Articles Posted in Child Custody

If you watch a lot of TV crime dramas, you may already be familiar with a criminal defendant’s right to an attorney, and, of course, the person’s right to be told that he or she is entitled to an attorney. In fact, the right to seek legal counsel is important in a wide variety of litigation contexts, including divorce and other related proceedings. In In re Marriage of Metzger, California’s Fourth District Court of Appeals explains that the right to counsel may also extend to a child who is the subject of a custody dispute among parents.

my-shadow-937478-m.jpgHusband and Wife were married in November 2003 and had a daughter, M, one year later. Wife filed a petition to dissolve the marriage in June 2009. Following a number of delays, extensions, and squabbles over depositions, and autism screenings for M, the trial court granted the dissolution and scheduled a separate trial on the issue of child custody in 2012.

Over Husband’s opposition, the lower court later issued an order appointing a lawyer to represent M in the proceedings and obligating Husband to advance $100,000 for the attorney’s retainer, an amount the trial judge said should ultimately be reimbursed from the spouses’ community property. The trial court said the move was justified by Wife’s concerns about whether the child might be autistic. Husband had previously dismissed the concerns as delay tactics, while Wife argued that M showed some signs of developmental delay. The trial judge said M was caught in the middle of the debate and “needs someone to speak for her.”

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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 much greater. 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 the holidays.

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, and do it now, the earlier the better. 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 will share time. The plan can be fluid and can change, but a basic structure reduces miscommunication 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. It might also be worthwhile to review 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 Penny Barton, the answer was more extreme. When she and her husband split up, their daughters, then aged 15 and 10, stayed behind in San Jose with their dad while Barton took a job in Los Angeles. Penny did homework with them every night over the phone and flew back to San Jose for six to eight days every month. 

Because Christmas was so important to the girls the parents agreed that for two weeks every Christmas, Penny 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 Barton. It wasn’t easy being a guest in her former home, and her need to impose her way of doing things 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 didn’t much matter,” says Barton. “We didn’t want them to experience the tension kids who are pulled between two households feel.”



And although children’s preferences should always be an important consideration, it is also important not to give them too much input into co-parenting decisions. The burden of choice is problematic for kids because they know their choices will make one of the parents unhappy. And for most children, that is not a good place to be. Kids will often tell each parent whatever they believe he or she wants to hear. 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 change after 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 on the holiday plan, consider a mediator. A mediator is like a referee or better yet, your kindergarden teacher: someone who will help you share and play nicely in the sandbox, or in this case the mediator’s office.

As a mediator, it is important to practice what we preach and walk the talk. So, I invite my husband’s ex-wife and her husband over for Christmas so that their kids can be with both of their parents. But sadly, this is not a viable solution with my own ex-husband, so we have to share the kids separately. Every family is different but with an open mind and an open heart and a willingness to try to understand each other, parents can create positive solutions.

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

California custody determinations often turn on the well being of the child, leaving courts to determine whether a particular living situation is suitable for a child’s physical, mental and emotional security and development. Recently, the state’s First District Court of Appeals took on a unique version of this question when it was asked to decide whether living with a grandmother and her boyfriend who are practicing nudists is detrimental to children. At least in this case, the answer was “no.”

888677_sexy_feet__1.jpgIn re Marriage of Meyer involves spouses Wendy and David, who were married in 2000, and their two daughters. The kids were ages ten and four when David, who had become estranged from his wife, filed a petition seeking sole legal and physical custody, with visiting rights for Wendy, in November 2010. One month later, Wendy took the girls out of school and moved with them from the family’s home in Castro Valley to her mother’s apartment in Fairfield.

At a hearing in March 2011, the couple gave differing versions of two events involving alleged physical abuse. Wendy asserted that David was the aggressor in two physical confrontations, which took place in 2002 and 2008, as well as during a number of other incidents. An Alameda County police officer backed up this version of the events, testifying that he arrested David for the 2008 incident after arriving at the scene and interviewing both spouses as well as their oldest daughter. According to the officer, Wendy had injuries consistent with domestic violence and the daughter essentially corroborated her version of the events.

