|11 entries found. Viewing page 1 of 1.
|December 20, 2010 |
| 2011 REVISIONS to the California FAMILY CODE: "CHILD CUSTODY RECOMMENDING COUNSELORS" |
|Posted By Thurman Arnold, CFLS|
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.
|Continue reading "2011 REVISIONS to the California FAMILY CODE: "CHILD CUSTODY RECOMMENDING COUNSELORS"" »|
|December 13, 2010 |
| 2011 REVISIONS to the California Family Code: Serving POST-JUDGMENT OSC's and MOTIONS |
|Posted By Thurman Arnold, CFLS|
Effective January 1, 2011, you may serve post-judgment motions to modify
custody, visitation, or child support orders by regular mail and file
with the Court a
declaration of mailing.
This is revised
Family Code section 215. Until now applications to change these orders needed to be personally
served upon the other party. This created hardship and added expense for
many people, since it can be difficult to locate the whereabouts of the
other parent in some families months or years after a Judgment for Paternity,
Nullity, or Dissolution of Marriage or Domestic Partnership. This often
necessitated service by publication if there was no good address - publication
in a newspaper can approximate $400, and service is not deemed effective
for at least a month after the fourth week of being published. Moreover,
an order permitting Service by Publication also needed to be obtained,
which itself costs money and time. To this extent the revision is a good thing.
The bad news is that this provision may encourage fraud, which might result
in hearings where only one party really knew to be present. Litigants
may claim that the papers were mailed when they weren't. Perhaps the
person who signs the declaration (grandma) doesn't walk the letter
to the mailbox. Perhaps a girlfriend claims she sent the notice but doesn't
- how could it be proved? What happens when someone doesn't get the
mail on the receiving end, whether because of the letter is lost, by inadvertence,
or for having moved? So long as the moving papers contain the required
Proof of Service they are presumptively valid and orders will issue even
when the responding party fails to show up for the hearing.
Hence, the burden of attacking a modification taken by default shifts
to the answering party. For instance if an order is issued by reason of
their mistake, inadvertence, or surprise it remains valid until and unless
a successful challenge is filed and upheld. These motions are expensive,
and judges tend to disfavor them. Here your remedies are (a) filing a
motion to quash service, which you won't be able to prove (how does
one establish the pleadings weren't mailed?) and/or (b) filing a set
aside motion pursuant to
Code of Civil Procedure section 473, which generally must occur no later than six months from the date an order
is entered. Likewise, while there is no time limit for setting aside orders
obtained by extrinsic fraud (i.e., perjury), this is hard to prove. Third,
the other party must bear all the initial expense, which can be considerable
since these motions are technical and require the help of an attorney.
Fourth, anyone responding to a motion is already at a disadvantage. The
moving party has whatever time they needed to draft their paperwork, but
once this is "served" the respondent must answer within about
15 days of the date of mailing (I will Blog the exact timing separately).
Fifth, it is hard to un-ring a bell once a Court has heard from one party.
FC 215 streamlines litigation where people are responsible.
It applies only to cases involving minor children. I imagine the public policy includes not feeling too protective of parents
who have gone 'walk about.' The greatest likelihood for abuse
is with child support modifications.
One thing is for sure:
You must keep updated address information on file with the Court for any case involving kids until they turn 18, or 19 if they are still
in high school and live with the first parent. If you move and fail to
notify the court, and a modification occurs in your absence, you may not
be relieved of your carelessness once you finally learn of the new orders!
Thurman W. Arnold, CFLS
|Continue reading "2011 REVISIONS to the California Family Code: Serving POST-JUDGMENT OSC's and MOTIONS" »|
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|December 01, 2010 |
| New Family Code Section 3042 - Will It Serve to Accelerate the GENDER CUSTODY WARS? |
|Posted By Thurman W. Arnold, III, CFLS|
Child Testimony Concerning Parental Preference
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
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
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?
|Continue reading "New Family Code Section 3042 - Will It Serve to Accelerate the GENDER CUSTODY WARS?" »|
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|December 01, 2010 |
| Can My CHILDREN TESTIFY About Their PARENT PREFERENCE in Our Custody Case? |
|Posted By Thurman Arnold|
Q. We have a hearing coming up before the Christmas holidays over custody
and visitation issues. I believe my children should testify in court about
their father's living conditions, as well as what they have told me
about some things involving the woman he has sleeping over, and what their
preferences are as to custody. Is this possible?
