Nancy J. Bickford

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Sibling relationships are often the longest and most important relationship a child will develop. But what happens to that relationship when siblings are torn apart as a result of two parents that can’t get along and decide to divorce. In many divorces, custody disputes become very heated and in some extenuating circumstances, the result is that siblings are separated. This type of custody arrangement referred to as “split custody” (although not defined by the California Family Code) results in each parent being awarded custody of at least one child of the marriage at all times, meaning that the children will live separate and apart from his/her sibling. Sounds like a real life version of the movie, The Parent Trap, doesn’t it?

Luckily, splitting siblings up between the divorcing parents is extremely rare. As would be expected, Courts generally believe that it is in the children’s best interest to live with their siblings and not be split. Divorces are difficult enough on a child so separating them from their siblings is often considered to be too much of a change and detriment to the children on top of the divorce itself. California public policy provides that the bond between siblings should be preserved whenever possible. Parents should want to do everything they can to maintain that sibling relationship as well.

If fact, courts disfavor separating siblings so much that an order separating siblings between custodial households will typically be reversed because it is deemed detrimental to the children’s best interests. Courts have argued that children should not be treated like another piece of community property to be divided equally for their parents’ benefit. Rather, children have a right to the companionship of their siblings.However, there are times when a “split custody” arrangement might appear to be a good idea for the children. For instance, there are some situations where the siblings are so combative and abusive to one another (perhaps as a result of one of the children having a mental health problem) that it would be toxic to keep them in the same household. Another situation is where there is conflict between a sibling and a parent such that it might make sense to place the children with the parent that he/she is less combative with. Or perhaps, one parent relocates and one of the children has more educational opportunities in the other state
Nonetheless, even where there may appear to be a compelling reason for splitting up the custody of siblings, it is not always the right solution. Rather, it is important to strongly consider the impact of sibling separation on all children involved and to preserve the sibling bond whenever possible.
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During a divorce, parents often disagree about whether a certain parenting tactic is appropriate for their children. Divorce can also create a sense of mistrust between former spouses that can affect their willingness to trust the other parent regarding his or her parenting strategy. At the request of the parties (or order of the Court) a child custody evaluation may be performed. Child custody evaluations are meant to determine if granting one or both parents’ custody is in the best interest of the child or if the child is at risk in any way. The professional evaluator will consider the following ten factors in making such a determination.

1. The parent’s ability to make age-appropriate parenting decisions
When addressing this factor, the evaluator may investigate the movie ratings young children are permitted to watch. Do the children have boundaries restricting them from watching R-rated movies? If the parties’ child is a teenager, do the parents enforce a curfew? If so, is the curfew appropriate for the teen’s age?

2. Evidence of the parent’s understanding of and response to the child’s needs
The evaluator will attempt to determine the parent’s involvement in the child’s life. Does the parent pay close attention to the child’s needs? Does the child freely communicate with the parent? If so, does the parent respond in an attentive manner in a way the child can understand?3. The parent’s historical involvement in the child’s life
The evaluator will be especially interested if the parent has been actively involved in the child’s life prior to the divorce. Parents learn early in a divorce case that time the children spend with the other parent can come with a steep price tag in the form of child support. Therefore, the evaluator will consider which parent has been the primary caretaker for the children throughout marriage.

4. How the parent handles custody conflicts with the other parent
Conflict between divorcing parents can have a great impact on their children. Therefore, the evaluator will consider the parent’s history of cooperating with the other parent to reach conflict resolution. Has either parent demonstrated a willingness to sacrifice their interests for the best interest of the child?

5. Perpetration of child abuse
The custody evaluator will investigate current and past child abuse perpetrated against the child at issue and any other children. This is an important consideration in any child custody case. If you suspect child abuse is ongoing it is imperative to contact the proper authorities to ensure the welfare of the child.

6. History of domestic violence
Regardless of whether abuse is perpetrated against the child, the evaluator will thoroughly scrutinize any claims of domestic violence. Specifically, the court will be interested to know whether the child has witnessed any of the abuse. If any temporary and/or permanent restraining orders have been granted between the parties, it is important to bring these to the attention of the custody evaluator. In addition, the evaluator may want to see any police reports filed which reference alleged domestic violence in the case.

