Share Your Family Law Horror Story?

Thurman Arnold Endorses Superior Court Judge James Cox
For Re-Election in 2012

Advice for Couples in 2012, Including How to Balance Power in Your Marriage! 

It has been my repeated experience that, in anticipation of a divorce action, an unethical or abusive spouse will take strategic steps to hide assets and obfuscate the methods used to hide them. The ramifications to the non-managing spouse can include not only an unfair disbursement of community assets upon resolution of the case, but also manifest into reduced calculations of temporary and permanent spousal support and child support. 

California family law attempts to minimize the potential for financial fraud during the life of a divorce action. For example, it creates rules for mandatory disclosures of assets. It creates fiduciary duties for managing spouses. It creates methods for discovery of financial and asset information (but only in the context of a legal action, after the relationship has broken down). It creates pre-judgment and post-judgment penalties for non-disclosure. 

In a perfect world such legal tools alone would fully prevent the potential for financial dishonestly between separating spouses. But the reality is that the law routinely fails to protect the financial interests of the non-managing spouse in this regard, and the root cause of that failure occurs because non-managing spouses don't take steps to equalize the playing field when it comes to information about family finances during the course of the marriage. Stated another way, individual non-managing spouses are often unable to utilize the tools that the law provides to ensure they receive a just and equitable share of the fruits of the community's efforts during the course of the marriage because they lack the information necessary to have their lawyer fully protect their interests.  Too many non-managing spouses wait until the time of separation to learn about the family finances.  By then, non-managing spouses and their attorney are playing catch up, and not always winning. As such, it is of paramount importance that a non-managing spouse be proactive in learning as much information about the family finances as possible, and do so not only on the eve of a divorce, but also during the entire course of the marriage itself.   In this day and age, knowledge is the coin of the realm.

Economists recognize that one source of market failure (i.e. inefficient allocation of resources) is caused by a phenomenon called asymmetric information. Asymmetric information affects decisions in transactions where one party has more or better information than the other. In adverse selection models, the ignorant party lacks information while negotiating a contract to the transaction. Common examples of information asymmetry include 'insider' trading in the stock market, or buying a 'lemon' used car. Understanding and combating asymmetric information is crucial to economists because market failure leads to net losses for society as a whole. Understanding and combating asymmetric information should be equally important to the non-managing spouse and his/her attorney because of its strong potential to lead to inequitable settlements or trial results.  In the economic sense, asymmetric information between spouses about the family finances is a form of market failure. To be sure, if you are contemplating or undergoing a divorce action, you will (in most cases) effectively be negotiating a transaction that will bind you and impact your financial future.

The best way overall way to combat a managing spouse 's tendency to commit acts of misfeasance or non-disclosure regarding financial interests is to equalize the flow of financial information from the very outset of the marriage, with information parity being a non-managing spouse's goal.

Hand-in-hand with the goal of information parity is a mindset that fosters such parity being present throughout the marriage. That mindset is, simply stated, one of equality and mutual appreciation. Two people will divide labor in a marriage so as to maximize their relative strengths and weaknesses, and in so doing the synergy benefits the martial community as a whole to a greater extent than either person could do individually. Economists refer to this phenomenon as comparative advantage, and recognize that such a situation is optimal in the context of maximizing social utility. So too is comparative advantage optimal for managing a household. 

As a simple 'traditional' example, assume Chris and Pat are married. Chris has a greater income earning potential due to holding a doctorate degree and having a good network of people to whom Chris is favorably known in the locale. Pat has greater domestic abilities due to having a bachelors degree in nutrition a work background in home decor. Based on these comparative strengths, Chris and Pat decide that Chris will work full-time and Pat will take care of the home full-time. Pat's excellent meals keep Chris energized and in good health.  Pat's superior aesthetic tastes keep Chris in style with cool cloths. Chris's boss comes over for dinner and is impressed by the feng shui of the domicile. Over time Chris gets promoted and raises. Chris uses the additional income to make financial investments, go on vacations with Pat, and purchase a better home. By Chris and Pat each doing what they are relatively strong at, they, both individually and as a whole, are made economically better off. But more to the point, it is their interdependence that necessarily caused the mutual gain. The law recognizes this fundamental principal in the context of divorce by creating the concept of community property; that regardless of whether it was Chris's paycheck that allowed for the growth of assets, Pat's contributions to Chris's earned income are equally important and therefore necessitate equal division should Pat and Chris's relationship end. So as to a non-managing spouse's mindset, I strongly encourage all such people who are contemplating marriage, married, contemplating divorce, or involved in a divorce have one that recognizes their contributions to the community and requires takes a role.

