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Happy Outcomes in California Mediated Divorce

April 10, 2012, by

At my favorite local restaurant last weekend I recognized a former divorce mediation client. She did not recognize me as I was dressed in early 19th century garb for a historical event. As I approached her table to say hello, I saw that she was with her former husband, also my client, and their two children.

Since it was a busy Sunday morning brunch in the restaurant and they were with their two young children, it felt inappropriate to inquire about the nature of their dining together. But I have to assume that it was one of two possibilities: (1) either they had reconciled, or (2) they were enjoying a post-divorce family brunch.

I suspect it was the latter, but either way, both are positive and wonderful outcomes that, in my opinion, would almost never occur had the divorce been a contested/litigated one.
This client, pleased with the mediation process, later referred a colleague of hers to me. When I met with the prospective client and her husband I asked, as I often do, what were the hopes and goals of each for themselves, their spouse and their children. The woman responded that she did not care what happened to her husband and did not want him to have any meaningful time with their children. This should have been a big red flag for me that perhaps mediation was not a suitable process for her.

What I should have said to the prospective clients and in particular the wife is that mediation may not be the right choice since it requires more honesty and fair-mindedness and the ability to value post-divorce family relationships than she might be capable of.

Not surprisingly, the case fell apart shortly thereafter and the parties retained litigation counsel and well over a year later, are still battling. Instead of working together to create a good outcome for all, they are presumably paying opposing attorneys to draft disparaging briefs as to the parenting skills and abilities of the other, which may or may not include false accusations and parental alienation, and filing and serving and complying with costly discovery requests rather than simply exchanging the requisite financial information required in any divorce, and the children are surely bearing the brunt of all this negativity.

My mediation clients who dined together on the other hand, even though there was considerable conflict and disappointment at the beginning, learned to see the divorce as a problem to be solved rather than a battle to be won, and learned to focus on creating a new family model for the benefit of their children. Together they worked in mediation to complete their financial disclosures, ascertain the nature of separate/community property and divide the property equitably. Together they discussed and decided how to co-parent and financially support their children, and in the process created a positive, respectful and supportive co-parenting relationship, indeed a positive, respectful, and supportive new family structure that enables joint outings like this that are sure to benefit their children tremendously.

I felt proud and satisfied that I was able to facilitate a process that enabled both clients and their children to enjoy each other's company together as a divorced and still happy family.

For more information, visit us at www.lornajaynes.com

Childhood Obesity in California Custody & Vistation Disputes

March 29, 2012, by

According to the Centers for Disease Control and Prevention, approximately 17%, or about 12.5 million, of the nation's children and teens are obese. Since 1980, according to CDC statistics, obesity rates have nearly tripled.

Should parents of extremely obese children lose custody for not controlling their kids' weight? An article by Dr. David Ludwig in the Journal of the American Medical Association answers in the affirmative, and joins ranks with others who believe the government should be allowed to intervene in extreme cases and that putting children in foster care may be better and more ethical than obesity surgery.

Roughly 2 million U.S. children are extremely obese and though most are not in any imminent danger, many have obesity-related conditions such as Type 2 diabetes, breathing difficulties and liver problems that could kill them by age 30. It is these kids for whom state intervention, including education, parent training, and temporary protective custody in the most extreme cases, should be considered, according to Dr. Ludwig.

Dr. Ludwig states that this is not to blame parents, but rather to act in the children's best interest and get them help that for whatever reason their parents are unable to provide. Others argue that this debate blames parents when childhood obesity is more likely due to advertising, marketing, peer pressure, the suburban environment - things a parent cannot control.