7. Substance abuse issues
Any abuse of illegal or prescription drugs and/or alcohol will have a detrimental effect on a parent’s relationship with his or her child. Further, drug and/or alcohol abuse by a parent could present significant danger for a child. For instance, a parent with an alcohol addiction may or may not be able to resist alcohol while the children are in his or her care. If a parent does become incapacitated while caring for the children, his or her judgment may be significantly impaired creating an unsafe environment for children (especially young children).

8. Psychiatric illness
If psychiatric illness is an issue in the case, the evaluator will want to determine if the particular illness at issue poses a risk to the health, wellbeing or welfare of the child. As long as the children are safe and well cared for under the supervision of a parent, psychiatric illness should not be bar to custody rights.

9. Unusual social behaviors
Risky or unusual social behaviors could negatively impact the child and will be considered by a custody evaluator.10. The child’s attitude toward both parents
The age of the child will greatly affect the weight given to his or her attitude toward both parents. For instance, at the age of fourteen, the Court will give consideration to a child’s desires regarding how much time he or she would like to spend with each parent. For younger children, the evaluator will want to analyze the child’s feeling toward his or her parents and whether the child is comfortable with both parents.

In his or her effort to gather information regarding a case, the custody evaluator may review the court file, the child’s health records, observe the child’s interactions with his or her parents, and make collateral contacts with the child’s teachers, therapists or other involved adults.
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When you think of sperm donor, you typically think of someone whose involvement in the child’s life doesn’t extend beyond the act of assisting in the child’s conception. This is usually the case for sperm donors as they typically waive all parental rights during the process. However, sperm donor William Moratto recently got pulled into a child support case and a Judge in Topeka, Kansas actually ended up ordering him to pay child support for the child, now 4 years old, that he helped to bring into this world!

Marotta had responded to a Craigslist ad from a couple requesting a “private” sperm donor. The artificial insemination process did not involve a licensed physician but the couple did present Marotta with a sperm donor contract, which Moratto believed was a valid agreement indicating his intention to cease any parental role following the donation. Little did Marotta know that his donation would later cause him be on the hook for thousands of dollars of child support.Marotta argued that he was only a sperm donor and not a “parent” for purposes of barring his liability for child support. Unfortunately, the Judge found that Marotta’s claim of being just a sperm donor was nullified because the state’s statute specifically requires the donation to be made to a licensed physician if the donor wants to be treated as if he were not the birth father. Thus, the Kansas statutory bar to paternity could not be applied to Marotta as a defense against being subject to the rights and responsibilities of parenthood, including potential liability for child support. Would the same hold true in California? Like Kansas law, California Family Code Section 7613 also offers a statutory basis disqualifying a sperm donor from being subject to a child support obligation for the child he helped conceive. The California statute provides that “[t]he donor of semen provided to a licensed physician and surgeon or to a licensed sperm bank for use in assisted reproduction of a woman other than the donor’s spouse is treated in law as if he were not the natural parent of a child thereby conceived, unless otherwise agreed to in a writing signed by the donor and the woman prior to the conception of the child.”

The Court further ruled that Marotta did not properly waive his rights as a parent despite the written agreement that he signed with the couple at the time of the donation. The Court reasoned that a parent cannot terminate parental rights by contract. Rather a termination of parental rights can only occur in one of three ways: 1) adjudication of child in need of care, 2) relinquishment and adoption or 3) a judicial finding that the parent is unfit to act as a parent. For information regarding when a parent in California is able to voluntarily terminate his/her parental rights, please see our webpage titled “Termination of Parental Rights”.
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Despite the oppositional nature of family law, many cases are able to proceed through the court system with little to no conflict between the parties. However, for a variety of reasons, some cases are so high conflict that the parties are consumed by their family law matter. This high conflict case structure is particularly common in disputed custody and visitation matters. In addition to the emotional and mental drain a high conflict case has on both parties (and their child), conflict also drains the financial resources of the parties especially if one or both parties are represented by counsel. If you think your custody matter is high conflict, here are a few tips on how to reduce further tension between you and your co-parent.

Communication is Key: Conflict tends to arise out of frequent negative communication between the parties. This communication could be harassing due to its volume or the tone of the parties’ exchange. If one or both of the parties have “unfinished business” with each other after the break down of their romantic relationship they sometimes try to hold onto that former relationship by attempting to “get to” the other parent through an ongoing custody matter. In order to avoid this type of conflict, limit all communication to e-mail (except in the case of an emergency). Restrict the topic of communication only to matters related to the children and keep a friendly tone with your co-parent.

