Recently in Conflict Resolution Category

Untangling Shared Business Interests in California Divorce Cases - In re Marriage of Greaux and Mermin

June 24, 2014, by

Anyone who has been through a divorce probably already knows that it can be a stressful, complicated, and emotionally and financially draining experience. The legal issues involved may be even more complex in situations where the couple work together running a business. In In re Marriage of Greaux and Mermin, California's First District Court of Appeals explains that the spouse who is ultimately awarded the business has the right to protect it from being devalued by the other spouse. In some cases, that may include seeking a court order to stop the spouse from starting a competing business.

stapling-machine-1440644-m.jpgIn this case Wife filed for divorce in 2009. During the six-day trial that occurred two years later, one of the few remaining disputed and unresolved issues was what to do with the beverage company they owned and jointly operated during the marriage. The company distributed and sold a type of rum.

The business was community property and the judge determined that both spouses brought "unique talents to it." Husband had little education, training, or experience running a business, but the judge said his considerable effort and determination were "crucial" to the business' success. Husband also developed relationships with others in the industry whose experience and personal relationships were very helpful to the business. Wife, on the other hand, had marketing and sales skills also crucial to the business, and her family history in the Caribbean served as the "brand story." The trial judge also noted that Wife had a deep understanding of the rum, its ingredients, and the process for making it, and had qualified as an official industry "taster." She was designated in company investment materials as the "face of the brand."

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Time to Consider Giving Up on the Family Court System and Use a Private Judge

August 16, 2013, by

My practice has been limited primarily to Collaborative Practice and Mediation for many years, since I learned long ago that divorce is a problem to be solved not a battle to be won, and the court system only exacerbates the problem and most often leaves couples worse off, financially and emotionally. Collaborative Practice and Mediation allow a couple to divorce in a structured and facilitated process that enables them to stay out of court, gather and review all of their financial information together, brainstorm options for property division, co-parenting and support, and craft an agreement that works for all. This process reduces the fear and anxiety because every step in the process is taken together and both understand that nothing will happen and no agreements will be signed or filed until both agree.

These processes are not without difficulty and conflict. The couples are divorcing after all so there is most always conflict. But unlike the court system with uncaring judges and litigious attorneys, Collaborative Divorce and mediation endeavor to help parties communicate more effectively, understand each other's needs and interests, and help them find common ground and shared goals. This most always leads to agreement.

Another reason I value out of court processes is that I believe in personal empowerment and the right and ability of most everyone to make their own decisions in such matters. With very rare exceptions, I can't think of any good reasons divorcing spouses would want a judge (ie government official) to make decisions about how they divide marital property or co-parent and support their children and each other. In most all cases, the best people to make these important and personal decisions, are the parties themselves.

Once a couple agrees on the terms of their settlement agreement, the agreement and judgment forms are submitted to the court for processing. Sadly, the court processing can be unduly lengthy, often as long as three or four months, but until recently, most judges would approve judgments provided the parties completed the requisite paperwork and filed documents signed under penalty of perjury stating that they had each completed and exchanged the requisite financial disclosures. Parties working together can make any agreements they want, but the agreements must be based on full knowledge and understanding of all separate and community income, assets and debts.

Recently, however, many judges have begun asking mediating or Collaborative parties who have submitted their judgments to court for processing to attend uncontested hearings to explain and justify the terms of their agreement to the judge. These are folks who have chosen mediation or Collaborative divorce precisely because they wish to stay out of court. Often the first question people will ask is , "We won't have to go to court, will we?" I used to be able to answer no to this question, but no longer. This unwarranted interference by the courts is, in my opinion, intrusive and overbearing and deprives the couples of their autonomy, dignity and right to make their own decisions.

So, for those who really wish to stay out of court, it appears that a good option is to stipulate to a private judge, which usually costs around $500 - $550. An extra fee, but well worth it for many. The other benefit of a private judge is that they are much faster than the courts - a private judge will review and sign off on a judgment in probably two to three weeks, rather than the three to four months taken by the court coupled with their burdensome requests to come to court to justify decisions and agreements. Plus there is the added psychological benefit that the entire divorce, not just the process of reaching an agreement, is outside of the dreaded court system.

