Articles Posted in Custody and Visitation

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resolution came after the second divorce filing by Iverson’s wife, the first having been filed 15 months prior and then withdrawn according to TMZ.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Read more about Kids’ Turn or visit their website.

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

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

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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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