Family Law Archives - Page 18 of 36 - Lonich Patton Ehrlich Policastri

The More The Merrier Revisited: Tri-Custody in New York

March 31, 2017/in Family Law /by Michael Lonich

As we have discussed on this blog before, California allows a child to have more than two legal parents. With the rise of assisted reproduction and wider recognition of non-traditional family units, it is growing apparent that children may receive substantial physical and emotional care from more than two people.

In California, the Martinez v. Vaziri case concluded that a child’s biological mother, biological father, and third person—the man who cared for the child and was the child’s only father figure—could all claim legal parentage. The case’s holding was grounded in a California statute (Family Code Section 7611) that allows children to have more than two legal parents if recognizing only two parents would be detrimental to the child.

Now, New York has stepped up to the plate in a case involving a polyamorous family. After a lengthy custody battle, a judge awarded custody of a child to three different people. When the child was born, the three people had been involved in a longstanding intimate relationship. Two of the people were married, and the remaining person lived next door. The married woman (Wife) could not conceive, so the family decided that the married man (Husband/Father) would impregnate the third woman (Mother), and the family would raise the child together. Ultimately, Mother gave birth to a boy, but then, Wife and Husband/Father got divorced while Wife and Mother continued their relationship. Even though Wife continued to see her son during his custodial time with his biological mother, Wife wished to formalize her own legal link to the boy.

Concluding that the child viewed both women as his mothers and would be devastated if any of his three parents were removed from his life, a New York judge granted parental rights to Wife, Husband/Father, and Mother. Unlike in California, this decision is not grounded in a statutory right to have more than two parents, but the case evidences an emergent shift in the judiciary’s interpretation of what constitutes a family unit.

If you have any questions about establishing your child’s legal parentage, please contact the experienced family law attorneys at Lonich Patton Erlich Policastri—we can help you understand and secure your and your child’s legal rights.

Lastly, please remember that each individual situation is unique, and results discussed in this post are not a guarantee of future results. While this post may detail general legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.

SOURCE:

http://www.cnn.com/2017/03/14/health/three-parent-custody-agreement-trnd/

Understanding the Impact of the Spousal Fiduciary Duty on Estate Planning

March 21, 2017/in Estate Planning, Family Law /by Michael Lonich

We have outlined the spousal fiduciary duty on this blog before; now, we’re delving a bit deeper to discuss the impact of the spousal fiduciary duty on estate planning. Traditionally, California courts rely on a common law burden-shifting framework when confronted with the possibility that a spouse has unduly influenced his/her spouse’s estate planning decisions. However, a 2014 case from a California Court of Appeal—Lintz v. Lintz— took a different approach, and instead, relied on the statutory spousal fiduciary duty articulated in California Family Code section 721 to resolve an estate planning/undue influence claim.

The common law framework provides that the person alleging undue influence bears the burden of proof. However, the challenger can shift the burden to the proponent of a testamentary instrument by establishing, by a preponderance of the evidence, three elements: 1) a confidential relationship, 2) active procurement of the instrument, and 3) an undue benefit to the alleged influencer.

Departing from the common law, the Lintz court—faced with an allegedly abusive wife who intimidated her husband into amending his trust to her tremendous benefit and to the extreme detriment of her stepchildren—looked to Family Code section 721 when it decided in favor of the husband’s estate. Section 721 creates a broad fiduciary duty between spouses that demands a duty of “the highest good faith and fair dealing.” Further, neither spouse may take unfair advantage of the other. As a result, if any inter-spousal transaction advantages only one spouse, a statutory presumption arises under section 721 that the advantaged spouse exercised undue influence. The presumption is rebuttable—the advantaged spouse can demonstrate that the disadvantaged spouse’s action was freely and voluntarily made, with full knowledge of the facts, and with a complete understanding of the transaction.

California Family Code section 850 describes three categories of inter-spousal transactions: 1) community property to separate property, 2) separate property to community property, and 3) separate property of one spouse to separate property of other spouse. Notably, the section does not consider transferring community or separate property to trusts.

The court concluded that section 721 applies because section 850 does include property transferred to revocable trusts—in Lintz, Wife’s undue influence caused Husband, via his trust, to transmute a large part of his separate property to community property. Accordingly, the court held that Family Code section 721 creates a presumption of undue influence when one spouse names the other as a beneficiary in a revocable trust.