David, on the other hand, argued that Wendy was the aggressor on both occasions and that he simply tried to defend himself from her attacks. Further, according to David, the living situation in Fairfield was detrimental to the girls because Wendy’s mother and her boyfriend were nudists and lived in “Section 8″ public housing in a bad neighborhood. He also argued that the girls had been harmed by being uprooted from their school and social circles and that he did not get to spend as much time with them following the move to Fairfield.

The trial court awarded Wendy full legal and physical custody of the children with David having weekly visits and phone calls. The court said there was no evidence that the girls’ current living arrangement was “anything but wholesome or presented any type of danger.”

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The ultimate goal in resolving child custody and co-parenting issues is to reach a resolution that is in the best interests of the child. In In re Marriage of Erb, California’s Fourth District Court of Appeals explained that sometimes that means limiting the amount of contact former spouses have with each other.

1162764_daddy.jpgMother and Father were divorced in February 2004. The parties agreed that they would share legal custody of their then two-year old daughter (Daughter) and that Mother would have primary physical custody over the child, while Father would keep visitation rights.

Four years later, Father asked that the arrangement be changed so that Daughter would spend Wednesday nights with him and that his time with her be increased gradually until both parents shared equal time. A trial court agreed to increase Father’s time with Daughter to a more limited extent. Mother retained primary physical custody.

Following further litigation, however, the trial court agreed to a co-parenting plan submitted by Daughter’s independent counsel in June 2011. The plan provided for equal sharing of time with Daughter by Mother and Father under a “2-2-5-5″ arrangement. Mother got two days with Daughter, Father got the next two days, then Mother got five days with Daughter and Father got the next five days.

Based largely on input from Daughter’s attorney – who interviewed Mother, Father, Daughter, her step-parents and a number of other family members – the trial court ruled that it was in Daughter’s best interests to put an end to the contentious litigation between her parents that had then been going on for seven years. “[W]e can’t go on like this,” the court said simply. It noted that the 2-2-5-5 plan would both add stability to Daughter’s everyday life and limit the number of exchanges between Mother and Father in an effort to avoid further disputes.

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“This case presents an issue that would vex Solomon himself.” That’s how the Fourth District Court of Appeals described In re Marriage of Keith, a child custody case that ultimately turned on the parents’ efforts (or lack thereof) to facilitate their daughter’s relationship with each other.

1064479_father_and_daughter.jpgHolly and Keith married in 2004, had a child (Daughter) in 2005 and separated a year later. Unbeknownst to Keith, Holly and Daughter then moved to Arizona. Holly also obtained a restraining order against Keith, accusing him of physical abuse. An Orange County court later order quashed the restraining order and required her to return to California.

Back in California, a court granted Holly a new restraining order against Keith as well as sole legal and physical custody of Daughter. Keith completed a court-ordered batterer’s intervention program and was permitted monitored visits with Daughter. After the couple divorced in 2008, Holly sought permission to move back to Arizona with Daughter. Keith opposed the move, claiming that Holly had sought to isolate him from Daughter and destroy their relationship, first by claiming that he had assaulted Holly, then by moving “surreptitiously” from Irvine to La Quinta and finally by seeking to move to Arizona.

In a child custody evaluation completed prior to trial, Dr. W. Russell Johnson recommended that Holly be granted primary physical custody – with Keith being granted “liberal” visitation rights – if she remained in California. If Holly were to move Arizona, however, Johnson concluded that Keith should be granted primary physical custody. In the latter situation, “[Daughter]’s best interests require that she be placed in her father’s physical custody because he is more likely than her mother to support her relationship with her non-residential parent,” Johnson determined. The trial court granted Keith primary physical custody.

The Fourth District affirmed the decision on appeal. The court explained that a trial court considering a custody issue has “the widest discretion to choose a parenting plan that is in the best interest of the child,” but must weigh the health, safety, and welfare of the child, as well as any history of abuse by one parent of the other. Because Holly had obtained a restraining order against Keith, the court said that there was a presumption that granting her primary physical custody was in Daughter’s best interest. Keith rebutted this presumption, however, by showing that he had completed the batterer’s intervention program and had not been accused of physical violence since that time.

