Bay Area Divorce Lawyer Blog

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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There are certain circumstances in which a California court will allow a person to adopt a child, even where it is without the consent of one of the birth parents. The state’s Fourth District Court of Appeals recently considered a rather extreme (not to mention scary!) example of the type of situation in which such an adoption may be permitted in In re Adoption of Janelle M.

1350860_hand-in-hand.jpgRM and BB married in 2002 and the couple had a child – Janelle – three years later. They eventually separated in 2008 and BB filed for divorce, claiming that RM had physically and emotionally abused her over the course of their marriage. One month later, RM’s friend allegedly told BB that RM was plotting to have her murdered. In addition to contacting the local police, BB obtained a restraining order, moved to a confidential location and had RM’s scheduled visits with Janelle discontinued. Janelle was three years old when she last saw her father in 2008. He was jailed the same year and later convicted for solicitation of murder.

The couple’s divorce was finalized in 2009 and a court granted BB sole legal and physical custody over her daughter. RM, who was released from prison the following year, was not allowed visitation rights. He was also not ordered to pay child support until April 2012.

BB married RB in November 2011. According to the Court, RB supported Janelle “financially and emotionally” for at least two years prior to the marriage. BB’s restraining order against RM was renewed the next month.

RM nevertheless sought visitation with Janelle shortly thereafter. He and BB attended family court mediation in early 2012. The mediator recommended that BB retain custody and that psychological evaluations and clinical assessments of RM, BB and Janelle be conducted to determine whether RM posed a risk of harm to his daughter.

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In California divorce cases, courts typically calculate the amount of any spousal and child support awards based on not only the spouses’ current earnings, but also their respective capacities to earn. As the Sixth District Court of Appeals explains in In re Marriage of Lim, the latter figure can be difficult to determine for a spouse working in a field that requires “excessive” hours on the job.

1377964_tightened_100_dollar_roll_.jpgCarrasco (husband) and Lim (wife) were married in 2003 and separated eight years later. They had two children under the age of five at the time. Carrasco was a college professor with average monthly earnings of more than $9,000, while Lim worked as a partner in a law firm, earning more than $27,000 a month.

The parties resolved all of the issues related to their divorce, including the decision that Carrasco be given primary physical custody of the children, with one exception: the amount of temporary spousal support and child support Lim would pay to Carrasco per month.

Lim explained to the court that she had been on a leave of absence from her job for medical reasons and intended to return, working 80 percent of her previous hours in order to aid her children’s transition following the divorce. As a result, she expected to earn about 80 percent of her previous salary, or just over $22,000. Based on the 80 percent earnings figure, the trial court ordered Lim to pay temporary spousal support of $2,705 and monthly child support of $1,568. Carrasco appealed the decision, arguing that the support payments should have been calculated based on Lim’s full-time earnings capacity.

On appeal, the Sixth District ruled that the trial court did not abuse its discretion in using the 80 percent earnings figure to calculate the support orders. Noting that “it has long been the rule in this state” that courts may consider a spouse’s earning capacity in determining support, the court further explained that “the court’s determination of earning capacity must be consistent with the best interest of the children.”

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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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In California, a court can annul a marriage that it determines is not legally valid based on a number of reasons, including a finding that one spouse is already married, not mentally capable of entering marriage or has committed fraud in inducing the other spouse to marry. Once a marriage is annulled, the law operates as though it never existed. In In re Marriage of Snowden, the Sixth District Court of Appeals explains that annulments don’t often come easy, even for the shortest of marriages.

1260785_laptop_work.jpgSan Jose resident Norris Snowden and Simona Campeanu, a Romanian citizen, struck up a relationship online in 2006 and married three years later. Campeanu moved to the U.S. to live with her husband permanently in 2010, after obtaining a visa. The couple lived together for less than two months before separating.

Snowden later filed a petition seeking to annul the marriage, citing fraud. “Snowden maintained that Campeanu’ s true motive for marrying him was to obtain a green card, allowing her to reside in the United States,” according to the court. He also alleged that she refused to have sex with him and did not tell Snowden prior to the marriage that she is unable to have children. Denying these allegations, Campeanu sought a dissolution of marriage, rather than annulment. A trial court found that Snowden failed to prove fraud and denied his petition.