Criticism of the decision abounds—all estate plans that name a spouse as a beneficiary, by their very nature, benefit one spouse. In turn, use of the Family Code undue influence presumption threatens to disturb all testamentary instruments, and litigation may flood the family courts as spouses seek to rebut the seemingly automatic presumption that Lintz creates. On the other hand, some commenters believe Lintz does not indicate a new paradigm, but rather, showcases a court’s eagerness to remedy the serious injury inflicted by a spouse’s egregious influence.

At the very least, the Lintz case does demonstrate that estate planning and family law are deeply intertwined. Consulting with an attorney to learn how a marriage or divorce can impact your testamentary wishes is always wise. If you have any questions about your family law and/or estate planning needs, please contact the experienced attorneys at Lonich Patton Erlich Policastri—we offer free half-hour consultations.

Lastly, please remember that each individual situation is unique, and results discussed in this post are not a guarantee of future results. While this post may detail general legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.

SOURCES:

California Family Code section 721

California Family Code section 850

Lintz v. Lintz (2014) 222 Cal.App.4th 1346.

The “Brangelina” Custody Battle

November 14, 2016/in Family Law /by Lonich Patton Ehrlich Policastri

After more than a decade together and six kids, Angelina Jolie and Brad Pitt are getting divorced. Aside from the challenges presented by the division of their purportedly very high value estate, the parties also face a potentially very challenging custody battle over their six children, who are all under the age of 16 years old.

To determine child custody, California courts look to “the best interests of the child.” While it sounds simple, this standard can prove quite challenging for the court depending on the family. Variables such as the child’s age, maturity, and their relationship with the parents, need to be considered. Moreover, the child’s school and activity schedule and the parents’ work schedules only add to the challenge. Courts may also, but are not required to, consider the child’s preference if he or she is of appropriate age and capacity. Whether a child is of “appropriate age and capacity” depends largely on their maturity and understanding of the proceedings, usually found to be around age 10.

Each case is different based on the level of cooperation, or animosity between the parents. Ideally, the parents can work together and agree on a workable custody schedule. However, the far more common scenario involves parents who cannot agree, and have difficulty communicating with one another. For these parents, the court must step in and make determinations based on the facts presented.

First, the court will send the parents to mediation. The mediator is a third-party neutral, meant to facilitate the parents’ coming to an agreement. Next, if they are still unable to agree, the judge will meet with the parents at a Judicial Custody Conference. If the parents are still unable to agree, the judge will order the parents to go through an Assessment After the Assessment, an in-depth process where the judge ultimately decides the custody and visitation schedule.

Courts may award sole or joint physical custody to the parents. Sole physical custody consists of the child living with and being supervised by one parent. Joint physical custody, on the other hand, can take many forms depending on the parents’ schedules, proximity to one another, etc. When parents share joint physical custody each parent has “significant periods” of physical custody. This does not necessarily equate to equal time between parents.

In Brangelina’s case, their unique work-life schedules, and global lifestyles will likely play a large role in how custody is ultimately split between the parties. Media sources report that both parties have asserted a desire to have physical custody of the children. Thus, some form of joint physical custody is the most likely result. Given that both, Angelina and Brad are actors, they have similar interests in a less traditional time-split for the children. Both parties will have to concede that they have extended periods of time when they remain on-site, and work long days while filming, which make them less available for the children during those time periods. A traditional 50-50 split is not going to work for them. Thus, it behooves them to try to cooperate with one another and recognize where they share common ground – the desire to give their kids the very best life they can. Luckily, Angelina and Brad have robust means to provide as non-traditional of a lifestyle for their children as they need to in order to fit whatever time-split needs they may have.

If the two cannot agree on an amicable custody arrangement, the court may have to step in. Given the children’s ages, it may consider their preferences depending on whether it finds they are of appropriate age and capacity. The court will likely strongly urge Angelina and Brad to try to agree on their own in light of the inherent publicity that follows their fame and the public’s interest in their celebrity lives. Like all parents, the parties are likely to feel more satisfied with an agreement they formulated rather than a court’s determination.

If you need help with a custody or visitation claim, please contact our California Certified Family Law Specialists. Our attorneys have decades of experience handling complex family law matters and offer a free consultation.

Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results. While this post may include legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.

