Articles Posted in Custody and Visitation

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A divorce can be quite devastating for all parties involved, especially the children of divorcing couples whose lives are often affected in a variety of ways. One issue that frequently arises during a divorce is a dispute over where the children will attend school after the parents have moved their separate directions. Children with parents involved in an active divorce case at family court often worry that they will be uprooted from the friends and teachers that they have come to know, or that they will bounce around between different schools each year.

So who exactly gets to decide where the minor children will go to school after a divorce? Divorce lawyers will advise their clients that the answer depends on the custody order. When one parent has sole legal custody, then that parent has the right to choose which school the children will attend without the input of the other parent. On the other hand, when parents share joint legal custody, they have to agree on various important decisions related to the children, including which school to send their children to.Thus, one parent cannot enroll the parties’ minor children into a school without the consent of the other parent. If the joint custody/parenting plan doesn’t already address the issue of which school the children will attend, then the parents either have to come to an agreement on their own, agree in mediation, or direct their family law attorney to file a motion and take it to court for the Judge to decide. If the Judge is left to decide which school the minor children will attend, the Judge will typically look at what is in the best interests of the children. Some factors include, but are not limited to, desires of the children/parents, previous school selection by the parents, academic standard, proximity to custodial parent, children’s educational needs, commuting time from each parent’s home, tuition cost, etc. In situations where the children are already attending a certain school, then the likelihood of them continuing to attend that school is quite high, unless a compelling case is made that continuing attendance at that particular school is not in line with the children’s best interests. However, when the children are about to start kindergarten or are transitioning into a middle school, junior high school, or high school, then the decision might be a bit more complicated and the Judge will have to take various factors into consideration.
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School is finally out and the sun is shining…summer vacation has officially arrived! Unfortunately, child custody arrangements are a hot item for potential conflict during the summer months because the daily routine often goes out the window leaving the possibility for chaos to emerge. Spending the warm carefree summer months battling over child custody issues is not fun for either parent and it is certainly not fun for the kids. Kids look forward to summer vacation all year long so it’s important that divorced or divorcing parents deal with summer vacations and child custody arrangements in a cordial way.

Child custody in the summertime doesn’t have to be plagued by conflicts! Here are some tips for avoiding those potential conflicts with your spouse and your kids during the three school-less months:

Plan vacation schedules in advance
Agreeing on a vacation schedule is the first step in dealing with child custody during the summer months. A vacation schedule can replace a regular child custody agreement if it is approved by a court and made legally binding. Agreeing on a temporary schedule for the summer vacation months well in advance will help to avoid many potential conflicts.

Foster good communication with the other parent
It is absolutely crucial to communicate with the other parent and notify him or her of any vacation plans and summer activities so that the child’s location is known in the event of an emergency. It’s always a good idea to also notify the other parent if vacation plans change. Keep in mind that when a parent refuses to disclose vacation plans to the other parent, both parents might end up in court. Unless there is a compelling reason not to, a judge will most likely order the parent to divulge vacation plans for safety reasons. This will cost time, money, and stress which could easily be avoided with open communication.

Be sensitive to your child’s emotions
Summer child custody schedules are often quite a big change from the normal daily routine during the school year. Sometime kids are sent to different cities or states to be with the other parent, which might cause an emotional reaction. It’s important for parents to be sensitive and understanding even when the child expresses that he or she misses the other parent. It’s important to not take the child’s reactions personally and to instead focus on the extra time you get to spend with the child.

Read more about the opinion of children in custody and visitation disputes

Don’t Skip or Tweak Child Support Payments
A change in time-share over the summer months (and likely resulting change in financial situation) does not mean that support payments can be skipped or tweaked. Unilaterally skipping or tweaking a support payment is sure to cause conflict with the other parent. Instead, a child support modification should be properly sought with the courts.Keeping these tips in mind this summer when dealing with child custody arrangements is likely to result in a lot more fun in the sun with your kids!
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You may remember our previous blog highlighting the celebrity divorce of Bethenny Frankel, founder of SkinnyGirl Cocktails, and Jason Hoppy. Well, their bitter divorce battle continues to grab entertainment headlines, which report that the soon to be ex-couple is actually still living together in their five million dollar New York City apartment with their 3-year old daughter, Bryn. As if a divorce isn’t already stressful enough, try living in the same household as your soon- to-be-ex while going through the often long, drawn-out divorce proceedings. Frankel tells PEOPLE, “My living situation is very, very stressful…I don’t think it’s very healthy for anyone involved. It’s very upsetting. You just have to endure it.”

