September 2011 Archives

September 28, 2011

Child Custody Move Away Cases Increase

Justia-photo-115 foreclosure.jpegCBS 8 San Diego reports that child custody relocation cases have increased during our economic recession. In a story dated September 26, 2011, a survey from the AAML (American Academy of Matrimonial Lawyers) is cited and discussed. The survey cites that a significant increase in housing debt during the last three years is connected with an increase in custody move away cases. As a San Diego Certified Family Law Specialist lawyer my office has witnessed similar events over the last three years.

This is easy to understand. For example, picture a couple coming to a point where one spouse files for a divorce. Assume that the Husband moves out of the family residence leaving the Wife and children behind. The Wife, with or without a job, finds herself unable to afford the mortgage. This is common. (The Ventura County Star reported on August 10, 2011, that foreclosures in California led the country in July 2011. That over 56,000 foreclosure filings occurred during the month.) The Wife, in our hypothetical, is the primary caretaker of the children. She cannot afford the home. Rental units are expensive in San Diego and she has family who will assist her in the mid-west. She files for a child custody order and permission to relocate with the children.

Child custody under California law is comprised of Physical Custody and Legal Custody. Simply put, these terms define where the child primarily lives and the rights of the parents as to information and decision making concerning the health, education and welfare of the child. The issue of "move away" or "relocation" is whether the physical custody parent may take the child with him or her when the custody parent relocates to another geographic area.

Continue reading "Child Custody Move Away Cases Increase" »

September 26, 2011

California Divorce Resolution - Settlement Through Negotiation

Justia-photo-114 negotiation.jpegThe Los Angeles Times reported the news as to the Mel Gibson and Oksana Grigorieva settlement. Gibson and Grigorieva had been involved in a nasty and escalating family law case involving claims of domestic violence, the release of tapes to the media where Mr. Gibson reportedly was caught up in angry ranting, claims that Grigorieva was an unfit mother and therefore should have restricted child custody rights, etc. Mr. Gibson and Ms. Grigorieva were never married however they had a child together therefore the case came before a family law judge regarding custody and child support issues.

As a San Diego Certified Family Law Specialist attorney, my office has found that settlement skills are just that - techniques that are learned. There are many conferences, handbooks, and programs which specifically teach settlement skills. In California family law, the specific legal effort to settle a case and to avoid litigation is known as "alternative dispute resolution". How did this case, between Mel and Oksana, which started out so conflicted, with so much anger, result in a quick settlement which allow for Oksana's use of one of Mr. Gibson's home (to raise their child), and a reported case settlement of $750,000 to Oksana? How did this case head towards resolution out of court when cases such as the divorce between Jamie and Frank McCourt continue to return to court with one contested motion after another?

I am told by settlement experts that a case does not settle until both sides of the case are highly motivated to end the dispute. I have seen that some cases settle for the right reasons and some do not. For example, in a child custody case, the issue of the child's welfare must be examined prior to a settlement. Businesses and property need to be appraised. Support should be based on an examination of earnings. Settlements which come about for the wrong reason (for example, one party is bullied into the agreement), often come back into the court systems more conflicted than previous to the settlement.

Continue reading "California Divorce Resolution - Settlement Through Negotiation" »

September 12, 2011

California Divorce Report: When Is A Gift Not A Gift?

Justia-photo-113 diamond ring.jpegAs a San Diego Certified Family Law Specialist Lawyer, continuing education is a part of the work of my office. Since my office only works in the field of Family Law, the research of new cases and statutes is greatly limited whereas a general practice attorney has a duty of continuing education in a variety of fields of law. One issue in family law that seems to never go away is the Husband requesting the engagement ring returned to him, from the Wife, pursuant to the divorce proceeding. The Husband may claim that the ring is very valuable, or that it is community property, or that the Wife secured it by fraud, etc.

ABC News reports of a man, Mr. Mekalian (James), who sued his former fiancee, Ms. Grazioli (Nichole) for the return of the engagement ring and a car or monetary damages to replace the value of both items. I've researched James' pleadings and you may see the Complaint here. His case is based on alleged fraud, and other. He specifically cites Civil Code Section 1590 which allows the donor (giver of the engagement ring in contemplation of marriage) to require the done to return the ring or the value of the ring if the marriage does not occur.

James accuses Nichole of acting in a fraudulent manner. Nichole is not commenting on the law suit. Presumably she may state that she had many marriage opportunities and that when she received the ring she terminated all other relationships and that she acted in good faith during this engagement. 1590 does require the judge or jury to consider all circumstances of the case and that the judge or jury find that which is just under the circumstances of the particular case. James apparently thinks that Nichole is a "gold digger" however the judge or jury may not agree. Possible James should seek a woman for marriage who has a job, and an income, and doesn't need James' money as in the video below of a five year old girl who charming millions on the Internet.

Continue reading "California Divorce Report: When Is A Gift Not A Gift?" »

September 7, 2011

How Does Child Custody and Child Support Go Hand In Hand?

Justia-photo-111 hand in hand.jpegYou have heard that California divorce courts make child custody decisions based on the Best Interest Of The Child. Therefore, if mom is primarily available to raise a child and she's doing a good job, while dad is hard at work making a good income, then, while unfair to some, it's easy to see that the court will order primary physical custody of the child to mom. Further, the court would order dad to pay a significant amount of child support. However, what if mom does something that causes mom to lose much of her custody time to dad? Would the court still order dad to pay a significant amount of child support to mom?

Justia-photo-112 jon cryer.jpegAs a San Diego Certified Family Law Specialist attorney, much of my time is spent in reading new cases and following changes in family law and child custody law. In researching, I came across an appellate court decision at the same time pop celebrity news was circulating the story of Jon Cryer's failed attempt to substantially lower his child support. This celebrity divorce story combines all of the elements of interesting news and legitimate legal education as to California child custody and support law. Actor Jon Cryer divorced Sarah Trigger in 2004. Reportedly, after a change of the custody order where Sarah only has a four (4) percent time share with the child, Jon motioned the court to terminate or greatly reduce his child support order. His motion failed; he appealed and lost. Why?

When the divorce judgment was entered in 2006, Sarah had a 65% time share of the child and Jon (actor on the popular Two and a Half Men TV show) was ordered to pay $10,000 per month in child support. Within a few years after the divorce, the court intervened and removed the child from Sarah pursuant to a report (and evidence presented) regarding neglect. Jon requested that his child support order be lowered to zero as Sarah, for all practical purposes, no longer was raising the child. The court reduced Sarah's child support from $10,000 per month to $8,000 per month even though her custody time had been reduced from 65% to 4%. Jon appealed however was he overlooking the factors of the child's "best interest" and his overall income available for support?

Continue reading "How Does Child Custody and Child Support Go Hand In Hand?" »