Grandparents Have Rights Too: Grandparent Visitation

November 11, 2016/in Family Law /by Mitchell Ehrlich

The relationship between a grandparent and a grandchild can be one of great happiness and importance for both the grandparent and grandchild. However, sometimes events such as divorce or a parent’s death may strain loving relationships between grandparents and their grandchildren. As a result, the grandchild’s parent(s) may block any further contact with grandparents. However, all 50 states now have some type of grandparent visitation law that allow grandparents to ask the court to give them the legal right to maintain their relationships with their grandchildren.

In California, a statute grants visitation rights to grandparents only when they have a preexisting relationship with their grandchild “that has engendered a bond such that visitation is in the best interest of the child.” Cal. Fam. Code § 3104. In addition, the statute directs the court to balance the interest of the child in visitation with his or her grandparent against the right of the parents to exercise their parental authority. Id. Finally, the statute provides a rebuttable presumption that grandparent visitation is not in the best interest of the child if the parent objects.

However, in a recent case, Stuard v. Stuard, the Third District found that even though Family Code section 3104 provides a rebuttable presumption that grandparent visitation is not in the best interest of the child if the parent objects, the parent’s right is not absolute. Stuard v. Stuard (2016) 244 Cal. App. 4th 768. According to the Stuard court, the law “reflects a legitimate state interest in preserving an already existing grandparent-grandchild relationship that is threatened but in the best interest of the grandchild to safeguard.” In other words, even though there may be rebuttable presumption, it may be overcome. The grandparents will need to show in some detail what it is that they add to the grandchildren’s lives, not just a general statement that they have a close relationship with the children and that continuing that relationship is in the best interest of the child.

In a time when families are constantly changing, grandparent visitation laws have become increasingly significant. If you have any questions about grandparent visitation and would like to speak to an attorney, please contact Lonich Patton Erlich Policastri for further information. Keep in mind that each individual situation is unique and results discussed in this post are not a guarantee of future results. While this post may include legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.

Smith/Ostler Order: Accounting for Bonus Income’s Impact on Support Payments

October 19, 2016/2 Comments/in Family Law /by Virginia Lively

When calculating spousal or child support, courts look to a wage earner’s monthly income to determine an appropriate support amount. However, what if the wage earner spouse or parent receives bonus income in the years after the initial support order is entered? Support orders can be altered, but the process involves a court room, lawyers, and more legal fees. In re Marriage of Ostler & Smith offers an alternative answer—the Smith/Ostler order.

A Smith/Ostler order takes into account a spouse or parent’s unearned or prospective income, detailing when and how any future, additional earnings should be incorporated into a support order. However, because bonus income is prospective only, it may never be realized. Calculating support based off an unknown and/or unguaranteed dollar amount can underestimate or inflate a support order. Therefore, to account for the speculative nature of bonus payments, courts deal in percentages.

For example, in the seminal In re Marriage of Ostler & Smith case, the court awarded Wife 15 percent of Husband’s future cash bonuses. If Husband received a bonus, he would give 15 percent of whatever amount he earned to Wife, but if Husband did not receive any cash bonuses, he would not pay additional support. Importantly, the original support order would remain intact, and the parties would not need to argue over how much of the bonus income the supported spouse should be paid—the court order took care of those details and created a more easily administered support order.

In addition to cash bonuses, a Smith/Ostler order can account for future stock option income. For example, in In re Marriage of Kerr, Wife and Husband, while married, improved their standard of living by exercising stock options that had increased in value. Subsequently, during divorce proceedings, the court award Wife, through a Smith/Ostler order, a percentage of Husband’s income from any future exercise of those same stock options.

However, In re Marriage of Kerr presented an exceptional case where an additional measure besides a percentage amount was necessary to ensure that Husband’s spousal support order was not inflated. The value of Husband’s stock had increased exponentially after he divorced Wife. A specified percentage of the stock’s value would have increased Husband’s payments to a point that far exceeded the marital standard of living he shared with Wife. Thus, the court concluded that under special circumstances, such as the case at hand, use of a Smith/Ostler order is permissible only if the court caps the amount of future income a spouse can receive at a number proportionate to the martial standard of living.

If you are considering a divorce or legal separation and would like more information about how either action may affect your finances, please contact the experienced family law attorneys at Lonich Patton Erlich Policastri. We can help you understand and manage any spousal or child support issues that may arise.

