Wednesday, November 19, 2014
Spend More Time talking About The Relationship, and Less Money on the Ring, the Wedding (and the Divorce?)
Wednesday, October 1, 2014
"Conscious Coupling" What Is Marriage Supposed To Do? Does It Still Do It?
One of the recurring themes of this blog has been "Why do people get married? What will help then accomplish whatever it is they want to accomplish by marrying?"
It appears that the number of Americans, over-all, who believe that marriage does what they want done, continues to shrink, even as the broader recognition of same-sex marriage would seem logically to have increased it. There are theories, both social and economic, as to why this may be; my job, as a counselor at law, is to make sure, as much as possible, that when people enter into a legal relationship, they understand what it is, what it does, and are clear, as their partners are clear, that their expectations and understandings match, or at least, fit.
It appears that the number of Americans, over-all, who believe that marriage does what they want done, continues to shrink, even as the broader recognition of same-sex marriage would seem logically to have increased it. There are theories, both social and economic, as to why this may be; my job, as a counselor at law, is to make sure, as much as possible, that when people enter into a legal relationship, they understand what it is, what it does, and are clear, as their partners are clear, that their expectations and understandings match, or at least, fit.
Tuesday, September 23, 2014
Gambling Winnings and Child Support
Ohio has now implemented an intercept program so that winners at the four casinos in Ohio may trigger data base checks. If the winner wins $1,200 or more from slot machines, $5,000 or more from table games or $600 or more from high-stakes games, then their name is checked against a data base for child support owed. If anything is owed, it is taken out of the winnings. Ohio’s seven racinos, run by the Ohio Lottery, also participates in the program and checks winnings of $600 or more for child support.
http://www.dispatch.com/content/stories/local/2014/09/22/winners-to-pay-child-support.html
Apparently, Ohio is not alone in this initiative. Louisiana has a similar program to collect child support from gambling winnings.
http://www.klfy.com/story/26376451/state-collects-2-million-in-child-support-payments-from-gamblers
Generally, states take child support seriously and if it is owed, it does not go away. It is non-dischargeable in bankruptcy and will go against the owing parent’s estate. This is true even if the child is an adult. Child support services has a long reach in collecting the money. They can do anything from garnish wages to intercept tax refunds to suspend licenses issued by the state.
http://www.dispatch.com/content/stories/local/2014/09/22/winners-to-pay-child-support.html
Apparently, Ohio is not alone in this initiative. Louisiana has a similar program to collect child support from gambling winnings.
http://www.klfy.com/story/26376451/state-collects-2-million-in-child-support-payments-from-gamblers
Generally, states take child support seriously and if it is owed, it does not go away. It is non-dischargeable in bankruptcy and will go against the owing parent’s estate. This is true even if the child is an adult. Child support services has a long reach in collecting the money. They can do anything from garnish wages to intercept tax refunds to suspend licenses issued by the state.
Monday, August 25, 2014
Exercising Self-Help in Custody Cases
Kathleen Aubain is in the Oneida County Jail in New York for violating a court order. Aubain has a two and a half year old daughter, Isabellah Rose Campos with Eric Campos. All three were living in Arizona. Campos has custody of Isabellah. Aubain’s mother says the only reason Campos has custody is because Aubain didn’t bring Isabellah back to him at the end of her custodial time.
Aubain then left the state of Arizona and fled, with Isabellah, to Utica, New York. She didn’t have permission to leave Arizona. She has been arrested and is currently in jail. She is refusing to tell authorities where Isabellah is or who is caring for her. Aubain claims that she is protecting Isabellah who she believes is being abused by Campos. The Arizona social worker determined that the police investigator who examined Isabellah found the bruising to be consistent with Campos’ account that the child’s five-point safety harness used while riding a Rhino vehicle on rough terrain in the desert caused the bruising.
http://www.wktv.com/news/local/Mother-still-refuses-to-disclose-Arizona-toddlers-whereabouts-270534811.html
I have said it before. Do not exercise self help. Do not defy a court order. If you feel like there is something happening, such as abuse, notify the proper authorities, and make a request through the court. Exercising self help is a good way to lose custody.
Aubain then left the state of Arizona and fled, with Isabellah, to Utica, New York. She didn’t have permission to leave Arizona. She has been arrested and is currently in jail. She is refusing to tell authorities where Isabellah is or who is caring for her. Aubain claims that she is protecting Isabellah who she believes is being abused by Campos. The Arizona social worker determined that the police investigator who examined Isabellah found the bruising to be consistent with Campos’ account that the child’s five-point safety harness used while riding a Rhino vehicle on rough terrain in the desert caused the bruising.
http://www.wktv.com/news/local/Mother-still-refuses-to-disclose-Arizona-toddlers-whereabouts-270534811.html
I have said it before. Do not exercise self help. Do not defy a court order. If you feel like there is something happening, such as abuse, notify the proper authorities, and make a request through the court. Exercising self help is a good way to lose custody.
Friday, August 15, 2014
Child Custody And Religion (Again): What Should Happen When One Parent Converts?
We've got another child custody and religion case from New York, about, at least ostensibly, what should happen when one parent, but not the other, decides to "change horses mid-stream" in terms of the child's religious upbringing.
A closer reading of the facts suggests that other facts played a much greater role in the decision than the religion issue did, and that the judge may have used the religion issue as a tie-breaker as between two fairly horrendous-sounding parents, to decide who was the "least bad" parent.
The interesting question, when the hard facts are stripped away, however, is the extent to which a general presumption that "stability" is good for kids, (and good for kids of divorcing parents, and good for kids of high-conflict divorcing parents) should weigh against the right of parents, under the First Amendment, to change religions, if they want, as frequently as they change their socks.
A (waterproof) hat tip to Doc Volokh at UCLA, with hopes that they get the campus dried back out before Fall Semester.
P.S.: ...and this just in from Florida, again by way of Volokh:
a trial judge who restrained a Jehovah's Witness non-custodial father from doing "...anything in front of the children or around the children...” that “...conflicts with the Catholic religion...." (practiced by custodial mom) was reversed, the appeals court noting: "While the mother’s concern that exposure to two different religions could confuse the children may be reasonable, neither that concern nor the evidence presented below established the requisite showing of harm to grant the mother ultimate religious decision-making authority for the children and to restrict the father..."
A closer reading of the facts suggests that other facts played a much greater role in the decision than the religion issue did, and that the judge may have used the religion issue as a tie-breaker as between two fairly horrendous-sounding parents, to decide who was the "least bad" parent.
The interesting question, when the hard facts are stripped away, however, is the extent to which a general presumption that "stability" is good for kids, (and good for kids of divorcing parents, and good for kids of high-conflict divorcing parents) should weigh against the right of parents, under the First Amendment, to change religions, if they want, as frequently as they change their socks.
A (waterproof) hat tip to Doc Volokh at UCLA, with hopes that they get the campus dried back out before Fall Semester.
P.S.: ...and this just in from Florida, again by way of Volokh:
a trial judge who restrained a Jehovah's Witness non-custodial father from doing "...anything in front of the children or around the children...” that “...conflicts with the Catholic religion...." (practiced by custodial mom) was reversed, the appeals court noting: "While the mother’s concern that exposure to two different religions could confuse the children may be reasonable, neither that concern nor the evidence presented below established the requisite showing of harm to grant the mother ultimate religious decision-making authority for the children and to restrict the father..."
Tuesday, August 12, 2014
Grandparent Custodial Rights
Interesting read regarding grandparent rights. The Court of Appeals upheld a Dependency Court order granting a grandmother visitation rights. It’s a case right here in Los Angeles County involving DCFS.
http://www.metnews.com/articles/2014/visitation080814.htm
Grandparent rights come up relatively regularly, but I don't believe that this case will necessarily significantly broaden the law that currently exist. In the absence of DCFS involvement or a Dependency Court case (such as in this case), or the consent of the parents, grandparents typically have limited, if any custodial rights to their grandchildren.
http://www.metnews.com/articles/2014/visitation080814.htm
Grandparent rights come up relatively regularly, but I don't believe that this case will necessarily significantly broaden the law that currently exist. In the absence of DCFS involvement or a Dependency Court case (such as in this case), or the consent of the parents, grandparents typically have limited, if any custodial rights to their grandchildren.
Monday, July 21, 2014
Interference with Child Custody
Maria Jose Carrascosa, 48, is a native of Spain and lived in Fort Lee, New Jersey. She had a child, a daughter, with Peter Innes while in New Jersey and the couple separated in 2004. They signed a parenting agreement prohibiting either parent from taking the child out of the country without the consent of the other. In 2005, while custody was still unresolved, Carrascosa took the child, then 4, to Spain.
In 2006, the New Jersey Court ordered the child returned, but Carroscosa refused. Carrascosa returned to New Jersey and was promptly arrested for contempt. She has been in jail for the last five years. The child, now 14, is still in Spain and has not been returned.
