Articles Posted in Divorce and Children


At this point almost all of America has seen the video of the adorable 6 year girl talking to her mother about divorce. (If you have not seen it yet, take a few minutes and watch it HERE.) With advice such as “Don’t be a Meanie, be a friend” and lines like, “What if there is just a little bit of persons and we eat them? Then no one will ever be here. Only the monsters in our place. We need everyone to be a person” the viewers can’t help but stop and take notice – plus this wisdom is coming from a little girl so sweet you want to eat her…but in a figurative way of course.

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With school back in full swing for children all around San Diego County, I thought I would focus my blog on a very common occurrence in child custody matter; school enrollment.

When two parents decide to get a divorce, one or both of them will often move out of the family residence. With the cost of living so high in San Diego, that can mean moving out of the neighborhood the parties lived while they were together. If the parents end up living in close proximity, the issue of where their children will be enrolled for school is an easy one. What happens when the parents move to other parts of town or into different school districts? This can create a huge headache for parents and children resulting in hours spent commuting to school and work.

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At some point in your life, you have probably done a double-take upon hearing news of a crazy-sounding child support payment of a celebrity or famous athlete. The media loves to report on these sometimes exorbitant amounts, for the shock value given to amounts of money that many Americans may never even dream of seeing. Here are some reported examples:
• Halle Berry, paying $20,000 per month to ex-boyfriend for 1 daughter • Eddie Murphy, paying $51,000 per month for 1 daughter • Sean “Diddy” Combs, paying $20,000 per month to ex-girlfriend for 1 son and $21,782 per month for now adult son to another ex-girlfriend
• Charlie Sheen, paying $50,000 per month to ex-wife Denise Richards for 2 daughters, and $55,000 to a different ex-wife for 2 sons
• Allen Iverson, owing $8,000 per month to ex-wife • Terrell Owens, owing $120,000 per month in child support and mortgages to 4 different mothers (whether he actually pays is a completely different story…)

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San Diego is home to a great many families who serve our country in the armed forces. However, as is often the case, members of the military are deployed for periods of time away from home and separated from their families. Deployment is stressful for families, but takes on an added dimension after a divorce when parties have crafted a parenting plan for their child. What happens to your parenting plan when you are deployed overseas?

The State of California has made it a matter of public policy to ensure that a parent who is unable to follow a parenting plan due to their deployment is protected. California Family Code Section 3047 states, in part, that being deployed for military purposes shall not be a reason for a modification of a parenting plan on its own. It further states that upon a parent’s return from deployment there is a presumption that the parties’ return to the pre-deployment parenting plan. Any changes to that plan would require a showing that a reversion in not in the best interests of the child.

military-parenting-deployment.jpgThe courts have recently reiterated the importance of Section 3047 in Marriage of E.U. and J.E. which requires both a speedy resolution to custody matters for a parent returning from deployment and placing the initial showing on the non-deployed parent to show why a reversion is not in the child’s best interest. This ruling strengthens a deployed parent’s rights upon their return.
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People from around the world settle in California and specifically San Diego for many reasons, for example, our beautiful weather, or to work in the booming biotech industry. When they arrive, they marry, have children and become an integral part of the diverse San Diego community. While oftentimes people plan on staying permanently, sometimes they decide to return home. What happens when your divorced spouse wants to move with your child overseas?

For example, actress, Kelly Rutherford, is involved in a very contentious international custody dispute. After an initial joint custody award, her ex-husband gained custody of their children when his visa required him to return to Monaco. The ability of a parent to move with a child out of state or even out of the country can be very contentious. One parent’s relationship with the child will be irrevocably changed. While the determination of a move-away case can be extremely complex and fact specific, as with all matters involving children, the court relies on what it believes are in your children’s best interests before issuing a ruling.

divorce-moving-suitcase.pngHowever, if one parent moves without permission from the court, you may have recourse if your spouse moved to a country that is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction (“Hague Convention”). The Hague Convention gives parents recourse if the moving parent has taken a child without permission, or sometimes if they are in non-compliance with a custody and visitation order. The Hague Convention attempts to return the custodial arrangement to the status quo before the abduction and it gives a framework for different jurisdictions with different laws to work together for the benefit of the child. The issues surrounding the Hague Convention are complex and require diligence to ensure the best outcome for your child.
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single-parent.JPGThe iconic image of the American Family has changed according the Pew Research Center. Today, less than half (46%) of U.S. children under the age of 18 reside with two married heterosexual parents in their first marriage. In fact, 34% of U.S. children are being raised by a single parent.

