Q.    What is meant by the concept "redefining the expectations surrounding divorce"?

A.  We all have an amazing ability to rewrite history. We often view the circumstances of our marriage quite differently in hindsight from how they originally seemed, and it is natural that our minds invent stories about the other party that color how we approach divorce. But what if you could choose what your divorce and its aftermath might look like? How would you hope to view all 'those wasted years' today, tomorrow, next week, next year, in 10 years, or as you reflect upon your life as you prepare for your own inevitable exit?

We rarely consider these questions with balanced interest. Instead, our minds become stuck on stories that tend to cause our experience in reality to replicate the attitudes in our heads. These stories often just aren't true, or are quite incomplete. This is mindlessness in practice, and it is our default condition.

As with most questions, it is to be expected that we will formulate our answers from the core of our own interests.

If you could set aside your fear and anger, how might you like your divorce to feel for you and for your spouse?

Mindfulness is a great teacher if we can listen, and it may offer a framework for understanding why we become conflicted. It teaches us to pay attention to the thoughts and attitudes that arise within us in order to test whether they are true - and not to judge or suppress our "answers". It can be illuminating to notice how wounded answers operate to control the course of our lives.

Our views about what is happening to us are always linked to how our self-centered "me" feels. This egoic personality is sometimes called the "Little Me". Our worse fantasies, most selfish or destructive thoughts, and our day to day self centeredness all derive from a sense of a wounded Little Me.

The Little Me is our egoic conditioning. Recognizing the "Little Me" for what it is is an amazing accomplishment. It opens the door to recognizing something infinitely larger - that which notices the Little Me. Spiritual philosphers call this the "Inner Guru." Our highest aspirations, and our most transcendent moments, resonate within and are observed and recognized by our Inner Guru. We are all familiar with both characters, whatever we name them.

"Little Me" is the character that we think we are. It is the filter that judges our selves and everyone else, the one with the committe and all its opinions. It shifts and inverts from moment to moment. Little Me wants above all to be entertained, and it attaches to material things and romantic imagery. It is the part of you that is always in argument with what is happening.

Our Little Me is not awake. Sure, it moves, it bustles around, it can seem quite energetic - hell, it bounces off the walls all the time. But that is not a state of Awakeness. The Little Me might beg to differ, but let it beg. No answer or response will satisfy it anyway. The Little Me is our 2 year old personality structure at an arrested emotional stage of development. It can be quite beguiling like any child, dripping with sweetness and unction one moment and the most terrible tyrant the next. Little Me is a chameleon, and getting rid of the Little Me is like trying to rid yourself of your shadow. Better to know that is not what is going to happen, and if you go to war with your Little Me it is just the Little Me pretending to battle itself.

Your Inner Guru is something quite larger. It is wise enough to be all embracing and all inclusive, and it loves the Little Me with uncompromising compassion. To the Little Me the Inner Guru seems to fly on gossamer wings, and seems tied to some other inaccesible dimension. That perception is not true.

Mindfulness is nothing more than the aliveness of the Inner Guru expressing its aliveness in any given moment. It is allowing the natural spontaneous truth of life to express itself. It seems quite a task to remember that. This sense of difficulty is natural, but it is simply a mistaken apprehension.

So, what might one do?

To find an answer, it is important to consider who or what is asking the question. If the aspect of ourselves that we may call Little Me is asking the question, buckle up.

It is through mindfulness whether as a meditation practice, gentle self-inquiry, or just a gradual flowering of recognition and intention, that we allow the Inner Guru to address the question. 

We might ask the question differently: How would my Inner Guru wish this divorce of mine to feel, to me and all other beings? 

There is a transformative power in this question. Do you notice that when the Little Me drops out of the equation, when "I" am not the central questioner, previously unnoticed possibilities pop into view?

We need to begin somewhere, and a list is as good a place as any. When we connect to a heartfelt place of best intentions, and examine those intentions in a committed manner, certain themes arise that we did not before consciously consider and could not otherwise organize. This allows us to peer deeper than when stuck in the autopilot of trance conditioning, as we often are. It doesn't matter whether you list what you don't want or what you do want, but try listing it from both directions. Pick which ever is easiest for you to begin, and grab a sheet of paper or better yet a journal. Do any of these resonate?

    I don't want to cause pain to my loved ones. 

    I don't want my children to suffer. 

    I don't want to repeat my own parent's experience. 

    I don't want to be angry. 

    I don't want to be scared. 

    I am tired of blame. 

    I am tired of shame. 

    I don't even want to cause pain for myself. 

    I don't want to be stuck. 

    I don't want to be self-centered all the time. 

    I don't want to impose my story of suffering on those around me. 

    I don't want to feel vulnerable all the time. 

    I don't want to feel a victim. 

    I don't want to be sad. 

    I don't want to feel physically unwell. 

    I don't want to react all the time. 

    I don't want to need to apologize because of what I've said or done. 

    I don't want ______

Do this exercise with gentle humor and patient kindness and understand what is written above may be a long list for you, or maybe a short list. The key is keep listing until you've exhausted the thoughts and feelings that arise and wish to express themselves. You can also run another sheet at the same time, or wait until you are finished with your first one, but however you approach the list, each item will suggest its opposite.