Carroscosa was sentenced to 14 years in 2009, after being convicted of interference with custody. She has recently been paroled but has not been set free yet. Innis has not seen his daughter since she has been taken to Spain. As the article states, until she returns the child to New Jersey, she is still in contempt and she can be placed back into prison.
http://www.northjersey.com/news/crime-and-courts/mom-released-from-jail-in-custody-case-1.1052854
When there are court orders regarding custody, make sure to follow them. When, as Carroscosa did here, one parent makes it difficult/impossible for the other parent to see their children, then this will certainly be taken into account when making future orders. In California, this type of behavior, whether just restrictive gate-keeping parenting, or whether more extreme like this case, can serve as a basis for a modification or custody orders and even a change of custody entirely. Judges want to see co-parenting, and in the absence of that, will award custody to the parent that they feel will encourage the relationship between the child and the other parent. As always, you should consult an experienced family law attorney before making any major decisions regarding the children especially those that will impact the custodial time of the other parent.
In 2006, the New Jersey Court ordered the child returned, but Carroscosa refused. Carrascosa returned to New Jersey and was promptly arrested for contempt. She has been in jail for the last five years. The child, now 14, is still in Spain and has not been returned.
Carroscosa was sentenced to 14 years in 2009, after being convicted of interference with custody. She has recently been paroled but has not been set free yet. Innis has not seen his daughter since she has been taken to Spain. As the article states, until she returns the child to New Jersey, she is still in contempt and she can be placed back into prison.
http://www.northjersey.com/news/crime-and-courts/mom-released-from-jail-in-custody-case-1.1052854
When there are court orders regarding custody, make sure to follow them. When, as Carroscosa did here, one parent makes it difficult/impossible for the other parent to see their children, then this will certainly be taken into account when making future orders. In California, this type of behavior, whether just restrictive gate-keeping parenting, or whether more extreme like this case, can serve as a basis for a modification or custody orders and even a change of custody entirely. Judges want to see co-parenting, and in the absence of that, will award custody to the parent that they feel will encourage the relationship between the child and the other parent. As always, you should consult an experienced family law attorney before making any major decisions regarding the children especially those that will impact the custodial time of the other parent.
Tuesday, July 15, 2014
Should a Very Young Child Give Preference Testimony?
Professional basketball player, Chris Bosh, has been in a custody battle over his young year old daughter with the child’s mother, Allison Mathis. Apparently Mathis is requesting that their daughter, Trinity, (either four or five years old), testify in court.
http://cocoafab.com/uh-oh-chris-boshs-baby-mother-seeks-to-have-their-child-testify-in-custody-battle/
http://madamenoire.com/444759/5-year-old-to-testify-in-chris-bosh-child-custody-trial/
Calling a child to be a witness as to their custodial preferences is always a risk. Judges, at least in Los Angeles County, disfavor it. It’s the Judges discretion whether to allow it, but there would generally need to be a fairly compelling reason if the child is under the age of 14. Judges are not mental health professionals. Since there are a number of different methods of obtaining a child’s preferences or input which does not involve his/her direct testimony in court, such as a custody evaluation, a parenting plan assessment (in Los Angeles County), or minor’s counsel, judges are typically reluctant to meet with children. The younger the child, the more unlikely it will be that the judge will want to speak with her/him.
It is unclear with Mathis wanted her four/five year daughter to testify to and I don’t know the rules as to minor’s testimony in Florida. In California, at least in Los Angeles County, I would be surprised if a judge would want to speak to a four/five year old directly. Also, I would caution against even making this request for a child that is this age unless there are extenuating circumstances because it may reflect poorly to a judge who’s primary objective is to determine the child’s best interest.
http://cocoafab.com/uh-oh-chris-boshs-baby-mother-seeks-to-have-their-child-testify-in-custody-battle/
http://madamenoire.com/444759/5-year-old-to-testify-in-chris-bosh-child-custody-trial/
Calling a child to be a witness as to their custodial preferences is always a risk. Judges, at least in Los Angeles County, disfavor it. It’s the Judges discretion whether to allow it, but there would generally need to be a fairly compelling reason if the child is under the age of 14. Judges are not mental health professionals. Since there are a number of different methods of obtaining a child’s preferences or input which does not involve his/her direct testimony in court, such as a custody evaluation, a parenting plan assessment (in Los Angeles County), or minor’s counsel, judges are typically reluctant to meet with children. The younger the child, the more unlikely it will be that the judge will want to speak with her/him.
It is unclear with Mathis wanted her four/five year daughter to testify to and I don’t know the rules as to minor’s testimony in Florida. In California, at least in Los Angeles County, I would be surprised if a judge would want to speak to a four/five year old directly. Also, I would caution against even making this request for a child that is this age unless there are extenuating circumstances because it may reflect poorly to a judge who’s primary objective is to determine the child’s best interest.
Monday, July 7, 2014
Update on Failure to Make Child Support Payments
An update on my previous blog from last week (July 1)! Apparently, Houston resident, Clifford Hall, who was jailed for failing to pay child support has been released after one week. Hall’s wages were being withheld to pay the child support but, due to some type of clerical error by his employer, the wages were improperly withheld or not being paid to the mother. He is current and has paid $1,000 extra but was still sentenced to six months in jail due to the existing Texas law.
He is now released after serving one week and has set up visitation with his son.
http://www.chron.com/news/houston-texas/houston/article/Man-jailed-for-failure-to-pay-child-support-to-be-5596990.php
He is now released after serving one week and has set up visitation with his son.
http://www.chron.com/news/houston-texas/houston/article/Man-jailed-for-failure-to-pay-child-support-to-be-5596990.php
Thursday, July 3, 2014
Tuesday, July 1, 2014
Failure to Make Child Support Payments
Clifford Hall from Houston, Texas was sentenced to six months in jail for failure to pay his child support. He fell behind and owed more than $3,000 in child support. His wages were garnished but his company failed to submit the money to the court for his ex-wife to collect. Hall has become current plus an extra $1,000 but could not avoid facing jail time based on a Texas law.
http://www.click2houston.com/news/dad-begins-jail-sentence-in-complicated-child-support-case/26639554
When making support payments (spousal or child), make sure that you have proof of payment. If you are making the payments directly to the other person, then keep good records of your checks or bank statements showing payment. This can also be helpful in the future if the other party claims that you failed to make payments. If you can’t prove that you made the payments, then you probably won’t get credit for them. Failure to pay child support can lead to a number of unpleasant consequences ranging from suspension of your driver’s license to jail time.
http://www.click2houston.com/news/dad-begins-jail-sentence-in-complicated-child-support-case/26639554
When making support payments (spousal or child), make sure that you have proof of payment. If you are making the payments directly to the other person, then keep good records of your checks or bank statements showing payment. This can also be helpful in the future if the other party claims that you failed to make payments. If you can’t prove that you made the payments, then you probably won’t get credit for them. Failure to pay child support can lead to a number of unpleasant consequences ranging from suspension of your driver’s license to jail time.
Thursday, June 19, 2014
International Child Custody and Child Abduction: Who Are The "Good Guy" and "Bad Guy" Countries? The Most Recent Hague Convention Report
The most recent State Department Report on Compliance with the Hague Convention on the Civil Aspects of International Child Abduction shows that even those countries which have signed off on the Convention do not always comply with it. Even Western Hemisphere countries, including Costa
Rica, Guatemala, and Honduras, are inconsistent in their compliance. If you're in a dispute over the custody of your children, and the other parent proposes to travel out of the U.S., you should consult an experienced custody attorney in advance; in this situation, an ounce of prevention may be far less expensive, and better than a ton of cure. A hat tip to international custody guru Jeremy Morley for the pointer.
Wednesday, June 18, 2014
Consequences of Intentionally Avoiding Support
Buena Park city council member, Sangjin Miller Oh, age 50, was convicted of five counts of perjury by declaration. Between September 23, 2004 and July 20, 2009, Oh signed official DMV documents using fraudulent information on five separate occasions. He did this to avoid paying child support to his ex-wife by hiding his assets under a false name.
Apparently, Oh applied for a driver’s license under a different name, Robert Oh, and failed to disclose that he had previously applied for a license under a different name, as is required by law, he failed to disclose that his license had been suspended in the past, and on four other occasions, he used is fraudulently obtained license to register vehicles. Oh is also a real estate developer.
http://www.oc-breeze.com/2014/05/31/53056_buena-park-mayor-convicted-of-perjury-to-avoid-paying-child-support/
In California, parents have a duty to support their children. If a judge finds that a parent has intentionally done something to change their income in an effort to reduce or avoid support, there are consequences. The consequences include imputing income to that parent and calculating support based on what they were making, or should be making. Additionally, once you have made false representations to a judge, it is difficult to try and regain credibility. Depending on the circumstances, parties may also have a fiduciary duty to accurately disclose financial information to each other and to update such information if anything changes. When signing paperwork under the penalty of perjury you are signing it under oath and it is essential that all such information you are signing to is correct.
Apparently, Oh applied for a driver’s license under a different name, Robert Oh, and failed to disclose that he had previously applied for a license under a different name, as is required by law, he failed to disclose that his license had been suspended in the past, and on four other occasions, he used is fraudulently obtained license to register vehicles. Oh is also a real estate developer.
http://www.oc-breeze.com/2014/05/31/53056_buena-park-mayor-convicted-of-perjury-to-avoid-paying-child-support/
In California, parents have a duty to support their children. If a judge finds that a parent has intentionally done something to change their income in an effort to reduce or avoid support, there are consequences. The consequences include imputing income to that parent and calculating support based on what they were making, or should be making. Additionally, once you have made false representations to a judge, it is difficult to try and regain credibility. Depending on the circumstances, parties may also have a fiduciary duty to accurately disclose financial information to each other and to update such information if anything changes. When signing paperwork under the penalty of perjury you are signing it under oath and it is essential that all such information you are signing to is correct.
