November 2011 Archives

Divorcing in California? Protect Your Children

November 28, 2011, by

Talk to your children about what is happening
Only a minority of divorcing parents sit down with their kids and explain that the marriage is ending and encourage them to ask questions. Some say nothing, surely leaving the kids totally confused and fearful. It is so important to talk to your kids, because almost without fail, they know something is wrong, they just don't know what and that creates a great deal of anxiety. Tell them as simply as possible, what is happening and what it means to them and their lives. When parents don't communicate this to the children, the kids feel anxious, upset and fearful and have a much more difficult time coping with the separation and divorce.
Be sensitive and thoughtful
Your children love both of their parents and need to hear about the situation in a way that honors their love for, and relationship with, each parent. If you must litigate, don't leave court filings and documents out where they might be seen. Don't talk to others about the issue in front on the children or where they might overhear. Kids are curious will often go to great lengths to hear what is going on and will sneak up on phone call and other conversations.
Act like a grown-ups and keep the conflict away from the kids
This is so important and has been repeated so often it has become 'common knowledge' and yet it still happens, parents will argue and fight in front of the children and even use them as spies or messengers. Put the children first and refuse to argue in front of them or subject them to your conflict in any way.
Ensure that Dad stays involved
Studies show that the more involved fathers are after separation and divorce, the better it is for the children. Work with your spouse or partner to develop a child-centered parenting plan that allows a continuing and meaningful relationship with both of you. Strong father-child relationships help children do better academically and become well-adjusted adults. Fathers need to be more than just the fun parent, they need to be helping and involved with school, homework, extracurricular activities and also be available emotionally and a co-partner in issues involving discipline.
Don't act out of anger
Some parents, due to anger and pain, try to keep the other parent out of the kids' lives. Divorcing spouses, angry and upset with the other often think the other parent is not good for the kids. But children's and parents needs during divorce are very different. Researchers working with children of divorce consistently highlight that kids want more time with the non-custodial parent.
Be a good parent
It is OK to recognize, be present with, and work through the emotional pain you may feel. But you still need to be there for the children, both physically and emotionally. Competent parenting is one of the most important factors in helping children adjust well to separation and divorce.
Take care of your own mental health
Seek help for feelings of anger, anxiety, and sadness. Even a few meetings with a counselor or therapist can help and your own mental health is tremendously important for the well-being of your chidren. Generally, if you are OK, they will be OK.
Keep the people that are important to your children in their lives
Help your children stay involved with your spouse's family and with friends. This will help your child feel they are not alone in the world, but have a deep and powerful support system - an important factor in becoming a psychologically healthy adult.
Be careful about your future love life
Give yourself a lot of time before you remarry or cohabit again. Especially for young children, forming new attachments to new partners where the relationship may then break up, just creates more loss. And this can lead to depression and a lack of trust generally. And older children need to be given time to learn to adjust to, respect and care for your new partner also.
Pay your child support
Even if you're angry or have little time with your children, this is important. Children of divorce face much more economic instability than those from intact families even with child support. They might not notice or recognize the support when they are young but they will as they get older.

Budget Cuts Threaten Access to Bay Area Family Courts

November 21, 2011, by

Across the country, state courts face severe budget cuts that threaten access to justice for many and California is no exception. California state legislators have cut $350 million from the state court budget, with more cuts certain to follow. Local court will lose $135 million in the fiscal year that began July 1 and another $170 million next year from an overall budget of more than $3 billion.

In Santa Clara County, it means a loss of $6.8 million this year and perhaps more than double that amount next year. San Mateo County's courts will take at least a $2.7 million hit this year, while Alameda County's court system will be cut by more than $6.7 million. Contra Costa County's courts will absorb more than $3 million in cuts and will likewise be forced to cut even more from next year's budget.

For those considering divorce, be prepared. Twenty-five of San Francisco's 63 Superior court chambers have been closed; two hundred of 480 employees will be laid off. "It will take a year and a half to get a divorce in San Francisco and to get a child custody order. If you file suit, we won't do anything with your case for five years," according to San Francisco Superior Court spokesperson Ann Donlan. That can be disastrous if the matter concerns custody of children, visitation, or many other sensitive issues.

Getting on with life after divorce is key, and a long, costly court battle only continues the pain, multiplies the cost, and hurts you and your children.
But, there is hope and a silver lining. Collaborative Divorce and Mediation provide a less destructive and even positive, path to resolving the issues and rearranging the family. Both are sensible alternatives to the embattled and clogged state courts. Either choice will make the process shorter, less traumatic, more equitable and leave more goodwill and cooperation than traditional divorce.