Lastly, please remember that each individual situation is unique, and results discussed in this post are not a guarantee of future results. While this post may detail general legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.

Sources:

In re Marriage of Ostler & Smith (1990) 223 Cal.App.3d 33

In re Marriage of Kerr (1999) 77 Cal.App.4th 87

Mediation: Taking control of your divorce

October 10, 2016/in Family Law /by David Patton

The underuse of the mediation process seems to be largely attributable to the fact that many people are unaware of what a mediation session is and how beneficial it can actually be. In family disputes, mediation can be extremely rewarding, saving parties time, money and sanity.

The rules of mediation: you create them

In mediation, parties are not bound by many of the rules that govern judges’ decision making. As a result, parties can reach solutions that might not otherwise be available from a court. For example, if there is a dispute over child support or child custody, rather than having a judge decide the amount of support or amount of visitation based on guidelines and factors required by statute, parties are free to negotiate an amount or time deemed reasonable to both.

The outcomes: you decide them

In mediation, you are free to discuss with your spouse what is important to both of you and try to reach a mutually acceptable agreement. It differs from litigation in that parties avoid the uncertainty, time and stress associated with going to trial. Parties are able to hear and understand the other’s point of view and with the guidance of a mediator, this enables parties to reach a middle ground . Because the mediator does not have the authority to make decisions, it is ultimately the parties making their OWN decisions over their OWN lives.

However, a good mediator should have some family law experience and be able to offer practical guidance to the parties. A mediator with family law experience can offer parties insight as to what might and might not be granted in court, ensuring that no request is unreasonable or disadvantageous to the other spouse. This can make the mediation session much more productive.

Progress: in the mediation room and beyond

Lastly, even if you don’t settle all your divorce issues, chances are you did resolve some. Even having resolved one issue is progress. Further, the tenants of mediation promote cooperation and communication. Thus because parties are provided the opportunity to resolve their own case, mediation tends to reduce hostility and preserve ongoing relationships.

While divorce mediation works in many situations, it is not always appropriate. Litigation is often the best option in situations where there is domestic violence, one party refuses to cooperate in making required disclosures, or communication between the parties is impossible. If you have any questions about divorce mediation and would like to speak to an attorney, please contact Lonich Patton Erlich Policastri for further information. Keep in mind that each individual situation is unique and results discussed in this post are not a guarantee of future results. While this post may include legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.

Understanding the Spousal Fiduciary Duty

September 9, 2016/in Family Law /by Gretchen Boger

Marriage prompts a lot of change—last names, bank accounts, estate plans, housing—but one of the most important changes that arrives once you say “I do” is a fiduciary duty to your new spouse. Fiduciary duty may sound like a term reserved for the boardroom, but a broad fiduciary relationship exists between married spouses as well.

At the most basic level and as prescribed by California Family Code § 721, spouses possess a duty of “the highest good faith and fair dealing,” and “neither spouse shall take any unfair advantage of the other.” Further, the spousal fiduciary duty includes “the same rights and duties of nonmarital business partners” as outlined in the California Corporations Code. Although the Corporations Code uses business-centric language, the Family Code incorporates partner-based duties and applies them to spouses. Thus, spousal fiduciary duties include: 1) allowing access to transaction books, 2) providing full and true information about any community property, and 3) an accounting of any benefit derived from any community property transaction by one spouse without consent of the other spouse. Additionally, spouses owe each other a duty of loyalty—spouses must refrain from dealing with each other as an adverse interest and must refrain from competing with each other—and a duty of care.

Returning to the Family Code, Section 1100 details the fiduciary duties that accompany the control and management of community property. Of note is subsection (b): “a spouse may not make a gift of community personal property for less than fair and reasonable valuable, without the written consent of the other spouse.” In other words, even when giving a community fund-purchased gift to his/her children, a spouse needs the written consent of the non-purchasing spouse. Typically, a nonconsenting spouse is unlikely to challenge holiday and birthday gifts given to his/her own children, but that spouse does have the legal ability to void the gift and receive compensation for its value—an issue usually raised during a separation or divorce proceeding.

Importantly, even after spouses separate or file for divorce, they still owe a fiduciary duty to one another—until all assets and liabilities have been officially divided, spouses must act with respect to each other and fully disclose all material facts and information regarding community property or debts.

