Nancy J. Bickford

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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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Nearly one million children are affected by divorce each year. Parents and families struggle to help children who are experiencing negative effects after their parent’s divorce. Psychological and sociological research is widespread with evidence of the detrimental effects that divorce can have upon children after separation. Research has shown that, on average, children from divorcing families more frequently experience behavioral and adjustment difficulties during later childhood, adolescence, and even into adulthood. Children have been shown to exhibit a wide variety of responses to divorce and other family changes; frequently these responses include anger, a sense of loss, betrayal, shame, embarrassment, depression, loyalty conflicts, and guilt.

With about half of all marriages ending in divorce, many children may experience a difficult time adjusting. Studies show that the detrimental effects that parents’ divorces may have on their children include: depression, aggression, anti-social and/or self destructive behavior and diminished academic performance. Researchers have identified three factors as the most important predicators of negative effects on children of divorce: 1) instability in the child’s life, 2) the absence of effective parenting, and 3) interparental conflict.

Instability

Divorce can be extremely emotional for everyone involved; however, it is important to maintain stability in a child’s life. The more stable you can keep the child’s life, the better adjusted they will be after their parents get divorced. Stability means maintaining regular contact with the other parent by getting child custody and visitation orders in place. You also want to surround yourself with relatives and friends during this hard time. Stability also means following a familiar day to day routine with the child. This is often challenging because the routine is going to change for the child after the parent’s get divorced. A minimum number of transitions after divorce are the most beneficial for the children. If possible, keeping the children in the same school, home or neighborhood, always helps the child relate to some stability. Instability can leave a child feeling confused, alone, and at fault for the divorce.

Ineffective parenting

Parents who are unaware of the effects divorce can have on children or have had on their particular child cannot help them through it. Some parents may not know how to help their children cope or even ways to deal with the divorce themselves. Others may be unaware of resources in their community such as parenting classes and family counseling. It is important for parents to get educated about the effects divorce may have on children and get help for themselves if need be. That way the parents are equip to help a child who is experiencing a difficult time, because ineffective parenting can leave children feeling lonely, hurt, and unloved.
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We often blog about the importance of social networking sites as tools in family law cases. Facebook is an invaluable resource for spouses, parents, and family law attorneys to use in order to dig up information on the opposing party in a particular case. Recently, Facebook has surfaced on the family law radar in a new and unexpected way. One of Facebook’s well-known features is its ability to suggest family members, acquaintances, or friends that the user may want to “add as a friend” on his or her Facebook page. This friend suggestion tool alerted Alan Leighton O’Neill’s wife that her husband was married to another woman. O’Neill’s first wife clicked on the Facebook page of his second wife and saw her husband in a wedding photo with another woman. As a result of the friend suggestion tool, felony bigamy charges have been filed against O’Neill.

In San Diego, any married person who marries any other person is guilty of bigamy. Alan Leighton Fulk married his first wife on April 16, 2001. In December of 2011, he petitioned the court to change his name to Alan Leighton O’Neill. This tactic was used in order to accomplish his second marriage only five days later.

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Under California family law statutes, paternity can be established in a number of ways depending on the relationship between the father and mother. Through the combination of statute-mandated presumptions and DNA testing, determinations regarding paternity made by the court can have a significant impact on child custody and child support.

An unmarried father must sign a paternity declaration in order for his name to appear on a child’s birth certificate. The paternity declaration is significant because it creates both support obligations and parental rights for the father. In San Diego, there is a rebuttable presumption that a man who accepts a child into his home and openly holds that child out to be his own is the child’s biological father. This presumption is rebuttable through the use of blood tests to determine paternity. If no blood tests are conducted and introduced into paternity proceedings, the man is presumed to be the child’s father.

A child conceived during a martial relationship in which the wife is cohabitating with the husband is presumed to be a child of the marriage. In other words, the mother’s husband is presumptively the child’s father. If the husband is sterile or impotent, the marital presumption will not apply. This presumption may be overcome through the use of blood or DNA testing to determine paternity. The presumed father must petition for court-ordered blood testing within two years of the child’s birth. Therefore, unless a motion is filed within the two-year statute of limitations and blood testing establishes the husband is not the father, the mother’s husband is conclusively presumed to be the father. The presumption will still apply even if another man is proven to be the biological father of the child.

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Frequently conservatorship issues arise in California family law cases. On Tuesday March 20, 2012, Francesca Hilton, daughter of superstar Zsa Zsa Gabor, asked the court to grant a conservatorship over her ninety-five year old mother. Hilton claims that her mother’s husband is mishandling her finances and possibly tampering with her medical treatment. In an effort to protect her mother’s estate and health, Hilton requested that the court give her power over her mother’s finances and medical care. If the court decides not to appoint Hilton as her mother’s conservator, Hilton’s attorney stated that she would be willing to allow a third party to do the job. In response to her accusations, Gabor’s husband has alleged that Hilton is filing for conservatorship in an effort to get her mother’s money. A hearing has been scheduled on May 2, 2012 to litigate the conservatorship.

While conservatorships are relatively common for older adults like Zsa Zsa Gabor, it is not often that a conservatorship is granted over a young and healthy adult. Recently Jamie Spears’ conservatorship over his daughter’s estate has been the subject of celebrity gossip. Pop icon Britney Spears was declared mentally incompetent in 2007 when her father became the conservator over her affairs. Britney’s team has been accused of using the conservatorship as a form of protection for Spears. Many lawsuits have been filed against Britney and/or her affiliates and, considering she is mentally incompetent, she has not been forced to participate in the litigation including depositions. The conservatorship has also had consequences for Spears’ personal life and career including the sale of her home, the postponement of her wedding, and a new contract to act as a judge on The X Factor.

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