It may seem puzzling why Frankel would continue to endure the stress of sharing an apartment with her soon-to-be-ex when she can clearly afford to move into her own place and not have to face Hoppy on a day-to-day basis. Perhaps her reasoning is related to two main concerns related to moving out of the marital home while the parties are going through the divorce process. The first concern is whether moving out of the home will affect a party’s claim to ownership when assets are being divided down the road. The second concern is whether moving out could adversely affect a party’s standing in his or her battle for primary custody of the child or children.

The martial home is likely a significant asset, if not the most significant asset in many divorces. So it’s reasonable that divorcing spouses would worry that “abandoning” the home would make it more difficult for the one who leaves to make a claim on the property in a divorce settlement. If both claim ownership of the home then would that ownership be jeopardized if one party moves out? As California divorce attorneys know, if the home was acquired during marriage then it remains a marital asset subject to distribution regardless of who remains in the home during the divorce process.

If money is not an issue, then many divorce attorneys often advise clients to physically separate when going through a divorce, which usually means moving out of the marital home. A little distance can often times do a world of good for parties who are going through the divorce process. However, when a party does decide to move out of the marital home, there needs to be some serious discussions about the status of the marital residence. Aspects that need to be addressed include: the care, maintenance and financial obligations regarding the home in the interim, items left in the home, and whether the party left in the martial home will have exclusive use and possession of the home. The parties and their divorce attorneys need to discuss the whether the spouse who remains in the home has an expectation of privacy or if the spouse who moved out will be entitled to some use or enjoyment of the home after moving out.

Another concern regarding moving out of the marital home is with respect to child custody. Since both Frankel and Hoppy want primary custody of their daughter Bryn, they might be concerned that moving out of their NYC apartment could adversely affect their standing in their battle for primary custody. Until a parenting plan is in place, “abandoning” the marital home could indicate that parent’s lack of interest in the child’s daily life if the child remains in the marital home with the other parent. This concern can potentially be resolved by establishing an interim custody schedule which ensures that the parent leaving the marital home will have frequent and continuous access to the child. The parent who moves out could also have his or her divorce attorney argue that the purpose of moving out was to reduce ongoing marital conflict out of concern for the child’s well-being throughout the divorce proceedings.

Nonetheless, many San Diego divorce attorneys will generally advise clients with custody disputes to just stay in the marital home together if possible, like Frankel and Hoppy are doing. First, it helps to avoid creating a potential new status quo regarding the “primary residential parent” where the divorce process is taking an extended period of time. And second, when the parties continue to live together under the same roof emotions tend to get heated. As a result, there may be more incentive to conclude the divorce quicker by negotiating a divorce settlement.

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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.
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Sharing Custody of Children During Religious Holidays

As previously blogged about in “Part I: Religion and Child Custody,” a common issue in divorce revolves around which religion a child will follow after parents separate. Another common issue recognized by divorce attorneys is how to fairly share custody of children during religious holidays. The recent passing of the Easter holiday likely posed a special concern for divorcing parents with children. In our previous post, we discussed parents with sole legal custody.

Read more about custody and divorce in Del MarJoint legal custody presents divorce attorneys with unique issues. If both parents share joint legal custody, and one parent objects to the other parent’s decisions regarding the child’s religion, a judge will have to determine whether the child can be raised as a Catholic, Buddhist, Jewish, etc. The courts will generally first consider the religion that the child was raised in while the parents were still married and order that the child continue to be raised in that same religion.

Since the right to raise a child as the parent sees fit and the right to freedom of religion are both protected by the Constitution, courts must be careful not to infringe on these constitutional rights while still protecting the best interests of the child.

Joint physical custody means that both parents share in the right to spend time with the child or children. Despite custody agreements, problems always seem to arise with regards to holidays, especially when each parent has his/her own religious beliefs and traditions. Holidays like Mother’s Day and Father’s Day are usually easy to compromise, because they have alternative days to give each parent equivalent time. However, the same cannot be said for religious holidays such as Easter. Easter does not have an alternative celebration date. Divorce lawyers must consider their client’s faiths when providing legal advice.

In order to deal with this problem, many divorce attorneys will advise their clients to agree to alternate custody between holidays each year, such as Easter and Thanksgiving. However, for some parents who are particularly religious or have long-lived family traditions, they do not consider the Easter holiday to be equivalent to the Thanksgiving holiday. Thus, shared custody on holidays needs to be determined well ahead of time and with the children’s best interests in mind.

