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Recent Posts in Children Category
| November 16, 2011 |
| 2nd Appellate District Severely Limits GRANDPARENT VISITATION Under Family Code Section 3102 |
| Posted By Thurman Arnold, CFLS |
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Rich v. Thatcher (11/14/11), B228847
In what reads to me to be a myopic opinion, Justice Yegan of Division Six of the Second Appellate District has declared that biological grandparents have a burden to prove, by clear and convincing evidence, that denying them visitation pursuant to
Family Code section 3102 would be detrimental to a child before they can hope to win access to their children's children, when their own child dies. in the face of a "fit" parent's objection. Attaching a burden of proof by "clear and convincing" evidence is usually the kiss of death to any litigant who has that burden.
The appellate decision appears to combine a species of "bad facts make bad law" with a reluctance to discuss the underlying facts that were determined by the Ventura trial court to such an extent that we are left guessing (but possibly not) where the grandmother went wrong, since clearly she made an extremely bad impression on both courts. Hence, my critical feeling towards the decision may be due to sensing that some important information is being withheld from "we the readers" that deserved this draconian outcome, and also from a sense that both the trial court and the appellate are being reactive to undisclosed facts, and that as a consequence a brand new rule has been established in California that will impact many grandparents who are innocent of whatever transgression Ms. Rich may have committed.
And, more important from my perspective, this decision reflects a collision between what the mental health and family sciences believe about taking a generational and cooperative approach to parenting. At this level of the case apparently nobody weighed on behalf of either grandparents specifically, or the family sciences generally - no amicus curie briefs seem to have been sought. I really hope that this decision gets appealed to the California Supreme Court so that we can begin to look at the very important role that grandparents potentially play within families. Unfortunately, grandparents don't seem to have much of an organizational voice. It seems as if the AARP ought to be interested in these issues given their constitutency.
The decision tells us that Carol Rich is the grandmother and that Rochelle Thatcher is the surviving parent ("Thatcher" is a big name in Ventura, but I don't know if there is any relation). Carol's son and Rochelle never married, but they produced a son together in December, 2006. The father died in 2010 of a drug overdose and the decision tells us cryptically that he "left two suicide notes." Grandmother and mother did not "get along", and grandmother apparently accused mother of having something to do with her son's death. "Their hostility was open and clear."
All of this suggests that grandmother had a very hard time accepting her son's death, and that she felt that the mother was in some way responsible. If so, grandmother's position may have reasonably led a trial court to conclude that she would be a destabilizing and even poisonous influence on the minor, but if that is how the justices felt it would be nice if they had said so. Instead they have spanked all grandparents with one flat judicial palm.
Grandmother did get a lengthy hearing in June, 2010, where a number of witnesses were called. At the conclusion the trial court "expressed 'great concern over [grandmother's] veracity.'" It further found that while grandmother had established some relationship with the child, she failed to establish a "deep and abiding relationship." Instead, grandmother's relationship was instead limited to interactions with the grandchild when grandmother was serving to supervised visits ordered in the parties' Paternity case. Hence, it sounds as if this grandmother's relationship with her grandson existed, but that it historically had not been substantial. The child was 4 1/2 at the time of trial.
The trial court imposed a clear and convincing standard on grandmother to "rebut the presumption that Mother is acting in the best interest of [grandchild] in denying visitation to Grandmother at this time or that denial of visitation would be detrimental to [grandchild]." Nonetheless, the trial court continued that in any event "it would not be in [grandchild's] best interest to interject court-ordered visitation with Grandmother, particularly in light of the longstanding animosity between Mother and Grandmother."
Hence, this ruling is another cautionary tale for grandparents - if you so ally yourself with you own child against the person with whom they chose to produce a child, it will hurt you later. Grandparents do too often tend to become allied and enmeshed in their children's lives, and this is a real problem in support cases where parents are paying for their children while those children refuse or fail to become independent and so try to stick the other party with a financial burden - something we will likely see an importance case on soon. But I digress.
Justice Yegan, who clearly does not brook fools, strongly supports the lower trial courts when they make discretionary calls that are supported by the evidence. Quoting from his own earlier decision this year (see link above), he states in a footnote to this decision "[a]s
we indicated in
In re Marriage of Greenberg
(2011) 194 Cal.App.4th 1095) the trial court's comment on grandmother's veracity is tantamount to an "adverse factual finding." This is a poor platform upon which to predicate a successful appeal. (
Id.
, at p. 1099.)
That is the fact upon which this case really seems to turn. Justice Yegan continues in this decision:
"Grandmother contends that the trial court erred in applying the clear and convincing burden. We disagree with her and agree with the trial court's legal conclusion. We hold as follows: To overcome the presumption that a fit parent will act in the best interest of the grandchild, a grandparent has the burden of proof and must show, by clear and convincing evidence, that denial of visitation is not in the best interest of the grandchild, i.e., denial of visitation would be detrimental to the grandchild. The fair import of the word "detriment" is damage, harm, or loss. (See American Heritage Dict. (2d college ed. 1982) P. 388, col. 2.) If grandparent visitation is in the grandchild's 'best interest,' it is not 'detrimental.' If grandparent visitation is not in the grandchild's 'best interest,' it is 'detrimental.' [citations omitted].
Until today, no appellate court has expressly held that section 3102 requires clear and convincing evidence to overcome the presumption. 'There is some authority for the proposition that the same test which applies to a custody award to a nonparent should apply to a visitation award to a nonparent that is, that "judicially compelled visitation against the wishes of both parents" "must not be allowed unless it is clearly and convincingly shown that denial of visitation would be detrimental to the child." (
In re Marriage of Gayden
(1991) 229 Cal.App.3d 1510, 1517, 1520 ... [involving a motion for visitation by a biologically unrelated person under former Civil Code section 4601 (now
Fenn v. Sherriff
,
supra
, 109 Cal.App.4th at p. 1486; see also dictum in
In re Marriage of W.
,
supra
, 114 Cal.App.4th at p. 74 ['Where natural parents are unified in opposition, nonparental visitation can be ordered only if such visitation is in the best interest of the child
and
denial of visitation would be detrimental to the child'].)
'The degree of burden of proof applied in a particular situation is an expression of the degree of confidence society wishes to require of the resolution of a question of fact. (Citation).' [Citations omitted]. There is no question that a grandparent has an important interest in visiting with a grandchild. But the higher degree of the burden of proof that we adopt simply demonstrates that there is a preference in favor of the presumably correct choice of a fit sole surviving parent. Such choice is 'first.'
In formulating our holding, we are guided by and adopt the cogent analysis of Justice Chin in his concurring and dissenting opinion in
In re Marriage of Harris, supra,
34 Cal.4th at pp. 247-250; see also the concurring and dissenting opinion of Justice Brown at pages 251-253. To adequately protect a fit sole surviving parent's constitutional right to raise a child, a "mere preponderance" burden as to "best interest" is not sufficient. The "clear and convincing" burden, i.e. evidence "so clear as to leave no substantial doubt," promotes a parent's constitutionally protected "first" choice. The higher evidentiary burden preserves the constitutionality of section 3102 and insures against erroneous fact finding. (
Id.,
at p. 248.)
The clear and convincing burden is not insurmountable. We can certainly envision a case where a trial court could factually find and rule that grandparent visitation is appropriate over the objection of the fit sole surviving parent. This, however, is not such a case. The trial court did not credit grandmother's testimony.
Even if the trial court had erroneously applied too strict of a burden for grandmother, we
we would still affirm the order denying visitation based upon the trial court's alternative ruling. As indicated, we commend the trial court for its well-articulated order. First, it ruled that the "clear and convincing" burden was appropriate. This was a debatable issue which we now settle. But it was also prescient in articulating its alternate best interest ruling which is rooted in traditional family law principles. 'We may not reverse . . . simply because [in theory]
some
of the court's reasoning was faulty, so long as
any
of the stated reasons are sufficient to justify the order. [Citation.]' (
Kaldenbach v. Mutual of Omaha Life Ins. Co.
(2009) 178 Cal.App.4th 830, 844.)"
Note to reader - I've added some emphasis to this.
So, we now have a rule that is clearly intended to honor the constitutional issues addressed to some extent in the U.S. Supreme Court's Troxel decision. But the decision omits to discuss any of the legislative history of Family Code section 3102 as to whether the burden of proof that is associated with it is nearly as hard as what the decision makes it become. While "clear and convincing evidence" is not an "insurmountable burden," practically speaking any lawyer will tell you it almost is. Morever, while the decision admits that grandparents have important interests in visiting with grandchildren, it totally ignores the rights of children to know their families of origin. There is no mention that any lawyer was ever appointed for the minor in this case.
This decision should also be evaluated in light of a Fourth Appellate District decision issued less than a month ago. In Hoag v. Diedjomajor the Riverside based appellate district upheld a trial court order for visitation after a grandparent's child died. The burden of proof applied by the Court was not discussed, but was implicitly by a "preponderance of the evidence."
The outcome was the opposite than here, but in many ways it is entirely consistent with Justice Yegan's decision - and here is what is interesting for me: If a parent refuses visitation, even if they don't get along, to spite the grandparent, they lose. But if the grandparent seeks visitation after spiting the non-biological surviving parent, they lose.
And, I wonder, how can a "fit" parent (by definition) deny any access at all between their child and that child's grandparents, especially when the intergenerational parent is dead, except under the most outrageous of circumstances? Yet, having said that, I must confess that if a grandparent does behave outrageously, then their rights should be limited or nonexistent. Oy vey, possibly the record that we will never see discloses that such was the case here - but we must take it on faith, apparently, that it was. I don't see how we need to impose a burden of proof by clear and convincing evidence to ensure that bad grandparents are fenced in - I mean "fenced out".
Another question bothers me - the decision points out that there were nine other witnesses who testified at the trial beyond the grandmother in this case. Did these include the maternal grandparents, who possibly were more favorably received? So often these types of litigation wars can only be funded by older people who have accumulated some wealth. Often these family battles include or are really between parents' parents. I notice that the mother in this case appears to have had premiere local counsel, and that must not have been cheap. The paternal grandmother will foot some of their bill in this case since costs were assessed against her.
But then, of course, other losers as a result of this decision are the grandchildren of grandparents who can behave themselves who may be affected by this new burden of proof. IMHO. But you may disagree - please feel free to comment if you do!
Thurman W. Arnold, C.F.L.S. |
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| October 31, 2011 |
| GRANDPARENT RIGHTS: Recent RIVERSIDE Case Orders VISITATION To GP After DEATH OF PARENT |
| Posted By Thurman Arnold, CFLS |
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Hoag v. Diedjomahor (October 17, 2011), E050935
The Facts
The Fourth Appellate Division released a published opinion on October 17, 2011 in the case of
Hoag v. Diedjomahor, a case which was decided by recently retired
Commissioner Michael McCoy in
Indio, California, involving grandparent visitation rights upon the death of a parent per
Family Code section 3102. Commissioner McCoy's ruling in favor of the grandmother was upheld on appeal. Interestingly, the grandmother did not participate in the appellate level proceedings but nonetheless succeeded. Overturning a well reasoned trial court decision, where an abuse of discretion must first be shown, is always a difficult proposition.
Melville Diedjomahor (the father) and Kristen Hoag (the mother) were married in 2005. They lived with Kristen's mother, Shannon Hoag (the grandmother) in an apartment in La Habra. Kristen gave birth to their first daughter in 2006. Thereafter the parties separated. Melville moved to Desert Hot Springs, California, while Kristen and the minor remained with the maternal grandmother. Then the parties reconciled, and the family - including Shannon Hoag - moved into a residence together in DHS. In 2008 a second daughter was born.
Kristen filed for divorce in Indio in February, 2009. A month later she died unexpectedly as a result of previously undiagnosed epilepsy. Immediately following the death the children remained with the grandmother, and the father would come visit every few days.
Several months later the grandmother told the father she intended to file a guardianship proceeding. In reaction thereto, Melville demanded that she turn the children over to him. The proceeding was filed, alleging that the father was unfit because of injuries and also because he was in the country illegally and subject to deportation. Communications between the two rapidly deteriorated such that - according to grandma, he refused to give her any further visitation except that which was court-ordered; the father denied imposing this limitation to the trial court. In any event the GM was denied access to the children for some weeks after she filed her guardianship petition, until Commissioner McCoy entered visitation orders some three weeks later.
To complicate matters, grandmother was living together with Kristen's uncle, where the children and Kristen had also stayed for a time before her death, and - as we so regularly see if high conflict family law cases - father alleged that the uncle had improperly touched his niece, Kristen, years before when she was a minor. In 1993 grandmother's children had been removed from her custody because she had been using drugs. For these reasons grandmother should not have extended visitations, he argued.
Nonetheless, grandmother received visitation with the minors pending a trial. The guardianship proceedings were dismissed and continued within the family law action that Kristen had initiated. This visitation gave the grandmother three hours every Wednesday and 48 hours every other weekend, and she was allowed a daily phone call. This became her proposal for the final visitation order. It was based upon the mediator's recommendations.
Melville claimed at trial that he would permit grandmother to visit, but objected to any orders issuing for same and instead insisted it should be left to his discretion for day to day and moment to moment. He contended that overnights were not safe because the children might be exposed to the uncle (by this time the grandmother had moved into an apartment by herself, in the same complex as dad), that he wanted to study the kids on Wednesday, and he objected to daily calls because they interrupted what he was doing. He explained that once grandmother had filed court proceedings she had breached any trust that had previously existed between them. Hence, his final non-court order proposal was eight hours every other Saturday and one week during the summer with no sleep overs, and eight hours on grandmother's birthday.
