Counseling a client who is contemplating separation or divorce, or even “maybe thinking” about one, is among the most sensitive tasks family law attorneys face, and it draws as much on our counseling skill-set as it does on our lawyering. The reasons for ending a marriage are even more varied than the reasons for starting one, and the level of emotion can be just as high, or higher.
One of our critical tasks in that situation is making sure that our client has useful correct information, both as to the “ground rules” and available options. The mis-information circulating among the public, and even among trusted advisors other than family law attorneys, often exceeds the real stuff in volume.
The California Supreme Court has recently tried, in Marriage of Davis, to clarify one of those ground-rules, but has not provided guidance of much help to most of the public. They sought to resolve the previously complicated question of how to determine when someone, in the words of California Family Code 771 is “... living separate and apart from the other spouse”. This is a critical decision in California, since once that has happened, earnings aren’t community property any more.
Until 2002, it was the (admittedly muddy) rule in California, that parties were separated when they had “come to a parting of the ways with no present intention of resuming the [marital relationship]. ....The question is whether the parties' conduct evidences a complete and final break in the marital relationship.” Until 2002, it was clear that spouses could be ‘separated” while living under the same roof.
Beginning in 2002 in Norviel, the court of appeal chipped away at the second part of that rule, and now, in Davis, the Supreme Court appears to have made the opposite the new rule: “ 'living separate and apart' refers to a situation in which spouses are living in separate residences and at least one of them has the subjective intent to end the marital relationship, which intent is objectively evidenced by words or conduct reflecting that there is a complete and final break in the marriage relationship”.
Until the legislature acts to further clarify this (a multitude of proposed bills are pending) navigating “the beginning of the end” of a marriage will require even more careful and sensitive advice of a sort that only experienced practitioners should be offering.
Mental illness, drugs and alcohol. They are the fodder of the divorce tabloids, and a source of anxiety for clients with family law issues who also are struggling with these problems. Family law clients, particularly parents, fear a public parading of their substance or psychological health issues by their soon-to-be-exes. even if nobody’s holding a press conference in which they proclaim their “tiger blood” .
While California law is quite protective of patients’ rights and confidentiality, there is a risk, even in California, of “opening the door” on these sensitive issues, both to the court and to the public, unless the client receives good advice and counsel before the “door gets kicked open”. While courts go out of their way to protect minor children, and prevent domestic violence, there is a wide recognition that someone who is aware of their own issues, and is taking appropriate steps to address them, may be a better parent than someone who does not have the personal insight and motivation to acknowledge a problem. When necessary, portions of records can be sealed, and subject to a non-disclosure order.
It is also critical, particularly in cases involving children, for there to be good clear communication among the attorney, the treating health professionals, and the client. That way, the right balance can be struck between the privacy needed for successful treatment and the disclosure and acknowledgment which judges may seek to address the legal side of the problem.
Call us regarding our long history of addressing mental health and substance abuse issues in family law cases vigorously, effectively, and discreetly, of coordinating with mental health professionals of national repute, and of providing our clients both theoretical knowledge and practical means to resolve their issues.
Ten Posts directed to trusted advisors, addressing issues of referring "clients with issues", to whom G.S.L.O. can provide ingenuity and practicality in advice and assistance:
I of X:
HOW DO I REFER A PARENT WHO WANTS TO RELOCATE WITH A CHILD?
Recent news stories about the ongoing Kelly Rutherford litigation have brought parental relocation issues to the public attention again, but haven't provided much enlightenment as to what's really going on. Interstate and international mobility continues to expand, demanding that such issues be resolved more frequently, as the "global economy" becomes more truly global.
Parental relocation custody issues are among the most difficult we handle, since there is often only a "least bad" solution for the child, and since reaching that solution can, unless handled carefully, be extraordinarily expensive and time-consuming. As the Rutherford litigation makes clear,unless a relocation issue is addressed optimally, in advance, parents can spend thousands of dollars, and months, if not years, of time, fighting over which court, in which state or country, will hear the custody issue, before any court even begins the process of actually making custody orders, and can so escalate and raise the stakes as to make consensual resolution vastly more difficult.
That delay and expense can work irreversible harm. Unlike ordering the payment of money, a court simply has no way to order one parent to give the other parent back "lost" or "missed" parenting time, "with interest".
The rules applied by courts in parental relocation cases are complex, and vary widely state-by-state, and both the rules for determining custody, and the rules for determining custody jurisdiction vary even more widely internationally. We have more than forty years of combined experience in and familiarity with relocation issues. We tap the wisdom of "coordinating counsel" in the destination state or country, relying on close relationships with accomplished family law attorneys in 46 states*, and in a dozen countries, for that input.
Contact us to learn how our application of "Ingenuity When It Matters, and Practicality When It Counts" can provide critical advance advise, counsel and assistance.
*We fall down on the Dakotas, and Wyoming, but we know four in Alaska!
Courts are being asked to decide vaccination issues between disagreeing parents in child custody cases . These disagreements are catching the public's eye and ears in the wake of the Disneyland measles outbreak, and the public opposition to mandatory vaccination by prominent or at least visible people, who are mostly not scientists.
If you have parenting or custody issues connected with medical treatment of your child, GSLO has experience in addressing these disputes promptly, sensitively, and discreetly.
Acknowledgment for the pointer, as usual, to Eugene Volokh.
