December 2011 Archives

New California Law Allows Mature Children to Be Heard in Custody Matters

December 31, 2011, by

Until now, the law in California regarding a child's ability to address the court in his or her parents' custody case has been very limited, and rarely are children able to testify. Courts have typically heard the child's perspective through reports, or from third parties, such as the court-appointed mediators or sometimes therapists.
The California legislature has approved amendments to this process under Senate Bill AB 1050. The new law, which amends California Family Code §3042 is effective January 1, 2012, modifies the rules about children speaking to the court and give children a greater voice in their custody preferences.

"If a child is of sufficient age and capacity to reason so as to form an intelligent preference as to custody or visitation, the court shall consider, and give due weight to, the wishes of the child in making an order granting or modifying custody or visitation," states Amendment (a) of AB 1050.

Under AB 1050, new procedures will require a court to allow a child to address the court directly regarding his or her preferences, if a child is age 14 or older and so wishes, unless the court determines that doing so is not in the child's best interests (and in that case, the court must state its reasons on the record). If, under the new law, the court precludes a child from testifying in the matter, the court must then provide alternative means of obtaining input from the child and other information regarding the child's preferences (California Family Code §3042(e)).

The new law also clarifies that the court can take into account a child's preferences for child custody and visitation. And the law permits any of several individuals to assist a court in determining whether a child wishes to address the court, including a child's own appointed counsel, an investigator, a mediator, custody evaluator, either parent, or either parent's attorney. The judge may also inquire about whether the child wishes to address the court.

AB 1050 does not prevent a court from allowing a child under age 14 to address the court if the court deems it appropriate, but there is no requirement that the court allow a child to do so.

This provides much more opportunity for mature children to have their preferences heard and to be taken seriously when it comes to matters of custody and visitation, important issues in children's lives.

For more information about the amendments to California Family Code §3042 or any other family law matter, please contact Lorna jaynes by calling (510) 795-6304, or visit the website at www.lornajaynes.com.

Proposition 8 & DOMA - Marriage Equality in California

December 26, 2011, by

Proposition 8 - Perry v. Schwarzenegger
Following the holding of the California Supreme Court in May 2008 in the Perry v. Schwarzenegger case that state statutes limiting marriage to opposite-sex applicants violated the California Constitution, same sex couples flocked to California to marry. But in November of 2008, California voters adopted Proposition 8, a constitutional amendment that precluded same sex marriage. In response, couples denied marriage licenses filed several lawsuits challenging the validity of the amendment and arguing that Prop 8 violates the U.S. Constitutional guarantee of due process and equal protection.

On August 4, 2010, Judge Vaughn Walker announced his ruling in favor of the plaintiffs, overturning Proposition 8 based on the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the U.S. Constitution. Walker determined that California had no rational basis or vested interest in denying gays and lesbians marriage licenses, stating that:
"An initiative measure adopted by the voters deserves great respect. The considered views and opinions of even the most highly qualified scholars and experts seldom outweigh the determinations of the voters. When challenged, however, the voters' determinations must find at least some support in evidence. This is especially so when those determinations enact into law classifications of persons. Conjecture, speculation and fears are not enough. Still less will the moral disapprobation of a group or class of citizens suffice, no matter how large the majority that shares that view. The evidence demonstrated beyond serious reckoning that Proposition 8 finds support only in such disapproval. As such, Proposition 8 is beyond the constitutional reach of the voters or their representatives."
Judge walker noted that Prop 8 was based on traditional notions of marriage and moral disapproval of homosexuality, and neither of those are a valid legal basis for discrimination. He also pointed out that gays and lesbians are the type of minority that strict scrutiny was designed to protect.

Proposition 8 supporters appealed to the US Court of Appeals for the Ninth Circuit which agreed to stay Judge Walker's ruling, pending the appeal. From Judge Walker's decision through November 2011 a series of appeals related to the standing made their way through the Ninth Circuit hierarchy and the California Supreme Court which held that non-governmental proponents of Proposition 8 have the legal standing to defend it, stating that "[I]n the past official proponents of initiative measures in California have uniformly been permitted to participate ... in numerous lawsuits in California courts challenging the validity of the initiative measure the proponents sponsored."

Any final decision by the Ninth Circuit panel may be reheard by an en banc court of 11 active judges, but only if a majority of all of the active judges in the Ninth Circuit vote to rehear it. If subsequently the United States Supreme Court grants review, the process may take years.

DOMA
In August 2008, Karen Golinski and her partner of 18 years, Amy Cunninghis, gathered with family and friends in the rotunda of San Francisco City Hall and exchanged wedding vows.

