Articles Posted in Custody and Visitation

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We have previously blogged about different ways technology can be used to gain an advantage or gather evidence in a dissolution proceeding. However, ex-spouses are now learning how to use the advances in technology to foster cooperation and harmony post-separation. Many divorcing couples would prefer to sever the ties between them completely after their divorce is final. This goal is unattainable for ex-spouses who will continue to share custody of minor children for years after separation. The new trend called “joint custody – at a distance” encourages splitting couples to communicate electronically rather than during “in person” exchanges in order to reduce the emotional tension during a “drop off” or “pick up”.Many parents have found that they fight and argue less in front of their children if they are able to express their emotions through other outlets. E-mail communication, online calendars and a number of other online resources are all available to conflicting parties who share children. By sharing an online calendar parents can easily coordinate a child-sharing schedule. All of the child’s activities and plans are readily available to view and change without any need for in-person or telephonic communication between the parents.

Our Family Wizard is a common solution for parents in conflict. A judge may order parties to use Our Family Wizard, a program which tracks all communication, expenses, and even sends notices to the parties regarding their obligations. Because the communication between parents can be supervised by the judge and attorneys involved in the case, the parties are incentivized to speak civilly to each other. This form of communication can take away the aggravation and emotional side of child-sharing and ease the tension and stress for the children involved. The program can be purchased for approximately $100 per year.

Another form of technology frequently appearing in custody orders is Skype. Skype is a free program that allows two or more people to have an online video conversation. In cases where both parties cannot easily see a child frequently, the court may order “Skype visitation”. During a Skype visit, a parent can have a video conversation with the child. Skype also permits conversations to be recorded and can ensure that the visiting parent is getting enough video time with the child. Additionally, a parent may be ordered to purchase a cell phone for the child in order to avoid any telephonic communication between the parties. This way, if a parent wishes to speak to his or her child during the child’s scheduled time with the other parent, he or she can reach the child directly.

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As we have previously blogged, Halle Berry is entrenched in a bitter custody battle with Gabriel Aubry. Berry and Aubry separated in 2010 and reached a custody agreement in 2011; however, the former couple’s agreement did not suit Berry after she got engaged to Oliver Martinez. Berry intends to relocate to France with her new fiancé, Oliver Martinez, but requested the court’s permission to bring her daughter along first. On Friday November 10th, the judge denied Berry’s request to allow her daughter, Nahla, to move to France.

In determining whether to grant or deny a parent’s request to move away with a child, the court must assume that the requesting parent will move regardless of the court’s ruling. Although it is not generally reality, this presumption requires the court to consider if it would be in the child’s best interest to maintain the same lifestyle or live further away from the moving parent. It is generally in a child’s best interest to remain in the same neighborhood, attend the same school, interact with the same friends, and maintain as much stability as possible. This is because schedules and routines can help a child adjust to the separation of his or her parents. However, move-away cases present a more complicated scenario. The court must consider two alternatives: either the child will be uprooted from his or her current life or the child will remain in the same location without one of his or her parents.

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In California, the Family Court System is designed to encourage parties to settle disputes and reach agreements regarding contested issues. Specifically in Del Mar and throughout San Diego County parties are required to attend a Mandatory Settlement Conference before their case can proceed to trial. However, despite this strong public policy towards settlement, the California Court of Appeal has clearly drawn a line between what parties can and cannot agree to.

In this Court of Appeal case, Mother (Kristine) first filed a petition at the trial court level to establish a parental relationship between her son, Seth, and his biological father. Since the parties were not married at the time of conception or birth, there was no presumption that Father (David) was in fact Seth’s father. Once the court determined, through the use of a paternity test, that David was Seth’s biological father, the parties entered into a stipulation. A stipulation is an agreement that can be filed with the court and creates enforceable orders. Kristine and David stipulated that David consented to terminate all of his parental rights and Kristine agreed to waive any claim for future child support. In short, the parties agreed to terminate David’s parental rights and responsibilities.

Over the objection of Minor’s counsel, the trial court was persuaded by the parties’ argument that they had the right and ability to contract regarding their respective parental rights. David argued that proceedings to terminate parental rights are not necessarily linked to a pending or contemplated adoption therefore he should not be prohibited from terminating his on the basis that Seth would only be left with one parent. The trial court was also persuaded in part by case law in which the court upheld agreements made by parents prior to conception of a child such as in artificial insemination and surrogacy cases.

