Nancy J. Bickford

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A custody battle is all about your children so your actions and behavior during the custody battle should also be all about the children and making sure that they are the top priority. Below are some tips for things to do or not do if you are fighting for custody of your child or children:

1) Do not discuss legal matters around your child. No matter how angry or upset you are with your spouse, your child is not the person you should be venting to about the divorce. Consider meeting with a therapist or at least save the divorce discussions for your adult friends.

2) Despite the anger and resentment you may have towards your soon to be ex-spouse, do your best to encourage your child to have a relationship with your soon to be ex-spouse. It’s important for a child to have both a mother and father role model in his/her life.

3) Avoid separating your child from your soon to be ex-spouse’s family members (i.e. grandparents, aunts, uncles, etc.). Remember that just because you and your spouse have chosen to call it quits doesn’t necessarily mean your child should have to forfeit his/her relationships with extended family members. Also, when you feel the urge to say something bad about your ex’s family members, remember that even after the divorce your child will still be related to them even though you will not.

4) If you have been ordered to pay child support, do not withhold that support just to punish the other parent. By doing so, you will ultimately be punishing and deprived your child as child support is meant to help out with expenses related to the child.

5) Respect your spouse’s privacy rights when your child is in his/her care. As much as you may want to snoop on your spouse and make sure that your kids are being taken care of, the more respect you show your spouse then more you will likely receive in return. Additionally, so long as your child is not in danger, avoid trying to control every move of what your child does while in the custody of your spouse.

6) Be open to the possibility that a 50/50 shared custody arrangement may not be in the best interest of your child. Keep your child’s unique needs in mind. This is especially true if you have a special needs child who may not react well to change and different environments.
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It is not uncommon in San Diego divorce cases for spouses to accuse each other of improperly hiding or failing to disclose community assets. However, before pursuing any legal course of action for relief in court, it is advisable to collect substantial evidence of misconduct. Often times what seems like wrongdoing at first can simply be explained by clarification of a misunderstanding or the production of supplemental information. In the instance where a spouse is failing to disclose property or making substantial efforts to conceal assets, it may be necessary to seek court intervention. One common thread to accusations of concealment of property is the involvement of a third party.

Obtaining relief from a third party is much more difficult in the family law arena than it is in general civil litigation. In a general civil case or criminal prosecution, any party involved in a conspiracy can be joined in the action and held directly accountable for their involvement. Family law judges hear much more personal types of cases and therefore are hesitant to drag third parties or businesses into divorce or custody disputes.

There are two categories of joinder, mandatory joinder and permissive joinder. Mandatory joinder is used in a limited set of circumstances which are largely procedural. Permissive joinder is a much more arguable area of these laws because the exercise of the court’s discretion in making a decision regarding permissive joinder is the “reasonableness” standard. Whether joinder is considered “reasonable” is highly fact driven and the “reasonableness” of joinder may vary greatly from judge to judge. With such broad discretion and open-ended guidelines, it is impossible to predict with any certainty the outcome of a motion for joinder.A request to join a third party you believe has been conspiring with your spouse to hide property is within the court’s broad permissive joinder criteria. Pursuant to California case law, the court may order joinder of a third party to which one spouse purportedly made an unauthorized gift of community property. For example, if you have evidence to suggest that your spouse is “selling” off community assets to a friend for little to no consideration, you may be able to join the third party who has “bought” community property. Many times, the friend will be holding the property for the spouse until the divorce has concluded and then will return the property to the spouse. These types of cases are difficult to prosecute without substantial evidence of misconduct. However, if you can prove your spouse gifted community property to a third party you may be able to join the third party in your divorce action.
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According to CNN, Cara Cox was reunited with her mother, Jodie Borchert, 4 years after vanishing from Florida with her father, Aaron Cox, against child custody orders. Cara Cox was just 8 years old at the time when she was taken by her father following a weekend visit. For nearly 4 years there were no leads on Cara’s whereabouts. However, a break in the case came on May 12, 2014 when a tip led authorities to a remote area in Mexico, 1,700 miles away, where both Cara and her father were living under aliases. Authorities arrested Aaron Cox and recovered Cara. For Cara’s mother, the wait was finally over.