Golinski and Cunninghis wed before the California voters enacted Proposition 8 banning gay marriage, and their marriage remains legal in California. Golinski, a federal employee as staff attorney for the 9th U.S. Circuit Court of Appeals, then sought to add her spouse to her health plan. But federal agencies rejected her request, citing DOMA (Defense of Marriage Act) -- even though her boss, 9th Circuit Chief Judge Alex Kozinski, concluded she was entitled to the benefits. Golinski sued the government, arguing that DOMA discriminates against legally married same-sex couples by depriving them of the same rights, from health benefits to tax status, as heterosexual couples.

Although one could be forgiven for thinking that Attorney General Eric Holder does not actually exist given his complete failure to prosecute the white collar Wall Street criminals largely responsible for the financial crisis, he has shown some spine on this issue, claiming that the administration considers Section 3 of DOMA to be unconstitutional. Section 3 states that the federal government will not, for any federal purposes, recognize any same-sex marriage. Holder says the administration believes laws disfavoring persons based on sexual orientation should have to pass the most stringent judicial review--heightened scrutiny, and that the administration would argue so in two cases challenging DOMA in the 2nd Circuit.
What a long strange trip it's been. Both cases may be one of several to make its way to the U.S. Supreme Court on the issue of marriage equality.

Co-parenting, Custody & Visitation During the Holidays

December 19, 2011, by

Sorting out and establishing visitation or co-parenting schedules for the holidays can be stressful and unpleasant, but it does not have to be. If it is stressful and unpleasant for you, it is probably also for the kids, and that is not what most parents want for their kids any time, and in particular during a season that is supposed to highlight our better natures.
Hopefully, the following tips will help.

1) Establish a standard that works for all - Alternating holidays every year works well for some families. If the other parent has the kids for Thanksgiving or Christmas this year, next year will be your turn turn. A regular plan can be helpful in eliminating conflict.

2) Be flexible and compromise - Despite your best efforts to create a regular standard, life happens and it is important to be willing to be flexible, compromise and make changes to adjust to the inevitable turns in the road that don't work with the standard schedule.

3) Be respectful - Treat the other parent with respect. You may not want to be spouses or partners anymore, but you need to move forward in a way that will create a positive and mutual co-parenting relationship; honoring the other as a parent. This is important even when the other spouse does not parent the same way you do or would like them to.

4) Don't mix issues - Bringing in relationship issues between you and the other parent or other parenting disagreements may exacerbate the problem and make the holiday schedule even more difficult.

5) Choose your battles - Most everyone has some holidays that are more important to them than others. Try to honor the other parent's most valued holiday as much as possible.

6) Protect the children - Your children will have negative memories of the holidays if they have to witness their parents arguing about the holiday schedule. Better yet, work to solve the problems and don't argue, but if you must don't do it in front of the kids. It is the parents responsibility to ensure that they have positive memories of the holiday season.

7) Plan ahead - Start discussions about the holiday schedule sooner than later, the longer you wait the more stress you will add.

8) Focus on you - You have no control over the other parent's behavior, but you do have control over yours. It is often difficult to take the high road, but more often than not it is the road worth taking.

9) Ask the kids - Find out what it is important to your children. It may be that a particular holiday gathering is special for them; if so, it is probably worth trying to accommodate them.

10) Plan New Traditions - The reality is that you will probably spend holiday time with your children than you did before. Use it as an opportunity to make the time you have together special and meaningful and create new traditions and memories that you and your children will cherish.

11) Breathe - The holidays can be stressful even if you without divorce, breakups and other family problems, so take time to relax and enjoy the holidays with family and friends and find time to be grateful.

Herman Cain, Philandering Politicans & Misappropriation of Community Property

December 6, 2011, by

Herman Cain, erstwhile presidential candidate and pizza chain CEO, whose campaign website proclaims that the ultimate source of our greatness as a nation is America's moral foundation, has now come to be known primarily as a serial sexual predator and long-term philandering husband.

Cain claims that the alleged 13-year extramarital affair was platonic and that the money paid to Ginger White, the woman claiming the affair, was to help her out with bills and expenses due to unfortunate financial circumstances. Indeed, claims Cain, she wasn't the only friend he helped in these tough economic times because he is a soft-hearted person when it comes to this stuff.

Setting aside the issue of whether or not marital infidelity is or should be a relevant factor in the characteristics important in political figures, many influential people, political and otherwise, have had extramarital affairs, including but not limited to, Newt Gingrich, Bill Clinton, Larry Craig, Warren Harding, Franklin D. Roosevelt, Martin Luther King - the list is truly quite endless.

There seems little reason to believe that marital infidelity renders a politician unfit for leadership. Richard Nixon, though monogamous, was a thoroughly corrupt president, while Ted Kennedy, however personally dissolute, was an effective senator. I personally find the hypocrisy more problematic than the conduct itself - don't have affairs and simultaneously campaign about sexual morality.

