Pet Custody? What's The Standard?

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.

"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.”

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.

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.

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.

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.

Duty to Disclose

Stuart Strumwasser and Jennifer Johnson got a divorce in New York in 2007. Shortly before filing for divorce, Johnson told Strumwasser that she was going to San Francisco to visit her brother. While in San Francisco, Johnson purchased stock in Twitter. She filed for divorce six months later. The stock was never disclosed or addressed in the divorce settlement. Strumwasser discovered the stock well after the divorce was finalized. As part of the divorce settlement, Johnson was ordered to pay $2,465 per month in child support although he was making a modest income because Johnson demanded he pay support based on income substantially higher than his actual income.

That Twitter stock is now valued at between $10 and $50 million. Strumwasser is requesting $120,000 plus 30% of her Twitter shares.

http://www.nydailynews.com/new-york/brooklyn/twitter-investor-hid-earnings-child-support-dad-article-1.1530653

In California, if a spouse fails to disclose an asset, it is considered an omitted asset. The court reserves jurisdiction (the power to resolve the issue) over the disposition of omitted assets even after a judgment is entered. If the court finds that the omission was intentional or fraudulent, then there are consequences to the party who fails to disclose. Such consequences  can include assigning the entire asset or the entire value of the asset to the other spouse regardless of whether that asset would have been considered community or separate property. Since the penalties can be this severe, it’s important to always disclose everything during a dissolution. In California, spouses not only have a duty to disclose everything (assets and debts) to the other party, they have a duty to update any financial information if it changes during the case. 

Demographics of Child Support Collection

According to the U.S. Census, of the $37.9 billion owed in child support, only $14.4 million was paid in 2011. Where the child had contact with the non-custodial parent, the full amount was received 49.1 percent of the cases. Where the child did not have contact with the non-custodial parent, the full amount of child support was only received 30.7 percent of the time. 

Most custodial parents (81.7%) are mothers. According to the Census study, the more contact a child has with the non-custodial parent, the more likely the custodial parent will receive the full amount of child support. Other factors which were found to be associated with a higher likelihood of receiving the full amount of child support, according to the Census study, were the custodial parent having at least a bachelor’s degree (50.6%), being divorced (48.4) and being age 40 or older (48.4). 56.3 percent of parents sharing joint physical or legal custody received/paid the full amount of child support. This was the highest observed rate in the study.

Factors associated with a lower likelihood of receiving the full amount of child support, according to the study, were being under 30 years old (36.6%), having less than a high school education (36.4%) and never having been married (35.1%).

http://www.census.gov/newsroom/releases/archives/children/cb13-191.html

Custody while Incarcerated

Dorothy Maraglino, 38, was pregnant when she was put in jail in May 2012 and charged with the murder of Brittany Killgore, a 22 year old marine’s wife whose husband was stationed in Afghanistan at the time of the murder. The child, a girl, was born in July 2012. Louis Ray Perez, 47, also a marine, is the father of the child. Perez is also charged with the murder, conspiracy, kidnapping, torture and attempted sexual battery of Killgore.

Maraglino gave custody of her child to Becky Zagha, 38. She says that she didn’t know Zagha well, but Perez asked her to give custody to her. Problems arose when, according to Maraglino, Zagha broke her promise to live in San Diego County and bring the child to weekly visits. Zagha moved to central California soon after the child was born. Zagha apparently also visited Perez and Maraglino frequently before the baby was born, but visits significantly decreased after she took custody.

Last month, Maraglino attempted, in a Fresno Court, to remove the child from Zagha and place her with Maraglino’s sister in South Carolina. The Court declined the request. Maraglino is now appealing that decision.
http://www.utsandiego.com/news/2013/Nov/02/marine-wife-accused-killer-custody/

A parent that is incarcerated doesn’t necessarily immediately lose their parental rights. Depending on their crime, and assuming that it doesn’t involve violence towards the other parent or the children, the incarcerated parent may retain, at least legal custody (decision-making) rights. Visitation can be more complicated and, obviously, overnight visits cannot typically happen. If both parents are incarcerated, in the absence of other arrangements regarding the custody of the children, the state will take custody of the child(ren) and they will be placed in foster care. Similar to any other custody dispute, unless there are written court orders for visitation, there won’t necessarily be visitation unless the custodial parent/guardian chooses voluntarily, to bring the child to the incarcerated parent.

While Zagha may have "promised" to bring the child to Maraglino every week, if there weren’t court orders, then there is no remedy if she doesn’t do that. Once Marglino and Perez gave Zagha custody without any other orders, Zagha was not obligated to bring the child to either parent for visits.

4000 Answers

I just answered my four thousandth question on Avvo.  Think I'll rest.

Parents: your legal guide to Kids and The Law: (free from the California State Bar!)

Just in time for school!   Here it is!

SAME-SEX UNIONS: THE STATE IN THE STATES

    A decade ago, my (law) partner* and I worked on writing same-sex “union” contracts from scratch.**   There’s been a sea-change since then, but the wave is still rolling in, and exactly where it is on a given day, and what we’re advising our clients on a given day, is still very fluid.

