Articles Posted in Custody and Visitation

Although the infamous Michael Jackson died nearly three years ago on June 25, 2009, the custody battle for his children has raged on. Jackson left three minor children, Prince, 15; Paris, 14; and Prince Michael II, 10. Katherine Jackson was appointed guardian of the children after Jackson’s death in 2009. However, the judge suspended her guardianship after she was recently reported missing. According to Jermaine Jackson, Katherine was not in any danger but rather was resting in Arizona. Two family members have been fiercely battling for custody of the children, Jackson’s mother, Katherine, and the son of his brother, Tito. Apparently the two have reached an agreement to share guardianship. At the age of 82, Katherine will be relieved of daily responsibilities such as management of household personnel and the security team.

According to her attorney, Perry Sanders, “Mrs. Jackson is extremely pleased with the prospect of enjoying the pleasure of raising Michael’s children without the day-to-day tedium of items such as managing the large staff that goes with such a high profile family and focus her attention on being a grandmother and raising Michael’s children.” As her co-guardian, Tito has enjoyed a close relationship with the children for the majority of their lives and has been solely responsible for their care in Katherine’s absence. Margaret Lodise, the court-appointed guardian ad litem for the children, has confirmed that the custody agreement is agreeable to all the Jackson children.

ABC’s Modern Family depicts a different type of family in an attempt to emulate a more accurate picture of the average American household. Modernly, many families are not simply made up of a heterosexual couple raising a few children in a suburban neighborhood. Modern Family illustrates the struggle same-sex couples have adopting children, the difficulties of living in a blended family, and coping with divorce. Because of the new changes emerging in American households, parenting of children has become more complicated. Children do not necessarily only have two parental figures in their lives anymore. California family legislators have begun to recognize the changes occurring and have proposed a new law that could expand the view of traditional families.

Senator Mark Leno of San Francisco has proposed new legislation that has the potential to give San Diego residents more parenting options. Under current laws, a child may only have two legal parents. The proposal will create the possibility for a child to have a parent-child relationship with more than two parents. Although the number of permitted parents may change, the same standard of awarding custody and visitation would apply. The court will award custody and visitation of the child amongst all the parents in accordance with the best interest of the child.

The proposal’s controversial nature has garnered significant criticism from conservative groups founded on the belief that two parents, one mother and one father, should raise a child. Opponents of the proposal argue that it is merely a means to further the same-sex marriage movement. This argument is fiercely contested by the bill’s proponents who claim it has nothing to do with “culture wars” and is solely based on the best interest of the children involved in custody disputes. Additionally, opponents claim that the bill would lead to more instability for children as a result of increased conflict.

After five years of marriage Katie Holmes filed for divorce from husband Tom Cruise on June 28, 2012. However, the most surprising part of this celebrity divorce is the quick resolution. Just eleven days after filing the initial paperwork, Katie’s attorney announced that the couple reached a final settlement of the case. TomKat have been hesitant to comment on the split, but have released a statement regarding their six-year-old daughter, Suri. The vague statement expressed a desire to accomplish what is in Suri’s best interest, keep private family matters out of the press, and explained the mutual respect Katie and Tom have for each other’s respective beliefs. This reference to religious beliefs might be an indication that Tom’s emersion in the religion of Scientology may have contributed to the split.

There is much speculation surrounding the quick and secretive manner in which the divorce was filed. The debate centers on whether Katie was trying to escape Scientologists or the media frenzy that surrounds public figures. The fact that the couple reached such a quick settlement tends to establish that Katie was not working on ending the marriage alone. Other experts speculate that a prenuptial agreement may have hurried the process along. Katie’s quick moves took careful planning over many months. Rumors indicate that she obtained a disposable phone and many laptops in order to keep discussions with her attorney private.

After nearly twelve years of marriage Debra Messing and husband Daniel Zelman are calling it quits. 

Messing and Zelman say the split is amicable and that they intend to remain close friends as they raise their son together. The two announced their separation six months ago. Ironically, immediately following this announcement, Messing began dating her new Smash co-star, Will Chase. The divorce petition filed by Messing on Tuesday June 5, 2012 lists the commonly cited “irreconcilable differences” as the reason for the divorce.

