May 16, 2011

Child Custody News: Mom Loses Custody Move Away Case

Justia-photo-96 children.jpegThis news story was reported all over the country and I found a comprehensive report of the story published in the Chicago Tribune by reporter Julie Deardorff. Briefly, a mom of two children, eleven year old daughter and 5 year old son, lived with her children in North Carolina while the father of the children moved to Illinois when he was hired by a company there. The father filed a motion in the North Carolina court seeking custody of the children, and seeking an order that the children would relocate to Illinois to live with the father. In the San Diego Superior Court this is known as a child custody move away motion or a child custody relocation motion.

As a San Diego Certified Family Law Specialist lawyer, I am very familiar with these motions. My office handles many move away custody cases; especially at this time of year in The Family Court as parents who are seeking a move-away custody order want to reestablish themselves in the new area and enroll the children in the new school prior to September. The reported reasons that the father used in this case is probably what caused this case to make the news all over the country. Reportedly, the father said that the children should be removed from their mother in North Carolina because the mother has stage four breast cancer; and, that he (recently hired) had a job whereas the mother was unemployed.

Not surprisingly, the national news exploded with this story when a North Carolina judge agreed with the father. Losing custody of your children, and having your children moved to another part of the country because you have cancer? Or that you are unemployed? However, a North Carolina attorney states that there are reasons for the change of custody other than the illness or the employment status of the mother. The point of the story to me is that every child custody case is unique. Every case has a wide range of facts and each case requires the skill, training and experience of the family law attorney to discern which facts will enhance the likelihood that the child custody motion will be granted. The mom's family posted the below video on You Tube. This blog takes no position as to the outcome of the case.

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May 9, 2011

Learning From Sandra Bullock's Divorce

Justia-photo-95 kat von d.jpegAn article was posted, May 4, 2011, on regarding the Sandra Bullock-Jesse James divorce. The article contained an interview of Jesse James conducted by ABC News. The statements by Mr. James are interesting as they deviate from the initial statements of Mr. James, made immediately after the separation. This blog posted several articles as to the divorce and it is recalled how Mr. James expressed his sorrow regarding the separation and that he would enter rehab to address the issues raised.

As a San Diego Certified Family Law Specialist lawyer I have found that the end of a marriage is often used by both parties to reflect on whether the marriage could have been saved and what conduct was responsible for the separation. However in the article mentioned above, Mr. James stated that possibly he wanted Ms. Bullock to catch him in his extra marital activities. He also stated that he has not seen the baby, since the separation, that Ms. Bullock (and presumably Mr. James) adopted during the marriage. And, the best quote from Mr. James--that he spent six years "worrying" about what Ms. Bullock thought and wanted; and that it was now time to "worry about Jesse".

The article is interesting and compatible with what I have found: Namely, that people don't change unless they really want to change. Mr. James' statements suggested that he tried to be what Ms. Bullock wanted; however, he wasn't committed to changing. And, that he now fully embraces a lifestyle to which he identifies. He announces that he is now seeing a reality TV personality, Kat Von D, and her photo is posted with this article.

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May 2, 2011

Divorce Court Restraining Order Considerations

Justia-photo-89 police arrest.jpegAttorney Liz Mandarano wrote in the Huffington Post that the "worst thing" a woman can do, in a family law case, is to use the Domestic Violence Restraining Order protection law to falsely accuse the other party and to gain some of the substantial procedural advantages which are intended for the real victims of domestic abuse. She makes several points in support of her conclusion (as to "worst thing") and the focus on this post will be to report the argument that she makes. Nowhere does the article suggest that the protection that the Domestic Violence Restraining Order process brings to the victim is not needed in our society. Her argument is that the process allows significant abuse to those who act in bad faith.

Ms. Mandarano states that there is little accountability in making domestic violence accusations or allegations. The restraining order process is brought to a conclusion so quickly that there is no opportunity for discovery efforts to test the accuracy of the allegations prior to the final hearing. The restraining order may be used to gain an advantage in a child custody case. As a San Diego Certified Family Law Specialist attorney my office has filed and defended against Domestic Violence Restraining Order cases. "Discovery" is a term for legal procedures of issuing subpoenas, Inspection Demand, interrogatories and conducting depositions. Ms. Mandarano's point is well taken in that these procedures should be allowed prior to the final hearing on a Domestic Violence Restraining Order petition.