For some divorcing couples, the fear of your spouse abducting your child in violation of your child custody orders is a serious concern. If you are going through a divorce or have recently divorced, there are some precautions that you can take. First, it is important to keep a record of important information about your ex-spouse including his/her social security number, driver’s license number, vehicle description and license plate number, physical description, etc. Second, it is important to keep a record of important information about your child including his/her height, weight, hair color, eye color, fingerprints, and any unique physical characteristics. Third, it is recommended that you keep an updated list of addresses and telephone numbers of your ex-spouse’s relatives and friends both here and abroad. Lastly, you should take photographs of your child every six months because a recent photo may prove very helpful if your child is abducted by your ex-spouse. Also, as much as you may not want to keep any pictures of your ex-spouse around, keep a recent photo of him/her on hand as well for the same reason.

There are many great smart phone apps to help you keep your child’s information handy, such as The FBI Child ID. Created by the Federal Bureau of Investigation, this app lets parents store their children’s photos plus other identification (height, weight, hair and eye color, age) for quick access if a child ever goes missing. The information is stored on the iPhone only until parents need to send it to authorities. Notable features include safety tips, checklists for what to do if something happens to your child, and shortcuts to dial 911 or the National Center for Missing and Exploited Children. Parents also have the ability to email info immediately to law enforcement agencies if the unthinkable occurs. (Free; iPhone, iPad)Another great smart phone app is Find My Kids. Using GPS in real time, this app helps you keep track of and automatically locate where your child goes with his phone. If he’s traveling alone, you can confirm that he arrived at a specific destination, or if he’s meeting up with friends, they can confirm each other’s locations. Location info is never shared with anyone else beyond those who have permission to see it, and data is saved for later review. Even though the app is free, parents will need to purchase a subscription for the tracking feature. (Free to download, service requires a monthly fee; iPhone, iPad)

If your child has been abducted you will likely experience a tremendous amount of shock and emotions and won’t be able to think clearly. Thus, it is important that you take the above precautions so that you are prepared for this awful situation.

If you think that your child is at risk of being abducted by your ex-spouse then is it vital that you have a very clear child custody order that outlines the extent to which your ex-spouse has authority to travel with your child. You should keep a copy of the current order in a safe and easily accessible place. Although court orders are not typically recognized in foreign countries, the Hague Convention is an international treaty that provides a method of returning a child who has been abducted by a parent (in violation of custody and visitation orders) from one country that is a member of the Hague Convention to another country that is a member of the Hague Convention.
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Not all divorces are alike. Particularly, divorces involving spouses who have a special needs child will have specific considerations that should be addressed during the divorce process. Some key issues that need to be considered during a divorce proceeding in regard to a special needs child include the following:

1. Physical Custody
In California, the courts award custody based on what is in the best interest of the child. However, one consideration is that the “cookie cutter” parenting plan for a typical child will likely not work for a child with special needs. Special needs children, such as children with autism, often have difficulty with transitions because they are not comfortable with changes in environment. In addition, a special needs child may not understand the concept of time like a typical child would. The goal should be to design a parenting schedule that prioritizes the child’s unique medical, physical and mental needs.

2. Legal Custody
Legal custody is about which parent will make the decisions with regard to the child’s health, education and welfare. In the case of a special needs child, it is very important that the parents advocate in unison with regard to matters involving the child’s placement, services and therapies. Special needs children typically have a team consisting of doctors, therapists, school personnel and childcare providers. If the parents are unable to work together with the team to make these decisions, then the court should be requested to decide which parent should be the one to have such decision making authority.3. Child Support
When litigating your divorce case, it is important to educate the judge as to the unique requirements of a special needs child. You may want to request that the court consider unique un-reimbursed expenses that relate to caring for a special needs child. Although the Court uses a formula to calculate child support, that amount may be adjusted for cases in which the children have special medical or other needs that require child support to be greater than the formula amount. The Court may consider a wide range of add-on expenses such as various therapies, special schools, medication, which the special needs child require to facilitate his or her progression. Another consideration to keep in mind is that child support may even extend beyond age 18 in certain circumstances.

