action (notice of ex parte applications can be given orally, but there must be a proper personal services thereafter).
Be sure that you serve all the papers you want the court to consider. Do not expect that you can show up in court with new matters and evidence and just hand them to the judge. Procedural due process requires the other side get everything in time to respond. In addition, many judges will just refuse to consider untimely pleadings or defectively served documents - although, if for reasons beyond you control this happens to you (something new happened) - request a continuance at your first hearing so the other party gets their time to respond.
I address the actual issues regarding temporary custody and ex parte applications, permanent custody, and modification of custody in another blog. I will link back when those articles are done.
In the meantime, use our search engine at the top of every page to locate what you need to know about your family case in an efficient manner.
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| February 08, 2010 |
| PRELIMINARY DECLARATION OF DISCLOSURE in California (PDD's) |
| Posted By Thurman Arnold |
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California Family Law Disclosure Forms
Whether you are representing yourself in your divorce, or a pro per family law litigant, you need to know about and understand the Declarations of Disclosure that are required in California before a Judgment of Dissolution may be entered.
Getting it wrong can have serious consequences.
In my experience, paralegal firms or non-lawyer mediators do not know how to properly assist clients in meeting these obligations, and even seasoned divorce attorneys get these disclosure forms wrong.
You need to understand that these disclosure forms are not simply another document that needs to be prepared in a sloppy fashion in order to complete your divorce, but rather they are the proof that you have complied with important spousal fiduciary duties after your physical separation.
You can’t get even a default divorce and marital termination agreement past the family court clerk without a least a
Preliminary Declaration of Disclosure (PDD) and when the other side has appeared in the action, you cannot obtain a Divorce Judgment without both parties have exchanged for waived the
Final Declaration of Disclosure (FDD).
Even if the documents have been exchanged, if they are incomplete or inaccurate the other party may be able to set all or parts of your divorce judgment or divorce settlement for up to several years after a judgment is filed.
These rules and requirements apply equally to domestic partnerships, annulments, and legal separations.
This article covers the Preliminary Declaration of Disclosure.
California Family Code sections 2100 to 2113 cover declarations of disclosure for California divorces.
FC section 2100(a) declares it is the policy of the State of California to “(1) marshal, preserve, and protect community, and quasi-community assets and liabilities that exist at the date of separation so as to avoid dissipation of the community estate before distribution, (2) to ensure fair and sufficient child and spousal support awards, and (3) to achieve a division of community and quasi-community assets and liabilities on the dissolution or nullity of marriage or legal separation of the parties as provided by California law.”
FC section 2100(c) states that in order to promote this policy “a full and accurate disclosure of all assets and liabilities in which one or both parties have or may have an interest must be made in the early stages of a proceeding for dissolution of marriage or legal separation of the parties, regardless of the characterization as community or separate, together with a disclosure of all income and expenses of the parties.”
This bears emphasis:
- There must be a full disclosure
- It must be accurate
- It includes all assets
- It includes all liabilities
- It applies to assets or liabilities one has or may have
- The disclosure must be made early on in the proceedings, although there is no specific time rule
- It doesn’t matter whether you think the asset or debt is a separate property item, you still must disclose
- You must also fully and accurately disclose all income and expenses
- Although the statute doesn’t say it, you may see why these are forms that you do not want to lose – since, as mentioned below, the disclosures themselves are not filed with the court.
FC section 2100(c) does not, however, stop there.
The statute continues “Moreover, each party has a continuing duty to immediately, fully, and accurately update and augment that disclosure to the extent that there have been any material changes so that at the time the parties enter into an agreement for the resolution of any of these issues, or at the time of trial on these issues, each party will have a full and complete knowledge of the underlying facts.”
Family Code section 2102 sets forth the rules governing interspousal fiduciary duties, including the operation and management of community or part community businesses.
I will discuss this section elsewhere and link back to it when that article is finished.
Family Code section 2104 describes the Preliminary declaration of disclosure.
It must be completed as set forth in this Judicial Council Form.
It does not get filed with the Court, but a declaration stating it has been exchanged must be filed with the Court.
If, as commonly occurs where parties have negotiated and signed an agreement and the Dissolution Judgment proceeds by default with a Marital Settlement Agreement signed by both being submitted, no final disclosure needs to be exchanged between the parties but the Petitioner still must himself or herself complete and serve the Preliminary declaration; the defaulting Respondent is relieved of that obligation.
Family Code sections 2120 to 2129 describe when a judgment for dissolution, or a property settlement or a support settlement, may be set aside for defects in the Preliminary declaration of disclosure and for other reasons.
You can find the actual
California Judicial Council forms here.
Again, I will write an article about that and link back once it is completed so please check back with us.
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