San Diego Divorce Lawyer Blog

A news article reported on a recent Texas district court's order that may come as a surprise to many San Diego residents, as well as to people throughout the State of California. The judge enforced a "morality clause" in a divorced couple's custody agreement that makes it illegal for the mom (who has physical custody of the children) to have anyone she is dating, or is intimate with - who is not related by blood or marriage - to stay at the home past 9:00 p.m. The mom and her lesbian partner had lived together for three years until this ruling. The court's order demands that the mom's partner move out of her home, effectively splitting the couple apart. Child custody arrangements are often complicated and fraught with high emotions and strong family ties. A local attorney can guide you through the process in a poised and effective manner, while protecting your rights under the local family code.

The ironic part of this court order is that the couple cannot even attempt to comply with the morality clause by getting married. The law in Texas prohibits same-sex marriage. The state's ban goes further and affects estate planning, medical power of attorney and parental custody. The couple divorced back in 2011, but the case was reopened recently over a dispute concerning the custody of their children.

Here, the mom and her partner had been living together for three years before the judge rendered his clarification order, disrupting the lives of the two women and the children. According to the news article referenced above, the judge in this case has made known his conservative stance and advertises his lengthy affiliation with the Republican Party. The same article quotes a senior staff attorney for Lambda Legal's Dallas office as saying, "morality clauses are rarely enforced, but can be used to target homosexual spouses."

This is a troubling decision with significant ramifications for the children. Most custody arrangements are developed with the intention of preserving the best interests of the children. Here in California, either parent can have custody of the children, or they may share custody. In the end, the judge will render the final decision about custody and visitation but usually will approve an arrangement (also known as the "parenting plan") that both parents agree to. Of course, if the parents cannot agree, the judge will make a decision at a court hearing. There are two types of child custody: 1) legal custody - the parent(s) who is responsible for making important decisions for the children, such as education, health care, and welfare; and 2) physical custody - the parent with whom the children live. The law in San Diego requires that judges must determine custody issues according to what is in the "best interest of the child."

While divorcing spouses may differ on what is in their child's best interests, an experienced, local family law attorney can help you understand how a California judge may view a custody request or an agreed-upon arrangement between spouses.

Continue reading "Morality Clause In Texas Custody Agreement Will Effectively Split Same-Sex Couple Apart" »

The recent decision in the case, In re I.J., et al., will govern juvenile and family court proceedings in San Diego and throughout the State of California where similar facts are presented. Here, the father had custody of his five children, two daughters and three boys. Based on allegations that the father had sexually abused one of his daughters for three years, the Los Angeles County Department of Children and Family Services (the "Department") filed a petition that all five children be dependents under the juvenile court based on Section 300 of the State's Welfare and Institutions Code.

The juvenile court removed the children from the father's home and declared all five to be dependents of the court, citing a substantial danger to the safety, physical health, protection, and physical and emotional well being of the children. They were placed with the mother under the supervision of the Department, with court-ordered, monitored visits for the father. The father appealed. The appellate court unanimously agreed that the evidence was sufficient to support the juvenile court's finding of sexual abuse, and that such abuse provided a basis for declaring the two daughters to be dependents of the court.

But the court differed on whether the abuse justified declaring the brothers to be dependents of the court. The majority of the court upheld the juvenile court's decision, while one justice dissented, arguing that the father's sexual abuse of his daughter, without more evidence, did not justify the court's jurisdiction over his three sons. The highest court in California agreed to decide whether the abuse supported the juvenile court's declaring his sons to be dependents of the court.

Under Section 300, the juvenile court is given the authority to decide whether a child is to be adjudged dependent of the court. Among the many grounds for such an action, the one applicable to this case is if there is substantial risk that the child will be abused or neglected as defined by the provisions of the statute. The Supreme Court indicated that the statute's broad language allowed it to consider the "totality of the circumstances" when determining if a child is at substantial risk. The Court also points out that the state's various appellate courts have rendered conflicting decisions on this issue.

The Court ultimately agreed with the lower court that the evidence supported the juvenile court's dependency ruling. The Court pointed to the nature of the father's sexual abuse, which was described as "aberrant in the extreme." According to the Court, such abuse is an example of a parent abandoning and contravening the parental role, and such "misparenting" justifies the "interruption of parental custody."

In a recent blog post, we reported on a California Court of Appeals decision that allowed the father to maintain custody of his son after molesting his stepdaughter. These decisions show how difficult it can be to navigate the legal process concerning child custody issues in San Diego. When faced with any child custody issue, it is imperative that you consult with a local, experienced family law attorney who thoroughly understands the state of the law in California.