Ultimately, most spouses don’t actually keep (or legally, even have to keep) detailed transaction books in the manner expected of business partners, nor do most spouses actually ask for formal consent before making routine purchases, but it is important to note that unilateral transactions could be used as ammunition in a separation or divorce proceeding. Therefore, if you are pondering a large purchase or gift, it is wise to document the process, seek the written consent of your spouse, and/or use your own separate property to make the purchase.

If you would like more information about the fiduciary duty you owe to your spouse, please contact the experienced family law attorneys at Lonich Patton Erlich Policastri. From pre-nuptial agreements to divorce proceedings, we can help you understand how the spousal fiduciary duty plays a role in your marriage.

Lastly, please remember that each individual situation is unique, and results discussed in this post are not a guarantee of future results. While this post may detail general legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.

Sources:

California Family Code § 721

California Family Code § 1100

How SB 1255 (the “anti-Davis legislation”) Will Impact Your “Date of Separation”

August 29, 2016/3 Comments/in Family Law /by Mitchell Ehrlich

Currently divorcing spouses or couples considering divorce better consult a lawyer soon—a newly enacted statute has changed the method by which California courts determine a married couple’s “date of separation.” On July 25, 2016, the governor of California, Jerry Brown, signed SB 1255 (aka the “anti-Davis legislation”), a bill which amends California Family Code § 771 and adds section 70 to the Family Code. As a result, the existing standard that governs a married couple’s “date of separation” has been changed. Previously, Family Code § 771 instructed that spouses were not separated until they were “living separate and apart”—a phrase which courts interpreted to mean “living in separate residences.” With the passing of SB 1255 though, spouses may now be considered “separated” even if they share a common residence.

A couple’s legal “date of separation” is important because it determines the point at which a spouse’s earnings and accumulations are no longer considered “community property” and instead, are considered a spouse’s own “separate property.” In turn, the difference between community and separate property is important because absent a written agreement stating otherwise, all community property must be evenly divided between divorcing spouses.

SB 1255’s nickname—the “anti-Davis legislation”—came about because of the case its creation abrogates: In re Marriage of Davis. In July 2015, the Davis court held that “living in separate residences ‘is an indispensable threshold requirement’ for a finding that spouses are ‘living separate and apart,’” or in other words, for determining a “date of separation.” However, the Davis court didn’t create new law—it merely affirmed what it believed was the California legislature’s intention when it coined the phrase “living separate and apart” many years ago.

To ascertain the legislature’s intent, the Davis court had to do go back 146 years to 1870 when the phrase was first used in a statute that protected the rights of married women. Similarly to section 771, the 1870 Act did not define “living separate and apart.” However, according to the Davis court, section four of the 1870 Act suggests that the legislature intended for the phrase to require separate residences: a wife, who was “living separate and apart” from her husband and wished to sell her real property without joining her husband, had to record a declaration that included a description of “her own place of residence” and a statement that “she is a married woman, living separate and apart from her husband.”

Additionally, when the California legislature repealed a number of Family Code sections in 1969, it created a new statute (section 5118) that reproduced the 1870 Act language. Once again though, the legislature provided no specific definition of “living separate and apart.” The Davis court reasoned that the legislature’s continued use of the phrase—without defining it—expressed its satisfaction with earlier judicial interpretation of the language.

Further, the Davis court also relied on a notable 2002 case—In re Marriage of Norviel—which concluded that “living apart physically is an indispensable threshold requirement to separation, whether or not it is sufficient, by itself, to establish separation.” Therefore, relying on legislative history and case law, the Davis court affirmed the Norviel holding—spouses had to live in separate residences before they could be considered separated.

While the Norviel and Davis courts may have correctly discerned the original meaning of “living separate and apart,” our modern legislature took issue with their holdings and in response, passed SB 1255. The bill expressly abrogates Norviel and Davis, and rather than provide a specific definition for “living separate and apart,” the legislature did away with the phrase all together. Instead, section 771 (the modern statute that contained the disputed language) now uses the phrase “after the date of separation” to determine when a spouse’s accumulations and earnings transition from “community” to “separate” property. In turn, newly added section 70 defines “date of separation” as a “complete and final break” that is evidenced by two factors: 1) a spouse has expressed his or her intent to end the marriage to the other spouse, and 2) the conduct of the spouse is consistent with his or her intent to end the marriage. Further, section 70 requires that a court look at all “relevant evidence” when making the above determination.

