Nancy J. Bickford

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Award-winning actress Reese Witherspoon appeared in Nashville’s probate court on May 11, 2012 to address allegations against her father, John, for bigamy. Witherspoon informed the judge in an emergency hearing that her father should be placed under a conservatorship due to his alcoholism and on-set dementia. The judge has yet to rule in this matter but has sealed the case against media/public access in interest of the parties’ privacy.Witherspoon’s parents separated in 1996; however, the couple never officially divorced. As a result, Witherspoon’s mother, Betty, filed a lawsuit claiming that her husband recently married another woman. However, Betty claims that he was not mentally stable enough to remember the marriage and denies entering into it. In addition, Betty has filed a restraining order/injunction against the purported “new wife” which prohibits her from using the last name of “Witherspoon”.

According to California marriage laws, a married person is prohibited from marrying any other person besides his or her spouse. If a married person enters into another marriage with a person besides his or her spouse, he or she may face criminal bigamy charges. Under bigamy prohibitions, John’s subsequent marriage would be void. Betty is requesting that the alleged marriage between John and his new wife be annulled.

As we have previously blogged, determining whether a couple has in fact separated is a question of fact. The court will take into consideration factors such as whether: the couple continues to purport to be married, the spouses live separate and apart, either spouse engages in romantic conduct, either spouse continues to perform martial duties, finances are commingled, and the couple attend social gatherings together.

Betty Witherspoon claims that she is still in love with her husband and that she did not want to file for divorce. Additionally, she claims she has regular contact with her husband. However, John’s new wife has moved in with him and allegedly convinced him to change his will. Despite this evidence that the couple had not separated in 1996, a court will likely determine that they have considering the strong evidence that John intended the marriage to be over when he began residing with another woman and even attempted to bring her to social gatherings like Reese’s wedding.
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Famous R & B artist Usher is currently litigating a hotly contested custody case with his former wife Tameka. Tameka and Usher were married for two short years before Usher filed for divorce in 2009. Currently the couple shares joint custody of their two young sons. On Tuesday May 1, the pair attended a court hearing in Georgia where the judge ordered them to work out some type of agreement “or else.” The judge instructed them to attempt to reach a temporary child custody and visitation arrangement in a private mediation setting. If they were unable to reach an agreement, the judge would impose a temporary order upon Usher and Tameka. In this case, the two would have no control over the outcome.

It is common in the San Diego family court system for a judge to order parties to attempt reaching a mutually acceptable agreement. Negotiating and mediating disputes, especially those regarding child custody, result in less turmoil in an already hostile situation. This approach tends to promote cooperation and a healthy co-parenting relationship between the parties that is in the best interest of the child. However, when domestic violence is involved in a case, party negotiations will be ineffective and unsuccessful.

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1. What is FCS Mediation?

Family Court Services (FCS) provides child custody recommended counseling in family law cases when separating or divorcing parents cannot agree on a child custody sharing plan. Child custody recommended counseling is provided in a private counseling office with a trained court counselor. The FCS conference allows both parents to work together toward a mutually acceptable agreement which is in the best interest of their children. The court counselor will evaluate the case and make a recommendation to the Judge regarding child custody and visitation if the parents are unable to reach an agreement.

2. Is mediation required?

In any dissolution matter regarding child custody and visitation where there is a dispute, Family Code section §3170 mandates that the case be set for child custody recommending counseling prior to the court hearing. Mediation has been required in California for divorcing parents regarding child custody and visitation since 1981.

3. What topics will be discussed in Mediation?

The main topic is child custody and visitation. This includes legal custody and physical custody arrangements. In making a parenting plan, topics such as birthdays, holidays, and summer vacation can be determined by a visitation schedule agreed upon by the parents. Topics such as child support, spousal support, and property division are not usually addressed but agreements can be drafted through your attorney if decided upon mutually by the parents.
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Divorce is never easy, but it is nice to know you have options. You can approach your divorce in four different ways, each of which has their pros and cons. Make sure to select an option that is right for you. No two marriages are the same and therefore, no two divorces will be the same. Just because something worked well for someone else does not mean it is the best option for you and your family. In any case, you should consult an attorney before filing the final paperwork with the court.

1. Do it yourself Divorce

Most attorneys would advise against doing the divorce yourself. The reason for this is that divorce can be very complicated and a single mistake can cost you a lot. Doing it yourself may save you the time and expense of getting an attorney, but you may not get the best result in the end. Because divorce often includes emotions, finances, property, assets, and important decisions about children, it is recommended that you get an attorney in a long term marriage. However, if you have a short term marriage that was only 1 or 2 years, don’t have any assets or property, and no mutual children, doing a divorce yourself may be your best option. Nevertheless, it is still highly recommended that you have an attorney look over the final documents just to be sure you didn’t miss anything.

Pros- doing it yourself may result in you:
• Reducing expenses by not having to hire an attorney.
• Saving time by not having to go to court as often.
• Being in control of the process.

