Nancy J. Bickford

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There was a time before 2010 when you could go to Mexico for a few days and all that was required to return was a valid U.S. ID or a birth certificate. That changed in 2010 when the immigration regulations changed and a valid passport was required for all citizens, including children. There are certain exceptions which are not relevant to this blog, but that can be reviewed at U.S. Department of State.

Living in San Diego, travel to Mexico is a regular activity for many families. Whether it is to visit family still living in Mexico, for medical care, or just for pleasure travel, the draw of the beautiful beaches and fresh seafood is very strong.

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At this point almost all of America has seen the video of the adorable 6 year girl talking to her mother about divorce. (If you have not seen it yet, take a few minutes and watch it HERE.) With advice such as “Don’t be a Meanie, be a friend” and lines like, “What if there is just a little bit of persons and we eat them? Then no one will ever be here. Only the monsters in our place. We need everyone to be a person” the viewers can’t help but stop and take notice – plus this wisdom is coming from a little girl so sweet you want to eat her…but in a figurative way of course.

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With school back in full swing for children all around San Diego County, I thought I would focus my blog on a very common occurrence in child custody matter; school enrollment.

When two parents decide to get a divorce, one or both of them will often move out of the family residence. With the cost of living so high in San Diego, that can mean moving out of the neighborhood the parties lived while they were together. If the parents end up living in close proximity, the issue of where their children will be enrolled for school is an easy one. What happens when the parents move to other parts of town or into different school districts? This can create a huge headache for parents and children resulting in hours spent commuting to school and work.

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At some point in your life, you have probably done a double-take upon hearing news of a crazy-sounding child support payment of a celebrity or famous athlete. The media loves to report on these sometimes exorbitant amounts, for the shock value given to amounts of money that many Americans may never even dream of seeing. Here are some reported examples:
• Halle Berry, paying $20,000 per month to ex-boyfriend for 1 daughter • Eddie Murphy, paying $51,000 per month for 1 daughter • Sean “Diddy” Combs, paying $20,000 per month to ex-girlfriend for 1 son and $21,782 per month for now adult son to another ex-girlfriend
• Charlie Sheen, paying $50,000 per month to ex-wife Denise Richards for 2 daughters, and $55,000 to a different ex-wife for 2 sons
• Allen Iverson, owing $8,000 per month to ex-wife • Terrell Owens, owing $120,000 per month in child support and mortgages to 4 different mothers (whether he actually pays is a completely different story…)

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We live an increasingly mobile society, so it’s not unusual for families to find themselves in different parts of the country for a multitude of reasons. So, how is it decided which state gets to make custody and visitation orders over the children in these situations?

The Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”) is a common body of rules adopted by every single state (except Massachusetts). A quick glance at the UCCJEA will quickly resolve the overwhelming majority of these questions. For the purposes of this blog post, the rarely used more appropriate forum exceptions will not be discussed.

There are 4 types of jurisdiction under the UCCJEA: (1) Initial jurisdiction (2) Continuing, Exclusive Jurisdiction (3) Modification Jurisdiction and (4) Emergency Jurisdiction.Initial jurisdiction is described in Family Code section 3421. California has jurisdiction to make an initial child custody determination if California “is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within 6 months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state.” The “home state” is defined as the “state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding. In the case of a child less than six months of age, the term means the state in which the child lived from birth with any of the persons mentioned” by Family Code section 3402.

So if the child was in California for the six months before the first child custody proceeding was commenced, California could assume jurisdiction.

Once California has jurisdiction over the child, under what circumstances does California cede jurisdiction to another state? Under Family Code section 3422, California has continuing, exclusive jurisdiction to make orders over a child unless:

“(1) A court of this state determines that neither the child, nor the child and one parent, nor the child and a person acting as a parent have a significant connection with this state and that substantial evidence is no longer available in this state concerning the child’s care, protection, training, and personal relationships. (2) A court of this state or a court of another state determines that the child, the child’s parents, and any person acting as a parent do not presently reside in this state. ..”

The language of this statute can be intimidating, but it can be boiled down to the following rules of thumb:

1. California will continue to have jurisdiction to make custody and visitation orders if at least one parent remains in California and that parent continues to exercise visitation rights with the child (even if the child lives in another state). This is pursuant to Kumar v. Superior Court.
2. If the neither of the parents nor the child live in California anymore, California no longer has jurisdiction to make orders.

When can California assume jurisdiction and modify a child custody order from another state? Pursuant to Family Code section 3423, California cannot modify another state’s order unless it would have jurisdiction under Family Codes section 3421 AND either of the following circumstances exist:

“(a) The court of the other state determines it no longer has exclusive, continuing jurisdiction under Section 3422 …
(b) A court of this state or a court of the other state determines that the child, the child’s parents, and any person acting as a parent do not presently reside in the other state.”