With more than 13 years of experience working with clients in divorce and other family law matters, attorney and mediator Lorna Jaynes utilizes innovative legal tools to resolve these and other family law disputes for clients in the San Francisco Bay Area.


This American Life on Divorce

February 16, 2013, by

A segment of This American Life with Ira Glass on NPR, entitled Breakup, addresses divorce from several different perspectives and is well worth a listen.

In Act Two, an eight-year-old girl embarks on a campaign to understand her parents' divorce, a campaign that takes her to school guidance counselors, children's book authors, and the mayor of New York City. The segment re-plays her 1986 interview on All Things Considered as a young child and how she struggled to understand why the divorce happened. In this interview 20 years later, she praises her mother for putting her daughter's interest first by encouraging and supporting her relationship with her father, never blaming her father, and never saying anything about her father's affair.

In Act Three, Ira speaks with a Collaborative Divorce attorney and Mediator about why it is so bad when the justice system gets involved in a divorce and the many benefits for families who can resolve the issues outside of court. The attorney speaks to the value of a process that focuses on listening to the other and seeking to understand.
Act Four looks at divorce from the dog's point of view.

All acts highlight the value to everyone involved of a divorce grounded in respect, compassion and love. And these are the values that ground and sustain Collaborative and mediated divorces. With either mediation or the Collaborative process you have control over the decisions that are made and will be firmly supported, legally and emotionally, in achieving a successful dissolution of your relationship. This not only allows, but also encourages you and your partner to create, or leave open, lines of communication that are of enormous benefit to the whole family.

Working as a team we can achieve a successful resolution of the issues in dispute without the bitterness and acrimony engendered by the adversarial process. The Law & Mediation Office of Lorna Jaynes is based in Alameda county and serves Alameda, Santa Clara and San Mateo counties.

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.

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

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.

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

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.

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

How to Avoid Bias in California Family Courts

January 24, 2012, by

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

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

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

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

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

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

Conflict Resolution Quotes for the New Year

January 17, 2012, by

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

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

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

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

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

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

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

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

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

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

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

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

Grandparent Visitation in California

January 7, 2012, by

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

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

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

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

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

Appellate Court Upholds Grant of Visitation to Grandmother

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

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

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

Visit us at www.lornajaynes.com

Divorcing in California? Protect Your Children

November 28, 2011, by

Talk to your children about what is happening
Only a minority of divorcing parents sit down with their kids and explain that the marriage is ending and encourage them to ask questions. Some say nothing, surely leaving the kids totally confused and fearful. It is so important to talk to your kids, because almost without fail, they know something is wrong, they just don't know what and that creates a great deal of anxiety. Tell them as simply as possible, what is happening and what it means to them and their lives. When parents don't communicate this to the children, the kids feel anxious, upset and fearful and have a much more difficult time coping with the separation and divorce.
Be sensitive and thoughtful
Your children love both of their parents and need to hear about the situation in a way that honors their love for, and relationship with, each parent. If you must litigate, don't leave court filings and documents out where they might be seen. Don't talk to others about the issue in front on the children or where they might overhear. Kids are curious will often go to great lengths to hear what is going on and will sneak up on phone call and other conversations.
Act like a grown-ups and keep the conflict away from the kids
This is so important and has been repeated so often it has become 'common knowledge' and yet it still happens, parents will argue and fight in front of the children and even use them as spies or messengers. Put the children first and refuse to argue in front of them or subject them to your conflict in any way.
Ensure that Dad stays involved
Studies show that the more involved fathers are after separation and divorce, the better it is for the children. Work with your spouse or partner to develop a child-centered parenting plan that allows a continuing and meaningful relationship with both of you. Strong father-child relationships help children do better academically and become well-adjusted adults. Fathers need to be more than just the fun parent, they need to be helping and involved with school, homework, extracurricular activities and also be available emotionally and a co-partner in issues involving discipline.
Don't act out of anger
Some parents, due to anger and pain, try to keep the other parent out of the kids' lives. Divorcing spouses, angry and upset with the other often think the other parent is not good for the kids. But children's and parents needs during divorce are very different. Researchers working with children of divorce consistently highlight that kids want more time with the non-custodial parent.
Be a good parent
It is OK to recognize, be present with, and work through the emotional pain you may feel. But you still need to be there for the children, both physically and emotionally. Competent parenting is one of the most important factors in helping children adjust well to separation and divorce.
Take care of your own mental health
Seek help for feelings of anger, anxiety, and sadness. Even a few meetings with a counselor or therapist can help and your own mental health is tremendously important for the well-being of your chidren. Generally, if you are OK, they will be OK.
Keep the people that are important to your children in their lives
Help your children stay involved with your spouse's family and with friends. This will help your child feel they are not alone in the world, but have a deep and powerful support system - an important factor in becoming a psychologically healthy adult.
Be careful about your future love life
Give yourself a lot of time before you remarry or cohabit again. Especially for young children, forming new attachments to new partners where the relationship may then break up, just creates more loss. And this can lead to depression and a lack of trust generally. And older children need to be given time to learn to adjust to, respect and care for your new partner also.
Pay your child support
Even if you're angry or have little time with your children, this is important. Children of divorce face much more economic instability than those from intact families even with child support. They might not notice or recognize the support when they are young but they will as they get older.