Cons- doing it yourself may also result in you:
• Not getting the best outcome.
• Losing time with your children.
• Missing out on financial support.
• Failing to discover hidden assets.
• Not having legal support in court.
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One key aspect of a domestic violence relationship is the cycle of power and control. San Diego community service programs such as the San Diego Family Justice Center recognize this cycle of abuse and help victims break through the destructive pattern. One method of control often utilized particularly by domestic violence abusers in San Diego is immigration status. San Diego’s location so close to the Mexican-American border is an ideal place for many Mexican immigrants. Further, some immigrants are native Spanish speakers and are unable or struggle to understand and/or speak English. Many abusers exploit this language barrier as a tool to maintain control over their partners. Because immigrants fear deportation and are uninformed regarding various United States’ laws and regulations in place to protect them, they feel trapped and continue to remain in abusive relationships.Domestic violence abusers use one or a variety of methods to use immigration status as a tool to manipulate and control their victims. First, the batterer may promise to file papers to legalize the immigration status of his or her victim. Once the victim believes he or she may have a chance to become a legal citizen, the batterer may fail to file, withdraw or threaten to withdraw the necessary paperwork. The victim’s immigration status becomes a weapon used against him or her. Congress passed the Violence Against Women Act (VAWA) in order to help domestic violence victims through this form of abuse by providing them with a method of gaining citizenship independent of their abuser. Although the act is entitled the Violence Against Women Act, men may also apply for relief under VAWA provided they satisfy the eligibility requirements. Under the act, a victim may apply for permanent-resident status and neutralize the fear of deportation.
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We have previously blogged about the impact military orders can have on a San Diego parent in a child custody case. Recently, the House Armed Services Committee is considering ways to enhance the provisions in place that protect the parental rights of service members. The Servicemember Family Protection Act is designed to preclude family court judges from ruling against servicemembers based solely on a history of or future deployment in child custody cases. Originally introduced in 2008, the bill has passed the House of Representatives with support from both the Democratic and Republican parties but has repeatedly failed in the Senate. The Defense Department has rejected this bill in favor of passing similar legislation at the state court level.

Often in California child custody cases the family court judge will scrutinize a parent’s absence from the child’s life. However, servicemembers may be deployed for extended periods of time and have little to no contact with their children. The Servicemember Family Protection Act is intended to excuse a parental absence due to military orders. It is important to note that the bill will not give servicemembers any advantage in child custody cases or hearings, it will only function to remove the disadvantages servicemembers are facing in these proceedings.

Traditionally, deployment has been understood as the movement of military forces from one area to another or sending military personnel into a combat zone. The Servicemember Family Protection Act defines deployment much more broadly for the purposes of child custody proceedings. For the purposes of the bill, deployment would include humanitarian operations and unaccompanied oversee tours as well. The bill has been proposed as an amendment to the Servicemembers Civil Relief Act. The Servicemembers Civil Relief Act was passed as a federal law, which granted special rights to servicemembers who were part of a civil proceeding. In 2008, Congress extended these privileges of the Civil Relief Act to child custody cases. The bill now prevents family courts from making permanent changes to custody orders while a servicemember parent is deployed.

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TMZ.com reports that Kris Humphries has filed legal documents in his divorce case appointing himself as his own lawyer. Now certainly Humphries, who also according to TMZ.com, makes $8 million dollars a year with the New Jersey Nets, can afford a lawyer. But what if he couldn’t afford a lawyer? Could he request that Kim Kardashian pay his attorney fees and costs?

When one party has a need for attorney fees and costs, and the other party has an ability to pay (or make a contribution to) those attorney fees and costs, the court may grant an attorney fee request.

A new California Rule of Court governs requests for attorney fees and costs based on financial need as described in FC sections 2030, 2032, 3121, 3557 and 7605.
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As mentioned last week, statistics show that approximately 50% of marriages will end in divorce. Now that divorce is so prevalent in today’s society, we need to find effective ways to minimize the negative effects on children and maximize family support and encouragement through this tough time. Listed below are three proposed solutions that you as a parent can do to help reduce the negative effects divorce may have on your children. Not one solution by itself will eliminate the problem, but a combination of them may significantly decrease the negative effects divorce has on children. These solutions include: divorce education and co-parenting classes, divorce mediation, and family counseling. Also your attorney can engage in collaborative practice of law to further assist in making the divorce process easier on children.

Education Programs

A recent study indicates that 46 states currently offer some version of a parent education program. Some jurisdictions also offer classes for children coping with their parents divorce and a few jurisdictions offer parallel classes for both parents and children. For example, in San Diego, there is a program for children called KidsTurn. Some of these programs are court mandated or recommended by the judge, while others are voluntary. These classes can last anywhere from a few hours in one day up to eight weeks. Many of these programs reported positive findings such that parents either reported decreased interparental conflict or decreased re-litigation.