Continue reading "California Supreme Court Rules that Father's Sexual Abuse of Daughter Supports Finding That Sons Are Juvenile Court Dependents" »

In San Diego and throughout California, child custody cases come in all shapes and sizes. Somewhat ironically, David Tutera, wedding planner and host of WEtv's "My Fair Wedding" has been entrenched in a highly publicized divorce proceeding with his domestic partner, Ryan Jurica. Family law disputes have the potential to elicit strong emotions as spouses find the landscape of their lives changing drastically. As divorcing parents approach this very difficult time, the importance of consulting a local family law attorney who is experienced in matters of child custody cannot be overstated.

According to news reports, Tutera and Jurica married in Vermont in 2003, where same-sex marriage is legal. The couple also entered into a domestic partnership in California, where they lived. In 2013, ten years later, the two separated on New Year's Day. The men are both fighting for custody of twins that they are expecting in July - with the help of a surrogate.

Under California Law, couples that enter into a domestic partnership must follow procedures in order to dissolve the relationship, which is also referred to as divorce or "dissolution of domestic partnership." Once a couple has dissolved the relationship, they each can marry or become a domestic partner again.

Back in January, Tutera filed separation papers in Los Angeles County Superior Court citing "irreconcilable differences." Tutera is asking the court for full custody of the children when they are born, visitation for Jurica, and denial of spousal support. Jurica recently filed divorce papers accusing Tutera of certain alleged sexual indiscretions. He is also seeking full custody of the twins and wants spousal support from Tutera, who allegedly earns $1 million a year. Tutera has refuted Jurica's allegations as "baseless and untrue."

As for the couple's child custody issues, in California either parent can have custody of the children, or the parents can share custody. The parents can agree on the arrangement, but whatever they decide will be subject to the approval of a judge, who ultimately makes the decision about custody and visitation. In most cases, the judge will approve the arrangement agreed upon by both parents. In situations where the parents are unable to agree, the judge will render a decision at a court hearing. Typically, before that judge will order any particular arrangement for custody and visitation, the parents will have met with a mediator from Family Court Services to help sort through each parent's demands.

It will be interesting to see how the court handles the contested child custody and visitation matters in this case, considering that the children are not born yet. Further complicating matters are Jurica's allegations that Tutera is "addicted to sex" and has hired sex escorts and prostitutes to support his addiction. In refuting these statements, Turtera has stated that he believes Jurica is simply trying "to gain a legal advantage in our separation."

Contested custody or visitation cases are complicated. Sorting through the local state laws pertaining to the issues at hand can be a tedious process. It is important to understand what laws affect you and your rights to custody and visitation.

Continue reading "TV Host David Tutera Battling Estranged Husband for Custody of Unborn Twins" »

In San Diego and throughout the State of California, divorcing parents may agree, or a court may order that only one parent have sole physical and legal custody of their children. In the divorce case of the famous pop star Michael Jackson and Debbie Rowe, the parents agreed that Jackson would have full custody of their two children. According to a news article, in 2001, Rowe, mother of Paris and Michael, relinquished all of her parental rights when the children were merely toddlers. This is not something most parents would be willing to do. In fact, to the contrary, it is fairly common for divorcing spouses to argue over custody rights, each seeking to spend as much time with their children as possible. Parents facing child custody issues are strongly encouraged to reach out to an experienced, San Diego Family Law attorney who can help to safeguard their rights within the state's intricate legal system.

Most parents would never agree to grant the other spouse sole custody of the children. Under this arrangement, only one parent would have the right and responsibility to make the significant decisions about the education, health, and welfare of the children. Michael Jackson and Debbie Rowe were married from 1996 to 1999. Some time in 2001, Rowe signed away all of her parental rights.

After Michael Jackson's untimely and tragic death in 2009 at the age of 50, his mother, Katherine Jackson became the children's legal guardian. In California, a court may order someone other than the child's parent to be a guardian and have custody of the child and/or manage the child's property, also known as the "estate." In a guardianship of the child, the guardian would have the same responsibilities to care for the child as a parent would. Being a guardian is a considerable and serious role in a child's life. The guardian is responsible for the child's: 1) food, clothing and shelter, 2) overall safety and protection, 3) physical and emotional growth, 4) medical and dental care, 5) education and any special needs.

According to reports, Katherine Jackson, as guardian of the children, has reached an agreement with Rowe to allow her supervised visitation rights. A judge will order "supervised visitation" if there are issues of protection and safety, among other things. In effect, a child may only have contact with the identified person when a neutral third person is also present during the visitation. It is not clear from the news accounts whether the court has been involved in ordering the supervised visitation involving Rowe and Paris, or if it is simply an agreement between Katherine and Rowe.