Whether you are participating in a conscious uncoupling like Gwyneth Paltrow and Chris Martinor you are a single parent raising a child, the challenges and joys of raising children on your own are enormous and the issues involving custody disputes can seem complex. Are the California Family Law courts keeping pace with our new culture?

The answer is yes. California is at the forefront of ensuring that no matter what your personal situation, you are dealt with fairly and respectfully. The law does not distinguish between previously married and unmarried parents in custody cases. That makes the Family Court a vital resource in protecting your rights as a single parent, whether you are seeking a custody order you require child support. If you are not married to the other parent, a Judgment of Paternity is an important first step. However, navigating the Family Court system in California can be daunting, especially when you are trying to put your side of the story before the court. The Law Offices of Nancy J. Bickford is experienced in representing clients in their paternity and custody disputes in the Family Court and we are experienced in dealing with the complexity of the modern family dynamic.
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step-parent-adoption.jpgBlended families, a family consisting of a couple and their children from their current and all previous relationships, are a regular part of American life. That is why the following statistics should not be surprising:
• 48% of all first marriage will eventually end in divorce;
• 79% of women and 89% of men will marry again within 5 years;
• 43% of marriages today in America involve a 2nd or 3rd (re)marriage;
• 68% of re-marriages involve children from prior marriages;
• 2,100 new blended families are formed every day in America;
• Over 65% of Americans are now a step-parent, a step-child, a step-sibling, a step-grandparent or touched directly by a step-family scenario
In many cases, the children will grow very close to a step-parent and in cases where one of the biological parent’s is absent from that child’s life, the step-parent may consider adopting their step-child.

In a step-parent adoption, one biological parent retains full parental rights and the other biological parent’s rights are terminated. The parental rights are then passed to the adopting step-parent; meaning the biological parent no longer has any rights or responsibilities owed to the child and the step-parent has all the rights and responsibilities originally held by the biological parent.

step-parent-adoption-heart.jpgIt is important to give due consideration to a decision to adopt a step-child, because step-parent adoption is a permanent transfer of parental rights and responsibilities. Once a step-parent adoption is finalized, it cannot be revoked or nullified, except in very rare situations. More importantly, the adoption is not terminated if the step-parent and biological parent divorce.

A step-parent must meet certain criteria in order to proceed with a step-parent adoption, specifically:
1. The biological parent and the step-parent must be legally married or in a registered domestic partnership;
2. The step-parent must be at least 18 years old and at least 10 years older than the step-child they are seeking to adopt – though in certain circumstances the 10 year rule may be waived;
3. The step-parent’s spouse must consent to the adoption;
4. The other biological parent (i.e. the biological parent whose parental right will be terminated by the adoption), must consent to the adoption – this requirement can be overcome, as I will discuss below, in certain circumstances; and 5. If the step-child is 12 years old or older, the step-child must consent to the adoption.

Family Code Section 8604(b) describes how you can overcome the other parent’s lack of consent to the adoption of the child by a step-parent. Specifically, “If one birth parent has been awarded custody by judicial order, or has custody by agreement of both parents, and the other birth parent for a period of one year willfully fails to communicate with, and to pay for, the care, support, and education of the child when able to do so, then the birth parent having sole custody may consent to the adoption, but only after the birth parent not having custody has been served with a copy of a citation in the manner provided by law for the service of a summons in a civil action that requires the birth parent not having custody to appear at the time and place set for the appearance in court…”

Family Code Section 8604(c), states:

“Failure of a birth parent to pay for the care, support, and education of the child for the period of one year or failure of a birth parent to communicate with the child for the period of one year is prima facie evidence that the failure was willful and without lawful excuse. If the birth parent or parents have made only token efforts to support or communicate with the child, the court may disregard those token efforts.”