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As a new family law attorney my very first litigation matter involved a client whose spouse’s attorney was the (now disgraced) Mary Nolan. It was a horrific experience for me and I ultimately told my client that he needed to retain a different kind of attorney – the quintessential ‘shark’ litigator, if he was going to survive this divorce with Ms. Nolan on the other side. The great benefit that I derived from this experience is that I learned very early how ugly divorce could be, that the traditional process did not work for me or for the clients. I knew there had to be a better way.

A six-count indictment on September 18, 2012 charged Mary Nolan with tax evasion and unlawfully intercepting communications. Recently, Ms. Nolan pled not guilty to charges that she hired a private investigator, who was a central character in Contra Costa County’s “dirty DUI” scandal, to illegally install listening devices inside the car of a client’s ex-husband.

Mr. David Dutcher, from Contra Costa County, challenged a custody ruling he claims was based on a DUI charge that occurred after his ex-wife paid a blonde woman to trick into drunk driving. Mr. Dutcher said he was arrested and pulled over for drunken driving in 2008 shortly after he was propositioned by two young women to come home with them and ‘continue things in the hot tub’.

Mr Dutcher was on a second date with a woman he had met on Match.com, when she started chugging shots of hard alcohol and kissing him on the lips.

A second blonde showed up and they both flashed their breasts, before asking him to join them at home in the hot tub.

But just after leaving the restaurant, Mr Dutcher was pulled over for drunken driving with a blood alcohol content of 0.12 per cent, above the legal limit of 0.08 percent. Shortly after his conviction, his ex-wife’s lawyer, Ms. Nolan, filed a motion in court seeking to reduce his time with the children (and increase his ex-wife’s child support). Ms. Nolan claimed to have inadvertently learned of Dutcher’s drunken-driving episode and wanted to make the court aware of his run-in with the law. A judge then reduced the amount of time he could spend with his children because of his arrest. Mr. Dutcher has argued that his ex-wife orchestrated his arrest to gain advantage in the divorce case.

In another complaint filed in Contra Costa County Superior Court, Declan Woods of Clayton alleges that Mary Nolan was looking for an advantage for her client, Woods’ estranged wife. and hired Butler to set up Woods to be arrested for drunken driving.

Not surprisingly, in my case with Ms. Nolan, her trumped up allegations of domestic violence were very detrimental to my client and their five children who were only permitted to see each other through supervised visitation. This was a family of relatively modest means whose assets were quickly depleted by Ms. Nolan’s fee churning antics. And although the wife surely did not recognize it at the time and maybe still doesn’t, Ms. Nolan’s conduct was also detrimental to her since it resulted in an unnecessarily emotionally and financially burdensome process. And nor did her attorney encourage a positive and supportive co-parenting relationship, the touchstone of a good divorce.

But I was inspired to find a new and better way to help couples divorce and and trained in Collaborative Law and Mediation so that I could escape “the machine” and help couples divorce with their personal and economic dignity intact. To learn more about how to end your marriage with your personal and economic dignity intact, contact the Law and Mediation Office of Lorna Jaynes.

A judge from the state of Minnesota, Michael Haas, said the following in 2001.

“Your children have come into this world because of the two of you. Perhaps you two made lousy choices as to whom you decided to be the other parent. If so, that is your problem and your fault.

No matter what you think of the other party – or whatever your family thinks of the other party- these children are one-half of each of you. Remember that, because every time you tell your child what an “idiot” his father is, or what a “fool” his mother is, or how bad the absent parent is, or what terrible things that person has done, you are telling the child half of him is bad.

That is an unforgivable thing to do to a child. That is not love. That is possession. If you do that to your children, you will destroy them as surely as if you had cut them into pieces, because that is what you are doing to their emotions.

I sincerely hope that you do not do that to your children. Think more about your children and less about yourselves, and make yours a selfless kind of love, not foolish or selfish, or your children will suffer.”

