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Posted on Jun 14 on 2016

Cindy and John have been divorced for four years. They have three children: aged 10, 8 and 6.  Cindy and John could not get along while they were married so they got divorced. Now that they are divorced, they still cannot get along, especially when it comes to making decisions for their children.  There isn’t a decision they can make together, whether it covers the selection of a doctor, a tutor, a camp, a school, or which soccer team to enroll their two oldest children on.

When Cindy and John got divorced they had joint legal custody, as is the norm, so they are supposed to decide things together. They either cannot or will not.  As a result, over the last four years since their divorce judgment was entered, they have been to court on five different occasions because they did not agree on a decision regarding their children. Is there a better answer for them?

That question is the subject of debate.  California law provides that the court can grant one parent sole decision-making authority on issues regarding children when the parents cannot agree.  Sometimes that resolves the problem, sometimes it only exacerbates tension.  The law does not permit a court to turn over that decision-making authority to a third party.  The law does, however, allow the parents to agree to have the court appoint someone to make those decisions.  This concept, which originated about twenty years ago with very limited use, seems to be getting more popular as the family courts continue to do everything they possibly can to try to discourage litigation.  Parents who cannot make decisions together can hire what is referred to as a “Parenting Plan Coordinator,” or PPC, to make those decisions for them. The PPC is oftentimes a retired judge or a mental health professional. The parties submit their disputed issues to the PPC, who decides what happens with the children for an hourly fee somehow apportioned between the parents.  Depending on the agreement reached by the parties, some decisions made by the PPC are binding and cannot be overturned. In fact, they become court orders. Other decisions can be challenged in court by either parent, and the most significant decisions may be subject to court review before they are made into court orders.

As can be imagined, like many other things in family law, this procedure has created its own “cottage industry” of retired judges and therapists.  The same issues arise when parties hire a retired judge to decide their cases: will they be impartial, or curry favor with the side represented by the lawyer who keeps referring them? Does the person being considered favor one gender over the other? Will they make decisions in an economical and fair manner, or make each decision the subject of protracted discussion and lengthy written notices of decision?  Will one of the parties submit excessive disputes to the PPC, only to transfer the dispute from the public court system to the PPC?  Will the other file challenges in court to the decisions made, thereby thwarting the intent of the process? While ideally the PPC procedure should be expeditious and more economical, there is always that risk. And, of course, there is always the question as to whether parents who cannot get along want to cede their decision-making authority to a third party for a set or indefinite period of time.  After all, in the end these decisions are being made by complete strangers. They don’t know the children they are making decisions for, only their parents do.  In the final analysis, while the idea of taking away the ability to argue over decisions concerning one’s children may seem tempting, parents need to think of the long-term consequences of doing so, and make sure they have done everything possible to try to work things out directly before taking this route.

CATEGORIZED IN:News

Posted on May 10 on 2016

In 1970, the State of California originated the concept of “no-fault” divorce.  The rationale behind the law was that there was no point in forcing people to stay in a marriage when they were not happy in it, and that requiring someone to prove legal grounds to dissolve the marriage was not serving any useful purpose.  Historically, in order to obtain a divorce one had to prove the existence of legal grounds such as adultery.  This often required additional expenses on behalf of the aggrieved party, only serving to make the divorce process more expensive and cumbersome than it already was.  In the years leading up to the enactment of “no-fault” divorce, courts often granted divorces on bases that were easier to prove, the most common being “mental cruelty.”  In that situation, one spouse would testify that he or she was being subjected to mental stress as a result of the actions of the other spouse.  Given that, and given that people simply did not want to be married, there seemed little reason to force them to stay in marriages when grounds could not be established.  Over time, the “no-fault” movement expanded to other states, although interestingly it only reached the typically progressive state of New York in 2010.  

Clients often ask the question as to whether there is any penalty for a spouse engaging in less than stellar behavior during the course of a marriage. The truth is that there is little in the way of compensation available in California to the spouse who is the victim of such conduct. In the case of an extramarital affair, the law allows that spouse to recover any financial expenditures paid on the paramour that ostensibly were expended without the consent of the unknowing spouse, but the amount of those expenses has to be established. In the case of a spouse engaging in financial misdealing that caused a loss to the community estate, we have statutory remedies for breaches of fiduciary obligations. Where a spouse engaged in acts of domestic violence, the law has presumptions against joint custody as the legislature deems domestic violence acts committed against a spouse to be harmful to children, whether the children are involved or not.  In situations involving actual battery on a spouse, the family law act does not provide for any remedies that are capable of being ordered by a divorce court-although certainly acts that would impair a spouse’s ability to work are considered when fashioning support orders.  In those situations, there may be remedies available through separately filed civil actions.  These remedies should be discussed with an attorney specializing in that type of work along with the client’s family law counsel.

CATEGORIZED IN:News

Posted on Apr 12 on 2016

It seems that the public is interested in family law topics and the media is interested in discussing them.  In the past month, Fred has appeared on two programs talking about family law issues.  Allison Hope Weiner, the host of Media Mayhem  invited Fred to join her for a discussion about various high profile situations including Sherri Shepherd’s surrogacy dispute, as well as Madonna’s, Bill O’Reilly’s and other celebrities’ custody battles.  Fred then appeared on the NBC program The Doctors  talking with the hosts about a surrogacy case gone awry.   Links to both of these programs can be found on our website as well as here if you are interested in watching them:  

WATCH: NBC’s The Doctors featuring Fred Silberberg

WATCH: Media Mayhem featuring Fred Silberberg

 

CATEGORIZED IN:News

Posted on Apr 12 on 2016

It happens at times that parents sharing custody may find that one of them has to move out of the area.  The distance means that the custodial schedule the parents were once exercising now needs to change.  Any move that disrupts the current custodial schedule, will require the moving parent to request move-away orders to modify the current schedule if the parents cannot agree. The Court will look at a number of different factors in determining whether moving the child would be in the child’s best interests.

