February 2011 Archives

February 28, 2011

Report of Child Custody, Divorce and Abduction

Thumbnail image for Justia-photo-89 police arrest.jpegReporter Evangelia Ganosellis of News-Press.com reported a story of child custody, visitation and alleged child abduction which raises many family law issues that occur every time a family court issues a custody-visitation order. Reportedly, Neil and Shannon Little shared custody pursuant to a March 2010 divorce judgment. Under California family law, "joint custody" means that the parties share legal custody and physical custody rights. The order may be structured in a way that neither parent has greater rights than the other parent. Back to the story--Reportedly, Neil picked up the eleven year old son according to his parenting time, but did not return the child to the mother at the end of his parenting time. In fact, according to the report, Neil "took off" with the child, not returning the child to the mother.

Reportedly, Neil's action led to a criminal warrant which led to publicity as to the alleged crime and the child was found in February 2011, four months after the alleged abduction. As a San Diego Certified Family Law Specialist attorney my office daily works with the issues reported in this story. How does a parent go from joint custody to a criminal warrant? Should joint custody be ordered in cases where great conflict exists? What should a father, in Neil's situation do, when he believes the custody order needs further change? What should a mother, in Shannon's position, do when the father violates a custody order? Let's explore these questions as these situations come up surprisingly more frequently than one would think.

Under California law, custody orders are to be made according to the best interest of the child. In the reported story, there is no information as to whether a court ordered joint custody or whether the parents simply agreed to joint custody. In my experience, joint custody works best when two parents can effectively work together in a co-parenting arraignment. By working together, they put aside their arguments and marital issues and amicably parent when in the presence of the child. Combative parents probably should not have joint custody.

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February 21, 2011

San Diego Divorce News: Amber Alert and Child Custody

Thumbnail image for Justia-photo-88 amber alert.jpegSan Diego 6 news reported of an alleged kidnapping of a baby resulting in an Amber Alert and an ending that was safe for the child. The baby is identified as 9 month old Elijah. There is no report that the father who took the child was ever married to the mother of Elijah. There is no dispute that the man, Edgar, is in fact the father of the child. The parents live approximately 65 miles apart from each other. Reportedly, Edgar was visiting with the nine month old child, at the mother's home, when he decided to physically take the child, driving off in his car. The mother called the authorities. A state wide Amber Report went out. The father and baby were found safe at the father's home and the child was returned to the mother.

As a San Diego Certified Family Law Specialist attorney, I am very experienced in child custody cases; child custody move away or relocation cases; applications for child custody by Fathers; defenses against such applications by Mothers; child theft cases; paternity cases with child custody issues; parenting schedule development that is age appropriate for a baby, or a child, and cases involving child custody with preferences as stated by child. There are many nuances in these cases. The primary focus under California law is the "best interest of the child"; however there is no child custody case that can be oversimplified and the various factors to the case must be considered.

The ending of this story, involving nine month old Elijah, was happy. The baby was unharmed. Possibly the father, Edgar, was well intentioned and simply wanted to be with his child. However, many of these stories do not have a happy ending. Children are frequently harmed by a distressed and irrational parent. Here, the state spent a significant amount of money searching for, and executing a State wide Amber Alert for, baby Elijah. How will this visitation method of Edgar affect his parenting rights in the future? Possibly, Edgar was persuaded by "father's rights" activists that he had a right to remove the child. In reality, his actions were naïve, and may have harmed his potential rights.

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February 14, 2011

California Child Custody Move Away Request Granted

Justia-photo-86 mom and child.jpgIn a recent "Not To Be Published" (this case cannot be cited in legal Points and Authorities) appellate court decision, In re the Marriage of CELIA L. and ROBERT N. BURNS, a Father's appeal of a trial court decision, allowing the Mother to move away with the minor child, was dismissed. The purpose of this posting is to provide a brief analysis of this case to better understand why the motion was successful for the Mother and why the Father's effort to block the move away failed.

