Nancy J. Bickford

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If you open up a fresh copy of the 2014 Family Law Code and do some heavy reading, you might notice the modifications to Section 3040, 4057, 7601, and 8617 as well as the addition of Section 4052.5. Back in October 2013 new legislation was signed which now allows California Courts to recognize that children can have more than two legal parents. Although conservative groups viewed this new legislation as an attack on the traditional family structure, the purpose of these new and modified sections is to address changes in family structure that are often present in California. These include the “not so uncommon anymore” situation of a same-sex couple having a child with a biological parent of the opposite sex.

The basis for the legislation apparently arose as a reaction to a 2011 court decision (In re M.C (2011) 195 Cal.App.4th 197) that involved a same-sex couple who ended their relationship for a brief amount of time. One of the women conceived a child with a man (and began raising that child with the man) prior to resuming her relationship with the other woman, whom she ended up marrying shortly thereafter. After a fight put one of the women in the hospital and the other in jail, the child was sent to foster care because although all three adults seemed to meet the criteria to be a legal parent of the child, the biological father did not have parental rights under the law at the time. The court reasoned that it was prohibited from recognizing that more than two people may claim a right to parentage.

In response to the Court’s ruling in In re M.C., the Family Code was modified to give Courts the authority to expand the interpretation of the parent and child relationship. Specifically, Family Code Section 7601 provides that Courts are not precluded from making “a finding that a child has a parent and child relationship with more than two parents.”Allowing the Courts to recognize that a child may have three or more legal parents is quite significant for purposes allocating custody and financial responsibility during and after a dissolution proceeding. With regard to the allocation of custody and visitation, Family Code Section 3040 has also been modified to provide for the following: “In cases where a child has more than two parents, the court shall allocate custody and visitation among the parents based on the best interest of the child, including, but not limited to, addressing the child’s need for continuity and stability by preserving established patterns of care and emotional bonds. The court may order that not all parents share legal or physical custody of the child if the court finds that it would not be in the best interest of the child as provided in Sections 3011 and 3020.” [emphasis added].

As a result of this modification, Courts have the ability to prevent children from being separated from an adult that he or she has always known as a “parent” simply because of a technicality in the law. This modified section allows Courts to place the interest of the children first by giving them the authority to protect children from the emotional and psychological impact of being separated from one of his or her parents. Thus, rather than having to place a child in foster care, the Courts are now able to consider the presence of someone who has played a vital parental role in the child’s life.
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In a recent divorce between Black Keys’ singer, Dan Auerbach, and his former wife, Stephanie Gonis, the parties divided an unusual asset – a lock of Bob Dylan’s hair. This is a perfect example of the family law principle that all property must be divided upon dissolution. In the Auerbach-Gonis divorce, the parties owned a variety of typical assets such as real property, vehicles, and cash; however, all property – including valuable locks of hair must be divided at the time of judgment.

In the beginning of each divorce case, the parties are required to disclose and characterize all property either party has an interest in. “Property” is defined in California Civil Code Section 654 as, “the ownership of a thing is the right of one or more persons to possess and use it to the exclusion of others…the thing of which there may be ownership is called property”. Property can be further characterized as “real” property and “personal” property. Generally in dissolution proceedings, real estate (including the marital residence and vacation homes) are the only “real” property divided. All other property is generally “personal” property.Ultimately Gonis was awarded Bob Dylan’s hair pursuant to the Auerbach-Gonis judgment. According to the California Family Code and applicable California case law, the community estate must be divided equally between the parties. The community estate consists of all the community property acquired by the parties from the date of marriage to the date of separation. In some circumstances, although the estate as a whole can be divided equally in terms of the value each party receives, all assets may not be divisible. It is important to note that all property, including the separate property of both spouses, must be disclosed. Separate property is defined all property acquired by either spouse prior to marriage, after separation, or during marriage by gift, bequest, or devise. If property is determined to be the separate property of one spouse, that property will be confirmed to that spouse in the final judgment without offset for its value.