If you are considering a step-parent adoption, or if you were served with papers notifying you that your child’s step-parent has filed an Adoption Request, it is important that you discuss your rights with an experienced family law attorney.
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divorce-bad-mouthing-spouse.jpgDivorce can be a stressful time and while The Law Offices of Nancy J. Bickford, APC endeavors to ensure our cases are resolved amicably, sometimes emotions can run wild and your ex-spouse can lash out at you. For Example Mariah Carey’s new single “Infinity” appears to bad mouth her ex Nick Cannon. While most of us do not have the national exposure of Mariah Carey, we all have broad networks of friends and colleges that we often share with a spouse. So what can you do when your ex-spouse starts badmouthing you to others, especially to your children?

Your ex-spouse disparaging you to others is a tricky situation that can affect your family law case, but it all depends on who is within earshot. You or your ex-spouse venting privately to friends and colleagues can be a normal aspect of any divorce case; we are all only human after all and it is usually benign. Even if these statements get back to you, there is little that can be done unless you feel threatened or unduly harassed and require a domestic violence restraining order. The disparaging language can become much more serious when your ex-spouse continually disparages you to your child directly or by using a third party and it can become a very serious issue in child custody disputes. Another phrase for this is type of behavior is parental alienation; when one parent tries through various means to hinder the relationship between a parent and child.

So how do you know if your ex spouse’s behavior rises to the level requiring you to take action? As a parent you’ll notice if your child’s behavior has changed towards you, beyond the normal stresses of his or her parent’s splitting up. You may notice your child acting out toward you and/or blaming you for the divorce or custody proceeding. They may be withdrawing and not wanting to spend time with you.

divorce-co-parenting.jpgWhile your ex-spouse may be acting purposefully, they also may be having trouble dealing with their own emotions regarding the divorce. There are several common ways one parent can disparage the other. First, the parent can speak badly about the other parent directly to their child. This can include saying that the other parent is the cause of the divorce, that the other parent does not love the child, that the other parent chose a new romantic partner over the child, or other inappropriate comments. Second, one parent can utilize third parties, such as siblings or grandparents, to speak ill of the other parent. Third, involving the child in a family law proceeding, this can include either allowing the child access to court paperwork, or distorting the family law proceedings to make the other parent look like the bad actor.

You may wonder why the court frowns on this behavior? There are multiple reasons but the main one is that it can affect the child’s relationship with their parents. During any custody dispute, the court is always going to try to make decisions based upon what the judge determines is your child’s best interest. One fact they will consider is the ability for your child to have meaningful and continual contact with both parents and whether both parents have the ability to co-parent with one another. In the case of Mariah Carey and Nick Cannon, the entire world is privy to her thoughts on Nick, but the most important people in the eyes of the court would likely be their children, Monroe and Moroccan Scott Cannon. The court does not approve of one parent making negative comments to the children about the other parent. If your ex-spouse’s behavior is hurting your relationship with your child the court has multiple ways it can intervene to try and help from ordering reunification therapy, to ordering the appointment of minor’s counsel.

If you feel that your relationship with your child is being damaged by your ex-spouse, the Law Offices of Nancy J. Bickford is experienced in dealing with complex, emotionally charged child custody cases and has the tools you need to ensure you are able to maintain a good relationship with your children.
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california-medical-marijuana.jpgCalifornia has always been at the forefront of progressive social change. In 1996, California became the first state to establish a medical marijuana program, allowing residents to grow and possess marijuana for personal use, so long as they had a prescription from a licensed physician (“Compassionate Use Act”). Several states followed, and in 2012, Colorado legalized marijuana for recreational use by adults over the age of 21. Though possession and use of marijuana has been legalized in several states, it remains a Schedule 1 drug (e.g. heroin, cocaine, methamphetamines) under federal law, so the line between state and federal law is very grey. So is the line between medical marijuana users and parents in California Courts.

That begs the questions, “How does the use of medical marijuana affect my child custody case?”

Whether you are the parent with a medical marijuana prescription or the other parent has the prescription, the analysis will depend on the facts and circumstances of your case. There is no hard and fast rule for the use of medical marijuana by parents involved in a custody dispute.