But whether Mr. Cain's actually had an extramarital affair or was merely helping out a deserving friend, the fact is that he transferred assets/income from the marital estate without his wife's knowledge or consent. If Mrs. Cain files for divorce, the fact of her husband's infidelity is irrelevant in a no fault divorce state. However, she would be entitled to reimbursement for her share of the community assets transferred from the marital estate without her consent.

For example if Mr. Cain spent $1,000 per month for two years on Ms. White that would be a total of $24,000 and Mrs. Cain would be entitled to her share of that amount which is $12,000.

Although simple and straightforward in principle, sorting out these sorts of issues in the context of a litigated divorce can become enormously complicated, time consuming, and of course, ridiculously expensive. Paying attorneys and forensic accountants to sort through and review the bank and credit card statements and other evidence of the alleged misdeeds, and then for their legal briefs, documentation, testimony, possibly depositions and court appearances, may well cost two to four times the contested amount in the $12,000 example, and simply not worth doing.

In a Collaborative or mediated divorce however, it is likely to be far less costly and a relatively simple matter to resolve. The spouses and professionals may only need to review the relevant documents and discuss the issue and I suspect, more often than not, reach an agreement that will enable both parties to feel that the issue is resolved in a fair and expeditious way.

Gay Marriage, Sister Wives, Polygamy, Contracts, Personal Freedom

December 1, 2011, by

I have long been a supporter of gay marriage and the rights of LGBT folks to have the same rights as the rest of us. However, I also think it is important to be flexible and open to new ideas and discussions any all controversial issues. Hence, more ideas on gay marriage and beyond.

As same-sex marriage becomes increasingly legal in various states, more companies require that their employees become legally married in order for their partners to qualify for health insurance. Currently, many of these same companies already provide domestic partner benefits for employees with same sex partner in states where cannot legally marry.

While this would appear to be what advocates of same-sex marriage want, there may also be unintended consequences. One obvious problem is that although the marriage may be recognized in a given state, it is not yet recognized by the federal government making marriage not a feasible choice for some couples and in so doing would deprive them of the health insurance benefits they previously enjoyed. It is important that when states legalize gay marriage, they also keep the domestic partnership option available at least until gay marriage is recognized by the federal government.

More importantly, however, even than maintaining the option of domestic partnerships, is to broaden the narrow terms of the debate. Conservatives want a narrow definition of marriage as only between one man and one woman. The LGBT movement has focused solely on marriage equality. Both are too limiting, since a fundamental problem with marriage is that it only comes in one size as a legal relationship. But as a personal relationship, marriage or its equivalents, is unique and personal and often sacred. Marriage, civil unions and the like, just as any contract or partnership agreement, should be as flexible as a business contract in enabling the participants to create an agreement that is tailored to their needs and circumstances and reflects their values and goals.

Therefore, the struggle for marriage equality should perhaps also include efforts to obtain legal recognition for a wider range of relationships, households and families, regardless of conjugal status. Marriage is not the only form of family or relationship worthy of legally and economically privileged status above others and by making marriage the goal, those who live in non-nuclear families are excluded. This might include blended families, unmarried couples, adult children living with and caring for their parents, grandparents living with and caring for their grandchildren, close friends or siblings in non-conjugal relationships serving as each other's primary support and caregivers.

This is reflected in the lawsuit of Kody Brown and his four wives from the reality TV show, Sister Wives, challenging the Utah polygamy law. Bigamy is a third-degree felony in Utah, and a person can be found guilty of bigamy through cohabitation, not just legal marriage contracts. The Browns', Jonathan Turley, attorney claims that the state is persecuting citizens for living their religious values and the lawsuit seeks to protect a person's right to be left alone. Prosecutors claim the family is committing a felony every night on television. Brown and his 'wives' are relying on the Supreme Court's 2003 decision in Lawrence v. Texas, 539 U.S. 558 (2003), holding that the state could not prosecute people for engaging in private, consensual sexual behavior - in that case, gay sex.

In Lawrence v. Texas the U.S. Supreme Court held, specifically, that "[t]his case does not involve minors, persons who might be injured or coerced, those who might not easily refuse consent, or public conduct or prostitution. It does involve two adults who, with full and mutual consent, engaged in sexual practices common to a homosexual lifestyle. Petitioners' right to liberty under the Due Process Clause gives them the full right to engage in private conduct without government intervention."

Similarly, the relationship between Brown and his wives appears that it does not (directly) involve minors or those who might be injured, a lack of consent or inappropriate public conduct, and would seemingly be entitled to engage in their private conduct without government intervention.