Friday, June 13, 2014
Child Support Owed to an Incarcerated Parent
Tracey Richter is serving life in prison in Iowa for the 2001 murder of 20 year old Dustin Wehde. Richter has been receiving child support arrears payments from her ex-husband, Michael Roberts who began paying back the child support owed after their divorce. After she had received $2,000 in payments from Roberts, a judge ordered that Richter no longer has any dependents and doesn’t need the money to support herself. The judge ordered that the funds be garnished and go to pay the $150,000 restitution that Richter owes Wehde’s family.
Roberts eventually received custody of the their children and moved back to his native Australia. He still owes approximately $45,000 in child support arrears and $60,000 in property and attorney fees. This is still owed even if Richter is incarcerated. Once child support is incurred, then it’s owed and you can’t get rid of the obligation. It’s non-dischargeable in bankruptcy and becomes a creditor against your estate after your death. So, just because Richter is in jail for life doesn’t mean that Roberts doesn’t owe the back child support. The judge made the decision here that the payments that would have gone to Richter because it’s back child support technically owed to her, will go to settle an existing debt she owes, the restitution.
It also should be noted that Richter currently owes Roberts $20 per month in child support under a separate court order. This current order doesn’t affect the amount of arrears that Roberts owes since that is already an existing and calculated debt.
http://www.kcci.com/news/judge-child-support-will-go-to-murder-victim-restitution/26416116#!Xc2pS
http://www.desmoinesregister.com/story/news/crime-and-courts/2014/06/11/judge-orders-child-support-restitution-tracey-richter/10312483/
Roberts eventually received custody of the their children and moved back to his native Australia. He still owes approximately $45,000 in child support arrears and $60,000 in property and attorney fees. This is still owed even if Richter is incarcerated. Once child support is incurred, then it’s owed and you can’t get rid of the obligation. It’s non-dischargeable in bankruptcy and becomes a creditor against your estate after your death. So, just because Richter is in jail for life doesn’t mean that Roberts doesn’t owe the back child support. The judge made the decision here that the payments that would have gone to Richter because it’s back child support technically owed to her, will go to settle an existing debt she owes, the restitution.
It also should be noted that Richter currently owes Roberts $20 per month in child support under a separate court order. This current order doesn’t affect the amount of arrears that Roberts owes since that is already an existing and calculated debt.
http://www.kcci.com/news/judge-child-support-will-go-to-murder-victim-restitution/26416116#!Xc2pS
http://www.desmoinesregister.com/story/news/crime-and-courts/2014/06/11/judge-orders-child-support-restitution-tracey-richter/10312483/
Monday, June 9, 2014
If You're Going To Get Married, Please Do It Correctly
This new case from New York stands for the (reasonably obvious?) proposition that if you scrupulously avoid doing any of those things which would cause you to have a valid marriage, then you're not married, even if you have a big elaborate "wedding", presided over by an internet-ordained "clergyperson", who also fails to do any of those things.
The take-away, for me, is the Court's observation that "getting married is a serious decision that has wide ranging and often everlasting consequences." Those who follow this blog have heard me preach, almost incessantly, that folks getting married should treat the decision just this way. Certainly those who go out of their way to disregard and sidestep both the civil and religious requirements for the process shouldn't generally be allowed to change their minds about their seriousness, even after the big party is over.
The usual hat tip to Howard Friedman at Religion Clause.
The take-away, for me, is the Court's observation that "getting married is a serious decision that has wide ranging and often everlasting consequences." Those who follow this blog have heard me preach, almost incessantly, that folks getting married should treat the decision just this way. Certainly those who go out of their way to disregard and sidestep both the civil and religious requirements for the process shouldn't generally be allowed to change their minds about their seriousness, even after the big party is over.
The usual hat tip to Howard Friedman at Religion Clause.
Wednesday, June 4, 2014
Child Support for a Non-Biological Child
Brian F., a Minnesota man, signed an affidavit of paternity in 1995, five months after a baby boy was born. That child is now 19 years old. Brian was ordered to pay child support and in 2009, the state removed the boy from his mother’s custody and the state asked for an increase of child support from Brian F. to $369 per month. In 2011, Brian requested the child support be reduced or terminated. In these proceedings, a genetic test done in 2012 revealed that Brian F. wasn’t the boy’s biological father.
In June 2012, the court referee recommended that Brian F. not be held responsible for child support payments since he is not the biological father. On October 29, 2012, Douglas County Nebraska District Judge Peter Battalion set aside the finding of paternity and terminated child support as of the date of the paternity test, May 31, 2012.
Earlier this month, the Nebraska Supreme Court found that the district court improperly expanded the scope of the action when it took a modification of child support and turned it into an action challenging paternity. It also found “because Brian was still legally the father under the paternity decree, the district court further erred when it terminated child support based solely on the finding that Brian was not the biological father of the child.” The case was reversed to Dougas County to address the modification of child support.
http://journalstar.com/news/local/911/man-who-isn-t-biological-dad-responsible-for-child-support/article_6c861757-7d2a-5557-b022-cd0a1ce34970.html
In California, we also use declarations (affidavits) of paternity. If someone signs one, there is only a certain period of time to contest it. If it’s not contested, it becomes conclusive as to paternity. After that time period, the person signing will be unable to request genetic testing. Part of the responsibilities of being a legal father to a child is the financial responsibility. Once someone is determined to be the father, he may be liable for child support. After a determination of paternity has been made, like with Brian F., that obligation may still exist even if it is discovered that the person is not the biological father.
In June 2012, the court referee recommended that Brian F. not be held responsible for child support payments since he is not the biological father. On October 29, 2012, Douglas County Nebraska District Judge Peter Battalion set aside the finding of paternity and terminated child support as of the date of the paternity test, May 31, 2012.
Earlier this month, the Nebraska Supreme Court found that the district court improperly expanded the scope of the action when it took a modification of child support and turned it into an action challenging paternity. It also found “because Brian was still legally the father under the paternity decree, the district court further erred when it terminated child support based solely on the finding that Brian was not the biological father of the child.” The case was reversed to Dougas County to address the modification of child support.
http://journalstar.com/news/local/911/man-who-isn-t-biological-dad-responsible-for-child-support/article_6c861757-7d2a-5557-b022-cd0a1ce34970.html
In California, we also use declarations (affidavits) of paternity. If someone signs one, there is only a certain period of time to contest it. If it’s not contested, it becomes conclusive as to paternity. After that time period, the person signing will be unable to request genetic testing. Part of the responsibilities of being a legal father to a child is the financial responsibility. Once someone is determined to be the father, he may be liable for child support. After a determination of paternity has been made, like with Brian F., that obligation may still exist even if it is discovered that the person is not the biological father.
Wednesday, May 28, 2014
Incarcerated Birth Parents' Rights to Their Children
Kim and Dave Hodgin became the foster parents of Sonya before she was two. She was adopted by them in 2008. Before the adoption was finalized, Sonya’s birth father, John McCaul pled guilty to transporting firearms and was sentenced to 15 years in federal prison. Under Tennessee law, parents who are incarcerated for more than ten years do not have any rights to a child under the age of 8, so McCaul’s custody rights to Sonya were terminated. McCaul later cut a deal by providing information that he had about a homicide and his sentence was reduced to 7 ½ years which allowed him to assert his parental rights and fight to reverse the adoption.
http://www.cnn.com/2014/05/15/us/tennessee-adoption-battle/
In November 2009, the adoption was reversed but Sonya continued to live with the Hodgins while both sides disputed custody. In January 2014, a judge returned Sonya, now 9 years old, to McCaul’s custody. Sonya has moved from the Hodgins’ home in Tennessee and now lives in Omaha, Nebraska with McCaul. According to the Hodgins, Sonya has been begging to come home. The Hodgins have filed a petition in Tennessee requesting that Sonya be returned to their custody.
http://www.nydailynews.com/news/national/girl-begs-adoptive-parents-retrieve-biological-dad-custody-article-1.1795109
Both these article imply that there were no visits between Sonya and her biological father during his incarceration, so she essentially has no memories of him and as the Hodgins state, he is a stranger to her. It is surprising to me that custody was changed so drastically and so suddenly. I am not implying that this was the wrong decision, only that I am surprised that the judge ordered Sonya to live with essentially a stranger without some type of transitional period. While McCaul will remember Sonya, the reverse isn’t true and I would imagine there would be a slightly less traumatic way to transition Sonya into McCaul’s custody gradually.
http://www.cnn.com/2014/05/15/us/tennessee-adoption-battle/
In November 2009, the adoption was reversed but Sonya continued to live with the Hodgins while both sides disputed custody. In January 2014, a judge returned Sonya, now 9 years old, to McCaul’s custody. Sonya has moved from the Hodgins’ home in Tennessee and now lives in Omaha, Nebraska with McCaul. According to the Hodgins, Sonya has been begging to come home. The Hodgins have filed a petition in Tennessee requesting that Sonya be returned to their custody.
http://www.nydailynews.com/news/national/girl-begs-adoptive-parents-retrieve-biological-dad-custody-article-1.1795109
Both these article imply that there were no visits between Sonya and her biological father during his incarceration, so she essentially has no memories of him and as the Hodgins state, he is a stranger to her. It is surprising to me that custody was changed so drastically and so suddenly. I am not implying that this was the wrong decision, only that I am surprised that the judge ordered Sonya to live with essentially a stranger without some type of transitional period. While McCaul will remember Sonya, the reverse isn’t true and I would imagine there would be a slightly less traumatic way to transition Sonya into McCaul’s custody gradually.