Ultimately Commissioner McCoy found that while the father was in fact a fit parent, but that he had opposed grandmother's requests for what was in fact a reasonable visitation schedule. The Court specifically found that the father's testimony that he would allow non-court ordered visitation to occur to not be credible, and the trial court also dismissed the allegations regarding the uncle and the grandmother's past conduct (although noting that Commissioner McCoy had prohibited such contact in any event). It found that visitation was in the children's best interest, particularly so given the the years that grandmother had acted as a third parent for the children and the parties before the divorce was filed. Essentially, the trial Court ruled that a parent does not have unfettered discretion to impose visitation conditions at their whim where grandparents have played such an important historic role for children.
The Law Concerning Grandparent Visitation
This decision does an excellent job in reviewing and cleaning up California decisions about grandparent visitation in the wake of
Troxel v. Granville (2000) 530 U.S. 57, decided by the United States Supreme Court almost twelve years ago. Like
Troxel,
this case involves a grandparent, whose adult child has died, seeking visitation with that child's minor children over the objection of their surviving parent. As noted by Justice Richli, who wrote the opinion for our local Riverside County based appellate division, Troxel commands the courts to presume that the surviving parent's objection to grandparent visitation is in the best interest of the children. "However, this does not mean that the surviving parent is free to use the denial of visitation as Big Bertha in his or her personal war with the grandparent." Here, the trial court found that the surviving parent's claimed reasons for objecting to visitation were not reasonable and not credible; in essence, as he practically admitted on the stand, he objected to visitation mainly
to spite the grandparent. Moreover, he admitted that grandparent visitation would be in the best interest of the children. Thus, the presumption that he was acting in the best interest of his children was overcome, and the trial court constitutionally could and did grant the grandparent's visitation petition.
The trial court understood the law to be that it could constitutionally apply section 3102, including its best-interest test, provided the father was either (1) unfit, or (2) "opposed to occasional visitation." It expressly found that he was a fit parent. It concluded that "the issue really turns on whether dad is opposed to occasional visitation. If he is, then the court then addresses what visitation, if any, is in the children's best interest." It found that the father was "opposed [to] any . . . reasonable visitation involving the children and grandma." Thus, it proceeded to apply a standard best-interest test.
The father challenged this reasoning by arguing that the trial court erred by finding that he was opposed to meaningful visitation. Second, even assuming that he was opposed to meaningful visitation, he was still entitled to a presumption that his decision was in the best interest of the children.
The justices in this case stated:
"In Troxel, the surviving parent's willingness to allow visitation was just one of a number of factors that the Supreme Court took into account. Thus, the significance of this single factor, standing alone, is not at all clear. We have no way of knowing what the outcome would have been if the surviving parent had
not been willing to offer meaningful visitation.
On one hand, the Troxel plurality cited, with approval, various state statutes allowing courts to award visitation to a nonparent when a parent has denied visitation; it evidently viewed these as constitutional. (
Troxel,
supra, 530 U.S. at pp. 71-72 [plur. opn.].) On the other hand, it adopted a broad 'presumption that fit parents act in the best interests of their children.' (
Id. at p. 68.) It would seem that this should apply not only to a decision to limit visitation, but also to a decision to deny visitation entirely.
In fact, Troxel's discussion of willingness to allow visitation puts the parent in a 'damned if you do, damned if you don't' position. If the parent voluntarily allows some visitation, that could be viewed as a concession that visitation is in the best interest of the child. Certainly it is a decision regarding the child's best interest, to which the court must {Slip Opn. Page 15} accord 'special weight.' If, however, the parent refuses to allow
any visitation voluntarily, that, too, weighs in
favor of court-ordered visitation. What is a parent who genuinely believes that visitation would be detrimental supposed to do?
Because this issue is fraught with difficulty, we choose to assume - solely for the sake of argument - that the trial court erred by ruling that it was free to apply a best-interest test solely because the father was not willing to offer meaningful visitation voluntarily. This would mean that it was still required to presume that the father's visitation determination was in the best interest of the children and to accord special weight to that determination.
The trial court's other findings, however, show that, even if it had applied this standard, it would still have allowed visitation. Most crucially, it found that the father's claimed reasons for objecting to visitation were not reasonable and not credible. This left, as his real reason, a desire to retaliate against the grandmother for her attempt to take the children away from him. Indeed, he testified that he was contesting visitation because she had breached his trust by trying to take the children away from him, and she had been 'disrespectful' to him. We hasten to add that this is a completely understandable reaction. Nevertheless, it is not based on the best interest of the children. To the contrary,
it punishes the children for the sins of the grandmother. [Emphasis added].
Moreover, in closing argument, the father's counsel conceded that visitation with the grandmother would be in the best interest of the children. He merely argued that
court-ordered visitation would be detrimental. Thus, the trial court did not simply disagree with the father concerning the best interest of his children. Moreover, it did not fail to give sufficient weight to his determination of their best interest. Rather, based on its findings (and his concession), the presumption that his visitation determinations were in the best interest of the children was thoroughly overcome.
Evidently the father's counsel was trying to achieve the same outcome as in Kyle O. The father there, too, admitted that visitation with the grandparents was in his daughter's best interest and claimed that he would allow visitation voluntarily. He testified, however, that
court-ordered visitation was detrimental because it increased the hostility between him and the grandparents. (
Kyle O. v. Donald R.,
supra, 85 Cal.App.4th at pp. 858-859, 863-864.) He also introduced evidence that court-ordered visitation had interfered with the child's opportunities to spend time with him and her paternal relatives and that it conflicted with her other activities. (
Id. at pp. 857-858.) The appellate court concluded that "his preference for a less structured and more normal and spontaneous manner of visitation must be given deference." (
Id. at p. 863.)
Kyle O. is distinguishable, however, because here, the father (and his counsel) never really explained
why he objected to court-ordered visitation, even though he was supposedly willing to allow visitation voluntarily. When asked, he simply raised objections to the existing temporary visitation
schedule. For example, he claimed that the Wednesday evening visit prevented him from "study[ing]" with the children.
This was not an objection to court-ordered visitation.
In this appeal, the father claims that it was reasonable for him to be opposed to court-ordered visitation, as opposed to voluntary visitation, because the grandmother had 'a pattern of hostility' toward him. He argues that, unlike voluntary visitation, court-ordered visitation would give her a stick to beat him with - any time he violated an order, she would undoubtedly seek sanctions against him.
The problem with this argument is that the father himself never testified, at trial, that this was
why he opposed court-ordered visitation. Thus, the trial court did not have to accept this theory.
The father also argues that the trial court erred by dismissing his concerns about whether the children would be safe with the grandmother. The trial court, however, specifically found that these concerns were neither reasonable nor credible. Substantial evidence supports this finding. The supposed molestation was remote; it had occurred when the uncle was about 12 and mother was about 5. It was described as 'improper[] touch[ing];' the grandmother characterized it as 'playing doctor.' The children had stayed at the uncle's house for over a month without being molested. In any event, by the time of trial, the grandmother was no longer living with the uncle. The trial court could and did order that the children not be left alone with him.
The grandmother's drug use was similarly remote. Her loss of custody, although due, in part, to her use of drugs, had been only temporary. It did not appear that she had ever used drugs again. Last, but not least, again, the father admitted that visitation was in the best interest of the children and claimed that he was willing to allow visitation voluntarily.
Next, the father argues that the trial court erroneously placed the burden on him to prove that his objections to visitation were in the best interest of the children. Not so. He does not cite any portion of the record to support his claim, and we have found none.
Finally, the father argues that even if the trial court did not err by allowing some visitation, it erred by adopting a more extensive visitation schedule than he was willing to offer. He does not support this argument, however, with any analysis or citation of authority. Accordingly, we deem it forfeited....
We do not mean to suggest that, if not forfeited, it would have merit. The trial court found that the father's objections to visitation did not arise out of a genuine concern for the best interest of the children. Thus, the constitutionally established presumption that he was acting in the best interest of the children was overcome. This not only allowed but affirmatively required the trial court to determine what visitation schedule was in the best interest of the children.
* * *
The father argues that ... the trial court could not order visitation unless and until he had been given an opportunity to negotiate visitation voluntarily.
He had such an opportunity, however, in the course of the guardianship, as well as in this action. He even participated in mediation (which regrettably produced no agreement). According to the father, however, a grandparent must ask the surviving parent for a voluntary visitation arrangement before the grandparent can even file a visitation petition with the court. Thus, in his view, the fact that he had an opportunity to negotiate a voluntary visitation arrangement after this proceeding had already been filed is irrelevant. We find no authority for this in Troxel or
Punsly. Indeed,
Punsly is, if anything, to the contrary. It understood
Troxel to mean that "the parent must be given an opportunity to voluntarily negotiate a visitation plan," but it added that it was "irrelevant" when or why the parent did so. (
Punsly v. Ho,
supra, 87 Cal.App.4th at p. 1108.) Moreover, it held that, in the case before it, this requirement had been satisfied by the parent's agreement 'to voluntarily arrange visitation . . .
both before and after the [
grandparents]
petitioned the court for visitation.' (
Ibid., italics added.)
The father argues that it would be good public policy to make a request for voluntary visitation a precondition to filing a visitation petition. Even if so, this is an argument that must be made, if at all, to the Legislature. Section 3102 contains no such requirement, and the federal Constitution, as construed in Troxel, does not impose one."
Comments
Commissioner McCoy did an outstanding job, as he always did, in making a thorough and well-reasoned decision based upon the evidence. To resist visitation by a grandparent who has a close and substantial relationship with grandchildren, there needs to be real evidence in the record that the children's best interests in continuing, stable relationships with these third party nonparents, are not being ignored simply out of spite.
This case is a must read for all grandparents, or custodial parents, faced with a grandparent or other request for visitation rights by a non-parent. I will upload the opinion itself in a few weeks. It gives rich fodder for how to structure arguments on both sides in these often acrimonious, but always unfortunate, disputes.
However, as it turns out, this decision is not the final answer on the matter. I will discuss the more recent case of Rich v. Thatcher, out of Ventura County, shortly. But, this is not the Ventura "Thatchers", is it?
Please note that this decision is based upon Family Code section 3102, which only applies where one parent has died. The other grandparent visitation statutes are Family Code section 3103 and
FC section 3104. I would suspect, however, that this case will nonetheless generalize, to an extent that remains to be seen, to grandparent visitation where both parents are still living.
Thurman Arnold, III, CFLS
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| April 11, 2011 |
| San Diego Trial Court REVERSED for Failing to Exercise An "INFORMED DISCRETION" in Refusing to Permit Sole Legal Custody Father Who Had PRIMARY PHYSICAL CUSTODY to MOVE OUT OF STATE |
| Posted By Thurman W. Arnold, III, C.F.L.S. |
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F.T. vs. L.J. (2011) 194 Cal.App.4th 1
On April 6, 2011, the California Fourth Appellate District, Division One, in a strongly (and painfully) worded opinion reversed a San Diego trial judge's refusal to permit a father to relocate with the parties' four-year old son to the State of Washington to join his new wife and her family. While recognizing that the standard of appellate review of trial court custody and visitation orders is the "deferential abuse of discretion test," the appellate justices found that Superior Court Judge Lisa C. Schall's decision was influenced by her misunderstanding of the law applicable to several subjects, including move-away, and accordingly that "a discretionary order based on the application of improper criteria or incorrect legal assumptions is
not an exercised of
informed discretion and is subject to reversal even though there may be substantial evidence to [otherwise] support that order." Traditionally most judges have lived and ruled under the assumption that if it a decision is "discretionary" their orders are impervious to reversal unless they almost shock the conscience of the reviewing court. This is a big flag waving otherwise.
Following on the heels of
Irmo ["In Re the Marriage of"]
Duris & Urbany,
Irmo Tharp, and
Irmo Fong all within the past six months, it is clear that a movement is afoot among the State's appellate courts to force family court trial judges to expand their knowledge of family law beyond 'seat of the pants' decisions. However, for the lawyers, therapists, psychologists, and family court services folks who may read this Blog - beware: What is being demanded from all of the [us] professionals is an entirely new level of knowledge and expertise that is long overdue. In my opinion the appellate judges are undertaking an admirable effort to triage and correct the very mistakes that historically made family law - the one area that most law-abiding citizens ever personally experience within our government sponsored legal system - the under-appreciated step-child of the courts. Such a transformation is vitally important to the rule of law, due process, the public's perception of government and fairness, and the functioning of our ever-increasingly complicated society and personal relationships.
It is time that judges, lawyers like me, mental health professionals, and everybody else involved in the family law justice system increase our commitment and expertise to serving the people - possibly such as yourself - who are and will remain not only our reason for being, but the source of our livelihoods.
F.T. v. L.J., case number D057493, is an important opinion for move-away applicants and their attorneys not just because it clarifies existing law and provides guidance on a host of issues commonly encountered in litigation over these arguably unfortunate situations, but it is going to be widely talked about by the mental health community and will influence how
Evidence Code 730 and
Family Code section 3111 evaluators report to the courts because of this appellate court's attention to the details for what various FCS ("family court service" employees) and MHP's ("mental health professionals") opined. It appears that some of them, including the court mediators, took their eye off the ball as established by earlier legal precedent on this topic and the information presented to them.
The parties in this case dated for five or six months and this brief time together produced a bouncing baby boy in January, 2006. For the first thirteen months of his life, the child lived with Mom. On February 17, 2007, however, Mother burned her baby's arm with a hot curling iron "apparently to each him a lesson by showing him how hot it was." Father picked the boy up that evening, saw the injury, and took him to the hospital. Hospital staff called CPS and the police. Criminal charges were filed against the mother.
The child was placed with Dad and Mother's visitations were ordered supervised. Two weeks later he filed a petition to establish paternity and an OSC requesting orders for sole legal and physical custody. The parties were directed to attend custody mediation through Family Court Services but were unable to reach agreement, and so the mediator recommended that the child's primary residence be with Father and that Mother have supervised visits. In April, 2007, the parents stipulated to the recommended order "without prejudice to either party."