Wise words from a judge, but the sad part is that by the time a judge makes comments of that nature, the damage has been done. Sadly, many parents do not understand long-term impacts their divorce has on children and they are so focused on themselves that only a very small percentage have constructive divorces such through mediation or Collaborative Divorce. The nature of the parents’ relationship, pre and post-divorce, permanently impacts children.

See the work of Judith Wallerstein, a psychologist who triggered a national debate about the consequences of divorce by reporting that it hurt children more than previously thought. Much of the damage, however, can be mitigated by conscious parents who divorce with care and compassion.

A successful co-parenting arrangement depends on the child, the parents, and how the parents treat each other and their children. It matters whether the arrangements accurately reflect the needs and wishes of the child, but at the same time, the choices should not generally be left up to the children as that puts them in a very difficult place. It’s a complex undertaking. What works for a child at one age may be harmful to the same child at another developmental stage. One size can never fit all children or families. Children who are required to traverse a battleground between warring parents show serious symptoms that affect their physical and mental health. The research findings on how seriously troubled these children are and how quickly their adjustment deteriorates are very powerful. The bottom line that our studies show is that the legal form of custody is not what matters in the child’s welfare. Nor is there any study that shows the amount of time spent with a parent is relevant to psychological adjustment. 

Parents who spend thousands of dollars in legal fees to fight over the merits of joint or sole custody of their child are simply wasting their time and money. Litigation does not constructively address the emotions involved. Rather, it adds fuel to the fire. No model of custody or time-sharing determines how well children do after their parents’ divorce. Joint custody can work very well or poorly for the child. The same is true of sole custody with visitation. What matters is the mental health of the parents, the quality of the parent-child relationships, the degree of anger versus cooperation between the parents, plus the age, temperament, and flexibility of the child.

Divorce education and appropriate dispute resolution such as Collaborative Divorce and mediation can help parents do less destructive things to their children during and after the divorce. With offices throughout the San Francisco Bay Area, California divorce lawyer Lorna Jaynes provides innovative legal tools to resolve many family law disputes without the bitterness and acrimony engendered by the adversarial process.

In a recent ruling in the matter of In re T.J., the Second District Court of Appeals tackled an important question that often arises in California child custody cases: which court has jurisdiction to consider a custody matter when the parents live in different states?

659603_-us_map-.jpgRJ and AJ married in Texas in 2001 and had a son, TJ, two years later. The couple split in 2004 and AJ moved to New Jersey with the child. The parents obtained a divorce in Texas in 2007. Through mediation, they reached a custody agreement under which AJ was declared the “Sole Managing Conservator” of T.J., with the right to decide his primary residence while RJ was given detailed visitation rights. RJ talked to TJ over the phone regularly and the child spent long stretches of the summer in Texas with his father.

After living together in New Jersey for several years, AJ and the child moved to California in 2011. The move was in part intended to help AJ cope with depression, her thinking being that the weather and a location change would improve her general mood. A few months after the move, however, AJ checked herself into a clinic with depression and thoughts of suicide. A hospital social worker referred TJ to the L.A. Department of Children and Family Services because AJ was unable to make other arrangements for him while she was being treated. AJ later completed her treatment.

The Department filed a petition in state court pursuant to Welfare and Institutions Code section 300, which gives courts jurisdiction to ajudicate matters concerning a minor child who has suffered or is at substantial risk of suffering “serious physical harm or illness, as a result of the failure or inability of his or her parent or guardian to adequately supervise or protect the child.” RJ then filed a motion seeking custody. The court later ordered that TJ be placed in his mother’s home under Department supervision.

On appeal, the Second District reversed the decision, finding that the lower court lacked jurisdiction to issue it. The Uniform Child Custody Jurisdiction and Enforcement Act, which has been adopted as law in both California and Texas, “is the exclusive method for determining the proper forum in custody cases involving other jurisdictions and governs juvenile dependency proceedings,” the court explained. Because the original decision regarding TJ’s custody was rendered by the Texas court, that court maintained exclusive jurisdiction under the UCCJEA to decide any further custody-related issues.

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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.

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

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.

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