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Recent Posts in Custody Modifications 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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| September 11, 2011 |
| DEVIATING From "Guideline" (Presumptively Correct) CHILD SUPPORT in HIGH EARNER Cases |
| Posted By Thurman Arnold, CFLS |
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Special Circumstances in Child Support Cases
Involving an Extraordinarily High EarnerActor Jon Cryer, one of the stars of the series "Two and a Half Men", was recently rebuffed by the Second Appellate District in his attempt to avoid ongoing and relatively meagre child support obligations to his former Wife ("Sarah") after Los Angeles County removed the party's child from her custody and initiated dependency proceedings. He was also ordered to pay significant fees to Sarah's attorneys for her expenses in defending the action. In a tightly reasoned series of rulings, Superior Court Judge Amy Pellman correctly navigated the California Family Code provisions relating to "presumptively correct" child support without the aid of reliable earlier precedent and resisted taking a reactive stance in response to Sarah's difficulties - or favoring Mr. Cryer unduly - by keeping her eye on maintaining financial equilibrium for both parties, and most importantly for the sake of the involved minor child. She was upheld in all respects on appeal and we now have some important new judicial pronouncements to guide us in apply
Family Code section 4053 and
FC section 4057 that relate to "special circumstances" and deviating from "guideline support."
I really think this case is notable as an illustration of how a forward thinking and thorough jurist - Judge Pellman - can see beyond the difficulties that people sometimes encounter in their parenting lives in an effort to maintain equanimity for the family triad.
IRMO Cryer (8/29/11) 198 Cal.App.4th 1039
Jon and Sarah were married, producing a son together, and later divorced. Sarah subsequently had a second child by a different marriage, which also ended. Although Mom had primary physical custody of the child with Jon for which she received "substantial" child support of $10,000 each month and a 65 % "timeshare", she began to suffer some difficulties that first resulted in Jon's ex parte application to modify the prior agreed upon orders to sole custody in his favor in May, 2009. Jon alleged that she had left his child unsupervised. The family law court denied that ex parte request but admonished Sarah not to leave her children unsupervised. Later that same month CPS became involved when her younger child suffered an injury at Sarah's home. A dependency proceeding was filed against her by the Department of Children and Family Services, which resulted in each child being placed with their respective fathers. There is no commentary in the decision about whether the fathers are working together to preserve and protect the sibling bonding.
When a dependency proceeding is filed by child protective services there are strict rules governing procedure that are generally designed to move the proceeding quickly towards determining whether jurisdiction properly exists, in order to ensure that the public policy favoring reunification with the problem parent is honored. However, Sarah's dependency proceeding moved extraordinarily slowly. In the meantime Jon battled her in Judge Pellman's courtroom. In addition, she was also likely defending against the claims of her second husband over custody of the younger child. We don't know what the exact alleged facts are over the circumstances giving rise to the dependency proceeding, but it is obvious that Sarah had her hands full with "two and a half men" - two former husbands and a young child.
Once his son was placed into his custody, Jon filed an application to modify the $10,000 in monthly support to zero since, after all, the child had temporarily been placed with him. Did he hope this might be the killing stroke (coup de grace) that would bring Mom to her knees, forever? There are litigants who feel that if they seize upon the other party's moment of weakness they will remain in power for the remainder of a child's minority, and a lawyer might reasonably advise this tactic under the aegis of "zealous representation". Jon's extreme request was his first mistake. When people want it all they are sometimes sorely disappointed.
Mother argued that $10,000/month was no burden to Jon because that amount was only 3 percent of his income at the time. She urged that the outcome of the dependency proceeding was uncertain, temporary, and subject to change and that without a steady child support order she would have no money to pay her mortgage, car payments, or any other bills. She pointed out that such a result could never serve the child's best interests.
This is where an outstanding trial judge makes all the difference, because superficially Jon's contentions were reasonable.
Prior to the hearing the parties exchanged income and expense declarations. Jon's "stated income" was alleged as $327,000 monthly when averaged over three years, he held $7 million in liquid assets, and monthly expenses of $29,000. By the way, if people want to go public about their affairs, litigation is the right choice. Sarah had "negligible" assets and overhead expenses of $10,000 monthly, not including attorney fees.
A "guideline" child support order using the "Dissomaster" based upon mother's reduced timeshare would have resulted in her favor of a modified amount of $1,141/month. Sarah argued she would lose everything if that was her only income.