Five months later Father filed an OSC request seeking an order allowing him to move with the child to Texas. The parties were ordered back into mediation. At that time following a custody review hearing, the trial court removed the supervision requirement for Mom's visitation. Once again (surprise!) the parties could not agree in mediation, and the mediator recommended that Father have primary physical custody and that he be allowed to move, noting that in November, 2007, Mother had pleaded guilty to one count of simple battery on the child and was given four years' probation, and that she had an eleven year old child from a previous relationship who lived with the paternal grandparents.
For unknown reasons Father's request went off calendar at the time of the scheduled December, 2007, move-away hearing. In February, 2008, he refiled his application and psychologist Yanon Volcani, Ph.D., was appointed to conduct a psych evaluation of the parents and child. He issued a report in September, 2008.
Volcani recommended against the Father's proposed move to Texas, believing that it would interfere with this 2 1/2 year old's bonding with Mother because of the distance (based upon current best mental health opinions on the developmental stages of children). Volcani concluded that telephone, webcam, and other means of contact would not be well suited for a child this age, and had concerns whether Father would "enthusiastically" support the child's relationship with his mother. He also felt that mother had learned from her experience of burning the child, and while her action was 'rash, impulsive, and insensitive' the data did not suggest a "broader abusive intent." He recommended that Mother's timeshare be incrementally expanded.
On September 18, 2008, the trial court adopted Volcani's proposed parenting plan as a temporary order pending an evidentiary hearing, without prejudice, based upon findings that this was in the best interests of the minor. The matter was then lost in the limbo of hearing continuances and further court services mediations ultimately until March 5, 2010.
By now Father was requesting permission to move to Washington instead of Texas, and was intending on marrying a woman living there. Mother had married. Lynn Waldman, a Family Court services counselor, reported to the Court that she had learned that the minor child in 2009 began exhibiting rage, temper tantrums, and other behavioral issues at school and that this three year old was seeing a counselor who couldn't explain "where [Child's] anger is coming from. She interviewed Dr. Volcani but developed incorrect impressions about whether he'd last met with the parents over the two ensuing years after his initial report, and other misconceptions. She recommended against the move to Washington, but stated that Father should remain in his role as the primary caregiver.
In February, 2010, Volcani issued a report supplementing his opinions from September, 2008. Father by then had married his fiance, who herself had two teenagers. Volcani had re-interviewed the parents, the new spouses, and the minor's preschool teacher and therapist. He noted that since the initial evaluation that the parents had been co-parenting in a "relatively cooperative and stable manner." The minor was continuing to have rage issues (e.g., throwing a chair and punching another student) but these were improving. Still, because of the child's age it was difficult to know what was causing it.
On March 5, 2010, the trial court held a hearing but did not permit live testimony and denied the Father's request to move. The court made a number of findings which were not supported by the record. Chief among them was the conclusion that the parents "are not communicating" - when in fact Dr. Volcani actually stated otherwise and that their communications had vastly improved over the two years that had passed. Moreover, without any rational MHP support, the trial court concluded that the evidence proved the child's rage, speaking out in his sleep, and bed wetting all had to do with the parents' lack of a meaningful dialog. The court stated it "feels that the anger is coming from the tension between the two parties."
Maybe, but the court didn't pull this conclusion from any evidence before it in terms of an expert assessment and conclusion that this was the case (the child's own therapist couldn't explain the child's behaviors). Some conclusions apparently exceed what common sense would otherwise suggest.
By the way, what is a three year old doing with a therapist?
Anyway, the Court adopted Volcani's conclusion that the child's healthy development was being impeded, although on different grounds than Volcani had expressed. The court concluded "Father's reasons for the move, that is to join a new wife and family, are not sufficient and a new wife and family in Washington is not a sufficiently necessary reason to move the residence of [Child] to Washington...."
Huh?
Moreover, the Court implied that if Father decided to move anyway that the Court would take custody away from dad and give it to mother, a really bad idea under existing caselaw because of its coercive overtones.
Enter the Established Law of Move-Away
This is what makes this case important - a judge that was justifiably bothered by the impact that the relocation would have on the relationship between a parent (mother) and child understandably struggled not to permit the move. But she was wrong and the appellate court scolds her harshly for it. Her decision was not an exercise of informed discretion.
At the same time, some of the Father's arguments were off-track as well. For instance, he argued that he had a presumptive right to move under authority of Family Code section 7501 which states: "
A parent entitled to the custody of a child has a right to change the residence of the child, subject to the power of the court to restrain a removal that would prejudice the rights or welfare of the child." The Fourth Appellate District ruled that 7501 only applies to "final" custody determinations, and not those that are "temporary," following the case of Montenegro v. Diaz (2001) 26 Cal.4th 249. Here the parties had lived under a "stipulation" for two years, but had never reduced it to a final agreement and no court had ever ruled as to any contested matter within the context of an evidentiary hearing. This is a rule that most family law attorneys already know well (which is why the smart ones write their orders to declare the custody agreements favoring their clients as "final" orders). The practical effect of this fact in this case was that "Mother did not have an initial burden to show [that] Child would suffer detriment were he to move with Father to Washington."
Father also argued that because Mother had been convicted of battering her son, a presumption arose under Family Code section 3044 that she should not have custody of the boy that was possibly "conclusive" if not merely rebuttable. While the idea that the presumption might be conclusive based evidently upon the appalling seriousness of intentionally burning a child is ... creative ... it doesn't track in the slightest what California law says on the subject, and was quickly disposed of by the appellate judges. The justices ruled that "[a] section 3044 finding of domestic violence 'in a family law case changes the burden of persuasion as to the best interests test, but it does not limit the evidence cognizable by the court, and it does not eliminate the best interest requirement." "Nor does the statute establish a presumption for or against joint custody; again, the paramount factor is the child's health, safety and welfare. And where the section 3044 presumption has been rebutted, there is no statutory bar against an award of joint or sole custody to a parent who was the subject of the order. This is particularly important in move-away cases." In this case the trial court had not made any express findings under section 3044 anyway, so on remand that is a subject the court is directed to pick up.
However, what the trial court did wrong is this:
The father had no burden to prove his move was "necessary". When the trial court opined that "Father's reasons for the move, that is to join a new wife and family, are not sufficient and a new wife and family in Washington is not a sufficiently necessary reason to move the residence of [Child] to Washington...." it supplanted the rule of law with an understandable discomfort with the effects the move would have on Mom's relationship with her son. The issue instead was the best interests of the child, and that decision must be considered in light of the established rule that "the paramount need for continuity and stability in custody arrangements - and the harm that may result from established patterns of care and emotional bonds with the primary caretaker [father here] - weigh heavily in favor of maintaining ongoing custody arrangements."
Hence, Judge Schall's "order denying Father's motion reveals a misunderstanding of the determination a trial court must make in deciding a move-away motion by a custodial parent. In this case, the trial court, in effect, avoided the ultimate question whether a change in custody would be in Child's best interests were the custodial parent (Father) to move to Washington.... The question ... is not whether the parent may be permitted to move; the question is what arrangement for custody should be made [if and when the custodial parent moves]." A custodial parent is
not required to show a planned relocation is necessary.
In other words, the trial court has to assume the plan for the proposed move is a serious one, and has to address the issue of custody as though the move will occur. Moreover, and this is the heart of the decision and the basis for reversal, "[t]o the extent the trial court denied Father's move-away motion with the goal of maintaining the status quo and/or coercing Father to abandon his plan to move to Washington, it erred." [Italics added].
Finally, while the effect of a move will naturally be detrimental to the child's relationship with the remaining parent, this is but one factor for the court to consider and cannot be the sole basis for denying a move. The case of Marriage of LaMusga (2004) 32 Cal.4th 1072 (hand's down the most important move-away case to know), establishes a litany of factors for trial courts to consider in their totality - which is the subject for another Blog.
This case is reversed and remanded to the trial court to evaluate all the LaMusga factors and so exercise an informed discretion before summarily denying Father's request to move.
Okay, sorry, I'm tired now - I'll be back to add some more thoughts!
Thurman W. Arnold, III, C.F.L.S. |
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| March 14, 2011 |
| FAMILY LAW SANCTIONS and DUE PROCESS: Santa Barbara Trial Court Reversed in IRMO DURIS |
| Posted By Thurman Arnold, CFLS |
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Visitors to my websites know that I am biased in favor of mediation, believing that parties to litigation involving their family should opt to resolve their disputes themselves rather than undertake the perils of having a judge, or anyone else, decide their matters for them. This includes mediators (whose role is not to decide your issues for you but to facilitate you finding solutions). However, I admit that sometimes this doesn't seem possible. Too often one or both parties are reacting so deeply to their hurt or resentment and spinning with angry, busy minds that they perceive family court as the killing field for their unresolved conflict - a public forum for the spectacle of flogging the other side.
A recent reported decision illustrates the financial waste that occurs in high conflict family court battles, where there are no winners and only losers. My remarks are not intended to convince you to hire me, or to impugn judges whom I contend are struggling valiantly to protect children and mete out justice as best they can within a system that is not equipped to cope with the multi-dimensional challenges of emotional divorce and its aftermath: The trial judges are not broken, but the framework for government sponsored attempts to regulate the processes of divorce and domestic partnership dissolution is. Nor should it be read as an indictment of divorce lawyers or any particular barrister. An adversary model for resolving family disputes guarantees that the experience of everyone connected with these cases will be ... adversarial. Surprise!
In the meantime appellate justices are stepping forth to triage for the litigants, their attorneys, and the lower courts. But is it realistic to expect lawyers (in that small relative percentage of domestic cases where people can afford them) or judges to not be swept into the reactive thinking that the parties' disputes are personifying? I say "no". Our brains are hard-wired to respond to conflict in predictable ways. While we all ought to conduct our affairs in increasingly enlightened and ethical ways, and lawyers and judges surely benefit by incorporating the wisdom of the mental health sciences, a legal and cultural framework grounded in adversarial processes can never escape them. How could it be otherwise?
Marriage of Duris & Urbany
On March 14, 2011, the Second Appellate District (Division Six) reversed Santa Barbara trial judge Colleen K. Sterne's decision to discipline a self-represented litigant (an unemployed attorney) for, among other things, her earlier attorney's tactics in filing a motion to compel document production evidently without first attempting to resolve the disagreement informally. Discovery motions generate large fees and consume valuable judicial resources.
At the end of the hearing on Wife's original requests (the custody and support modification request she'd filed eight months earlier), the trial court imposed $10,000 in attorney fee sanctions against the Wife. Husband's attorney had evidently suggested that the Court do this somewhere in his Reply paperwork, and reiterated the request in his closing argument. The trial court took the bait. Its ruling was found to be an abuse of discretion.
According to the Husband, by the time of the hearing on original OSC to modify custody and support he had spent $25,000 for fees. Wife probably spent a similar but slightly lesser amount since she was in pro per for many months. Their fees and costs for the appeal probably were $20,000 more apiece (but Mr. Urbany handled his own appeal). Husband will get none of his money back, and Wife will recover only a portion of hers. Neither will achieve an emotionally satisfying resolution and their matter likely obsessed their lives over the year and a half. This case is "a pox on both your houses."
Wife's former attorney, Jacqueline Misho, was hired some six months into the proceedings, initiated when the Wife filed a motion for "100% physical and legal custody" of the parties' two children, plus more child support. Attorney Misho took an aggressive stance in advancing her client's claims and filed a discovery motion to compel production of documents. This was unsuccessful. The attorney was then let go. A week later the Wife's custody motion was heard. Although sanctions against her had not been requested by way of a noticed motion (possibly because there was little time in which to file one), Husband urged that she should pay his attorney fees. At hearing end when Judge Sterne announced her intent to hit Wife with $10,000 in sanctions as a share of the Husband's costs in part based upon the prior discovery motion filed by Misho, Wife complained "How am I being penalized for hiring [Misho]? How was I supposed to know? I thought she was the best there was." In my experience, "the best there [is]" often means the meanest and toughest. Many family law attorneys advertise themselves in such a fashion.
I have no personal knowledge about either party's attorney beyond what Google searches of their names retrieve and what a review of the California State Bar website discloses. Both are reputed to be tenacious divorce litigators. The problem with vociferous advocacy, irrespective whether it occurred in this case or not, is that it tends to generate a story of its own and so to increase the conflict noise volume - I confess I know this from my own past personal experiences. It can infect the process - there is something of a reciprocal feedback loop that occurs between high conflict litigants and their attorneys that is difficult to resist. Sometimes it seems to be the only choice, but usually that justification is borne of the tensions within the conflict itself and is not necessarily true.
Family law litigation becomes particularly nasty when attorneys for each side compete to inflame the trial judge with sound bite characterizations about the other. Some clients demand this from their counsel or become quite perturbed if their advocate doesn't respond in kind to these sorts of attacks. Lawyers who are being paid large sums are pressured to speak their client's minds (read: resentments) or risk a loss of confidence by their client. Of greater concern to the integrity of the legal professional generally, there are many family law attorneys whose entire strategy is geared around slandering the other litigant (or their attorney), often by exaggerating or misrepresenting the facts or history of the case solely as a means of confusing the judge or just plain pissing the court off in the hope of creating a favorable bias. Tit for tat then threatens to overwhelm the process. This sort of behavior can include ignoring the procedural rules for raising the issues to be decided, which is a form of ambush that can be effective exactly because the answering party is unable respond to an oncoming train if there is no forewarning.
I am not saying that this was either attorney's conduct in Duris as I lack sufficient details to make a full assessment; instead I am pointing out that adversary litigation programs lawyers and unrepresented parties to use whatever tactics that might work, and sometimes to try them all. This seems to be viewed as not only within the standard of care for zealous advocacy but to be required by that standard. I can comment that one irony of this case is that while the Wife's attorney allegedly failed to act in a cooperative manner in choosing to file a motion to compel without first attempting to solve the argument informally, Husband's attorney seized upon that misstep to buttress a request for sanctions that was never properly placed before the court. Sometimes these sound bites do stick; they did here, at least with Judge Sterne. Unfortunately, under these rules of engagement lawyers are thus encouraged to act as badly as the talking heads we see arguing on many 'news' programs, something that the American public views as a form of 'entertainment.'