Divorce, Family Law & Pet Custody in California

November 14, 2011, by

We just got a new puppy, a 3 month old Australian Shepherd and while there is no separation or divorce pending, it made me think about what that situation might look like. For many couples who choose to forego having children, their pets become an increasingly important part of the family. But even in many families with children the pet is often almost another child whom all are very attached to. However, the family law system in California and most states provides few options to divorcing pet owners.
In California and most states the law regarding human children is intended to protect the best interests of children in divorce and thus provides for shared custody and support. Pets, however are classified as personal property. Some have advocated for additional recognition and status of companion animals, but legislators have yet to show that type of vision or thoughtfulness, so there is currently no legal distinction between your dog and your sofa when it comes to divorce and no basis in the law for treating the dog any differently than the sofa. (This article assumes the pet is community property) The Court of Appeals Iowa in ruling on an award of a dog to the husband in a dissolution held that a dog is personal property whose best interests need not be considered. In re Marriage of Stewart, 356 N.W. 2D 611 (Iowa Ct. App. 1984)

VALUATION
In order to rule on property division in a dissolution, personal property must be valued, commonly fair market value. The fair market value for companion animals, however, is generally very low while the emotional and sentimental value for the parties is very high. The Alaska Supreme Court in Mitchell v. Heinrichs,27 P.3d 309 (Alaska) held that "In determining the actual value to the owner, it is reasonable to take into account the services provided by the dog. Where, as here, there may not be any fair market value for an adult dog, the "value to the owner may be based on such things as the cost of replacement, original cost, and cost to reproduce." Thus, an owner may seek reasonable replacement costs- including such items as the cost of purchasing a puppy of the same breed, the cost of immunization, the cost of neutering the pet, and the cost of comparable training. Or an owner may seek to recover the original cost of the dog, including the purchase price and, again, such investments as immunization, neutering, and training. Moreover, as some courts have recognized, it may be appropriate to consider the breeding potential of the animal, and whether the dog was purchased for the purpose of breeding with other purebreds and selling the puppies."
Another valuation method considers the companion animal's intrinsic value, focusing on the animal as an individual, based on the value to the human guardian. In Houseman v. Dare, 966 A.2d 24, 29 (N.J. Super. Ct. App. Div. 2009), the court recognized a former couple's dog's intrinsic monetary value at $1,500, but also recognized that the dog represented a "special value" for which the monetary amount presented inadequate compensation.

BEST INTEREST STANDARD
The best interest of the child standard used by courts in ruling on custody and visitation typically includes consideration of factors such as the wishes of the child and parents, parent child and other familial relationships, the mental and physical health of all involved, and the child's relationship to home, school, and community. Sometimes the inquiry will focus on who has been the primary caretaker of the child. Also part of the best interest inquiry, is the presumption that siblings should be kept together.
The A.L.D.F. (Animal Legal Defense Fund) has filed.amicus briefs advocating the best interest approach Along these lines, they offer the following as advice on the website:
In determining custody, courts might consider which party has been primarily involved with the animal's basic daily needs; who takes the animal to the veterinarian; who provides for social interactions; and who has the greatest ability to financially support the animal.
Most courts reject this and stick with their personal property model view of companion animals. However, some courts have, in a circuitous, indirect way, allowed the companion animal's best interest to enter their decisions regarding custody.
In Pratt v. Pratt, No. C4-88-1248, 1988 WL 120251, at *1 (Minn. Ct. App. Nov. 15, 1998) the court held that the best interest standard for children is inapplicable to dogs, but stated that the trial court can consider past mistreatment of the dogs.
In Vargas v. Vargas, No. 0551061, 1999 WL 1244248, at *8, *10, *13 (Conn. Super. Ct. Dec. 1, 1999) the court awarded custody of the couple's dog to the wife after considering that the husband was not treating the dog very well, and his home included both a scrap metal yard and a five-year-old child, despite the fact that the dog was a gift from the wife to the husband and the dog was registered to the husband with the American Kennel Club.

VISTATION AND CUSTODY ARRANGEMNTS

Some parties have argued for such a shared custodial arrangement regarding their companion animals as is common with children. There is no requirement in divorce that the parties' joint ownership of property be terminated and that title be vested in only one spouse. However, an important goal of property division is final separation. Consequently, courts often reject shared custody of companion animals based on a lack of statutory authority for shared custody of personal property, fear of the slippery slope, or judicial economy and the problems that would result from enforcing such an order (ie how to enforce, which agency would be responsible, etc.)