On the practical side of things, here is a list of information parity objectives that I believe healthy marital relationships should achieve:

• Spouses should store copies of written financial documents in a safe place and where the other spouse doesn't have access.
• Spouses should have all depository, investment, retirement, and debt account numbers written down in an asset ledger. Annual inventories of all assets with a value over $500.00 should be maintained and signed off on by spouses and kept in the asset ledger.
• Spouses should keep copies of income information, including payroll stubs and other documents showing income such as rental checks from investment property or brokerage statements from securities dealers. 
• Spouses should copy and store all financial account information from banks savings and loans, credit unions, particularly monthly statements. Spouses should also copy and store other banking information such as passbooks, check registers, and deposit slips. 
• Spouses should agreed to have all financial information statements should be sent to each spouse individually, directly from the applicable financial institution, and be received only at that spouses primary residential address (and not, for example, at a business). If one spouse insists on receiving their financial information from home or stops receiving financial information mail at the residence, it is often a red flag. 
• Spouses should maintain copies of tax documents, including personal tax returns and business tax returns, and attached forms, for the preceding five years.
• Spouses should receive and keep business financial statements, including net worth and income statements, in the case of a small business.
• Spouses should keep copies of all wills and trusts, and attachments thereto (such as a grant deed that has been recorded in favor of a trust for the benefit of the spouses).
• Spouses should keep copies of all life insurance policies.
• Spouses should keep copies of all outstanding debts incurred during the marriage that are in either spouses name.
• Spouses should keep a list of all personal and real property owned prior to the marriage.
• Spouses should keep a list of all safe deposit boxes and their contents.

Other tips you should know about and red flags you should watch out for to protect you from an unscrupulous spouse:

• Don't wait until things are going badly in the relationship to achieve financial information parity. Work towards that goal from the outset.
• Conduct asset searches of your spouse's biographical information by professional third-parties on an annual basis.
• Be aware that there is a statistically higher incidence of spouses hiding money in their second, third, or later marriages.
• Its best to have only a certified public accountant prepare the spouses' tax returns (as opposed to 'bookkeepers' of other unlicensed persons acting as pseudo-accountants), as they are subject to professional  conflict of interest rules. Do not sign any document seeking your informed consent to waive any conflict of interest rules with respect to accountants without consulting an attorney.   
• Particularly in the case of a small business, become knowledgeable about the business's employees, its normal income, its normal expenses, and how it accounts for them. A small business in particular is breeding grounds for accounting tricks to make it appear less valuable. I have seen this occur by the managing spouse: favor/incentivize cash payments from customers, funnel personal expenses as payments from the business, creating and paying fake employees (including the spouses' own children) and then voiding the uncashed checks after the divorce is final, or delaying new long-term business opportunities (i.e. taking new customer orders, signing new clients, or receiving transfers from escrow-like accounts such as paypal.com). It's important to be familiar with the inner-workings of a small business so you can note when something is amiss. Carefully review and copy customer/client payment agreements and accounts where a small business operates on a largely cash basis.
• Review financial statements on a regular basis. It is easier to access and digest three months of recent transactions than five years of relatively distant transactions. Look out for large or out-of-the ordinary deposits or withdrawals, and try to trace the source/end-point of the transaction to the best of your ability.
• Be aware that municipal bonds and certain savings bonds, because they are tax-free, are not reported to the IRS and therefore can be a vehicle for asset hiding because they do not need to be disclosed on tax returns. Look out for large investments in these assets.
• Non-managing spouses should be careful about signing joint tax returns that claim large deductions for various expenses, particularly in the case where a small business is involved. Although it might mean a larger tax burden in a particular year, in the context of a divorce it often results in lower spousal support and a lower business valuation, with attestation proof presented to a judge in the form of your signature.
• Big changes to the administration of finances can be a red flag: applying for large new loans, the closing of a bank account or change to an investment portfolio, particularly without the input of the non-managing spouse, might give opportunity to hide money.
• Know your spouse's boss well, and make sure they like you. I have experienced collusion between employers and employee so as to show short-run decreases (bonus or raise deferral) to income agreed on increases after the divorce is complete.  If you separate from your spouse, let your spouse's boss know that event has occurred in writing. 
• Do not sign deeds or other papers concerning real estate papers without consulting an attorney.
• Watch out for bank accounts opened in the name of spouse's children, as they do not get listed on that spouse's tax statements they can be a method of hiding community assets.
• Also watch out for overpayments on taxes. A managing spouse may try to receive a tax return later after the divorce is final by overpayment now, or alternatively filing amended taxes.
• Avoid 'loans' to friends or family.           
• Be a Missourian, i.e. don't take your spouse's word. Have the managing spouse show you with the documents that corroborate what they tell you about the family finances. 
• Don't allow fear of ruining the relationship, cultural values, or laziness prevent your pro-activity in becoming astute in the family finances. Defensive responses to your inquiries and requirements for financial information parity by the managing spouse may indicate diversion of community assets.  
• Always remember that the burden of proof rests on the accuser, not the accused, to prove diverted assets to a court. Take all actions to protect your interests with this rule in mind.