Monday, May 19, 2014
No More Babies if You Owe Support?
In September 2012, an Ohio man, Asim Taylor, 36 years old now, pled guilty to four charges of non-payment of child support for his four children and was sentenced to five years of probation. In January 2013, Taylor agreed and was ordered to pay $1,700 of his $96,000 arrearage by October 16, 2013 or else he would serve 30 days in jail (a process called a “purge”). Taylor failed to pay the purge amount and was sent to jail.
The court ordered that Taylor was not to get any other women pregnant until he could support the four children that he already has. Specifically Taylor was ordered to “make all reasonable efforts to avoid impregnating a woman during community control or until such time that [Taylor] can prove to the court that he is able to provide support for his children he already has and is in fact supporting the children or until a chance in conditions warrant the lifting of this conviction.”
Taylor appealed this decision arguing that the probation condition that he could not procreate was unreasonable and unconstitutional. On appeal, the Ninth Circuit upheld the lower court’s decision but found that they were unable to determine the merits of the sentence. The record was not adequate for a complete review and to determine the circumstances behind the court’s imposition of probation. Taylor pled guilty so there was no trial record and the sentencing record was minimal. The trial court was to determine probation conditions with reference to the purpose of probation and the circumstances of the case. The appellate court was unable to determine, based on the record provided, whether the condition was reasonably related to rehabilitation, had a relationship to the crime, and relates to future criminal activity.
http://www.morningjournal.com/general-news/20140513/ninth-district-court-of-appeals-upholds-lorain-child-support-case
There is a duty for parents to support their children. The premise of the Judge's orders appears to be to ensure that Taylor doesn't have more children until he can financially support the children that he has already fathered. As an order restricting someone's ability to procreate, however, there might be some constitutional issues. Also, it is unclear how the order would be enforced, or the penalties if violated (if he does, in fact, have another child).
The court ordered that Taylor was not to get any other women pregnant until he could support the four children that he already has. Specifically Taylor was ordered to “make all reasonable efforts to avoid impregnating a woman during community control or until such time that [Taylor] can prove to the court that he is able to provide support for his children he already has and is in fact supporting the children or until a chance in conditions warrant the lifting of this conviction.”
Taylor appealed this decision arguing that the probation condition that he could not procreate was unreasonable and unconstitutional. On appeal, the Ninth Circuit upheld the lower court’s decision but found that they were unable to determine the merits of the sentence. The record was not adequate for a complete review and to determine the circumstances behind the court’s imposition of probation. Taylor pled guilty so there was no trial record and the sentencing record was minimal. The trial court was to determine probation conditions with reference to the purpose of probation and the circumstances of the case. The appellate court was unable to determine, based on the record provided, whether the condition was reasonably related to rehabilitation, had a relationship to the crime, and relates to future criminal activity.
http://www.morningjournal.com/general-news/20140513/ninth-district-court-of-appeals-upholds-lorain-child-support-case
There is a duty for parents to support their children. The premise of the Judge's orders appears to be to ensure that Taylor doesn't have more children until he can financially support the children that he has already fathered. As an order restricting someone's ability to procreate, however, there might be some constitutional issues. Also, it is unclear how the order would be enforced, or the penalties if violated (if he does, in fact, have another child).
Tuesday, May 13, 2014
Validity of Custody Orders Issued by a Tribal Court
Layla Billie and Kevin Stier had two children. Billie is a Native American part of the Miccosukee tribe in Florida. Stier is non-Native American. They were never married and it’s unclear whether they ever lived together.
Billie initiated custody proceedings in Miccosukee Tribal Court on October 1, 2012. The Tribal Court accepted jurisdiction and awarded Billie temporary custody and set a hearing for November 5, 2012. The only notice that Stier received was a mail addressed to his mother’s house. He appeared at the hearing with an attorney, but his attorney was not allowed to attend the proceedings. Stier was allowed to attend, but they were largely conducted in the Miccosukee language which he doesn’t understand. He wasn’t provided an interpreter. At the end, Stier was given a short synopsis of Billie’s testimony, then the Tribal Court extended Billie’s temporary custody.
Stier filed a Petition for custody on November 1, 2012 in the Circuit Court of Miami-Dade County, Florida. In March 2013, Billie filed for permanent custody in the Tribal Court and simultaneously filed a motion in the Circuit Court requesting a dismissal of Stier’s Petition on the grounds that the Circuit Court lacked jurisdiction under the UCCJEA (Uniform Child Custody Jurisdiction Enforcement Act). The Circuit Court determined that it had proper jurisdiction because the Tribal Court didn’t substantially comply with the jurisdictional requirements of the UCCJEA.
http://www.indianz.com/News/2014/013394.asp
Billie appealed the order. The Court of Appeals affirmed the circuit court. According to the Court of Appeals, the Tribal Court was not in substantial conformity with the UCCJEA for five main reasons, 1) Stier didn’t receive proper notice of the Tribal Court proceedings pursuant to Florida law and hadn’t submitted to jurisdiction of the Tribal Court, 2) Stier didn’t have an opportunity to be heard at the temporary custody hearing; 3) Stier’s attorney wasn’t allowed into the Tribal proceedings; 4) The proceedings in the Tribal Court were conducted in the Miccosukee language, Stier wasn’t given an interpreter; 5) Billie testified in Miccosukee for over 20 minutes, the Tribal Court gave Stier only a two minute summary in English before granting temporary custody to Billie.
http://www.3dca.flcourts.org/Opinions/3D13-3180.pdf
What I find interesting about this case is that while the Circuit Court doesn’t have to comply with the orders of the Tribal Court, the Tribal Court doesn’t necessarily have to comply with the decision of the Circuit Court or the Court of Appeals. Presumably, the Tribal Court isn’t within the American court system and they were found to not be in substantial conformity with the UCCJEA. I would suspect that the decisions of the Circuit or Appellate Court are not binding on them and they can still issue rules under their own jurisprudence. If Billie chooses to disregard the Court of Appeals ruling and to live with the children on Miccosukee land and if additional orders are issued from both courts, I imagine there may be an issue of enforcement in both directions of both sets of orders.
Billie initiated custody proceedings in Miccosukee Tribal Court on October 1, 2012. The Tribal Court accepted jurisdiction and awarded Billie temporary custody and set a hearing for November 5, 2012. The only notice that Stier received was a mail addressed to his mother’s house. He appeared at the hearing with an attorney, but his attorney was not allowed to attend the proceedings. Stier was allowed to attend, but they were largely conducted in the Miccosukee language which he doesn’t understand. He wasn’t provided an interpreter. At the end, Stier was given a short synopsis of Billie’s testimony, then the Tribal Court extended Billie’s temporary custody.
Stier filed a Petition for custody on November 1, 2012 in the Circuit Court of Miami-Dade County, Florida. In March 2013, Billie filed for permanent custody in the Tribal Court and simultaneously filed a motion in the Circuit Court requesting a dismissal of Stier’s Petition on the grounds that the Circuit Court lacked jurisdiction under the UCCJEA (Uniform Child Custody Jurisdiction Enforcement Act). The Circuit Court determined that it had proper jurisdiction because the Tribal Court didn’t substantially comply with the jurisdictional requirements of the UCCJEA.
http://www.indianz.com/News/2014/013394.asp
Billie appealed the order. The Court of Appeals affirmed the circuit court. According to the Court of Appeals, the Tribal Court was not in substantial conformity with the UCCJEA for five main reasons, 1) Stier didn’t receive proper notice of the Tribal Court proceedings pursuant to Florida law and hadn’t submitted to jurisdiction of the Tribal Court, 2) Stier didn’t have an opportunity to be heard at the temporary custody hearing; 3) Stier’s attorney wasn’t allowed into the Tribal proceedings; 4) The proceedings in the Tribal Court were conducted in the Miccosukee language, Stier wasn’t given an interpreter; 5) Billie testified in Miccosukee for over 20 minutes, the Tribal Court gave Stier only a two minute summary in English before granting temporary custody to Billie.
http://www.3dca.flcourts.org/Opinions/3D13-3180.pdf
What I find interesting about this case is that while the Circuit Court doesn’t have to comply with the orders of the Tribal Court, the Tribal Court doesn’t necessarily have to comply with the decision of the Circuit Court or the Court of Appeals. Presumably, the Tribal Court isn’t within the American court system and they were found to not be in substantial conformity with the UCCJEA. I would suspect that the decisions of the Circuit or Appellate Court are not binding on them and they can still issue rules under their own jurisprudence. If Billie chooses to disregard the Court of Appeals ruling and to live with the children on Miccosukee land and if additional orders are issued from both courts, I imagine there may be an issue of enforcement in both directions of both sets of orders.
Monday, May 5, 2014
"Coupling" and "Uncoupling", Conscious Or Not
“Conscious Uncoupling” is the most recent "flavor of the month” to be launched into the popular terminology and fashion in divorce, following on the heels of “Integrative divorce”, “collaborative divorce”, and the division of “mediation” among “transformative”, “evaluative”, “facilitative”, and “adjudicative” mediation.