This is one of the many dangers of adversarial litigation. Both sides feel righteously indignant, and attorneys tend to internalize their client's upset so that the boundaries between the client's experience and the attorney's own blurs. It is a recipe for disaster, but understandable given that emotional and angry ex-spouse pressure-cookers are letting out steam on both sides of the table all at once.
The appellate court's decision doesn't give us sufficient facts to discern whether the mother's initial application was well-merited, but Judge Sterne's decision suggests she did not view mom's motives (or her attorney's decision-making) to be in good faith. Wife's request for 100% custody looks to be retaliatory and frankly when this is true - and too often it is, even if not here (Judge Sterne referred to Wife's prior discovery motion as a "fee sink") - trial courts need to discourage such conduct in strong ways, especially when it generates unnecessary fees for the other party or damages children. Some people only respond to monetary slaps. I can merely speculate about these proceedings without reviewing the trial briefs and reporter's transcripts, and emphasize that reading 'between the lines' cannot give the whole picture.
Still this is a published decision of the 2nd Appellate District. Following on the heals of Marriage of Fong released for publication on March 3, 2011, these decisions, along with
Marriage of Tharp, should be read together to glean the larger message. Reviewing courts are holding everyone accountable - litigants, attorneys, and bench officers. Due process and fundamental fairness require every side to cross their own t's and dot their own i's. This is welcome instruction to the entire spectrum of family court members and participants.
Be Careful What You Ask For,
and Consider Asking for Something Different
However inappropriate Ms. Duris' conduct may have been (if at all), the appellate justices ruled that due process required that she be informed in advance that the court was considering sanctions in order to have an opportunity to muster and present evidence in opposition. Husband's request for relief should have been properly placed before the Court and not have been based upon offhand arguments buried somewhere in his reply pleadings or first presented in closing argument. This is a good thing. Last year's Elkins legislation spotlights the public policy goal of ensuring transparency for self-represented and represented family law contestants alike.
Now, eighteen months later the odyssey is not yet ended - the Sterne decision is sent back to the trial court (not likely to be Judge Sterne, who can be disqualified as the judge on the next go-round) "with instructions to conduct a new hearing with proper notice." In other words, to relitigate whether sanctions should be assessed against the Wife.
In the meantime, she is awarded her costs on appeal. No appellate case costs only $10,000, the amount in controversy that led to this appeal. Hence, Husband - who won a short-lived victory at the trial court level - will now likely end up footing not only the bill for his trial attorney, but the Wife's attorney fees on appeal as well (be careful what your attorney asks for!) The saga can be now rebooted. Might it end differently this go-around? I'd wager (and I hope) the parties have had enough and that will agree that Wife will forego her appellate costs while Husband will waive a second sanction's motion. But divorce trance is stubborn stuff.
There are only losers in Marriage of Duris. The children of these two warring parents seem utterly forgotten. The take away is that using California court judges to beat up the person you now find despicable (who then smacks back) may blow up in the face of each contestant; given that people often view justice from the lens of their own desires it is a small wonder that government regulated divorce hasn't found a way to respond to such expectations, and possibly never will until the entire system is jettisoned and recreated.
In the meantime try a different tact, if you wish it and if you can. Work together to resolve your disputes collaboratively or through mediation. Even if the other side seems incorrigible, you determine how you respond. Remember, litigation induces trance - seek equanimity and send your kids to college instead!
Here is a link to Marriage of Duris & Urbany.
Thurman W. Arnold, III, CFLS
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| December 14, 2010 |
| 2011 REVISIONS to the California Family Code: Child Abuse and Temporary Orders |
| Posted By Thurman Arnold, CFLS |
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Effective January 1, 2011, Family Code section 3027 has been amended to authorize courts to "take any reasonable, temporary steps as the court, in its discretion, deems appropriate ... to protect the child's safety until an investigation has been completed" when allegations of child abuse have been made.
Previously this section only applied to allegations of "sexual abuse."
This will include allegations made by so-called "mandatory reporters," although the statute speaks only to child custody proceedings that are already pending. Presumably the innocent parent will file something at once and seek no-visitation orders based upon this section.
Thurman W. Arnold III
Certified Family Law Specialist |
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| December 12, 2010 |
| ELLEN KELLNER'S CO-PARENTING BOOK Inspired Me: How Can I Get My Ex Into Counseling? |
| Posted By Thurman Arnold |
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Q. I found Ellen Kellner's book "The Pro Child Way, Parenting With An Ex" on your
Desert Collaborative Divorce
website some weeks ago, and ordered it from Amazon.com. I have been eagerly reading it, especially because of the up-coming holidays. I am wondering if you can tell me, is there any way in California to force my ex-husband to do some child-centered counseling with me? I think we could start talking better if we were in a safe environment.
Rebecca in San Dimas
A. Rebecca, I am so pleased that you are taking the time to read Ellen's book! She is a dear friend of mind, and a tireless proponent of co-parenting techniques for the sake of children. I have copies of her book which I give away to my clients, since finding resources for dealing with divorce and parenting issues is crucial to moving on. (I recently had a concerned grandmother waiting for me to finish my work with her son, and I noticed the book seemed stuck to her hand!)
California Family Code section 3190 authorizes Family Courts to require parents (or any other party) who are involved in a custody or visitation dispute to participant in outpatient counseling for up to a year.
Unfortunately, the court needs to first make findings that the dispute "poses a substantial danger to the best interests of the child" and that counseling is in the best interests of the child. It is quite ironic that in order to get counseling the dispute must reach such a magnitude of dysfunction. Custody proceedings must be pending, but even if they aren't it should be sufficient to just file a motion or OSC, allege facts that meet section 3190's requirements, and request the orders. In cases involving a history of domestic violence or abuse, this counseling can be ordered separately per
FC section 3192.
I am so pleased for you and your children that you are motivated enough to investigate these options. They are well-served.
BTW, Ellen is available for phone and possibly Skype based consults if you think it might be helpful to meet with her for further ideas and direction.
Happy holidays to you and your family!
T.W. Arnold, CFLS
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| December 03, 2010 |
| ELKINS and New FAMILY CODE SECTION 217: How It AFFECTS YOU! |
| Posted By Thurman Arnold, CFLS |
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The most important new rule in decades affecting the experience of California Family Law litigants is set to be unleashed on January 1, 2011.
It promises a radical change in the way that all family court proceedings - whether they be dissolutions, legal separations, annulments, support applications, custody, and modifications of all of the above - are processed and decided by Superior Court judges and commissioners.
This is a result of the Elkins Task Force, which has been quietly operating in the background of the California family law world since roughly August 6, 2007, when the game changing case of Jeffrey Elkins v. Superior Court (2007) 41 Cal.4th 1337 was decided by our California Supreme Court.
Elkins was a landmark decision which held that the Contra Costa County Superior Court could not through its local rules limit parties in marital dissolution actions to introducing evidence in written declaration form that had to be submitted in advance of trial, or prohibiting except in "unusual circumstances" one party from cross-examining the other about the contents of those declarations. Such a rule, intended for the sake of calendar management and judicial economy, not only had the practical if unintended consequence of favoring parties with attorneys who understood how to work with these rules but fundamentally it violated due process by cutting off litigants' abilities to present all relevant, competent evidence on material issues. Judges, as the triers of fact, are not able to assess witness demeanor and credibility without live testimony.
What is earth shattering about this decision in these economic times is that the Contra Costa Superior Court had urged that its policies and local rules were essential for the "expeditious resolution of family law cases." Soon to be former Chief Justice Ronald George rejected this justification:
"We are aware that superior courts face a heavy volume of marital dissolution matters, and the case load is made all the more difficult because a substantial majority of cases are litigated by parties who are not represented by counsel. [Reference omitted]....
In light of the volume of cases faced by trial courts, we understand their efforts to streamline family law procedures. But family law litigants should not be subjected to second-class status or deprived of access to justice. Litigants with other civil claims are entitled to resolve their disputes in the usual adversary trail proceeding governed by the rules of evidence established by statute. It is at least as important that courts employ fair proceedings when the stakes involve a judgment providing for custody in the best interest of a child and governing a parent's future involvement in his or her child's life, dividing all of a family's assets, or determining levels of spousal and child support....
Trial courts certainly require resources adequate to enable them to perform their function. If sufficient resources are lacking in the superior court or have not been allocated to the family courts, courts should not obscure the source of their difficulties by adopting programs that exalt efficiency over fairness, but instead should devote their efforts to allocating or securing the necessary resources."
Justice George ended by directing the California Judicial Council to create a task force (the 'Elkins Task Force) "to study and propose measures to assist trial courts in achieving efficiency and fairness in marital proceedings and to ensure access to justice for litigants, many of whom are self-represented. Such a task force might wish to consider proposals for adoption of new rules of court establishing state wide rules of practice and procedure for fair and expeditious proceedings in family law, from the initiation of an action to postjudgment motions. Special care might be taken to accommodate self-represented litigants. Proposed rules could be written in a manner easy for lay-persons to follow, be economical to comply with, and ensure that a litigant be afforded a satisfactory opportunity to present his or her case to the court." Hence, the Elkins decision is essentially a Jeffersonian ruling that its intended to empower family law litigants and to require counties and courts to adapt.
The Elkins Task force completed its work and has issued lengthy recommendations. The first changes take place on January 1, 2011. Possibly the most important change is embodied in Family Code section 217. It states:
"(a) At a hearing on any order to show cause or notice of motion brought pursuant to this code, absent a stipulation of the parties or a finding of good cause pursuant to subdivision (b), the court shall receive any live, competent testimony that is relevant and within the scope of the hearing and the court may ask questions of the parties.
(b) In appropriate cases, a court may make a finding of good cause to refuse to receive live testimony and shall state its reasons for the finding on the record or in writing. The Judicial Council shall, by January 1, 2012, adopt a statewide rule of court regarding the factors a court shall consider in making a finding of good cause.
(c) A party seeking to present live testimony from witnesses other than the parties shall, prior to the hearing, file and serve a witness list with a brief description of the anticipated testimony.
If the witness list is not served prior to the hearing, the court may, on request, grant a brief continuance and may make appropriate temporary orders pending the continued hearing."
Family Code section 217 will cause a sea-change in day to day family court proceedings across our state, unless family court judicial officers ignore it to the limited extent possible by court rules. It will likely have immense financial and resource consequences upon not only the courts but upon parties to family court proceedings. It will force the state government in coming years to study whole new paradigms for resolving divorce and domestic partnership dissolution outside the adversary template, including those currently practiced in New Zealand and southern Australia.
It will also pressure parties to consider mediation, and collaborative processes which occur outside congested courthouses, much more carefully. The costs of adversary litigation are about to sky-rocket, making mediation even more appealing from a financial perspective (I have written extensively about the emotional and psychological benefits here an elsewhere). There simply is no governmental money available to absorb the coming Elkins Onslaught. For more information about an alternative method for resolving family disputes, please visit us at www.DesertFamilyMediationServices.com.
At the same time, at least in the short run taken together with some of the other revisions that become effective next month, it may encourage more people to litigate more stubbornly and so make mediation seem less attractive than it did before the changes (just the reverse will be true). Some folks will mistakenly assume that this invites the use of court hearings as a live-testimony forum for sharing unresolved complaints relating to their marriage or domestic partnership dissolution with the other party in open court. Instead, judges will sustain objections to such irrelevant material and parties who seek to use Family Court as a platform to air relationship grievances will find themselves alienating the trier of fact in ways that will have adverse consequences to them beyond just the time and expense of the exercise.
The purpose of today's Blog is to introduce you to section 217 and the new changes. I will follow up with more articles in coming weeks. Without a doubt the new rules will make all the information I provide on my websites more relevant and timely for my readers.
December is new legislation month at the Southern California Family Law Blog presented by Family Law Attorney Thurman W. Arnold. My goal is to inform you well, and early on, on any number of topics that will improve your outcome in family law matters and hopefully help you to reach results that are fair for you, your spouse or ex-partner, your children, and your blended and extended families.
T. W. ARNOLD, III, CFLS
(State Bar of California, Board of Legal Specialization) |
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| December 01, 2010 |
| New Family Code Section 3042 - Will It Serve to Accelerate the GENDER CUSTODY WARS? |
| Posted By Thurman Arnold |
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AB 1090, sponsored by Assemblywoman Fiona Ma, becomes law on January 1, 2011 as revised Family Code section 3042. It directs courts to allow children age 14 or over to testify about their custody preferences except where judges make findings on the record why they will not permit it beginning January 1, 2012. The legislation also directs the California Judicial Council to develop policies and procedures for examining child witnesses in the meantime.
Is section 3042 a good idea? On balance I strongly doubt it. The likelihood of misusing this new license, given how we humans tend to behave when we are steeped in relationship conflict, will for many parents be just too powerful a force to avoid. Parents will feel invited to have discussions that were previously considered inappropriate under the guise of fulfilling a perceived legislative mandate to inquire into childhood preferences. And it won't stop with "Johnny, who would you rather live with, your mom or me" but will inevitably expand into questions about what underlies Johnny's preferences. California is theoretically a no-fault state at least in terms of grounds for dissovling marriage, but fault has always lurked beneath the surface in custody contests. Newly enacted section 3042 takes this to a new, much messier level that potentially assaults children directly as potential co-conspirators with parents who have no concept of age appropriate boundaries. The legislation is silent on creating resources to help parents understand that children are not supposed to be one parent's best friend after the other parent leaves the family.
Which is not to imply that no children will benefit from it. Still,....
While it is true that children are routinely blocked from meaningfully expressing important preferences in custody cases under current law before this change, I have to observe that in my years of family law practice I have had many clients (both mothers and fathers) who I have either witnessed or suspected of pressuring children in alienating ways to express a preference in that parent's favor (and I also attempted to put a stop to it by explaining the emotional damage this may cause). I have seen many more parents on the opposing side who do so, and their lawyers whom I believed encouraged such activity.
