December 15, 2011

Possible Father of Alleged "Bieber Baby" Located in San Diego

Justin Bieber 1The latest chapter in perhaps one of the strangest paternity disputes in recent California history comes with the arrest of Robert Powell in San Diego County over Thanksgiving weekend. The arrest, in one sense, gave Powell an opportunity to insert himself into the recent paternity dispute involving pop signer Justin Bieber. Mariah Yeater, a 20 year-old Lakeside resident, publicly claimed that Bieber is the father of her child. Powell now claims that he is the father, and that Yeater lied about the child's paternity for money.

Bieber has steadfastly denied not only being the child's father, but even knowing Yeater at all. Yeater filed a lawsuit claiming Bieber is the father of her child a few months ago, but withdrew it without prejudice in November. She alleges that she had a sexual encounter with Bieber backstage at Los Angeles' Staples Center after a concert last fall. Yeater says she had just turned 19 years old at the time. Bieber would have been 16 years old. The child was born in July 2011.

Yeater did not produce any evidence to substantiate any of her claims, but Bieber submitted to a paternity test. She dismissed the suit while results were still pending. Yeater cited the media frenzy surrounding her claims, which includes death threats from Bieber fans, led to her decision to withdraw her petition. Her lawyer stated that he expects both sides will sign confidentiality agreements regarding the paternity test. Since she dismissed her suit without prejudice, she is free to re-file it at any time.

Yeater's paternity claims have mostly met with ridicule and disdain, but it appears Bieber has followed the standard legal procedure. If Yeater was unmarried when the child was conceived and born, the law makes no presumption as to the father's identity. She may allege the father's identity, or someone claiming to be the father may come forward. A child's paternity, if in dispute, is generally established through a paternity test, which compares DNA samples from the child and the alleged father. A father may also sign a voluntary acknowledgment of paternity, or whatever equivalent form is used in his state, which he then files with a state registry. In this case, Powell may request his own paternity test. Once paternity is legally established, questions of child custody and child support come to the fore.

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December 8, 2011

Court Approves Removal of Children from San Diego Home Because of Domestic Violence

A recent decision from the Fourth District Court of Appeals in San Diego, In re I.A., et al, affirmed a trial court decision to remove two children from their home after the children allegedly witnessed one or more incidents of domestic violence between their parents involving weapons. The mother had appealed the trial court's order, challenging the sufficiency of the evidence.

The case began with a petition by the San Diego County Health and Human Services Agency on behalf of two children, identified as 4 year-old I.A. and 2 year-old N.A. The petition alleged that the children were at "substantial risk of serious physical harm" due to domestic violence between their parents, identified as M.G., their mother, and Ivan A., their father. The parents were apparently divorced but living together for financial reasons. The Agency alleged that the parents had an argument in the presence of the children in which Ivan threatened to hurt M.G., after which M.G. used a cup to hit Ivan on the head, making his nose bleed, and cut him on the arm and chest with a box cutter. Police arrested M.G. and charged her with assault with a deadly weapon, but Ivan declined to request a protective order and helped pay her bail.

The Agency took the children to a children's center and later placed them with nonrelative extended family. I.A., the older of the two children, told the social worker assigned to the case that he had witnessed arguments and incidents of violence between his parents, including attempts by Ivan to choke M.G., but he denied seeing the box cutter attack. While the parents' accounts of the fight conflicted in many ways, the main aggressor was found to the the mother, M.G. She reportedly expressed remorse and agreed to work services that would reunite her with the children.

After a hearing that included testimony from social workers and child care workers assigned to the case and who had worked with the parents and the children, the court concluded that domestic violence had occurred. It ordered the children placed with the nonrelative extended family member and ordered the parents to engage in reunification services. M.G. appealed, contending that the evidence did not support the court's findings of domestic violence or risk to the children.

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November 25, 2011

Demi Moore Seeks Divorce from Ashton Kutcher after Adultery Allegations

81282201BM012_7th_Annual_ChDemi Moore announced her intention to divorce Ashton Kutcher, her husband of over six years. A San Diego woman had publicly claimed she had an affair with Kutcher several weeks earlier, leading to reports of trouble in the marriage. Both Moore and Kutcher have expressed remorse and regret over their split. Celebrity marriages and break-ups are familiar to most California divorce lawyers, but this case offers a glimpse into how "fault"-based concepts like adultery could still factor into the divorce process, but often do not.

Moore and Kutcher married on September 24, 2005, after a tabloid-fodder two-year romance. The media made much of the 15-year age difference between the 40-something Moore and the 20-something Kutcher, but they settled into the role of a Hollywood couple soon after their wedding. This is Kutcher's first marriage and Moore's third. Moore was previously married to actor Bruce Willis from 1987 to 2000, with whom she has three children. They started a charitable organization, the Demi and Ashton Foundation, earlier this year to combat child sex slavery and human trafficking.

