October 2011 Archives

October 27, 2011

California Law Gives Minors Right to STD Prevention Without Parental Consent

schoolbandred_10262011.jpgA controversial new law in California, Assembly Bill 499, allows minors between the ages of 12 and 17 to receive vaccinations and preventative treatment for sexually transmitted diseases without first obtaining parental consent. This includes the vaccine that prevents HPV infections in girls and women. HPV can cause cervical cancer in many who are infected. Several other states have passed laws either allowing or mandating this particular vaccine, and these moves have been quite controversial. Supporters of the California law, which was introduced by Democratic Assembly Member Toni Atkins of San Diego, say that it provides needed protection for children aged 12 to 17 years from serious health concerns. Opponents have expressed concern over both the safety of the vaccines themselves and the broader implications for parental rights to make decisions regarding their children's health. The law could have an interesting effect on the practice of San Diego divorce law, both in how parents approach the issue of medical decisions in negotiation or litigation and in how attorneys draft divorce and custody decrees.

Before AB 499 became law in August of this year, California did not allow teens access to preventative treatments for STD's without parental permission. Teens already had the legal right to seek treatment for existing infections without notifying their parents. Proponents have acknowledged that parental involvement is ideal, but not always possible. Part of the rationale offered for the new law is teenagers' need to access preventative health care regardless of their family situation, such as where parents are absent, abusive, or suffering from addictions or disabilities that might prevent them from engaging in the child's health care decisions. Critics have argued that this is too great a burden to place on children as young as 12, and that the law should emphasize uniting parents and children rather than separating them.

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October 20, 2011

Preventing Domestic Violence in San Diego

In the past year, San Diego County has had 17,000 reported incidents of domestic violence. Twelve domestic violence cases resulted in murder. Both the City and County of San Diego recently announced the formation of the Domestic Violence High Risk Response Team, a collaboration between city and county law enforcement to identify cases with a high risk of extreme violence or death and to direct resources to the victim right away. Additionally, a program called Thriving, Healthy Relationships in Violent-Free Environments will handle lower-risk cases involving victims living with minor children.

San Diego seems to have had a surge in domestic violence recently. The Response Team's formation is partly a response to the October 2010 murder of 19 year-old Diana Gonzalez. Gonzalez's estranged husband, Armando Gabriel Perez, is alleged to have murdered her on the San Diego City College campus. Perez is still at large, and authorities believe he is hiding in Mexico. Gonzalez's death has become a rallying cry for many to fight against domestic violence. California Governor Jerry Brown signed a bill into law that was inspired by the Gonzalez case. The new law enhances punishments for people convicted of strangling or suffocating a spouse or partner.

Another case that helped inspire the Response Team is that of Rosa Lisowski, who had filed for divorce from her husband in 2008 after enduring years of abuse. She disappeared in March 2008. Her husband was convicted of her murder and committed suicide in jail in 2010 while awaiting sentencing. Her niece, Veronica Ramos, said that Lisowski was not aware of resources available to her and that she did not report much of the abuse she suffered.

The Response Team, led by the district attorney's office, includes local law enforcement, county officials, and nonprofit organizations. Law enforcement or medical officials will identify cases presenting a high risk for violence or homicide and will report the cases to the Response Team. The Response Team will then determine what resources are needed to provide immediate help to the victims. The Thriving, Healthy Relationships in Violent-Free Environments program will be headed by the city attorney's office and will focus on early intervention to keep situations from becoming more violent or dangerous.

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October 13, 2011

Supreme Court Denies Review of Louisiana Adoption Decision for Same-Sex Couple

Oren Adar and Mickey Ray Smith, a same-sex couple, adopted a 1 year-old boy in Shreveport, Louisiana in 2006 and took him home to New York. They completed the adoption process in New York and legally became the child's parents. The family later moved to San Diego, where they live now. The problem arose when they tried to obtain an amended birth certificate for their son from the state of Louisiana. Their case demonstrates how family law can vary from state to state and the difficulty in bringing a family case from one jurisdiction to another.

fatherson10112011.jpgThe Louisiana registrar of vital records and statistics denied Adar and Smith's request to be listed jointly as the child's parents on the birth certificate. Louisiana only allows joint adoption of a child by married couples. Louisiana does not recognize same-sex marriage. Therefore, as far as the state of Louisiana was concerned, the two were not married and could not both appear on the birth certificate.

While the registrar's office agreed to recognize the legality of the adoption and list one of them as a parent on the birth certificate, Adar and Smith insisted that they both be listed. They filed a federal civil rights claim, alleging that Louisiana's actions denied full recognition of the New York adoption decree and thus violated the Constitution's "full faith and credit" clause. That clause declares that each state must give "full faith and credit" to the judicial decrees of each other state. By refusing to list both legal parents on the birth certificate, Louisiana was effectively trying to negate the full legal effect of the adoption decree, according to Adar and Smith's suit.

