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Co-Parenting During the Holidays

December 20, 2012, by

Even for happily married and intact families, the holidays can be fraught with conflict and compromise. But for divorced or separated parents and for blended families - the potential for conflict is significantly higher. Negotiating co-parenting agreements and sharing time with kids is rarely easy, but this is a time of year when it can be most difficult to let go because of the tradition and ritual around how the holidays are managed.

But for the sake of the kids you have to share it. And here are tips to
help your holiday season be filled with merriment - not resentment.

Make a plan

If you don't already have a holiday schedule, do it now. You don't want to create anxiety for the kids about what they're going to be doing at Christmas. Sit down with your ex and a calendar to determine how you're going to share time during the holiday break. The plan can be fluid and can change, but a basic structure reduces mis-communication and sets expectations. Ideally, a vacation and holiday schedule will be part of a marital settlement agreement in a divorce. Think about the even year - odd year compromise. One parent gets first choice in even years and the other in odd years or simply switch the holiday time on an alternating year basis. For example, in even years one parent may have the children for Christmas Eve and morning, then take them to the other parent at noon. In odd years, the schedule would be reversed. Often it is worthwhile to go over the kids Christmas presents together to avoid duplicate gifts and to ensure that similar amounts will be spent. For co-parents who live far away from each other it's not so easy. If you have to be without your kids for the entire holiday make sure you can call and talk to them.

Focus on the kids

As a mediator who helps couples resolve parenting and custody issues, I sometimes have a photo of the kids on the table during a session and ask: "What do you think they would really enjoy? What would work for them?"

That can be as simple as letting the kids call mom on Christmas Eve or attend a special holiday event with Dad. For mom Maureen Palmer, the answer was more extreme. When she and her husband split up, their daughters, then aged 15 and 10, stayed behind in Edmonton with their dad while palmer took a job as a TV producer in Vancouver. She'd do homework with them every night over the phone and fly back to Alberta for four or five days twice a month (a schedule she kept up for a decade).

"Christmas was very, very big in our family," she says, and her girls weren't ready to let that go. So for two weeks every Christmas, she would camp out in her ex-husband's basement - once with her boyfriend in tow. "I sort of took over and did Christmas the same way we did when we were married," said Palmer, who went on to make the documentary How to Divorce and Not Wreck the Kids. It wasn't easy being a guest in her former home, and her need to impose her version of "order" on her ex's household created tension. "But Christmas morning was child-centered, and we both enjoyed their joy so much, that how we felt about each other barely registered," says Palmer. "We didn't want them to feel any of the tension kids who are pulled between two households feel."

As for me, well I am having my partner's ex-wife and husband over for Christmas so that their kids get to be with both of their parents.

And although children's preferences should always be a priority, it is also important not to them too much input into how they spend the holidays. The burden of choice is problematic for kids "because they know it's going to make one of the parents really unhappy. Kids will often tell each parent whatever they believe he or she wants to hear. And for most children, that is a terrible place to be. Kids need a predictable schedule that both parents seem happy with, even if that means putting on a brave face. Practice emotional restraint, maturity and leadership. The most important thing is to continue to be loving parents, and to keep the conflict away from the kids.

Create new traditions

Your holiday celebrations may have changed after the divorce, but they can still be wonderful. Think together with your kids about how you want to celebrate the holidays. And though it will be painful, be prepared to let go of some of the activities you used to do. Don't make the kids feel bad that they missed out on something when they come home.

And no matter how sad or angry you are, never badmouth your ex in front of the kids. Save that for a good friend, therapist or support group. 

Stay busy

If you're going to be on your own for the holidays, be prepared and plan for it. Maybe it would help to celebrate with other family and friends, or perhaps a quiet evening at home with a special meal. Or venture out and volunteer to help others, go on a trip or do something else special for yourself.

Stay hopeful

It is the best gift you can give yourself and your loved ones. Make the commitment to take the time that's needed to heal and remember that healing is a process, so give yourself the time and space to find hope and healing.

And if you cannot agree, consider a mediator. A mediator is like a referee or better yet, your first grade teacher: Someone who will help you play nicely in the sandbox, or in this case the mediator's office, and hopefully just long enough to make a deal.

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Court Says Marriage After Child Support Nullifies Payment Obligation - In re Marriage of Wilson

November 30, 2012, by

In a recent opinion, California's Fourth District Court of Appeals explained that when a couple has children and later marries, the marriage nullifies a child support order entered prior to it, even if they later divorce.