In any event, one of the situations in which a court will order supervised visitation is to help reintroduce a parent and a child after a long absence, just like in the Jackson case at issue. Although this is an extraordinarily public family with very unique circumstances surrounding the children's birth and separation from their mother, the family law proceedings have involved many legal issues that take place in the San Diego court system every day. It is important to have an experienced attorney on your side to help guide you through the process.

Continue reading "After Relinquishing Custody of Her Children, Debbie Rowe Reuniting With Daughter Paris Jackson" »

In 2009, actress Kelly Rutherford divorced Daniel Giersch. According to news reports, the two have been battling over the custody of their two young children ever since. Last August, in what has been described as a shocking development, a judge in California ruled that Rutherford's children could remain in Europe with their father, a German businessman, following a summer vacation there. Essentially, the court found that it would be in the children's best interest to relocate them, ages five and three, until their father was able to restore his visa, so that both parents would have an opportunity to spend time with the kids. Child custody battles can erupt in any divorcing family situation. The best course of action is to consult with a local San Diego Family Law attorney who can help to protect your family's rights.

The judge's order was partly based on the fact that Giersch's visa to remain in the United States had been revoked. Under this court-ordered custody arrangement, both parents have an opportunity to see their kids on a regular basis. The children are to remain in Monaco with the dad, while their mom is required to fly to Europe in order to spend time with her children. Up until the moment of the judge's decision, the children were living with Rutherford. In another article, Rutherford mentions that she has flown to Europe 40 times to see her children.

In California, parents who decide to separate and divorce should have a plan for determining how their children will be cared for and where they will live or spend time. The ideal situation is one in which both parents agree to a "parenting plan." A parenting plan is also known as a "custody and visitation agreement" that sets forth (in writing) the couples' agreement about: 1) time-share: a specific schedule for when the children will be with each parent; and 2) decision-making: a description of how the parents will render decisions about the education, health, and welfare of their kids.

Parents who agree up front to a satisfactory parenting plan not only save themselves a great deal of time, money and emotional anguish, but the children also benefit from knowing early on what to expect from the new living arrangements. Unfortunately for someone like Rutherford, if the parents cannot agree and one of them lives far away, in another state or country, the court will have to step in to come up with a plan that it deems is in the best interest of the children.

In another development, Rutherford's close friend, Caroline Rina, has recently started an online petition asking California lawmakers to bring Rutherford's children home to the United States. Rutherford, herself, has vowed to "never stop fighting for my children." If the efforts with the legislature prove futile, the actress will have to wait until September for the next scheduled child custody court hearing. One of the ways to try to avoid the difficulties the parents are facing in this case is to be sure to hire a local, dedicated and experienced Family Law attorney who can anticipate the intricacies of the process and the way the courts may view each child custody request.

Continue reading "Gossip Girl's Kelly Rutherford in Ongoing Custody Dispute - Fighting to Bring Children Back to California" »

San Diego stepparents struggling with child custody and visitation matters are not treated the same way as biological parents, under state law. Biological parents are given the authority and responsibility to devise a "parenting plan" that they believe is in the best interests of the child. Of course, the court must approve the plan, but a stepparent's wishes with respect to custody and visitation have no legal bearing on the process. If you are sorting through a child custody and visitation dispute, the best way to proceed is to consult with a local, experienced Family Law attorney who can vigorously protect your family's rights.

A recent California court decision exemplifies the difficulties that stepparents can face when seeking to assert their rights in a child visitation matter. Tiela Chalmers and Michael F. agreed to have a baby together by artificial insemination and further agreed to joint legal and physical custody of their child. They are the biological parents of Eliana F. When Eliana was born, Tiela and Lisa Hirschkop were in a relationship and had registered as domestic partners. Between 2001 and 2006, Lisa was a stepparent to Eliana. The couple separated in 2006 and Tiela filed a petition for dissolution of the domestic partnership, which was granted in 2007. A short time later, Lisa filed a motion for stepparent visitation under California Family Code Section 3101.

Tiela opposed the motion and Michael filed a declaration in support of her opposition to the motion. The biological parents had chosen a parenting plan that gave Lisa a limited amount of visitation with Eliana. She asked the court to increase the number of hours per week with the child. In 2008, the court denied Lisa's request, noting that she was asking for certain legal rights that are afforded to parents, and that she is not a legal parent of Eliana. The court emphasized that as parents, Tiela and Michael have the responsibility and duty to make decisions that they jointly determine are in the best interests of the child. The court refused to step in to alter a decision made agreeably by both parents, especially in light of the fact that Lisa had failed to raise any issue of detriment to the child. Lisa did not appeal the 2008 decision

In 2009, Tiela and Michael decided to reduce Lisa's visitation time with Eliana. Lisa filed a motion for stepparent visitation and sought to modify the 2008 order denying her visitation. She also requested that Eliana be permitted to testify during the hearing. The court denied her motion and rejected her request. Lisa appealed.