What happened at father's house, at mother's house, with their new spouse or girlfriend or boyfriend, and so much more is just too enticing a subject for some parents and now that information will be considered relevant by parents who may feel they are being invited to obtain children's statements of parental preference. These parents will attempt to introduce such information to the court, whether in their own declarations and testimony or through the voice of the kids. Children will be questioned and interviewed by parents, and enlisted as co-participants in particularly the high conflict parenting struggles. If the parents are unable to maintain a sensible decorum in managing discussions with their children, how can we expect children not to be cast adrift on the seas of emotion that accompany divorce and custody contests?
Under the new statute either minor's counsel, an evaluator, investigators, or mediators who provide custody recommendations to the court, must indicate to the Judge whether the child wishes to address the court - and the judge is also required to ask this question. Either parent's attorney may also make that representation to the Court, which then triggers the issue. It is hard to imagine that any attorney or self-represented party who finds themselves on the otherwise loosing end of a custody evaluation or recommendation will not make this request. Indeed, it will be attorney malpractice not to do so!
An unfortunate consequence of this new statute will be to aggravate what I see as the gender wars between mothers and fathers in custody disputes. Some mothers believe that they are by nature better suited to child rearing, and the reality is that many do serve their children very well as the primary psychological parent particularly in early life. Some fathers believe that they are disenfranchised by such views, and make a conscious decision to step out of children's lives "until they get older". Any battle is unfortunate, and also creates victims. We all decry in theory the lack of fathering in our society.
Since mothers are statistically in greater control of children than fathers (again, perhaps for good and valuable reasons), the effects of this statute will fall more heavily in favor of mothers and so against fathers - which is possibly, but not of a certainty, one reason why Assemblywoman Ma may have introduced it. More likely, the idea sounded better than the reality may become.
I suspect I will be accused of gender bias in saying this. But because mothers more commonly find themselves as children's primary parents for much of children's adolescence (sometimes by default since some fathers don't seem willing to assume the role or take on a greater parenting responsibility) this statute will have an effect of encouraging behaviors that promote manipulating discussions with children about which parent they should prefer. Few parents of either sex will likely resist the challenge of not overstating their child's supposed desires in their own favor.
Courts and the Judicial Council will need to develop policies and procedures that minimize the negative impacts of this new battlefield on our children. There are certain to be child casualties, however, and I am left wondering which outweighs the other: the costs to children of conflicted parents, or the benefits?
T.W. Arnold, III, CFLS
December 1, 2010
www.ThurmanArnold.com
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| December 01, 2010 |
| Can My CHILDREN TESTIFY About Their PARENT PREFERENCE in Our Custody Case? |
| Posted By Thurman Arnold |
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Q. We have a hearing coming up before the Christmas holidays over custody and visitation issues. I believe my children should testify in court about their father's living conditions, as well as what they have told me about some things involving the woman he has sleeping over, and what their preferences are as to custody. Is this possible?
A. It is possible under current Family Code section 3042. It may or may not be a wise choice for the sake of your kids, however, since it sounds as if you expect one or more of them to say things to the judge that might be make them feel as if they've betrayed their dad, chosen you over them, or that they are being placed into the middle of your dispute. I beg you think carefully about what you say to your children, and what you do here.
AB 1050 passed both houses of the California legislature in August, 2010. It becomes law on January 1, 2011 as revised Family Code section 3042. However, it is not implemented until 1/1/2012. Existing law required family courts "if a child is of sufficient age and capacity to reason so as to form an intelligent preference as to custody, to consider and give due weight to the wishes of the children" in making custody orders.
New Family Code section 3042 will require courts to permit a child who is 14 years of age or older to address the court regarding custody or visitation unless the court determines that doing so is not in the child's best interests, and in that case the court must explain that finding on the record. When judges and family court commissioners are instructed to state their findings on the record, it can sometimes be easier for them not to error on the side of permitting the testimony - which is why such provisions are added to statutes by their supporters. At the same time, requiring judges to state their reasoning does cause thinking judges to better evaluate the issues before them.
New Family Code section 3042 requires the court to provide an alternative means of obtaining information regarding the child's preferences if it does not allow a child 14 or older to testify as a witness.
Either minor's counsel, an evaluator, investigators, or mediators who provide custody recommendations to the court, must indicate to the Judge whether the child wishes to address the court - and the judge is also required to ask this question. Either parent's attorney may also make that representation to the Court, which then triggers the issue.
According to its author, Assemblywoman Fiona Ma, current law was not sufficient because children over a certain age who had the capacity to express important preferences were routinely not allowed to testify under former section 3042. Hence, she believed that children's wishes were ignored except through the voices of third party evaluators or minor's counsel, and even then that they were not given proper weight. In my experience this was factually true. There is a longstanding judicial antipathy towards the unseemingless of testimony from children, questions about the reliability of such testim
The statute does not preclude younger children from testifying and so the law is essentially unchanged as to them - in their cases the court is not required to make findings on the record if it does not permit testimony.
The Bill's author also stated that nothing in the statute will require a child to express his or her preference. Instead she claims that section 3042 is strictly intended to provide a better avenue for participation in the proceedings and not to pressure children to express their wishes against their will. By the way, Assemblywoman Ma also sponsored Assembly Bill 102 of 2007, which permitted parties to registered domestic partnerships to change their names to the last name of their new legal partner, which I support.
Accordingly, the Bill directs the California Judicial Council to promulgate standards and guidelines and rules and procedures for the examination of child witnesses, and to suggest alternate and less intrusive methods for obtaining the information about preferences beyond directly questioning them in court.
Hence, at least as to your children's custody preferences, depending upon their ages, after January 1, 2012, you will likely be able to have the judge listen to them, particularly since there will be a period of confusion, especially in smaller jurisdictions, about how to manage child testimony for months to come.
I beg you to be careful with the power this new law gives custodial parents, which I fear if misused may become an invitation and an opportunity to increase conflictual and alienating behaviors rather than a simple and useful means of allowing children a voice in the proceedings.
T.W. Arnold, III, CFLS
December 1, 2010
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| June 03, 2010 |
| "PARENTAL ALIENATION" at the 2010 AFCC Conference |
| Posted By Thurman Arnold |
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The topic of the 47th Annual Association of Family and Conciliation Court Conference is "parental alienation." Over 1,000 lawyers, judges, mediators, and mental health professionals (psychologists, therapists, counselors, and court personnel) have converged in Denver for plenaries and dozens of educational and training sessions to share wisdom and views not just about alienating parents, but also concerning many other topics including mediating high conflict partner breakups, understanding how the brain works in conflict and why people behave irrationally and reactively, the effects of parental conflict upon children, children's best interests and parenting plans, domestic violence, and much more.
This is reportedly the largest AFCC Conference turn out ever.
The AFCC a is multi-disciplinary and highly collaborative organization, made up of members of overlapping professions who are passionately cross-pollinating the international social landscape - but particularly within the U.S. - in fertile ways. AFCC is dedicated to facilitating the healthy resolution of family conflict. AFCC's most important function is to serve as a forum for mental health professionals and family scientists and legal scholars to educate and train all of us who are in the day to day trenches of the legal and social struggles surrounding, and consequences of, relationship breakup. It is a natural marriage of a number of related professions, and probably the most important organization affecting family law trends today both in and outside the courtroom.
The concept of "parental alienation" is a highly controversial subject. There is much debate and disagreement nationally and in Denver this week whether parental alienation is really a "syndrome" or "disorder" and whether it deserves its own category in the upcoming DSM-V.
The DSM is short for the Diagnostic Statistical Manual of Mental Disorders. It is published is by the American Psychiatric Association. The current DSM-IV was first released in 1994 and has since been updated. It appears that the DSM-V may be released as early as 2012. It is the APA and not AFCC that determines what is and what is not included.
Mental Health Professionals (MHP's) use this manual when working with patients as a common ground for better understanding their illness and potential treatment, to communicate between themselves, and to help insurance companies and other payors decide whether to cover treatments. It is considered the ‘bible’ for any professional who makes psychiatric diagnoses in the United States and many other countries, and hence what gets in and what does not has long ranging consequences about how MHP's and judges and lawyers view certain behaviors and functioning. In effect it constitutes a consensus over what is and what is not a 'mental illness.'
The parental alienation question in this context is essentially whether there are predictable and discrete behaviors that in combination and given certain levels of intensity can form an identifiable mental illness that can be credibly diagnosed, distinguished from other disorders, and treated?
Hence, the DSM has important consequences to families who find themselves within the Family Court systems, even though that is not what the manual is necessarily intended to be used for.
For instance, in forensic parenting evaluations the DSM-IV may be used to label parents in ways that can seriously impact and impede their parenting rights. Therapists, psychologists, social workers and others who must employ and rely upon its system of coding often provide diagnoses and recommendations to judges and other MHP's derived from the DSM that are used to establish parenting rights and parenting plans in custody disputes and move-away situations.
I will attempt to Blog some information about current parental alienation research soon. In the meantime, consistent with my goal of providing free educational materials to individuals and families who are investigating legal questions involving families, my hope here is to introduce people to these important concepts. Given the nature of Blogs it is easiest to do this in 'layers.'
Thurman Arnold
http://www.ThurmanArnold.com
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| June 02, 2010 |
| Proposed Text for a new diagnosis of PARENTAL ALIENATION in the DSM-V |
| Posted By Thurman Arnold |
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The following text was taken from the AFCC materials provided in Denver. The DSM-V has not been adopted, nor is there any agreement that the following diagnosis should be added. I will provide commentary in a later Blog.
TWA
Proposed Text for Parental Alienation Disorder in DSM-V
DIAGNOSTIC FEATURES
The essential feature of parental alienation disorder is that a child - usually one whose parents are engaged in a high-conflict divorce - allies himself or herself strongly with one parent (the preferred parent) and rejects a relationship with the other parent (the alienated parent) without legitimate justification. The primary behavioral symptom is the child's resistance or refusal to have contact with the alienated parent (Criterion A).
The behaviors in the child that characterize parental alienation disorder include a persistent campaign of denigration against the alienated parent and weak, frivolous, and absurd rationalizations for the child's criticism of the alienated parent (Criterion B).
The following clinical features frequently occur in parental alienation disorder, especially when the child's symptoms reach a level that is moderate or severe (Criterion C). Lack of ambivalence refers to the child's belief that the alienated parent is all bad and the preferred parent is all good. The independent-thinker phenomenon means that the child proudly states the decision to reject the alienated parent is his own, not influenced by the preferred parent. Reflexive support of the preferred parent against the alienated parent refers to the pattern of the child's immediately and automatically taking the preferred parent's side in a disagreement. The child may exhibit a disregard for the feelings of the alienated parent and an absence of guilt over exploitation of the alienated parent. The child may manifest borrowed scenarios, that is, rehearsed statements that are identical to those made by the preferred parent. Also, the child's animosity toward the alienated parent may spread to that parent's extended family.
The diagnosis of parental alienation disorder should not be used if the child's refusal to have contact with the rejected parent is justifiable, for example, if the child was neglected or abused by that parent (Criterion D).
ASSOCIATED FEATURES
Parental alienation disorder may be mild, moderate, or severe. When the parental
alienation disorder is mild, the child may briefly resist contact with the alienated parent, but does have contact and enjoys a good relationship with the alienated parent once they are together.
When the parental alienation disorder is mild, the child may have a strong, healthy relationship with both parents, even though the child recites criticisms of the alienated parent.
When the parental alienation disorder is moderate, the child may persistently resist
contact with the alienated parent and will continue to complain and criticize the alienated parent during the contact. The child is likely to have a mildly to moderately pathological relationship with the preferred parent.
When the parental alienation disorder is severe, the child strongly and persistently resists contact and may hide or run away to avoid seeing the alienated parent. The child's behavior is driven by a firmly held, false belief that the alienated parent is evil, dangerous, or worthless. The child is likely to have a strong, severely pathological relationship with the preferred parent, perhaps sharing a paranoid worldview.
While the diagnosis of parental alienation disorder refers to the child, the preferred parent and other persons the child is dependent on may manifest the following attitudes and behaviors, which frequently are the major cause of the disorder: persistent criticisms of the rejected parent's personal qualities and parenting activities; statements that influence the child to fear, dislike, and criticize the alienated parent; and various maneuvers to exclude the rejected parent from the child's life. The behavior of the preferred parent may include complaints to the police and child protection agencies with allegations about the rejected parent.
Parental alienation
disorder may be the basis for false allegations of sexual abuse against the alienated parent. The preferred parent may be litigious to the point of abusing the legal system. The preferred parent may violate court orders that are not to his or her liking. Specific psychological problems - narcissistic personality disorder, borderline personality disorder, traumatic childhood experiences, and paranoid traits - may be identified in these individuals. Also, the rejected parent may manifest the following attitudes and behaviors, which may be a minor or contributory cause of the disorder: lack of warm, involved parenting; deficient parenting skills; and lack of time dedicated to parenting activities. However, the intensity and duration of the child's refusal to have contact with the rejected parent is far out of proportion to the relatively minor weaknesses in the rejected parent's parenting skills.
Although parental alienation disorder most often arises in the context of a child custody dispute between two parents, it can arise in other types of conflicts over child custody, such as a dispute between a parent and stepparent or between a parent and a grandparent. Sometimes, other family members - such as stepparents or grandparents - contribute to the creation of parental alienation disorder. On occasion, other individuals - such as therapists and child protection workers - contribute to the creation of parental alienation disorder by encouraging or supporting the child's refusal to have contact with the alienated parent. Also, parental alienation
disorder does not necessarily appear in the context of divorce litigation, but may occur in intact families or years following the divorce.