The article provides an excellent example regarding a restraining order brought against David Letterman by a woman who claimed that Mr. Letterman was talking in code on his show--speaking in a way that was intended to personally threaten this woman who brought the restraining order application into a New Mexico court. The court initially granted a temporary restraining order based on these difficult to believe allegations. Subsequently another judge denied the restraining order request.

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April 25, 2011

Charlie Sheen Child Custody Case Explained

Justia-photo-93 Sheen.jpegAs a San Diego Certified Family Law Specialist attorney, I've had thousands of child custody and custody move away cases handled in my family law office. I've had to research the Charlie Sheen custody story from many different reports. Charlie Sheen is the father of twin boys with mother Brooke Mueller. They lived together until reportedly Charlie pulled a knife on Brooke in 2009. The parents lived separately and raised their two, young children, until 3/21/11 when Brooke filed for a restraining order claiming that Charlie had threatened her. (Bob and Max were 23 months old at the time of the March 1, Domestic Violence Restraining Order request.) Mail Online published a detailed story as to the restraining order and you can see the first page of the restraining order, and the story summary, here.

Brooke was successful in obtaining the temporary restraining order on 3/1/2011. However, Domestic Violence Restraining Orders, granted on a temporary basis, must be heard in court 21 days later and, at this second restraining order hearing, the court will decide whether to grant a permanent restraining order. Domestic Violence Restraining Orders grant orders intended to offer protection to the victim (for example, by a stay away order, an order to "kick out" the perpetrator from the family residence, an order that the perpetrator turn over all of his/her guns to law enforcement, etc. And the Domestic Violence Restraining Order may include a child custody and visitation order. The restraining order served on Charlie Sheen did contain a custody order as Charlie had to turn over the twins to Brooke's custody.

Almost immediately after the restraining order was filed, granted and served, Charlie's lawyers, according to a news report, vigorously pursued and obtained a child custody agreement between Charlie and Brooke. This maneuver is frequently overlooked by those less experienced in child custody litigation. Instead of waiting to litigate the child custody case in court (with witnesses, evidence, mediators, etc...) Charlie and Brooke reach an out of court agreement.

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April 11, 2011

Reports of Two Divorces

Justia-photo-92 Longoria.jpegRecently I had lunch with a client who is a very successful businessman who develops innovative businesses, starts them up, then sells them for a very nice profit. We talked about divorces where the Husband and the Wife battle each other to the point that their marital estate is devastated. We discussed why do people allow emotional decisions to cause economic destruction.

As a San Diego Certified Family Law Specialist attorney I've seen divorces where will quickly compromise and settle, or, in the alternative, act out of emotion and hurt themselves regarding their property and children. Typically I hear that the family law lawyers are to blame; however this is not always, or even mostly, the case.

Two news stories come to mind. One involved a very bitter, angry and devastating divorce as reported in detail by journalist Lisa Kroll for Forbes. She summarizes the story of Mr. Blixseth, who was worth 1.3 billion in 2007 then became engaged in a 2008 divorce that became a battle royal over money and businesses. This battle set off a chain reaction of bankruptcy, investigations and other problems which all had their Genesis with the divorce. Then there was another story of Eva Longoria's divorce (which was covered by this Blog), which was wrapped up in a timely fashion with little, if any, economic damage. Ms. Longoria (Desperate Housewives) filed for a divorce and claimed that her professional basketball Husband was having an affair.