A. It is possible under current
Family Code section 3042. It may or may not be a wise choice for the sake of your kids, however,
since it sounds as if you expect one or more of them to say things to
the judge that might be make them feel as if they've betrayed their
dad, chosen you over them, or that they are being placed into the middle
of your dispute. I beg you think carefully about what you say to your
children, and what you do here.
AB 1050 passed both houses of the California legislature in August, 2010.
It becomes law on January 1, 2011 as
revised Family Code section 3042. However, it is not implemented until 1/1/2012. Existing law required family
courts "if a child is of sufficient age and capacity to reason so
as to form an intelligent preference as to custody, to consider and give
due weight to the wishes of the children" in making custody orders.
New Family Code section 3042 will require courts to permit a child who is 14 years of age or older
to address the court regarding custody or visitation unless the court
determines that doing so is not in the child's best interests, and
in that case the court must explain that finding on the record. When judges
and family court commissioners are instructed to state their findings
on the record, it can sometimes be easier for them not to error on the
side of permitting the testimony - which is why such provisions are added
to statutes by their supporters. At the same time, requiring judges to
state their reasoning does cause thinking judges to better evaluate the
issues before them.
New Family Code section 3042 requires the court to provide an alternative means of obtaining information
regarding the child's preferences if it does not allow a child 14
or older to testify as a witness.
Either minor's counsel, an evaluator, investigators, or mediators
who provide custody recommendations to the court, must indicate to the
Judge whether the child wishes to address the court - and the judge is
also required to ask this question. Either parent's attorney may also
make that representation to the Court, which then triggers the issue.
According to its author, Assemblywoman Fiona Ma, current law was not sufficient
because children over a certain age who had the capacity to express important
preferences were routinely not allowed to testify under former section
3042. Hence, she believed that children's wishes were ignored except
through the voices of third party evaluators or minor's counsel, and
even then that they were not given proper weight. In my experience this
was factually true. There is a longstanding judicial antipathy towards
the unseemliness of testimony from children, and questions about its reliability.
The statute does not preclude younger children from testifying and so
the law is essentially unchanged as to them - in their cases the court
is not required to make findings on the record if it does not permit testimony.
The Bill's author also stated that nothing in the statute will require
a child to express his or her preference. Instead she claims that section
3042 is strictly intended to provide a better avenue for participation
in the proceedings and not to pressure children to express their wishes
against their will. By the way, Assemblywoman Ma also sponsored Assembly
Bill 102 of 2007, which permitted parties to registered domestic partnerships
to change their names to the last name of their new legal partner, which
Accordingly, the Bill directs the California Judicial Council to promulgate
standards and guidelines and rules and procedures for the examination
of child witnesses, and to suggest alternate and less intrusive methods
for obtaining the information about preferences beyond directly questioning
them in court.
Hence, at least as to your children's custody preferences, depending
upon their ages, after January 1, 2012, you will likely be able to have
the judge listen to them, particularly since there will be a period of
confusion, especially in smaller jurisdictions, about how to manage child
testimony for months to come.
I beg you to be careful with the power this new law gives custodial parents,
which I fear if misused may become an invitation and an opportunity to
increase conflicted and alienating behaviors rather than a simple and
useful means of allowing children a voice in the proceedings.
T.W. Arnold, III, CFLS
December 1, 2010
|Continue reading "Can My CHILDREN TESTIFY About Their PARENT PREFERENCE in Our Custody Case?" »|
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|December 01, 2010 |
| What STANDARDS Are JUDGES Likely to APPLY When A REQUEST FOR CHILD TESTIMONY Is Made? |
|Posted By Thurman Arnold|
Q. I have heard that children will be able to decide which parent they
want to live with in 2011, is this true?
A. No. However, at certain ages their input may become more important to
courts in deciding the question effective 1/1/2012.
Family Code section 3042, effective January 1, 2011 but not implemented until January 1, 2012,
directs trial courts to allow testimony from children who are aged 14
years or more on issues relating to custody or visitation, unless the
judge or family court commissioner makes a finding on the record that
doing so would not be in the child's best interest. In the event a
court makes such a finding, it is nonetheless required to "provide
an alternate means of obtaining input from the child." This statute
is on its face intended to allow children to express preferences about
their relationships with their parents, whether they be in terms of primary
residences or visitations, but it opens the door to much more. Some judges
will struggle to limit its application, for some reasons.
