Articles Posted in Divorce and Children

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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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After ten years of marriage, actress Gwyneth Paltrow announced her separation from Coldplay star Chris Martin. According to Paltrow’s website, the couple was working hard (separately and together) on their marriage for the past year without any success. Although neither party has officially filed divorce paperwork, the media speculates that a divorce is well underway. Some celebrities such as Kim Kardashian have litigated their personal family law matters in the public eye. However, more private celebrities tend to keep their personal issues out of the public court system.

Private mediation is a great option for celebrities who want to keep the details of their divorce confidential. Although private mediators are available for any family law litigants, not just celebrities, they tend to be too expensive for most cases. Private mediators in San Diego often charge between $400 and $750 per hour for their services. In addition, when you factor into the cost of private mediation the hourly rate for two attorneys (at least one for each party), the cost of private mediation can cost each party thousands of dollars per day. Some cases inevitably drag on for months or even years because the parties have reached an impasse on one or more issues. In those instances, the parties might agree that private mediation is worth the cost.

The media is buzzing with speculation regarding the Paltrow-Martin split. A lot of the dialogue surrounding this divorce is focused on how simple the dissolution process can be when the parties agree to avoid litigation. Media outlets claim Paltrow and Martin will simply put a rubber stamp on their premarital agreement and end their case. However, the divorce process is not that easy – even for celebrities. In California, family law litigants are required to exchange disclosure documents (consisting of an Income and Expense Declaration and Schedule of Assets and Debts) at the outset of the case. In cases where the parties’ income and/or assets are complex, the exchange of disclosure documents can be a lengthy and expensive process. Inevitably, celebrities will spend a significant amount of money up front on attorney fees incurred for the preparation of their disclosure documents.

In addition to spending large sums of money and a lot of time in order to adequately complete their disclosure documents, celebrities will also inevitably require extremely specific and complicated settlement agreements – even if a valid and uncontested premarital agreement is in place. Each divorce case must end either by trial or through the filing of an agreed-upon judgment. Preparation of the judgment will likely require multiple drafts and settlement conferences between attorneys. Due to the complexity of celebrity divorce cases, it is not uncommon for celebrities to walk away from their marriages with six figure legal bills.
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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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A divorce may be hands down one of the most difficult things a person can go through. Just like the loss of life, a divorce is a loss of a relationship, the loss of stability, and the loss of life as one has known it to be. Consequently, individuals going through a divorce typically experience some or all of what is known as the five stages of grief. These stages include: (1) denial; (2) anger; (3) bargaining; (4) depression; and (5) acceptance.

Denial:
In the denial stage of grief, an individual going through a divorce is typically attempting to deny the reality of their situation and begins to develop a false, preferable reality. Children under the age of 6 years old are typically not affected by their parents experiencing the “denial” stage of grief because they believe that the situation is only temporary. Grade school children may be affected in the sense that they will come up with their own “magical” explanation for what they perceive is going on. Teenagers are affected differently in that they tend to want to act as the caretaker for the parent who is experiencing the denial stage.

Anger:
In the anger stage of grief, an individual going through a divorce recognizes that their sense of denial cannot continue and instead they manifest anger with themselves or with others, especially those who are close to them. Children under the age of 6 years old are significantly affected by their parent(s) experiencing the anger stage because they tend to assume that the anger is directed towards them. Young children especially think that their parents’ issues are their issues too. Grade school children are the most developmentally vulnerable to alienation while their parent(s) are experiencing the anger stage of grief. They tend to form an alignment with one parent. Teenagers are affected in that they tend to identify with the parent who has been wronged in the divorce. Teenagers begin to form their own opinions and may reject the anger by trying to stay away from it.

Bargaining:
In the bargaining stage of grief, an individual going through a divorce typically hopes that they can somehow avoid or undo the cause of the grief. This stage of grief has the most differences in its affect on children, based on their age group. Children under the age of 6 years old are typically aware of who is or is no bargaining. They may find it frightening because they perceive the parent, who they are so dependent on, as being weak. School age children, on the other hand, get excited about bargaining because they tend to believe in the chance of reunification. Teenagers try to act as a mediator. Teenagers also tend to distance themselves from the weaker parent and align with the parent who will provide them with what they want.