1063973_ring_it_up.jpgMark Wilson and Tamara Bodine were not married when their son was born in August 2001. Bodine obtained a child support order in July 2002 that required Wilson to pay $1,600 a month in support and granting sole legal and physical custody to Bodine. The couple had a second child in June 2003. Then they married in 2005 and separated two years later. A court entered a judgment dissolving the marriage in January 2009.

Wilson filed an action in state court on June 2010, seeking a modification of the 2002 child support order. According to Wilson, he had recently received a notice from the Department of Child Support Services indicating the he owed more than $150,000 in arrears for unpaid support, including payments covering the time during which the couple lived together and were married. Claiming that the couple was operating under 50 percent time-share with both children, Wilson asked that the support award be re-determined based on this arrangement. In response, Bodine argued that Wilson owed unpaid support for a 15-month period after the order was entered and before the couple married.

Following two hearings, a lower court issued a ruling in July 2011, ordering Wilson to pay $100 per month "on undetermined arrears." The court did not determine the specific amount of arrears owed.

On appeal, the Fourth District ruled that Wilson could not be required to pay support following the divorce because the couple's marriage nullified the previous support order. The court explained that the situation was analogous to one in which a couple divorces and later remarries after a court has entered a child support award. Pursuant to the state Supreme Court's 1968 decision in Davis v. Davis, the support award is extinguished by the second marriage in such a scenario.

Continue reading "Court Says Marriage After Child Support Nullifies Payment Obligation - In re Marriage of Wilson" »

California Court Says Father Abandoned Children, Despite Continuing to Pay Support - In re C.C.

November 28, 2012, by

The Court of Appeals for California's Fourth District recently explained in In re C.C. that a parent can be found to have abandoned his or her children for custody purposes, even if the parent continues to pay child support.

1365636_streaming_sunset.jpgCharles and Misty were married in Pennsylvania in April 2001, less than a year after the birth of their first child, M.C. The couple later had another child, C.C., before divorcing in 2005. Misty was granted primary custody of the children, while Charles was ordered to pay $500 a month in support and awarded regular visitation.

Misty later married Eric and, in 2007, a Pennsylvania court granted her permission to move with the children to San Diego, where Eric was stationed in a military position. Eric, who had contributed financial support for the children since 2006, later filed a petition in California seeking to free the children from Charles's custody and control on the ground of abandonment. Eric also requested to adopt the children as a stepparent.

Charles fought the petition in a 2011 hearing, arguing that he had been unable to communicate with the children via weekly video conferencing ordered by the Pennsylvania court because he and Misty could not agree on the specific type of conferencing required. Specifically, he argued that his computer webcam was not compatible with the equipment Misty used and that she would not pay for him to get an upgrade. He also alleged that Misty did not tell him about the move until months after it happened, refused to make the children available by phone and did not provide a mailing address.

M.C., now 10 years old, testified at trial that he loved and wanted to be adopted by his "dad" Eric. M.C. also remembered Charles, but said he had not seen his father since 2005 or 2006. The trial court observed M.C. was "obviously very attached" to Eric, while C.C. referred to Eric as "daddy," and had no memory of Charles. The court also noted that Charles took no action to try to resolve his alleged inability to communicate with the children from 2007 to 2010, and made only token attempts to contact them during this time. As a result, the court granted Eric's petitions.

Continue reading "California Court Says Father Abandoned Children, Despite Continuing to Pay Support - In re C.C." »

Best Divorce Strategies - Listen, Seek to understand, Focus on the future, Heal

September 9, 2012, by

Conflict in the context of divorce can be emotionally and financially debilitating. Family court judges commonly make decisions and orders based on how the law applies to what has already transpired between the parties, to the past. And this approach keeps the spouses in a conflict trap where they are focused on the past and the grievances, hurts and betrayals; rather than on the future, and how they can best solve the problems in order to move forward.

Collaborative Divorce and Mediation on the other hand, enable the parties to focus on what is important for them now and in the future. By focusing on problem solving and real listening, there tends to unfold an understanding that can help couples let go of the conflict and the past and move forward in a productive way, solve the problems and help heal the pain, grief, and anger.

A forward looking focus, however, doesn't preclude talking about the past because sometimes it is important, essential even, for spouses to be able to express and have heard by the other, their understandings of what went wrong with the relationship. This mutual expression of the hurt and anger, if entered into with an open heart and deep listening can be profoundly instructive and helpful to the process. This is especially important if there will be a continuing relationship, for example, co-parents.