The matter was heard on November 2, 2009. Judge Pellman declined to reduce Jon's child support to zero, even though Sarah had little custodial time under the pending dependency court orders, but she did reduce it significantly from $10,000 to $8,000 monthly. The trial court noted that since Sarah's custody arrangement could be modified by the dependency court in short order (which was expected to be the situation) and DCFS could liberalize Mom's visitation schedule at any time, and therefore found that the minor's best interest was best served if the boy could return to the same home that he had shared with his mother prior to the proceedings, and further that it was important for both the mother and child that she have the ability to have regular and consistent contact with him. She ordered the father to pay $20,000 in attorney fees to Sarah's attorneys.
Jon was not satisfied with this ruling. He immediately filed a motion for reconsideration together with a separate Order to Show Cause seeking an accounting of how all child support funds he'd paid had been used, alternatively requesting that these funds be placed into a trust account for the 'direct benefit' of his son. Evidently he believed that paying a mortgage, and having a car, only benefited Sarah and not the boy. Judge Pellman denied his requests (after making some technical corrections to her orders) and awarded that Sarah receive another $5,000 in attorney fees, which was likely only a portion of what she actually incurred.
Three months later Jon filed supplemental authorities prior to a review hearing that had been set, arguing that the dependency proceedings had still not be resolved and that Sarah's visitations had not been "liberalized" as the Court had anticipated. Further, he argued that Sarah wasn't looking for a job and that she was the one benefitting from the child support payments and therefore the Court should stay child support until such time as Sarah's timeshare was increased by the dependency court. This would have had the effect of "starving" Sarah out and really speaks volumes to the level of resentment that Jon was exhibiting - made ever more poignant for us by reflecting upon the degree of privilege from the extraordinary earnings that he enjoys. Again, a trial and appellate court would be reasonable in questioning his motives based upon all the economic circumstances, and in protecting the disadvantaged party consistent with the law. Which is exactly what happened in both courts. As a further expression of his overreaching (or that of his lawyers), Jon filed a new income and expense showing $474,861 in monthly earnings that averaged his income over the prior three years. While it is true that there is no fixed rule in what span of time courts review in determining income, still they are required to look to relevant evidence. Often times the prior 12 months provides this yardstick.
Sarah's counsel rejoined that Jon's income over the past 12 months was $791,666/month. Sarah was apparently the tick on the back of the elephant. In addition, Sarah's visitation had been liberalized to include home visits. Sarah argued it would be nice for the boy to have a home where these visitations could occur. Also, she had monthly expenses of $13,271 and no income beyond CS.
On May 10, 2010, Judge Pellman ruled that no changed circumstances existed from the time of her earlier orders to modify support further. There still was no "exit order" from the dependency court. The proceedings had not resolved. Moreover, the finding was unavoidable that Sarah would lose her home without support monies to pay the mortgage. The judge ordered Jon to pay another $40,000 in fees to Sarah's attorney.
Family Code section 4057(b) is an important provision that cuts both ways in terms of adhering to or departing from "guideline" support. That section states that the amount of child support that is presumed under our state-wide formula may be rebutted by showing that the amounts otherwise rendered by the guideline "would be unjust or inappropriate in [a] particular case." Increasingly attorneys for prime time parents are directing trial Courts to this section to support their claims that when custody is cut-off with the other parent, or severely restricted, that support should be zeroed out. For instance, the argument is frequently made, and sometimes accepted, that where the low earner parent has a
de minimis timeshare that would otherwise result in some child support to them based upon the parties' respective incomes, that the
de minimis timeshare parent should not receive child support because the prime time parent bears the substantial bulk of the financial burden. The problem with this analysis is that child related expenses for living accommodations are a fixed expense.
Marriage of Cryer implicitly recognizes this reality, and Judge Pellman apprehended the paradox clearly.
Jon apparently made this argument - he told the appellate court that Judge Pellman had abused her discretion because "he had nearly total responsibility for the child." Indeed, Justice Boren agreed that "under normal circumstances, such a deviation from guideline support would be an abuse of discretion." But given Jon's income, these were not normal circumstances but not necessarily for the reasons that Jon urged. "The trial court was faced with a pending and uncertain dependency case over which it had no control...." "The trial court also faced the strong possibility that visitation and custody arrangements could change quickly,..." "Furthermore, while one parent enjoyed an extraordinarily high income and could easily afford to pay monthlyl child support of $8,000 or $10,000, the other parent had essentially no income, and would be unable to maintain a household of the sort to which the child was accustomed absent substantial support." Therefore, Judge Pellman did not abuse her discretion.