IN CALIFORNIA

    In 2004, California adopted “new” Registered Domestic Partnerships (NDP’s).  California NDP’s were thereafter to be treated as having the same legal rights and responsibilities as spouses under California law.  

    This was, however, the era of state and Federal “Defense Of Marriage” Acts.   Under Federal law, and under the law of (then most other) states, NDP’s were not recognized as “spouses” for any purpose, notwithstanding whatever California law had to say about the subject.  By a rough count at that time, Federal laws and regulations referred to “spouses” in a couple of thousand places. This meant, among other things, that California NDP’s had no spousal federal tax rights or benefits, had no spousal rights in connection with any employee benefit plan covered by ERISA, could not file a joint bankruptcy, had no spousal or family rights in regard to immigration, and that none of the spousal rights California conferred were necessarily “portable” to any other state. 

    Following years of court battles, California now permits same-sex couples to marry, i.e., they’re “spouses” not just in effect, but by actual label.  The NDP framework however, still remains available and in place.

IN THE REST OF THE COUNTRY: LABELS STILL MATTER

   
    Federal law and Federal practice, in regard to same-sex partnerships, is slowly changing.  Since Congress has not yet acted to make wholesale changes in Federal law, or to explicitly repeal all parts of the Federal DOMA, these changes are still being made on a department-by department basis.  As noted elsewhere on the blog, both the Treasury Department (IRS) and the Labor Department (ERISA) have now stated that they will recognize any couple designated as “spouses” by the law of a state to be “spouses” for purposes of their Federal regulations.      To date, they have indicated that couples labeled as something other than “spouses” by the law of the state or country where they “contracted the relationship” will not be treated as spouses.

    Exactly how and when remaining Federal laws, regulations, and practice will change remains unclear; equally unclear is whether any of the changes will be given any retroactive effect.

    It also seems likely, after the Supreme Court next addressees the issue that states will no longer be able to decline to recognize “marriages” contracted between same-sex couples from other states.  This result too will probably not carry over to “civil unions”, “domestic partnerships” etc., since those states don’t recognize such status for their own citizens.

    So, for the moment, “labels still matter”.

*Not my law partner any more, but still my wife, now a judge...
**or from duct tape and general contract law.  See Gould-Saltman, D. J., and Gould-Saltman, R.F. (2002) "Gay and Lesbian Marriage and Its Alternatives"  2002 Family Law Update, Brown, R. and Morgan, L. eds,  Aspen Law & Business.

Child Abduction in Custody Disputes

The number of child abduction cases that involve a child custody dispute has increased from 9% in 2009 to 50% in 2012.  The cases included in these statistics are those where a non-custodial parent takes a child(ren) from the custodial parent against the will of the child(ren) or custodial parent. Sometimes the motivation might be to retaliate against the custodial parent, sometimes it’s an effort to reconcile. Apparently, children under the age of three are at the greatest risk of being taken by a non-custodial parent against their or the custodial parent's will.

Early reporting of an abduction to the proper authorities will minimize the likelihood of harm to the child. If there is a history or domestic violence or threats of taking the child(ren), perhaps restraining orders or restricted and/or monitored visitation is appropriate. There are additional steps to reduce the chance of custodial issues or potential abduction or harm to the child(ren) such as always keeping a copy of the entered order at all times, dropping a copy of it off at all the schools, the local police station, and the day care or any other place the children spend time.

Spousal Support and Child Abuse

Ed Abar was convicted of raping his stepdaughter over 16 years starting when she was 9 years old. When her mother, Carol Abar, found out what was happening to her daughter, she divorced Ed. Since Carol was the higher earner, she was ordered to pay Ed spousal support of $1,300 per month. Ed spent more than a year in jail for the rapes. A judge stayed the spousal support payments when he was in jail. He is now out of jail and seeks the reinstatement of the $1,300 per month in addition to approximately $30,000 in back-pay. At the time he was sent to prison, Carol had already paid him $22,000.

http://losangeles.cbslocal.com/2013/05/06/mother-forced-to-pay-spousal-support-to-man-who-raped-daughter/

It does not appear that the judge has granted Ed’s request for spousal support, but the case caught the attention of Assemblywoman, Melissa Melendez who has introduced legislation (AB 681) which would prohibit spousal support from being awarded to a spouse who has been convicted of a violent sexual felony of a child of the marriage. Currently, while domestic violence between the spouses is taken into account when determining spousal support, child abuse is not technically a factor to be considered.

http://losangeles.cbslocal.com/2013/06/21/cbs2-report-inspires-legislation-that-would-prohibit-spousal-support-in-child-sex-abuse-cases/

Celebrity Support Woes.

Charlie Sheen is trying to reduce his child support payments to ex-wife Brook Mueller. Mueller and Sheen’s four year old twins were taken from Mueller by social workers in early May and placed with Sheen's other ex-wife, Denise Richards. Richards is expected to extend the temporary custody another six months while Mueller completes her rehab program and completes the necessary classes to regain custody.

