Articles Posted in Custody and Visitation

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California is considered a no-fault divorce state, meaning the reason a couple is divorcing is completely irrelevant to the court in whether the court will grant a divorce. Neither party has to prove the other was at fault for the break down of the marriage. There is even a statute that makes evidence of specific acts of misconduct is improper and inadmissible. It does not matter to the court whether you are requesting a divorce from your spouse because he/she is abusive toward you, uses drugs, is an alcoholic, cheats and/or has inappropriate Facebook relationships, works too much or that you have grown tired of your spouse. As long as one party alleges “irreconcilable differences”, meaning marital problems that cannot be resolved, the court will grant a request for divorce.

The other ground for divorce in California is “incurable insanity.” As a San Diego divorce attorney, although some of my clients think their spouse is “insane”, I never had a case where the “insanity” reached a level of “incurable insanity.”

So while fault has no impact on whether or not a court will grant a divorce, three areas of “fault” – domestic violence, drug use and alcoholism – can have a major impact on how the court decides the issues of custody, visitation and spousal support.

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TMZ.com reports that Charlie Sheen and Brooke Mueller have reached a custody agreement, which includes mutual drug testing. In the case of Sheen and Mueller, it appears the parties volunteered to submit to drug tests. But what if they didn’t volunteer to do so? Could the court order one, or both of them, to take a drug test?

Family Code section 3041.5, provides that “[i]n any custody or visitation proceeding…the court may order any person who is seeking custody of, or visitation with, a child who is the subject of the proceeding to undergo testing for the illegal use of controlled substances and the use of alcohol if there is a judicial determination based upon a preponderance of evidence that there is the habitual, frequent, or continual illegal use of controlled substances or the habitual or continual abuse of alcohol by the parent…”

Thus, the court may order a drug test, but only if it first determines, by a preponderance of evidence, that there is the habitual, frequent, or continual illegal use of controlled substances. Among the ways to show this is a conviction within the last five years for the illegal use or possession of a controlled substance. Family Code section 3041.5.

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Last month, recording artist Ashlee Simpson filed for divorce from Fall Out Boy band member Pete Wentz. The parties have a 2 year old son, Bronx.

According to People.com, in Simpson’s Petition for Dissolution of Marriage she requested sole custody of their son with visitation rights to Wentz. On Tuesday, Wentz filed his Response requesting joint custody of their son. While there is speculation that this may mean Simpson and Wentz are headed for a custody battle, my experience as a San Diego divorce attorney tells me that isn’t necessarily the case.

One of the first steps in the divorce process is to file the Petition or, depending on what side of the case you are on, the Response. When there are children involved, the Petition and Response are how the parties first tell the court what type of custody and visitation order they would like. The options include: legal custody to the Petitioner or Respondent or joint legal custody, physical custody to the Petitioner or Respondent or joint physical custody, and child visitation to the Petitioner or Respondent. Because the Petition and Response are forms, once a party determines which option is best, they simply check the appropriate box. (Of course, this is just what is being requested, and not necessarily what the court will ultimately order.)

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It’s official, Kelsey and Camille Grammer are divorced. Reflecting on the divorce process, as well as what is to come, Camille told US Magazine: “I am grateful to my family and friends who have stood by me through this time – I will never forget their love and support. What I most hope is that Kelsey and I can improve our communications and truly co-parent our two wonderful children…”

As a family law attorney, many of my clients face the challenge of co-parenting after a divorce. Sometimes, a court will grant one parent sole legal custody, in which case that parent is solely responsible for making decisions relating to the minor child’s care, upbringing, educational training, religious training, social and recreational activities, medical care and treatment, and treatment of emotional needs. Other times, parents will share joint legal custody. When both parents are responsible for making decisions relating to their child’s welfare, and they need to make those decisions together, challenges can arise.

While some might think that parents inherently know how to co-parent after a divorce, realistically, it’s a learned skill. Think back to when you brought your son or daughter home from the hospital. Over those first few days, weeks and months, you had to learn how to be a parent; you had to learn how to change a diaper, what to feed the baby, and what her different cries meant. In this same way, co-parenting after a divorce is a skill that needs to be learned. You will need to learn how to put your relationship issues aside, and work together for the benefit of your children.

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