San Diego Divorce Attorney Blog

Family law, with its complex web of legal and emotional issues, can produce some unusual stories. The story of 48 year-old John Goodman, the founder of the Polo Club Palm Beach in Florida, is particularly unusual. In what critics say is a ploy to shield assets from a pending wrongful death lawsuit, Goodman has filed court paperwork in October 2011 to legally adopt his girlfriend, 42 year-old Heather Laruso Hutchins. The couple have reportedly been dating since 2009, but now she is also legally his adult daughter.

Goodman is facing a lawsuit from the family of 23 year-old Scott Patrick Wilson, who died in a hit-and-run accident on February 12, 2010. The Palm Beach County Sheriff has alleged that Goodman ran a stop sign and collided with Wilson's vehicle. A sobriety test reportedly found Goodman's blood alcohol content to be twice the legal limit. Goodman has been charged with vehicular homicide, criminal DUI manslaughter, and related charges. He pleaded not guilty, and a criminal trial is scheduled to begin March 6, 2012.

Goodman has two minor children. He established a trust for their benefit, and the judge presiding over the Wilson family's wrongful death suit has ruled that, if they obtain an award for damages against Goodman, the trust would not count towards Goodman's financial assets. Hutchins, as Goodman's adopted adult daughter over the age of 35, is now entitled to one-third of the trust's total value, according to the Palm Beach Post. Goodman's attorneys maintain that the adoption's intent is to "ensure his family's stability" and is in no way related to the lawsuit.

Attorneys for the Wilson family claim that Goodman is using the adoption to shield assets from the suit while still being able to use them. If Hutchins has immediate access to part of the trust's value, they argue, then Goodman has access to those assets. The judge in the civil suit describes the adoption as "border[ing] on the surreal," and "tak[ing] the Court into a legal twilight zone." The trust, which is based in Texas and Delaware, is subject to the review of a probate court in one of those jurisdictions. That court could deny Hutchins' asserted right to part of the trust assets. The court in Florida hearing the wrongful death case, however, lacks the authority to review the arrangement.

Continue reading "Wealthy Florida Man Adopts His Adult Girlfriend" »

With the start of a new year, new laws go into effect around the country. Most are unremarkable, but every so often something interesting happens. Passage of the Domestic Partnership Equality Act (DPEA), known colloquially as the "Gay Divorce Bill," in California is a major event in the ongoing debate over same-sex marriage. With states adopting different laws relating to same-sex marriage, and the federal government still largely bound by the Defense of Marriage Act (DOMA) passed in 1996, same-sex couples have encountered unexpected difficulties if they move from one state to another.

California officially does not recognize same-sex "marriage" since the passage of Proposition 8 in 2008, which amended the state constitution to define "marriage" as a union of a man and woman. It did not affect same-sex marriages performed before November 5, 2008, and California's system of "domestic partnerships" remains in place. "Domestic partnerships" grant a couple the same rights and benefits as marriage within the state, but with some differences. It does not include any of the benefits available to married couples under federal law. Under DOMA, other states do not have to recognize California domestic partnerships. A series of lawsuits have challenged Proposition 8, and a federal judge ordered it overturned in 2010 but stayed enforcement of the order. An appeal is still pending.

The DPEA eliminates a number of differences between "marriage" and "domestic partnership." For example, state law requires that a couple live together for a specified period of time before they may legally enter into a domestic partnership, but couples wishing to marry have no such requirement. An unmarried opposite-sex couple that lives together may obtain a confidential marriage license, but a same-sex couple cannot. The DPEA changes both of these laws to make "marriage" and "domestic partnership" more equal.

Perhaps most significant is how the DPEA deals with divorce among same-sex couples. Existing Calfornia law required at least one spouse to have resided in the state for at least six months in order to file a petition for divorce. This excludes people who have moved away from the state, and it leaves some same-sex couples in a bind if they have moved to a state that does not recognize any sort of same-sex union. Those states have refused to grant divorces to same-sex couples, since they contend the marriage or partnership never legally existed in the first place. The DPEA allows California courts to grant a dissolution of a domestic partnership if they entered into the partnership in California and now reside in states that refuse to dissolve the union.

Continue reading "New California Laws for 2012 Include "Gay Divorce Bill"" »

The 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.

Continue reading "Possible Father of Alleged "Bieber Baby" Located in San Diego" »

The 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.

Continue reading ""Until Death Do Us Part"--California Divorce " »

A 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.