These are my thoughts at the end of 2011 - I wish each of you, and each of us, a Happy New Year in 2012, and I hope that we all strive to be transparent and ethical during the coming year!

ATTORNEY MICHAEL C. PETERSON JOINS THE FIRM! 

• Rule 5.93 relating to attorney fee and cost applications, which identifies the steps for a litigant or court to take in requesting, responding to a request for, and awarding fees and costs based upon financial need;

• Approve optional form FL-157, Spousal or Partner Support Declaration Attachment, for litigants to use, as an attachment to the Request for Attorney's Fees and Costs Attachment (form FL-319), Declaration for Default or Uncontested Judgment (form FL-170), Application for Order (form FL-310) and Order to Show Cause (form FL-300) or Notice of Motion (form FL-301) to request that the court award, modify a request, or deny a request for spousal or domestic partner support and to provide supporting facts that address the issuesidentified in Family Code section 4320, which are also required in a request for attorney's fees and costs;

• Approve optional form FL-158, Supporting Declaration for Attorney's Fees and Costs Attachment , for litigants to use, as an attachment to Request for Attorney's Fees and Costs Attachment (form FL-319) or Responsive Declaration to Order to Show Cause or Notice of Motion (form FL-320), to provide the court with additional background information either in support of or in opposition to a request for needs-based attorney's fees and costs, such as any history of child support, spousal or partner support, or family support orders;

• Approve optional form FL-319, Request for Attorney's Fees and Costs Attachment, for litigants to use, as an attachment to the Application for Order (form FL-310) and Order to Show Cause (form FL-300) or Notice of Motion (form FL-301), to request that the court award needs-based attorney's fees and costs;

• Approve optional form FL -346 Attorney's Fees and Costs Order Attachment , for the court to use, as an attachment to Findings and Order After Hearing (form FL-340), Judgment (form FL-180), or Judgment (Uniform Parentage-Custody and Support) (form FL-250), to identify court findings and orders with respect to needs-based attorney's fees and costs; and

• Revise mandatory form FL-340, Findings and Order After Hearing , to improve organization and numbering, add clarifying language in item 1, add a reference to "parenting time" in item 2, add "Other" check boxes in items 2-6, add a check box for the court to attach new form FL-346 (see item 5 of this recommendation) in item 6, and add a check box for the court to order a continuance in item 9.

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

The Facts

The Law Concerning Grandparent Visitation

I Am Pleased to Announce the Launch of
LOS ANGELES FAMILY MEDIATION SERVICES
Mediators and Co-Mediators Serving the Greater Los Angeles Area

• Retired Family Court Judge Gretchen W. Taylor

• Renowned Psychologist Dr. Jane Ellen Shatz

• David Hayes, M.F.T.