In other words, if the child has been in California for six months and neither the parents nor the children continue to reside in the state that originally made the last custody order, California can exercise jurisdiction over the child.

Finally, we get to Family Code section 3424, temporary emergency jurisdiction. Temporary emergency jurisdiction trumps all the other rules. California always has jurisdiction if the child is “present in the state and has been abandoned or it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to, or threatened with, mistreatment or abuse.” This is so, even if California would not otherwise have jurisdiction under Family Code sections 3421, 3422, or 3423.
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All Americans, religious or not, are in an undeniable state of excitement upon Pope Francis’ first arrival on U.S. soil. As we are bombarded with media coverage of the visit at every turn, the divorce attorneys here at Bickford Blado & Botros find it a fitting time to discuss annulment in California and the Pope’s recent reform to the Catholic Church’s annulment process, announced by the Pope’s September 2015 Letters motu propio.

An annulment under California law and an annulment in the eyes of the Church are not synonymous. The Catholic Church does not give divorced people permission to remarry. So, if a Catholic person wishes to remarry, the Church must find that their first marriage was void before they are free to do so.In California, there are three legal options available to couples wishing to end or alter their marital status: dissolution (a.k.a. divorce), nullification, and legal separation. Divorce can only be granted where there has been a valid marriage. Nullification can only be granted if there was no valid marriage to begin with. Incest (see CA Family Code §2200), bigamy (see CA Family Code §2201), and lack of a lawful marriage contract (requires both issuance of a license and solemnization, see CA Family Code §300) would be grounds for a “void” marriage, one that will never be valid in the eyes of the law. Minority (under the age of 18 in CA), prior existing marriage, unsound mind, fraud, force, and physical incapacity are factors leading to marriages that are “voidable” (see CA Family Code §2211) meaning that they are valid in the eyes of the law until the parties seek and receive a judgment of nullification from a court.

For more information on grounds for annulment in California, see our April 1, 2015 blog titled, “Do I Qualify for an Annulment.”

For Catholics wishing to remarry, even after receiving a legal judgment of dissolution or nullification, they must still seek a decree of nullity from the Church. This process has faced a lot of criticism throughout the world for being a slow, expensive, and difficult process, and in some countries it is even considered basically impossible to do. So, Pope Francis’ new reform is meant to make the Catholic annulment process quicker and more accessible especially to the Church’s low-income members.

The most notable changes to the Church’s nullification process are as follows:
1. Now only one judgment of nullification is required. Automatic appeal to a second tribunal is removed, but appeal still remains an option in contested cases;
2. The Bishop is named as the principal judge in his diocese, who is able to designate this responsibility to a cleric if so desired;
3. Creation and addition of a third, quicker, process for cases where evidence of nullity is especially clear, to be decided by the Bishop himself. There are a number of situations where the new process can be used. Some examples include cases involving very brief marriage, existence of an extramarital affair at time of wedding or very soon thereafter, malicious concealment of things like infertility or a serious contagious disease, and more; and 4. Reintroduction of the ability to appeal the Bishop’s decision to the metropolitan bishop (or the Metropolitan Bishop’s decision to the Senior Suffragan Bishop).

Regardless of religious or cultural background, dissolution and annulment can be difficult for anyone. There are strict legal requirements and specific timing requirements associated with these requests. Our team of experienced attorneys can provide you the outstanding counsel you may need during these difficult times and will ensure that your needs are met as we help you navigate through the divorce or annulment process.
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In Marriage of Davis, the Supreme Court of California was asked to decide the following question: can spouses truly be “living separate and apart” within the meaning of Family Code section 771(a) if they share the same residence? The Court, in a unanimous decision, held that spouses cannot be separated if they share the same residence.

In Davis, the parties seem to agree that their marriage was “over” sometime around June of 2006. However, they continued to reside together, for the sake of their children, until 2011. The wife contended that the date of separation was in 2006, while Husband, relying on the fact that wife did not move out until 2011, argued a date of separation in 2011.The Court’s decision came down to statutory interpretation. The Court held that, on its face, the plain meaning of the term “living separate and apart” required a physical separation. To the extent there was some ambiguity in the statute, the Court noted that the term “living separate and apart” had not been altered in subsequent iterations of the statute since 1870. The Court also noted that, in 1870, “living separate and apart” required that the wife establish “her own place of residence.”

The Court did not address, and therefore did not foreclose the possibility, that spouses could live separate and apart in separate residences while “they continued to literally share one roof.” For now, what this means exactly is up to the lower courts, or possibly the legislature.