The Court noted that although the child support formula, "a complicated algebraic" equation, is often referred to as "guideline" the term is "misleading. Instead, the formula yields "presumptively correct" numbers in all cases which may be rebutted by the particular circumstances of the parties and of the children. In this case the guideline presumption was rebutted consistent with the state policies that:
- Placing the interests of child has been legislatively declared to be the state's top priorty
- A "parent's first and principal obligation is to support his or her minor children according to the parent's circumstances and station in life
- Each parent should pay for the support of children according to his or her ability
- "Children should share in the standard of living of both parents and child support may therefore appropriately improve the standard of living of the custodial household to improve the lives of the children."
Here "an order that resulted in [the] child's spending time with his father in an opulent abode and time with his mother in a low-rent apartment would have conflicted with principles of Family Code section 4053."
Moreover, while the father "may have found the situation unfair, the primary focus must remain on the child's wellbeing, not the parents' feelings" about money. The revised $8,000/month child support order was only from 1 to 2 1/2 percent of Jon's mnothly income. Judge Pellman's order therefore also served to minimize the harm that might inure to the parties' son had each parent merely supplying living conditions based upon their respective incomes, without help from the other. Finally, the appellate court dismissed Jon's argument that he should not be obligated to pay $8,000 month where the mother's Income and Expense declaration showed that she only paid $4,999 in monthly housing relating expenses. The trial Court had discretion to look the broad view of the parties circumstances and was not required to fix a number based upon any one element of their total expense package.
Irmo Cryer is also an important case for ordering attorney's fees to financially weaker parties. Jon argued that the initial award of $20,000 was more than the mother's attorney had asked for in her moving declaration, but Mom's attorney made an oral request for a greater suma that the hearing based upon fees that had increased since the moving declaration had been filed, and her papers had noted that further fees would be incurred. Next Jon argued that he had won a motion for reconsideration that made him a prevailing party, and that he should not therefore been required to pay Mom's fees. Not so said the appellate court, "[b]ecause of the importance of ensuring that the parties both have the ability to present their cases effectively, attorney fees may be awarded against a prevailing party in family law proceedings."
I have had the great good fortune to have met Judge Pellman, and applaud her efforts and her well reasoned trial court decision!
TWA |
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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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| April 08, 2011 |
| I Have My Ex-Husband's EMAIL PASSWORD and Found Email That Proves His INABILITY TO PARENT - How Do I Present This to the Family Court? |
| Posted By Thurman Arnold, C.F.L.S. |
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Q. My ex-husband and I are involved in a bitter custody dispute. I recently realized he had not changed his Email password, and so I was able to enter his account and review his emails. I found evidence that proves he is using drugs, and I think this puts my son at grave risk. How should I best present this evidence to the Family Law Judge?
A. In my opinion you don't, and I'd advise you to stop snooping his emails no matter how important you think it is for the safety of your child. Beyond the fact that you expose yourself to a civil lawsuit for invasion of the Father's privacy, and have violated various State and Federal laws, you run a couple of other serious risks that may adversely affect the custody outcome you seek - these far outweigh whatever advantage you think the information gives you.
Most importantly as it relates to custody under California law, invading someone's email account and sharing what you find quite arguably constitutes a form of domestic violence. This was established two years ago in a case entitled Marriage of Nadkarni (2009) 173 Cal.App.4th 1483. If permanent restraining orders are issued in a domestic violence action that your ex could choose to file against you when he learned what you'd done (i.e., when you submitted the emails as exhibits filed with the court), a smothering presumption arises against you under
Family Code section 3044 "that an award of sole or joint physical or legal custody of a child to a person who has perpetrated domestic violence is detrimental to the best interest of the child, pursuant to Section 3011." In other words, if the family court granted orders against you as a result of this conduct, you may end up assuring you lose your case and hence the ability to safeguard the very persons whom you hope to protect.
In Nadkarni the Husband gained access to the wife's email account and attached copies of her private email between she and others (including her attorney) to show that Mother had lied to Child Protective Services, and that she'd told the children to lie to him as well - and more. Husband argued he had "no choice" but to use these emails because his "kid's safety was at stake" and that he'd accessed the accounts "in sheer panic and desperation" to protect the children. Sound familiar?