This statutory change was spurred on by Senator John Moorlach (R-Costa Mesa), the author of SB 1255. He believed it was necessary to change the Family Code language because many spouses wish to separate legally in order to protect their personal finances, but also, wish to continue sharing a residence in order to save costs during their divorce. Thus, SB 1255 should better reflect the reality of modern divorce experiences.

While the amended Family Code sections do provide clarity and allow couples more post-separation flexibility, it is important to note that SB 1255 may not be the end of legal disputes about separation dates—in the coming years, case law will further refine section 70. Additionally, couples in the process of a divorce should not let SB 1255 pass by them unnoticed because when the new law goes into effect on January 1, 2017, it may retroactively apply to any cases pending on that date, but this issue still needs to be resolved and addressed by the Family Courts in California. Look for another blog post on this topic specifically. However, consulting now with your attorney to develop a “date of separation” strategy is in your best interest.

If you are considering a legal separation or divorce, please contact the experienced family law attorneys at Lonich Patton Erlich Policastri—we can help you navigate the effects of SB 1255 and answer any questions you may have about how the new law will impact your divorce. The sooner you understand how SB 1255 will affect your current or impending legal plans, the better you can prepare for the new rule when it goes into to effect on January 1, 2017.

Lastly, please remember that each individual situation is unique, and results discussed in this post are not a guarantee of future results. While this post may detail general legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.

Sources:

2016 Cal. Legis. Serv. Ch. 114 (S.B. 1255)

In re Marriage of Davis (2015) 61 Cal.4th 846

In re Marriage of Norviel (2002) 102.Cal.App.4th 1152

The More the Merrier?: When a Child Can Have More than Two Legal Parents

August 5, 2016/in Family Law /by Riley Pennington

Traditionally, when multiple parties would claim to be a child’s parent, a court could only recognize two of those claims. However, family matters are rarely so simple, and a recent California case has reaffirmed what subsection (c) of Family Code Section 7611 provides: “[i]n an appropriate action, a court may find that more than two persons with a claim to parentage under this division are parents if the court finds that recognizing only two parents would be detrimental to the child.” “Detrimental to the child” is determined by (but not limited to) the “harm of removing child from stable placement with a parent who fulfills that child’s physical and emotional needs and has done so for a substantial period of time.” Importantly, a finding of detriment does not require that a court find any other parentage claimant to be unfit.

In April 2016, the California Court of Appeal for the Sixth District elaborated on Section 7611. In Martinez v. Vaziri, the petitioner was the child’s biological uncle, the respondent was the child’s mother, and the child’s father was the petitioner’s half-brother. Petitioner and Mother had been in a long-term relationship when Mother conceived a child. However, DNA testing revealed that the child was fathered by Petitioner’s half-brother. Father abandoned Mother during her pregnancy, and since the child’s birth, he has been in-and-out of jail.

Aware that he was not the father, Petitioner raised the child as his own—he accompanied Mother to her doctor’s appointments, was present at the child’s birth, and lived with and cared for the child during her first six months of life. Even after he moved out of Mother and Child’s home, Petitioner continued to see Child three days and two to three nights a week. Eventually, Petitioner initiated proceedings to establish legal parentage.

Although the trial court denied Petitioner’s parentage claim, the Court of Appeal remanded the case for reconsideration of detriment to the child in light of its interpretation of “stable placement.” The trial court had concluded that even though Petitioner established himself as the presumed parent of Child, there was no threat of Child’s “stable placement” being upended because Petitioner had already spent substantial time apart from Child while he attended a drug rehabilitation program.

The Court of Appeal found the trial court’s interpretation of “stable placement” to be lacking and remarked that the phrase is in reference to a parent’s physical and emotional attention to a child’s need. Therefore, the critical distinction is not the living situation, but rather, whether a parent-child relationship has been established, and whether the claimant has demonstrated a commitment to the child.

Thus, as Martinez v. Vaziri demonstrates, a child is not limited to two parents. If a third claimant can prove a sincere and stable commitment to a child (a still demanding standard), a court has the ability to protect the alternative parent-child relationship—without penalizing the child’s other biological or presumed parents.