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Oscar-winning actress Halle Berry is entrenched in a bitter custody battle with her ex-husband Gabriel Aubry. The couple split in February of 2010 but has been in court recently fighting for custody of their four-year-old daughter, Nahla. Berry is now engaged to Oliver Martinez who is both a French actor and French citizen. Currently the main issue in the Berry-Aubry custody dispute is Berry’s request to move with Nahla to France. Although her new fiancé conveniently lives in France, Berry claims that she is motivated to move by a desire to keep her daughter safe. Berry argues that the paparazzi are endangering Nahla. Unlike the United States, France has laws that protect celebrities from the constant snapping of photos by the paparazzi. Additionally, Berry’s stalker Richard Franco has recently been released from prison and she argues that he is again a threat to her and Nahla.

Under California child custody laws, the standard for a move away case such as this depends on whether the parties already have a final custody and visitation order. However, regardless of whether a final order is in place, a judge will likely deny or grant a move-away request on the basis of the best interests of the child. Additional factors the judge will consider include but are not limited to: (1) the child’s interest in the stability of the current arrangement, (2) the distance of the move, (3) the current relationship the child has with both parents, (4) the reasons for the proposed move and (5) any other factors the court deems relevant. Although Berry argues that the move is motivated by a good faith desire to protect her daughter, the Family Court Services recommendation suggests that the move is not in Nahla’s best interest. Considering the distance between California and France, Nahla’s relationship with her father would be deeply affected by the move. According to the report, Nahla has a close relationship with Aubry and separating her from her father would be detrimental.

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Before and during marriage, grandparents can provide substantial financial and emotional support to a family. Grandparents often pay for weddings, put down payments on the family home, and create college funds. In addition to lending or gifting money, grandparents also volunteer to babysit daily when both parents have to return to work. The grandparent who provides daycare often transports the children to extracurricular activities and enriches their education. Grandparents may also volunteer to take the children for overnights when the parents need a date night and time alone to nurture their relationship. During marriage, grandparents can play an integral role in child rearing. However, this potentially close and beneficial relationship between grandparent and grandchild may not be so honored upon divorce.

According to the statistics released by AARP, the average grandparent spends approximately $1,000 on his or her grandchild each year. However, despite their generosity and support, grandparents receive little protection in a divorce proceeding. Upon divorce, for a variety of reasons, one parent may limit the visitation of a grandparent. The grandparent may be prohibited from visiting with his or her grandchild while that child is in the care of one parent. The consequences of this prohibition can be devastating if the hostile parent is awarded physical custody while the other is only permitted specific visitation. This sudden change in the grandparent-grandchild relationship is traumatizing for both parties involved.

Although many grandparents attempt to intervene in divorce proceedings to assert their rights to visitation, they are rarely rewarded with victory. In 2000, the United States Supreme Court decided the case of Troxel v. Granville. In this case, grandparents petitioned for visitation rights after the mother limited visitation to one day per month and some holidays. The Supreme Court relied on a parent’s fundamental right under the Constitution to make decisions regarding the upbringing of their children in making their decision. The Court held that requiring a parent to facilitate grandparent visitation against his or her wishes violates that parent’s right to make decisions regarding the “care, custody and control” of his or her children. Despite this particular holding, the Court did not find that visitation laws are per se unconstitutional, therefore California still allows grandparents to seek visitation rights.

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As we have previously blogged, child custody laws and presumptions have evolved over time in San Diego. Recently, some states, including the Commonwealth of Virginia, are moving toward a new way of thinking when it comes to child custody and visitation. These states intend to eliminate the concept of “custody” all together. Instead of determining custodial rights of parents upon divorce, courts would instead determine “parental responsibilities.” This change would reflect a shift in how children are viewed in society. The idea of “child custody” originated when children were still seen as “possessions” to either be won or lost in a divorce proceeding. Just as the term “wife” has evolved, the concept of children as property has faded from the American conscious. Now, certain states are beginning to change the wording of family law statutes to reflect this modern shift.

By eliminating the word “custody” in favor of phrases such as “parenting time” and “decision making,” litigants can better focus on the specific actions of each parent in order to determine which future course of action is in the best interest of the child. The intent behind the new wording is to create a different mindset for all those involved in the case. The change encourages parents to narrow in on parental duties, instead of viewing children as property. Additionally, family courts will have greater latitude and more options when creating a comprehensive parenting plan. The judge will not be forced to place every case in a predesigned box such as those labeled “joint custody” or “sole custody.”