The question before the court of appeals was whether an order denying a stepparent visitation rights can be modified. The court held that it cannot be modified under the circumstances. Under section 3101(a), courts are authorized to grant stepparents visitation if it is found to be in the best interests of the child, but there is no similar authority to modify an order made under that section. The court believed this omission by the Legislature was not unintentional.

Here, the court stated that only biological parents have a constitutional right to raise their kids. Perhaps if Lisa had adopted Eliana, things would have been different. Child custody and visitation laws in California can be complicated, depending on the family situation.

Continue reading "Stepparent Cannot Request Modification of Court Order Denying Visitation under California Law" »

San Diego parents engaged in child custody disputes typically face some complicated and emotional obstacles. But most are not as complicated as that of Bode Miller, the Olympic Skiing Champion who, according to a recent article, has filed two separate paternity suits against two different women, seeking joint legal and physical custody of two different children. The best way to proceed is in his case, and in any child custody matter, is to seek the advice and guidance of an experienced San Diego Family Law attorney who can adeptly navigate the court system.

Bode Miller is currently married to an altogether separate woman, Morgan Beck. She is pregnant with their first child together. But Miller just filed a paternity suit against ex- Sara McKenna, who lives in New York. They have a one-month old son together and Miller is asking a judge to force McKenna to bring the baby back to San Diego where Miller currently resides. He is also pursuing an order that would require McKenna to get written consent before she can take their son out of the State of California again.

Under California law, where couples are unmarried, the establishment of paternity (or "parentage") is the legal procedure for seeking an award of custody, visitation and child support. In order to establish parentage, the parties need to obtain a court order or sign an official Declaration of Paternity indicating who the legal parents of a child are. Once parentage is ordered, parents may then ask the court, as part of the same case, to order child custody, visitation and child support orders.

As this case represents, many complicated issues can arise in child custody disputes where the parents live in different states. Under these circumstances, parties are emphatically encouraged to contact a local, experienced family law attorney, as the laws in different states may vary.

According to the article mentioned above, Miller is likely to face some additional obstacles to receiving joint custody. McKenna is reported to have argued in court that Miller is an unfit father and that he lives on a yacht, a residence that she says is not an appropriate place to raise a child. She further claimed that Miller has substance abuse problems and that he did not want to have the child in the first place.

A court will look at all of the evidence bearing on the best interests of the child. Aside from his custody dispute with McKenna, Miller has simultaneously filed a paternity suit against another woman named Chanel Johnson, also seeking joint and physical custody of a four year-old girl that he claims is his daughter.

While Miller's multiple child custody disputes are not necessarily typical, many of the issues that have arisen so far actually do take place within the confines of Family Court in San Diego on any given day. Only an attorney well versed in the specialized legal procedures can help explain and protect your rights.

Continue reading "Bode Miller Asks Court to Order Ex-Girlfriend to Move Back to California in Child Custody Battle" »

People get married every day. It is a right that many of us take for granted. With the right to marry comes the concomitant right to divorce, should that be the unfortunate course a married couple pursues. California law affords divorcing parents a slew of rights when it comes to settling child custody and visitation matters, among many other issues. If you are a parent considering divorce, you are encouraged to contact an experienced San Diego Family Law attorney to guide you through an often complicated and emotional court process.

The rights that many of us take for granted are the very same ones that couples in same-sex relationships are not necessarily entitled to, depending on where they live. This week is a momentous moment as the highest court in the country is currently hearing and deciding two separate issues relating to same-sex marriage. The cases involve DOMA, the Defense of Marriage Act, and Proposition 8, an amendment to the California constitution. Both of these items define marriage as a union involving a man and woman. The Unites States Supreme Court is hearing arguments this week on both items, on separate days.

In earlier actions, federal appeals courts struck down both laws, and some expect the Supreme Court to do the same. Organizations have been stepping forward at this crucial moment to lend support to overturning laws that have been deemed unfair and not in the best interests of families. In a bold move, just last week, the American Academy of Pediatrics for the first time announced its support for same-sex marriage, stating that permitting gay and lesbian parents to marry if they so desire is in the best interests of their children.

According to a New York Times article, the academy's recent policy statement says same-sex marriage helps guarantee rights, benefits and long-term security for children. This includes all matters relating to a marriage, including parents' rights in a divorce proceeding. The academy cites another pertinent reason that same-sex couples should be allowed to marry: divorce laws provide for a legally structured arrangement for visits and child custody.