Upon discovering this Wife immediately sought temporary restraining orders pursuant to Family Code section 6320. That section permits courts to issue DV orders to stop behavior that amounts to "disturbing the peace." She alleged that she had never authorized Husband to use the account or given him the password. She also claimed that Husband was using the information to stalk her, and that his activities made her fearful because he'd beaten her badly during the marriage - and was criminally convicted of same.
While a temporary order was issued upon her application, at the hearing for permanent restraining orders her application was denied. The trial court felt that this behavior did not rise to the level of what should be restrained under the Domestic Violence Prevention Act.
Wife appealed and the trial court's interpretation of FC §6320 was reversed. The appellate court ruled "we believe that the Legislature intended that the DVPA be broadly construed in order to accomplish the purpose of the DVPA. Therefore, the plain meaning of the phrase 'disturbing the peace' in section 6320 may include, as abuse within the meaning of the DVPA, a former husband’s alleged conduct in destroying the mental or emotional calm of his former wife by accessing, reading and publicly disclosing her confidential emails." The case was ordered sent back to the trial court to hold a full hearing on the wife's claims. I imagine she won that hearing.
Family law disputants are often acting in "sheer panic" but the ends do not justify the means. You risk blowing yourself up if you attempt to use the material you obtained in any way. Destroy it. I suppose we could come up with exceptions or justifications under extreme facts, where for instance a conspiracy to commit a murder or some other major crime was uncovered, that might trump the prohibition against this type of behavior. But the value of what you have here is insufficient to justify your actions, and the evidence would likely not be admitted anyway over an objection. Even if your husband does not press the advantage you potentially give him by seeking DV orders against you, most judges (and hopefully a lawyer advising you) will question your decision-making abilities once you expose what you did. A lawyer would be ill-advised to submit these emails to the court on your behalf, not merely tarnishing his own reputation but possibly exposing himself to civil liability as well.
Resist your panic, and resist your curiosity. These disputes dial people into temporary insanity and reactivity, and often the result winds up bringing about the very thing they most fear (this dad gaining primary physical custody and reducing your custodial timeshare). There are better ways to skin this cat.
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 20, 2010 |
| 2011 REVISIONS to the California FAMILY CODE: "CHILD CUSTODY RECOMMENDING COUNSELORS" |
| Posted By Thurman Arnold, CFLS |
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Family Code section 3183, which governs custody mediators who are required by Family Code section 3160 to be offered by all California Superior Courts, has been revised effective 1/1/11 to mandate that any recommendations be "first provided [to] the parties and their attorneys, including counsel for any minor children, ... in writing in advance of the hearing." The court is required to confirm that this has occurred before commencing with a custody for visitation hearing. It also changes and presumably unifies what courts and litigants call these mediators, as quoted below.
Old section 3183 relied solely on local court rules to determine when and to whom the recommendation would be delivered, and new 3183 retains the same language. This is the new portion of the statute:
"... if the mediator has first provided the parties and their attorneys, including counsel for any minor children, with the recommendations in writing in advance of the hearing. The court shall make an inquiry at the hearing as to whether the parties and their attorneys have received the recommendations in writing. If the mediator is authorized to submit a recommendation to the court pursuant to this subdivision, the mediation and recommendation process shall be referred to as 'child custody recommending counseling' and the mediator shall be referred to as a 'child custody recommending counselor.' Mediators who make those recommendations are considered mediators for purposes of Chapter 11 (commencing with Section 3160), and shall be subject to all requirements for mediators for all purposes under this code and the California Rules of Court. On and after January 1, 2012, all court communications and information regarding the child custody recommending counseling process shall reflect the change in the name of the process and the name of the providers."
While this creates uniformity among all California Family Courts in requiring the parties and their lawyers receive the report "in advance" of the hearing, it begs the question of "when." The day of? The day before? Ten days prior? Evidently at the moment this is still left to local rule or a judge by judge policy since the question is left to the discretion of the judge.
Many smaller courts are forced to rely on outside counselors to provide mediation services. This is true in Blythe, for instance, and I believe in Joshua Tree. Larger courts have in-house teams of salaried mediators. I imagine the statute is written to bring the courts with small budgets in line with state-wide practices of giving advance notice of recommendations, and to call all of these workers by the same title.
T.W. Arnold, III |
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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 05, 2010 |
| ATTORNEY FEES In CUSTODY Cases: 2011 Family Code Amendments |
| Posted By Thurman Arnold III, CFLS |
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Along with other changes to the California Family Code brought about by the Elkins Committee's recommendations, Family Code section 3121 has been amended to make its language consistent with revised section 2030. Amended Family Code section 3121 is effective January 1, 2011.