I predict that it is going to become a time-consuming, destructive mainstay
in the diet of family law courts and custody attorneys or that judges
will develop a method of nullifying the intent of the statute. As an experienced
custody and family law attorney, I believe it is a really bad idea. But
for now the reality is that children will be testifying in court like
never before. How will family law courts deal with this legislative mandate?
I suspect quite reluctantly since family judges see the problem more clearly
than our legislators apparently do.
Judicial policy is likely to require, as a threshold question, a balancing
of a number of concerns. These include the need to protect the child from
perceived harm from the act and consequences of testifying, the new statutory
obligation to consider children's expressed wishes and their supposed
desire to express those wishes (as probably urged by the proponent parent),
and the probative value of the child's input in deciding the issuers
at hand (this probative value is implicit in the statute). I think most
judges will want to avoid such testimony, but are going to have figure
out reasons they can readily articulate why not to take the testimony
in order to avoid reversals by appellate courts.
In arguing in favor or against introducing such testimony, you will want
to be able to talk to the court about the following likely threshold judicial concerns:
- Will it be useful to the court to permit questioning of this child?
- What will be the risks and benefits to a particular child of being permitted
to testify in favor or against a parent?
- How shall testimony occur? Will it be allowed in open court, or in the
- Will there be uniformity between jurists or branches or counties in terms
of court policies, or will it just be every department decides for itself
how and what rules apply?
- Who besides the judge will be allowed to ask questions of the child? This
includes questioning outside the court proceeding, say when a third party
is appointed to obtain the information for the court.
- What type of cross-examination will be permitted, since cross-examination
is essential to assuring due process within the adversary court setting
by testing the credibility and basis for testimony?
- Will any safety measures be adopted, and will there be any sensitivity
to the potential consequences to children once kids are drawn into testifying,
since they can't possibly have any understanding of how such testimony
will affect their parental relationships with the non favored parent?
- Should different standards be applied in deciding to allow testimony from
children about their parental preference when those requests are made
after therapist based or similar recommendations come out and disfavor
a party, as opposed to before they recommendations are known? After all,
what is to stop every disgruntled parent from demanding that their child
state their preference (which that parent doesn't like or accept)
in every case?
- What testimonial facts will be relevant? A child's stated preference
is one thing, but shouldn't a party or their attorney then be permitted
to ask questions about parental coaching? Spoiling and buying kid's
loyalty? Whether the child wants to live with mom or dad because they
don't impose rules in their home?
- Does the court even have enough information to answer the threshold question
of whether a child should be permitted to testify without first seeking
In order to succeed in achieving a client's goal of hearing from children
when it serves that parent's agenda or perceptions, or in limiting
either a child's input or damage to the child by having to voice a
preference for one parent over another, custody lawyers and self-represented
parties will do well to consider these questions in advance of making
requests to the court.
It will be interesting to see if some judges effectively nullify the statutory
mandate by imposing roadblocks or alternate routes that keep the questioning
outside the family court proceeding itself.
Note: The Judicial Council has now, a year after this article was written, adopted
Cal.Rules of Court Rule 5.250. Be sure you read and follow it carefully if a child wishes to express
|Continue reading "What STANDARDS Are JUDGES Likely to APPLY When A REQUEST FOR CHILD TESTIMONY Is Made?" »|
|October 18, 2010 |
| How Do I Get An Order for ATTORNEY FEES in a COMPLEX CASE? |
|Posted By Thurman Arnold|
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?
[Please note - this Blog is updated with a recent Blog Article detailing
the 2011 Revisions to the California Family Code affecting attorney fee
A. I frequently hear from people whose cases are "stalled" because
they have no money to pay their attorney, and no money to hire forensic
experts. It is a problem I face in my practice with certain clients. It
takes money to develop your case, and if there is really none available
it is difficult to get anyone to pay attention. Often there are assets
that only one spouse controls. That spouse or RDP (registered domestic
partner) usually claims those assets to be their "separate property"
even when the claim is ridiculous (for instance, closely held stock issued
as "their sole and separate property" when the vesting of title
in their name alone during marriage was just their manipulation and you
didn't agree to it).
When there are assets that exist there is much that you can do. These
assets, whether they be allegedly separate or community, are available
to be borrowed against, or sold, to raise money so you can pay your attorney
and hire experts to do the work that must be done.