Sheen currently pays Mueller $55,000 per month in child support for the twins and $30,000 per month in mortgage, taxes and insurance payments for the house that the twins and Mueller live in. Sheen requests a reduction in child support since the twins are not in Mueller’s custody. Sheen is a high earner at $739,075 per month, and he already pays the twins’ school and medical expenses and therapy. Sheen argues that Mueller has no expenses for the children at this time since he is covering all the expenses and she does not have custody of them.

There may be authority for Sheen’s argument and he cites the case involving his former co-star, Jon Cryer who made a similar request in 2009 when his ex-wife was arrested for allegations of abuse and the court reduced her visitation to monitored visitation. Cryer was able to reduce the child support from $10,000 to $8,000 per month.

http://www.nydailynews.com/entertainment/gossip/charlie-sheen-brooke-mueller-doesn-deserve-child-support-article-1.1396536

Health Insurance after Divorce.

About 115,000 women per year lose private health insurance in the months following a divorce and more than half that (approximately 65,000) will lose coverage long term. 

http://www.ncbi.nlm.nih.gov/pubmed/23147653

Typically, the court cannot prevent an insurer carrier from ending coverage for a divorced spouse of the named insured because they are no longer "related to" the insured. There may be other options available such as COBRA continuation health coverage which gives former spouses the right to temporary continuation of health coverage at group rates if certain criteria are met. COBRA coverage is paid for by the beneficiary and it can be quite expensive, though it is generally less than individual private health insurance. COBRA costs for health insurance are typically the full cost of the coverage for the beneficiary including the cost to the employee and cost to the employer plus 2% for administrative costs.

COBRA conversion benefits are only available for a set amount of time and will terminate after the maximum period has ended.  If arrangements are not made in advance of COBRA ending, there will be a break in coverage. There may be options available for affordable health care and planning in advance for the anticipated lapse in health care coverage will minimize the length of time uninsured.

Looks Like A Romantic Summer!

Three years after my post noting that boomers and post-boomers seem to be much more comfortable with the idea of "tailoring" their marriage by way of a pre-marital agreement, the economy is slowly emerging from the doldrums, same-sex marriages are happening again in California, and, based on the number of calls I'm getting about relationship planning and pre-nups, Cupid is working overtime.

DOMA Donesky! What Does This Mean For "Domestic Partners" and the "Civilly United"?

I'm still digesting the SCOTUS' decisions in the Federal DOMA and California Prop. 8 cases.  The short take-away is that it is probable (though I will never say certain) that the thousand-plus references to the rights/obligations of "spouses",  in Federal laws and regulations, will now include same-sex couples who are "spouses" under the laws of the state in which they contracted a "marriage".   It is not yet clear is whether or not those folks who have a state-recognized relationship which is called something other than "marriage" will fall within that umbrella.

The State of Engagement Ring Law, Nationwide

This update, thanks and a tip of the "professor hat" to Eugene Volokh.

California Child Custody: What's Going On? Is It Broken? How?

"Believe half of what you see, and none of what you hear. "*

Last week, a Northern California newspaper published an extended piece, asserting, yet again, that the family law system is (quoting the cover headline) "helping pedophiles, batterers get child
custody".

While buried in the body of the piece was an acknowledgment that " it is impossible to say how common such cases are", that isn't exactly the same impression conveyed by the headline.

The same week, the Los Angeles Times ran a story regarding a psychiatrist/child custody evaluator in Los Angeles**. While that story was less obviously agenda-driven than the Northern California piece, it seemed short on well-verified facts, and long on "it is alleged, in documents filed with the court". Again, those authors implied that the problems that they referenced were systemic and pervasive. They offered no evidence for that implication.

There's little to offer.

The "studies" and "research" on the issues of the adequacy of the child custody/family court system in protecting children and victims of domestic violence, including those cited by outlets as reputable as Newsweek, are, if cited in support of any generalization about the system, are thin soup, perilously close to scientific junk.***

It may be that these problems are grossly under-reported, and systemic; my thirty-two years of practice makes me think otherwise, and leads me to conclude that the California system is actually quite child-centered, and victim-protective. I'm certainly unconvinced by the "studies", and by the information in the two articles. While I've railed about the lack of real objective information for nearly a decade, since the last such "scandal' erupted, the quality of the information has not yet noticeably improved.

The problems with the family law system are not, as far as I can tell, mostly the result of some system-wide bias or agenda; they're mostly from (a) the lack of adequate financial resources for the system to address these issues, and (b) the gross mis-allocation of resources within the judicial system. As I've said before, nobody ever successfully ran for statewide office in California on the platform: "I promise to spend more of your tax money on divorce court!"


* Ben Franklin, or E.A. Poe, or Marvin Gaye.

** Note that I have not provided links to the pieces above; they're here: "Helping" "Evaluator"
*** "That's not 'thin soup'. It's rat pee." Prof. Michael Shapiro.
"The plural of 'anecdotes' isn't 'data.' " Frank Kotsonis.