Under the California Family Code, a judge may award physical or legal custody. Although the word “custody” is used to describe both, the two terms have drastically different consequences. A parent awarded legal custody has the right and responsibility to make decisions regarding the child’s health, safety and wellbeing. A parent awarded physical custody will have the right to spend time with the child. The proposals for change in other states attempt to clearly establish a separation between parenting time and decision-making. The spirit of the existing law will be preserved in this area; however, the new terminology is intended to change how these parental responsibilities are viewed. Proponents argue that the use of the word “custody” to describe both parenting time and decision-making is confusing to the layperson and average litigant. By actually describing “legal custody” as decision-making and “physical custody” as parenting time, the two concepts will be better understood throughout the litigation process. Additionally, the word “visitation” will also be eliminated from family law jargon. If one parent is awarded physical custody of the child, usually the noncustodial parent is awarded visitation rights. This term will be replaced with “parenting time” as well in order to reduce confusion.

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There has been a back and forth trend in custody and visitation legislation preferring one sex to the other. The first custody laws in the United States automatically granted father custody of the child unless he was determined to be unfit, unavailable, or agreed to grant the mother custody. Later, the “tender years presumption” replaced the paternalistic custody laws. Under this new presumption, mothers became the preferred custodian because they were seen as nurturing and in the best position to provide children with the care they needed. Eventually, this notion faded because it merely perpetrated a gender stereotype and opponents argued that it was unconstitutional. Under the California Family Code today there is no stated gender preference. However, both men and women argue that gender bias exists in the courts against their respective sexes.

The Father’s Rights Movement began in the 1970’s as a new perspective on which parent is the preferable custodian in a custody dispute. Supporters argue that the family courts are consumed with gender bias against men and blindly award support and custody to women by virtue of their sex. These groups promote changes to family law that emphasize the rights of parents or the child’s rights to both parents.

Divorce lawyers have begun targeting husbands who may subscribe to the notion that the family laws and courts are predisposed to favor women. This new type of law firm advertises to men through sports magazines, on the radio, and on television. It targets programming most often viewed by men and less likely to be watched or listened to by women. The men who hire the “divorce for men” law firms fear losing their children and money on the basis of gender. They argue that women are automatically awarded custody and spousal support because of the existence of gender stereotypes and bias. One such firm claims to “specialize in men’s issues.” This statement is based on the assumption that “men’s issues” exist currently in San Diego family law courts. The controlling standard in any child custody and visitation case is the best interest of the child. When considering the various factors outlined by the family code, there is no indication that the gender of each parent should be addressed at all.

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On July 26, 2012, Stevie Wonder signed a petition for divorce with two of his fingerprints. After eleven years of marriage, Wonder cited “irreconcilable differences” as the reason for his divorce from wife Kai Millard Morris. Wonder and Morris have been living separately for nearly three years since October 2009. According to the divorce petition, Wonder is seeking joint custody of the couple’s two children, Kailand, 10, and Mandla, 7. From 1970 to 1972 Wonder was married to singer Syreeta Wright and is the father to a total of seven kids from both marriages and other relationships. The petition also states that Wonder agrees to pay child and spousal support.California is a community property state. This means that all property acquired by either spouse during marriage is to be divided equally between the spouses upon divorce. These assets are called community property. Community property can only be acquired after the date of marriage but before the date of separation. The date of separation is determined by a combination of two factors. First, the spouses must be living separately and apart. Second, at least one spouse must intend not to resume the marital relationship. The court will evaluate whether a separation has occurred based on a mixture of relevant objective and subjective intentions and behaviors. Because Wonder and Morris began living separately in 2009, the first factor is satisfied. The court will next look at the actions of either party including but not limited to: whether they continued to commingle finances, celebrated anniversaries and/or romantic holidays together, and whether either party continued to perform marital duties.

Stevie Wonder amassed most of fortune before his marriage to Morris thus; Morris will not be entitled to any of these premarital earnings. All of Wonder’s earnings before marriage are separate property. Upon divorce, separate property is awarded entirely to the separate property estate. If the parties entered into a valid premarital agreement, default community property laws will not apply to asset division and Morris may be entitled to some of Wonder’s premarital earnings. Kai Morris is famous in her own right as a fashion designer. She earned notoriety from the support of the First Lady, Michelle Obama. Wonder may be entitled to a portion of Morris’ earnings acquired during the marriage, before the date of separation.The issue of child custody will be decided by the court under the guidance of the best interest of the child standard. Unless the court is presented evidence that either parent is somehow unfit, Wonder’s request for joint custody will likely be granted. The parties may reach an independent agreement regarding child custody and avoid a divorce trial.

Please contact us if you are considering a divorce from your spouse, a legal separation, or have questions regarding child custody and visitation. Nancy J. Bickford is the only lawyer 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.

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