• In Lanier v. Lanier in Pulaski, the wife argued for custody of the dog based on evidence that she kept him away from "ill-bred bitches," ensured that he attend a weekly ladies' Bible class, and prevented others from drinking alcohol in his presence; the husband argued for custody based on the fact that he had taught the dog numerous tricks such as riding on his motorcycle and had himself refrained from drinking beer in front of the dog. The judge granted joint custody of the dog, ordering a switch in custody every six months. The wife then violated the order by moving to Texas.
Jim T. Hamilton, Dog Custody Case Attracts Nationwide Attention, in Tales From Tennessee Lawyers 180, 180-81 (William Lynwood Montell ed., 2005), this portion available at http://www.kentuckypress.com/0813123690excerpt.pdf (last visited July 25, 2009)

• In Juelfs v. Gough, 41 P.3d 593 (Alaska 2002), the couple agreed to shared ownership of their dog which was made part of the court's order. But because of danger to the dog from other dogs in the wife's home and increased conflict between the parties, the court then gave the husband custody and the wife visitation, and finally awarded sole custody to the husband.

• In Bennet v. Bennet, 655 So.2d 109, (Fla. Dist. Ct. App. 1995) the trial court awarded the wife visitation of the dog, but the appellate court overturned the order stating that the trial court lacked authority to order visitation with personal property, and stated that the dog be allocated according to the state's equitable distribution of property doctrine. The court was concerned with judicial economy: "Determinations as to custody and visitation lead to continuing enforcement and supervision problems (as evidenced by the instant case). Our courts are overwhelmed with the supervision of custody, visitation, and support matters related to the protection of our children. We cannot undertake the same responsibility with animals."

• In Desanctis v. Pritchard, 803 A.2d 230, 232 (Pa. Super. Ct. 2002), appeal denied, 818 A.2d 504 (Pa. 2003), a couple's complaint requesting enforcement of a settlement agreement that provided for shared custody of the dog was dismissed by the trial court, and the appellate court upheld the dismissal stating that "[a]ppellant is seeking an arrangement analogous, in law, to a visitation schedule for a table or lamp," and that "any terms set forth in the [a]greement are void to the extent that they attempt to award custodial visitation with or shared custody of personal property."


• The court in Nuzzaci v. Nuzzaci No. CN94-10771, 1995 WL 783006 at *1-*2 (Del. Fam. Ct. Apr. 19, 1995) refused to sign a stipulation and order based on the agreement of the parties and their attorneys regarding visitation of the couple's dog, stating that the court can only award the dog to one party or the other and advising the couple to reach their own agreement since the court has no jurisdiction and no way to side with one party or the other in the event of a future dispute.

• The court conferred special status upon companion animals in Arrington v. Arrington, 613 S.W.2d 565, 569 (Tex. Civ. App. 1981) in classifying them as personal property but also holding that visitation should be allowed.

• In re Marriage of Fore, No. DW 243974 (Minn. Dist. Ct. Jan. 9, 2001) the wife got primary custody of the dog and the husband was granted access during the first seven days of every month. If the wife planned to board the dog for any reason she was to give the husband "the opportunity to spend the additional time with Rudy rather than putting him in a kennel."

• "Just as with childrens' visitation schedules, visitation with pets can occur during specific blocks of time during the year. In Assal v. Barwick, No. 164421 (Md. Cir. Ct. Dec 3, 1999) the husband was given a thirty day visitation period during each summer."

• In Fitch v. Eiseman, No. S-9322, 2000 WL 34545801, at *1-*2 (Alaska Apr. 19, 2000) the divorce decree included the couple's agreement for the dogs to remain with the children, which involved travel between the parties' homes as part of the children's shared custody agreement. When the wife failed to abide by the agreement, the state Supreme Court remanded the matter to the trial court to determine sole ownership of the dog by one of the parties.

Clearly, just as with children, divorcing couples with pets would be well advised to craft agreements for custody and visitation outside of court themselves or through a mediation or Collaborative process.
And ultimately, as with children, try to do what's best for the pet.
Sometimes that may mean the pet stays with the person who keeps the house where it has lived, but not always. Sometimes it's best to have a shared custodial arrangement so each partner gets some time with the pet, but not always.
Unfortunately, in a divorce, there is often little common sense or thoughtful discussion. Sometimes people demand custody just because they can but most often it is because this is a painful time, and the thought of also losing their pet adds to the pain.
If the person who is most heartbroken at the thought of losing the pet is not the one who can, realistically, provide a good environment and life for it, hopefully that person can put aside his or her own desires and do what's best for the pet.