"Haute Couture," Family Law: Three California Trends in Divorce, Custody, and Property Division
by Kayla Horacek
The mores in California family law are changing. Highly litigious clients, as well those who favor settlement, are now faced with new realities and options. To that end, it is important that all represented parties retain counsel who are aware of these possibilities and can explain them to his or her clients. There are various examples of this progressive thinking which should be explored by all parties involved in a family law proceeding. What follows is only a glimpse into some of the new developments in family law litigation and settlement.
The Full Monty
In a family law proceeding involving support and/or property division, both parties are required to reveal all of their financial information to one another, under penalty of perjury. The goal behind this policy of full disclosure is to place each party in the most informed position possible in order to settle or litigate their matter. This disclosure requires that each party complete and exchange various court forms and charts detailing all benefits and obligations, whether they are claimed to be of a community or separate nature. Furthermore, California family law places a continuing obligation upon a husband and wife to independently update and augment these disclosures.
This transparency is nothing new. The policy of full disclosure is written into the California Family Code, and has been the legislative mandate for many years. For whatever reason, however, courts were not inclined to penalize a party for their failure to disclose relevant financial information during a pending divorce.
In 2007, one California family court chose to enforce the high standards for truthfulness mandated by the legislature. It found that a party had waited several months to disclose relevant financial information to the other during their divorce proceedings, in direct defiance of the disclosure statutes. At the end of the day, the offending party ended up paying $250,000.00 in sanctions for his behavior, which did not include attorney's fees for the other party amounting to $140,000.00.
Take Home Tip: When you hire a family law attorney to represent you during your dissolution action, and arguably, during an action for support, ensure that they are familiar with the strict disclosure requirements imposed upon you. Provide your attorney with EVERYTHING related to your assets, debts, and income early and continuously.
The Custody Marathon
For most people engaged in a dissolution action, financial concerns are only a small part of the struggle. The vast majority of family court litigants also have children. Thus, they must grapple with the emotionally charged world of custody negotiation.
In the most egregious custody disputes, particularly when one party alleges some kind of substance abuse or an outright inability to care for a child, the court will often appoint some kind of expert to assist it in fashioning a plan in the best interests of the minor(s) involved. This expert is a custody evaluator--a psychologist/psychiatrist with extensive experience in child development. The financial circumstances of the parties will determine whether a court psychologist or a private expert is utilized, as the latter is almost always significantly more expensive.
Many parents are now enlisting the services of another kind of professional designed to guide them through this evaluation process--the "custody coach." This person is typically also some sort of therapist who is intimately familiar with the world of custody disputes and litigation. A parent hires a custody coach in an attempt to prepare for the various exercises, tests, and observations which he or she will undergo as part of the custody evaluation. The coach is likely to provide a litigant with feedback on appropriate behaviors, language, and writing samples before they are seen by the evaluator.
Take Home Tip: When determining whether to hire a coach, consider the fact that such a person may not be seen favorably, as he or she may arguably hinder a genuine evaluation of your parenting abilities. Also, when choosing between coaches, retain someone who has an extensive working knowledge of the procedures used by a private custody evaluator, as well as California custody law. If you cannot afford a custody coach, but need pointers, your attorney should have a handful of helpful hints for you. At the very least, he or she should be able to explain the evaluation process.
The Think-tank
Another trend in California family law combines two terms rarely seen in the same sentence-- collaborative and divorce.
In the collaborative divorce, the parties agree to stay out of the courtroom, and focus on obtaining a global settlement. Initially, each party retains an attorney familiar with this type of practice and commits to settle the matter without litigation. Depending on the issues in the case, various other professionals then become involved. For example, in a high asset case, a forensic accountant may provide an evaluation for the parties. In a contested custody case, a therapist and/or evaluator may make a recommendation for a custody plan in the best interests of the child(ren). In a case with novel issues, an appropriate expert may offer feedback in order to educate the parties and their counsel to allow for a fair settlement. Assuming all aspects are negotiated and agreed to, the parties' attorneys can then memorialize the understanding in writing. If done properly, this agreement will have all the force and effect of a litigated Judgment of Dissolution.
Take Home Tip: When searching for a divorce attorney, consider the collaborative approach if you and your spouse have an amicable relationship, and are truly committed to avoiding the stress, delay, and public nature of litigation. Be prepared for a potentially high retainer for collaborative services, as you will likely be hiring your own attorney, as well as other professionals to evaluate your matter.
