San Diego Divorce Attorneys Blog

Charlie Sheen, a regular news-maker in California family law, has four children from his two prior marriages. Two twin boys with ex-wife Brooke Mueller and two girls with ex-wife Denise Richards. After all the dust settled from his two divorces, Sheen's twin boys ended up in the custody of Denise Richards. This unusual custody arrangement worked well for all of the parties. Richards was happy to care for Mueller and Sheen's children because it gave her girls a chance to grow up with their half siblings. Mueller agreed to the arrangement because she has been struggling with addiction and is unable to properly care for the twins. Recently Mueller changed her mind about the current custody arrangement and her family lawyers sought a modification from the family court.

On Wednesday May 15th, Mueller, Sheen and Richards appeared before a family court judge to litigate Mueller's request to modify custody. Mueller proposed the children be removed from Richards's custody and placed with her brother. When Richards and her family lawyers opposed the request, Mueller accused her of caring for the children for her own financial benefit. If Mueller or her brother had custody of the twins, Mueller would be entitled to $55,000 per month in child support from Sheen. According to her declaration signed under penalty of perjury, Richards refused any money from Sheen to support the twins. She also stated that she did not want any money in the future to help her care for the boys. In light of this evidence, Mueller's argument lost all of its bite and the judge flatly refused her request.

In any California custody case the paramount concern for the Court is the best interest of the child. As a stable lifestyle is usually in the child's best interest, family court judges will always carefully consider any request to uproot young children. Mueller and her attorneys requested her four-year-old twins be removed from their home where they live with their siblings and be placed in the custody of a different caretaker. This traumatic change would likely take a great emotional toll on the children. Unless there is good cause to do so, judges will make an effort not to uproot children from a stable environment.

Although it is not realistic to expect all parents to come to an agreement regarding custody and visitation, it is typically in the best interest of the children if the parents can work together to come up with a mutually beneficial solution to their custody disputes. Throughout San Diego there are plenty of private and public custody mediators available to parents who need help cooperating for the benefit of their children.

Continue reading "California Family Law - Latest Charlie Sheen Custody Battle" »

Former MLB and NFL legend, Deion Sanders, is use to battling to the top. But this time, his three children were on the line. As we have previously blogged, Sanders filed for divorce in 2011. Luckily for Sanders, he came out on top again when a Texas judge recently awarded him full custody of his 9 year old daughter. Sanders had also previously been awarded full custody of his two sons, 11 and 13, but had only been given joint custody of his daughter with estranged wife, Pilar. This leaves us to wonder, what exactly does Sanders' "full custody" award entail? As divorce attorneys know, in California, two types of custody exist: "legal" and "physical". Each type of child custody may be awarded solely to one parent or shared jointly between divorcing parents.

Legal Custody:

Legal custody refers to a parent's right to make decisions about the child's health, welfare and education. If a parent is awarded "sole legal custody" by the court, then he/she is the only one who has the right to make such decisions and may do so without consulting with the other parent. However, when divorcing parents are awarded "joint legal custody," they both have the right to make decisions about the child's health, welfare, and education.

Since Sanders has been awarded sole legal custody of all three children, he now has full range to make decisions about where the kids will go to school, whether they should receive medical care and whether they will engage in religious activities, without consulting with Pilar.

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Physical Custody:

Physical custody, on the other hand, refers to where the child lives after divorce. The parent who has physical custody is the one who has the right to have the child physically with them and in their home. Physical custody, like legal custody, can be awarded solely to one parent or shared jointly. When a divorce lawyer makes an argument for "Sole physical custody," this means that the child will reside with only one parent. That parent is typically referred to by attorneys and the court as the "custodial" or "residential" parent. Divorce lawyers and judges refer to the other parent as the "non-custodial" or "non-residential" parent. It is important to note that the court can still order visitation time for the non-custodial parent.

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"Joint physical custody" means that a child's time is divided equally, or close to equally, between both parents. Family lawyers in San Diego will draft such custody orders so that each parent has separate but significant periods of physical custody. Typically, parents share joint legal custody of their children. Divorce attorneys will argue for sole legal custody if one parent is deemed unfit, the parents are completely unable to make decisions together, or it would be in the child's best interest to have sole legal custody with one parent. For Sanders, winning the child custody battle with Pilar now means that all three kids will be living with dad!

Continue reading "Celebrity Divorce - Deion Sanders Awarded Full Custody of Children" »

San Diego is known for having a vast military community. Among the many military bases in San Diego County are the Marine Corps Air Station Miramar, the Marine Corps Base Camp Pendleton, the Naval Base Coronado, the Naval Base San Diego, and the Naval Base Point Loma. In fact, the Naval Base San Diego is the largest base of the United States Navy on the west coast. Having a parent in the military can bring out a new set of child custody and visitation complications. It is important to consider possible deployments when creating any parenting plan.

California Family Code section 3047 directly addresses a parent's military obligations, "a party's absence, relocation, or failure to comply with custody and visitation orders shall not, by itself, be sufficient to justify a modification of a custody or visitation order if the reason for the absence, relocation, or failure to comply is the party's activation to military duty...or military deployment out of state." Under this statute, one parent may not use the other's military duties against them in a child custody proceeding. If the sole or joint physical custodian is required to move a substantial distance or is otherwise unable to exercise his or her custodial rights, the court may order a temporary modification in custody. Once the military parent is able to resume his or her custodial duties, the temporary order is subject to review. However, there shall be a presumption that the previous order will resume in place of the temporary modification. This presumption can be overcome if the court finds it is not the best interest of the child.

The best interest of the child is the controlling theme throughout San Diego family law. The court considers a number of factors and makes determinations of custody and visitation. Among the factors the court will consider are:

(1) The health safety and welfare of the child;
(2) Any history of domestic violence;
(3) The nature and amount of contact the child has with both parties; and
(4) The use of drugs or alcohol by either party.

These factors will be carefully weighed by the judge against the presumption that the custody order shall revert to the order in place prior to the modification. In a recent San Diego custody case, these two considerations were not aligned making a tough decision for the family court judge. In this particular case, the mother was deployed out of the country for the period of two years. At the time of her deployment, her son was five years old and she was his primary caretaker. The child resided with the mother primarily and had weekend visitations with the father. Upon learning of the deployment, the parents agreed to a temporary parenting plan. Father would become the primary caretaker and the child would reside with him with video chat visitations to mother. It is important to note that the parties agreed, upon mother's return, the child would resume living with her and the temporary modification would no longer be in place.

Upon the mother's return from deployment, the father had relocated to and refused to permit the child to reside with her. He argued that the child was now settled living with the father, had made friends in the neighborhood and with his half-siblings, and was performing well in school and his extracurricular activities. The judge was required to weigh the nature and amount of contact the child had with father on a daily basis and with mother infrequently against the military presumption. The mother cited California Family Code section 3047 in her argument but the judge was not persuaded. Upon serious consideration, the judge granted mother reasonable visitation but ordered that the child continue to reside with father. Mother's attorney argued that the judge in this case completely ignored the code section put in place to preserve the parental rights of military parents and ruled contrary to the legislative intent behind the provision.

Please contact us if you have questions regarding custody and visitation. Nancy J. Bickford is the only attorney in San Diego County representing clients in divorces, who is a Certified Family Law Specialist (CFLS) and who is actively licensed as a Certified Public Accountant (CPA). Don't settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.