Children With Parents of Different Faiths

Another problem arises where divorcing parents are of differing faiths. For example, where one parent is Christian and the other is Jewish, the Easter and Passover holidays usually pose a concern regarding child custody because the holidays often fall near each other on a calendar. Sometime these two holidays will even occur on the very same day. Therefore, it is extremely important that these situations are discussed early on, and that divorce lawyers draft custody agreements that spell-out exactly what will happen with regards to custody to the greatest extent possible.

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Which Religion do Children Follow when Parents of Different Faiths Divorce?

With the recent passing of Easter, a Christian holiday, and Pesach (Passover), a Jewish holiday, parents of different faiths may be left wondering which holiday their child will celebrate after a divorce. Because divorcing parents don’t always agree on whose religion the children will follow after divorce, the Court is often left to make a determination as to which religion the children will practice, if any.The Fourteenth Amendment substantive due process clause grants parents a liberty interest in directing their child’s religious upbringing. Therefore, Courts must protect each parent’s Constitutional right to raise the child as that parent sees fit (as long as the welfare of the child is not endangered). However, when parents divorce, the Courts are often left to decide which parent’s constitutional right will prevail in determining the religion of their child. Family law attorneys take a number of factors into consideration when advising clients about their options in regards to their children’s religious upbringing.

Child Decides

Often times the Court will simply allow the child to decide which religion, if any, to follow because it is merely an exercise of the child’s First Amendment right to freedom of religion. Unfortunately for divorce lawyers, no black letter law exists regarding what age a child must be to decide his or her own religion. However, courts generally consider children over 12 to be able to make decisions about their religious preferences.

By allowing the child to determine his/her own religious preference, the courts are not encroaching upon the parents’ Constitutional rights. The parents may continue to practice the religion of their choice, and they have already had the opportunity to exercise their Fourteenth Amendment substantive due process liberty interest to direct their child’s upbringing.

Parent With Sole Legal Custody

When a child is not deemed fit to decide for himself/herself, divorce attorneys note that the court will look to which parent has been awarded legal custody. As discussed in previous blogs, legal custody gives a parent the right to make decisions regarding a child’s health, education, welfare and even religious decisions. If a parent has been awarded sole legal custody of the child, then that parent alone can make all the decisions regarding the child’s religious preference and activities without getting the consent of the other parent or an order from the court.

Parents with Joint Legal Custody

Tomorrow, in “Part II: Religion and Child Custody”, we will discuss the issues presented to divorce attorneys by parents who share joint legal custody of their children. Continue reading

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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.

Read more about the divorce process in San Diego

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!
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Former Philadelphia 76er Allen Iverson’s divorce has been finalized. The resolution came after the second divorce filing by Iverson’s wife, the first having been filed 15 months prior and then withdrawn according to TMZ.

Standing a mere 6 feet (relatively speaking, of course) Iverson was the number one draft pick of the NBA’s Philadelphia 76ers in 1996. He went on to be named NBA Rookie of the Year for the 1996-1997 basketball season. He continued his career with eleven NBA All-Star nods, and won the All-Star MVP award in 2001. Iverson is father to five children.

According to LA Times.com, in the divorce decree the judge awarded Iverson’s wife legal and physical custody of the parties’ five children. In doing so, the court did not have kind words to say about Iverson. According to the article, the court stated about Iverson: “he does not know how to manage the children; has little interest in learning to manage the children and has actually, at times, been a hindrance to their spiritual and emotional growth and development.”

Iverson will have some visitation with his children, provided he complies with certain conditions imposed by the court. Notably, one condition is that he is not allowed to consume any alcohol for the next 18 months, nor consume alcohol within 24 hours of visiting with his children and, logically, during the visits. Reportedly, he is also required to obtain therapy and attend AA for the next year. According to the LA Times article, the divorce decree states that Iverson has “an obvious and serious alcohol problem, which has caused him to do inappropriate things in the presence of the children while impaired”, things such as, the article reports, leaving the children unsupervised.

While Iverson’s divorce is in Atlanta, Georgia, here in San Diego, divorcing parents are similarly faced with issues of alcohol abuse and its implications on custody and visitation issues in the San Diego Superior Court. To address such issues, the California Family Code includes specific provisions.