Leaving aside for a moment some of the more eccentric and New-Age-y thoughts* of the authors from whom Ms. Paltrow drew the phrase, the term suggests, as the other bookend, “conscious coupling”. That is a concept which I have been advocating and will advocate as long as I continue to have folks willing to listen to, or read, my thoughts on the subject. **
Those who’ve read this blog know that I believe and advocate that the closest someone about to marry can get to a policy of “marriage insurance” is making sure that both spouses-to-be have the same understanding and expectations of “the Deal”, the contract they sign on for when they say “I do”. Competent financial planners, when interviewing married potential clients, routinely ask both spouses to separately answer questions about financial philosophy, risk aversion, etc., and this occasionally uncovers widely divergent views, often to their clients’ dismay. Likewise, clergy whom I respect, regardless of denomination, often will want, before performing a wedding for their congregants, to have a serious pastoral discussion with them about their mutual understanding of their “covenant” (which is just an old word for a contract.)
If there’s more “Conscious Coupling”, there’ll probably be less “uncoupling”, conscious or otherwise.
* “The creation of insects was a failed attempt by nature to evolve a higher form of consciousness”, “Anthroposophic Medicine” and my favorite, “The misunderstandings involved in divorce also have much to do with the lack of intercourse between our own internal masculine and feminine energies. Choosing to hide within an endoskeleton and remain in attack mode requires a great imbalance of masculine energy. ” This latter is obviously intended to assist those who have considered developing an exoskeleton to hide in when they get divorced; Paging Gregor Samsa....
**Just passed my 25th anniversary, so I claim some personal, as well as professional expertise.
Leaving aside for a moment some of the more eccentric and New-Age-y thoughts* of the authors from whom Ms. Paltrow drew the phrase, the term suggests, as the other bookend, “conscious coupling”. That is a concept which I have been advocating and will advocate as long as I continue to have folks willing to listen to, or read, my thoughts on the subject. **
Those who’ve read this blog know that I believe and advocate that the closest someone about to marry can get to a policy of “marriage insurance” is making sure that both spouses-to-be have the same understanding and expectations of “the Deal”, the contract they sign on for when they say “I do”. Competent financial planners, when interviewing married potential clients, routinely ask both spouses to separately answer questions about financial philosophy, risk aversion, etc., and this occasionally uncovers widely divergent views, often to their clients’ dismay. Likewise, clergy whom I respect, regardless of denomination, often will want, before performing a wedding for their congregants, to have a serious pastoral discussion with them about their mutual understanding of their “covenant” (which is just an old word for a contract.)
If there’s more “Conscious Coupling”, there’ll probably be less “uncoupling”, conscious or otherwise.
* “The creation of insects was a failed attempt by nature to evolve a higher form of consciousness”, “Anthroposophic Medicine” and my favorite, “The misunderstandings involved in divorce also have much to do with the lack of intercourse between our own internal masculine and feminine energies. Choosing to hide within an endoskeleton and remain in attack mode requires a great imbalance of masculine energy. ” This latter is obviously intended to assist those who have considered developing an exoskeleton to hide in when they get divorced; Paging Gregor Samsa....
**Just passed my 25th anniversary, so I claim some personal, as well as professional expertise.
Common Financial Issues In Divorce
http://online.wsj.com/news/articles/SB10001424052702303380004579521661563711986
Interesting read about the some common issues in divorces identified by financial experts from the financial perspective. For the most part, I agree with everything these experts say. Often, I will advise clients to consult with a financial advisor before so that they can resolve many of these common issues or determine whether these will even be a problem based on the particular assets and debts of a case and their potential division.
Interesting read about the some common issues in divorces identified by financial experts from the financial perspective. For the most part, I agree with everything these experts say. Often, I will advise clients to consult with a financial advisor before so that they can resolve many of these common issues or determine whether these will even be a problem based on the particular assets and debts of a case and their potential division.
Wednesday, April 30, 2014
Why "Self Help" In Child Custody Cases Is a Bad Idea
Kelly Cooney, 35 of Lee’s Summit, Missouri has been charged, in Iowa with conspiracy to commit first degree burglary, conspiracy to go armed with intent, and child endangerment. Kevin Carter, 50, from Raytown, Missouri has also been charged, in Iowa, with first degree burglary, going armed with intent, assault while causing serious injury and carrying weapons.
Apparently, Cooney and Carter broke into the house of Cooney’s son’s father. Carter used a stun gun on the father while he was holding the child and Cooney took the child from the father. Cooney and Carter attempted to flee with the child. The ex-husband of a neighbor saw what happened and had a valid weapon permit. He retrieved his gun and fired several shots to deflate the tires of the Cooney and Carter’s vehicle.
Cooney and Carter are being held in Boone County Jail in Iowa.
There are some reported custody issues between Cooney and the boy’s father. It is unclear whether there are existing orders, or whether there are legal proceedings in Missouri or Iowa.
http://www.lsjournal.com/2014/04/16/114117/lees-summit-woman-arrested-in.html
There are limited, if any, instances in which exercising self help in a family law matter is appropriate. Even if one party may not be doing anything technically against any rules, self help typically implies a lack of communication and cooperation. Using the example from above, even though it’s an extreme one, let’s assume there were no custody orders in place and there wasn’t even a case filed. It would be true that the father had no more custodial rights to the child than Cooney. Even if she is a perfectly competent mother, she would be hard pressed to find a judge that would be able to overlook the facts (assuming they are true), that she broke into the house, used a stun gun on the child's father, then tried to forcibly remove the child from the father. At this point, she may be hard pressed to find a judge that will give her anything other than monitored visitation with her child, and that’s after she’s released from jail.
Apparently, Cooney and Carter broke into the house of Cooney’s son’s father. Carter used a stun gun on the father while he was holding the child and Cooney took the child from the father. Cooney and Carter attempted to flee with the child. The ex-husband of a neighbor saw what happened and had a valid weapon permit. He retrieved his gun and fired several shots to deflate the tires of the Cooney and Carter’s vehicle.
Cooney and Carter are being held in Boone County Jail in Iowa.
There are some reported custody issues between Cooney and the boy’s father. It is unclear whether there are existing orders, or whether there are legal proceedings in Missouri or Iowa.
http://www.lsjournal.com/2014/04/16/114117/lees-summit-woman-arrested-in.html
There are limited, if any, instances in which exercising self help in a family law matter is appropriate. Even if one party may not be doing anything technically against any rules, self help typically implies a lack of communication and cooperation. Using the example from above, even though it’s an extreme one, let’s assume there were no custody orders in place and there wasn’t even a case filed. It would be true that the father had no more custodial rights to the child than Cooney. Even if she is a perfectly competent mother, she would be hard pressed to find a judge that would be able to overlook the facts (assuming they are true), that she broke into the house, used a stun gun on the child's father, then tried to forcibly remove the child from the father. At this point, she may be hard pressed to find a judge that will give her anything other than monitored visitation with her child, and that’s after she’s released from jail.
Monday, April 21, 2014
Impact of Domestic Violence on Children
The majority of domestic violence goes unreported. Only one in four cases of domestic violence will be reported. According to a study published by the American Psychological Association, parents or caregivers were physically injured in more than one out of three cases in which children witnessed domestic violence, but less than 2% of the cases resulted in jail time for the perpetrator.
This study included 517 children who had witnessed domestic violence in some form in their household. Three out of four children saw the domestic violence, 21% heard it and 3% saw the injuries later. Incidents of domestic violence was spread relatively equally throughout socio-economic lines. The children were from families of various ethnicities, 53% white, 20% African American, 16% Latino and 11% other races. Three out of four perpetrators were male.
The study found that children who witness domestic violence are more likely to experience depression, anxiety, nightmares, teen dating violence and disruptions with school work. According to the study, these effects are similar to when the children are the victims of the abuse themselves.
http://www.newsroomamerica.com/story/415878.html
This study included 517 children who had witnessed domestic violence in some form in their household. Three out of four children saw the domestic violence, 21% heard it and 3% saw the injuries later. Incidents of domestic violence was spread relatively equally throughout socio-economic lines. The children were from families of various ethnicities, 53% white, 20% African American, 16% Latino and 11% other races. Three out of four perpetrators were male.
The study found that children who witness domestic violence are more likely to experience depression, anxiety, nightmares, teen dating violence and disruptions with school work. According to the study, these effects are similar to when the children are the victims of the abuse themselves.
http://www.newsroomamerica.com/story/415878.html
Monday, April 7, 2014
Child Support Obligation After Death of the Child
David A. Shane, now 47 years old, was convicted in 1997 of the 1994 murder and feticide of 23 year old Nicole Lynn Koontz who was seven months pregnant with Shane’s co-defendant’s, Robert L. Hicks’, child. Shane is serving a 60 year sentence for the crime.
Shane and his ex-wife divorced in 1990 and have a daughter Ashlie born in 1988. He was ordered to pay $67 per week in child support. Ashlie died in a house fire in April 2006 when she was 18 years old. At the time of her death, Shane was not current on his child support payments and owed some child support arrears. In December 2012, Delaware County child support obtained an income withholding order to recover some of the child support arrears.