In a case where a community asset cannot simply be divided in half and distributed to the parties, such as a lock of hair, the parties will have two options. First, the parties can agree on the value of the indivisible item and offset the division of other assets to account for one party receiving the asset in full. Second, the parties can agree to sell the indivisible item and split the proceeds equally. If an asset is easily divisible, such as the funds in a bank account, the parties can each take one-half of the asset without the need for a valuation or sale.
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It seems like we all spend so long trying to build good credit over the years just for it to be ruined with a snap of the fingers. A divorce doesn’t have to be the culprit in ruining your credit. If you take certain measures while going through a divorce, you can help protect your credit rather than sending it and your financial future to its demise.

Review Your Credit Report
The first step in protecting your credit is to get a copy of your credit report. Once you have a copy of your report it is important to thoroughly review it so that you are well aware of all individual and joint accounts. Perhaps you forgot about a department store credit card that you opened quite some time ago. Reviewing your credit report will get you up to speed on all of your accounts.

Closely Monitor Joint AccountsAfter reviewing your credit report and refreshing your memory of all of your accounts, the next step is to closely monitor them, especially the joint accounts. During or after the divorce, transferring or closing accounts might not occur as quickly as you hope. During this time, it is important that you monitor those accounts closely and catch any missed payments (even if your ex-spouse has agree to make the payment) before your credit gets damaged. If you can’t access the account statements online it would behoove you to request the lender to send you a copy of the account statement each month.

Be Budget Savvy
During a divorce, many people tend to feel like they are drowning financially, either due to various expenses related to the divorce or from frivolous spending habits as a result of the emotional affect that divorce tends to have. The best thing to do in order to tackle the financial woes associated with divorce is to create, implement and track a post-divorce budget that takes into account your income and all of your expenses. Being budget conscious will help you to not allow your expenses to exceed your income and hopefully leave you with a whole lot less debt.

Be Mindful of Authorized Users on Credit Cards
After reviewing your credit report you will be able to note which accounts your spouse is listed on as an authorized user. Being listed as an authorized user means that the person has permission to use the credit card to rack up charged but that he or she is not responsible for paying the bill. This is different than joint credit in which both parties are responsible for paying. If you notice that your ex-spouse is listed as an authorized user, it might be worth it to give the credit card company a call and remove his or her name to avoid any additional problems.

Although divorces can be extremely emotionally draining and time consuming, it’s crucial to your future that you do not to push your finances to the back burner. Being proactive about managing your credit during your divorce will surely help you post-divorce.
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In a recent controversial New Jersey case, Rachel Canning filed a lawsuit against her parents requesting child support. Canning, a high school senior, alleges her parents kicked her out of their house after she turned 18 years old. Through her attorney, Canning is requesting financial support and an order for her parents to pay her college tuition. Canning’s parents dispute her allegations that she was forced out of their home and argue that Canning left home voluntarily. Apparently a dispute arose between Canning and her parents regarding the rules she should be required to follow while living at home. Essentially Canning is refusing to live at home with her parents who welcome her home but asking for her parents to pay for alternative living arrangements.

Canning is currently living with her best friend’s family. Further, Canning’s best friend’s father is funding her lawsuit against her parents by paying for her attorney fees. The New Jersey judge assigned to the case held that Canning did not have the legal right to request support from her parents and denied her motion. Generally, in California, the custodial parent petition’s the family court to request child support from the other parent. The recent New Jersey case is so controversial because an adult child is suing her parents for financial support in complete contrast to the traditional paradigm.In California child support cases, many parents ask if they have a legal obligation to support their child financially after the child reaches the age of 18. Pursuant to the California Family Code, unless there is an agreement by the parties or an incapacitated adult child meeting various requirements, a parent’s statutory duty to provide child support ends upon the child’s marriage, death, emancipation, at age 19, or at age 18 and is not attending high school full time – whichever occurs first. This means that in some cases, a parent is obligated to support a child after that child reaches the age of majority (18) as long as the child is still a full-time high school student. The reason for this particular provision is that some children start school later than others or are held back a grade. In those cases, the child will graduate high school at age 19 rather than age 18.