Problems began when a San Diego woman alleged that she had unprotected sexual intercourse with Kutcher. This allegedly occurred at the Hard Rock Hotel in downtown San Diego after a night of partying on September 24. It may be worth noting that this was Moore and Kutcher's sixth wedding anniversary. The woman claims that Kutcher told her at the time that he was separated from Moore. While the adultery allegation may not be the sole cause of the couple's split, it did not help the situation.

California adopted "no fault" divorce decades ago. As such, adultery is not a significant issue for a court in determining whether or not to grant a divorce. The California Family Code lists only two grounds for granting a divorce: "irreconcilable differences" and "incurable insanity." As a general principle, adultery is also not a substantial factor in determinations of child custody, support, and property division. It could be an issue where one spouse expended marital resources on the affair, such as using funds from a joint bank account on gifts for the paramour or spending community money on hotel rooms or other affair-related costs. If an adulterous relationship adversely affects the children of a marriage, that may also be a factor for a court to consider. Taken by itself, however, the simple fact (or allegation) of adultery often has little effect on a divorce proceeding.

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November 17, 2011

California Woman Ordered to Pay Spousal Support to Abusive Ex

A San Diego area woman was ordered by a family court judge to pay $1,000 per month in spousal support to her ex-husband, who is currently serving a six-year prison sentence for abusing her. While this may seem contradictory, both the criminal conviction and the award of spousal support follow the letter of two separate areas of the law. Whether they follow the spirit of the law may be another question entirely. The woman appealed the order, arguing in part that her ex-husband has no expenses while incarcerated. The judge agreed and reversed the order, but the ex-husband will be within his legal rights to ask for spousal support again upon his release.

The divorce of Crystal Harris and Shawn Harris, filed in 2007, became final in 2010 after twelve years of marriage. That same year, Shawn Harris went on trial for an alleged incident of sexual assault in 2008, part of a years-long pattern of abuse. Crystal Harris had used a hidden recorder to obtain evidence of abuse. A jury convicted Shawn Harris of forced oral copulation, but additional charges of spousal rape by force and sodomy resulted in a hung jury. He received a sentence of six years' imprisonment and will be eligible for release in 2014.

Crystal Harris works as a financial analyst, earning around $110,000 per year. Shawn Harris worked as a car salesman, but Crystal Harris had supported him since the birth of their first child in 2002. Under those circumstances, California law permits a judge to award spousal support to the spouse earning less money. The judge awarded him $1,000 per month in spousal support and ordered Crystal Harris to pay $47,000 towards his legal fees.

The statute allows an award of up to $3,000 per month in the Harris' circumstances, but it also gives a judge discretion to reduce or eliminate the amount of the award when the receiving spouse has been convicted of domestic violence. The only time a judge is prohibited from awarding spousal support at all is when the spouse has been convicted of the attempted murder of the other spouse. The judge lowered the support amount to $1,000 because of the conviction, which Crystal Harris called the "rape discount."

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November 15, 2011

"Until Death Do Us Part"--California Divorce

Justia-photo-120 bride.jpegThe stories are finally coming to an end as to the Kim Kardashian and Kris Humphries 72 day marriage. Reportedly, Kris Humphries was upset by Kim's decision and conclusion that the "irreconcilable differences" could not be resolved by marriage counseling. Kim filed for dissolution of marriage in a California Superior Court 72 days after the marriage ceremony. And, further, reportedly the LGBT community was enraged by Kim's filing for divorce after just 72 days. I understood from this article that many persons in the LGBT community felt that their right to marry was denied to them on the basis that this "right" only belonged too sacred for them; however, then persons in the heterosexual community treat the right disrespectfully.

In the hundreds of articles that were coming out, after Ms. Kardashian's filing, the two articles above were good examples of the strong feelings expressed. As a San Diego Certified Family Law Specialist attorney, I see some clarity in this event. Actually, both of these articles and hundreds of others expressing disapproval for the filing after 72 days, are all united in a common thought: Something is wrong when a marriage fails. Something is wrong; someone is wrong. Sorrow or grief is natural. And it is unnatural to marry and divorce for frivolous or reasons that are unworthy. However, let me offer the following in Ms. Kardashian's defense.

When the state of California passed legislation ending fault divorces and instituting no-fault as the standard, "irreconcilable differences" became the universal statement by the Petitioner to justify his or her divorce under California Family Law. Irreconcilable differences are supposed to be "substantial" as you can see if you look un Family Code Section 2311. In reality, the Petitioner never has to specify his or her exact reasons and the reasons are not questioned. In cases where there are children and child custody issues, the event of a divorce may be very significant in the lives of the parents and the children.

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November 11, 2011

The Kardashian/Humphries Wedding Saga Continues with a Divorce

KIM KARDASHIANAny recent news not related to the economy or the upcoming presidential election, it would seem, has covered television star Kim Kardashian's wedding to, and now divorce from, basketball player Kris Humphries. Whirlwind romances, weddings, and divorces in quick succession are seemingly common these days, and they should come as no surprise to any California divorce attorney. The story still sheds a light on how the legal process of divorce can take over in a marriage.