Stick to the Letter of the Law: In a high conflict case, giving or requesting leniency regarding the current custody/visitation order often leads to increased complications. In these cases, it is best to stick to the exact provisions of your custody/visitation order or agreement. Further, when the court makes custody/visitation orders, make every effort to request that the court be as specific as possible. This same rule applies to any negotiated custody orders. For example, ensure the order specifies the date, place, and manner of transfer for all exchanges. It is also important to limit the child’s exposure to potential domestic conflict or violence and ensure the safety of all people involved.Keep the Kids out of It: Although children present a wealth of information about your co-parent, never discuss the custody matter or any other adult issues with children. Not only are such conversations detrimental to the children, but if discovered, could be used against the parent and result in reduced (or even supervised) visitation time. Further, most custody/visitation orders contain direct prohibitions restricting both parents’ communication with the children about the pending case and any other adult matters. Thus, such conversations may be treated as a direct violation of a court order and could result in sanctions imposed against the offending party.
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January is often referred to as “Divorce Month” because of the high influx of divorce filings. Many people look at the New Year as an opportunity for a new, fresh beginning. To many, this may mean more time at the gym, less sweets, or even an honest attempt to quit smoking when the New Year comes around. But for others it means “divorce”, or in other words, an opportunity to finally get rid of the baggage from last year that has been weighing them down. Although this might not be the first thing you think of when coming up with your New Year’s resolutions, it actually might be a good idea to think about filing for divorce in January. Here are some good reasons to think about putting “Get a Divorce” on the top of your New Year’s resolution list.

It’s Easier on the Kids: waiting until January to file for divorce will likely be much easier on the kids than doing it in November or December. The last thing your kids want to hear during the holidays is that their parents are splitting. Nothing like being a Scrooge and taking away their holiday cheer. This might even cause them to associate what should be a happy time of the year with something very negative for them. Instead, let the holiday spirit carry you through December and into the New Year if possible before filing for divorce. On another note, you might also appreciate avoiding being hounded with questions or by family members who are visiting during the holidays.

It’s Easier on You: November and December are often busy months for many people. They are typically filled with wrapping gifts, baking and spending time with children over their school break. Filing for divorce during that time might prove to be extraordinarily difficult because your divorce attorney will want lots of information from you to begin paperwork. Attending to your divorce paperwork will probably be on the bottom of your to do list. So why not wait until January when all the decorations are put away, the kids are back at school, and your head is clear enough to focus your time and energy on your divorce. Beginning this process in January will give you plenty of time to hopefully get things settled and adjusted before the next holiday season rolls around.

Easier to get into court: the courts tend to be jam-packed right around the holidays due to emergency custody disputes. So if you can wait to file for divorce until January you will have a much easier time getting a court date if need be.Financially Easier: Filing for divorce in January might be more feasible because typically people receive a holiday bonus check at the end of the year. Since divorce can be quite expensive, having those extra funds available in January will help you to get your divorce rolling. On another note, if your spouse is due to get a significant year-end bonus, waiting until after that money is in the bank may help to clarify that you are entitled to a share of it (pending other circumstances, of course).
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In San Diego family law cases “four-way” meetings are commonly used to settle divorce cases. A four-way meeting (commonly referred to as “four-way”) in a divorce action is a face-to-face meeting between the two parties and their respective attorneys. Four-ways are notoriously dreaded by family law litigants because the litigants will be required to sit in a room with their spouse and discuss the “tough issues” which have created an impasse to settlement. Family law attorneys also conduct “five-way” meetings and invite a financial expert (or any other type of expert) to weigh in on the discussion. In preparation for an important four-way there are many things a litigant can do to help the process move along smoothly.

Meet with your Attorney Beforehand: Experienced family law attorneys make it a habit to meet with their clients before any four-way. This meeting provides the client with an opportunity to discuss his or her concerns, goals, and fears with the attorney. In turn, the attorney can provide clarification if needed and ensure the client’s interests are protected and validated. The “pre-meeting” is also a good time to discuss communication preferences and for the attorney to find out if the client expects to communicate on behalf of him/herself or would rather take a “back seat” to the conversation.

Focus on your Goals: During a four-way when the litigants are sitting face-to-face, it is often tempting for one or both parties to be critical, accusatory, or sarcastic. These types of comments can often derail otherwise good progress and deter settlement. Try to focus on the “bigger picture” during the four-way and save any pent up feelings of anger and resentment for another day. It is much easier to convince the other side that what you want is best for him or her as well.