Depression:
In the depression stage of grief, an individual going through a divorce begins to understand the certainty of their loss and may become silent and spend much of their time crying and upset. Surprisingly, children under the age of 6 years old are not typically impacted by their parent(s) experiencing depression. Grade school children, however understand it and expect the other parent to “rescue” the depressed parent. Teenagers, on the other hand, perceive their parent’s depression to be dangerous and typically don’t want any part of it.

Acceptance:
In the acceptance stage of grief, an individual going through a divorce begins to come to terms with their loss and typically has a more objective view and stable, calm mindset. Children under the age of 6 years old are positively affected by their parent(s) going through the acceptance stage because they sense the hope and positivity. Teenagers, however, want to get the most of their parents who experiencing this newfound positivity and typically seek minimal supervision.

Although not everyone experiences the five stages of divorce (or experiences them in a different order) it is important to remember that how a parent deals with the divorce can have a direct correlation to how the child deals with the divorce, depending on the child’s age.
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Those born and raised in the United States tend to have the understanding that they are free to say anything they wish behind the protections of the First Amendment. However, courts have put a number of restrictions on free speech such as prohibitions against defamation, obscenity, and harassment. In a recent family law case involving basketball star Steve Nash, family courts placed another restriction on the First Amendment. In the Nash case, the Arizona Court of Appeals placed a muzzle on social media communications in family law proceedings.

In nearly every child custody and/or visitation order the judge (or the parties through agreement) will include the following language:

Neither parent shall make negative statements about the other in the presence 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.

Not surprisingly, this language was included in the Nash joint custody agreement. Following the issuance of this standard admonition, Nash’s ex-wife, Alejandra Amarilla, was alleged to have made disparaging remarks about him through her social media account, Twitter. As a result, Nash petitioned the court to intervene arguing that his former spouse was violating the non-disparaging clause. Amarilla defended her actions citing the First Amendment’s freedom of speech clause in support of her case. The First Amendment has frequently been expanded to include “speech” in the form of electronic communication.

In the Nash case, the court held that Ms. Amarilla’s conduct was not protected by the First Amendment and made an order prohibiting both parties from making disparaging comments about each other on social media sites. The court based its decision on the fact that Steve Nash is a highly public figure and therefore the comments made by his former wife were likely to reach their children. The court also noted that social media comments or postings cannot be adequately controlled or maintained to prevent exposure of improper conduct to the children. Ms. Amarilla appealed the trial court’s ruling and the Arizona Court of Appeals determined that the trial court did not abuse its discretion and upheld the earlier ruling.

Since the Nash case was recently decided, its effect on other family law matters is unknown. However, a good argument exists for the position that the Nash case is inapplicable in ordinary divorce matters because the parties’ social media sites are not as prolific as those of celebrities.
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The moment a divorce commences, automatic temporary restraining orders (“ATROS”) take effect and they remain in effect until entry of the final judgment. Specifically, the Petitioner is bound by the ATROS once he or she files the Petition and Summons and the Respondent is bound by them after he or she is served with the Petition and Summons. The ATROS can actually be found on the second page of the Summons.

According to California Family Code Section 2040(a), these ATROS restrain both parties from doing the following:
1) Removing their minor children from the state without prior written consent from the other party or an order from the court;
2) Transferring, encumbering, hypothecating, concealing, or in any way disposing of any real or personal property (even separate property) without the other party’s written consent or an order from the court. There are, however, exceptions if the action is within the usual course of business, for the necessities of life, or to pay reasonable attorney fees;
3) Cashing, borrowing against, canceling, transferring, disposing of, or changing the beneficiaries of any insurance or other coverage (i.e. life, health, automobile, disability, etc.) held for the benefit of the parties and their children for whom support may be ordered; and 4) Creating a nonprobate transfer or modifying a nonprobate transfer in a manner that affects the disposition of property subject to the transfer, without the other party’s written consent an order from the court.

Despite being aware of and bound by the ATROS, parties going through a divorce often ignore them, thus disregarding the potential penalties for their violation. Perhaps if the parties were aware of how steep the penalties for violation of the ATROS can be, they would think twice before violating them.