This article was written by Kayla Horacek. Portions of article appear in the November 2008 issue of Pasadena Magazine
Posted by The Law Offices of Donald P. Schweitzer at 1:08 PM|Permalink
| Comments (0)
June 24, 2008
Do monthly annuity payments constitute income for calculating child support?
*IF AUDIO STOPS PLEASE CLICK ON THE TIMELINE TO CORRECT THE ISSUE*
On occasion California courts have to struggle with the issue of what constitutes income for the purpose of calculating child support.
In a recent California decision entitled "Marriage of Rothrock," the court of appeal had to determine whether or not an uncharacterized personal injury settlement award that was paid into an annuity, constituted income for the purpose of calculating child support.
In rendering its' decision, the court of appeal relied on the common law definition of income as well as a federal statute in determining that the monthly annuity did not constitute income. The court's use of the common law definition was somewhat new, in comparison to recent cases where the same issue presented itself.
For a more detailed analysis of the court's decision, click onto the above presentation.
Posted by The Law Offices of Donald P. Schweitzer at 4:11 PM|Permalink
| Comments (0)
June 2, 2008
Registered Sex Offender Seeks Unmonitored Visitation
When modifying a child custody or visitation order the court has to apply certain tests in California, depending on the type of order that is in place. In review of the decision entitled, "Lucio," we see how serious the courts are to applying the proper test, even when the moving party is a registered sex offender. For a detailed analysis of this case, click onto the above presentation.
Posted by The Law Offices of Donald P. Schweitzer at 10:25 AM|Permalink
| Comments (0)
October 18, 2007
Is Brit Fit? Part 2 Of 2
Is Britney Spears fit to be a responsible parent to her two sons? Family law attorney Don Schweitzer provides legal commentary on this topic while on FOX News.
Posted by The Law Offices of Donald P. Schweitzer at 3:19 PM|Permalink
| Comments (0)
Is Brit Fit? Part 1 Of 2
Is Britney Spears fit to be a responsible parent to her two sons? Family law attorney Don Schweitzer provides legal commentary on this topic while on FOX News.
Posted by The Law Offices of Donald P. Schweitzer at 2:29 PM|Permalink
| Comments (0)
Britney Spears Custody Crisis
While on FOX News, family law attorney Don Schweitzer provides legal commentary on the Britney Spears and K-Fed custody battle. During the recent court hearing, the judge ordered Ms. Spears to submit to random drug testing and is allowing her only supervised visitation with her sons.
Posted by The Law Offices of Donald P. Schweitzer at 1:26 PM|Permalink
| Comments (0)
September 20, 2007
Britney Spears vs. K-Fed
Kevin Federline's legal team subpoenas Promises, the drug rehabilitation center where Britney Spears was treated, in an attempt to gain custody of their two children. How can Britney's stay in rehab influence the outcome of the custody battle? Family law attorney Don Schweitzer answers this question on Showbiz Tonight.
Posted by The Law Offices of Donald P. Schweitzer at 3:46 PM|Permalink
| Comments (0)
June 25, 2007
Should Parents That Run Off With Their Child Have The Advantage?
There is nothing more important to parents than the well being of their children. The thought of having one’s children taken from them is emotionally crippling. In realization of the importance of the parent-child relationship, our legal system requires a hearing before allowing the custodial parent to change residences in a way that will significantly decrease the amount of time the non-custodial parent has with the child. This hearing is commonly known as a “Request to Move-Away.” At this hearing the non-custodial parent is afforded their due process right to challenge the move-away. However, what if the non-custodial parent was not allowed any hearing and the other parent took the child to another state without providing any notice? This would be kidnapping, right? It depends. There is a current wrinkle within the Uniform Child Custody Jurisdiction Enforcement Act (“UCCJEA”) that allows this action in some instances.
The Situation First, let me set the scene. An unmarried couple resides in California with their 3 month-old newborn child. Mother who is the primary breadwinner gets a job in Chicago and all three decide to move to the Windy City. After five months in Chicago, Dad decides it is too cold and wants to move back to California. Mother has already made a commitment to her employer in Chicago and wants to stay. She wants her child to stay with her in Chicago. The couple argues and the next day Dad takes the child to California without telling Mother. When Dad reaches California he files a Paternity action and also files a Domestic Violence action because he felt threatened during his argument with Mother. When Mother learns that Dad has taken their child without informing her, she calls the police, files a Paternity action in Chicago and gets a Court Order that Dad return to Chicago with the child.
