Thursday, January 21, 2010

Child Custody: What if the move is to block visitation?

In one of my last blogs, I covered aspects of child custody when the greater time share parent plans on moving with the children. As noted, the court must take into consideration various elements including the child's best interests in the ultimate custodial placement.

To refine this point, I call the reader's attention a recent unpublished California Appellate Court decision worth one's reflection and review. As a cautionary note, keep in mind an unpublished opinion cannot be used as a definitive legal principle, however it can be helpful in assisting the courts, attorneys and ultimately the parties on the direction certain legal precedents may be heading.

Since every family law case and custody matter is unique to that individual family, interpreting this case and for that matter any case must be tempered by the reality that each case before the court will be decided on their specific needs, not just on what happened in some other case. With all this as a backdrop, lets look at the case known as Irpp of Oliver and Gaines-Unpublished opinion of District 2, Division 8 (filed December 22, 2009)

The facts of this case are as follows: The child was born in 2004 and always lived with mother. Father had no contact with the child for the first year and a half of the child's life. Father filed a petition for paternity and in a motion requested custody, visitation and support. Mother's response to the motion claimed father abused drugs.

In a hearing May 2006, the court held that father had almost no contact with the child in spite of mother's efforts to facilitate a relationship. The court also determined that the child has special needs and that father did not have the capacity to care for his son. There also was some concern over the allegations of father's drug use.

For these reasons, the court awarded mother physical and legal custody with a detailed visitation plan for father.

In November 2006, mother petitioned the court for permission to move to Houston TX. It should be noted that mother had never lived in Houston nor did she have family in that area. Mother claimed that the move would be to a better more affordable community.

Father objected to the move claiming that the move would impair his fledgling relationship with his child and consequently the request to move to the other state should be denied.

At hearing, the trial court determined that the move was inappropriate and was denied. The court reasoned that the child would be prejudiced by a move to Texas because:" at a distance, mother's tendency to look for loopholes will increase the likelihood of diminished contact with father". The trial court also noted that the expense of travel and father's limited financial means could put father in a position where he would just give up on trying to see the child due to those economic limitations.

Mother appealed and in the unpublished opinion, the court affirmed the lower court's decision to prevent the move noting that the court must consider when a parent requests to move the following factors:

1. The children's interest in stability and continuity in the custodial relationship.

2. The distance of the move.

3. The age of the children.

4. The children's relationship with both parents.

5. The relationship between the parents and their ability to communicate and cooperate effectively and their willingness to put the children's rather than their needs first.

6. The wishes of the children if they are mature enough to express them and such an inquiry is appropriate.

7. The reasons for the proposed move

8. The extent to which the parents currently are sharing custody.

In this particular case, even though father had not really started his parenting relationship with the child, the court felt keeping the child in California was the best chance that the needs of the child on developing a relationship with his father would be met.

To conclude, child custody and move away cases are extremely complex. Each fact pattern will be assessed differently by the judge to meet the needs of each case. For these reasons, getting legal representation from a highly skilled attorney with many years experience in the field of family law increases the chances of achieving your goals in developing the best outcome for you and your children.

Wednesday, January 13, 2010

Child Custody: Can You Move With the Kids to Get a Better Job or Find a Less Expensive Community?

The economy has caused many families to reconsider their current living situations. Record numbers of home foreclosures abound giving rise to the need to find new housing and, in some instances, different and less expensive communities in which to live and work.

When a custodial parent loses their job or must move, a companion issue may present itself. How far away can you move with the children?

The law in this area (commonly refered to "move away cases" )has evolved over the years. A century ago, the man was considered the head of the household and, in that role, was given free rein to pick up and move with his children wherever he pleased. To counter that, the courts typically awarded children to the mother under the 'tender years docterine': if the child(ren) were young, the courts would tyically award sole custody of the childern to the mother.

Much has changed since the early 20th century. Family systems regularly have both parents playing a significant role in parenting the children. In 1980, the California Legislature amended the Family Code to expressly declare it to be a policy of California to "assure minor children of frequent and continuing contact with both parents".

This law ,as well as the courts recognition of the psychological benifits of children having significant relationships with both mother and father, led courts to become more protective of the rights of a non-moving parent.

So, here we are today. Where does this area of law leave a parent that must relocate to live in a less expensive community or to find a new a job?

Courts today look at a number of factors in establishing how the custodial plan should play out with a move. The court must look at the child's interest in stability and continuity in the custodial relationship as well as practical considerations such as the distence of the move, the age of the child, the child's wishes assuming the child is sufficiently mature to have an informed opinion.

If the court feels that these parenting relations can be maintained, then the move would be allowed. However, if the court felt the move was too disruptive to the child's relationship to the non moving parent, the court may rule that the children should be in the custodial care of the non moving parent.

Consequently, courts have the broadest discretion and the courts orders are effectively not appealable since great deference is given to judicial discretion by the appellate courts.