Usually, perception of the conflict radically changes when one's feelings, experience, and understanding are recognized by the other as completely valid, even if not agreed with. A goal of the understanding approach is to find connections between those in dispute. While understanding does not in and of itself resolve the dispute, it provides a foundation for productive problem solving. And when people can start to see the humanity in each
other, solutions tend to arise naturally.

Ultimately, this 'understanding' approach offers a way to achieve positive and respectful post-divorce relationships and enduring and mutually beneficial solutions. Not to mention the benefit of avoiding the financial and emotional pain of litigation.

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California Divorce Attorney Undermines Couple's Efforts to Reach Agreement - Just Say No To Litigation

August 17, 2012, by

Sometimes, quite often in fact, the flames of conflict in divorce cases are fanned by attorneys who have more to gain from conflict than from resolution. Against my better judgment, I recently accepted a litigation case with the hope that perhaps I could help facilitate a negotiated settlement. It appeared to be a matter that could be settled with relative ease. During the negotiation process between the attorneys, the clients had a long talk, longer than they had had in years from what I was told, and agreed to put the matter on hold for some time to see if they might reconcile and resolve some of the disputed issues between them.

Upon hearing this, I was tentatively hopeful for both and provided my client with resources he might consider to help improve their communication and relationship and suggested that marital counseling may also be very helpful. And of course, a flower or two wouldn't hurt.
When my client's spouse told her attorney of their plans, her attorney responded with the statement, "Oh, so he wins," and grudgingly prepared a stipulation to continue the scheduled hearing out for a mere three months. I was horrified but not really surprised.
This is a marriage of nearly 40 years, a couple of retirement age with adult children and grandchildren and very moderate assets. Divorce in a situation like this should be a last resort only after some attempt at counseling as it is certain to result in considerable hardship for both. And after nearly 40 years, there is so much to savor and cherish if reconciliation succeeds.

I sent an inspirational photo and waited, hoping that the gods and goddesses of peace and love would prevail. Alas, it was to no avail. Reconciliation and healing of the relationship proved futile but the parties at least tried to reach a settlement of the issues between them and rather than supporting them in their efforts, the other attorney dismissed and undermined their efforts, and most shocking of all, the wife told her husband she was afraid to discuss their proposals with her attorney because her attorney would yell at her.

I have no idea why anyone would hire and pay fees to an attorney who would yell at them. And I later heard that the attorney put a lien on their house to collect her fees.

Lesson for me: Never underestimate people's proclivity for conflict and the tendency of attorney's to exacerbate the conflict to line their own pockets. Just say no to litigation.

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Gray Divorce in California

August 17, 2012, by

Marian, 57, and her husband for nearly 30 years, John, had buried their differences over money, child-rearing and more. But when the last of their two children was finishing high school, the differences became too glaring to ignore. Increasingly, they had little to talk about, and when they did, it was an argument.

They stayed together all those years because of the kids, but now there was little left to hold them together. Marian realized that she was alone in the marriage and would be better off either really alone or with someone who shared her values and interests. When the pain of staying was greater than the fear of leaving, she made a decision and told John the marriage was over.

For this generation of empty-nesters, divorce is increasingly common. Among people ages 50 and older, the divorce rate has doubled over the past two decades, according to research by sociologists Susan Brown and I-Fen Lin of Bowling Green State University, in their paper, "The Gray Divorce Revolution".
Though overall national divorce rates have declined since spiking in the 1980s, "gray divorce" has risen to its highest level ever, according to Prof. Brown. In 1990, only one in 10 people who got divorced was 50 or older; by 2009, the number was roughly one in four. More than 600,000 people ages 50 and older got divorced in 2009.

Moreover, a 2004 survey by the AARP found that women are initiating most of these divorces. Among divorces by people ages 40-69, it was women who sought the divorce 66% of the time. Infidelity is not a primary factor in gray divorces. The same AARP survey found that only 27% cited infidelity as one of their top three reasons for seeking a divorce. This is consistent with estimates of infidelity as a factor in divorce in the general population.
In 1990, 1 in 10 of all divorces were by people ages 50+. In 2009, 1 in 4 of all divorces were by people ages 50+.

As always, there is probably no easy explanation for the trend but it probably derives at least in part from the boomers' status as the first generation to enter into marriage with goals largely involving self-fulfillment. With 'empty nests' on the horizon and many more years of a healthy and productive life, they are increasingly deciding that they have fulfilled their parental duties and now want out of the marriage.