Budget Cuts Threaten Access to Bay Area Family Courts

November 21, 2011, by

Across the country, state courts face severe budget cuts that threaten access to justice for many and California is no exception. California state legislators have cut $350 million from the state court budget, with more cuts certain to follow. Local court will lose $135 million in the fiscal year that began July 1 and another $170 million next year from an overall budget of more than $3 billion.

In Santa Clara County, it means a loss of $6.8 million this year and perhaps more than double that amount next year. San Mateo County's courts will take at least a $2.7 million hit this year, while Alameda County's court system will be cut by more than $6.7 million. Contra Costa County's courts will absorb more than $3 million in cuts and will likewise be forced to cut even more from next year's budget.

For those considering divorce, be prepared. Twenty-five of San Francisco's 63 Superior court chambers have been closed; two hundred of 480 employees will be laid off. "It will take a year and a half to get a divorce in San Francisco and to get a child custody order. If you file suit, we won't do anything with your case for five years," according to San Francisco Superior Court spokesperson Ann Donlan. That can be disastrous if the matter concerns custody of children, visitation, or many other sensitive issues.

Getting on with life after divorce is key, and a long, costly court battle only continues the pain, multiplies the cost, and hurts you and your children.
But, there is hope and a silver lining. Collaborative Divorce and Mediation provide a less destructive and even positive, path to resolving the issues and rearranging the family. Both are sensible alternatives to the embattled and clogged state courts. Either choice will make the process shorter, less traumatic, more equitable and leave more goodwill and cooperation than traditional divorce.

Divorce, Family Law & Pet Custody in California

November 14, 2011, by

We just got a new puppy, a 3 month old Australian Shepherd and while there is no separation or divorce pending, it made me think about what that situation might look like. For many couples who choose to forego having children, their pets become an increasingly important part of the family. But even in many families with children the pet is often almost another child whom all are very attached to. However, the family law system in California and most states provides few options to divorcing pet owners.
In California and most states the law regarding human children is intended to protect the best interests of children in divorce and thus provides for shared custody and support. Pets, however are classified as personal property. Some have advocated for additional recognition and status of companion animals, but legislators have yet to show that type of vision or thoughtfulness, so there is currently no legal distinction between your dog and your sofa when it comes to divorce and no basis in the law for treating the dog any differently than the sofa. (This article assumes the pet is community property) The Court of Appeals Iowa in ruling on an award of a dog to the husband in a dissolution held that a dog is personal property whose best interests need not be considered. In re Marriage of Stewart, 356 N.W. 2D 611 (Iowa Ct. App. 1984)