Family Code section 3121 has always been more liberal than other attorney fees provisions in the California Family Code, but in my experience most lawyers, parties, and judges have acted like it did not exist. I have rarely seen an attorney argue for attorney fees under this section, probably because such arguments historically fell on deaf ears. That may be changing.
Section 3121 authorizes attorney fees in certain types of cases that are otherwise not mentioned in §2030, like paternity cases. It applies whenever custody is at issue.
An important difference between section 3121 and Family Code section 2030, besides the fact that 2030 deals with actions generally (dissolution, annulment, and legal separation) while 3121 is aimed at custody proceedings taking place in an OSC (Order to Show Cause) or NOM (Notice of Motion) format, is that attorney fee requests can be made "by an oral motion in open court" either at "the time of the hearing" or at any other time before entry of a judgment against a party whose default has been taken.
In other words, the request can be made without prior notice for the first time when the parties appear in court on a custody related application. However, I have never seen a Court willing to grant such an oral request, although clearly trial courts are directed to consider them. Possibly this will change, and certainly attorneys and parties seeking to get money to hire an attorney should be arguing the Elkins changes to stubborn judges. The likelihood that these judges will be reversed on appeal now for refusing to award fees to needy parties in appropriate cases is vastly improved beginning in 2011.
For more information about the grounds and procedures for seeking attorney fees in family law cases, please try my on-site search engine.
Thurman 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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| September 20, 2010 |
| How Can I Be Sure a Court Will Enforce My AGREEMENT Reached With My Spouse OUT OF COURT? |
| Posted By Thurman Arnold |
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Q. My wife and I have reached some agreements about support and property division in our dissolution proceedings. Neither of us have attorneys. I want to write something up that is enforceable. Is there anything I should know?
A. If a case has already been filed and so is "pending", and whether you have attorneys or not, if you and your wife reach an agreement on any issue outside of court and you want to be sure that she can't back out of it before it is signed by a Judge and becomes an order, it is essential that you make reference to California Code of Civil Procedure section 664.6 in any written agreement you prepare.
The terms of all types of agreements that you reach as an incident to pending family law litigation must be independently approved by a court commissioner or judge. Usually these judicial officers just want to know that both parties are in agreement, and will not substitute their opinions for what you've decided, but not always. Particularly where children are involved, judges have an independent obligation to ensure that a child's best interests are protected. Still, judges will not usually reject your agreements - however, if one side backs out before the agreement becomes an order or a judgment, when children are involved a court may be more inclined to refuse to enter the disputed order than it would be if the issues involved property division, debts, or spousal support.
Often times people reach agreements in the hallway outside the courtroom, and then come into court and tell the judge what their agreement is - once that agreement is 'on the record', most courts are going to enforce it. Those agreements often require, however, some further writing like a stipulation and it when the stipulation is presented days or weeks later that the other party may have changed their mind. You now need to enforce that agreement, possibly by a Motion under CCP 664.6.
The problem also arises when cases get settled away from court, during the lunch break, or when the agreement doesn't get put on the record for any number of reasons. Maybe they won't sign some other document that the signed agreement contemplated or obligated them to comply with.
Any agreement you reach with anyone is a contract if certain conditions are met. Unfortunately, failure to abide by such promises may only give rise to a claim for breach of contract under civil law - which is pretty worthless in family law proceedings because you have to file an independent civil action to enforce them, which takes months or years to resolve.
You want enforceable orders. These are something more than mere verbal or written promises, or contracts that haven't ripened into Orders or Judgments.
C.C.P. section 664.6 is extremely important and useful for enforcing written agreements, because it gives the Court the power to enforce the terms of those the agreements as court orders, and to interpret them later if there is disagreement about what was in fact agreed to.
However, in order for 664.6 to work for you, you need to either reference the statute in the document that is signed or in an oral statement on the record. You don't need to mention the section specifically, but I recommend that the following language should appear in the agreement or court transcript: "The parties request the Court to retain jurisdiction to enforce the terms of the settlement agreement per CCP 664.6" is the optimal language to use.
Thurman Arnold
http://www.DesertDivorceandFamilyLawyer.com
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| May 10, 2010 |
| What does it mean that a judge has ordered a 730 EVALUATION in my custody case? |
| Posted By Thurman Arnold |
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Q. My ex wife and I are fighting over custody of our three children. The judge decided to appoint a psychologist to interview us all. How does this affect me and my case?