Shane earns $0.95 per hour working in the prison laundry and works about 37 hours per week. The Delaware Circuit Court ruled that Shane must continue to pay 55% of his prison wages to pay off the child support arrears because the child support arrears don’t terminate with the death of the child. The Indiana Court of Appeals upheld this ruling and found that Shane missed the deadline to appeal the decision by nine days.
http://www.usatoday.com/story/news/nation/2014/03/31/convicted-murderer-must-pay-child-support/7118465/
In California, the obligation to financially support your children is taken seriously. Failure to pay child support can result in revocation of the driver’s license, or any other licenses or permits issued by the state of California, or even potential jail time. Child support arrears can’t be discharged during bankruptcy and if the paying parent dies, if there are child support arrears, the receiving parent becomes a creditor against paying parent’s estate for repayment of the arrears. While the death of the child would have terminated the current child support order, the arrears were incurred while the child was still alive and the arrears don’t get discharged because the child is no longer living. The receiving parent is still owed the money that he/she should have received as financial assistance from the other parent during that period.
Tuesday, April 1, 2014
Update on the Pelletier Case
This is a follow up to one of my older blogs about Justina Pelletier, the 15 year old Connecticut teenager who suffers from some psychiatric and physical medical issues. Justina was removed from her parents’ custody while receiving medical treatment at a Boston area hospital and temporarily placed in the custody of the state.
Last week, Massachusetts Juvenile Court JudgeJoseph Johnston awarded "permanent" custody of Justina to the state. Her parents are not allowed to appeal the decision until summer.
According to the Boston Globe, the Judge found there was sufficient evidence to find that Justina’s parents "were unfit to care for the complex medical and psychiatric needs of their daughter." The state has no immediate plans to return Justina to Connecticut or to the custody of her parents.
http://www.boston.com/news/local/massachusetts/2014/03/25/justina-pelletier-placed-permanent-custody-massachusetts/lMO3EJpwPOfiVJWu06IY5K/story.html
Last week, Massachusetts Juvenile Court JudgeJoseph Johnston awarded "permanent" custody of Justina to the state. Her parents are not allowed to appeal the decision until summer.
According to the Boston Globe, the Judge found there was sufficient evidence to find that Justina’s parents "were unfit to care for the complex medical and psychiatric needs of their daughter." The state has no immediate plans to return Justina to Connecticut or to the custody of her parents.
http://www.boston.com/news/local/massachusetts/2014/03/25/justina-pelletier-placed-permanent-custody-massachusetts/lMO3EJpwPOfiVJWu06IY5K/story.html
Monday, March 31, 2014
"Domestic Violence" and "Disturbing The Peace": How Should They Be Defined?
California’s Domestic Violence Prevention Act (“the DVPA”) was intended to streamline and simplify the process of protecting victims, including children, from familial abuse. Two recent cases have blurred the definition of “domestic violence” to a point where it is now difficult even for experienced lawyers to predict, in a given case, whether particular conduct rises to the level at which a particular judge, on a particular day, will issue a permanent restraining order. Since DVPA restraining orders have serious long-term consequences to the rights of the person at the “business end” *, particularly in any case involving children, this is a far from trivial concern.
The problems start with a circular legal definition: California Family Code (“FC”) Section 6203 defines “abuse” as:
(1) "... causing or attempting to cause bodily injury";
(2) sexual assault,
(3) "placing a person in ... ...apprehension of imminent serious bodily injury..."
or
(4) (and here’s the problem) engaging in “...in any behavior that has been or could be enjoined pursuant to FC 6320".
FC 6320, in turn, allows the court to "enjoin" any of the following: molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, harassing, telephoning, (including, but not limited to, making annoying telephone calls) ... ...destroying personal property, contacting, either directly or indirectly, by mail or otherwise, coming within a specified distance of, or disturbing the peace of the other party, and ... ... of other named family or household members” and may “include in a protective order a grant of the exclusive ... ...possession... ...of any animal .... The court may order the respondent to stay away from the animal and forbid the respondent from taking, transferring, encumbering, concealing, molesting, attacking, striking, threatening, harming, or otherwise disposing of the animal.”
So if a judge finds that the person to be (but not yet) restrained did any of those things which the court could have restrained, then it appears that the judge may be required to issue the both he temporary and permanent restraining order.
The recent Court of Appeal opinion in Burquet/Brumbaugh**, echoing the earlier opinion in Marriage of Nadkarni***, expands the applied definition of “disturb the peace” . In Nadkarni, the appellate court said:
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" ... ... may include... ... 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 e-mails. .... Datta's conduct included accessing, reading, and • publicly disclosing the content of Darshana's confidential e-mails, and that his conduct caused her to suffer "shock" and "embarrassment," to fear the destruction of her "business relationships," and to fear for her safety. In other words, Datta's conduct with respect to Darshana's e-mail account, as stated in her declaration, allegedly caused the destruction of her mental or emotional calm...
The court of Appeal reversed the trial court’s refusal to grant a restraining order.
In Burquet, the appellate court affirmed trial court’s granting of a permanent restraining order, on a showing that “defendant, because of his inability to accept that his romantic relationship with the plaintiff was over, and despite plaintiff’s numerous requests that he not contact her, was engaging in a course of conduct of contacting plaintiff by phone, email, and text, which messages contained inappropriate sexual innuendos, and arriving at her residence unannounced and uninvited, and then refusing to leave and making a scene, when she refused to see him for the purpose of causing her to renew their romantic relationship.” **** There was no showing that Brumbaugh had ever threatened anyone, or attempted to enter Ms. Burquet’s residence over her objection (in fact, he left the scene voluntarily).
What is problematic about these cases is the reliance on the parties’ past emotional history in determining what does or doesn’t constitute “abuse” which results in the issuance of a restraining order; effectively, the past emotional relationship of the parties may convert otherwise “non-abusive” conduct into conduct upon which a court can base a permanent restraining order.
When a legal process requires judges to perform this sort of psychoanalysis, in a short hearing between (generally) unrepresented litigants, on a crowded calendar, while attempting to prevent recurrence of true domestic abuse and violence, we have a problem.
* These consequences can include a permanent, “un-expungible” record of the issuance of a temporary order, even if the court later finds that there is no basis for issuing a permanent order, which record will affect any sort of application which requires a background check or disclosure; a presumption that the restrained person should not be awarded sole or joint custody of any child, deprivation of the right to possess a firearm, even in the course of one’s job, and other serious, long-term consequences. See Shebby, D. “Hey Joe, Where You Going With That Gun: Do The Automatic Firearms Restrictions In California DVPA Orders Conflict With The Second Amendment”, ACFLS Family Law Specialist 2013:3 p. 1.
**B248031 Los Angeles County Super. Ct. No. BQ039688 Filed 1/14/14; pub. order 2/11/14.
***IRMO Nadkarni (2009) 173 Cal.App.4th 1483
**** ”“He knocked on the door and plaintiff opened it but did not invite him inside. After a short conversation she told him to respect her wishes and to leave. ‘He got angry. He started saying very—in a loud voice “I love you, I don’t know, I’m sorry.’” She was afraid of what he was going to do, and said ‘Please leave, I’m scared. I will call the police.’ ‘And that’s when he shouted at me through my door window, I want to see you do that.’ Defendant still did not leave, he paced around her porch for about 10 minutes. After about ten minutes he called her from his cell phone and told her he was leaving. He asked her not to be scared, but she was scared because he was angry. On two prior occasions during their relationship when he had gotten angry he became physical with her. He left before the police arrived.”
The problems start with a circular legal definition: California Family Code (“FC”) Section 6203 defines “abuse” as:
(1) "... causing or attempting to cause bodily injury";
(2) sexual assault,
(3) "placing a person in ... ...apprehension of imminent serious bodily injury..."
or
(4) (and here’s the problem) engaging in “...in any behavior that has been or could be enjoined pursuant to FC 6320".
FC 6320, in turn, allows the court to "enjoin" any of the following: molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, harassing, telephoning, (including, but not limited to, making annoying telephone calls) ... ...destroying personal property, contacting, either directly or indirectly, by mail or otherwise, coming within a specified distance of, or disturbing the peace of the other party, and ... ... of other named family or household members” and may “include in a protective order a grant of the exclusive ... ...possession... ...of any animal .... The court may order the respondent to stay away from the animal and forbid the respondent from taking, transferring, encumbering, concealing, molesting, attacking, striking, threatening, harming, or otherwise disposing of the animal.”
So if a judge finds that the person to be (but not yet) restrained did any of those things which the court could have restrained, then it appears that the judge may be required to issue the both he temporary and permanent restraining order.
The recent Court of Appeal opinion in Burquet/Brumbaugh**, echoing the earlier opinion in Marriage of Nadkarni***, expands the applied definition of “disturb the peace” . In Nadkarni, the appellate court said:
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" ... ... may include... ... 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 e-mails. .... Datta's conduct included accessing, reading, and • publicly disclosing the content of Darshana's confidential e-mails, and that his conduct caused her to suffer "shock" and "embarrassment," to fear the destruction of her "business relationships," and to fear for her safety. In other words, Datta's conduct with respect to Darshana's e-mail account, as stated in her declaration, allegedly caused the destruction of her mental or emotional calm...
The court of Appeal reversed the trial court’s refusal to grant a restraining order.