However, your attorney needs to understand how to accomplish this or find
one who does. Specifically one method that works well is to have a referee
Code of Civil Procedure section 639 to oversee a "case management plan" under the circumstances
Family Code section 2032(d).
Specifically, have your attorney ask the Court in a motion to make a finding
that your case involves "complex or substantial issues of fact or
law." These can be related to property rights, custody, visitation,
and support and may include bifurcations of issues. If you don't have
an attorney, this would still be a start to obtaining findings that will
generate money to hire one.
Once the Court so designates your case, it will itself begin to implement
a plan or assign someone else - like an outside lawyer whom the court
recognizes as an expert, to make recommendations as a referee. While the
Court is not obligated to follow the recommendations of these referees,
they usually do. And if they don't the court may find itself overturned
on appeal as happened 10/1/10 in
In Re Marriage of Tharp, a case I will be writing about in detail as time permits.
This is a major step in not only getting someone to look more closely
at the attorney fees you need (judges, after all, have really limited
time) but also a good way to jump start a stalled dissolution or other
family law case.
BTW, under the new statutes that take effect in 2011 as a result of the
Elkins Task Force recommendations, case management may become the norm
in California in family law proceedings.
|Continue reading "How Do I Get An Order for ATTORNEY FEES in a COMPLEX CASE?" »|
|June 02, 2010 |
| Proposed Text for a new diagnosis of PARENTAL ALIENATION in the DSM-V |
|Posted By Thurman Arnold|
The following text was taken from the AFCC materials provided in Denver.
The DSM-V has not been adopted, nor is there any agreement that the following
diagnosis should be added. Ultimately it was not adopted.
Proposed Text for Parental Alienation Disorder in DSM-V
The essential feature of parental alienation disorderis that a child -
usually one whose parents are engaged in a high-conflict divorce - allies
himself or herself strongly with one parent (the preferred parent) and
rejects a relationship with the other parent (the alienated parent) without
legitimate justification. The primary behavioral symptom is the child's
resistance or refusal to have contact with the alienated parent (Criterion A).
The behaviors in the child that characterize parental alienation disorderinclude
a persistent campaign of denigration against the alienated parent and
weak, frivolous, and absurd rationalizations for the child's criticism
of the alienated parent (Criterion B).
The following clinical features frequently occur in parental alienation
disorder, especially when the child's symptoms reach a level that
is moderate or severe (Criterion C). Lack of ambivalence refers to the
child's belief that the alienated parent is all bad and the preferred
parent is all good. The independent-thinker phenomenon means that the
child proudly states the decision to reject the alienated parent is his
own, not influenced by the preferred parent. Reflexive support of the
preferred parent against the alienated parent refers to the pattern of
the child's immediately and automatically taking the preferred parent's
side in a disagreement. The child may exhibit a disregard for the feelings
of the alienated parent and an absence of guilt over exploitation of the
alienated parent. The child may manifest borrowed scenarios, that is,
rehearsed statements that are identical to those made by the preferred
parent. Also, the child's animosity toward the alienated parent may
spread to that parent's extended family.
The diagnosis of parental alienation disordershould not be used if the
child's refusal to have contact with the rejected parent is justifiable,
for example, if the child was neglected or abused by that parent (Criterion D).
Parental alienation disordermay be mild, moderate, or severe. When the
parental alienation disorderis mild, the child may briefly resist contact
with the alienated parent, but does have contact and enjoys a good relationship
with the alienated parent once they are together.
When the parental alienation disorderis mild, the child may have a strong,
healthy relationship with both parents, even though the child recites
criticisms of the alienated parent.
When the parental alienation disorderis moderate, the child may persistently resist
contact with the alienated parent and will continue to complain and criticize
the alienated parent during the contact. The child is likely to have a
mildly to moderately pathological relationship with the preferred parent.
When the parental alienation disorderis severe, the child strongly and
persistently resists contact and may hide or run away to avoid seeing
the alienated parent. The child's behavior is driven by a firmly held,
false belief that the alienated parent is evil, dangerous, or worthless.
The child is likely to have a strong, severely pathological relationship
with the preferred parent, perhaps sharing a paranoid world view.