It is important to note that there are a variety of cases and statues which specifically deal with the support of an adult child who suffers from an incapacitating disability. These are fact driven cases and should be handled by a Certified Family Law Specialist.
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“Real Housewives of Beverly Hills” star, Brandi Glanville, shared with the world on twitter that her ex, Eddie Cibrian, who is now married to singer LeAnn Rimes, is allegedly asking her to pay child support for their two kids. But could this even be a possibility? Word on the street is that men are the only ones on the hook for child support after a divorce. Well, try again. Being a woman isn’t the “easy card” out of paying child support.California divorce attorneys are actually seeing an increase in the number of women who are required to pay child support to their ex-husband. This growth represents an apparent reversal of traditional divorce roles and may seem shocking to some people. However, in the last few decades there has been a shift in society where we are seeing more women working, landing high-paying jobs and achieving great success in their careers. Consequently, more women are being labeled as the primary breadwinner in their marriages rather than their male counterpart. More fathers, on the other hand, are acting as the primary caretakers of the children. As a result, more women are financially exposed to be on the hook for child support if the marriage results in a divorce. Child support orders are reflecting these changes by showing an increase in women being ordered to pay child support.

So what exactly is child support? Child support is money that a court orders a parent to pay each month, which is intended to help cover the child’s living expenses, including food, clothing, medical care, education, etc. In California, every parent has a duty to financially support his or her child. If the parents cannot agree on a child support amount, the court will make a child support order. In California, the court typically bases its decision on an established guideline calculation. In fact, Family Code Section 4052 provides that the court may only depart from the statewide uniform guideline under special circumstances.California family courts consider two main factors when calculating child support: 1) the percentage of time the child spends with each parent (i.e. the “timeshare”) and 2) each parent’s income. However, there are many other factors that might impact the child support calculation. These include the number of children the parents have together, the tax filing status of each parent, health insurance expenses, mandatory retirement contributions or union dues, support of children from other relationships, and other costs. Consideration of all of these factors is not one-sided, in that they aren’t only considered in favor of the mother. Rather, if the father is the custodial parent and the mother is the breadwinner, it is quite likely that the mother will be required to pay the father child support for the children.
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Over the last few years many states have expanded the traditional idea of “family” by granting parental rights to parties under a variety of new circumstances. Now, non-married couples, same-sex couples, and even single parties can adopt children throughout the United States. Recently, a New York judge expanded the notion of family even further by holding that two friends (never involved in a romantic relationship) of different sexual orientation could adopt a child together. The new mother and father of an Ethiopian child do not even live together. Originally the mother wanted to have a child and the father offered to be a sperm donor. After the friends were unable to conceive, they decided to adopt a child together instead.The court’s decision to allow friends with no commitment to each other to adopt together has raised significant controversy. Among the opponents of the judge’s decision is Peter Sprigg, a senior fellow for policy studies at the Family Research Council. He asserts the position that the judge’s ruling puts the parent’s needs over and above the needs of the child. This position is based on Sprigg’s belief that the purpose of adoption is “to provide homes for children that resemble as closely as possible the natural family” and that “we would do better to stick with the rule of nature that children do best with a mother and a father who are married to one another”. Sprigg cites the level of commitment between married parents as a source of stability for a child and contends that that lifelong pledge will bind the parents together in such a way that cannot be replicated by friends.

Considering the reality that divorce is not a myth and is in fact quite common in the United States today, Sprigg’s position merits little credibility. Marriage is a lifelong commitment; however, for a variety of reasons, marriages end. Further, divorce can be one of the most traumatizing experiences a child goes through. If the parents are never married, the child will not experience a divorce. The New York Judge reasoned that the parents “have created a nurturing family environment…including a well-thought-out, discussed and fluid method of sharing parental responsibilities between their homes.” Regardless of their marital status, the Judge believed these two to be competent parents.