DIFFERENTIAL DIAGNOSIS
It is common for children to resist or avoid contact with the noncustodial parent after the parents separate or divorce. There are several possible explanations for a child's active rejection of contact. Parental alienation disorder is an important, but not the only, reason that children refuse contact.
In the course of normal development children will become polarized with one parent and then the other depending on the child's developmental stage and events in the child's life. When parents disagree, it is normal for children to experience loyalty conflicts. These transitory variationsin a child's relationship with his or her parents do not meet criteria for parental alienation
disorder because they do not constitute "a persistent rejection or denigration of a parent that reaches the level of a campaign."
If the child actually was abused, neglected, or disliked by the noncustodial parent or the current boyfriend or girlfriend of that parent, the child's animosity may be justified and it is understandable that the child would not want to visit the rejected parent's household. If abuse were the reason for the child's refusal, the diagnosis would be physical abuse of child or sexual
abuse of child, not parental alienation disorder. This is important to keep in mind because an abusive, rejected parent may misuse the concept of parental alienation disorder in order to falsely blame the child's refusal of contact on the parent that the child prefers. In shared psychotic disorder, a delusional parent may influence a child to believe that the other parent is an evil person who must be feared and avoided. In parental alienation disorder, the alienating parent may have very strong opinions about the alienated parent, but is not usually considered out of touch with reality.
When parents separate or divorce, a child with separation anxiety disorder may become even more worried and anxious about being away from the primary caretaker. In separation
anxiety disorder, the child is preoccupied with unrealistic fears that something will happen to the primary caretaker, while the child with parental alienation disorder is preoccupied with unrealistic beliefs that the alienated parent is dangerous.
It is conceivable that a child with specific phobia, situational type, might have an unreasonable fear of a parent or some aspect of the parent's household. A child with a specific phobia is unlikely to engage in a persistent campaign of denigration against the feared object, while the campaign of denigration is a central feature of parental alienation disorder.
When parents separate or divorce, a child with oppositional defiant disorder may become even more symptomatic - angry, resentful, stubborn - and not want to participate in the process of transitioning from one parent to the other. In oppositional defiant disorder, the child is likely to be oppositional with both parents in a variety of contexts, while the child with parental
alienation disorder is likely to focus his or her negativism on the proposed contact with the alienated parent and also to engage in the campaign of denigration of that parent.
When parents separate or divorce, a child may develop an adjustment disorder as a reaction to the various stressors related to the divorce including discord between the parents, the loss of a relationship with a parent, and the disruption of moving to a new neighborhood and school. A child with an adjustment disorder may have a variety of nonspecific symptoms including depression, anxious mood, and disruptive behaviors, while the child with parental
alienation disorder manifests a specific cluster of symptoms including the campaign of denigration and weak, frivolous rationalizations for the child's persistent criticism of the alienated parent.
Parent-child relational problem (a V-code) is the appropriate diagnosis if the focus of clinical attention is on the relationship between a child and his or her divorced parents, but the symptoms do not meet the criteria for a mental disorder. For example, a rebellious adolescent may not have a specific mental disorder, but may temporarily refuse to have contact with one parent even though both parents have encouraged him to do so and a court has ordered it. On the other hand, parental alienation disorder should be the diagnosis if the child's symptoms are persistent enough and severe enough to meet the criteria for that disorder.
DIAGNOSTIC CRITERIA FOR PARENTAL ALIENATION DISORDER
A. The child - usually one whose parents are engaged in a high-conflict divorce - allies himself or herself strongly with one parent and rejects a relationship with the other, alienated parent without legitimate justification. The child resists or refuses contact or parenting time with the alienated parent.
B. The child manifests the following behaviors:
- a persistent rejection or denigration of a parent that reaches the level of a
- campaign
- weak, frivolous, and absurd rationalizations for the child's persistent criticism of the rejected parent
C. The child manifests two or more of the following six attitudes and behaviors:
(1) lack of ambivalence
(2) independent-thinker phenomenon
(3) reflexive support of one parent against the other
(4) absence of guilt over exploitation of the rejected parent
(5) presence of borrowed scenarios
(6) spread of the animosity to the extended family of the rejected parent.
D. The duration of the disturbance is at least 2 months.
E. The disturbance causes clinically significant distress or impairment in social academic (occupational), or other important areas of functioning.
F. The child's refusal to have contact with the rejected parent is without legitimate justification. That is, parental alienation disorder is not diagnosed if the rejected parent maltreated the child.
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| June 01, 2010 |
| AFCC Conference in Denver, June 2-5, 2010 |
| Posted By Thurman Arnold |
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I am excited to be attending the 47th Annual Conference of the Association of Family and Conciliation Courts (AFCC) from June 2 to 5, 2010, in Denver, Colorado.
This year's AFCC Conference is entitled Traversing the Trail of Alientation: Rocky Relationships, Mountains of Emotion, Mile High Conflict.
I am signed up for the following seminars, which I hope to blog in the evenings:
Hot Minds or Hot Heads? How the Brain Reacts to Conflict and How to Use Strategic, Skill-Based Tools to Help Mediation Clients
Family Bridges: Principles, Procedures and Ethical Considerations in Reconnecting Severely Alienated Children with Their Parents
Best Interest Parenting Time Schedules: The Intersection of Developmental Needs and Parenting Style
Evaluating Allegations of Parental Substance Abuse in the Context of Parental Alienation
How Do You Know What You Say You Know? A Family Lawyer's Guide to Confronting Mental Health Evidence
Attachment Relationships in the Courtroom
Getting Real About Parental Alienation
Calm in the Face of the Storm: Spiritual Intelligence and Daily Practice for the Peacemaker
Our goal is always to share whatever information we learn of that may help families and couples in relationship transitions. Hopefully we can do this in real time this week!
T.W. Arnold
www.ThurmanArnold.com
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| April 25, 2010 |
| What SOCIAL SECURITY BENEFITS may be paid to CHILDREN? |
| Posted By Thurman Arnold |
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Q. My former husband is very ill. If he dies, what Social Security Benefits may our two children be entitled to?
A. Social security benefits may be paid to children when one parent becomes disabled, retires, or dies. To be eligible, the child must be the contributing spouse's biological child,
adopted child,
stepchild, or a dependent grandchild and under the age of 18 or, if still in high school, under the age of 19 (unless the child is disabled).
The child must have one parent who is disabled or retired and entitled to SS benefits or have a parent who died after having worked long enough to have themselves qualify for benefits. A child may receive up to one-half of the contributor's retirement or disability benefits, or 75 % of the deceased parent's basic Social Security benefit (up to a family maximum).
If a stepchild is receiving benefits, and the contributing spouse divorces the child's parent, the stepchild's benefits will end the month after the divorce becomes final.
Social Security Disability Insurance (SSDI) provides benefits based upon disability. These benefits depend upon prior work and Supplemental Security Income (SSI). Disability benefits may be paid, if there are sufficient work credits, to blind or disabled workers, widows and widowers, or adults who have been disabled since childhood who are otherwise not eligible to qualify for benefits. The amount of the monthly benefit depends upon the Social Security earnings record of the worker.
SSI payments are based upon financial need to adults or children who are disabled or blind, have limited income and resources, meet certain living arrangement requirements, and who are otherwise eligible. Monthly benefits vary up to a maximum federal benefit rate, which is sometimes supplemented by the state.
Thurman W. Arnold III
http://www.ThurmanArnold.com |
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| April 08, 2010 |
| I've heard that CHILDREN can state their PREFERENCE at 13.... |
| Posted By Thurman Arnold |
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Q. I've heard that children can state their preference at age 13, is this true?
[NOTE: THIS BLOG CONTENT IS LARGELY SUPERSEDED BY REVISED FAMILY CODE SECTION 3042 WHICH TAKES EFFECT 1/1/11 - T.W. Arnold, 12/3/10]
A. Not as you pose the question. This is what Family Code section 3042 says:
"Wishes of child to be given due weight; Preclusion of calling of child as witness
(a) If a child is of sufficient age and capacity to reason so as to form an intelligent preference as to custody, the court shall consider and give due weight to the wishes of the child in making an order granting or modifying custody.
(b) ..., the court shall control the examination of the child witness so as to protect the best interests of the child. The court may preclude the calling of the child as a witness where the best interests of the child so dictate and may provide alternative means of obtaining information regarding the child's preferences."
The threshold question is always going to be whether the child is of a sufficient age and capacity to reason to form an intelligent preference and there is no bright line rule or specific age on the subject. One can make generalizations for instance that some children nearing the age of 12 or 13 or 14 have a sufficient capacity, but that is not automatically assumed. It depends on each child. You can imagine that the child's opinion of their own capacity to reason is not determinative, nor is your opinion. Children may be subject to conditions or "disorders" that affect the characterization.
Commonly where a preference must be expressed, it comes through the medium of a mediator, the child's therapist, or a forensic therapist or psychologist. Most judges are extremely reluctant to take testimony from a child, even in chambers, especially on routine matters like preferences (as opposed to situations where a child is alleged to be a victim of some form of abuse and so may need to be questioned). In Indio, the family court mediators will often meet with children upon request. There always remains a fear that one child or the other or both is actively coaching the child - another reason why child's preferences as expressed should be given "due weight."
So, my advice to you is this: Consider what you propose carefully. Try to work through it with the other parent. Attempt to understand the root causes of a child's stated preference, and whether they are independently reasonable - or even true, since of course your son loves you and may be reluctant to leave you at the end of the summer.
And, certainly, where objective facts exist that strongly argue for a change of custody, the child's preference may tip the scales in one direction or the other.
Thurman Arnold III
4/8/10 |
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| April 08, 2010 |
| How do COURTS decide to award JOINT CUSTODY? |
| Posted By Thurman Arnold |
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Q. How do courts decide whether to award joint custody?
A. Family Code section 3010 provides that a mother and a father "are equally entitled to the custody of the child."
However, Family Code section 3020 sets forth the California legislative declaration that the chief concern of the State in with regard to custody issues is the "best interests" of the minor children. Lawyer's and judges refer to this as the "BIC" (best interests of child) standard. As a matter of public policy, BIC always trumps parental rights and interests; of course, BIC is a moving target. Family Code section 3011 sets forth a non-exhaustive list of factors that bear upon the BIC.
Section 3020 is an extremely important statute nonetheless, because it also expresses California public policy to (a) "assure the health, safety, and welfare of children" and (b) to "assure that children have frequent and continuing contact with both parents after the parents have separated or dissolved their marriage, or ended their relationship, and to encourage parents to share the rights and responsibilities of child rearing in order to effect this policy, except where the contact would not be in best interest of the child, as provided in Section 3011."
Here it is important to comment that when a court makes a custody determination, it is required "upon the request of either party," to issue a statement of the decision explaining the factual and legal basis for its findings. Family Code section 3022.3.
So, the court must make a decision, when parents cannot agree, based upon the evidence of what is in the child's best interest. Along these lines, there are certain presumptions that also apply which will affect the outcome of the BIC determination. Examples include a history of domestic violence by either party (Family Code section 3044) or habitual drug or alcohol abuse (FC section 3011(d)). In those situations the Court must actually state why it granted joint custody to a parent who is guilty of abuse, or is a continuing substance abuser, and those reasons may be hard to find.
Thurman W. Arnold III
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| March 06, 2010 |
| What does a VOLUNTARY DECLARATION OF PATERNITY (VDOP) do in California? |
| Posted By Thurman Arnold |
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Q. My ex girlfriend gave birth to our son three years ago. I was at the hospital with her, and signed a document they handed me that said I was the father. She and I were never married. We lived together for another year, but then split up. For six months, since I got a new girlfriend, the ex has refused to let me see our son. What can I do?
A. This is a common situation. We always know who the mother of a child is, but it isn't always certain who the father is. The law has developed ways of dealing with this, keeping in mind it is the policy of the state to try to find legal fathers for children so that they, and not the taxpayers, have the burden of supporting that child.
Under the law, when a woman gives birth to a child during a marriage there is a legal presumption that he is the biological father if certain conditions are met. There are a number of statutory ways of establishing parentage since there are a number of different situations where children are conceived and born. Here I only write about situations where there was no marriage.
Establishing you are the father is a precondition to establishing two very important things: Your right to share the custody and visitation of the child and your right to receive child support, or your obligation to pay it.
Family Code section 7611 establishes this presumption where
1) the man "and the child's natural mother are or have been married to each other and the child is born during the marriage, or within 300 days after the marriage is terminated, ... or after a judgment of [legal] separation is entered by a court"; or
2) before the birth, he and the mother attempted to marry each other but where the marriage was for some reason invalid, if the child is born during the attempted marriage or within 300 days after it termination OR if the attempted marriage is invalid without a court order, the child is born within 300 days after the ending of cohabitation; or
3) After the birth, he and the mother marry or attempt to marry each other but the marriage could be declared or is declared invalid, where (a) with the father's consent is named on the birth certificate or (b) he is obligated to support the child under a written voluntary promise or under a court order; or
4) If the man receives the child into his home and openly holds him out as his natural child.
Since you don't mention a marriage or attempted marriage, only the fourth category may apply to you.
Family Code sections 7570 to 7577 govern the establishment of paternity by voluntary declaration. This is called a VDOP. It is really for establishing paternity between a child and unmarried persons.
Since 1995, hospitals in California have been required to have on hand this declaration and informational documents about establishing paternity by this method. Hospitals are required by law to "provide [these documents] to the natural mother and [to] attempt to provide, at the place of birth, to the man identified by the natural mother as the natural father...." Family Code section 7571(a). Family Code section 7572 sets forth what the informational materials of the legal effects of signing the VDOP, including the rights that a father may be assuming and those that he is giving up (like limitations on his ability to dispute parentage later). Hospitals are then required to submit these documents to the California State Department of Child Support Services [DCSS].
Family Code section 7573 provides that, with certain qualifications, once this VDOP has been submitted to DCSS, the VDOP "shall establish paternity of the child and shall have the same force and effect as a judgment for paternity issued by a court.... The voluntary declaration of paternity shall be recognized as a basis for the establishment of an order for child custody, visitation, or child support."