In Burquet, the appellate court affirmed trial court’s granting of a permanent restraining order, on a showing that “defendant, because of his inability to accept that his romantic relationship with the plaintiff was over, and despite plaintiff’s numerous requests that he not contact her, was engaging in a course of conduct of contacting plaintiff by phone, email, and text, which messages contained inappropriate sexual innuendos, and arriving at her residence unannounced and uninvited, and then refusing to leave and making a scene, when she refused to see him for the purpose of causing her to renew their romantic relationship.” **** There was no showing that Brumbaugh had ever threatened anyone, or attempted to enter Ms. Burquet’s residence over her objection (in fact, he left the scene voluntarily).
What is problematic about these cases is the reliance on the parties’ past emotional history in determining what does or doesn’t constitute “abuse” which results in the issuance of a restraining order; effectively, the past emotional relationship of the parties may convert otherwise “non-abusive” conduct into conduct upon which a court can base a permanent restraining order.
When a legal process requires judges to perform this sort of psychoanalysis, in a short hearing between (generally) unrepresented litigants, on a crowded calendar, while attempting to prevent recurrence of true domestic abuse and violence, we have a problem.
* These consequences can include a permanent, “un-expungible” record of the issuance of a temporary order, even if the court later finds that there is no basis for issuing a permanent order, which record will affect any sort of application which requires a background check or disclosure; a presumption that the restrained person should not be awarded sole or joint custody of any child, deprivation of the right to possess a firearm, even in the course of one’s job, and other serious, long-term consequences. See Shebby, D. “Hey Joe, Where You Going With That Gun: Do The Automatic Firearms Restrictions In California DVPA Orders Conflict With The Second Amendment”, ACFLS Family Law Specialist 2013:3 p. 1.
**B248031 Los Angeles County Super. Ct. No. BQ039688 Filed 1/14/14; pub. order 2/11/14.
***IRMO Nadkarni (2009) 173 Cal.App.4th 1483
**** ”“He knocked on the door and plaintiff opened it but did not invite him inside. After a short conversation she told him to respect her wishes and to leave. ‘He got angry. He started saying very—in a loud voice “I love you, I don’t know, I’m sorry.’” She was afraid of what he was going to do, and said ‘Please leave, I’m scared. I will call the police.’ ‘And that’s when he shouted at me through my door window, I want to see you do that.’ Defendant still did not leave, he paced around her porch for about 10 minutes. After about ten minutes he called her from his cell phone and told her he was leaving. He asked her not to be scared, but she was scared because he was angry. On two prior occasions during their relationship when he had gotten angry he became physical with her. He left before the police arrived.”
Friday, March 28, 2014
Interesting Discussion of Orthodox Judaism And Divorce
from Alex Leichter With a tip of a (very stylish) hat to her.
Wednesday, March 26, 2014
Recovery under the Hague Convention
Christian Nørgaard, a Danish computer science engineer was working in California when he met and married Tammy Zied, a software engineer. They married in Redwood City, California and had two daughters, Mia and Sarah, both born in California. The family moved to Germany then Denmark for Christian’s employment.
While living in Denmark, the couple separated and in 2012, the Danish courts granted sole custody of both children to Christian. Tammy accused Christian of violence against her and the daughters. Mia began running away from Christian’s home, according to Tammy, to "escape the violence". Last May, Mia arrived in the United States and Sarah was left in Denmark with Christian. It is unclear whether Mia came to the United States with permission of Christian and was never returned, or whether Mia went to the United States without the consent of Christian and against the court order.
According to an article published in the Copenhagen Post in August 19, 2013, Mia was reported as kidnapped to Interpol after Tammy failed to return her to Christian after an Easter visit. Tammy had told the police that Mia had run away and she didn’t know where she was. Police suspected that Tammy was hiding Mia and held her in custody for five days. When she was released, Tammy disappeared.
http://cphpost.dk/news/american-mother-suspected-of-kidnapping-her-daughter.6461.html
Mia and Tammy were living in Laguna Niguel. On January 31, 2014, the local authorities took Mia to a youth facility. Christian returned to California and Mia was returned to him a few days later. It appears that Mia is now with Christian and Sarah in Denmark.
Christian filed a Petition in Orange County under the Hague Convention and received assistance from the United States in the return of Mia to his custody.
http://www.ocregister.com/articles/mia-604827-denmark-danish.html
Generally, exercising self-help in custody cases is not a good option. If faced with a similar situation or if you don't like the orders that are in place, the remedy would be to petition the court that made the orders, in this case Denmark, for a modification. Orders are binding and disobeying a court order or using self-help will make it more difficult to obtain custody or visitation in the future.
While living in Denmark, the couple separated and in 2012, the Danish courts granted sole custody of both children to Christian. Tammy accused Christian of violence against her and the daughters. Mia began running away from Christian’s home, according to Tammy, to "escape the violence". Last May, Mia arrived in the United States and Sarah was left in Denmark with Christian. It is unclear whether Mia came to the United States with permission of Christian and was never returned, or whether Mia went to the United States without the consent of Christian and against the court order.
According to an article published in the Copenhagen Post in August 19, 2013, Mia was reported as kidnapped to Interpol after Tammy failed to return her to Christian after an Easter visit. Tammy had told the police that Mia had run away and she didn’t know where she was. Police suspected that Tammy was hiding Mia and held her in custody for five days. When she was released, Tammy disappeared.
http://cphpost.dk/news/american-mother-suspected-of-kidnapping-her-daughter.6461.html
Mia and Tammy were living in Laguna Niguel. On January 31, 2014, the local authorities took Mia to a youth facility. Christian returned to California and Mia was returned to him a few days later. It appears that Mia is now with Christian and Sarah in Denmark.
Christian filed a Petition in Orange County under the Hague Convention and received assistance from the United States in the return of Mia to his custody.
http://www.ocregister.com/articles/mia-604827-denmark-danish.html
Generally, exercising self-help in custody cases is not a good option. If faced with a similar situation or if you don't like the orders that are in place, the remedy would be to petition the court that made the orders, in this case Denmark, for a modification. Orders are binding and disobeying a court order or using self-help will make it more difficult to obtain custody or visitation in the future.
Monday, March 17, 2014
Demographics of Reported Cases of Child Maltreatment
The Centers for Disease Control and Prevention (CDC) has released statistics and demographic data regarding the victims and perpetrators of child maltreatment. It appears that most of the data was obtained and processed through information that was provided by state child protective services agencies, so this might be only data of reported child maltreatment cases.
Of the victims, 79% were the victims of neglect, 18% of physical abuse, 9% of sexual abuse and 10% of other maltreatment such as threatened abuse, parent’s drug/alcohol abuse or lack of supervision. In 2011, 35% of the victims were younger than 3 and children younger than 1 have the highest rate of victimization (21.2 per 1,000 children). In 2011, 80.8% of the abuse was by a parent, 5.9% was by relatives other than parents, 4.4% by unmarried partners of parents and 2.9% by other unrelated adults. Again, in 2011, 45.1% of perpetrators were men and 53.6% were women.
http://www.cdc.gov/violenceprevention/pdf/cm-data-sheet--2013.pdf
Of the victims, 79% were the victims of neglect, 18% of physical abuse, 9% of sexual abuse and 10% of other maltreatment such as threatened abuse, parent’s drug/alcohol abuse or lack of supervision. In 2011, 35% of the victims were younger than 3 and children younger than 1 have the highest rate of victimization (21.2 per 1,000 children). In 2011, 80.8% of the abuse was by a parent, 5.9% was by relatives other than parents, 4.4% by unmarried partners of parents and 2.9% by other unrelated adults. Again, in 2011, 45.1% of perpetrators were men and 53.6% were women.
http://www.cdc.gov/violenceprevention/pdf/cm-data-sheet--2013.pdf
Tuesday, March 11, 2014
Concealing Assets During a Divorce
A northern California man, Steven Zinnel, was sentenced to more than 17 years in prison for declaring bankruptcy and hiding assets to avoid paying child support and spousal support. He was also ordered to pay a $500,000 fine and forfeit assets worth more than $2,8 million. The sentence is said to be one of the longest prison terms given for bankruptcy fraud in federal court in the Sacramento Eastern District of California.
Zinnel, the father of two teenage children, split from his wife in 1999 and had a contentious divorce. Apparently, there was a history of Zinnel concealing his assets throughout he case and afterwards in an attempt to avoid paying support.
http://www.mercurynews.com/california/ci_25280558/northern-california-man-who-hid-assets-avoid-paying
In California, spouses have a fiduciary duty to disclose their complete financial information to each other. If a party’s financial situation changes (upwards or downwards), that party also has a duty to provide supplemental or amended information to the other party disclosing the change to their finances.
Zinnel, the father of two teenage children, split from his wife in 1999 and had a contentious divorce. Apparently, there was a history of Zinnel concealing his assets throughout he case and afterwards in an attempt to avoid paying support.
http://www.mercurynews.com/california/ci_25280558/northern-california-man-who-hid-assets-avoid-paying
In California, spouses have a fiduciary duty to disclose their complete financial information to each other. If a party’s financial situation changes (upwards or downwards), that party also has a duty to provide supplemental or amended information to the other party disclosing the change to their finances.