National bodybuilding champion, Ronnie Coleman, was sued for child support by the mother of his children, Jo D. Jo D. requested that Coleman pay support in the amount of $4,000 per month for the care of their triplets. This is a typical scenario in San Diego family law cases because parents are often sued for past due child support. However, Coleman had a winning argument against payment because he was merely a sperm donor. A California appellate court determined that a sperm donor does not have to pay child support as long as he is not married to the recipient mother.The relationship between Coleman and Jo D. blurred the lines between natural father and sperm donor. The two had a sexual relationship while they both lived in Texas as neighbors. Later, Jo D. moved to California and Coleman provided his sperm at California Cryobank, Inc. so that she could be artificially inseminated. Shortly after the birth of triplets resulting from the artificial insemination, Coleman married another woman. At birth, Jo D. listed Coleman on the triplets’ birth certificate as their father. One year later, she brought a lawsuit to collect child support against Coleman.

Under the California Family Code section 7613(b), “the donor of semen provided to a licensed physician and surgeon or to a licensed sperm bank for use in artificial insemination or in vitro fertilization of a woman, other than the donor’s wife, is treated in law as if he were not the natural father of a child thereby conceived.” This presumption is not absolute and can be overcome in various ways by the father such as: marrying the mother, publically declaring parentage of the child in a manner specified by statute, receiving the child into his home or opening holding the child out to be his natural child.

Here, although Coleman and Jo D. agreed to this sperm donation arrangement, Coleman has since acted inconsistent with any indication that he intended to be a natural father to the children and involved in their lives. Since the birth of the children, Coleman did not marry or attempt to marry Jo D. In fact, he married another woman just months after the birth of the triplets in 2007. Further, Coleman did not open his home to the children nor did he hold them out to be his natural children. Therefore, as the appellate court correctly held, Coleman is not responsible to financially support the children despite his sperm contribution.

Nadya Suleman, otherwise known as “Octomom,” is famous for giving birth to octuplets in 2009. In addition to her octuplets, Octomom has six other children. Recently Octomom has been criticized in the news for poor parenting. The controversy surrounded a complaint filed by her hair stylist who claimed that the fourteen children were living in substandard conditions. TMZ has reported that only one toilet is operating in the home, which is supplemented with portable toilets located outside in the backyard. According to Suleman, she could not afford to repair the other toilet in the home because the quote of $150 was too expensive. In addition to living in an unsanitary environment, the hair stylist provided photos that suggest the children were locked in a room while Suleman had her hair done.

These images have allegedly sparked an investigation by Child Protective Services (CPS), which will determine whether the children are at risk of any substantial harm. The photos depict a messy house with writing on the walls. The hair stylist has also provided photographs of the outdoor toilets. CPS has responded by saying that a messy house does not violate any law and methods of potty training are within the parent’s discretion.

If CPS determines that the children should be permitted to remain in the home up to 12 months of services may be provided to the family in order to improve conditions for the children. If CPS determines that the children are in danger, it will file a petition in Juvenile Court and ask that the children be removed from Suleman’s home. If the children are removed, they may be placed with a relative or in foster care depending on the particular circumstances. Further, Suleman will need to take parenting classes and counseling if she wished to reunify with her children. Up to 18 months of services will be provided if a parent is making efforts toward reunification. If she does not satisfy the court’s concerns, the children could be placed with a legal guardian or even adopted by another person(s).

Famous R & B artist Usher is currently litigating a hotly contested custody case with his former wife Tameka. Tameka and Usher were married for two short years before Usher filed for divorce in 2009. Currently the couple shares joint custody of their two young sons. On Tuesday May 1, the pair attended a court hearing in Georgia where the judge ordered them to work out some type of agreement “or else.” The judge instructed them to attempt to reach a temporary child custody and visitation arrangement in a private mediation setting. If they were unable to reach an agreement, the judge would impose a temporary order upon Usher and Tameka. In this case, the two would have no control over the outcome.

It is common in the San Diego family court system for a judge to order parties to attempt reaching a mutually acceptable agreement. Negotiating and mediating disputes, especially those regarding child custody, result in less turmoil in an already hostile situation. This approach tends to promote cooperation and a healthy co-parenting relationship between the parties that is in the best interest of the child. However, when domestic violence is involved in a case, party negotiations will be ineffective and unsuccessful.

1. What is FCS Mediation?

Family Court Services (FCS) provides child custody recommended counseling in family law cases when separating or divorcing parents cannot agree on a child custody sharing plan. Child custody recommended counseling is provided in a private counseling office with a trained court counselor. The FCS conference allows both parents to work together toward a mutually acceptable agreement which is in the best interest of their children. The court counselor will evaluate the case and make a recommendation to the Judge regarding child custody and visitation if the parents are unable to reach an agreement.

2. Is mediation required?

In any dissolution matter regarding child custody and visitation where there is a dispute, Family Code section §3170 mandates that the case be set for child custody recommending counseling prior to the court hearing. Mediation has been required in California for divorcing parents regarding child custody and visitation since 1981.