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March 31, 2011

The Lauren, Brent and Kevin (?) Child Custody Case

Justia-photo-92 two fathers.jpgScott v Superior Court states at page 544 "There can be only two parents, not three." Accordingly the appellate court in Lauren W. v Brent A. (Court of Appeals California, Fourth District, Division Three) ended the game of musical chairs allowing Brent and Lauren to have a seat and told Kevin that he had to leave the party. You can read the case here. (This is an unpublished case and may not be cited as legal authority in a courtroom; however it is educational as to issues of child custody rights and standing to sue for custody or visitation pursuant to the laws of the State of California.) This is actually the end of the story. Here is how the appellate court got to this point.

Lauren gave birth to (child) and filed a petition under the UPA (Uniform Parentage Act) naming Brent as the Father. Brent responded, acknowledged that he was the child's Father (he had signed a declaration of paternity) and requested visitation. The parties agreed to visitation and a court order was entered finding Lauren was mom; Brent was dad and adopting the agreed upon visitation schedule. Shortly thereafter, Kevin filed a joinder motion (motion seeking to join the Lauren and Brent UPA case so that he could assert his parenting rights to the child. Kevin's joinder motion was granted so now the paternity, child custody, visitation case included one mom and two men claiming to be dad. A trial court issued an order finding Kevin to be the "legal father". The appellate court stepped in at this point.

As a San Diego Certified Family Law Specialist attorney, my office works exclusively in the law field known as Family Law. It is our goal to correctly analyze legal cases as to divorce, paternity, child custody, custody move away cases and other areas of family law. It is our goal to assist the trial court to reach a proper legal analysis of a case so that a proper order is entered at the trial level. This case is a good example of how a flawed analysis can lead to confusion and appeal. Next you will see how the appellate court resolved this matter.

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March 28, 2011

Badly Brain Damaged Mom Wins Visitation Rights

Justia-photo-91 disabled.jpegAbbie Dorn was excited; she was giving birth to triplets. She went into the hospital as a vibrant, alive, mother to be of triplets, and something horrible occurred. The reports vary in their clarity of the medical procedure and this post is not about the medical issues; however when Abbie left the hospital, she left behind her hopes and expectations of being the mom that she had wanted to be. She was so badly damaged that she could no longer walk or eat and it is debatable to what extent her cognitive functions were damaged.

In the reports that I read, there was no question that Abbie could not have custody and care of the children. She cannot care for herself. I saw one report mention "unfit" parent; however this term seems misapplied to Abbie. She cannot care for her children as she is badly disabled, not that she won't care for her children. Abbie's former Husband, Daniel Dorn, maintained that it was not in the best interest of the children to visit their so badly disabled mom. This issue of Abbie's visitation went to court and the court ruled in favor of Abbie's visitation. In person visitation and visitation by Skype - virtual visitation. The "story" is not adequately described in the news reports.

So here is the real story to this "child visitation" case. The following is what I think was really behind this case, and where the lawyer on Abbie's side outmaneuvered the Father's legal effort. This is really a story of grandparent visitation rights; not the visitation rights of a disabled parent. Abbie lives with, and is cared for, by her parents--the maternal grandparents of the minor children. As a San Diego Certified Family Law Specialist attorney, handling many child custody cases, I've learned that grandparents are the hidden victims in child custody battles. They want to have frequent and continuous visitation with the grandchild however, directly, many states like California, highly restrict grandparent rights.

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March 21, 2011

Child Custody, Support, Mansions

Justia-photo-90 palm and many other news agencies report that the former wife of Tiger Woods, Elin Nordegren, has purchased a mansion in Palm Beach for $12 million. Reportedly, the home is 17,000 square feet and built in 1932. You can see a photo of the mansion here. It is a part of the divorce settlement that Ms. Nordegren received which has been estimated to be in the range of $100 million to $200 million. The settlement is private and confidential however the estimates are fairly accurate as Mr. Wood's marital estate was fairly well known. This blog posted many articles as to the Woods' divorce; correctly assessing how much Ms. Nordegren would receive by way of child support, spousal support and/or property division.

