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.
Recent changes in the California version of the Domestic Violence Prevention Act now permit a judge making a restraining order, to make an order for "... the exclusive care, possession, or control of any animal owned, possessed, leased, kept, or held by either the petitioner or the respondent or a minor child residing in the residence.... 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." There is no explanation provided as to what the court should and should not consider to be "good cause" for such an order, and how a court is to resolve conflicting claims to possession of a particular animal.
This new law is inconsistent with long-standing law in California and most other states that dogs, and other "domestic animals" are personal property, to be divided in a divorce, and worth, according to California law, their sale price.
We've negotiated pet custodial arrangements in the past, understanding that, in some cases, the emotional value to a party of a pet may be vastly different than the pet's "market value".
California has not yet recognized any claim for money damages for being deprived of the custody of a dog. A Vancouver judge recently rejected a similar claim in Canada, but it seems to have been only one of several pretty frivolous claims brought by the parties, and all summarily rejected by the judge.
An Emory University study suggests that there is an inverse correlation between the amount a couple spends on the engagement ring and the wedding, and the chance that the marriage will last. I have my own theories about why this correlation may exist, but it does re-emphasize my "sermon" about pre-marital planning. While sitting down and talking about what you intend in the marriage, financially, emotionally, and spiritually, isn't as romantic as picking a ring, or a wedding venue, it's a lot more critical to your long-term marital happiness.
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.
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.
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.
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..."
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.
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.
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.
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
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.
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.
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.
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/
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.