    I want to love. 

    I want to be loved. 

    I want peace. 

    I want to be a positive force. 

    I want to be awake. 

    I want to be mindful. 

    I want to forgive. 

    I want to be forgiven. 

    I want to get on with my life.

    I want _______. 

Now, when you are done with both lists, ask yourself this question: Is the best of what I want for myself, the same as what I want for all others? Is the best of what I want, what I want for my divorce? Is it what I want for my spouse or partner? Is is possible that they would want the same things for themselves and for me? And even if they don't want the same things for me, does that matter - for me?

Finally, write down what resonated for you in making these lists. Entitle it "Mission Statement" or something else. And consider making a prayer, or whatever you wish to call it, that these goals remain your highest intention and that you may remind mindful of them, in pursuing them.

Then, congratulate yourself. You have just examined more than most people ever consider! You have glimpsed deep mindfulness, and have a sense what it looks like and where to access it. You have expressed an intention to be present and well, and so begun a journey to healing. You have realized that just because you have a story of who did what to whom, that doesn't make the story true - indeed, you now have a reason to be immediately suspicious of such stories.

And you have arrived at the door to a way of being that may guide and carry you safely through the journey, all the way home.

Rich v. Thatcher (2011) 200 Cal.App.4th 1176 

"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!

Hoag v. Diedjomahor (October 17, 2011), E050935

The Facts

The Law Concerning Grandparent Visitation

Parental Relocations and Move-Away

In response to a recent article I posted about the case of F.T. vs. L.J., the mother of the Mother in Mark T. vs. Jaime Z. submitted a comment about a new reversal of a case involving Judge Lisa C. Schall, in San Diego, on this Blog - for which I thanked her. I am grateful that family law litigants in these published appeals are increasingly airing their side of the experience here, and I invite you to as well!

The decision in her daughter's case was published on Friday, last week, so I now understand what the maternal grandmother, "Shelly," was referencing.

My sense is that appellate courts are expecting more out of trial judges, like never before, and lawyers too, to be sure, and therapists and court services personnel and litigants themselves! An interesting footnote is that the father's attorneys in this case were certified family law specialists, and (presumably) local San Diego heavyweights, and the mother represented herself and yet succeeded "against all odds." Is this an Elkins Aftermath, leveling the playing field for unrepresented parties against experienced adversaries?

Mark T. and Jamie Z. (2011) 194 Cal.App.4th 1115

Judge Lisa C. Schall doesn't like move-aways, it appears. These applications challenge the non-moving parent and can negatively impact a child's access to that parent, and disrupt parent-child bonding, if a holistic parenting plan under the move-away regime is not developed. 

Judge Schall bears the indignity of being reversed twice now in less than 30 days in a reported appellate decision - quite a scolding. Family law is damned tough for judicial officers, who are doing their best to protect children and weigh in consistently with the cutting edge policies of current mental health science as well as their in-house (FCS) advisors. The problem at present is that the opinions of MHP's (mental health providers), and the wisdom of the reviewing courts, are in conflict. The science of move-away as it affects families from the MHP perspective is still developing, and it collides with certain cherished assumptions the law makes about the rights of Americans, and specifically parents in California under our current statutory scheme ( see Family Code section 7501 and the Burgess case) to move freely. 

In both cases Judge Schall accepted (mostly) the independent opinions of outside, court-appointed, mental health forensics and ignored the opinions of the Family Court Services mediator - here the very same Lynne Waldman who made recommendations in the F.T. case. FCS mediator Waldman's belief was that Jamie's move away request should be granted, noting that Jamie had been L.'s primary caretaker since his birth, that Jamie had been unable to find a job in San Diego and was "living in poverty," and that Jamie appeared "to have a clear plan for the move."

Judge Schall now has two strikes against her for using judicial body language to create a result that she felt was fair and appropriate, and her findings on the record illustrate her dilemma. I'm reminded of my early youth playing pool (not so much) and hoping if I twisted my body hard enough, the ball would fall in the pocket. Most of us are doing the best we can. Trial judges, however, have a script they must follow.

In effect, Judge Schall's mistake was to refuse to permit a move-away by a Mom with a 22 month old child who had indeed been the child's "primary caretaker since birth." By effectively coercing Mom not to move by denying her move-away request, and by ignoring the question of "in whose custody" the child's best interests were served" or what arrangement should be imposed were Mom to move, Judge Schall committed reversible error. The justices ruled:

"The court must decide de novo what physical custody arrangement would be in the child's best interests, assuming that the requesting parent will relocate ." Therapist Dr. Lori Love (we can't invent this name stuff) was appointed to evaluate the family for the Court and opined that "[t]his examiner understands the importance of having extended family around for support however this cannot be justified as being in [L.'s] best interest[s] when it means removing him from a loving and capable father. Jamie stated that she did not have an active father in her life and very much wants that to happen for [L.] It would be virtually impossible for Mark to be an active father from across the country." Dr. Love urged the child was too young for the move and went on to recommend that Mom not "be permitted to move out of the County of San Diego. At the same time, this forensic therapist was unwilling to recommend a primary change in custody and assumed that the mother would in fact remain the primary caretaker in San Diego county. She made no recommendations about what custodial arrangement should become effective when or if the Mother moved.