The Legal Processes At this point, there are conflicting Court Orders. The Courts have to decide which Court has jurisdiction and which Order will stand. The law governing jurisdiction over this issue is UCCJEA. Under UCCJEA, the home state of the child has jurisdiction. The home state of the child is the state in which the child has resided for the past six months continuously. However, in this hypo the child has not resided in either state for six months. In this situation the Courts must contact each other to determine which Court has jurisdiction. The Courts make this decision between themselves without counsel allowed to listen in or offer argument. Sometimes the Court will consider moving papers that argue as to which state is the appropriate forum. For the most part though, these decisions are made without a hearing and with each Court having very little knowledge of the facts. If there is a hearing on this issue it is usually futile as it occurs after the Courts have contacted each other and reached a consensus.
The Problem This initial determination of which state has jurisdiction is a tremendously important issue within the case. If California claims jurisdiction, the child shall remain in California with Dad until the Court’s final determination, which could take longer than a year. Mother will be forced to travel to California to litigate the case and her time with her child will be tremendously reduced. A parent can go from seeing their child every day to seeing their child once every few months. The impact lasts longer than a few months however. Once a Court declares jurisdiction, the parent from the other state is at a great disadvantage in terms of gaining primary custody in the future.
In the hypo above, I also mentioned that Dad alleged domestic violence. An allegation of domestic violence is one of the loopholes that parents that run away with their child use to achieve jurisdiction in a different state. Domestic violence is a very serious problem and should be treated as such. However, in these cases I have seen these accusations used strategically. Any false claim of domestic violence is a tremendous set-back for those that actually suffer domestic violence. The law should build in a penalty that takes into account the damaging consequences of any false allegations.
Author Commentary The domestic violence exclusion to the UCCJEA law promotes false accusations. If someone is being abused they should call the police and report it within the state that it occurred. All the witnesses, evidence and the acts occurred within that state. That state is best able to try the case and prosecute the offender. It is ridiculous that someone should have to defend themselves in California for acts that occurred in Chicago. Even if California does not have jurisdiction over criminal charges, the accused must still defend themselves as the Court will make orders affecting the visitation with their children based on these charges. I think it is very easy to vision how this process might deny someone their due process rights. In this instance the Courts are essentially granting a move-away without granting either party a chance to present their case. To counter this, the Courts will point out that they do allow a hearing on the issue. My response is: What use is a hearing if the issue has already been decided? Often times, once the two Courts reach a determination as to which one should have jurisdiction, the other Court will decline jurisdiction. Thus, if the California Court and Chicago Court reach a consensus, the Chicago Court will agree to decline jurisdiction. Consequently, by the time this “hearing” is scheduled, Mother has no valid arguments to present. She cannot argue that Chicago is the appropriate forum as it has already declined jurisdiction during its conversation with the California Court. Effectively, the issue has been decided without a hearing and without an opportunity to present evidence.
I realize the situation before the Courts is a difficult one, as there are limited resources and logistical problems with coordinating a hearing on the issue in two different Courts. It is my opinion though that the inequities of the current method justify the costs and additional effort required to ensure that both party’s due process rights are protected.
Posted by The Law Offices of Donald P. Schweitzer at 12:27 PM|Permalink
| Comments (0)
May 30, 2007
If It's Monday It Must Be Dad's House: Helping Children With Transitions Between Homes
A divorce is stressful for all members of the family in different ways. An ongoing stressor for children is moving between two homes. Young children find it confusing to remember who is picking them up and where they will be when a friend asks them for a Saturday play date. They may worry about Mommy or Daddy being all alone when they go to another home, or they may feel guilty about telling a parent that they left a beloved teddy bear at the other’s home. There are many complex feelings and issues around these transitions, and it is important that parents stay attuned to what their child is saying and what they are showing through their behaviors.
It is important to remember your child’s developmental age and capacity for transitions when moving towards this new phase in his/her life. While research indicates that children can successfully navigate having two homes, there are important considerations in helping your child make this transition along the way. It can help if the “receiving” parent calls the child or children, a day in advance to review any upcoming events and the drop off time and talk about necessary items the child may need to switch homes.