While the diagnosis of parental alienation disorderrefers to the child,
the preferred parent and other persons the child is dependent on may manifest
the following attitudes and behaviors, which frequently are the major
cause of the disorder: persistent criticisms of the rejected parent's
personal qualities and parenting activities; statements that influence
the child to fear, dislike, and criticize the alienated parent; and various
maneuvers to exclude the rejected parent from the child's life. The
behavior of the preferred parent may include complaints to the police
and child protection agencies with allegations about the rejected parent.
Parental alienation disordermay be the basis for false allegations of sexual
abuse against the alienated parent. The preferred parent may be litigious
to the point of abusing the legal system. The preferred parent may violate
court orders that are not to his or her liking. Specific psychological
problems - narcissistic personality disorder, borderline personality disorder,
traumatic childhood experiences, and paranoid traits - may be identified
in these individuals. Also, the rejected parent may manifest the following
attitudes and behaviors, which may be a minor or contributory cause of
the disorder: lack of warm, involved parenting; deficient parenting skills;
and lack of time dedicated to parenting activities. However, the intensity
and duration of the child's refusal to have contact with the rejected
parent is far out of proportion to the relatively minor weaknesses in
the rejected parent's parenting skills.
Although parental alienation disordermost often arises in the context of
a child custody dispute between two parents, it can arise in other types
of conflicts over child custody, such as a dispute between a parent and
stepparent or between a parent and a grandparent. Sometimes, other family
members - such as stepparents or grandparents - contribute to the creation
of parental alienation disorder.On occasion, other individuals - such
as therapists and child protection workers - contribute to the creation
of parental alienation disorderby encouraging or supporting the child's
refusal to have contact with the alienated parent. Also, parental alienation
disorderdoes not necessarily appear in the context of divorce litigation,
but may occur in intact families or years following the divorce.
It is common for children to resist or avoid contact with the noncustodial
parent after the parents separate or divorce. There are several possible
explanations for a child's active rejection of contact. Parental alienation
disorderis an important, but not the only, reason that children refuse contact.
In the course of normal development children will become polarized with
one parent and then the other depending on the child's developmental
stage and events in the child's life. When parents disagree, it is
normal for children to experience loyalty conflicts. These transitory
variations in a child's relationship with his or her parents do not
meet criteria for parental alienation disorderbecause they do not constitute
"a persistent rejection or denigration of a parent that reaches the
level of a campaign."
If the child actually was abused, neglected, or disliked by the noncustodial
parent or the current boyfriend or girlfriend of that parent, the child's
animosity may be justified and it is understandable that the child would
not want to visit the rejected parent's household. If abuse were the
reason for the child's refusal, the diagnosis would be physical abuse
of child or sexual abuse of child, not parental alienation disorder.This
is important to keep in mind because an abusive, rejected parent may misuse
the concept of parental alienation disorderin order to falsely blame the
child's refusal of contact on the parent that the child prefers. In
shared psychotic disorder, a delusional parent may influence a child to
believe that the other parent is an evil person who must be feared and
avoided. In parental alienation disorder, the alienating parent may have
very strong opinions about the alienated parent, but is not usually considered
out of touch with reality.
When parents separate or divorce, a child with separation anxiety disorder
may become even more worried and anxious about being away from the primary
caretaker. In separation anxiety disorder, the child is preoccupied with
unrealistic fears that something will happen to the primary caretaker,
while the child with parental alienation disorder is preoccupied with
unrealistic beliefs that the alienated parent is dangerous.
It is conceivable that a child with specific phobia, situational type,
might have an unreasonable fear of a parent or some aspect of the parent's
household. A child with a specific phobia is unlikely to engage in a persistent
campaign of denigration against the feared object, while the campaign
of denigration is a central feature of parental alienation disorder.
When parents separate or divorce, a child with oppositional defiant disorder
may become even more symptomatic - angry, resentful, stubborn - and not
want to participate in the process of transitioning from one parent to
the other. In oppositional defiant disorder, the child is likely to be
oppositional with both parents in a variety of contexts, while the child
with parental alienation disorder is likely to focus his or her negativism
on the proposed contact with the alienated parent and also to engage in
the campaign of denigration of that parent.
When parents separate or divorce, a child may develop an adjustment disorder
as a reaction to the various stressors related to the divorce including
discord between the parents, the loss of a relationship with a parent,
and the disruption of moving to a new neighborhood and school. A child
with an adjustment disorder may have a variety of nonspecific symptoms
including depression, anxious mood, and disruptive behaviors, while the
child with parental alienation disorder manifests a specific cluster of
symptoms including the campaign of denigration and weak, frivolous rationalizations
for the child's persistent criticism of the alienated parent.