A. In high conflict cases where two sides have entrenched and opposing views about what is in the best interests of their children in terms of custody and visitation, California Evidence Code section 730 provides judges the option of appointing an expert witness to investigate the matter and report to the Court. This is often referred to as a forensic evaluation but in California we typically call them "730 evaluations."
What this means for you is that your family is likely in trouble, since these custody "evals" only are necessary where parents are failing to proactively resolve their parenting issues. They can be quite expensive in every way. I describe the process here in part to help encourage you avoid it. Still, there are times when it can lead to a lessening of conflict and it may be inevitable in move away situations.
Forensic evaluations can be used in a number of other settings as well, including valuing businesses or real estate. It is extremely common in move away cases and in fact a strong argument can be made that to allow a parent to relocate with minor children in the absence of such a report (if it is requested) violates the due process rights of the non-moving parent [In re Marriage of McGinnis (1992) 7 Cal.App.4th 473, 9 Cal.Rptr. 2d 182].
In your situation the Court has likely appointed a Psychologist or Marriage and Family Therapist whose work is already known to the Court because that person is on a panel the Court uses, or possibly because one or both lawyers have worked with the expert and either recommended him or her to the Court. Often the parties' lawyers will agree upon this third person.
Reliable evaluators are not hired guns for either side. However, like everyone else they can have their own biases. To the extent that you can, it is always a good idea to get as much information as possible about a potential evaluator before a selection is made. Courts generally don't impose someone on the parties where one of them objects to that person, but in smaller communities there may be fewer options in terms of qualified evaluators.
It can be very difficult for a judge to determine the truth of claims between family law litigants, what their underlying motives are, whether there is some mental health or substance abuse undercurrent, and whether one parent is more likely than the other to foster an ongoing relationship between the other parent and their children. Courts don't have the time or resources to do much more than call balls and strikes based upon witness declarations or live testimony. Therapists and psychologists are able to spend time interviewing parents and sometimes have them complete psychological testing, they meet children, talk to teachers, visiting homes, check with therapists who are seeing family members, and also interview significant others, new spouses, and other children in blended families. A much more reliable picture may emerge than that which comes from the parties' own descriptions of themselves, their children, and the other parent.
These custody evaluations can be quite expensive, typically starting at about $2,500. They seem to average between $4,000 and $6,000, but the costs skyrocket with the number of people other than the parents themselves (often called 'collaterals') whose input is required.
It typically takes at least three months for an expert psychologist or MFT to complete all the necessary interviews and write a detailed report. In my experience the time frame is closer to four months. This report is then submitted to the attorneys and to the Court.
Most courts require this report to be submitted at least 10 days prior to a hearing, so that both sides have ample time to review it. If you are involved in a custody dispute and you or your attorney receive the report late, if you disagree with its recommendations you may want to object that you have not had sufficient time if you want a continuance; otherwise, the Court may adopt the recommendations at that hearing.
In almost all cases where a 730 report has been completed, either side may request that an evidentiary hearing take place with live testimony and the ability to examine and cross-examine witnesses - including the custody evaluator whose recommendations are being considered. Depending upon the urgency of the family's issues and the Court's availability, these hearings may not be set for weeks or months.
In addition, if you feel that the evaluator failed to adequately investigate the case, or did not meet the standards of practice for such evaluations, you may want to consider hiring your own Evidence Code § 733 expert to advise you or your attorney on how to point out the shortcomings to the Court. This can be an expensive, but sometimes useful, way to challenge findings that you do not agree with. The usefulness of 733 evaluators is limited by the fact they do not get to perform a second evaluation (for instance, they rarely meet with the other party), and without conducting full interviews with all relevant persons they may be ethically bound not to render an opinion and certainly their views won't carry the same weight with a judge as the full evaluator. This is not to imply, however, that your children's interests are even your own interests are served by attacking an evaluator's report just because you don't like portions of it.
I will write more on this topic but want to leave you with this thought: Contested custody cases will damage your children, guaranteed. I urge you to consider mediating your custody differences instead, either by using a qualified mediator or a mental health professional.
Attorney T.W. Arnold III
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| April 14, 2010 |
| How Do I Get the Court to Order My Husband to be HAIR FOLLICLE tested? |
| Posted By Thurman Arnold |
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Q. I know my ex-husband uses drugs and I fear for the safety of our children. We are having a custody dispute. Is it possible to have him give a hair follicle sample for drug testing? How do I get a court order for drug testing?