With so many parentless children worldwide, it is questionable why any parental arrangement is detrimental to the best interests of the child as long as the proposed parents do not pose a danger to the child’s emotional and physical wellbeing.
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Going through a divorce may be equally difficult for the children of the divorce as it is for the two spouses. Although they may show their grief in different ways, children are typically grieving right alongside their parents.

The news of an impending divorce usually causes children to initially experience feelings of shock. Although they may appear to be functioning okay on the surface, children are likely stunned at first and beginning to cope with their “loss” beneath the surface. As a result of their shock and numbness, a child’s ability to concentrate and think clearly may be impacted. As a parent, you can help your child cope by being patient, giving your child space to think through and process everything, and making yourself available to your child when he/she is ready to talk and have you listen.

A divorce may also cause children to experience feelings of searching or yearning. This typically results in the child “acting out” or possibly withdrawing from others. They may appear to be angry, restless or even bewildered. As a parent, you can help your child cope with these feelings by remaining calm, allowing your child to express his or her feelings and realizing that their feelings may change significantly each day.During a divorce children may also appear very disorganized or disoriented. This is a result of their extreme sadness or depression that they are experiencing as a result of the divorce. This may cause children to lose their appetite, have trouble sleeping, and even lack enthusiasm for the things that they used to enjoy. While a child is experiencing these feelings during a divorce, as a parent you can help by ensuring that your child gets the adequate sleep and nutrition that his or her body requires. It is also important to continually make yourself available and to provide opportunities to spend time together.

Lastly, children typically (and hopefully) go through a stage of acceptance in which they begin to accept the loss and perceive an opportunity for reorganization and resolution. During this stage, children appear to have more energy and seem less sad. As a parent, you can encourage your child to share his or her feelings. However, it is important to realize that your child may slip back into one of the previous stages of grief. Therefore, it is important to remain alert to your child’s mental state and behavior.

Although the parents may be overwhelmed with their inevitable emotions that come along with a divorce, it is important to take a step back and help your children cope with the divorce and corresponding stages of grief that they are experiencing alongside you.
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Once a spouse decides that his or her marriage is over, he or she may want to take steps to prepare for divorce before filing the initial paperwork and/or discussing it with his or her spouse. If you are considering your first divorce just the thought of the overall process can be overwhelming and upsetting. In order to enter the process with greater awareness and information, there are a few things that you can do to prepare for divorce.

Consult with an attorney regarding your state’s laws: Each state has specific laws regarding how property will be divided, spousal support, child support, and custody/visitation in the event of a divorce. Many people are unfamiliar with the specific laws of their state and may have misconceptions regarding their rights and options in a divorce. It is important to meet with a certified family law specialist so that you can gather more information about what you can expect in your divorce. Getting an idea of how the process will work and the likely outcomes in your case can ease a great deal of stress and tension.

Become familiar with the different types of child custody: In California there are two types of child custody – legal and physical custody. It is important to understand the differences between these two types of custody and how they relate to each other. Further, there are varying degrees of physical custody and infinite possible custody configurations.

Preventative preparation: One of the biggest jobs for any divorce litigant is helping his or her attorney prepare the mandatory financial disclosure documents. This process can become more difficult if a party no longer has access to the required documents because he or she moved out of the residence, the other spouse took the documents, or the spouse has no direct knowledge of the family finances. Prior to separation, it is advisable to make copies of all financial documents including, but not limited to, bank statements, tax returns, pay stubs, family bills, and title paperwork.

Stay on your best behavior: In preparation for divorce, it is important to refrain from behavior that may reflect badly on you if your matter is heard by a judge. Especially in custody/visitation disputes, poor behavior prior to divorce will reflect on a spouse’s parenting abilities.Begin considering telling the children: If you have decided to get a divorce, it is never too early to begin thinking about and researching possible ways to talk to your children about divorce. It is important to approach this discussion thoughtfully and with great care in order to ensure the child is assured the divorce is not his or her fault.

In any divorce case, emotional preparation can be just as helpful as legal preparation.
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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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