As lamented by the eminent social critic, James Howard Kunstler, "Our towns have committed ritualized suicide in thrall to the WalMart God. Most Americans live in suburban habitats that are isolating, disaggregated, and neurologically punishing, and from which every last human quality unrelated to shopping convenience and personal hygiene has been expunged. We live in places where virtually no activity or service can be accessed without driving a car, and the (usually solo) journey past horrifying vistas of on-ramps and off-ramps offers no chance of a social encounter along the way. Our suburban environments have by definition destroyed the transition between the urban habitat and the rural hinterlands. In other words, we can't walk out of town into the countryside anywhere. Our "homes," as we have taken to calling mere mass-produced vinyl boxes at the prompting of the realtors, exist in settings leached of meaningful public space or connection to civic amenity, with all activity focused inward to the canned entertainments piped into giant receivers -- where the children especially sprawl in masturbatory trances, fondling joysticks and keyboards, engorged on cheez doodles and taco chips."

Maybe that is an extreme characterization, although I think not, but either way, there is no doubt that our children are becoming increasingly obese, and this debate provides much fodder for high-conflict divorcing parents and their hired gun litigators with accusations about their children's weight and nutrition in an effort to convince judges that the other parent is inadequate.

Child custody and visitation battles have always been ugly. But now obesity is increasingly added to the mix of diatribes and aspersions cast from one parent to the other. The specifics vary. Sometimes it is a grossly overweight child and allegations that soft drinks and fast food comprise the child's primary diet. Or perhaps, it is that the other parent is too obese to parent effectively.

Also, a few high profile news events have illuminated the obesity-and-custody issue. In 2009, a 555-pound, 14-year-old South Carolina boy was removed to foster care after his mother was arrested and charged with criminal neglect. The state's Department of Social Services had determined that without state intervention, the boy was at risk of serious harm.

For judges in many states and in California, the question of custody turns on one issue: What is in the best interest of the child? The trend toward shared custody and child-support arrangements often turn on the relative strengths and weaknesses of each parent, so custody battles have become more contentious, since, unfortunately, it seems that people can always find another thing to fight over. How sad when it is their children.
To help judges, some states have added specific criteria to look at when considering the best interests of a child, such as to what degree is a child exercising and eating well. More fodder for the fight.

But parents in a Collaborative Divorce that includes a full team, divorce coaches and a child professional, can benefit from the child development advice and expertise to learn how to co-parent and communicate well and support each other in promoting the best possible physical and emotional health and well being of their children. So maybe it won't change the physical environment articulated so well by JH Kunstler, but at least families can work together to hopefully, limit the toxic effects of that environment.

For more information about this or any other family law matter, please contact Lorna Jaynes by calling (510) 795-6304, or visit the website at www.lornajaynes.com.

California's Child Custody and Relocation Laws Make it Possible for Parents to Move Away With Their Children.

February 5, 2012, by

Since Americans both divorce and move in significant numbers it is no surprise that move-away and relocation issues between divorced parents arise frequently.

The consequences of a move-away case can profoundly impact both the parents and their children and the cases are far more conflicted than the typical high-conflict child custody dispute where the parents fight over the amount of time each will have with the children. The children, caught in the middle of their parents' battle, often feel pressured to choose between their parents, and even when there is not such a choice, the children's relationship with the non-custodial parent is often changed forever.

In 1996, the California State Supreme Court in Burgess v. Burgess made it much easier than it had been for primary custodial parents to move-away. In Burgess, the mother wanted to move with the couple's two children to a town about 40 minutes away. After winning in the Superior Court and losing in the District Court of Appeal, the wife successfully convinced the California State Supreme Court that the trial judge made the right decision in allowing her to move with the children.

The Supreme Court held that a custodial parent who is requesting to move with the children only needs to convince the court that the move would be in the children's best interests. The moving parent no longer had to show that there was an urgent need for the children to move or that a dire situation justified the move. To hold otherwise, the Court said, would require it to ignore the reality that people often relocate after they get divorced. Under Burgess, the only limit on the custodial parent's right to move was the requirement that the move could not be based on a "bad" reason, such as to impede the non-custodial parent's time with the child.