3. What topics will be discussed in Mediation?

The main topic is child custody and visitation. This includes legal custody and physical custody arrangements. In making a parenting plan, topics such as birthdays, holidays, and summer vacation can be determined by a visitation schedule agreed upon by the parents. Topics such as child support, spousal support, and property division are not usually addressed but agreements can be drafted through your attorney if decided upon mutually by the parents.
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We have previously blogged about the impact military orders can have on a San Diego parent in a child custody case. Recently, the House Armed Services Committee is considering ways to enhance the provisions in place that protect the parental rights of service members. The Servicemember Family Protection Act is designed to preclude family court judges from ruling against servicemembers based solely on a history of or future deployment in child custody cases. Originally introduced in 2008, the bill has passed the House of Representatives with support from both the Democratic and Republican parties but has repeatedly failed in the Senate. The Defense Department has rejected this bill in favor of passing similar legislation at the state court level.

Often in California child custody cases the family court judge will scrutinize a parent’s absence from the child’s life. However, servicemembers may be deployed for extended periods of time and have little to no contact with their children. The Servicemember Family Protection Act is intended to excuse a parental absence due to military orders. It is important to note that the bill will not give servicemembers any advantage in child custody cases or hearings, it will only function to remove the disadvantages servicemembers are facing in these proceedings.

Traditionally, deployment has been understood as the movement of military forces from one area to another or sending military personnel into a combat zone. The Servicemember Family Protection Act defines deployment much more broadly for the purposes of child custody proceedings. For the purposes of the bill, deployment would include humanitarian operations and unaccompanied oversee tours as well. The bill has been proposed as an amendment to the Servicemembers Civil Relief Act. The Servicemembers Civil Relief Act was passed as a federal law, which granted special rights to servicemembers who were part of a civil proceeding. In 2008, Congress extended these privileges of the Civil Relief Act to child custody cases. The bill now prevents family courts from making permanent changes to custody orders while a servicemember parent is deployed.

As mentioned last week, statistics show that approximately 50% of marriages will end in divorce. Now that divorce is so prevalent in today’s society, we need to find effective ways to minimize the negative effects on children and maximize family support and encouragement through this tough time. Listed below are three proposed solutions that you as a parent can do to help reduce the negative effects divorce may have on your children. Not one solution by itself will eliminate the problem, but a combination of them may significantly decrease the negative effects divorce has on children. These solutions include: divorce education and co-parenting classes, divorce mediation, and family counseling. Also your attorney can engage in collaborative practice of law to further assist in making the divorce process easier on children.

Education Programs

A recent study indicates that 46 states currently offer some version of a parent education program. Some jurisdictions also offer classes for children coping with their parents divorce and a few jurisdictions offer parallel classes for both parents and children. For example, in San Diego, there is a program for children called KidsTurn. Some of these programs are court mandated or recommended by the judge, while others are voluntary. These classes can last anywhere from a few hours in one day up to eight weeks. Many of these programs reported positive findings such that parents either reported decreased interparental conflict or decreased re-litigation.

These education programs aim to do the following: 1) inform parents how children usually respond to divorce; 2) alert parents to the negative effect of conflict and their harmful behaviors on children’s adjustment both in the short and long term; 3) discuss benefits of, and skills needed, to build a cooperative or parallel parenting relationship; 4) focus parents on the needs of children for an on-going relationship with each parent; 5) teach positive parenting behaviors and appropriate discipline; 6) discuss the process of adult adjustment to divorce and how to cope with this change; 7) focus on responsibilities of each parent to the children; and 8) describe helpful court processes, such as mediation. This can completely change a person’s parenting style and their relationship with their ex spouse and their children.

Co-parenting Classes

Cooperation between parents after divorce includes frequent communication about the child, coordination of routines across households, the ability to resolve differences in a mutually satisfactory manner, and respect for and support of the other parent’s relation with the child. In order to accomplish these things without conflict, it is useful for parents to attend co-parenting classes together. These may be court mandated by the judge or taken voluntarily by the parents.

Co-Parenting has been used in a variety of ways to refer to the degree to which the ex-spouses share the parenting role. These include: joint problem solving skills and joint decision making concerning the child’s welfare, low levels of conflict around parenting issues, building communication and trust, and also sharing in joint responsibilities. Programs have reported positive findings such as decreased inter-parental conflict, increased encouragement with other parent’s involvement, trust for the other parent’s ability to parent the child, and decreased re-litigation. About 80% of judges report that these classes helped parents agree on custody arrangements before coming to court and decreased re-litigation of those who had already been in court.
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