The Sixth District affirmed the decision on appeal. “Historically, annulments based on fraud have only been granted in cases where the fraud relates in some way to the sexual, procreative or child-rearing aspects of marriage,” the court explained. For example, annulments have been granted where one spouse did not intend from the beginning of the marriage not to engage in sexual relations with the other spouse or where a spouse was pregnant with another man’s child at the time of the marriage. Even in cases of potential immigration fraud, the court said, an annulment will not be granted unless the offending spouse never intended to carry out his or her “essential duties.”

Here, Snowden acknowledged in testimony that he continued to engage in “flirtatious emails” with other women after becoming engaged to Campeanu, who became angry when she learned of the emails shortly before the couple was married. They decided to marry anyway. Campeanu returned to Romania after her fiancée visa expired and Snowden did not respond to her persistent emails for several weeks, later explaining that he was angry that she had looked at his private emails.

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A criminal conviction is a serious matter that may not only come with significant fines and even jail time, but also have other far reaching effects. For example, as California’s First District Court of Appeals explains in In re Marriage of Priem, a person convicted of domestic violence may be barred from obtaining spousal support in the event of a later divorce.

624824_restrained.jpgThe couple was married in 1999 and had two children before divorcing more than 10 years later. A trial court ordered Husband to pay Wife more than $14,000 per month in child support as well as a portion of her attorney’s fees. The court declined Wife’s request of spousal support, however, finding that she was not entitled to such support as a result of a history of domestic violence toward Husband. Specifically, the court noted that Wife plead no contest to a misdemeanor for battery committed against a spouse in May 2008.

On appeal, the First District explained that California law “creates a rebuttable presumption that spousal support requests are not to be granted to spouses who have been convicted of domestic violence during the five years preceding the filing of a petition for dissolution.” Essentially, according to the court, the law is designed to ensure that “victims of domestic violence not be required to finance their own abuse.” A reviewing court may consider the other spouse’s domestic violence history as well as any other factors that may weigh against the presumption in contemplating a specific spousal support request.

The Court rejected Wife’s argument that the trial court wrongly denied her support request based on the 2008 battery because she pleaded no contest to this crime.

Under Penal Code section 1016, a no contest plea cannot be considered an admission of the crime in a civil suit stemming from the act on which the plea was based. Criminal defendants plead no contest for a wide variety of reasons, including bargaining with prosecutors, and the law is designed so as to limit any disincentives to making the plea. Here, the Court found that the spousal support proceeding was not based on nor did it “grow out of” the alleged battery in 2008. As a result, the lower court did not err in denying Wife’s support request.

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Getting divorced, as anyone who has been through it knows, is far more complicated and costly than getting married. And that is for straight folks. For gay couples, it is far less straight forward. That’s the subject of a New York magazine cover story on gay divorce, entitled, “From I Do”, to ” I’m Done.” After describing the break-up of one gay couple — Kevin Muir and Sam Ritchie, who married in 2004 in Massachusetts — the piece highlights the many legal issues involved.

From “I do” to “I’m done”, thought often fraught with conflict and animus, can be a clear and well-understood process for straight couples. When their legal marriage is over, they understand they will need a legal divorce. But for gay couples, the promise of marriage is still so new and incomplete that the idea of divorce courts, property settlements, spousal support and all the rest is not on the radar. Who would consider the process of undoing a contract that until very recently you were not allowed to enter into. This is not the focus of marriage-equality advocates, but the gay divorce boom is imminent. In part because nearly 50,000 of the approximately 640,000 gay couples in 2011 were married. Julie and Hillary Goodridge, the lead plaintiffs in the Massachusetts same-sex marriage case, divorced in 2009.

According to LGBT think tank, the Williams Institute, about one percent of same-sex marriages dissolve each year, versus two percent for different-sex couples. But many observers expect the gay divorce rate to increase since many of the first gay couples to marry were the most long-term and stable ones.