Family Code section 7574 sets forth the minimum requirements of what the VDOP must say to the father.
The VDOP may only be rescinded (reversed) by either parent by filing a recission form with DCSS within 60 days of its date of execution unless a court has already entered orders for support or custody based upon it. Family Code section 7575.
Nonetheless, if a challenge is made within certain time frames to the VDOP after the recission period is passed, Family Code section 7575(b)(1) may permit the Court to set the judgment it has created aside "if the court finds that the conclusions of all the experts based upon the results of genetic tests ... are that the man ... is not the father," UNLESS the court finds that denial of an action to set aside the VDOP is not in the best interest of the child. Take a look at subsection (b)(1) to get a sense of what those considerations include.
Family Code effectively sets a 2 year statute of limitations for filing a motion with a court to set aside the VDOP; otherwise it cannot be set aside. Genetic testing must prove the supposed father is in fact not the bio dad.
In your case the VDOP cannot be set aside since it was signed more than 2 years ago. Based upon it, you are the legal father. If you need the court's assistance to enjoy visitation rights with your son, you need to file and serve a Paternity action, attach the VDOP (which you can get from DCSS), and file a separation OSC or motion to have custody and visitation rights determined. The case then becomes much like any other custody dispute.
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| January 17, 2010 |
| I have an attorney but what if I want a SECOND OPINION? |
| Posted By Thurman Arnold. Certified Family Law Specialist |
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Q. I am represented by an attorney. However, I don't have a lot of faith in him anymore and now trial is scheduled in four months. Am I being paranoid in wanting a second opinion about my divorce case?
A. Dissolution proceedings generate great anxiety. The circumstances surrounding the breakup of relationships, division of property and debts, sharing of custody, fears about future economics, and being a stranger to a process that one can only marginally direct or control cause difficulties in evaluating the quality and value of advice that clients receive.
Please don't hesitate to seek a second or even a third opinion about your family law matter.
We all ought to have a healthy skepticism about what professionals tell us, particularly when the subject affects us in an intimate, immediate or lifetime basis. It is not uncommon to become suspicious of one's attorney, or to lose confidence. Indeed, a major tactic which parties use to manipulate each other in high conflict divorces involves promoting distrust of the other's lawyer; a second opinion may become useful in grounding you. Your fears may be well founded, or they may be caused by a lack of understanding (most often a result of poor communication skills on the part of an attorney, or a lack of apparent empathy for your plight). In either case with these warning signs evident and some time left to change horses if that is indeed what you conclude is necessary, failing to investigate this further right now is a recipe for disaster.
Lawyers are not all created equally; some are unquestionably smarter and more poised and articulate than others, and there is a huge variation in the level of skill and commitment that individuals possess or bring to any particular case or specialty topic.
Certified Family Law Specialists are highly likely to understand the legal complexities of modern divorce, and to be familiar and comfortable with current best practices in the mental health sciences as they relate to individual and family dynamics. Most attorneys lack sufficient interest to bother to undertake the fairly grueling training, education, and testing required for certification as a legal specialist. Although certification as a divorce expert does not guarantee the outcome you desire to achieve, it does stack the odds in your favor - hiring a specialist is more likely to pair you with an experienced legal professional who is at the top of the divorce lawyer bio-sphere. If your attorney is not certified, or even if he is and you sense that his advice is not efficient or it is not making sense to you (or others), it is no sin to discreetly step away, take some breaths, and get reliable and independent feedback.
If you are feeling uneasy about the quality of the legal representation you are receiving, don't ignore the signals. Given what is at stake, why not seek a second legal opinion from a qualified attorney? At worse you may find that your anxiety has been dispelled and that the real problem with you and your lawyer involves a lack of communication or a lack of understanding by one or both of you that can be remedied; at best you may avert a developing train crash before your life and finances are thoroughly wrecked.
We don't have crystal balls, but we all possess intuition and common sense. Use yours!
We offer Second Opinions and frank and discreet, expert advice, by telephone and video-conferencing and webcam!
Thurman W. Arnold III, C.F.L.S.
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| December 20, 2009 |
| ENFORCING SUPPORT ORDERS in California |
| Posted By Thurman Arnold |
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Enforcing California Child Support and Alimony Orders
As a private person, you have a host of remedies. Some require the assistance of an attorneys, other may not depending upon your relative interest and motivation. These include:
Wage Assignments
In all cases where California support orders are issued (or even if out of state support orders are being enforced here), a Wage Assignment Order (aka earnings assignment or income withholding order) must issue which includes arrearages if applicable and once they have been determined. Family Code section 5230. In order to be effective, these must be served by at least first-class mail upon the obligor's employer. Not later than 10 days thereafter, the employer is required to commence payments of the court ordered amounts so long as and only to the extent that they do not exceed 50% of the employee's net income per pay period. This must continue until the employer receives notice of termination of the order. These orders take precedence over any other kind of non-support assignment or wage garnishment. An employer who wilfully fails or refuses to honor the earnings withholding order is liable for the amount it should have paid over. Family Code section 5241.
Support Contempt Proceedings
A party who wilfully refuses to comply with any court order, and specifically an order for the payment of child support, spousal support, or an attorney fee order, may be guilty of contempt of court. Family Code section 290.
As to support, each monthly failure to pay all or any part of the court ordered support is one count of contempt, and each count subjects the contemnor to up 5 days in jail and a fine of up to $1,000. Because contempt potentially involves jail time, they are difficult and expensive to prove but they can be a very effective remedy for getting the attention and compliance of a party who values their freedom. You will not succeed without an attorney who has actual experience litigating them.
So long as you do not allege more than 35 counts of contempt, the other party will not be entitled to a jury trial but in any case if they do not have private counsel the family court is going to appoint the Public Defender's office to represent them in the contempt proceedings only. There is a 3 year statute of limitations for pursuing contempt for nonpayment of support and attorney fees; there is a two year statute of limitation barring all other forms of contempt of court orders.
Writ of Execution/Receiver
Support orders may be enforced like any other money judgment. This means that you may obtain a Writ of Execution and enforce a money judgment against bank accounts, or property, or even ask that a receiver be placed in a business owned by the obligor to collect money as it comes in.
Interest; Bankruptcy; Renewal of Judgments in Support Cases
Support orders accrue interest at 10% from the date of each installment becomes due. Family Code section 155. Courts do not have discretion to relieve the obligor of the interest. Interest is a serious matter, since at 10%, principal doubles every 7 years.
Unpaid support cannot be discharged in bankruptcy.
Support orders never die. California is one of the toughest states upon deadbeat fathers and deadbeat mothers. You do not need to renew a support judgment in order to preserve it [Family Code section 291], unlike a 10 year rule of limitations for renewal of judgments that applies for almost all other types of civil money judgments. There is no defense for not paying a valid support order except possibly one - where the party entitled to the support order disappears and actively hides the minor child for whom the support is made during the entire period of minority, then perhaps an obligor may succeed in having a court vitiate the support order. However, the defense of laches (an unreasonable delay in enforcing a legal right) may be asserted against the State in cases where welfare was paid out for the benefit of the other spouse or a minor child but a long, long time passes before any agency undertakes action to recover it.
Attorney's Fees in Collecting Unpaid Support
You may also be able to recover your attorney's fees incurred for your enforcement action pursuant to Family Code section 3557.
UIFSA in California
The Uniform Interstate Family Support Act has been adopted in every state, and similar uniform rules for collecting support have been adopted in many foreign jurisdictions which allow for enforcement of orders here. The purpose of this uniform act is to augment and expedite spousal and child support enforcement, and even the collection of related attorney fees, wherever a support obligee (a parent who owes per a support order in any state) moves or can or might be found. This way, to the extent that someone relocates between States or simply works in a neighboring state, and whether or not they are avoiding a support obligation, support orders from any issuing state can be enforced quickly and efficiently.
If support orders issued in Maricopa County, Arizona need to be enforced in Riverside County, California, certified copies of the out of state decree are merely filed and registered here and immediately any and all of the remedies outlined above become available. Even if the support obligor doesn't live or work here, but owns property in this State, orders can issue that can enforced against personal property or real estate. The California UIFSA statutes are found at Family Code sections 4901 et seq. You don't need to be a California resident to take advantage of these rules.
Under certain limited circumstances child support orders issued in another state may be modified in California. This means that if a payor parent moves here, once the out of state support order is registered here it may be possible to modify it under more favorable California laws. Conversely, if parent and child live here and the payor parent does not but wishes to avail themselves of California law, they too may be able to seek a modification here. Once that occurs, California becomes the new jurisdictional situs for further support modifications and enforcement. However, although spousal support can be collected here, whether to modify it always remains under the control of the original state where orders were issued.
Child Support Civil Penalty
This may be an extremely effective tool for collecting delinquent child support in California: Thechild support civil penalty statutes found at Family Code section 4721 - 4728. Essentially if the statutory procedure is correctly followed, each and every unpaid installment of child support will incur a civil penalty of up to 6% percent per month. There is a maximum 72 percent of the original amount that can be imposed, but this 72% interest in a year! If this doesn't get the deadbeat parent's attention, it is hard to imagine what will.
To avoid the child support penalty once the requesting party has given proper notice of the delinquency, the obligor must pay the past due support money within 30 days. If they do not, the obligee (party who is owed) may file a motion for a judgment for the principal amount plus penalties and interest. This presents the last opportunity for the payor parent to work out a solution and convince the Court it is not fair to impose the penalty. Thereafter, the judgment is enforceable in the same manner as any other.
Child Support Security Fund
Another useful support collection tool in California is found beginning at Family Code section 4560. This allows the Court to order that the child support payor deposit into a court controlled account up to one year's worth of future support. This account is then used to guarantee the normal flow of monthly child support monies to the recipient parent. Family Code section 4570 provides that if monthly installment thereafter is more than 10 days late, the court shall order the recipient parent paid from that account and that the account be replenished. Obviously, this method is more likely to enforced as against an affluent deadbeat parent.
Department of Child Support Services Enforcement
If the Department of Child Support Services (DCSS) becomes involved, additional enforcement options come into play. DCSS must enforce orders where custodial parents are receiving State Welfare and other forms of governmental assistance. In such cases, they may also enforce spousal support orders.
Even if you are not receiving governmental aid you may assign your collection rights for child support to the Department and they must enforce these orders free of cost to you. However, they are over burdened, they are a bureaucracy, and they are not your personal advocate. There are pros and cons in utilizing their services.
For instance, they are able to intercept tax refunds and can access tax records that are otherwise confidential or that the other party just refuses to produce. They can force banks to give up information regarding cash flow. They can cause the California DMV to suspend a driver's license. They can take away Passports. They can suspend professional licenses. They can seek criminal prosecution for Penal Code failure to support crimes.
DCSS employees are overworked and underpaid. Still, if you lack funds and access to competent legal counsel, DCSS may aid you.
Thurman Arnold |
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| December 20, 2009 |
| GRANDPARENT CUSTODY in California. |
| Posted By Thurman Arnold |
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Grandparent Custody and Visitation
There are a number of important aspects to nonparent custody and visitation which deals with the rights of people who are not biological or legal parents of children to assume day to day responsibility for them, or merely to be in their lives when legal parents object (often the son or daughter in law). This circumstance sometimes occurs within the context of grandparent custody/visitation, or step parent visitation rights. It also may include siblings, other relatives, and foster parents.
Family Code section 3040 creates an order of preference for custody of children which begins with custody to parents. This parental preference is a fundamental policy of California child custody law, and its application is limited only by the best interests of children where parental custody can be demonstrated to be detrimental to a child.
This public policy has unfortunate aspects. Some parents act as if children are property, and believe that they are the only qualified decision makers. Sometimes they cut off older family members from the kids. But many parents are not equipped for the parenting task, and our society treats parenting as if we are all born knowing how to parent well. Grandparents who have already been through the parenting experience tend to be wiser than young parents.
If custody should not be or is not granted to either parent, courts must next grant custody to the person or persons in whose home the child has been living in a "wholesome and stable" environment. 3040(b). If no such person is available then custody may be awareded to any other person deemed by the court to be "suitable and able" to provide adequate and proper care and guidance for the child.
California custody courts have and exercise the "widest discretion" to choose a parenting plan that is in the best interests of the child.
Rules for custody differ from those dealing with visitation. California rules relating to grandparent visitation, step parent visitation, or visitations by others are found beginning at Family Code section 3100(a). "In the discretion of the court, reasonable visitation rights may be granted to any other person having an interest in the welfare of the child." Family Code section 3101 addresses stepparents. Sections 3103 and 3104 deal with different grandparent visitation scenarios.
Nonparent custody is a different animal than nonparent visitation. I will separately FAQ visitation and link it to this page soon. In the meantime, the visitation statutes are found at 3100 et seq.
Grandparent Custody Statutes
The grandparent custody statute is found at California Family Code section 3041.
The rules to qualify for nonparent custody are, appropriately, very difficult to satisfy. I say "appropriately" because we need to be skeptical of the State, or of family outsiders, imposing their will and views upon us. At the same time, we need to listen to our tribal members, so to speak.
Family Code section 3041 is a powerful statute. It creates a presumption in favor of parents objecting to nonparent custody, which a grandparent, for instance, may only overcome by presenting to the Family Court "clear and convincing evidence" that "granting custody to a parent would be detrimental to the child and that granting custody to the nonparent is required to serve the best interest of the child."
"Clear and convincing" evidence means evidence 'so clear as to leave no substantial doubt' or evidence which is 'sufficiently strong to command the unhesitating assent of every reasonable mind'.
There is an extremely valuable limitation to the clear and convincing evidence standard in nonparent custody cases under this statute:
"'detriment to the child' includes the harm of removal from a stable placement of a child with a person who has assumed, on a day-to-day basis, the role of his or her parent, fulfilling both the child's physical needs and the child's psychological needs for care and affection, and who has assumed that role for a substantial period of time."