Continue reading "California Law Gives Minors Right to STD Prevention Without Parental Consent" »

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.

The 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.

Continue reading "Supreme Court Denies Review of Louisiana Adoption Decision for Same-Sex Couple" »

Fox 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.

Continue reading "Which Court Has Custody Of A Child Custody Case?" »

The 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" »

Cornell School of Law recently published an overview as to child custody law and this reminded me that there are many people searching the internet for basic information as opposed to advanced information. As a San Diego Certified Family Law Specialist lawyer I search for blog topics that appeal to my continuing education interest; however, this article reminded me that there is a need for basic child custody information. So, this blog starts with the reference to the Cornell SOL article and this is an excellent place to start for a child custody primer.

The U.S. Census Bureau publishes reports on a variety of child custody and support topics. Child care arrangements can be found here, up to the year 2006. The U.S. Census Bureau has more articles as to child support statistics. Statistical reports lend themselves better to numbers than to "arrangements" so this is understandable. Much of what the U.S. Census Bureau publishes pertains to the underpayment or nonpayment of child support.

Wikipedia contains a section on parents who don't pay their court ordered child support. This section immediately cites statistics from the U.S. Census Bureau. Back to child custody--the specific issues are enormous: Move away custody orders; Legal Custody orders (does the child get the medical operation or not? Which school will the child attend?); Joint Physical Custody or Sole Custody; or Right of First Refusal.

Continue reading "California Child Custody Primer" »

A commonly asked question in California is "how much does a California divorce cost"? Many times in answering this question one must consider "who has the burden of proof"? Wikipedia defines legal burden of proof through different examples and Latin phrases and also states that the person who does not have the burden of proof is assumed, by law, to have the winning side of the case. In other words, the person who does not have the burden of proof does not have to say or do anything in court unless the other party meets his or her burden of proof. These rules applies to property division and other family law issues.

As a San Diego Certified Family Law Specialist lawyer, my research came across a case that addresses the question of burden of proof; and that case is Marriage of Margulis. You may read the case decision here. Inspired by the facts of the Margulis case, consider this example in order to see the role of burden of proof in a San Diego family court trial: Husband and Wife were married for 10 years. At the date of separation Husband disclosed that he had stock and financial accounts, under his name, with a value of $900,000. For many reasons, the case does not go to trial for two more years. At trial Husband claim that the $900,000 is now down to $150,000.

He says that $750,000 is gone by virtue of the downturn in the market, and money he gave to Wife for support as well as paying off marital debts; but Husband fails to bring documents to court to prove all of this. Wife's attorney at trial simply shows the evidence of the $900,000 in stock and financial accounts as they existed at the date of separation and states that Wife requests that Husband pay her $450,000. The attorney cites the presumption that funds acquired during the marriage are presumed to be community property. The attorney shows that Husband was the spouse managing these accounts and argues that the Husband has failed to show any evidence accounting for the loss of these funds. (Divorce evidence takes many forms. See video below.)

Continue reading "San Diego Divorce Evidence: Burden of Proof" »

The shocking news did not result in a direct hit as to San Diego divorce or child custody; however it was too close for comfort and it needs to be discussed. Journalist Bonny Russell of examiner.com provides the horrific details in her news report. This news story is discussed here even though it involves surrogacy law which is a remote area of family law. "Surrogacy" is described by Wikipedia and it involves a woman surrogate giving birth of a child for a contracting couple. The surrogate might even have the embryo of the adopting mom placed in the surrogate's uterus.

The story that Ms. Russell breaks is that of a surrogacy attorney who reportedly went too far and broke the law. San Diego attorney Theresa Erickson, operating out of a Poway office, represented, according to the report, that she specialized in surrogacy law, involving egg donation and international clients. However the very expensive arrangements were reportedly fraudulent and violated law. According to the news, attorney Erickson pled guilty last week to charges related to fraud and faces sentencing in October 2011 which could bring a fine of $250,000 or five years in prison. Another defendant in this case reportedly described herself as a member of the American Bar Association Family Law panel.

If you research, you will find a photo of attorney Erickson; however it is not licensed for reuse so it is not included here. You will also find a book on Amazon which was reportedly authored by the attorney. I researched the State Bar of California website and found attorney Erickson still listed. Her listing states that she is involved in "Family Law". As a San Diego Certified Family Law Specialist attorney I picked up on this story and it leads to the topic of how can the public have some assurance that a divorce attorney is a solid choice.

Continue reading "San Diego Attorney with Family Law Connection Arrested" »