• Karen Horwitz, M.F.T.

I am available to serve mediation parties in the Los Angeles area as well, for selected cases.

We are proud and pleased to come together as a team of highly trained and motivated professionals, with over 100 years of combined family law and therapeutic experience, in an effort to provide a positive alternative to traditional divorce warfare.

We believe we can be part of your solution!

Thurman W. Arnold, III, C.F.L.S./Divorce Mediator

Parental Relocations and Move-Away

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

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

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

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

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

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

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

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

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

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

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

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

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

The Bottom Line

• Secure your pets. Allowing your dog to watch you catch a snake will cause your animal to offer you unwanted assistance, and to encourage it to interact with the rattler the next time it finds one. Since snakes move slowly, many dogs will not notice them and so become deathly curious. However, if they learn that the scent of the snake means something to toy with then you've trained your dog to become a suicide bomber. This same point applies to children.

• Be alert this time of year. Scan the ground as you walk. If you are in the desert or on a trail, the obvious choice is to move on. If you are golfing, pay attention to the edges of the course where they front the desert. Do not poke at the snake, and do not toss stones or objects at it. Keep a healthy distance. Be attentive to insistent barks from your dog, as several years ago I heard Jake outside in the yard bark, bark, barking at something and after 5 or 10 minutes of this I finally got the message and found him several feet from a curled rattler. The first thing I did was grab my pup to carry him inside and closed off his ability to get back out until I'd carried the snake away outside of his view.

• Consider keeping your yard clear of debris or objects that make a good place for snakes to hide under or behind. I try to scan my yard visually as often as I can remember, and I want a clear view. I think one reason they like my garage, beside an easy entry under a door, is that rats and mice can sometimes be found there. Keep your ears open - rattlers are good at rattling. I've often heard them before seeing them, which is great if you like adrenaline rushes.

• If working in the yard, watch where you step and place your hands during this month window or so (and again in September/October). It is now breeding time, and the babies abound in the Fall. In the Palm Springs area the snakes tend to emerge with the first consistent hot weather usually beginning in late March and early April. I am on rattlesnake alert through May. They tend to become less frequently seen during the summer months, except in the early mornings or late evenings. I remember one camping trip in August to Organ Pipe in southern Arizona when I was taking pictures at dusk, only to suddenly notice there was a snake every fifteen feet or so (I slept outside on a cot that night, and awakened to observe a very large specimen 10 feet away crawling over a fallen saguaro - I was younger and more foolish then).

• If you find the snake some place where he is not only not welcome, but causes you a worry that unless he is transhipped elsewhere he will be lounging around, and assuming you are extremely cautious and not hyperventilating, capture him and carry him away if you are otherwise disposed to do so (i.e., not because I suggested this was a good idea). I use one of those extendable tree limb cutting poles with the large metal hook and the nearest deep container within reach - usually a trash can or ice chest with a lid, placed on its side as close to the snake as I can safely be (five feet). Rattlers want to get away from you and will wind their way into these, where they will coil at the bottom. With the pole I can hook the snake mid-body and drag it into the can. Better to avoid the snake altogether, but I'm not about to leave one in my garage or in the yard. At the same time, if you don't know what you are going to do and don't already have the tools to do it with, this may not be a good solution. Forget those nature shows where people capture rattlers and stick them in burlap bags. Never let your hands or feet closer than five feet or so (a rule I often break). Conventional wisdom says they can strike up to half their body length.

• Another option is to keep an eye on the critter and call someone for assistance.

• If you wrestle one into a container, resist the impulse to peer into it at close range.

• Now you have the problem of what to do with it. If you are in a residential area consider calling animal control. Don't put it on the back seat of your SUV for a trip to a safe unloading zone. In my case, I can walk a hundred yards or so and flip the box on its side and dump the snake out. I've yet to (knowingly) bump into the same snake again. 

Now, rattlesnakes are really common in areas that are rocky or abut the desert. Around Palm Springs these areas include Chino Hills, the Mesa, Araby, and south Palm Springs around the Canyon Country Club. Expect to encounter one at almost anytime now in the Indian Canyons. You are not nearly as likely to see one in a highly residential area. But if you live on the edge of the desert, sooner or later you will meet one close up.