According to Dr. Ellen Perrin, a co-author of the new policy, "If people can't get married, then they can't get divorced." Dr. Perrin adds, "That legal system that exists to protect our most vulnerable, namely children, isn't in play." And while many of us think of divorce as a contentious, stressful point in a family's life, we sometimes forget that the legal process exists, at least in part, to protect children. That protection includes ensuring that the ultimate child custody arrangement is the right one, and one that is approved by the court.

In a few short months, the Supreme Court will render decisions in both cases. It seems that if the Court finds that same-sex couples should be afforded the same marriage rights as heterosexual couples, children of those unions will certainly benefit. The article indicates that marriage strengthens families and fosters children's development. It also provides protection to children of parents who ultimately decide to divorce.

Continue reading "American Academy of Pediatrics Supports Same-Sex Marriage as Benefiting Children in Child Custody Matters" »

News organizations across the country have covered the child custody dispute between Deion Sanders and his estranged wife, Pilar, with unrelenting fervor. The drama that unfolded in the courtroom for the six days while the trial lasted could rival the antics of a reality T.V. show. Many would agree that the most unfortunate part of this ordeal is that the children are inevitably at the crux of this contentious battle. If you are a parent contemplating divorce, you are encouraged to contact an experienced, compassionate San Diego Family Law attorney who can help guide you through the process, all the while taking into account the best interests of your children.

In California, there are two kinds of custody: legal and physical. A parent who is awarded legal custody is given the authority to make important decisions for the children concerning items such as health care, education, and welfare. The parent who has physical custody is the person the children live with. Sometimes parents share legal custody so that both are involved in making the significant decisions affecting the child. When parents share legal custody, they each have the right to make such decisions on their own - and while they do not have to agree on every decision, it is best to try to come to some mutual understanding so as to avoid a visit to court later.

Courts may also award parents joint physical custody, thereby splitting up the living arrangements so that the children spend time living with each parent. There are many options that the court has, depending on the circumstances in each case. The most ideal situation is one that the parents agree to up front, to avoid having a court impose a decision. Unfortunately, in the Sanders case, the parents not only could not agree on a child custody arrangement, but they battled in court with the world as their witness.

According to a news article, after a weeklong court proceeding, the jury awarded Deion Sanders full legal and physical custody of his two sons, ages 13 and 11, but ruled that both parents would share custody of their daughter who is nine-years-old. The jury took just under two hours to render their decision, which does not cover child support matters or the possession schedule of the children.

Pilar Sanders was reportedly "flabbergasted" by the jury's decision. Throughout the trial, the parties presented allegations of steroid use, cheating, and violence on behalf of both parents. In awarding Deion physical and legal custody of the boys, the court is giving him the authority to decide where they live, go to school, and many other significant decisions in the children's day-to-day lives. The parents will share these responsibilities with respect to their daughter.

In most custody cases, each parent ultimately wants what is best for their kids. Sometimes they are willing to fight over it. In this case, the Sanders children were subjected to two feuding parents, insulting each other in a courtroom. While the jury's award took place in a Texas court, and is not binding on child custody matters in California, there is much to be gleaned from this case, most notably, the importance of considering the best interests of the children in a custody dispute.

Continue reading "Deion Sanders Wins Widely Publicized Child Custody Battle " »

Divorced parents in San Diego have a lot to contend with, from matters of financial support, daily logistical issues and, significantly, child custody arrangements. Unfortunately, while both parents typically want what is best for their children, they may not always agree on what that is. That is where the court comes in. Once the court-issued child custody order is in place, both parents are required to adhere to and follow all of its provisions. But life sometimes gets in the way and changes things: the custodial parent may be required (or wish) to move to another city, state or country, thereby complicating matters. If you or someone you know is involved in a child custody dispute, the best course of action is to contact an experienced San Diego family law attorney to help protect your rights.

In 2012, the California Center for Judicial Education and Research, (the Education Division of the Administrative Office of the Courts), issued a revised "Benchguide" on Custody and Visitation. Essentially, the document serves as a guide to California judges on how to handle matters of custody and visitation proceedings under the Family Code. Among other things, the Benchguide covers modification of custody orders, "move-away" disputes, and sets forth the state of the law with respect to each issue.

A "move-away" is also known as a "Change of Child's Residence." According to the Benchguide, a parent with physical custody has a presumptive right to change the child's residence, but that right is subject to the power of the court to prohibit the change, if doing so would prejudice the rights or welfare of the child. California law currently requires that the reason for such a move need only be "sound" and in "good faith." That is, the parent with physical custody may not attempt to move the child's residence with the sole purpose of frustrating the other parent's contact with the child. In reviewing a move-away request, the court will look to whether there is a good faith reason for the move, and if there is one, the court may not question the custodial parent's judgment in making the request.