4. Medical Insurance/Life Insurance
Families with a special needs child typically spend thousands of dollars each year in uninsured medical expenses. Consequently, it is important that divorcing parents address the topic of medical expenses (including health insurance premiums and uninsured medical expenses). Also, in some states, such as California, the court may order a parent to secure his/her child support obligation through a life insurance policy.
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Okay, so it might sound a little crazy to think that you can celebrate a divorce. But why not?! You’ve spent the past months or possibly years either settling or litigating your case so you deserve a celebration! Just make sure your divorce is actually final before you begin the celebration festivities.

One way to celebrate the newly single you is by taking time away and going on a “divorcation”. Whether it’s a trip with your best girlfriends or an adventurous getaway by yourself, traveling can help free the mind of all of the stress and emotions you have endured throughout the divorce. Spending time in warm weather will also help lift your spirits. And if you’re looking to mingle and meet new people post-divorce, a cruise might be the way to go.Another way to celebrate your divorce is to throw yourself a divorce party. This means inviting all of your friends and family who helped get you through what was arguably the most difficult time in your life and ordering a divorce cake…and yes, many bakeries are quite accustomed to this request.

If the divorce has left you with empty pockets then maybe a “divorcation” or big party isn’t the best choice. Instead, grab your PJ’s, a big bag of popcorn and find a comfy seat on the couch to watch one of the 10 best divorce movies of all time… Irreconcilable Differences, Stepmom, Liar Liar, Kramer v. Kramer, First Wives World, Waiting to Exhale, Mrs. Doubtfire, Jerry Maguire or Along Came Polly.

Celebrating your divorce also requires you to celebrate YOU and your newfound independence. Start by getting a new cell phone number or think about going back to school to get that advanced degree that you always wanted.

However, before you begin planning your divorce celebration, whatever it may be, you need to be sure that your divorce is actually final. In California, your marriage cannot be terminated until at least six months and one day from the date that you or your spouse served the petition for divorce and the court summons or when you/your spouse responded to the petition. However, your divorce does not automatically become final at the end of the six months. But rather, your divorce is final after the judge signs the divorce Judgment. The court clerk will then mail the divorce judgment to each spouse (or their respective attorneys) and the date that the judgment was filed will be stamped in the upper right corner.
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During a divorce, a judge, a mediator or the parties will make decisions regarding how to divide the marital property, like the residence, the vehicle, savings accounts, and stocks accounts. But what about the couple’s digital assets, like their iTunes music library, MP3s, Kindle eBooks library, etc.? These assets aren’t exactly tangible, yet they may still be considered martial property subject to division during a divorce.

Digital assets are comprised of intangible goods such as digital books, music and movies. These are most typically stored in iTunes accounts or other MP3 storage accounts and Kindle eBook accounts. Digital assets can even include digital storage, social media accounts and blogs. These digital assets raise the question of whether they are subject to division during a divorce and whether or not they can be valued.

Although there is not much law on this subject, when it comes to the division of digital assets, many states will divide the digital assets using an “equitable distribution” system to divide, allocate and value these assets. The “marital property” will be assigned a value and then it will be distributed equitably, or fairly, between the spouses. Such division does not always result in a 50/50 split, but rather it is what is considered a fair split.However, just like a car cannot be split in half, neither can many digital assets. Additionally, unlike the ownership of a car which can typically be transferred quite easily to the other spouse, transferring ownership of digital assets is not always feasible. In fact, some user agreements do not even allow for transferring ownership. A judge’s ruling will not even supersede these user agreements. To resolve the issues that division of digital assets pose, the spouse who owns the iTunes and Kindle libraries may be awarded them, while the other spouse may be awarded a different asset in leui. Another option is for the spouse who is awarded the asset to “buy-out” the other spouse based on the value of the asset awarded to him/her.