Establishing parentage is important for both parents and children; however, multiple parentage claimants can complicate the process. If you have questions about the parentage of your child or are interested in establishing legal parentage, please contact the experienced family law attorneys at Lonich Patton Erlich Policastri to help you sort through your and your child’s rights.

Lastly, please remember that each individual situation is unique, and results discussed in this post are not a guarantee of future results. While this post may detail general legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.

Sources:

1) Cal. Fam. Code § 7612(d)

2) Martinez v. Vaziri (2016) 246 Cal.App.4th

Alternative Custody Schedules: Bird’s Nest Custody

July 7, 2016/in Family Law /by David Patton

Divorce is always difficult—especially when children are involved. Consequently, there will never be a “one size fits all” approach to child custody. Traditional custody arrangements (sole, every other weekend, etc.) may work for some families, but others may benefit from an alternative schedule. Enter: bird’s nest custody. Bird’s nest custody is an alternative method of child custody where the children remain in the marital home, and it is the parents who make scheduled moves between residences. More specifically, one parent will move into the marital home (aka the “nest”) and take care of the children for a period of time while the other parent lives in his or her own individual home or stays with family and friends.

Bird’s nest custody is not right for every family, but it can be beneficial, even as a short-term, transitional solution, when the parents voluntarily consent to the arrangement and are able to communicate respectfully with one another. In return, children can acclimate to their parents’ divorce in a familiar environment, maintain accustomed to patterns of interaction with their school and friends, and be spared the emotional and logistical hassle of regular house switches. Additionally, parents who are not ready to sell the marital home–especially if the housing market is down—can hold off on that step until circumstances are more financially favorable.

Bird’s nest custody is not without a downside—namely, it is expensive. Instead of maintaining two homes, a family must maintain three homes. Parents can try to maintain only two homes by sharing the “off home” as well, but couples must be realistic about their ability to navigate the physical and emotional logistics of two shared residences. Additionally, some couples may not benefit from stalling the sale of the marital home—everything inside the house and the house itself are key pieces of a divorced couple’s property settlement. Without selling the home and its assets, reaching an agreement about the distribution of community property may be difficult.

Psychologically, issues arise for both children and parents. First, bird’s nest custody may leave children, especially young ones, confused about whether or not their parents have truly split. Second, parents may have trouble moving on if they maintain such strong ties to their marital home. Ultimately, a clean break may benefit children and parents more than the environmental stability that results from nesting.

Lastly, most real life attempts to implement bird’s nest custody are not successful. Seldom are divorced couples willing or able to make the approach work—ex-spouses do divorce for a reason! The aim of bird’s nest custody is to reduce a child’s stress, and if the approach leads to more tension and more arguments between the parents, the process will not benefit anybody in the family. Additionally, changes in an ex-spouse’s romantic status usually complicate the arrangement—even if new partners don’t mind moving between residences, rarely would a parent feel comfortable welcoming his or her ex-spouse’s new partner into the “nest.” Moreover, the situation is fairly impossible to implement if a spouse or new partner has children from a previous relationship.

Ultimately, successful implementation of bird’s nest custody requires clearing quite a few hurdles, but the approach demonstrates that alternative and creative custody arrangements do exist—families should not feel bound by traditional custody schedules.

If you are interested in learning more about bird’s nest custody or other alternative custody schedules, please contact the lawyers at Lonich Patton Erlich Policastri—an experienced family law lawyer can help parents craft the best custody arrangement for their children and themselves.

Please remember though that each situation is unique, and results discussed in this post are not a guarantee of future results. While this post may detail general legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.

Source: Michael T. Flannery, Is “Bird Nesting” in the Best Interest of Children?, 57 SMU L. Rev. 295, 297 (2004)

The More The Merrier Revisited: Tri-Custody in New York

Understanding the Impact of the Spousal Fiduciary Duty on Estate Planning

The “Brangelina” Custody Battle

Grandparents Have Rights Too: Grandparent Visitation

Smith/Ostler Order: Accounting for Bonus Income’s Impact on Support Payments

Mediation: Taking control of your divorce

Understanding the Spousal Fiduciary Duty

How SB 1255 (the “anti-Davis legislation”) Will Impact Your “Date of Separation”

The More the Merrier?: When a Child Can Have More than Two Legal Parents

Alternative Custody Schedules: Bird’s Nest Custody

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