A move-away dispute could arise at the initial custody determination or once the judicial order is in place. If a move-away dispute occurs at the initial custody determination, the Benchguide suggests that the court has broad discretion, and is expected to review all of the circumstances affecting the best interest of the child. In either case, the custodial parent is not required to establish that the move is "necessary" or that it is in the "child's best interest." Instead, the non-custodial parent has the burden of showing that (1) the custodial parent has a "bad faith" reason for the move, or (2) the proposed move would cause detriment to the child. If the non-custodial parent presents evidence that the move would be to the child's detriment, the court must determine whether a change of custody is in the child's best interest.

A move-away dispute can be complicated no matter when it arises, due to changes in the law and the strong emotions of everyone involved. Parents involved should keep in mind that their children are at the center of the dispute and would benefit from the least amount of controversy as possible. An experienced and compassionate family law attorney can help the parties efficiently and smoothly resolve child custody matters.

Continue reading "Move-Away Request Can Complicate A Child Custody Order" »

When spouses make the painful decision that it is time to divorce, they will have to confront the myriad of problems and issues that are likely to arise. There are many financial, logistical, and day-to-day practical considerations to weigh. And when children are involved, many would argue that child custody issues are the most important priority to settle as early in the proceedings as possible. Because divorce and custody matters have the potential to insight fluctuating emotions on behalf of the parties, and because family law matters can get complicated fairly easily, spouses are encouraged to contact an experienced San Diego family law attorney to guide you through a process that is often very stressful for the parties.

In California, it is the responsibility of the divorcing parties to petition the local court for a child custody order. Failure to consult with an attorney and secure an order can result in many unanticipated and adverse consequences. A recent Los Angeles Times article depicts one of the problems associated with failing to secure a custody order. On February 28, it was reported that seven children were missing from their Northern California home. The children had been living there with their mother and stepfather. The adults left the children in the care of the oldest of the bunch, a 12 year-old, while they went grocery shopping.

When the couple returned home from the store, the children (and their clothes) were gone. The children's ages ranged from twelve to five-years-old. Among the authorities searching for the family of children was an FBI Task Force. Several days later, the children were found unharmed, in good spirits, and in Sacramento with their biological father. According to reports, the father was estranged from the family for the previous three years. A Reuters's article reported that he was divorced from the children's mother, but there was no court-ordered custody arrangement in place. Because of this lack of child custody order, the authorities permitted the children to stay with their father while they determined whether any crimes took place.

Among other things, the police are investigating whether the father should be charged with child abduction or concealment. Further, they are looking into whether the mother and stepfather have committed acts of child endangerment or neglect by leaving them alone without adult supervision.

According to a California Courts' website, either parent can have custody of the children, or the two may share custody. While the judge has the authority to make the final decision about custody and visitation, he or she will typically approve an arrangement that the parents agree on. This arrangement is called a parenting plan. Where parents are unable to agree on the plan, the judge will render a decision at a court hearing. Under court procedure in California, judges typically do not hand down a decision about custody and visitation until after the parents have met with a Family Court mediator.

The parents in this case failed to initiate a child custody petition in California. There was no order on record of whom the children were supposed to be living with: their mom or dad. Because of this, the authorities had no idea whether the children were abducted from their home, or just out with their father. In consideration of their children's best interests, divorcing parents should make it a priority to settle any child custody disputes as early as possible, with the help of an experienced family law attorney.

Continue reading "Divorcing Parents Must Apply to California Courts to Secure and Protect Child Custody Rights" »

There is a reason why the United States Supreme Court rarely hears child custody issues: the length of time that it takes for a case to go through the various lower courts, effectively leaving a decision concerning "the best interests of the child" in limbo for the duration of the process, is not the way family law matters are intended to be resolved. Parents disputing child custody issues often lose sight of one of the most important issues - settling the matter as quickly as possible so that children are not dragged through the process for an indefinite period of time. If you have child custody concerns, it is important to contact an experienced San Diego family law attorney as early as possible.

Disputing parents want to protect their rights to live with and take care of their children. In the instant case, U.S. Army Sergeant Jeffrey Chafin, and his wife, Lynne Chafin, a Scottish Nationalist, were married in Germany in 2006. In 2007, their daughter was born, Sergeant Chafin was deployed to Afghanistan, and Ms. Chafin brought their child to Scotland. In 2010, Sergeant Chafin was transferred to Alabama and Ms. Chafin and their daughter met him there. Shortly thereafter, Mr. Chafin filed for divorce and child custody in Alabama state court. Ms. Chafin started this action in a federal district court in Alabama, and filed a petition under the Hague Convention (which is designed to return children illegally taken from member countries) seeking an order for her daughter's return to Scotland.