Parent-child relational problem (a V-code) is the appropriate diagnosis
if the focus of clinical attention is on the relationship between a child
and his or her divorced parents, but the symptoms do not meet the criteria
for a mental disorder. For example, a rebellious adolescent may not have
a specific mental disorder, but may temporarily refuse to have contact
with one parent even though both parents have encouraged him to do so
and a court has ordered it. On the other hand, parental alienation disorder
should be the diagnosis if the child's symptoms are persistent enough
and severe enough to meet the criteria for that disorder.
DIAGNOSTIC CRITERIA FOR PARENTAL ALIENATION DISORDER
A. The child - usually one whose parents are engaged in a high-conflict
divorce - allies himself or herself strongly with one parent and rejects
a relationship with the other, alienated parent without legitimate justification.
The child resists or refuses contact or parenting time with the alienated parent.
B. The child manifests the following behaviors:
- a persistent rejection or denigration of a parent that reaches the level of a
- weak, frivolous, and absurd rationalizations for the child's persistent
criticism of the rejected parent
C. The child manifests two or more of the following six attitudes and behaviors:
(1) lack of ambivalence
(2) independent-thinker phenomenon
(3) reflexive support of one parent against the other
(4) absence of guilt over exploitation of the rejected parent
(5) presence of borrowed scenarios
(6) spread of the animosity to the extended family of the rejected parent.
D. The duration of the disturbance is at least 2 months.
E. The disturbance causes clinically significant distress or impairment
in social academic (occupational), or other important areas of functioning.
F. The child's refusal to have contact with the rejected parent is
without legitimate justification. That is, parental alienation disorderis
not diagnosed if the rejected parent maltreated the child.
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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|
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 than 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 ask Mr. Jones if he will agree. Nine times out of ten, in my experience, Mr. Jones will say "sure your Honor, I have nothing to hide and she is making this all up." NOT!
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 to 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 himself be in denial, and so might lie easily from habit. Clients say and do all kinds of amazing things under the pressure of a courtroom full of eyes watching him (or her).
And, Mr. Jones may think that his hair sample will come back clean because he is not presently "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. Don't trust that masking agents will protect you.
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 led 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. He said Mom had not. (This was evidently true).
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 hair follicle test because she had insisted (in answer to direct questions to her first, in private) that she never used cocaine. After all, hair follicle tests are great if you are clean!
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 that we'd gained, 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 clean. DO NOT LIE TO YOUR ATTORNEY. While we won't suborn perjury, we will protect you from your doing so, but we need all relevant information in order to protect you from you - which is one of our jobs. Ethical lawyers will not aid and abet a client in making false or misleading statements. That does not mean we will "rat" you out.
It is possible to get a confidential hair follicle test from an independent laboratory (see bottom of page for self-testing ideas) 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.
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. However, if you aren't done using, then you need to accept the reality of certain consequences.
By the way, for "legal" California pot-smokers, see this Guest Blog about a 2012 appellate court decision that suggests the the pendulum is swinging in your favor (or at least not as reactively against you!)
If you don't know how you might test in advance, or want to "dip stick" the other parent, you might purchase one of these.
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|April 14, 2010 |
| Will the Court DRUG TEST My Wife? |
|Posted By Thurman Arnold|
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 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. At the same time, maybe this is a good time to "stop"?
Please see my blog on hair follicle testing.
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|April 08, 2010 |
| How do COURTS decide to award JOINT CUSTODY? |
|Posted By Thurman Arnold|
Q. How do courts decide whether to award joint or sole custody?
Family Code section 3010 provides that a mother and a father "are equally entitled to the
custody of the child."
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
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.
For many more articles about joint and sole custody, both in terms of legal
custody and physical custody, click here!
Thurman W. Arnold III
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|August 14, 2009 |
| How does my sister get CUSTODY of her GRANDSON? |
|Posted By Thurman Arnold|
Q. My Niece has a 1 yr old son. She is always gone on drugs and alcohol.
Her mother cares for him 24/7, takes him to doctors ... the boy's
mother doesn't seem to care for him. My sister needs to get custody
of her grandchild ASAP. He is in a loving home, has the care he needs.
What should I tell her to do?
Sheila, Moreno Valley, CA
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
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.
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