Listen with an Open Mind: Generally attorneys decide to hold a four-way because the parties have reached some impasse in negotiations which the attorneys believe can be resolved. If both you are stuck in the mud on your relative positions then neither of you are working toward a mutually beneficial resolution. Further, it is unlikely that if the issue proceeds to court, either of you will get exactly what you are asking for. This is because courts are generally limited to fixed solutions they can provide. A four-way meeting provides the attorneys and clients a chance to consider alternative solutions and avoid the court system altogether. Many issues litigated in family law cases are much too personal and important to just hand over to a stranger to decide. Certainty and peace of mind are often more valuable than the issue the parties are fighting over.
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Until just recently, there were not any California cases on point regarding whether a licensed professional’s book of business (i.e. list of clients) is something of value that should be considered an asset subject to property division during a divorce proceeding. However, the Fourth Appellate District’s recent decision in In re the Marriage of Mark and Rhonda Finby finally shed light on this issue.

In other jurisdictions, courts have held that licensed professionals’ customer lists generally constitute divisible property during a divorce. In the New York case Moll v. Moll, for example, the Court held that clients serviced by a stockbroker constitute a marital asset because the thing of value is the stockbroker’s personal/professional goodwill. Also in the Florida case Reiss v. Reiss, the Court held that clients that were brought to a new securities firm by a stockbroker constitute a marital asset subject to division.

Similar to the holdings in other jurisdictions described above, in the recently published case In re Marriage of Finby the Fourth District California Appellate Court reversed the trial Court’s decision and found that a book of business that a financial advisor developed during the marriage constitutes an asset that has value and is thus subject to division during a divorce proceeding.As background, in In re Marriage of Finby, the Wife worked as a financial advisor and developed a list of clients (who owned over $192 million in investments) during marriage that she referred to as her “book of business”. Wife left her previous employer and went to work for Wells Fargo, who paid her over $2.8 million as a transitional bonus. Although Wife argued that her book of business did not have value because she could not sell it, the Appellate Court found that it was a valuable asset, reasoning that her book of business was essentially consideration for Wife’s transitional bonus. In other words, Wife was granted the option to earn a significant amount of money based on her work during the marriage of acquiring a book of business. The Court further reasoned that Wife’s ability to transfer her book of business by bringing her clients to Wells Fargo is similar to goodwill, like that which is found in the business of other professions (e.g. lawyers and doctors). As a result, the Court found that the community had an interest in a portion of the transitional bonus and remanded it back to the trial court to determine exactly how much of an interest should be apportioned to Husband.
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Kansas is considering a bill which would arguably eliminate “no-fault” divorce throughout the state. Currently in Kansas, “incompatibility” is a ground for divorce similar to California’s “irreconcilable differences”. “Incompatibility” and “irreconcilable differences” are both general catch-all no-fault grounds for divorce. The new Kansas bill would replace “incompatibility” with eight reasons the couple is seeking a divorce.

Keith Esau, a member of the House Judiciary Committee, introduced the new “fault divorce” bill. He supports the intent behind the bill (which was authored by an anonymous legislator) because he says “No-fault divorce gives people an easy out instead of working at it.” Other members of the Judiciary have spoken out about the bill noting that the government may be overreaching by limiting a couple’s decision to end their relationship. In response, the bill’s supporters argue that married couples receive significant benefits from the state and therefore the state should be able to limit people from entering into marriages temporarily, reaping the benefits from the state, and then getting out.

Kansas divorce attorneys argue that the new bill will only complicate and prolong the divorce process. Such an adversarial requirement – choosing from a list of fault-based grounds as a reason for the divorce – can make a family matter extremely contentious. Divorce attorneys in Kansas question whether the new bill would deter many couples from petitioning for divorce. Whether the divorce process is “easy” or “difficult” for the parties will likely not be the deciding factor when determining whether to file for divorce. Further, many couples are unfamiliar with divorce laws and the process and therefore do not take them into consideration before filing for divorce.