The appellate justices ruled: "Where, as here, a parent who shares joint custody of a minor makes a request to relocate the child in the context of an initial custody determination, the trial court must decide de novo what physical custody arrangement would be in the child's best interests. In making its custody determination, the court must proceed on the assumption that the parent who is making the request will relocate his or her own residence, regardless of whether the court grants or denies the request. In this case, the court erroneously failed to conduct its best interests analysis based on the presumption that Jamie would be relocating to Minnesota."

The trial court adopted the recommendations of Dr. Love, even though Dr. Love failed to address what should happen if and when Jamie relocates out of state. "The very issue that Dr. Love was supposed to address is what parenting plan would be in L.'s best interests, given that Jamie intended to move to Minnesota .... The court misapplied the law in adopting Dr. Love's recommendations, because in making those recommendations, Dr. Love incorrectly assumed that preserving the status quo parenting arrangement was an option, even in the face of Jamie's expressed intent to move...."
 
At trial the Father's attorney asked Mother whether she would move if the court were to deny her request to relocate, and Mom's response showed she was tortured by the question. The appellate court ruled that this question by counsel was improper - courts cannot consider whether the primary parent might alter their plan of relocate depending upon how the court rules. As a trial lawyer this is interesting to me, because this question is often used to telegraph a message to the Court that implies it can deny the move because the moving parent evidently doesn't want to move 'badly enough.'

Apparently the trial court suspected Mother's motives for moving might include frustrating Father's access, but the court did not actually make such findings. "The court's comments regarding Jamie's reasons for moving to Minnesota appear to constitute second-guessing as to the wisdom of Jamie's decision to move (i.e., questioning the "necessity" of the relocation), as opposed to a finding that her decision to move was made 'simply to frustrate the noncustodial parent's contact with the minor child.'" There is no requirement that a parent who has the right to custody of a child establish the necessity of a proposed move. "[E]ven where the court finds that a move away request is being made in bad faith, the court must view this finding as only one potential factor in deciding whether to allow the child's residence to be moved; it does not permit the court to deny the move away request on the presumption that in denying the request, the court can assure that the requesting parent will not in fact move, and that the court can thereby maintain the status quo parenting arrangement. That one parent may have been motivated, in part, to relocate the child's residence by a desire to lessen the child's contact with the other parent does not mean that the court should apply any standard other than what would be in the best interests of the child."

The Bottom Line

Marriage of Duris & Urbany

Be Careful What You Ask For,
and Consider Asking for Something Different

Overcoming PARENTING CONFLICTS with OurFamilyWizard

Visitation and parenting exchange disputes often occur simply because of confusion or poor communication skills between parents, but they can be deeply embarrassing and distressing for children and a source of continuing anxiety and reactivity on the part of parents.  Sometimes these disputes can reflect a pattern of parental alienation. They can cost divorcing parents needless expense when they feel impelled to report these frustrations to their attorneys, taking time off from work battling about who really said what and when in court, and where they feel forced to engage each other within the legal system.   This wastes valuable judicial resources with a court process that tends to perpetuate conflict rather than ending it.

As a custody, visitation, and move-away lawyer I commonly receive complaints from my clients - and sometimes allegations about them - concerning failed visitation exchanges, holiday plans, or unseemly conduct between family court litigants.  Often these complaints are evidenced by texting and emails, but usually they are reported to me as my client's memories of angry telephone calls back and forth.   Either way, it is difficult for me to know and prove what was really said and in what order, or to sensibly provide proof to opposing counsel, family judges, or to court mediators and evaluating therapists.  Even where a text log can be created or downloaded, or where emails exist, it is not only time consuming to put them into a declaration or letter form but the fact is that nobody who is umpiring such conflicts wants to read them all.  Family Court judges are overburdened and don't have the time.   If a non-judicial professional spends the time to review them and reports back to the Court, this probably means they are being paid by you or the other party to do so.  Email communications are one of the more unwieldy forms of evidentiary records to wade through, since what occurred is contained in email threads that appear in reverse order in the form of replies.  

Moreover, in my experience, people having highly charged parenting conflicts typically write texts and emails that range from being merely improvident to outrageous.  Often these folks are writing with the expectation someone will read and buy into their position later, and at other times they just say something provocative or mean and hit 'send' before they can be mindful of what they are doing and how it might be interpreted later.  Or how the negativity trickles down to their children.

This is a real problem for families, and it is financially and emotionally expensive.  

Many Courts particularly in Los Angeles and Orange counties California, have ordered high-conflict parents to enroll with www.OurFamilyWizard.com with some very positive results in terms of dialing down the hostilities between them and so reducing trips to court.   These include a significant decline in these cases finding their way back to court.  This only benefits children and the parents themselves.