As a San Diego Certified Family Law Specialist lawyer, I have handled many child custody move away cases (also known as child custody relocation cases). With a La Jolla family law office, we see clients who are financially mobile. We see clients who have school or work opportunities in other parts of the country or the world. Also, it is common that when a marriage breaks up, the primary custody parent will want to move back home with his/her family in another state. The United States is a very mobile country. People have a desire or a need to move. It is our job to know when the Court is likely to allow the move or likely to deny that a parent may relocate with a child.

In the Burns case, the Father stated that when the mother left the marriage, she moved, with a child of the marriage, to another city, and that relocation was unlawful and should not have permitted by the trial court. The parties met in 2004 and married in 2005. The marriage was unsuccessful, almost from the start. Allegations of anger, domestic violence and irreconcilable differences led to the Mother filing for divorce in 2007. Amidst Order to Show Cause motions for custody and Domestic Violence Restraining Order filings, the Mother moved away with the child. Immediately we see that the Father made procedural mistakes at this early stage of the case. Possibly the Father was a self represented litigant at this stage as the court proceedings contain many over the top statements by the Father in connection with the custody case. Hyperbole and drama is not a good substitute for evidence.

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February 9, 2011

California Divorce Update Regarding Spousal Duties

Thumbnail image for Justia-photo-87 fiduciary.jpegA "fiduciary duty" is a duty to act in the best interest of a person to whom a duty is owed under the law. As a San Diego Certified Family Law Specialist my office has followed the developments of California Family Law regarding the definition and expanding obligations of fiduciary duties owed by a spouse to the other spouse. With a family law office located in La Jolla California, I am in a community where fiduciary duties are often associated with corporations and estate planning. However, fiduciary duty is a lawful concept and significant obligation under California Family Law.

For example, is a fiduciary duty may be violated when, during the marriage, the Husband has the Wife sign over (quitclaim) joint tenancy deeds to the Husband so that the properties are owned solely under the Husband's name? (Changing community property to Husband's separate property.) Has a Wife violated a fiduciary duty when, during the marriage, the Wife has the Husband transfer real estate under his name (owned prior to the marriage) to Husband and Wife as "joint tenants"? Does it matter that the marriage is a short term marriage as opposed to a long term marriage? Does a parent violate a fiduciary duty when the parent seeks to turn a child against the other parent, immediately prior to separation, thus seeking to affect the child custody orders?

Surprises can be nice during a marriage. For example, consider a spouse who secretly buys a diamond ring to give to the marital partner on Valentine's Day. Such a gift may involve a unilateral act, by a spouse, without the knowledge or consent of the other spouse. Does this violate a fiduciary duty? What if the spouse gives the ring to a woman friend, not his Wife? Without the Wife's knowledge or consent, a gift of significant expense to a woman friend hardly seems to be an action in the best interest of the Wife. And when fiduciary duties are violated, what action will the San Diego Superior Court take? Consider the case of Fossum (IRMO Fossum) now certified for publication by the California Appellate Court.

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February 3, 2011

California Joint Physical Custody Request

Justia-photo-85 Halle Berry.jpegThe Huffington Post published a story stating that actor Halle Berry cancelled a movie role which was to start shooting in New York at this time. The cancellation was tied to her desire to more actively participate in the child custody dispute that is building between herself and her ex Gabriel Aubry. As a San Diego Certified Family Law Specialist attorney I handle and my La Jolla Family Law office handles many child custody cases. Details are lacking in this report; however, possibly, by this report, we are informed that Ms. Berry is very serious about the child custody issue and that she will diligently work with her family law lawyer to prepare for the custody litigation. This is exactly what my office would want from a client.

In a follow up story from The Huffington Post, the report is that the child custody case is beginning to take shape centered around allegations that the young child "cries hysterically" and acting out when the father, Mr. Aubry, comes to pick up the child for his parenting time. It has been my experience that a child acting out, at this child's young age (age 3), raises issues of (one the one hand) child abuse, and (on the other hand) parental alienation. If the allegation is true, an evaluation as to the cause of the child's reaction should commence.

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