Violation of the ATROS can result in some pretty hefty fines and even time behind bars. (See Family Code Section 233). Specifically, Penal Code Section 278.5 provides that “every person who takes, entices away, keeps, withholds, or conceals a child and maliciously deprives a lawful custodian of a right to custody, or a person of a right to visitation, shall be punished by imprisonment in a county jail not exceeding one year, a fine not exceeding one thousand dollars ($1,000), or both that fine and imprisonment…” Willful and knowing violators of any of the other orders may also be subject to a $1,000 fine, imprisonment or both pursuant to Penal Code Section 273.6.
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Throughout San Diego County, custody and visitation is a highly litigated family law issue which causes turmoil within local families. The court system and family law attorneys encourage parents to take whatever steps necessary to ease their children through the divorce process. One of the most important steps a parent can take to help their children through the transitional period of a divorce is to have a conversation with them early to explain what is going on. The nature and depth of the conversation will depend on the age and maturity of the children involved; however, it is always important to reassure children of their security and stability within the family. The following is a list of questions commonly posed by parents who have recently decided to divorce.

Q: Who should tell the children about the divorce?
A: If possible, both parents. It is important to present a “united front” right from the onset when initially discussing divorce. This can reassure the children that they will still have both of their parents and are still part of a family unit. Parents can also brainstorm possible questions their children may ask and come up with agreed-upon answers.

Q: When should we tell the children about the divorce?
A: As soon as possible after you have conclusively decided to get a divorce.

Q: What should we say to the children about the divorce?
A: The truth. While explaining to the children why their parents are separating it is imperative that both parents refrain from any comments which might turn the children against the other parent. An honest explanation regarding the reason for the divorce will encourage the children to come to their parents with their feelings and thoughts on the subject. The first conversation regarding the divorce is also a good time to explain to the children that it is normal to feel upset and sad.

Q: How can we minimize behavioral issues during this transition?
A: Stick to the program. Children experience many significant changes in their lives when their parents are going through the divorce process. Therefore, maintaining established parenting styles is crucial for encouraging behavioral stability. Although tempting, parents should avoid overcompensating their children with gifts or relaxed discipline. This continuation of routine will prove to your children that not everything will change as a result of the divorce.
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In family law, especially cases involving custody and visitation disputes, it can be tempting for litigants to make false allegations in order to get ahead in their cases. However, false accusations have no place in family law and in fact may be severely punished. San Diego family law judges take allegations of child abuse seriously and tend to err on the side of caution if there is any doubt to an allegation of abuse. There are three main statues which stand to deter litigation tactics involving false allegations of abuse by providing the following remedies to the falsely accused.Sanctions: Family Code section 3027 provides family courts with authority to impose monetary sanctions upon any witness, party or party’s attorney who knowingly makes false child abuse or neglect accusations during custody proceedings. The amount of the sanctions imposed will be calculated based on all costs incurred by the accused as a direct result of defending the accusation plus fees and cost associated with bringing the sanction request. It is important to note that the court may impose monetary sanctions in addition to (not in lieu of) any additional remedies requested. The requesting party, however, must be sure to bring their claim for sanctions within a reasonable time of their exoneration.

Supervised Visitation or Limited Custody/Visitation: Family Code section 3027.5 provides that the court may order supervised visitation or limit a parent’s time with the child if the court finds that that parent made knowingly false accusations of child abuse against the other parent. In order to prevail on a claim brought under this code section, the accused parent must also show that the accusations were made with the intent to interfere with the other parent’s lawful contact with the child (particularly during the pendency of a custody proceeding). The court will also take into consideration whether supervised visitation or limited custody/visitation is necessary to protect the child’s health, safety, and welfare balanced against the child’s interest to have frequent and continuing contact with both parents.

Mandatory Reconsideration of Custody Order: A parent falsely accused of child abuse or neglect has the option of pursuing criminal charges against the accusing parent. If the accusing parent is convicted of a crime in connection with false allegations of child against the other parent, the falsely accused parent may move for reconsideration of the existing child custody order. A parent’s motion for reconsideration of such an order must be granted under these circumstances.
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During a dissolution case, also known as a divorce, you will likely be required to attend a court hearing at some point during the process. Regardless of what type of hearing it is, getting oriented with the family law court and properly preparing yourself for your day in court is half the battle.