Move-away disputes generally arise where there is an already existing child custody order and the custodial parent wants to relocate the child to another area. In its decision, the Supreme Court said that the nature of the existing child custody order would determine the scope of the court's inquiry in ruling on the matter. So, in cases where the custodial parent has the child for a majority of the time, the non-custodial parent has the burden of convincing the court that there is a "change of circumstances" that require the court to award custody to the non-custodial parent. However, where the parents have a shared custodial arrangement, the trial court was required to make a full redetermination of what custody order was in the best interests of the children.

Unfortunately, however, the Court did not define what it meant by a "shared" custodial arrangement. A general definition was developed in several decisions by the California District Courts of Appeal, in the years following Burgess holding that a shared custody arrangement exists if the noncustodial parent had physical custody at least 40% of the time.

In 2004, 5he California State Supreme Court reconsidered the issue in the Marriage of Lamusga, where the Court reaffirmed and further clarified its Burgess ruling.

In Lamusga the mother asked the court's permission to move from California to Cleveland with the couple's two sons. The Superior Court judge denied the mother's request and the Court of Appeal reversed. The Supreme Court reversed the Court of Appeal and thereby restored the Superior Court's denial of the mother's request.
The Court provided a list of factors to be considered when deciding whether to modify a custody order in a move-away situation.

  1. If the move-away request is part of an initial child custody determination, the court's decision is to be based on a determination of what arrangement is in the best interests of the child. (See section 3, below)
  2. If the request is for a modification of an existing custody order, it depends upon the nature of the current custody arrangement.
    • If the parents are sharing physical custody of the child (i.e. at least a 60%/40% sharing) the decision is based on what is in the children's best interests. (See section 3, below)
    • If one parent has physical custody of the child for more than 60% of the time, that parent has a presumptive right to move unless the non-custodial parent successfully convinces the court that
      • the move is being made in bad faith, i.e. is motivated by the custodial parent's desire to reduce or eliminate the other parent's contact with the children, or
      • the move would be detrimental to the welfare of the child. In determining if the move would be detrimental to the child, the court is to consider the effect the move will have on the child's relationship with the other parent after the move.
    • In determining what custodial arrangement is in the children's best interests the court is to consider, among other things, the following:

      • The children's need for stability and continuity.

      • The distance of the move.

      • The age of the children.

      • The children's relationship with both parents.

      • The relationship between the parents, including their ability to communicate and cooperate effectively and their willingness to put the interests of the children above their individual interests.

      • The wishes of the children if they are mature enough for such an inquiry to be appropriate.

      • The reasons for the proposed move.

      • The extent to which the parents currently are sharing custody.

      • The parent who is opposing the move-away request has the right to request a child custody evaluation by a court-appointed expert.



Consequently, parents who hope to move away should not act in a way that compromises or undermines the relationship between the child and the other parent. Nor should they speak negatively about the other parent to, or in the presence of, the children. A calendar recording time with each parent should be maintained. A move to a location with extended family nearby is always helpful. And file papers as early as possible and try to avoid an initial custody order with any move-away restrictions for the future and that the initial order provides you with sole physical custody.

Parents objecting to the other parent's move should try to insure that an initial order provides for joint physical custody and language stating that neither can change the children's residence beyond a limited geographical area. And of course, spend as much time as possible with the children and record the time and be involved with all aspects of their lives.

It is necessary to act to protect parental rights and the parent-child reltionship when either parent moves away, regardless of whether the child will be moving, and especially when the move impacts one parent's time spent with the child. Due to the relocation, the co-parenting plan will need to be modified so the parent-child relationship can be maintained for both parents and the child.

A litigated move-away case requires the assistance of experienced family law attorney in your area, so if you are involved in a parental move-away, consult one today.

But rather than litigating the issue, consider working with Collaborative attorneys or a mediator and a Collaborative Child Specialist and possibly Divorce Coaches to help you and your spouse resolve the issue in a child-centered and family-centered way that will honor the needs and interests of all involved.