Prior to making an order for joint physical custody, which means that each of the parents will have significant periods of physical custody, the San Diego family court is required to consider the habitual use of drugs or alcohol by one or both of the parents. Specifically, Family Code §3011 provides: “In making a determination of the best interest of the child in a proceeding…the court shall, among any other factors it finds relevant, consider all of the following: (d) The habitual or continual illegal use of controlled substances or habitual or continual abuse of alcohol by either parent…”

What happens in the case where one parent alleges habitual or continual use of alcohol by the other parent, but the parent facing those allegations denies them? Family Code section 3011 continues: “Before considering these allegations, the court may first require independent corroboration, including, but not limited to written reports from law enforcement agencies, courts, probation departments, social welfare agencies, medical facilities, rehabilitation facilities, or other public agencies or nonprofit organizations providing drug and alcohol abuse services…”

In some cases, there may be a document which can easily corroborate the allegations; in others, it may be a bit more difficult. If it can otherwise be shown by a preponderance of the evidence that there is habitual or continual abuse of alcohol by a parent, a judge may order that parent to undergo testing for the use of alcohol. If such testing is ordered, it must be done by the least intrusive means. Further, the parent against whom the allegations are made (and thus who is ordered to submit to the test) has a right to a hearing to challenge the results. A positive test cannot alone be the determinative factor in a custody and visitation ruling; the court is still required to balance all factors to determine the best interests of the children.
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www.dailymail.co.uk recently published an article with the headline “Divorce after a child turns seven makes them more likely to perform badly at school.” The article cites a study conducted by the Childhood Wellbeing Research Centre that was published by the Department for Education. The government-funded study found that children whose parents divorced after the child had turned seven are more likely to perform poorly and have behavioral problems. The article opined that the lesser impact on children under the age of seven is likely because divorce may have a lesser effect on younger children as they cannot fully understand the implications.Divorce was one of the 40 factors looked at by the study for its effects on a child’s scholastic achievement and behavior. Among the other factors looked at were number of siblings, number of hours spent in front of the television, the way in which rules are enforced in a household, grandparent involvement and general parenting skills, to name a few. The study projected that the effects on children at the age of seven are likely to continue into the child’s teen years and adulthood. The study highlighted the importance of family separation, conflict and divorce on the development of children.

Of course, divorce is in some cases unavoidable. In those cases where divorce must occur, what can San Diego parents do to minimize the conflict and the effect on their children?

One tool parents can utilize is a well thought out parenting plan. When an issue of custody and visitation is brought before the court in San Diego, the parents are required to participate in custody mediation. They can do so either at Family Court Services, which is a free program run by the San Diego Superior Court, or they can opt for private mediation at their own expense. The stated purpose of this custody mediation is to reduce the conflict which may exist between the parties and to develop a custody and time-sharing agreement which is in the best interests of the children. It is not uncommon, however, that San Diego parents are unable to reach an agreement through mediation. In that case, the mediator issues a report and recommendation which is then considered by the court in making its ruling of the custody and/or visitation issue. Frequently, in these recommendations we as divorce attorneys see language included in the proposed parenting plan that is geared towards reducing conflict between the parents. Some such provisions which immediately come to mind are:

“Neither parent shall make negative statements about the other in the presence of or hearing of the children or question the children about the other parent.”

“The parents shall communicate directly with each other in matters concerning the children and shall not use the children as a messenger between them.”

“The children shall not be exposed to court papers or disputes between the parents, and each parent shall make every possible effort to ensure that other people comply with this order.”

Such language may be included in a parenting plan at the recommendation of the mediator, but can also simply be included by agreement between the parties.

Another tool for parents is the resource Kids Turn. Kids’ Turn is a San Diego non-profit organization dedicated to working with the entire family to achieve an amicable and healthy divorce.

Read more about Kids’ Turn or visit their website.

The study published by the Department of Education did qualify its results by stating that “Some children do relatively well despite unpromising circumstances and some do relatively poor despite having a good start.” It’s nonetheless helpful for San Diego parents to be aware of how a divorce might impact their children and to take steps that may be appropriate to mitigate any negative impact there may be.
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As we have previously blogged, Bethenny Frankel, former star of The Real Housewives of New York, and founder of Skinnygirl Cocktails, recently filed for divorce from husband, Jason Hoppy. The parties have a daughter, age 2.

Reportedly, the parties’ separated on December 23, 2012 and Frankel filed for divorce just shortly thereafter (LA Times) It appears from Frankel’s Petition that she is requesting primary physical custody of the parties’ daughter and child support payable by Hoppy, in addition to life insurance, exclusive occupancy of their home and medical, dental, vision and orthodontic care for her and the child. Sources estimate Frankel is worth at least $25 million. This begs the question: Is child support appropriate in cases where the custodial parent is an extraordinarily higher earner?

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