The conflict and complexity that hetero couples can engender in even what should be a relatively simple divorce is remarkable. But gay couples have so many added levels of complexity and therefore, potential for even greater conflict.

“Imagine you’re a same-sex couple married in Washington, D.C., and taking the Amtrak from there to Boston,” says Susan Sommer, director of constitutional litigation for Lambda Legal. “You’re married in D.C.; everything’s fine. Next stop Maryland, which until 2010 wouldn’t treat you as married but now would. You get to Delaware, which has a civil-union law, so it treats you not as married but as a civil-union couple. Then you get to Pennsylvania, which has not been recognizing these out-of-state marriages as anything at all, and not allowing divorces, so while there you are potentially a legal stranger to your spouse. That’s not a good part of your trip. New Jersey recognizes your marriage only as a civil union. Then, phew, you’re in New York and you’re married again; same in Connecticut. Then you get to Rhode Island: a civil-union state where the attorney general has said you are married and the government is treating you as married, but the courts have said we won’t divorce you. Finally, you reach Massachusetts, and you can breathe a sigh of relief: You’re married. And you can divorce. But it’s a very complicated legal ride.”

It would not surprise me if some divorce lawyers hope the Supreme Court does not issue a broad ruling favoring marriage equality in Hollingsworth v. Perry, the Prop 8 case, just from a business development point of view. Striking down the Defense of Marriage Act (DOMA) could have a similar, simplifying effect.

If the Court strikes down DOMA’s “one man, one woman” definition of marriage, some of the biggest complications for divorcing gay couples in some states will end. It would not be necessary to develop expensive workarounds that provide for equitable distribution of federal benefits like pensions and Social Security, which are taxed in gay divorces but not in straight ones. Simple changes in state laws will eventually allow gay couples to divorce wherever they please, without having to establish residency elsewhere or fight to apply “long arm” jurisdiction to a spouse elsewhere who won’t cooperate. And divorcing parties from nonrecognition states will not have to structure their marriages as business partnerships or joint ventures in order to divide marital property or force its sale.

Of course, the economic effects on divorce attorneys are not the only consideration, important rights are at stake – the ability for gay couples to end a marriage with legal clarity and finality.

Straight people no longer have a monopoly on marriage, so why should they have a monopoly on divorce? As the old adage t-shirt slogan goes, “Let gay people get married, so they can be miserable like the rest of us.”

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.

There is more than one way to split a pie. For couples considering a divorce in California, for example, a variety of issues can determine how the pie (money, property, etc.) is divided between spouses. In In re Marriage of Baron, California’s Second District Court of Appeals takes a look at some of those issues, including a spouse’s ability to work.

713391_plant.jpgRichard and Sandra Baron were married for nearly 30 years before divorcing in 2007. Shortly after they were married, the couple started a retail and commercial nursery in which Richard’s brother also owned a 40 percent stake. Sandra worked for the company over three decades – as an office manager and in other clerical positions – until she was fired in 2010.

In a stipulated agreement, the Barons decided that Richard would buy out Sandra’s interest in the business, paying her $1 million (plus interest) over the course of 15 years. Following a trial, a lower court also ordered him to pay spousal support in the amount of $5,500 per month until either person died or Sandra remarried. The court additionally required Richard to buy a $500,000 term life insurance policy as security for spousal support.

In reaching this decision, the trial court noted that Sandra was 62 years old and had recently been fired from the only job she’d ever had. “The court finds it is unrealistic to believe that [she] will find employment in the near future,” the trial judge wrote.

The Second District upheld the order on appeal, rejecting Richard’s argument that he couldn’t afford to pay support because of the money he owed Sandra for her share of the business. The court explained that these were two separate issues. “Richard’s analysis is based on the incorrect assumption that his property division obligation affects his ability to pay spousal support,” the court said. Citing its 1991 decision in In re Marriage of Martin, the court further explained that “a spouse may not finance a ‘buy-out’ of community property and then successfully claim inability to pay spousal support.”

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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.