VALUATION
In order to rule on property division in a dissolution, personal property must be valued, commonly fair market value. The fair market value for companion animals, however, is generally very low while the emotional and sentimental value for the parties is very high. The Alaska Supreme Court in Mitchell v. Heinrichs,27 P.3d 309 (Alaska) held that "In determining the actual value to the owner, it is reasonable to take into account the services provided by the dog. Where, as here, there may not be any fair market value for an adult dog, the "value to the owner may be based on such things as the cost of replacement, original cost, and cost to reproduce." Thus, an owner may seek reasonable replacement costs- including such items as the cost of purchasing a puppy of the same breed, the cost of immunization, the cost of neutering the pet, and the cost of comparable training. Or an owner may seek to recover the original cost of the dog, including the purchase price and, again, such investments as immunization, neutering, and training. Moreover, as some courts have recognized, it may be appropriate to consider the breeding potential of the animal, and whether the dog was purchased for the purpose of breeding with other purebreds and selling the puppies."
Another valuation method considers the companion animal's intrinsic value, focusing on the animal as an individual, based on the value to the human guardian. In Houseman v. Dare, 966 A.2d 24, 29 (N.J. Super. Ct. App. Div. 2009), the court recognized a former couple's dog's intrinsic monetary value at $1,500, but also recognized that the dog represented a "special value" for which the monetary amount presented inadequate compensation.

BEST INTEREST STANDARD
The best interest of the child standard used by courts in ruling on custody and visitation typically includes consideration of factors such as the wishes of the child and parents, parent child and other familial relationships, the mental and physical health of all involved, and the child's relationship to home, school, and community. Sometimes the inquiry will focus on who has been the primary caretaker of the child. Also part of the best interest inquiry, is the presumption that siblings should be kept together.
The A.L.D.F. (Animal Legal Defense Fund) has filed.amicus briefs advocating the best interest approach Along these lines, they offer the following as advice on the website:
In determining custody, courts might consider which party has been primarily involved with the animal's basic daily needs; who takes the animal to the veterinarian; who provides for social interactions; and who has the greatest ability to financially support the animal.
Most courts reject this and stick with their personal property model view of companion animals. However, some courts have, in a circuitous, indirect way, allowed the companion animal's best interest to enter their decisions regarding custody.
In Pratt v. Pratt, No. C4-88-1248, 1988 WL 120251, at *1 (Minn. Ct. App. Nov. 15, 1998) the court held that the best interest standard for children is inapplicable to dogs, but stated that the trial court can consider past mistreatment of the dogs.
In Vargas v. Vargas, No. 0551061, 1999 WL 1244248, at *8, *10, *13 (Conn. Super. Ct. Dec. 1, 1999) the court awarded custody of the couple's dog to the wife after considering that the husband was not treating the dog very well, and his home included both a scrap metal yard and a five-year-old child, despite the fact that the dog was a gift from the wife to the husband and the dog was registered to the husband with the American Kennel Club.

VISTATION AND CUSTODY ARRANGEMNTS

Some parties have argued for such a shared custodial arrangement regarding their companion animals as is common with children. There is no requirement in divorce that the parties' joint ownership of property be terminated and that title be vested in only one spouse. However, an important goal of property division is final separation. Consequently, courts often reject shared custody of companion animals based on a lack of statutory authority for shared custody of personal property, fear of the slippery slope, or judicial economy and the problems that would result from enforcing such an order (ie how to enforce, which agency would be responsible, etc.)

• In Lanier v. Lanier in Pulaski, the wife argued for custody of the dog based on evidence that she kept him away from "ill-bred bitches," ensured that he attend a weekly ladies' Bible class, and prevented others from drinking alcohol in his presence; the husband argued for custody based on the fact that he had taught the dog numerous tricks such as riding on his motorcycle and had himself refrained from drinking beer in front of the dog. The judge granted joint custody of the dog, ordering a switch in custody every six months. The wife then violated the order by moving to Texas.
Jim T. Hamilton, Dog Custody Case Attracts Nationwide Attention, in Tales From Tennessee Lawyers 180, 180-81 (William Lynwood Montell ed., 2005), this portion available at http://www.kentuckypress.com/0813123690excerpt.pdf (last visited July 25, 2009)

• In Juelfs v. Gough, 41 P.3d 593 (Alaska 2002), the couple agreed to shared ownership of their dog which was made part of the court's order. But because of danger to the dog from other dogs in the wife's home and increased conflict between the parties, the court then gave the husband custody and the wife visitation, and finally awarded sole custody to the husband.