Mental Preparation

Whether or not you are being represented by an attorney, it is important that you come to court well-rested and ready to participate in the proceedings with a clear mind. Family Court hearings can be quite stressful and emotional draining so getting the proper amount of rest will surely help your mental well-being.

If you have not been to the courthouse before, be sure to get proper directions, figure out how long it will take you to get there and look into the parking facilities. Knowing where you are going and giving yourself enough time to get there will help alleviate some of the stress that you will inevitably be feeling. Also, it is important to make sure that you have any necessary paperwork ready to go the night before so that you don’t have to worry about rushing on the morning of your court date.

What to Bring and What Not to Bring With You

Courts require payment by the parties for the Court Reporter on certain days and for certain hearings. Be sure to have your checkbook with you when you come to court so that you are prepared if a payment needs to be made for your share of the Court Reporter’s charges.

On the other hand, be sure to leave anything that might be considered a weapon at home as most courthouses have metal detectors at the front door.

What to Do When You Arrive

If you are represented by legal counsel make arrangements with your attorney where to meet once you get to court. Typically, attorneys will meet their clients in the hallway outside of the courtroom where your hearing is taking place. If you are not currently represented by legal counsel then go directly to the courtroom designated for your hearing. A calendar will be posted right outside of the courtroom which will list the cases scheduled for that day. Confirm that your case is listed on the calendar to make sure that you are indeed at the right courtroom.

Once you are inside the courtroom you might be interested in orienting yourself with the court personnel and order of events. For detailed information, please read “How to Prepare for Your Day in Family Law Court: Part II”, which will be posted March 18, 2014.
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For most litigants in San Diego, divorce is a heart-breaking and devastating process. Much of the fear, anxiety and turmoil are created by the many “unknowns” a divorcing spouse faces. If a person is getting divorced for the first time, he or she generally has no idea what to expect with regard to finances and child custody and visitation. Local divorce attorneys can provide a road map of the divorce process but cannot offer solid guarantees for the future. In the beginning of a divorce case where custody and visitation is at issue, many parents ask: “What is normal?” Although there is no general consensus of “normal” in family law, a number of arrangements have become “typical”.

With the holidays approaching many divorcing parents are anxious to find out how that first holiday season should be handled. Every set of facts is unique and how the holidays proceed is generally dependent on the relationship between the parties. In some cases the parents are proceeding with an amicable divorce and agree to share the holidays together with their children. Although this might not be the most comfortable arrangement for the parents, it reinforces stability for the children during this tumultuous time. If the parents cannot get along, it may not be advisable to spend holidays together in the presence of the children. Another alternative for parties capable of working productively together is to share the children on each holiday. For example, the children might spend Christmas morning with their mother opening gifts and then later go with their father to enjoy Christmas dinner.

If you are a parent looking to arrange a more long-term child-sharing schedule for the holidays, you might consider the following options:

Alternate Holidays Every Year

Frequently parents set up an “alternating system” in order to fairly distribute holiday time. In this type of system one parent will have the children on certain holidays (for example Christmas and Easter) in even numbered years and have the children on the other holidays (for example Thanksgiving and New Year’s Eve) in odd numbered years. The other parent will have the children on the same holidays alternating years. By breaking up the holidays the parties ensure they both have some holiday time with the children each year.

Exchange Holidays Within the Year

In some cases, the parties have different holiday priorities and are able to agree to a holiday schedule wherein they have time with the children on all holidays which are important to them every year. This is possible in situations where one parent celebrates different holidays (Hanukkah) than the other (Christmas). Some families emphasize Christmas Eve while others focus on Christmas Day. The most obvious example of this option would be where the children spend Mother’s Day with their mother, and Father’s Day with their father. Parents are encouraged to discuss these possibilities when determining an ongoing holiday schedule. In all cases, if a holiday schedule exists, it does take precedent over the general timeshare plan.
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