First, do the parents currently share joint custody or does the moving parent have sole custody of the child? If the moving parent has sole custody of the child, there is a legal presumption that the custodial parent may move with the child unless the non-custodial parent can show that the move would be detrimental to the child. If the parents share joint custody, then there is no presumption that the child can go with either parent and the Court must consider the impact of the move against the child’s need for a stable and consistent environment, the ability to maintain contact with both parents, the child’s age, the child’s relationship to each parent, and the email may require the involvement of a child custody evaluator to determine what is in the child’s best interests.

Move away requests also run the risk of the parent making the request getting their request denied. The court cannot prevent the parent from moving, only the child. This means that there is a risk that the Court can award primary custody of the child to the non-moving parent.

The weight given to each of the factors considered by the Court are different in every case. For example, the Court may find that a parent’s move due to a new job that would allow the parent to increase her income, support her child, and move where extended family may be available to assist served the child’s best interests and grant the move. On the other hand, the Court may also find that a parent’s move would mean that the relationship with the non-moving parent would be drastically curtailed and is not in the best interests of the child when the child is significantly attached to that parent.  A parent on either side of these situations should consult with counsel before making a final determination as to whether to proceed.

-Myle Nguyen

CATEGORIZED IN:News

Posted on Mar 15 on 2016

We have all heard the story of the couple that thought that by having a baby, their otherwise doomed-marriage would be saved.  It almost never ends up that way.  Mother carries the baby to term, the couple is caught up in the emotions of having a newborn child, but eventually the same issues resurface that were always there.  That child ends up in the joint custody of both parents who are now living in two households.

In that classic and somewhat trite story, hopefully the child still ends up with both parents.  While the split household arrangement may or may not be ideal, certainly a relationship with, and the support of both parents, is for the child’s benefit.  It seems, however, that when the child is what I call a “techno-baby”, one conceived by the use of fertility treatments, a different standard applies, at least in the mind of the parents who invoked the use of fertility procedures.  In the past few years we have seen, and continue to see, these dramas play out in our courts and in the media.  Somehow it seems that because people entered into contracts to attempt to create, or to actually create a new life, they can behave differently than had they conceived the “good old fashioned way”.  For the sake of children, there has to be an end to this double-standard.

The most recent case in point is that of former co-host of “The View”, Sherri Shepherd.  Last week Ms. Shepherd lost her bid to have the Pennsylvania Supreme Court grant review of her appeal whereby she is literally attempting to have herself declared not to be the mother of the child she caused to be conceived by way of in-vitro fertilization using a donor egg and the sperm of her now former husband.  Contending that she only went along with the process because she was afraid that her marriage would end otherwise, and that her ex-husband “tricked her” into signing the surrogacy contract so that he could ultimately get child support from her, she now believes that she should be able to set that contract aside, effectively leaving her child without a mother.  A child who, accordingly to press reports, she has never seen. Is anyone thinking about the poor child that now has a legal mother who does not want him?

And Ms. Shepherd is not the only person who seems to believe that because this is a “techno-baby”, the standard for determining who is the child’s parent should be different.  Not all that long ago, my client Jason Patric, was faced with having his child taken away from him for 18 months until a California Court of Appeal allowed him the right to a new trial to have him declared the legal father of the child that he conceived with a former girlfriend, also through the use of fertility treatments. In that case, the child’s mother wished to cut Mr. Patric out of the child’s life on the theory that because he provided his sperm to a physician for insemination of her egg, she had the right to decide that he was not the child’s father even though the child knew him to be the father.

These disputes are tragic enough when they involve children that have already been born; children who are caught in the middle of these battles and either know now, or ultimately will know, that at one point or another one parent didn’t want them, or one parent tried to sever the right of the child to have the other parent.  And while it may seem that these cases are few and far-between, there are actually many of them out there, but the public is not aware of them because they don’t involve celebrities.

The problem can even arise when there is nothing more in existence than embryos. There have been several cases in front of courts in various parts of the country over the last year addressing the issue of whether one party to a fertility procedure can take control over embryos and use them over the objections of the other party.

These cases only arise because medical technology was used to commence the fertility process, and the law has allowed intended parents who use these processes to distinguish themselves from parents who do not.  This distinction is dangerous for children in several regards: Should a person be forced into parenthood against their wishes either by allowing one party to control embryos they created jointly? Should a parent be permitted to disavow his or her child because fertility treatments were used to conceive that child? Should one parent be able to cut the other parent out for that same reason? The effects upon the child psychologically in these situations can be devastating.

The solution to the problem is relatively simple: In the case of embryos that are not yet implanted we need to implement statutes that mandate that what the parties agree to in terms of the conditions upon which the embryos will be implanted prior to their creation is what governs.  You don’t get to change your mind after the fact.  Similarly, if you have carried a techno-baby to term, whether it was carried by the biological mother or an unrelated woman, that is the child of the parents who intended its creation, and it matters not that a doctor injected the sperm into the egg.   These guidelines would require people to clearly define their roles before creating the pregnancy, and it would protect children from having to know at some point that have a parent who does not really want them, or that they lost a parent who really did.

CATEGORIZED IN:News