Okay, this little guy looks just like the granite rocks and yellow weeds
that dot the local landscape -
here's a closer look:

 
Yesterday (4/16/11)

Other Rattlers I've Met -

 
2010 Garage

 
Move-Away from Neighbor's House 2009


And Surrounding Environs 2007


And some I've not met,... 

 
Jake Arnold

Marriage of Duris & Urbany

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

A Cautionary Tale:

How Not to Run Your Separation and Custody Battle

"Paging Dr. Freud. Paging Dr. Freud.

* * * This is yet another case that reveals the ineffectiveness of Family Court in a bitter custody/access dispute, where the parties require therapeutic intervention rather than legal attention. Here, a husband and wife have been marinating in a mutual hatred so intense as to surely amount to a personality disorder requiring treatment....

... [I]t is not surprising that Larry and Catherine are having problems, serious problems, regarding the custody of, and access to, their children. The source of the difficulties is hatred: a hardened, harmful, high-octane hatred. Larry and Catherine hate each other, as do Larry and Sam. This hatred has raged unabated since the date of separation. Consequently, the likelihood of an amicable resolution is laughable (hatred devours reason); and, a satisfactory legal solution is impossible (hatred has no legal remedy)."

The decision details allegations of multiple death threats between the parents, between the parents' relatives and the other parent, between the new spouses and the other parent, changed locks on the residence, assault by Van, interferences with visitation, interrogation of children about the other parent, threats of jail, and a stream of abusive texts and phone calls, arguments that the children should be separated and divided between the parents, alienating behaviors even after court mandated counseling sessions, and more.

The court found the mother's behavior to be the more problematic of the two - "Had [mother] fulfilled her dual parental duty to foster and encourage access between [dad] and [the child] and not to speak disparagingly of him in the presence of [the child], I am confident that this case would have unfolded differently."  By the time of the trial the 13 year old daughter was so alienated from her father that the Court felt helpless to devise any remedy to repair the damage.  It made the following findings:

"(1) The alienation was not present before Larry and Catherine separated; (2) This is not a case where Taylor [13 year old daughter] has weighed the good and bad attributes of her father and found him, on balance, to be parentally deficient: she sees Larry as all bad - there is no ambivalence to her feelings; she is not disguising her true feelings; (3) Larry, although well-intentioned, is an inept father, who has not taken steps to identify, and fix, his shortcomings as a parent; nevertheless, the utter rejection of him by Taylor is disproportionate, unfair and unwarranted; (4) . . . Taylor has aligned herself with Catherine whose hate for Larry is palpable; the battle lines are clearly drawn and Taylor knows the side that she wants to be on; (5) I am unable to think of anything that Larry can do to quickly repair the damage in his relationship with Taylor; and, if I could, I have doubts that he has the skill-sets to pull it off; (6) I did not hear evidence of a single instance of Taylor, since separation, expressing love or affection for Larry; (7) Although children are often required by their parents to do things that they do not want to do, obligating Taylor to visit her father or to engage in counseling is considerably more complicated than insisting that she do her homework or go to the dentist; (8) The history of the parties is such that there is no reason to think they would meaningfully take part in, or benefit from, therapy or counseling; (9) While it is Catherine's duty to encourage and support a relationship between Taylor and Larry, that duty has been breached too severely to be remedied by the court; (10) It is not realistic to expect that the parties have the incentive and finances to engage in the extensive therapy and counseling that are needed; (11) Depriving Catherine of custody (sometimes an appropriate way of dealing with an alienating parent) would not benefit Taylor at this point.

It is my view, sadly, that the alienation here is so severe that it is in the best interests of Taylor not to order or enforce access by Larry. If access happens, fine.

Without professional help, Larry is incapable of addressing the breakdown in his relationship with Taylor. Although, as I have said, well-intentioned, he is an ineffective parent and, without counseling and other assistance, he will remain ineffective. While Catherine, aided and abetted by Sam, initiated the alienation of father and daughter, Larry has not improved the situation. But, I emphasize the fundamental fact that Catherine's conduct is the sine qua non of the alienation.