Although the division of digital assets is a relatively new area of the law, as more digital products continue to develop, I suspect that divorce attorneys will see a lot more issues involving digital assets and thus a lot more law on the topic.
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When going through a divorce, there are a lot of decisions that need to be made. Who will get the house? Who will the kids spend the holidays with? Who keeps the beloved family pet? These and many more questions will come up throughout the divorce process and will require either you and your spouse or the Judge to make a decision. One decision, however, that will be up to just you (and hopefully with the cooperation of your spouse) is whether to litigate or mediate some or all aspects of your divorce.

It’s common to want to take everything to trial when there are a lot of fuming emotions between you and your spouse. Many spouses feel that if they litigate their case, it will act as a type of revenge against their spouse. However, before you shut your eyes to the option of mediation or otherwise settling outside of court, here are a few things you might want to consider:

Money, Money, Money! Can you really afford the expense of a trial? If you have sufficient funds in your back pocket to fight your case and you aren’t in a hurry to get the divorce over with then ligation might be the avenue you want to take. However, keep in mind that it is very likely that the cost of going to trial will be greater than the amount of money you would lose by agreeing to your spouse’s settlement offer. This doesn’t necessarily mean that you need to agree to an unfair offer just to avoid trial on the issue. Such a decision really requires a cost-benefit analysis. If you are on the fence, your divorce attorney can walk you through the pros and cons of settling an issue outside of court or taking it to trial. It’s important to look at the big picture and decide if a $1,000 issue is worth possibly spending $10,000 in court to fight over or not.

Can you handle the heat?! Can you and your family withstand the immense amount of stress that comes with a trial? Litigation can be not only financially draining but also emotionally draining. You aren’t only putting an immense amount of stress on yourself, but also those who are standing by you throughout the process (your children, your family, your friends). However, some issues are simply worth the stress. For instance, if you are fighting for custody of your child, the stress of a trial is minor compared to the stress that you could potentially endure in the future if not awarded custody.Risk Taker or Risk Averse? How much are you willing to hand over control to a Judge? When going before a Judge there is no guarantee as to whether or not he/she will see things your way. So even if you think the Judge’s decision is unfair, it will be final (unless there are grounds for appeal). If you are willing to take that risk then go for it. But if you are more risk averse you may want to consider the benefits of settling with your spouse outside of court.
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It is a common fear in family law cases that one spouse will lie about his or her income in order to avoid a high child support or spousal support order. This can become a serious concern if the spouse is self-employed or a business owner who can manipulate evidence regarding his or her income. Especially in the case of a long-term marriage, the parties believe they can make a good approximation regarding the income of their former spouse. Often, spouses are shocked when they receive a copy of the income and expense information form prepared by the other party. Although there may be a disconnect between what you believe your spouse earns and what your spouse is telling the court he or she earns, it is important to do your due diligence and investigate your suspicions before making accusations to the court.