Kardashian began dating Humphries in October 2010. They announced their engagement in May 2011. Their wedding on August 20, 2011 was widely publicized, rivalling even the royal wedding of Prince William and Kate Middleton (now Catherine, Duchess of Cambridge) earlier in the year. The wedding reportedly cost nearly $20 million, almost all of which was donated or given as a gift, and the couple allegedly made $17.9 million from related publicity.

Kardashian filed for divorce on October 31, 2011, after only 72 days of marriage. She cited "irreconcilable differences" in her divorce petition. This appears to continue a long tradition of brief unions in the entertainment business, and in California in particular, where stars marry and split with amazing speed. The divorce filing prompted much speculation as to the wedding and the marriage itself. Was the marriage just a sham to gain publicity and make money? Will Kardashian and Humphries have to return all those gifts? Can she keep the ring? Aside from the one about the ring, these questions do not usually concern divorce lawyers. Divorce lawyers deal specifically with helping their client obtain a divorce or some other outcome within the legal system. They look almost exclusively at the relationship between the spouses, the property they have acquired, and the best way to help the client reach his or her goals. If this is possible through negotiation and settlement, all the better. If not, they go to court.

California allows "no fault" divorces, meaning a spouse may obtain a divorce without proving any wrongdoing by the other spouse. In legal terms, a spouse seeking divorce must plead to the court that the couple has "irreconcilable differences" that prevent continuation of the marriage. After filing the divorce, spouses must wait six months before a court can grant a divorce, although more complicated cases often take much longer than that. One might think dissolving a marriage of only 72 days would not be complicated, but this is no ordinary marriage.

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November 7, 2011

Child Custody Law and Spanking Your Child

Justia-photo-119 belt.jpegApproximately on November 1, 2011, a video of a father spanking his daughter, with his belt, became viral on the Internet. This video is shown below, although I caution you that this video is violent and disturbing. Since hundreds of thousands of viewers have already seen this video, I'm not disclosing anything that is private. The topic of spanking, or violent discipline--when will it lead to the loss of child custody rights? Caution: This video is disturbing so I recommend that you watch a few seconds just to understand the nature of the punishment.
As a San Diego Certified Family Law Specialist lawyer, my office handles many child custody cases. Many will read this posting and wonder, up to this point, why I am using the word "spanking" when the video displays, in my opinion, an angry, violent beating. However the question in law is when does any of this type of behavior lead to a loss of custody rights. This issue was raised by journalist Tim Sakahara in an online news story posted on HawaiiNewsNow. The mom died in an accident and the father is raising the child. The mom was the daughter of "Dog" Chapman (TV show--Dog, the Bounty Hunter). The father's child custody rights are at risk by virtue of an incident brought before the family court where the father is alleged to have beaten the child with a belt.

California child custody law involves terms of "joint custody", "legal custody", "physical custody" and other rights known as "visitation" rights. Visitation may be ordered as supervised visitation when the court believes that a parent is a danger to the child. My office brought a motion against a father who took a belt to his son leaving a visible mark on the child's arm which appeared to be a perfect impression of the belt buckle of the belt which the father used. My office is aware of the many legal cases and statutes which support a motion to take custody away from an abusive parent.

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November 2, 2011

California Foster Children Deal With Identity Theft

Foster children, almost by definition, have faced more than their fair share of obstacles and difficulties. Whatever circumstances brought them into the foster care system, someone in a position of authority had to make a determination that those circumstances merited removing them from their homes and placing them somewhere else. It is therefore upsetting to learn that foster children in California and around the country are becoming the victims of identity theft in ever greater numbers, as reported recently in the California Bar Journal. Often because of the uncertain situation in which they live, foster children make an attractive target for unscrupulous identity thieves. California divorce attorneys who might have to deal with situations of abuse or neglect of children must understand the risks these children face.

Children usually land in foster care after a report of abuse or neglect leads to an investigation by state or local child protection agencies. Case workers may recommend removal of the child or children, who may then be placed with relatives or with families approved by the state as foster homes. In some instances, children may go to a facility such as a hospital or group home. While the removal may prove to truly be in the child's best interest, it often leaves the child emotionally, and as it turns out financially, vulnerable. Identity thieves may prey on them for their pristine credit scores.

An investigation led by the California Office of Privacy Protection in Los Angeles County looked at older children in the foster system to determine the extent of the problem and develop processes to repair damage and prevent future harm. State and county officials ran credit checks on 2,110 youths aged 16 to 17 in the foster system. Generally speaking, children should not have credit histories. They found that five percent of the group, 104 children, had credit problems. They identified 247 accounts opened in these children's names, with some resulting from simple errors and others from outright identity theft. They found an average account balance of $1,811, and in one case a child had a $217,000 home mortgage outstanding. The officials were able to clear all of the problem accounts.

Studies on identity theft have yielded widely varied results. A study by a security firm that deal with identity theft issues found possible identity fraud in 140,000 children out of a total of 172,000 enrolled in their program. Another firm found 10.2 percent of the children enrolled had suspicious outstanding credit balances.

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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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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.

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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.

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