Absent counseling, matters will worsen, not improve. No practical purpose would be served if the court were to decree a schedule of counseling for the parties and the children. The hate and psychological damage that now prevail would require years of comprehensive counseling to undo. The legal system does not have the resources to monitor a schedule of counseling (nor should it do so). The function of Family Court is not to change people, but to dispose of their disputes at a given point in time. I preside over a court, not a church.

Larry might consider some common-sense steps, such as cards, letters or gifts, to show that he is receptive to a relationship with Taylor should she have a change of heart. However, he would be wise to have those steps independently vetted by a responsible person (preferably, a professional in the child-psychology or family-counseling field)."

    "(a) At a hearing on any order to show cause or notice of motion brought pursuant to this code, absent a stipulation of the parties or a finding of good cause pursuant to subdivision (b), the court shall receive any live, competent testimony that is relevant and within the scope of the hearing and the court may ask questions of the parties.

    (b) In appropriate cases, a court may make a finding of good cause to refuse to receive live testimony and shall state its reasons for the finding on the record or in writing. The Judicial Council shall, by January 1, 2012, adopt a statewide rule of court regarding the factors a court shall consider in making a finding of good cause.

    (c) A party seeking to present live testimony from witnesses other than the parties shall, prior to the hearing, file and serve a witness list with a brief description of the anticipated testimony.

If the witness list is not served prior to the hearing, the court may, on request, grant a brief continuance and may make appropriate temporary orders pending the continued hearing."

Family Code section 217 will cause a sea-change in day to day family court proceedings across our state, unless family court judicial officers ignore it to the limited extent possible by court rules.  It will likely have immense financial and resource consequences upon not only the courts but upon parties to family court proceedings.  It will force the state government in coming years to study whole new paradigms for resolving divorce and domestic partnership dissolution outside the adversary template, including those currently practiced in New Zealand and southern Australia. 

It will also pressure parties to consider mediation, and collaborative processes which occur outside congested courthouses, much more carefully.  The costs of adversary litigation are about to sky-rocket, making mediation even more appealing from a financial perspective (I have written extensively about the emotional and psychological benefits here an elsewhere).  There simply is no governmental money available to absorb the coming Elkins Onslaught. For more information about an alternative method for resolving family disputes, please visit us at www.DesertFamilyMediationServices.com.
  
At the same time, at least in the short run taken together with some of the other revisions that become effective next month, it may encourage more people to litigate more stubbornly and so make mediation seem less attractive than it did before the changes (just the reverse will be true).  Some folks will mistakenly assume that this invites the use of court hearings as a live-testimony forum for sharing unresolved complaints relating to their marriage or domestic partnership dissolution with the other party in open court.  Instead, judges will sustain objections to such irrelevant material and parties who seek to use Family Court as a platform to air relationship grievances will find themselves alienating the trier of fact in ways that will have adverse consequences to them beyond just the time and expense of the exercise. 

The purpose of today's Blog is to introduce you to section 217 and the new changes.  I will follow up with more articles in coming weeks.  Without a doubt the new rules will make all the information I provide on my websites more relevant and timely for my readers. 

The Lost and the Found 
[One Attorney's Path to Redemption]
__________
Unconditional love is something we humans yearn for,
but just endlessly. 

The difficulties of relationship break up prove this to be true,
but only every time. 

Animals, friends and family are not
merely a sanctuary
when we are all working well - 
but a ready invitation for redemption
when we are not, 
every, every day. 

In this way
devotion
to special creatures,
like children,
animals
our inner child,
and you ...
 teaches that not only can we carry on

- but how to.

Happy Birthday to Puppy Dog Jake
and to all the beings whom you hold dear....

and now Merry Christmas!

~T.W. Arnold~

  

Happy Christmas Time Holidays!
 

Q.  My divorce seems like it has stalled.  My wife operates our family business, we own several properties including a commercial building and she collects the rents, she isn't cooperating with me on custody on our kids, and I need money to pay my attorney.  She is controlling this case, and I am getting nowhere.  Any recommendations?

TW Arnold
10/18/10