These education programs aim to do the following: 1) inform parents how children usually respond to divorce; 2) alert parents to the negative effect of conflict and their harmful behaviors on children’s adjustment both in the short and long term; 3) discuss benefits of, and skills needed, to build a cooperative or parallel parenting relationship; 4) focus parents on the needs of children for an on-going relationship with each parent; 5) teach positive parenting behaviors and appropriate discipline; 6) discuss the process of adult adjustment to divorce and how to cope with this change; 7) focus on responsibilities of each parent to the children; and 8) describe helpful court processes, such as mediation. This can completely change a person’s parenting style and their relationship with their ex spouse and their children.

Co-parenting Classes

Cooperation between parents after divorce includes frequent communication about the child, coordination of routines across households, the ability to resolve differences in a mutually satisfactory manner, and respect for and support of the other parent’s relation with the child. In order to accomplish these things without conflict, it is useful for parents to attend co-parenting classes together. These may be court mandated by the judge or taken voluntarily by the parents.

Co-Parenting has been used in a variety of ways to refer to the degree to which the ex-spouses share the parenting role. These include: joint problem solving skills and joint decision making concerning the child’s welfare, low levels of conflict around parenting issues, building communication and trust, and also sharing in joint responsibilities. Programs have reported positive findings such as decreased inter-parental conflict, increased encouragement with other parent’s involvement, trust for the other parent’s ability to parent the child, and decreased re-litigation. About 80% of judges report that these classes helped parents agree on custody arrangements before coming to court and decreased re-litigation of those who had already been in court.
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San Diego is known for having a vast military community. Among the many military bases in San Diego County are the Marine Corps Air Station Miramar, the Marine Corps Base Camp Pendleton, the Naval Base Coronado, the Naval Base San Diego, and the Naval Base Point Loma. In fact, the Naval Base San Diego is the largest base of the United States Navy on the west coast. Having a parent in the military can bring out a new set of child custody and visitation complications. It is important to consider possible deployments when creating any parenting plan.California Family Code section 3047 directly addresses a parent’s military obligations, “a party’s absence, relocation, or failure to comply with custody and visitation orders shall not, by itself, be sufficient to justify a modification of a custody or visitation order if the reason for the absence, relocation, or failure to comply is the party’s activation to military duty…or military deployment out of state.” Under this statute, one parent may not use the other’s military duties against them in a child custody proceeding. If the sole or joint physical custodian is required to move a substantial distance or is otherwise unable to exercise his or her custodial rights, the court may order a temporary modification in custody. Once the military parent is able to resume his or her custodial duties, the temporary order is subject to review. However, there shall be a presumption that the previous order will resume in place of the temporary modification. This presumption can be overcome if the court finds it is not the best interest of the child.

The best interest of the child is the controlling theme throughout San Diego family law. The court considers a number of factors and makes determinations of custody and visitation. Among the factors the court will consider are:

(1) The health safety and welfare of the child;

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The State of Alaska is reforming the way a divorce case proceeds through the court system. The new program named the Early Resolution Project is aimed at resolving divorce cases quickly and efficiently. One distinguishing characteristic of Early Resolution is the emphasis on settlement. Under the program, the Anchorage Superior Court addresses several divorce cases in one afternoon on a biweekly basis. On this afternoon, the parties are give free legal advice and encouraged to reach a mutually beneficial agreement.Superior Court Judge Stephanie Joannides envisioned the program as a result of her experience in the Alaskan family court system. She was concerned because many divorce cases are assigned a court date that is several months after the initial filing. This waiting period caused the parties to become firm in their positions and unwilling to compromise. Judge Joannides proposed to attempt to resolve these divorce cases early in the process and has seen promising results. In the first year, eighty percent of cases settled as a result of Early Resolution.

Besides a quick resolution to the case, the Early Resolution program and others like it offer a number of fringe benefits to the parties. Like any case that settles early in the litigation process, a divorce settlement can save the parties a great amount of money. Litigating a family law case in San Diego involves filing fees, court costs and attorney’s fees. If a case settles early, the parties will not be responsible for any further costs and fees. Another benefit to dispute resolution is the preservation of the relationship between the parties. Litigation has the tendency to ruin the relationship between the parties indefinitely. However, in family law cases involving children, it is crucial for the parents to maintain a co-parenting relationship. Although the California Family Code is often clear, family court judges have an element of unpredictability. The facts of a case may be disputed and therefore the outcome can be uncertain. If parties reach a settlement they are in control of the outcome of the case. In family law cases, the outcome often has life-changing consequences for both parties. In order to have input in the final decision, the parties much reach an agreement.

The San Diego family court system has a program similar to Alaska’s Early Resolution Project. In San Diego, the family court judge will assign the parties a Mandatory Settlement Conference (MSC) date before any case will proceed to trial. Unlike in Alaska, the MSC will occur toward the end of the parties’ case. The MSC will take place at the San Diego Superior Court where the parties have been litigating their case. A settlement conference judge will be assigned to the case. These judges are experienced local family law attorneys who have volunteered their time to help parties resolve their cases before trial. Because they have so much experience with San Diego family law, the settlement judges are able to help the parties predict what the judge will likely do at trial and reach a settlement agreement based on the probable outcome. The benefit to reaching an agreement during the MSC is avoiding trial. The parties are able to avoid the cost, time and emotional toll of a trial.

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