A. It is not possible in California to force another parent or custodian of minor children to take a hair follicle test for drugs or alcohol absent their agreement to do so.
Family Code section 3041.5 is the direct authority for a court's ability to order drug testing. However, it contains an important limitation: If substance abuse testing is ordered by the court, the testing shall be performed in conformance with procedures and standards established by the United States Department of Health and Human Services for drug testing of federal employees. These procedures and standards do not presently include hair follicle testing and so a Court cannot order it over a party's objection. As a practical matter, California Family Courts order urine testing. The effectiveness of urine testing is limited because traces of different substances remain in body for differing amounts of time - traces of drugs remain in hair much longer.
However, hair follicle testing will be ordered where both parties agree or stipulate to it. This is more common that you might expect.
Sometimes this occurs at a court hearing where the Judge turns to each party and says something like 'Mr. Jones, would you be willing to take a hair follicle test: More often the attorney for the accusing party will say something like "your Honor, we are hoping that Mr. Jones will take a hair follicle test so we can put this issue to rest." The Court will turn to Mr. Jones and ask him if he will agree. 7 times out of 10, in my experience, Mr. Jones will say "sure your Honor, I have nothing to hide and she is making this all up."
Why would Mr. Jones agree to do this, when the Court otherwise is powerless to order it? Mr. Jones may not know his legal rights. Mr. Jones may have read on the internet that he can mask his substance abuse and beat the drug testing by using products he can buy on the web or at a health food store. Mr. Jones may have friends who said they beat the test. Mr. Jones may just feel like if he doesn't agree, he looks guilty. Mr. Jones may have recently cut his hair short or shaved his head - which is a good reason to ask the Court order that Mr. Jones not visit a barber until the hair sample is taken (hair samples can be taken from various other body areas). Mr. Jones may be himself in denial and so might lie easily and from habit.
And, Mr. Jones may think that his hair sample will come back clean because he is not "using" or he used so long ago the drug test will be negative - and he may or may not be right on this point. Traces of drugs may remain in the hair for up to six months. Some Valium to help one sleep taken 3 months ago may be forgotten.
Its a really bad idea to agree to hair follicle testing unless you are absolutely convinced there could be no traces of drugs in your body.
If you use drugs or abuse alcohol, you need to tell your attorney the truth of your situation; most attorneys want to help you overcome that problem early on in a case by directing you to recovery resources and help. Custody disputes actually present an opportunity for people to deal with their addictions (the same ones that may have lead to the breakup).
I once had a client who insisted her husband was using cocaine regularly, but she claimed she never used it. In her declaration we set forth much evidence of his continued using in excruciating detail. He admitted to having had used in the past, but said he had stopped a few months before.
At our hearing the Court asked both parents if they would agree to take a hair follicle test. Having adamantly stated under penalty of perjury that she never used, my client agreed and I allowed her to because she had told me (in answer to repeated direct questions to her first) that she never used cocaine - even though the Court would not have otherwise ordered it.
To my amazement her drug test results came back "dirty" for cocaine, as did her husband's. He now appeared to have been truthful, and she obviously had lied under oath. When I asked what she was thinking her answer was "oh, I used it on my birthday three months ago and was sure that that one time would not show up." The facts turned out to be that she knew all about his drug use because she had used alongside him.
The family judge was really unhappy with her. Because she lied to the Court, she lost all advantage in the custody proceedings and the judge viewed her as untrustworthy from that day forward. And so did I. This also adversely affected the amount of child and spousal support she received. Her husband ended up looking like the good guy, although I suspect he continued to use. Hair follicle tests don't indicate the dates of use, but merely that someone used at some time during some period.
If you have been using drugs, don't agree to a hair follicle test unless you are prepared to be completely honest.
It is possible to get a confidential hair follicle test from an independent laboratory before you write a declaration or go to a hearing, and then present your clean test to the judge at that hearing. If you find the test is positive for drugs, you don't need to share it with the Court or anyone else. But in that situation an ethical attorney will not let you make false statements either. You don't need to volunteer certain evidence, but once you make a statement it better be true.
By the way, I will not tolerate lying by my clients in my family law practice. Ethical lawyers will not aid and abet a client in making false or misleading statements.
In my experience there is always a positive solution presented by bad facts when you are truthful. With drug abuse situations, one solution is a commitment to becoming clean and sober. Judges appreciate people telling the truth who are taking steps to overcome these sorts of challenges.
