Articles Posted in Fathers Rights

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.

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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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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

      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.

      In an incident that received little attention in the mainstream press, a man named Tom Ball, 58, committed suicide in front of the Keene, New Hampshire County Courthouse on June 15, 2011 by dousing himself with gasoline and lighting a match. His 15 page suicide note explained that he was angry at the state child protection bureaucracy and the courts after his ten year battle over child abuse charges. He was angry at the US court system, the federal government, police, child protective services, in general, a system that in his opinion no longer works and no longer serves our interests.

      Ball’s troubles began when he slapped his then four-year-old daughter, giving her a cut on the lip, when she refused to obey him after three verbal warnings.

      His wife called the child’s mental health provider who apparently told her that if she did not call the police, both she and Ball would be arrested.

      So she called the police and Ball was arrested. After six months, the wife filed for divorce. Clearly, no one should strike children. But a cut lip under some circumstances, if a clearly isolated instance and without more, probably should not constitute child abuse, and certainly not domestic violence. This family probably needed help and what they got was an inflexible system that was not, by its very nature and structure, able to help the family in the ways they needed it. What if instead of dealing with the bureaucratic and inflexible family and criminal court systems, the family had been provided with therapy and counseling, what if they had been able to learn effective and compassionate communication skills, what if they had been able to learn how to resolve conflicts and better discipline skills? Perhaps the couple would still have divorced, but they probably would have learned to co-parent effectively despite the divorce. Perhaps Mr. Ball would have learned more effective methods of discipline and conflict resolution, and the child would probably have had a father and close and loving relationship with him. A far better outcome in my opinion, than a broken family and a dead father.

      One interesting part of his suicide note was his observation that the United States is no longer a nation of laws; Ball described what he calls the ‘second set of books,’ which is essentially the collection of policies, procedures, and protocols that courts and executive agencies rely upon. According to Ball this includes police departments and other ‘enforcers’ across the country who use standardized responses to take judgment out of the equation. Even the guys who drove the trains to the concentration camps were just following procedures claims Ball.

      Tom Ball owed about $3,000 in child support, and in his suicide letter noted that he could have borrowed the money. However, Ball had not worked in two years and faced jail time for failure to pay child support. Wouldn’t the court and his ex-wife know about his financial status? If he did not have the money before, how would he get the money after spending a year in jail?

      In his lengthy note, Ball expressed his frustration with domestic violence charges and lengthy divorce proceedings, and wrote of a conspiracy of feminists and governments that disenfranchise men. I don’t agree with the claims of Ball and others that this was due to feminism and a bias in favor of women and against men in family court. But I do believe it lends credence to the view that in so many cases, the court system simply does not work and that most of us are better off learning conflict resolution skills to solve our own problems, and if necessary working with professionals to assist in that effort, rather than relying on the court system and other bureaucracies.