Boomers married with expectations quite different from those of prior generations. "In the 1970s, there was, for the first time, a focus on marriage needing to make individuals happy, rather than on how well each individual fulfilled their marital roles," says Prof. Brown, author of the gray marriage paper.

According to Professor Brown, over the past century there have been three "phases" of American views of marriage. First, there was the "institutional" phase, in the decades before World War II, when marriage was seen largely as an economic union.
This was followed in the 1950s and '60s by the "companionate" phase, where a successful marriage was defined by the degree to which each spouse fulfilled his or her role. Husbands were measured by their capability as providers and wives by their skills in homemaking and motherhood.

The "individualized" phase, began by boomers in the 1970's according to Professor Brown, with an emphasis on the satisfaction of personal needs. "Individualized marriage is more egocentric... before the 1970s, no one would have thought to separate out the self as being distinct from the roles of good wife and mother."

Many of those opting for gray divorce, face complications in our current bleak economic landscape. Although such divorces generally don't involve co-parenting and child support issues, only issues of property division and spousal support, and are therefore simpler in principle, there are still difficult decisions and choices to be made. And as always, these decisions and choices are best made by the couple themselves in a Collaborative or mediated divorce, with the assistance of professionals trained to help the couple work together to make the choices that will benefit both.

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Same Gender Marriage: The Good, the Bad and the Ugly - President Obama, North Carolina, and Politics

May 9, 2012, by

The people of North Carolina voted this week to amend their constitution to ban same-sex marriage. And the ban won with a surprisingly strong 61 to 39 percent, undermining North Carolina's image as a modern, progressive state. Very bad!

But, on a brighter note, the President of the United States, for the first time in history, declared his support for same-sex marriage. Better late than never, as this comes after years of waffling and talking about 'evolving views' on the subject. Still, something to celebrate.

The blogosphere is rife with speculation and second guessing - why did he do it, and what does it mean? How much is political, how much personal? Is this the result of pressure from gay marriage advocates and donors, Vice President Biden's recent statement that he is "comfortable" with gay marriage or something else?

Probably all of the above and more, and despite my many criticisms of President Obama's policies and positions, today I am proud of our president and the integrity and compassion he has shown in articulating his position and the rationale for it.

However, the president stressed that this is a personal position, and that he still supports the concept of states deciding the issue on their own. Yet, on Feb. 23, 2011, his administration, through a letter written by Attorney General Eric Holder, announced the administration's view that Section 3 of the Defense of Marriage Act was unconstitutional.

The letter analyzed how classifications based on sexual orientation should be assessed under the equal protection clause of the Fourteenth Amendment, stating that because of several factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a more heightened standard of scrutiny. Under the equal protection clause, laws classifying people are subjected to one of three levels of scrutiny - rational basis, intermediate scrutiny like that applied to sex-based classifications, or strict scrutiny like that applied to race-based classifications.

With some level of heightened scrutiny applied to sexual orientation classifications, the decision that DOMA's definition of marriage was unconstitutional was quite clear. And that same level of scrutiny applied to sexual orientation classifications anywhere - at the federal, state and local, level, should similarly be deemed unconstitutional.

Therefore, Obama's current policy position is arguably (hopefully) more than mere personal opinion. If the administration were still defending DOMA and had taken no position on the level of scrutiny to be applied to sexual orientation classifications, then President Obama's statement could more easily be taken mean that he believes states have unfettered rights to legislate as they they wish on marriage.

But, that does not appear to be definitive. Rather, Obama's position is that (a) he personally supports same-sex marriage; (b) he believes as a policy matter that state, and not federal, law should define marriages, as it always has been in this country; and (b) he believes that there are federal constitutional limitations on those state decisions.

Two significant gay-rights cases--one challenging California's revocation of gay marriage, the other challenging the Defense of Marriage Act--are on their way toward the Supreme Court. President Obama's statement of support for gay marriage helps bring gay marriage into the mainstream and increases its legitimacy. The DOJ position regarding heightened scrutiny will surely benefit the parties in cases on gay marriage heading to the Supreme Court. And together they help forge a path toward full marriage equality.

I learned recently from a Collaborative colleague active in LGBT issues, that the term of choice is same-gender, rather than same-sex, marriage, because really, it's about gender, not about sex, so from here on that is the phrase I will use. And as a Collaborative family law attorney and mediator, I look forward to the day when marriages of any gender can marry (and divorce), all according to the same rules.

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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.

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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

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.

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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.

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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.

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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

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.

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.