At Bickford Blado & Botros, we strive to make the divorce process as smooth as possible for all of our clients. This includes a strong effort to resolve all issues without court intervention. If California were to consider a bill eliminating “no-fault” divorce, our firm would be concerned about the effect such a law would have on children caught up in the divorce process. Our attorneys encourage clients to resolve all custody and visitation disputes amicably outside of court. By eliminating “no-fault” divorce thereby increasing the tension and conflict in divorce cases, litigants may be less likely to resolve custody disputes quickly and cooperatively. Court intervention and contentious custody battles are rarely in the best interest of the children and will likely make the divorce transition more difficult for them.
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Actress Jane Lynch recently settled her divorce proceedings and is actually on good terms with her ex, according to TMZ. Perhaps the reason for their civilized relationship post-divorce is because they resolved their issues through collaborative divorce thus avoiding the emotionally draining process of litigating divorce proceedings in court.

Many people are familiar with litigation and mediation, but not all are familiar with the process of collaborative divorce. That’s because collaborative divorce is a relatively new form of alternative dispute resolution which was developed in the early 1990s. However, collaborative divorce has grown rapidly since then because of its success in leading to healthier and more positive results throughout the divorce process.Unlike litigation, where the Judge makes the decisions regarding the parties’ divorce based on formulas created by the state, collaborative divorce gives the parties the authority and control to decide for themselves and focus on joint and creative problem solving, similar to mediation. The focus of collaborative divorce is to provide a healthy forum with a team of professions to help the couple reach a settlement that is in the best interest of the child and both parties, all while avoiding the uncertainty, expense and added stress that comes with litigating in court. Collaborative divorce also focuses on the future by teaching the parties to interact with each other in a respectful manner which will carry through their post-divorce relationship and co-parenting.

The expanded team of independent professionals who work as a team to be involved in collaborative divorce typically includes attorneys (each spouse has a trained collaborative attorney), child custody specialists, financial specialists, and licensed mental health professionals. Having so many professionals at your fingertips allows for more guidance and access to information which helps to lead to a more mutually beneficial outcome for everyone involved.

Typically, both spouses and their respective collaborative divorce attorneys sign a “Participation Agreement” which outlines their commitment to settle their divorce in a non-adversarial manner, work on their communication and interaction with one another, act in their children’s best interest to minimize emotional damage, retain neutral experts if necessary, and maintain status quo regarding children and assets throughout the collaborative process. The collaborative process requires both parties to dedicate themselves to working through their divorce with an honest and open mindset in which the welfare of their family is the top priority.

Although divorce is the end of a marriage, collaborative divorce can provide the parties involved with the opportunity for a healthy new start in which they are able to move forward with their lives and avoid the bitterness, anger and resentment that is often associated with a divorce.
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In general, family courts disfavor “bad actors” or spouses who take deliberate steps to disadvantage the other party in anticipation of or during a divorce proceeding. Spouses owe each other the highest duties of good faith and fair dealing – even throughout the divorce process. Specific family law codes were enacted to require spouses to be completely transparent with each other regarding their income, expenses, assets, and debts. This same spirit applies to cases involving disputes over the date of business valuation.

It is not uncommon for the divorce process to drag out for months or even years. The length of the process is dependent on many factors including the complexity of the parties’ estate. When one or both parties own a business that business will likely need to be valued prior to the conclusion of the case. As a default rule, assets (including businesses) are valued as close as possible to the time of trial. In a particularly long divorce case, the business may have a substantially different value at the parties’ date of separation as opposed to the date of trial. One way for a spouse to overcome the general presumption that a business should be valued close to the date of trial is a showing of “bad behavior” by the other spouse.

Failure to Cooperate in Discovery: In divorce cases, family court encourage open discovery of information and documents regarding all assets, including businesses. If the spouse managing the business fails to cooperate in producing pertinent business records the court may decide to value the business at the time proposed by the other spouse. Spouses are not permitted to benefit from confusion intentionally caused regarding the facts of the case.

Commingling Business Operations and Poor Record Keeping: California family courts have also selected an alternative date of valuation in cases where the spouse managing a business so intertwined pre and post-separation operations in poor record keeping that it was impossible to determine the date of separation value even though the court otherwise would have done so.

Breach of Fiduciary Duty: As stated above, spouses owe each other the highest duty of good faith and fair dealing. A violation of that duty can result in a date of valuation aimed to punish the offending spouse. For instance, if a spouse mismanages a business he or she may have to brunt the consequences of the mismanagement entirely as a result of the date of business valuation chosen by the court. California courts have also held that neglecting fiduciary duties could be grounds for an alternative date of valuation.
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