As reported in an earlier blog post, the district court agreed with Lynne Chafin's argument that Scotland is their habitual residence. Once the father's motion to stay the decision was denied, mother and daughter returned to Scotland. The 11th Circuit Court of Appeals dismissed Sergeant Chafin's appeal as moot, because the child was already brought back to Scotland. In declaring the issue moot, the Court had no authority to render a decision on the merits of the case and essentially handed over jurisdiction to the Scottish courts. Sergeant Chafin petitioned the U.S. Supreme Court to hear his appeal of the 11th Circuit decision.

The U.S. Supreme Court agreed to hear the matter and unanimously reversed the decision holding that the 11th Circuit should have heard the merits of Sergeant Chafin's appeal. The Court ruled that an appeal of an order under the Hague Convention is not rendered moot, simply because the child has been returned to a foreign country. According to the Court, a suit becomes moot if issues presented in a case are no longer "live," or if it is impossible for a court to grant meaningful relief to the prevailing party, among other things. A case cannot be considered moot where the parties maintain a "concrete interest" in the result of the action.

The Court found that the dispute was still "alive" -- noting that the parties are still strongly contesting the country where their daughter should be raised. As for whether the decision will be effectual, the Court noted that even if Scotland fails to comply with a re-return order, the case is still not moot. U.S. courts continue to have personal jurisdiction over Ms. Chafin and may order her to return under threat of sanctions.

This decision strengthens the rights of all American parents (including those residing in California), in child custody battles with parents who are foreign nationals.

Continue reading "U.S. Supreme Court Rules in Favor of Father in International Child Custody Dispute" »

Back in September, news broke that 43 year-old Christopher Maffei kidnapped his two young children, a two year-old son and a three year-old daughter, and sailed away with them on a stolen yacht under the Golden Gate Bridge. According to a San Mateo Daily Journal news article, Maffei forcibly took the children from their grandmother, while their mother was at court getting a restraining order against him. Child custody cases in San Diego run the gamut from mildly contentious to severely antagonistic, sometimes resulting in criminal behavior by one or both parents. In order to protect your rights in a child custody matter, it is imperative that you contact an experienced, local family law attorney.

Prior to being apprehended, Maffei had sailed along the Northern California Coast with his two children. He surrendered without incident once the authorities caught up with him. The children were unharmed. While in court, Maffei said that his kids were not in any danger with him and that they were having a great time on the sailboat. He also told a San Mateo County Judge that he took the children in an effort to protect them from an abusive home. The mother (and Maffei's ex-girlfriend) has refuted the abuse claims, noting that Maffei never attempted to report his allegations to the appropriate authorities.

Maffei has been charged with assorted felonies, including first-degree burglary, kidnapping, taking a child from a lawful custodian, child endangerment and possessing a stolen motor vehicle. He pleaded not guilty to all of the charges. In a recent development, after a preliminary hearing, the judge ruled that there is enough evidence to try Maffei on all counts, and denied a request to reduce the felonies to misdemeanors. At this point, Maffei remains in custody, with bail raised from $200,000 to $500,000. The case has been set for a jury trial on May 28.

The San Mateo Daily Journal reported that during an interview conducted while Maffei was in jail, he admitted that it was crazy to steal the 41-foot sailboat but said it was not crazy of him to take the kids. Of course, a judge and the children's mother would see it differently.

After this shocking incident, the children's mother went to court and was granted a temporary restraining order as well as a court order granting her full custody, with no visitation rights for Maffei. One of the significant developments early on in this case was the simultaneous efforts on behalf of both parents: the mother was in the process of seeking a restraining order against the father, while he was allegedly kidnapping the children. We will await the trial for further developments.

Child custody and related visitation matters and can be fraught with animosity and sometimes irrational conduct. It takes an experienced San Diego attorney to help protect a parent's rights under the unique circumstances of the case.

Continue reading "Father Who Allegedly Kidnapped His Children is Stripped of Custody" »

San Diego parents pursuing child custody rights, often find themselves in heated conflicts with one another. There are many unexpected issues that arise and require parties to carefully consider the proceedings, and reflect on what was said and has taken place in the family law courtroom. As of December 2012, the San Diego court system has ceased to provide court reporters in family law matters, with the exception of Contempt hearings, Domestic Violence Restraining Order hearings, as well as Request for Order hearings of 40 minutes or less. If you are involved in a child custody dispute, you are encouraged to contact an experience San Diego family law attorney to help protect your rights.