Determining the date of separation can be critically important in many family law cases. As the community exists only between the date of marriage and the date of separation, it is only after the parties separate that they begin to accumulate separate property. If the parties aren’t separated, the spouse will, for instance, continue to have a one-half interest in the other spouse’s earnings. Over the course of many years, this can make a difference of tens or even hundreds of thousands of dollars. The date of separation is also important in spousal support, as the duration of spousal support heavily depends upon the length of the marriage.

If you have questions about what the date of separation is in your case, it is important that you discuss your rights with an experienced family law attorney.
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In recent years, same-sex marriage has undergone a radical transformation in California and in the rest of the nation. Bickford Blado & Botros are well aware of these important changes in the law.

On June 16, 2008, the Supreme Court of California held that California’s same-sex marriage ban was not permitted under the California constitution. On November 5, 2008, however, the California electorate amended the California constitution through Proposition 8. This reinstated the same-sex marriage ban in California.

On August 4, 2010, United States District Court Chief Judge Vaughn Walker declared that Proposition 8 was unconstitutional under the Federal (not California) constitution. However, through appeal, the order was stayed until the United States Supreme Court reinstated Judge Walker’s ruling on technical grounds in Hollingsworth v. Perry. The Hollingsworth v. Perry opinion was issued on June 26, 2013 and allowed same-sex marriages to resume in California.On that same date, the United States Supreme Court issued the landmark Windsor v. United States decision, striking down language in the Defense of Marriage Act (DOMA) that limited the definition of marriage to opposite-sex couples. Before Windsor v. United States, same-sex couples throughout the nation were deprived of many federal benefits opposite sex couples enjoyed. Justice Kennedy, describing some of these benefits, wrote as follows in the majority opinion:

“Under DOMA, same-sex married couples have their lives burdened, by reason of government decree, in visible and public ways. By its great reach, DOMA touches many aspects of married and family life, from the mundane to the profound. It prevents same-sex married couples from obtaining government healthcare benefits they would otherwise receive… It deprives them of the Bankruptcy Code’s special protections for domestic-support obligations … It forces them to follow a complicated procedure to file their state and federal taxes jointly … It prohibits them from being buried together in veterans’ cemeteries.”

After the Windsor decision, same-sex married couples did not face these burdens in California or other states that allowed same-sex marriage. However, it was not until June 26, 2015 that the Supreme Court ruled that all same-sex marriage bans were unconstitutional in Obergefell v. Hodges. This has a practical effect for same-sex couples in California that were already married: they can now freely move to any other state and that state will be required to recognize the marriage. This was an unsettled issue until Obergefell.

There are still unique issues that same-sex couples face. For example, what happens when a same-sex couple had a domestic partnership and then married after it became legal to do so in California? Does this couple have to both terminate the domestic partnership and dissolve the marriage? In cases like this, what is the length of the “marriage” for purposes of spousal support?
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There may have been a general consensus that the stress of a relationship ending and divorce are damaging to your health, but those effects do not have a long term impact. Researchers from the University College London institute of education, London School of Economics and London School of Hygiene and Tropical Medicine have studied the issue and have found that “transitions such as separation and divorce do not have a long-term effect.”

While this may not be great news while you are struggling through a divorce, it shows that the pain of ending a marriage, especially an unhealthy one, has no lasting effect on you. In fact, this study cites previous research which “suggests that individuals in poor-quality couple relationships have worse health than those in happier ones and those who are unhappily married are at greater risk of poor health than divorced people.” So, in other words, the move to end an unhealthy marriage has health benefits.Regardless, when going through a divorce you need a knowledgeable and caring attorney to help you navigate both the complexities of family law and who knows the emotional toll a divorce can take on a person. A knowledgeable attorney can ease the burden of a divorce by providing accurate information so you are not blindsided during court proceedings.
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San Diego is home to a great many families who serve our country in the armed forces. However, as is often the case, members of the military are deployed for periods of time away from home and separated from their families. Deployment is stressful for families, but takes on an added dimension after a divorce when parties have crafted a parenting plan for their child. What happens to your parenting plan when you are deployed overseas?

The State of California has made it a matter of public policy to ensure that a parent who is unable to follow a parenting plan due to their deployment is protected. California Family Code Section 3047 states, in part, that being deployed for military purposes shall not be a reason for a modification of a parenting plan on its own. It further states that upon a parent’s return from deployment there is a presumption that the parties’ return to the pre-deployment parenting plan. Any changes to that plan would require a showing that a reversion in not in the best interests of the child.The courts have recently reiterated the importance of Section 3047 in Marriage of E.U. and J.E. which requires both a speedy resolution to custody matters for a parent returning from deployment and placing the initial showing on the non-deployed parent to show why a reversion is not in the child’s best interest. This ruling strengthens a deployed parent’s rights upon their return.
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