If you are planning to move or are the parent facing a motion requesting that the other parent move away with the children, you and your childrens legal rights will be determined by the judge assigned to hear your case. Therefore, it is critical that in proceeding to court, you secure the best chance possible on a favorable outcome by having a skilled family law attorney represent you in this life changing legal matter.

Monday, January 11, 2010

Willful Failure to Pay Child Support Can Be a Federal Crime

As if it wasn't enough to be financially crushed by the worst economy in decades, if you are obligated to pay child support and willfully fail to do so, you can be on the receiving end of a criminal conviction.

Times are really tough. People are losing their homes due to foreclosure and seeing their jobs vanish due to a flattened economy that remains on life support. For those people obligated to pay support and haven't, there is the additional risk that they may suffer State or Federal prosecution if they are not paying their child support.

A recently published case on point United States v Davis (12/18/09) 8 Cir No. 08-3692(Riley) 2009 WL 4877587 determined that under the Child Support Recovery Act (CSRA) the government in prosecuting a parent for failure to pay child support need not show that the defendant was able to pay the total child support arrearage and willfully failed to do so but only that the defendant was able to pay part and willfully failed to do so.

In brief, father and mother separated in 1996. This relationship was a non marital relationship. Consequently,mother filed a request to establish fathers paternity and got a court order confirming he was the father of their two children as well as an order for father to pay child support.

Father seemed to always stay one step head of any income withholding order and kept changing jobs. By 2008, father owed over $52,000.00 in unpaid support. A federal Grand Jury handed down a two count indictment against father for violating CSRA for willful failure to pay his child support obligation. At the end of his trial, father was found guilty and sentenced to 2 years in federal prison and 1 additional year of supervised parole.

Father appealed the trial court ruling and sentence.The appellate court affirmed father's conviction. On review of the trial court proceedings, the appellate court felt the evidence was sufficient to establish willfulness because the defendant father could have paid more than he actually paid.

What does this all mean? The main message sent by the court is that if you owe any amount of support and fail to pay some if not all that you owe, then you could be convicted of a crime and face serious jail time.

If you owe support and can't pay it, take steps to work directly with the child support collection services to pay something on account of the support. If you are really in bad financial shape, you have to file a motion in the proper court to ask the judge to reduce your support payments and give you time to pay any arrearages.

Even though there is a cost for a skilled family law attorney to represent you on filing a motion to reduce support and negotiate support arrearages, the investment in getting the proper legal help may make the difference between freedom or jail. .

Tuesday, January 5, 2010

Staying Together for the Sake of the Economy (not the kids)?

I just read an interesting article concerning the shift in divorce rates that may be influenced by the economy. The AOL article by Barbara Bartlien claims that divorce filings have remained roughly the same in every single state in the 2006-2008 period. She acquired this piece of information from the Center for Disease Control National Center for Health Statistical Data.

She concluded that since the population is growing that the fact the divorces remain about the same suggests a big drop off in people ending their marriages. She goes on to point out that "divorce filings have been slashed by one-third in Massachusetts, Connecticut, and New York -- northeastern states with heavy exposure to the financial industry that has been battered by today's credit debacle."

Statistics are only as good as the interpretation applied to them. Some would interpret her findings a flawed in that the measure of successful or failed marriages (primary relationships) may or may not have a direct correlation with the actual number of divorce filings.

Marriages are not the only way people form committed partnerships. Many couples have elected to opt out of marriage for one reason or another yet live together, have kids and run their lives as a committed couple. I see a number of these relationships when they end as clients coming in to establish paternity and request child support from the family law courts.

I've observed the economy expand and contract over the last three decades and in that same time period witnessed the impact these events have on the stability of marital and other primary relationships.

Quite simply, a bad economy does not make a bad relationship any better.

It true that some couples may try to stay together in rough economic times but inevitably if the couple does not invest in trying to fix the relationship (if it can be fixed) then invariably, the relationship must end.

I have spent many hundreds hours counseling prospective clients and clients in bad relationships coming apart in bad economic times. Staying together for the sake of the economy, just like the fable of staying together for the sake of the kids ultimately does not work and in fact can create more problems when you finally get to the point of ending the relationship.

If you have kids in these situations, they suffer directly from the fighting that takes place in the house. Even if the parents think they have their emotions under wraps by speaking infrequently to each other in front of the kids and sleeping in different bedrooms, the children witness this and learn the worst about how to deal with conflict in an unhealthy relationship.

Even without kids, staying together invites the escalation of conflict, damaging management of community credit and resources and the likelihood that once you finally separate and go through the legal process, the hostility driving the separating couple will translate in more attorney fees being spent on getting the case and property issues under control.

Face the facts, if you know the relationship is at an end, do the proper cost benefit analysis that includes the emotional cost to you and to any children by prolonging a relationship that must end.