• In Bennet v. Bennet, 655 So.2d 109, (Fla. Dist. Ct. App. 1995) the trial court awarded the wife visitation of the dog, but the appellate court overturned the order stating that the trial court lacked authority to order visitation with personal property, and stated that the dog be allocated according to the state's equitable distribution of property doctrine. The court was concerned with judicial economy: "Determinations as to custody and visitation lead to continuing enforcement and supervision problems (as evidenced by the instant case). Our courts are overwhelmed with the supervision of custody, visitation, and support matters related to the protection of our children. We cannot undertake the same responsibility with animals."

• In Desanctis v. Pritchard, 803 A.2d 230, 232 (Pa. Super. Ct. 2002), appeal denied, 818 A.2d 504 (Pa. 2003), a couple's complaint requesting enforcement of a settlement agreement that provided for shared custody of the dog was dismissed by the trial court, and the appellate court upheld the dismissal stating that "[a]ppellant is seeking an arrangement analogous, in law, to a visitation schedule for a table or lamp," and that "any terms set forth in the [a]greement are void to the extent that they attempt to award custodial visitation with or shared custody of personal property."


• The court in Nuzzaci v. Nuzzaci No. CN94-10771, 1995 WL 783006 at *1-*2 (Del. Fam. Ct. Apr. 19, 1995) refused to sign a stipulation and order based on the agreement of the parties and their attorneys regarding visitation of the couple's dog, stating that the court can only award the dog to one party or the other and advising the couple to reach their own agreement since the court has no jurisdiction and no way to side with one party or the other in the event of a future dispute.

• The court conferred special status upon companion animals in Arrington v. Arrington, 613 S.W.2d 565, 569 (Tex. Civ. App. 1981) in classifying them as personal property but also holding that visitation should be allowed.

• In re Marriage of Fore, No. DW 243974 (Minn. Dist. Ct. Jan. 9, 2001) the wife got primary custody of the dog and the husband was granted access during the first seven days of every month. If the wife planned to board the dog for any reason she was to give the husband "the opportunity to spend the additional time with Rudy rather than putting him in a kennel."

• "Just as with childrens' visitation schedules, visitation with pets can occur during specific blocks of time during the year. In Assal v. Barwick, No. 164421 (Md. Cir. Ct. Dec 3, 1999) the husband was given a thirty day visitation period during each summer."

• In Fitch v. Eiseman, No. S-9322, 2000 WL 34545801, at *1-*2 (Alaska Apr. 19, 2000) the divorce decree included the couple's agreement for the dogs to remain with the children, which involved travel between the parties' homes as part of the children's shared custody agreement. When the wife failed to abide by the agreement, the state Supreme Court remanded the matter to the trial court to determine sole ownership of the dog by one of the parties.

Clearly, just as with children, divorcing couples with pets would be well advised to craft agreements for custody and visitation outside of court themselves or through a mediation or Collaborative process.
And ultimately, as with children, try to do what's best for the pet.
Sometimes that may mean the pet stays with the person who keeps the house where it has lived, but not always. Sometimes it's best to have a shared custodial arrangement so each partner gets some time with the pet, but not always.
Unfortunately, in a divorce, there is often little common sense or thoughtful discussion. Sometimes people demand custody just because they can but most often it is because this is a painful time, and the thought of also losing their pet adds to the pain.
If the person who is most heartbroken at the thought of losing the pet is not the one who can, realistically, provide a good environment and life for it, hopefully that person can put aside his or her own desires and do what's best for the pet.

Sudanese Man Forced to Marry Goat

October 21, 2011, by


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

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


Forgiveness and Divorce

October 11, 2011, by

Divorce is one of life's biggest and most painful stressors and traumas and far too often those involved carry the weight, the pain, the blame, the hurt and the anger around with them for years, long after the divorce itself.