Parents should try to keep their children’s best interests in mind when the kids are moving from house to house. I like to tell parents, “If you love your kids more than you hate your ex – you’ll really do what is best for your kids.” Evaluate your capacity to communicate with your ex. If there is no effective communication, keep the exchange short and only about what is pertinent for the children. If there is more amiable communication, the person who is receiving the children may come inside the ex-spouse’s home and chat while the children gather last minute necessities. If your children are younger, parents should help them with packing essentials. This time is stressful for your child, who may have concerns about leaving one parent alone. You need to help them, and not add to the stress by having any open conflict between parents.
Some children are not allowed to bring any toys or clothes back and forth between homes. Think about it: Every week you change residences. You have to remember what clothes are you allowed to bring and if your laptop is allowed out of the house. You are also worried about performing at work and socializing with your friends. This scenario would easily stress out most adults, who have many more coping strategies than children.
As parents, it is your responsibility to handle all of the “stuff” that goes along with transitions. If the transition happens during school, parents need to arrange pick up and drop off of the child’s things. Young children should not have a heavy backpack or suitcase at school with them. Each parent should have a school calendar and a master calendar of the child’s activities. If anything is left behind, do not blame the child for “forgetting.” Do not expect your child to function as a messenger to the other parent.
Remember that transitions can be points of stress for some children and they may exhibit some regressive behaviors. Younger children can be more clinging or fearful. They may have temper tantrums, school problems or self-destructive behaviors. Help your child to understand all the feelings that may be going on as they move from home to home. Children need time to reconnect with each parent after they have experienced a separation – allow them that space to warm up to you. Encourage them to contact the other parent when they need to. And talk with your child about the schedule to see if he/she likes it.
Ahrons, C. (1994). The Good Divorce: Keeping your family together when your marriage comes apart. New York, NY: Quill.
Elkind, D. (2001). The Hurried Child: Growing up too fast too soon. Cambridge, MA: Perseus Publishing.
Ricci, I. (1997). Mom’s House, Dad’s House: Making two homes for your child. New York, NY: Fireside Books.
Stahl. P. (2000). Parenting After Divorce: A guide to resolving conflicts and meeting your children’s needs. Atascadero, CA: Impact Publishers
Linda Bortell, Psy.D. 625 Fair Oaks Ave. Suite 270 South Pasadena, CA 91030 626.799.7941 FAX: 626.441.4893
Posted by The Law Offices of Donald P. Schweitzer at 2:45 PM|Permalink
| Comments (0)
February 20, 2007
What To Expect...And...How To Beat Your Spouse In Child Custody Mediation!
First of all; if you are actually reading this to learn how to “beat your spouse” in child custody mediation, then you don’t know what to expect. In California, whenever there is a child custody dispute before the Court, the parties must first attend a mediation session in an attempt to informally resolve their dispute and develop a parenting plan. Mediation is an informal process by which both parties meet with a mediator that tries to help the parties reach an agreement concerning their custody dispute.
Good Reasons to Mediate
1. Mediation is required when there is any custody dispute
There is commonly a custody or visitation dispute in cases of divorce involving children.
2. Mediation can help you make a parenting plan that's in the best interest of your children. 3. Mediation can help you make a parenting plan that lets your children spend time with both parents. 4. Mediation can help you learn ways to deal with anger or resentment.
Also has at least 2 years of experience working in mental health;
Knows how the family court system works; and
May also have information about community services that might be helpful to you.
What Mediators do
A mediator meets with both parents and helps them try to agree on a plan that is best for their child. The mediator's job is to:
Listen to both of you.
Be neutral.
Help you look at different options.
Help you decide when the child will be with each parent.
Help you decide how future decisions about your child will be made.
Help you consider how best to protect your child's safety and welfare.
Support you.
Make recommendations to the judge. In some counties, if you and the other parent can't agree on a parenting plan through mediation, the mediator is asked to give the court a written recommendation. It will contain the mediator's opinion about what parenting arrangement will be in your child's best interest.
The Parenting Plan
The ultimate goal of mediation is to come up with a parenting plan that is agreed to by both parents and in the best interests of the child. Your parenting plan (also called a "custody and visitation agreement") is a legal document. It is also very personalized. You need to make a plan that is in the best interest of your child. Some suggestions:
Consider your child's age, personality, experiences, and ability. Every child is different. Adjust your plan to your child, NOT your child to your plan.
Give your child regular, consistent times with each of you for day-to-day care, overnights, activities, schoolwork, vacations, and holidays. Use a calendar to help you.
Give your plan enough detail so it's easy to understand and enforce.
Give your child a sense of security and a reliable routine.