Thurman W. Arnold III
http://www.ThurmanArnold.com
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| April 14, 2010 |
| Will the Court DRUG TEST My Wife? |
| Posted By Thurman Arnold |
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Q. How do I get a Court Order for drug testing my wife? I know she is using and I fear she is a danger to our son.
A. Your argument for drug and alcohol testing of parents or others having custody or visitation with children is in California is found in Family Code section 3041.5. The statute is only five years old, and before it enactment the only practical way to get drug testing was by the other party's agreement.
It is possible to convince a family court that the other parent should be tested for drugs or alcohol where you present sufficient evidence that there "is the habitual, frequent, or continual illegal use of controlled substances or the habitual or continual abuse of alcohol by the parent, legal custodian, person seeking guardianship, or person seeking visitation in a guardianship." FC section 3041.5(a).
This evidence includes but is not limited to proof that the other person has been convicted in the past five years of the illegal use or possession of a controlled substance.
The other important statute you need to cite to the Court is Family Code section 3011(d), which speaks to the requirement in determining what custody and visitation is in the best interests of children courts must consider evidence of the habitual use of controlled substances (non-prescription or otherwise) or alcohol - but first you must submit "independent corroboration".
In my experience what often happens when drug allegations are made is that Family Judges prefer to get the parties to agree to drug testing and only order it when they will not (or when recommended by family court services or a mental health professional). If the parties will not agree, judges may order the testing as long as there is some corroboration that a potential drug issue exists. I am always amazed that people who are using (who are "dirty" as we say) will agree to test when they may not need to because there is insufficient independent proof of the use of drugs.
Please see my blog on hair follicle testing.
TWA
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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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| February 16, 2010 |
| OVERVIEW OF CUSTODY APPLICATIONS AND PROCEDURES in California |
| Posted By Thurman Arnold |
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There are numerous types of cases that may involve custody determinations between parents and even nonparents (although nonparents typically need to be joined into the action since they are not automatically parties to their own child's divorce, for instance). These commonly include divorce proceedings, legal separations, paternity actions, and domestic violence applications. Guardianships involve custody but they are not covered here.
California Courts have jurisdiction to issue initial temporary custody awards, permanent custody awards, and to modify existing orders after a final custody award has been entered.
Whenever custody is on the table, visitation is as well. Typically child support is also at issue, although in order for a court to consider any request the moving party (the party who filed first) sets "the menu" for what the court can consider and make decisions about. The responding party does not set the menu, and must file their own separate application for orders to bring in new matters. It is imperative that a moving party (the party making requests) check the correct boxes on the
FL-310 and the Notice of Motion or OSC cover sheet. The reason for this is to ensure the other party receives 'due process,' meaning that they have fair notice of what the hearing is about and a fair opportunity to respond and to provide all relevant information in opposition.
Otherwise, if only the custody boxes are checked then any given court may refuse to discuss finances. Different judges do it differently, but it is important for you to do it right.
As a practical matter, in order to file for custody orders some underlying action must be filed. This could include a DCSS or other governmental application although you cannot control when and if that is filed.
Once the underlying action is filed, or together with it, a parent seeking orders may file an Order to Show Cause or Notice of Motion. If you represent yourself, you can obtain complete forms packets from your local court clerk. That application must be accompanied by the
FL-310 which tells the Court what it is you want and why you want it.
While you can handwrite the evidence you want to give the court on the FL-310, this is not a good idea. Better to set your information forth on the attachments sheets. Even better to type it out and attach it.
If you are seeking child support (or spousal support) orders, you must also submit a current Income and Expense Declaration which is California Judicial Council form
which is
Form FL-150. It is important that answer all the questions on that form and provide back up so you don't get scolded by a judge or have to return to court another day.
These papers must all be served on the opposing party, in person if this is the first filing and they have not yet responded in the action (notice of ex parte applications can be given orally, but there must be a proper personal services thereafter).
Be sure that you serve all the papers you want the court to consider. Do not expect that you can show up in court with new matters and evidence and just hand them to the judge. Procedural due process requires the other side get everything in time to respond. In addition, many judges will just refuse to consider untimely pleadings or defectively served documents - although, if for reasons beyond you control this happens to you (something new happened) - request a continuance at your first hearing so the other party gets their time to respond.
I address the actual issues regarding temporary custody and ex parte applications, permanent custody, and modification of custody in another blog. I will link back when those articles are done.
In the meantime, use our search engine at the top of every page to locate what you need to know about your family case in an efficient manner.
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| 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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