As a San Diego Certified Family Law Specialist attorney my office in La Jolla (UTC area) handles many child custody cases and, related to the Woods' divorce, child custody move away cases. A move away, or child custody relocation case, is defined and connected to a significant amount of California law including the reported decisions of two California Supreme Court cases. The law defines whether a parent has the right to relocate to another geographic area with a child or children or the marriage. Further, the law defines whether the other parent has the rights to keep the child or children from relocating with the moving parent. This blog posted an article as to the Woods' divorce predicting that Ms. Nordegren would be successful in asserting her right to relocate with the children back to her home country Sweden.

Evidently, Mr. Woods and his attorney came to the same conclusion that I did as to the move away issue. The following is my educated guess as to how Mr. Woods resolved the case: He assertively moved forward with a generous monetary settlement. His wealth was identifiable so he openly offered a quick and substantial settlement to his wife with (likely) a provision as to his visitation. Reportedly, this settlement included the Palm Beach mansion which is geographically located near to Mr. Woods' residence.

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March 15, 2011

A Case of Divorce, Trial and Jail

Justia-photo-89 Hawaii Court.jpegDaryl Huff, a KITV 4 News Reporter recently published an article as to what has been called Hawaii's most famous divorce case. The divorce case involved actor Brenda Dickson and attorney Jan Weinberg. Dickson is a well known television star and Weinberg is an experienced personal injury lawyer. For additional background on Brenda Dickson I went to Wikipedia.

Reportedly, this historically long and dramatic divorce case has gone on for years with allegations of one spouse taking marital property and hiding the assets in another state or country. Further the case involved contempt of court orders issued by the judge. These types of orders are made in rare cases when a party violates a court order in such a way that the judge fines and/or jails the party who violated the court order. Reportedly, Dickson was jailed for more than two weeks; released, then, later, jailed again for more than three months. (Reportedly, she later won an appeal that cleared her from the contempt counts which had placed her in jail.)

Later in the case, the divorce went to trial and reportedly Mr. Weinberg was not present. Ms. Dickson had a very difficult time proving anything with Mr. Weinberg not present. If he were present, he could have been called to the stand for examination and cross examination. It is unknown what divorce issues Ms. Dickson needed to address through Mr. Weinberg's testimony. Possibly his income and the identity and location of assests. As a San Diego Certified Family Law Specialist attorney, it has been my experience that the absence of a party from a trial is usually not a stumbling block as evidence is offered to the court as to the identity, value of assets as well as the income of the missing party. The missing party then hurts his/her own case by not being present to offer testimony or help his/her attorney with the points raised in court.

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February 28, 2011

Report of Child Custody, Divorce and Abduction

Thumbnail image for Justia-photo-89 police arrest.jpegReporter Evangelia Ganosellis of 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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January 27, 2011

Mom's San Diego Move Away Motion Denied

Justia-photo-84 Coachella Valley.jpegYou can find the unpublished appellate decision of In Re Marriage of McCown here. "Unpublished" means that this case cannot be cited in court as any legal authority; however it is always a good exercise to read and analyze appellate court opinions to understand how certain child custody decisions are reached. As a San Diego Certified Family Law Specialist my office handles many child custody move away cases. These cases are also known as child custody relocation cases. Specifically, these cases involve a custodial parent's decision to move away, or relocate to another area, with the minor child or children. If the other parent opposes the relocation, a motion is filed in the family law court to permit the move and the court rules on whether the custodial parent may move the children.

In the unpublished McCown case, the mom argued that she was the custodial parent. Dad had visitation on the first, third and fifth weekends of every month. The family law trial was located in the Coachella Valley (Riverside County). Mom's new Husband was a pilot in the military and he was stationed at Miramar in San Diego (a military base located down the road, east of my La Jolla Family Law Office). The dad objected to the move stating that the child had always lived in the Coachella Valley where the child was very involved with the relatives on the Father's side of the family. The court appointed mediator (similar to the Family Court Services mediator of the San Diego Family Court) opined that the child was doing well under the parenting order but did not make a recommendation as to the move away request. The court found that it was in the best interest of the child to remain in Coachella Valley.

According to this decision the mom would have to remain living in Coachella Valley rather than to move to San Diego County where she would reside with her new Husband. Mom appealed the court's decision to the Fourth District, Division Two, Court of Appeals.

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