By way of history, the Compassionate Use Act of 1996 allows “seriously ill Californians” the right to use marijuana under certain circumstances. The right to use medical marijuana, however, is limited just as any other right, so as not to cause harm or injury to another.

This principle applies equally to parents and minors. For example, it is legal for adults to consume alcohol and to have alcohol present in their home. However, the government may lawfully remove children from their legal guardians, should a court determine that the children have been unduly exposed to alcohol abuse or a threat or injury as a result of neglect reckless conduct.

california-marijuana-child-custody.jpgThe same principle goes for the use of medical marijuana. If the Court determines that a parent’s use of medical marijuana affects their ability to care for the children or put the children in harm’s way, the court could take the children away from that parent. From a family law perspective, that could include reducing or suspending a parent’s visitation with their child.

From a criminal law perspective this could lead to child neglect or endangerment charges being filed. Child Protective Services could become involved and your children could be taken even if you are not the parent using marijuana or the use of marijuana is legal under the Compassionate Use Act.

Another consideration will be the Judge your case is assigned to. Some Judges take a very strict approach to the use of any drug when caring for children; whether that is marijuana or alcohol. The fact that a parent has a valid prescription will not make a difference to many Judges. Other Judges take a more relaxed stance on the use of medical marijuana. That is why it is important to discuss your case with an experienced family law attorney so you can understand how the particular facts of your case may be viewed by your Judge.

If you are concerned that the other parent’s use of medical marijuana is impacting their parenting ability it is important for you to take steps to protect your children. Any acquiescence to the other parent’s use of marijuana while caring for the children could be considered your approval. That is why it is important to seek the advice of an experienced family law attorney to discuss your rights.
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dividing-house.jpgDealing with what to do with the family home is a big issue for divorcing couples. Typically one spouse will buy out the other spouse’s interest or the house will be sold and the proceeds divided between the parties. However, when the parties have a minor child, another option that might be preferable would be to keep the house in joint names and allow one of the parents to stay there for a limited period of time until it is sold at a later date. If this is an end result that the parties want to achieve, then they will need a deferred sale of home order, also known as a “Duke order” (named after the case In Re Marriage of Duke).

Codified in Family Code Section 3900, a Duke order is an order that will delay the sale of the family home and will temporarily award exclusive use and possession of the home to a custodial parent. It doesn’t matter whether or not that custodial parent has sole or joint custody of the child. The purpose of the Duke order is to minimize the adverse impact of divorce on the child’s welfare.

Getting a court to actually order award a Duke order, or deferred sale of home order, might be a bit difficult as the court can only make the order under limited circumstances. The court must find that it is economically feasible to even do so and the court needs to balance the hardship on the child and parent staying in the home with the economic hardship that the deferment could have the on the parent living outside the home.

Specifically, Family Code section 3801 specifies that the court must first decide whether during the time when the home would be deferred for sale, that it would be “economically feasible to maintain the payments of any notes secured by a deed of trust, property taxes, insurance for the home” and also to maintain “the condition of the home comparable to that at the time of trial.” To determine the economic feasibility, the court is required to consider the income of the parent who would stay in the home, the availability of spousal support, child support, and any other funds available to make the payments on the home. The reason the court looks at these factors is because the court does not want to make an order that could result in defaulted payments (i.e. a foreclosure), inadequate insurance coverage, or deterioration on the condition of the home which would jeopardize the parties’ equity in the home when it is sold at a later date. (See Family Code Section 3801(c)).

dividing-house-divorce.jpgWhen deciding whether a Duke order is necessary to minimize the impact on the child, the court will consider things such as the length of time the child has lived in the home, the school grade the child is in, how convenient the home’s location is to the child’s school/child care, whether the home has been modified to accommodate a child’s physical disabilities, the emotional detriment it would cause the child to change homes, whether the home would allow the parent living there to continue employment, each parent’s financial ability to get suitable alternate housing, the tax consequences, the financial detriment to the parent who would not being staying in the home, and any other just and equitable factors. (See Family Code Section 3802(b)).

If a Court awards a deferred sale of home order, then it will also need to specify the conditions upon which the period of deferment will end, such as the child reaching the age of majority or the child graduating from high school.
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