The first thing you can do to find out if your spouse is really lying about his or her income is to conduct formal and informal discovery regarding your claim. Informally, you can begin gathering documents which can provide you and your attorney with a snap shot of the monthly family spending. Review bank statements and credit card statements for information regarding how much money your family spends each month to maintain your current lifestyle. Once you have gathered documents which can provide you with information regarding your monthly family expenditures, you and your attorney can compare that information to the gross income your spouse is claiming he or she earns. In addition, you can gather joint tax returns and financial documents for previous years from your CPA or through your online tax service. It is helpful to compare prior tax returns with your spouse’s current claims regarding his or her income.Formally, your attorney can propound demands for production of specific documents and requests for specific information. If you do not believe your spouse will be truthful, even under oath, your attorney can subpoena various entities which have relevant documents in its possession. If you determine that your spouse’s statements regarding his or her income are inconsistent with the evidence which has been acquired, you may have a cause of action against your spouse for breach of fiduciary duty. San Diego family courts impose a strict duty on spouses to disclose all material facts and information regarding income, expenses, assets and debts. If one spouse is not truthful with the other party and/or with the court he or she may face serious financial or criminal penalties.
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In most states, the right to a jury trial in a divorce proceeding does not exist. In California, no such right exists. Rather, all divorces in California will be heard solely by the Judge, not a jury. However, in a limited number of states, including Texas and Georgia, whether you are the spouse who filed for divorce or the spouse who received a divorce petition, you have the option to request a jury trial during your divorce proceeding. Most of these states limit the right for a jury to only decide certain issues. In New York, for example, the circumstances are very narrow; a jury is only allowed to decide whether the parties meet the state criteria for divorce.

Texas offers the jury trial rights most broadly. In Texas, the jury consists of 12 jurors who may decide a number of issues. However, certain issues are still reserved for the Judge to decide. For example, the jurors in Texas can decide the issue of child custody, but the Judge will be the one to decide visitation and child support. Jurors in Texas can also determine the value of the assets, and determine which assets are considered separate property versus community property. However, the Judge will be the one to actually determine the division of such assets.

Offering the option of a jury trial in divorce proceedings is a hot topic of dispute. Supporters of offering a jury trial argue that it helps to ensure fairness by thwarting the Judge’s potential bias. Many also support jury trials because they believe that it gives litigants more of an opportunity to tell their side of the story. Another benefit of offering the option of a jury trial in a divorce proceeding is that it encourages parties to try and settle outside of court, since a jury trial is a risk for both sides no matter what the facts of the case are.However, many oppose the idea of a jury trial in a divorce because they aren’t keen on the idea of having the details of their private lives displayed before a dozen strangers. Additionally, divorce proceedings are expensive enough. Adding the option for a jury trial is likely to cause the divorce proceeding to be even more time consuming and expensive Continue reading

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In San Diego and throughout the state of California there are two types of spousal support which can be awarded by a family court judge. The two types of spousal support are temporary (pendente lite) spousal support and permanent (long-term) spousal support. The type of spousal support awarded is dependent on what point in the case the award is made. Often times family law litigants have various questions about spousal support especially after their first spousal support hearing. One of the most frequent questions asked is, “How long will the spousal support order last?”

Prior to entry of Judgment, any spousal support award made by the family court judges will be a “temporary” spousal support order. At the end of a dissolution case, the court will reevaluate the amount of spousal support being paid and make an ongoing “permanent” spousal support order. When parties first separate, one spouse may not have access to community funds and therefore he or she must request a hearing immediately to obtain an order for support. At times, that first rush to judgment can result in a slightly higher or slightly lower amount of support than may be appropriate on a more permanent basis.

In making a “temporary” spousal support order, the family courts in California are not as restricted using discretion than other court systems. For example, many other state court judges are required to apply a specific formula which considers the parties’ incomes and various other factors. In California, although many family court judges make spousal support awards using a default formula, they are not required to. In practice, family court judges often refer to the spousal support amount as suggested by guideline formulas and make awards based on that information.When family court judges make “permanent” spousal support orders, they must consider all of the factors outlined in Family Code § 4320. Most importantly, the court will consider the ability of the supporting spouse to pay support and the need of the supported spouse for spousal support. Family Code § 4320 also lists factors such as the length of the marriage, the age of the parties, the health of the parties, and any history of domestic violence. Becoming familiar with these methods for calculating spousal support can be especially helpful for parties’ in settlement negotiations. The measuring stick for any proposal in negotiation is what the judge would likely do if the matter were to proceed to court. Therefore, having that information available can assist the parties with proposing and accepting reasonable solutions.
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