Dr. Fred Luskin of the Stanford Forgiveness Project defines forgiveness as follows: to forgive is to gibe up all hope for a better past. If you are stuck in regret or anger over the past you have less energy available for your life today, and are in some ways compromising your future by being defensive and carrying around some unhappiness from the past.
Forgiveness is about healing. There is a distinction between justice, reconciliation, condoning and forgiveness. Forgiveness does not mean you condone what was done, nor does it mean you have to reconcile with or like the person who did it. It is fine to say, "This was such a dreadful act that I must end my relationship with them." And it doesn't mean you don't seek justice, if warranted. These are separate from the inner healing that occurs with forgiveness, which means that you don't take what happened as just personal, but that you see it as a part of the bigger, ongoing human experience of hurt, resolution, conflict and negotiation.

Dr. Luskin outlines 9 steps to forgiveness. http://learningtoforgive.com/9-steps/

1. Know exactly how you feel about what happened and be able to articulate what about the situation is not OK. Then, tell a trusted couple of people about your experience.
2. Make a commitment to yourself to do what you have to do to feel better. Forgiveness is for you and not for anyone else.
3. Forgiveness does not necessarily mean reconciliation with the person that hurt you, or condoning of their action. What you are after is to find peace. Forgiveness can be defined as the "peace and understanding that come from blaming that which has hurt you less, taking the life experience less personally, and changing your grievance story."
4. Get the right perspective on what is happening. Recognize that your primary distress is coming from the hurt feelings, thoughts and physical upset you are suffering now, not what offended you or hurt you two minutes - or ten years - ago. Forgiveness helps to heal those hurt feelings.
5. At the moment you feel upset practice a simple stress management technique to soothe your body's flight or fight response.
6. Give up expecting things from other people, or your life, that they do not choose to give you. Recognize the "unenforceable rules" you have for your health or how you or other people must behave. Remind yourself that you can hope for health, love, peace and prosperity and work hard to get them.
7. Put your energy into looking for another way to get your positive goals met than through the experience that has hurt you. Instead of mentally replaying your hurt seek out new ways to get what you want.
8. Remember that a life well lived is your best revenge. Instead of focusing on your wounded feelings, and thereby giving the person who caused you pain power over you, learn to look for the love, beauty and kindness around you. Forgiveness is about personal power.
9. Amend your grievance story to remind you of the heroic choice to forgive.

According to Dr. Luskin, the practice of forgiveness reduces anger, hurt depression and stress and leads to more hope, peace, compassion and self confidence. Practicing forgiveness leads to healthy relationships and physical health. It also influences our attitude which opens the heart to kindness, beauty, and love.

When you meet people who have forgiven, you see their power. You see the strength and courage it takes to forgive in a world dominated by "an eye for an eye and a tooth for a tooth." I have seen this in the truly amazing, inspiring and wonderful story of Azim Khamisa, whose only son Tariq, a 20 year old student was shot and killed while delivering pizza. His killer received a 25-year prison sentence. Azim, a Sufi Muslim, turned to his faith in his grief. Through prayer, he found the blessing of forgiveness, concluding that there were victims at both ends of the gun. Azim reached out to the grandfather and guardian of his son's killer, Tony Hicks, and eventually to Tony also. Azim chose the path of forgiveness and compassion rather than revenge and founded the Tariq Khamisa Foundation by break the cycle of violence and teach peace, compassion, and forgiveness. Tony Hicks and his grandfather, Plez Felix, also work with Azim at the Tariq Khamisa Foundation.
Forgiveness provides a fresh start. So, you can say yes this terrible thing happened to me, and it hurt so much but I'm not going to let it take over my life. That's the choice that's always available. And without making that choice one can get stuck in bitterness and revenge. That's the cost of not forgiving.
And Divorce is a fresh start also. And that fresh start will have a much better beginning if it includes forgiveness.

Divorce and Custody Battle Causes Man to Set Himself on Fire

August 24, 2011, by

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.