If a grandparent can prove that they are a person described above, then not only does the "clear and convincing" burden evaporate, but "this finding shall constitute a finding that the custody [with the nonparent] is in the best interest of the child and that parental custody would be detrimental to the child absent a showing by a preponderance of the evidence to the contrary."
Thus, in grandarent contests with parents over custody, they are going to lose unless the grandparent, over a substantial time period (defined by the age of the child), become a de facto parent. This often happens where children are left in the care of a grandparent for many months or more, while the custodial parent is away.
Protect your grandchildren!
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| August 29, 2009 |
| Woman not from this country mistreated by American husband |
| Posted By Thurman Arnold |
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Q. From J:
Hello, I am an Australian woman who married almost 4 years ago an American and he treats me like a housekeeper not as his wife. We are in Phoenix right now, but we were living most of the time in Indian Wells, CA, at his house. He is also threatening me that he is going to take my two daughters away from me. (Mine from a previous relation). He changed since we become a married couple. I really fell alone and he is denying my existence. I have nobody here and he doesn't even let my go visit my parents for a few weeks. What would be a good advice?
Best Regards.
J.
A. Hello J:
That kind of treatment may be a form of domestic violence, and you have my sympathy and concern. Have there been threats or hitting?
When do you return to the desert? I assume you have no ability to travel on your own because you have no money? You may need to look to your family for help.
This gentlemen is not going to take your children away from you, no matter what he says.
In terms of dissolution rights, you are absolutely entitled to have the marriage dissolved, but you are not going to have huge support or property rights – typically support for a short marriage is half its length although it is possible to stall a case to stretch that out in this case, and figure if you have no income you might be entitled to about 35% of what he grosses, all other things being equal.
In terms of property, if nothing was acquired during marriage there is not going to be much to divide, although if there has been a mortgage payment on the Indian Wells residence there might be some reimbursement.
T.W. Arnold
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| August 18, 2009 |
| Can the primary physical custody parent MOVE AWAY to another city even though my children attended 4 schools in 5 years? |
| Posted By Thurman Arnold |
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Q. Can the primary physical custodian move away to another city even though my children attended 4 schools in 5 years?
In the first two hearings, the court ruled that the ex-wife who has a job in Riverside cannot move to Chicago on the basis that my children have been academically unstable. My daughter (13 years of age) in particular has been attending 4 different schools in 5 years and does not wish to be relocated with her mother. Until recently, she went to Chicago with my children for two weeks where she was interviewed for a job and got the offer.
A. The primary custodian cannot move away if you can convince the Riverside judge that the child/children will suffer a detriment from the move, which is independent of the interference with your custodial time share. Is any therapist, mediator, child appointed attorney, or evaluator looking at this case? A 13 year old child is old enough to express a meaningful preference under Family Code section 3042, and you need to get these wishes to the court. The court evidently is uncomfortable with the move. You need to ask one or all of these folks be appointed, and you need to ask that legal and physical custody be awarded to the two of you jointly, or solely to you in the alternative. Please see what I have written here as it may help guide you:
http://www.thurmanarnold.com/Practice-Areas/Relocation-and-Move-Away.aspx
Thurman "Wes" Arnold
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| August 14, 2009 |
| How does my sister get CUSTODY of her GRANDSON? |
| Posted By Thurman Arnold |
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Q. My Neice has a 1 yr old son. She is always gone on drugs and alcohol. Her mother is basically in control of the boy. She cares for him 24/7, takes him to doctors...my niece doesn't seem to care for him. I told my sister in law she needs to get custody of her grandchild ASAP. She is afraid if she calls they will take him away from her. He is in a loving home, has own room and all the care he needs. We would take him but I have 2 boys myself, no room. I know he would be in the "system" until she legally adopts him...what do we do?
Kathy.
Kathy:
There is only one choice in the absence of a pending paternity or other proceeding between the niece and the father: A
guardianship proceeding. The niece's mother has no standing to file any other type of action; however, if another action is pending (again, a dissolution or a paternity action between the bio-parents, for instance) your sister can seek custody pursuant to
Family Code section 3041, which deals with custody to nonparents such as
grandparents, by applying to be joined into those proceedings. Your sister in that case would be presumed to be the more appropriate custodian of the boy IF she can establish a stable placement exists with her and that she has "assumed, on a day-to-day basis, the role of his ... parent, fulfilling both the
child's physical needs and the
child's psychological needs for care and affection, and who has assumed that role for a substantial period of time."
The last portion is critical. If the child's mother gets her act together, or pretends to, its a bit close whether a one year period will satisfy a judge (has the situation been the same since birth?). Also, I would want to know whether the child's mother lives in your sister's house or has just parked the child there. If the former, it will be tougher.
If your sister is in control now and the child is protected, she should consult an attorney immediately so that she makes the right moves in case the time comes for her to take action. Consulting a qualified custody lawyer for advice now is a smart move.
Please see this link to nonparent custody issues. Custody of
grandchildren is a specialized family law practice area.
Thurman Arnold
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| August 04, 2009 |
| My girlfriend is due to have a baby next month. I am not sure if it mine. What do I do? |
| Posted By Thurman W. Arnold, III |
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Q. My girlfriend is having our baby in September, but I don't know if I am the dad. I really care about her but a friend told me that I need to be careful because if I go to the hospital with her, I have to pay support no matter what. Is this true? What is she files a paternity action?
Keith S.
Keith:
California law encourages hospitals to get a signed Voluntary Declaration of Paternity ("VDOP") from the male who appears to be a parent at a time when a mother gives birth. This is something that is presented to
proud fathers at the time of a
child's birth, along with information about
legal obligations, and that they are asked to sign. There may be a lot of guilt and confusion going on at this time. Hopefully there is simply pride.
The public policy is that the State wants to identify biological fathers early on, and to encourage them to step up to the plate both financially and in terms of providing emotional parenting to children. It is also assumed the male who shows up for the birth is most likely the bio dad, and that the parties know it. Obviously, it is not always true and sometimes a man does not turn out to be the actual father. Sometimes he believes he is, and sometimes he is told he is.
Children need their biological parents; this is
critically important. Any bio parent who shirks his responsibility out of financial or emotional selfishness lacks integrity, and their decision has serious consequences on other lives that a true parent will recognize and regret one day, unless they are a sociopath or lack any conscience.
BUT the signing of a VDOP has serious important legal consequences. It is equivalent to a
Judgment of Paternity, which may only be set aside for a limited time. While children deserve parents, whether a man that has sex with a mother before a child is born should be determined based only upon that, and their sense of moral responsibility, and therefore to be adjudged a responsible parent also raises integrity and fairness questions in favor of the alleged parent. California law on this subject means well, and may statistically result in the proper outcome more times than not, in my view innocent men who turn out not to be biological parents have rights too. The law says so too, and the question becomes whether you or not you waive your rights to object in a timely fashion.
So, please understand, if you sign a voluntary declaration of paternity next month, you may be adjudicated the legal father of this child regardless whether you are the bio parent. That has privileges and it has burdens. You will have the privilege (assuming the mother does not challenge you before two years after the child's birth) of being a "legal parent" whatever the DNA turns out to be, including rights to custody, visitation, companionship, etc. You will also have the legal financial burdens which I describe under my
support obligations FAQ's. For a long, long time, and even possibly forever.
Family Code section 7573 establishes the effect of a VDOP.
Section 7575 allows you to rescind that declaration but only if you do so within 60 days after birth of the child. Otherwise, after birth, you have a 2 year window to seek
paternity
DNA testing and an order that you are not, in fact, the
bio-dad. The court has discretion to find you are the de facto parent even if you are not bio-dad, however, so even if DNA is conclusive and you are not otherwise the father - absent another man ready, willing, and able to step up, you may find yourself stuck.
These are weighty matters. In my experience, and in most judge's experiences, woman know who the dad is. Still, there are many reasons why a mother might lie - even including trying to insure that some bad person is never adjudicated the dad. I would never judge your girlfriend and have no opinion on what your status truly is.
So, do what your heart tells you you are the dad, fine. But consider getting DNA testing immediately before you, or the child and you, form any attachments and that way there will never be any question - nor any need to hire me to dispute paternity!
Best of luck and, hopefully, congratulations!
TWA |
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| August 02, 2009 |
| Joint legal and sole physical custody Mom needs help. |
| Posted By Thurman Arnold |
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I am a mom in San Diego County. There are court orders out of El Cajon for joint legal custody and sole physical to me. The old orders said I could move anywhere within San Diego County. I just changed our son's school to north county San Diego. I want to remarry, and have been living with my fiance for 4 years. I believe the
schools are better here. Now our son's father is trying to force me to keep our son in the old school south of here, or to take custody. He says the school our son was in is better. I would have to drive 70 miles for school drop off and pickup.
I have no money for attorney fees because my last lawyer had only a year's experience, and she upset the judge and now I am out $10,000. We have a hearing in 3 days. Please help.
Mellissa
Mellisa:
I am not sure whether you filed an Income and Expense Declaration before now but you might be prepared to submit one to the Court on the issue of attorney fees at this upcoming hearing:
Attorney Fees Question/Assuming There Are Any Further Hearings
While attorneys fees should be your second argument, assuming that any further hearings are set or you get the sense things are not going well, you do need to ask for an Order for the $5,000 in attorney fees – even if the issue was not raised in your moving papers, you are still entitled to make this request pursuant to
Family Code [FC] section 2031(2)(b)(1) for the first time on Thursday. That section states ‘an order for fees may be made without notice in open court … at the time of the hearing.’ Court has 15 days to rule. If it states in will rule later, ask that both parties be ordered to submit
FL-150 I and E statements within 7 days.
You are requesting attorney's fees because the issues involved are some of the most complex in this area of the law (parent relocation), and you are entitled to be on a parity with Mr. Tr xxx, who has been able to retain competent counsel.
Specifically, tell the Court your request is also made under authority of Alan T.S., Jr. (4/2/09) 172 Cal.App.4
th 238 and
In re Marriage of Keech (1999) 75 Cal.App.4
th 860. Tell the Court that you are in pro per but do not want to be, but that obligation of supporting the child from this marriage plus the financial burden of your other handicapped child, makes it impossible for you to obtain legal representation without an order that Mr. Txxxx pay these fees.
Move-Away Situation
1)
Establish that the final, current order, is for joint legal and sole physical custody to you. Mr. Txxxx rights are for visitation only, but not custody, absent a modification of the current orders upon a showing by him of a material change of circumstances. Your move and the child’s new school is not presumptively, without more, a sufficient change of circumstances to warrant a change of custody even assuming he asked for it (I don’t know if he has).
2)
As the parent entitled to the day to day supervisory control of the child per FC section 3007 (defines sole custody), you had a
presumptive right to relocate. This is the same right codified in
FC section 7501. You have custody; dad has visitation rights. (Btw, his visitation rights are not being negatively impacted by the move, by his own admission, since his objection only involves relative school ratings).
3)
As to the joint legal custody label, this only grants each of you the rights under FC section 3003 (decisions regarding health, education and welfare) during your respective custody and visitation times. FC section 3083. It is does not obligate you and he to agree on schooling absent a court order saying you had to first, per 3083, and it must be specific and mention “schooling” (I assume this is not the case).
4) Even though you were not required to do it, you gave dad notice per
FC section 3024 that you were moving north and changing the child’s schooling. F’s atty intimidated you into filing a motion for permission to make the move, when they probably were the one’s obligated to file a motion to restrain the change, and so you have acted in good faith. This is particularly true given the court order from (the ealier date) stating you can relocate anywhere within San Diego County.
5)
It is very important if their responsive declaration did not check the change of custody box, and if their paperwork only asks to restrict the change in schools – you need to be sure you are right about this before making the argument - BUT if they are not seeking a modification of custody, then you have the right to move [7501] and change schools [3003/3083] and there should be no need for any further hearings and your application must be granted.
6)
Next, ONLY IF THEY’HE REQUESTED A CHANGE OF CUSTODY, then the next analysis is: That this is not a de facto joint parenting agreement. This not a
Burgess footnote 12 case (which requires a “
de novo” best interests of the child hearing only where there is true parenting agreement). Here the timeshare numbers become important – you want him as low as reasonably possible without sounding incredible. This is a straight Burgess situation, and therefore you have the presumptive right to move and you do not need to show that the your move was “necessary” or even in good faith, except with the added benefit to you that Burgess involved
temporary orders and so the court had to do a best interest of the child analysis, while your case involves “permanent” orders and so that is not a ground for an evidentiary hearing (best interests was previously decided in your favor and the question will be not be reviewed again absent Dad showing a change of circumstances).
7) Changing schools is not an adequate CoC as recently held by the California Supreme Court in Brown and Yana (2006) 37 Cal..4th 947. Here, like you, a parent with sole physical custody sought to move a much greater distance from the dad – Las Vegas. Dad’s objection was that the schools in LV were inferior. He wanted an evidentiary hearing before the move would be allowed, and he sought a change of custody to himself if
Mom moved anyway. The trial court correctly refused to allow an evidentiary hearing because the Father had failed to allege sufficient facts showing a detriment to the child by simply claiming the relative merits of schools. Courts won’t step into that qualitative battle. Instead, F needs to show that you are attempting to frustrate contact, which clearly is not the case, or some other “detriment” in his responsive declaration. His failure to do so means he is not entitled to an evidentiary hearing.
8)
Since he is not entitled to an evidentiary hearing, even though a mediation is appropriate in the next month, it would be improper for this court to issue any orders that restrain your son’s ability to start school on 8/20/09 as planned.
9)
Father has failed to meet his burden.You need attorney fees to retain competent counsel for any further hearings.
10) Finally, under FC section 3044 there is a rebuttable presumption that dad is not a fit person to be a joint custodial parent because of the DV orders.
Best of luck on this. If you get a court order for attorney fees, hire someone!
Thurman Arnold, CFLS
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