The Fifth Circuit Court of Appeals in New Orleans disagreed with Adar and Smith and dismissed the case. The court held in April 2011 that the question was actually legislative, not judicial, so the "full faith and credit" clause does not apply. It also concluded that each state has the right to create its own laws regarding birth certificates based on its own findings about what would benefit families and children in that state. Louisiana, the court declared, could conclude that adopted children would be best served by either a married couple or single person rather than "the freely severable relationship of unmarried partners." Of course, the court's logic only applies in a state that does not recognize same-sex marriage.

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October 6, 2011

Big Spousal Support Bill for the Richest Man in San Diego County

A recent court ruling reviewing the divorce settlement of billionaire investor Charles Brandes and his ex-wife Linda includes a hefty monthly spousal support payment. The ruling, issued by San Diego Superior Court Judge Jeffrey S. Bostwick, comes after a dispute arose over the division of property in the couple's 2005 divorce settlement. The original settlement agreement gave Mrs. Brandes five residences, including a penthouse and two condominiums in New York City and a house on the beach in Del Mar. She also received, in addition to other property, $18.7 million dollars from their savings and investments. The investments she received in the divorce reportedly generated around $154,881 per month, the sufficiency of which was one of the issues addressed by the court this year.

frances_marie_30102005_029_10062011.jpgCharles Brandes is a San Diego money manager and owner of Brandes Investment Partners. He has an estimated net worth of $1.3 billion. Forbes Magazine listed him 331st on its list of the 400 richest Americans for 2011. In 2010 it listed him at #655 among the world's billionaires. Mr. Brandes' monthly income when the he and Mrs. Brandes first met was allegedly around $12,500, and is now reported to be upwards of $16 million. He and Mrs. Brandes married in 1986 and separated in 2004.

The court reviewed the question of whether the original division of property was fair under California law and whether the amount of spousal support was sufficient to meet her needs. Mrs. Brandes requested spousal support of $735,000 per month, citing expenses such as a wardrobe budget of $70,000 a year and substantial expenditure on art collecting. She also requested modification of the property division based on a valuation of her share of the marital estate at $453 million to $597 million. The court awarded her an additional $10,052,042 "to equalize the division of community property," as well as spousal support of $485,000 per month, far less than her request but hardly a small amount.

As large as the award to Mrs. Brandes may seem, it might be considerably less than what California law could allow. California follows community property rules, meaning that all property acquired during the marriage, with a few exceptions, belongs to the marital estate. Each spouse is entitled to half of the community estate in a divorce, with adjustments made based on a number of factors. For example, a court may award more than 50% to one spouse of it finds the other spouse to be at fault for the marriage's breakup. Out of an alleged total net worth of over $1 billion, Mrs. Brandes seems to have gotten a rather small percentage.

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October 3, 2011

Which Court Has Custody Of A Child Custody Case?

Justia-photo-117 Texas Court.jpegFox News published a story on Thursday, 22 Sep 2011, regarding Jesse James's child custody case. (Jesse James was married to Sandra Bullock and this marriage was dissolved in 2010.) The custody motion was filed by Mr. James to change the venue of the court case from Orange County California to the state of Texas. The case was between Mr. James and Janine Lindemulder. Wikipedia reports that Mr. James and Ms. Lindemulder have a daughter and that Ms. Lindemulder is an adult film star. (A photo of the Hays County courthouse is to the right.)

As a San Diego Certified Family Law Specialist attorney, my office receives calls from people all over the country and jurisdiction and venue issues are frequently involved. Just today a mom with a case in the Los Angeles court wanted to know which court would take over the case if she moved to San Diego and the father moved to Idaho. Similarly, Mr. James now reportedly lives in Texas while Ms. Lindemulder lives in Oregon. The news report did not say why Ms. Lindemulder opposed the motion to move the case to Texas, or whether she filed to move the case to Oregon. The report stated that the motion had been filed approximately one year ago. (Mr. James is shown in the video walking in Orange County California.)

There are extensive rules under the UCCJEA (Uniform Child Custody Jurisdiction and Enforcement Act) which helps courts to resolve which state should take over a child custody case. Years ago a parent could file a motion for the custody of a child in one state, for example, Indiana; then if the parent lost the custody motion, he or she could grab the child and file for custody in another state, for example, California. The UCCJEA law was passed in each and every state in the country and the law seeks to end this problem by only allowing one state to proceed with a custody case, to the exclusion of all other states.

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