The court is essentially saying that they don't have a choice in the matter. Citing massive budget cuts of $14 million for the current fiscal year, 2012/13, and even greater predicted cuts in the amount of $40 million for 2013/14, the San Diego court system decided to eliminate court reporters in cases where it is not legally required to provide them. While the order eliminating the requirement of providing court reporters is a big change, and one that will take some getting used to, parties may still have an opportunity to hire their own court reporter for their family law matter.

Parents disputing child custody matters will likely want to have a record of their proceedings to keep track of the dialogue, so that they can better protect their rights and be sure that the outcome is in the best interests of the child. The court provides rules by which the parties can hire a court reporter, lists of various sources, but in the end, the parties have to pay. They will have to use a court-certified reporter who must be appointed by the court in each matter. However, if they do not select a reporter on the court-approved list, all parties must agree on the ultimate choice to be appointed.

Unfortunately for the parties, what was once a complimentary feature of the family court proceeding is now one that will cost them money. And in many cases, it could be cost-prohibitive. According to an editorial piece in the Sacramento Bee, if family law litigants want a record of what occurs at their child custody hearings, they will have to pay a minimum of $239 for a half day.

The editorial piece argues that many litigants cannot afford these costs and are left with no choice: either pay up or proceed without a record. The author cites another problem: judges hear a multitude of cases in one day and often scribble their notes in an illegible manner, leaving some parties unsure about the court's ultimate ruling. That can be a distressing proposition, especially in family matters where the outcome, in all likelihood, will impact the parties for the rest of their lives.

The San Diego court provides a "question and answer" document concerning the hiring of a court reporter. For parents with child custody concerns, the best course of action is to first consult an experienced family law attorney.

Continue reading "San Diego Courts Eliminate Court Reporting Services in Many Child Custody Matters" »

Some of the most highly charged and emotional issues in San Diego arise in paternity cases. Even though modern marriages are ending in record numbers, unmarried parents are even more likely to live apart. There are three basic issues addressed in all paternity cases: custody, support and visitation. The San Diego Superior Court Judge will make orders for all three issues if an agreement is not reached.

Most paternity cases are resolved either by agreement or by legal action in San Diego. The parents can sign a voluntary acknowledgment of paternity at most prenatal clinics, hospitals, birthing centers and county offices. This form will legally establish the identity of the child's parents, but it won't resolve issues of custody, support and visitation.

Legal actions are typically considered adversarial in nature. Since the initial focus of most paternity actions is the collection of child support payments, disputes can arise easily and intensify quickly.

The best approach to resolving your paternity case may rest upon the nature of any unanswered questions. If a man knows he isn't the child's father, signing a voluntary acknowledgment of paternity could be a huge legal mistake. On the other hand, if DNA testing has already confirmed fatherhood, denial isn't an option and the only procedure is to deal with the parenting plan and any support issues.

The amount of child support to be paid is determined by standard guidelines and is based upon the income of the parents as well as other guideline factors such as child support ordered from another relationship, spousal support ordered to be paid from another relationship, mandatory retirement, union dues, health insurance, tax filing status, income from all sources, percentage of time share, tax filing status and others . There isn't much room for negotiating facts however issue spotting, such as a request to deviate from child support guidelines if you are legally obligated to support another child, is very important. If income or resources fluctuate, or the other party is being less than forthcoming about their income, then this may become a significant issue.

In most cases, visitation guidelines follow a standard model designed to address common questions: every other weekend and one weekday evening with all off track school time and holidays divided equally or some other model. As a general rule, neither parent can exercise unreasonable control over the other parent's visitation time. One common dispute arises when the other parent says, "I don't want the new girlfriend/boyfriend around my child." Unless the new significant other poses a specific danger, such as a convicted child molester, the court probably won't allow that condition to be imposed.

In some cases, a request for support triggers a demand for custody. It is important to seriously consider what is best for your child before initiating a custody battle. Unfortunately, there is an inverse relationship between the percentage of custody and visitation and the amount of child support. This means that the payor has a financial incentive to increase the timeshare and the payee has a financial incentive to decrease the time share. This is totally adverse and leads to litigation.

The Family Court decides custody questions according to the best interest of the child however there is now a department in DCSS Court which also hears custody and visitation issues. In considering alternatives, the court looks at a number of factors under the "best interests" test including continuing and frequent contact, bonding and stability among others. If the parents are able to maintain a cordial relationship for the child's benefit, joint custody may provide a solution.

Continue reading "Paternity Cases in San Diego in 2013: Paternity Cases: Agree, Negotiate or Fight?" »