Guidelines
Every mediator may have a different approach to the conference. However, you will be best served by following a few guidelines.
Be polite, just like you would be at work.
Stay on the subject. Focus on doing what is best for your child.
Control your emotions, just like you would do at work.
Be clear and specific when you talk to the other parent. Write things down and keep businesslike records of important agreements.
Keep your promises. Your children need to be able to trust and rely on you. This is very important right now.
Watch the words you use when you talk about divorce.
Perspective
It would be foolish to think that all conflicts can be settled through mediation. Mediation requires agreement between both sides. And in situations where one or both parties have unrealistic expectations, that agreement may well be impossible. In these instances, parties should bring their case before the court, and that is why the option of going to trial is available.
However, don’t let mediation fail because you are the side with unreasonable expectations. By this point you should have already consulted with an attorney that has objectively explained how the law applies to your particular case. If the mediator proposes an arrangement that is in line with your attorney’s expectations, you should strongly consider it. By doing so you can save the time and expense of bringing the issue before the court. Additionally, these mediators are knowledgeable in family law and will probably offer something that is close to what the court would decide anyway.
Posted by The Law Offices of Donald P. Schweitzer at 4:45 PM|Permalink
| Comments (0)
November 21, 2006
Drug And Alcohol Testing In Custody Proceedings
California legislators have recently made it clear that the court has the power to order parents to undergo drug and alcohol testing. Newly enacted Family Code, Section 3041.5, authorizes family law courts to order drug and alcohol testing for any parent involved in a custody dispute if it is found, by a preponderance of evidence, that the parent uses illegal drugs or abuses alcohol habitually or continually (or frequently, in the case of controlled substances). Either parent (or both parents) can be ordered to pay for the drug testing. A positive result, by itself, cannot be grounds for a custody ruling against the party. The tested party will be entitled to a hearing to contest the results.
Written By Donald P. Schweitzer
Posted by The Law Offices of Donald P. Schweitzer at 5:54 PM|Permalink
| Comments (0)
Grandparents Requesting Grandchild Custody and Visitation
A fundamental element of many children's rearing is their relationship with their grandparents. This relationship is often encouraged by parents who seek to develop that vital connection. It is not highly uncommon that a situation arises in which the bond of grandparent and grandchild is not desired by a custodial parent. In such cases grandparents may petition for a court order granting child custody and visitation.
Grandparents' rights to court-ordered visitation with their grandchildren are generally outlined in the California Family Code. More specific principles regarding grandparents' rights to child custody and visitation are discussed in California and United States Supreme Court decisions: Butler v. Harris (2004) 34 Cal.4th 210, 17 Cal.Rptr.3d 842 and Troxel v. Granville (2000) 530 U.S. 57, 120 S.Ct. 2054.
In an effort to make an appropriate and fair determination, the court may grant reasonable visitation to grandparents if it finds that there is a preexisting relationship between the grandparent and the grandchild that has engendered a bond such that visitation is in the best interest of the child. The court will balance the best interests of the child in having visitation with the grandparents against the right of the parents to exercise their fundamental parental authority concerning care, custody, and control of the child. Butler, supra, (2004) 34 Cal.4th 210, 17 Cal.Rptr.3d 842. Ordinarily, when a parent adequately cares for a child, and therefore is considered to be a fit parent, the court presumes that the parent acts in the best interest of the child, which shifts the burden onto the grandparents to prove otherwise. In the absence of evidence showing a parent to be unfit, or acting contrary to child's best interest, "[T]here will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of his or her child." Troxel, supra, (2000) 530 U.S. 57 at pp. 68-69, 120 S.Ct. 2054. The judge will not simply substitute the parent's judgment with a judgment of his own, since a fit parent is presumed to properly care for a child and continually act in the child's best interest.
Although the issue of grandparents' child custody and visitation can be exceptionally complicated, in sum, if a child's best interests are genuinely and definitively at stake, the court will likely grant grandparents' request for child custody and visitation.
Written By Suren Stepanyan
Posted by The Law Offices of Donald P. Schweitzer at 5:48 PM|Permalink
| Comments (0)
DISCLAIMER - Using this website does not create an attorney client relationship between you and the Law Offices of Donald P. Schweitzer or any individual attorney. None of the materials available at this site constitute legal advice. This site has been designed to provide you with general information regarding our firm, our attorneys, and the types of services we provide. If you need legal advice, or desire to establish an attorney client relationship with any of the firm's attorneys, please contact us.