Monday, March 10, 2014
Family Law And Religion, Again
The first defendant has entered a Federal guilty plea in the "extort a divorce" ("get a get"?) case in New York. David Hellman, a New York personal trainer, succumbed to a Federal sting operation, and traveled across a state line (or more specifically, across the GW bridge) to meet with some co-conspirators, and an FBI undercover agent, posing as the brother of a soon-to-be-ex-wife who needed her soon-to-be-ex-husband "convinced" to grant her a get, a religious divorce.
A tip o' the kippah to Howard Friedman at Religion Clause.
A tip o' the kippah to Howard Friedman at Religion Clause.
Thursday, March 6, 2014
Permissive Parenting: Best Interest of the Children?
A British court removed two boys, ages 11 and 14 from their 41 year old mother’s custody and placed them in the custody of their 43 year old father. Judge Laura Harris ruled that the mother had "significantly failed" the boys by her permissive parenting. She would sleep, use her Ipad or phone for hours at a time while her children would care for themselves. This caused issues for the children who were frequently late or would miss school. Additionally, mother was found to be systematically "poisoning" the children against their father.
http://www.telegraph.co.uk/news/uknews/law-and-order/10643643/Mother-loses-custody-battle-over-permissive-parenting-style.html
In California, similar to Judge Laura Harris in this case, courts will be reluctant to tell parents how to parent their children and will be tolerant of various parenting styles. If, however, the parenting is not in the best interest of the children or is causing the children harm, then courts will intervene. Also, "poisoning" or alienating the children against the other parent is also not in the best interest of the children and courts will tend to favor the parent they believe will foster the relationship between the children and the other parent.
http://www.telegraph.co.uk/news/uknews/law-and-order/10643643/Mother-loses-custody-battle-over-permissive-parenting-style.html
In California, similar to Judge Laura Harris in this case, courts will be reluctant to tell parents how to parent their children and will be tolerant of various parenting styles. If, however, the parenting is not in the best interest of the children or is causing the children harm, then courts will intervene. Also, "poisoning" or alienating the children against the other parent is also not in the best interest of the children and courts will tend to favor the parent they believe will foster the relationship between the children and the other parent.
Wednesday, March 5, 2014
Decision From SCOTUS Regarding Hague Convention
(yes, the Hague Convention on International Child Abduction, NOT the one about dropping bombs from Zeppelins): Lozano v. Montoya Alvarez, stating that the one year "statute of limitation" within which the courts of a country to which a child has been abducted (or, in the language of the statute, "removed") must order a child "returned" to the original place of residence is not extended if the child is concealed.
Friday, February 28, 2014
Enforceable PreNups for the UK? Maybe Only Kinda Sorta...
The UK Law Commission has issued a report recommending legislation for the determination of the validity of premarital agreements in the UK. Reports seem to disagree as to the extent to which courts would be permitted to second guess the agreements if the agreements seek to allocate the obligations of spouses to support each other.
A rainy California hat tip to Jeremy Morley, international custody expert, who discusses the proposal in more detail.
A rainy California hat tip to Jeremy Morley, international custody expert, who discusses the proposal in more detail.
Tuesday, February 25, 2014
Lottery Winnings and Child Support
In October 2013, Angel R. Tamayo, Jr. presented a winning lottery ticket for $25,000. He has been told that he owes more than the net, after tax value of the lottery winnings ($17,250) in back child support to the Department of Human Services of Georgia. A third party, Tracey Dawn Gibson, also claims she is the rightful winner of the lottery ticket. Gibson's relationship to Tamayo is unclear.
http://www.ajc.com/news/news/25k-ga-lottery-ticket-disputed-money-could-go-to-c/ncy3S/
At least in California, if a custodial parent receives certain types of state assistance (cash aid, etc) which also benefits a child, then the county will automatically open a case against the non-custodial parent for reimbursement to the county for some of the funds used to help support that child. The reach of child support services is long, they can intercept tax refunds, freeze bank accounts, and, yes, collect lottery winnings from a non-custodial parent to satisfy an unpaid child support obligation.
Thursday, February 6, 2014
Demographics of Insurance Coverage
http://www.cdc.gov/nchs/data/nhis/earlyrelease/insur201312.pdf
Report released by the CDC in December 2013 which gives the percentages of people insured in this country broken down factors such as age, gender, race, and state from January through June 2013. California is one of the states that has a higher percentage of uninsured people than the national average. 7.2% of children between 0 to 17 years old in California were insured at the time of the interview that was used to obtain the data for this study.
I suspect that these numbers and percentages are going to change with the Affordable Care Act and it will be interesting to see the difference between January through June 2013 and January through June 2014. There was no statistically significant difference between January through June 2012 and January through June 2013.
Report released by the CDC in December 2013 which gives the percentages of people insured in this country broken down factors such as age, gender, race, and state from January through June 2013. California is one of the states that has a higher percentage of uninsured people than the national average. 7.2% of children between 0 to 17 years old in California were insured at the time of the interview that was used to obtain the data for this study.
I suspect that these numbers and percentages are going to change with the Affordable Care Act and it will be interesting to see the difference between January through June 2013 and January through June 2014. There was no statistically significant difference between January through June 2012 and January through June 2013.
Thursday, January 30, 2014
Are "Friends" Friends? Social Media and Law
Is being a Facebook "friend" of the judge, the same as being "friends with the judge"? Florida seems unsure, and blawger Ilya Somin has some additional thoughts on Florida's view. As someone who's friends, and "friends", with a judge (I'm also married to her), it's of some interest. A tip of the mortarboard, per usual, to Prof. Volokh, now over on the Washington Post's platform.
Wednesday, January 15, 2014
Medical Treatment and Best Interest of a Child
Linda and Lou Pelletier from West Hartford, Connecticut are the parents of 15 year old Justina. Justina was originally diagnosed with a rare, genetic mitochondrial disease. She was being treated at Boston’s Tufts Medical Center. In February 2013, Justina was barely able to walk and virtually stopped eating so her parents took her to Tufts. She was sent to Boston Children’s Hospital because her Tufts gastroenterologist had recently transferred there. At Children’s Hospital, the doctors disputed the diagnosis and began to suspect that there was a psychological issue and that her parents were blocking the psychiatric care that she needed.
The parents complained of the change in treatment without involving Justina’s gastroneterologist. They then threatened to take Justin from Children’s hospital and back to Tufts. At this point, the doctors reported their suspicions of medical child abuse to the state and the child protective agency took emergency custody of Justina.
Justina has been in Boston Children’s Hospital for the last ten months, mostly in the psychiatric ward. The state has had difficulty placing Justina in foster care or a residential center due to her complicated case. Justina’s parents have been trying, over the last ten months, to regain custody of their daughter.
Their last court date was at the end of December, 2013. They had been hoping that Justina could return by Christmas. The Judge ruled that Justina would remain in the custody of hte state but that a court investigator should look at the case and set a new hearing for January 10.
Due to the gag order placed on this case preventing the release of information, we don’t know most of the details of this case or facts. It does appear that based on an evaluation, there was some determination of "medical child abuse" which, according to this article, is "applied to parents suspected of interfering with their child’s medical care of pushing for unnecessary and even harmful treatments." The Pelletiers are still attempting to regain custody of Justina.
http://www.bostonglobe.com/lifestyle/health-wellness/2013/12/21/state-retains-custody-teen-limbo-children-hospital-for-months/5TGcy5X8IxQusdtXgRmXdK/story.html
In California, the standard is the best interest of the child(ren). A determination would be made whether withholding treatment is in the best interest of the child(ren). In an instance where withholding or refusing medical treatment would result in the death or series injury in a minor child, it is likely that a judge would appoint a guardian ad litem for the minor who would then authorize the medical treatment, even if it is against the wishes of the parents.
The parents complained of the change in treatment without involving Justina’s gastroneterologist. They then threatened to take Justin from Children’s hospital and back to Tufts. At this point, the doctors reported their suspicions of medical child abuse to the state and the child protective agency took emergency custody of Justina.
Justina has been in Boston Children’s Hospital for the last ten months, mostly in the psychiatric ward. The state has had difficulty placing Justina in foster care or a residential center due to her complicated case. Justina’s parents have been trying, over the last ten months, to regain custody of their daughter.
Their last court date was at the end of December, 2013. They had been hoping that Justina could return by Christmas. The Judge ruled that Justina would remain in the custody of hte state but that a court investigator should look at the case and set a new hearing for January 10.
Due to the gag order placed on this case preventing the release of information, we don’t know most of the details of this case or facts. It does appear that based on an evaluation, there was some determination of "medical child abuse" which, according to this article, is "applied to parents suspected of interfering with their child’s medical care of pushing for unnecessary and even harmful treatments." The Pelletiers are still attempting to regain custody of Justina.
http://www.bostonglobe.com/lifestyle/health-wellness/2013/12/21/state-retains-custody-teen-limbo-children-hospital-for-months/5TGcy5X8IxQusdtXgRmXdK/story.html
In California, the standard is the best interest of the child(ren). A determination would be made whether withholding treatment is in the best interest of the child(ren). In an instance where withholding or refusing medical treatment would result in the death or series injury in a minor child, it is likely that a judge would appoint a guardian ad litem for the minor who would then authorize the medical treatment, even if it is against the wishes of the parents.
Tuesday, January 7, 2014
Pre-Marital Planning and Agreements, Around the World
are discussed, briefly, by the BBC. Thanks, and a tip of the Panama fedora (it's 65 in Los Angeles) to Randy Kessler and Jeremy Morley, quoted in the article.
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