For more information, visit us at www.lornajaynes.com

How to Avoid Bias in California Family Courts

January 24, 2012, by

Given the high divorce rate in this country, just about all of us have been impacted in some way by divorce and custody/support matters. Perhaps it was our own family or parents or our own divorce, or simply a very close friend or family member. And with few exceptions, a majority of folks in these situations feel they lost too much or paid too much, received too little, or had a custody/visitation order that was "unfair" to them, and worse. 
Based on these experiences, we develop opinions and biases about how such matters should be handled. And of course, every judicial officer, as well as recommending Family Court Services mediators and custody evaluators, have their own personal biases. Consequently, the reality is that the same exact case may have very different results in different court rooms.

This is not to disparage family court judges who deal with complex issues (permanent removal of children to another state, custody, visitation, domestic abuse, determining real income, valuing assets (eg, closely held businesses) on a daily basis, with honor and integrity. But the inherent bias based on one's experiences in many cases cannot help but bias the judge's factual findings, their discretion, and how they decide to apply the law. This bias probably exists more in family law than in other areas. No amount of bias elimination training can make a judge forget about their life experiences, assumptions, personal beliefs/views and biases. Consequently, family law litigation can be unfair and inequitable.

However, most judges it is hoped, exercise enough self awareness to check in with their personal biases before making a ruling. And it is important to note that mediators and Collaborative professionals are no less immune to being impacted by personal experience as judges and others in the court system. We too are human beings with biases and must guard against forming opinions based on them. However, we are not judging and making orders, rather our role to facilitate a full and constructive dialogue between the parties that will enable them to reach their own agreement, so our biases have less impact. And ethical and conscientious mediators are very aware of the potential for bias and work hard to be neutral and unbiased.

Alternative dispute resolution processes, however, such as mediation or Collaborative Divorce allow you to fashion your own outcome instead of having a stranger (judge) decide your future and that of your children. Mediators and Collaborative attorneys do not decide - they help you make your own decisions. And furthermore, why pay the always substantial legal fees incurred in litigation, when a much less expensive process means those funds could instead be used to pay for your child's college education. More often than not, litigation usually means going through the court process, several hearings, perhaps settlement or case conferences until, worn down by the conflict and fast becoming broke, you settle anyway. Why not focus on resolution (settlement) from the outset rather than pretending you're going to go to trial and then settling anyway but only after wasting tens of thousands of dollars to get there. And last ditch, in front of the courthouse door settlements are almost always hasty, last minute agreements, rather than the well thought out and thoroughly discussed agreements generally produced in out of court processes.

I recently had of a case where the litigators managed to spend tens of thousands of dollars in legal fees before the clients decided to try mediation. It was readily apparent that the husband was willing to give the wife more than her lawyer would likely have obtained through litigation. And both clients felt that their attorneys would not be reasonable unless the retainer was used up and either no more money was available or the client refused to replenish the retainer account. All in all, a tragic waste of emotional and financial resources for nothing. The mediation, however, was positive, constructive and successful.

For more information, visit us at www.lornajaynes.com

Conflict Resolution Quotes for the New Year

January 17, 2012, by

As a Collaborative Family Law Attorney and Mediator, I am privileged to work with those who, because of their divorce, are undergoing a significant life change. Although a mediated or Collaborative divorce is far less painful, emotionally, psychologically, and financially, than a litigated divorce, it is still a divorce, and according to the Surgeon General, divorce is one of life's greatest stressors.

So it is often helpful to rely on insights from some our spiritual leading lights to help lead the way and remind us to be present when stress and anxiety arise. These sayings can also help us get in touch with our own inner wisdom as we move forward into a new life after divorce. They are also useful reminders for all of as a new year begins.

"Be kind whenever possible. It is always possible." ~ Dalai Lama

"If you want others to be happy, practice compassion. If you want to be happy, practice compassion." ~ Dalai Lama

"There is no way to happiness, happiness is the way." ~ Thich Nhat Hanh

"It is what it is, while it is." ~ Elisha Goldstein

"If we learn to open our hearts, anyone, including the people who drive us crazy, can be our teacher." - Pema Chodron

"As soon as we wish to be happier, we are no longer happy." ~ Walter Landor

"The fact is, we are not islands and we are far more connected than we know." ~ Elisha Goldstein

"There is no enlightenment outside of daily life." ~ Thich Nhat Hanh

"Realize that this very body, with its aches and it pleasures... is exactly what we need to be fully human, fully awake, fully alive." ~Pema Chodron

"After the ecstacy, the laundry." ~ Jack Kornfield

Grandparent Visitation in California

January 7, 2012, by

A recent California Court of Appeal opinion upheld a grant of visitation to a grandparent over a father's objection.

Child custody and visitation issues often give rise to the most high conflict disputes in a California divorce. If parents can't agree about living arrangements, vacation schedules and the best educational environment for their child or children, these decisions may very well be made by a family court judge based on his or her assessment of the best interests of the children and the parents' capabilities.

A recent California Court of Appeal Opinion in Hoag v. Diedjomahor considered a less common scenario: the court's grant of visitation to a grandparent over a parent's objection. The maternal grandmother filed for visitation following the death of her daughter, the mother of couple's daughters. The parents had lived at the grandmother's home, as had the mother and children alone during a period of legal separation. After the parents reconciled, the grandmother moved in with the family.

Soon thereafter, the mother filed for divorce, but died about a month later. The grandmother then petitioned for guardianship, claiming that the father was an unfit parent, and the father then countered with evidence of the grandmother's prior drug use and the loss of custody of her own children years before. The court found that no issues of concern were raised from a Child Protective Services investigation and did not grant the guardianship request to the grandmother, but it did grant her temporary visitation.

Several months later, the grandmother petitioned for permanent visitation rights. The court granted the petition based on a mediator's recommendation of a visitation schedule that included three hours of weekly visitation plus every other weekend. The court's decision was based largely on its finding that the father was opposed to reasonable visitation and that his offers were "feigned at best and without any substance."

Appellate Court Upholds Grant of Visitation to Grandmother

The father appealed the judgment for permanent visitation based on his constitutional due process rights. The California Court of Appeal reviewed the case primarily on the standard provided by the U.S. Supreme Court in Troxel v. Granville, which stated that the Due Process Clause does not permit state governments to infringe on the fundamental rights of parents to make child-rearing decisions "simply because a state judge believes a 'better' decision could be made."

On review, the California court emphasized that child-rearing decisions are not immune to judicial review. While the law presumes that a parent is acting in his or her children's best interests in proceedings involving a non-parent who seeks custodial recognition, the father had acknowledged to the trial court that visitation with the children was in the children's best interests. Therefore, denial of visitation was essentially spiteful, and the court's grant of grandparent visitation was proper.

Clearly, the specific circumstances behind every California family law dispute can make a big difference in the outcome. A California divorce lawyer will help a client understand the facts of his or her situation in light of current legal standards.

Visit us at www.lornajaynes.com

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.

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.

Sudanese Man Forced to Marry Goat

October 21, 2011, by


With all due respect to the customs, laws and practices of other cultures and countries, this story made me glad that I practice family law in California.

The BBC reports that a Sudanese man has been forced to take a goat as his "wife", after he was caught having sex with the animal.
The goat's owner, Mr Alifi, said he surprised the man with his goat and took him to a council of elders.
They ordered the man, Mr Tombe, to pay a dowry of 15,000 Sudanese dinars ($50) to Mr Alifi.
"We have given him the goat, and as far as we know they are still together," Mr Alifi said.
Mr Alifi, of Hai Malakal in Upper Nile State, told the Juba Post newspaper that he heard a loud noise around midnight on 13 February and immediately rushed outside to find Mr Tombe with his goat.
"When I asked him: 'What are you doing there?', he fell off the back of the goat, so I captured and tied him up."
Mr Alifi then called elders to decide how to deal with the case.
"They said I should not take him to the police, but rather let him pay a dowry for my goat because he used it as his wife," Mr Alifi told the newspaper.