Divorce, Child Custody, Child Visitation, and Parenting Plans

Divorces involving children present special challenges for divorce lawyers and clients. For instance, the lawyers and parties must address questions about child custody, child visitation, and child support, among other issues. Have you ever wondered what sorts of documents are used to deal with such questions? Today, let's just talk about one such legal document: parenting plans.
In all Georgia divorces involving children, our judges generally require the parties to utilize parenting plans. Parenting plans are court-approved documents, or forms, which address most of the relevant issues in divorces involving children. For instance, there are provisions in this form, (for the parties to check off), addressing which party gets primary physical custody, along with whether the parties will have joint legal custody, and when child visitation will occur. The parenting plan form requires great specificity as to issues involving child visitation. The goal is to lock in, very clearly, where the children will be, (i.e. with which parent), for each day of the calendar year and how they will get there and get back home. For example, there are common provisions, such as a holiday schedule, (which can also be checked off), in which the parties may elect to alternate visitation on the holidays.
These are just a few examples of the provisions in Georgia parenting plans. It is important for you to carefully go over the parenting plan in your case with your own divorce attorney.
The ultimate goal of requiring the parenting plan is to require the parties in a divorce with children to agree to as many terms as possible, so that there will be fewer disputes and fewer returns to court down the road. I'll bet we all can agree that any document which helps you avoid divorce lawyers and avoid going back to court is a good thing! And if a parenting plan makes things a little bit easier for children of divorce, then it is a good thing indeed!

In Re Jackson v. Rowe: Grandparent v. Bio-Mom - Who Wins?

MICHAEL JACKSON'S LEGAL CUSTODY ISSUES





Before we start, here is my ever-proper lawyer disclaimer: without knowing the SPECIFIC details of the custody proceeding, my opinions are merely based on my legal experience. Thus, I am merely speculating and not giving legal advice.

The main issue I see revolving around the guardianship of Jackson's three (3) children (two whose biological mom is Rowe, and the third whose bio-mother is unknown), is grandparent rights v. biological parents rights.

If it were that simple, custody would go to Debbie Rowe. Hands down. Because Bio-Parent always wins over Grandparent (or third party).

Currently, the mainstream case governing grandparent visitation rights is the Supreme Court court case Troxel v. Granville, 530 U.S. 57 (2000). In that case, the unmarried mother and father of two children broke up and father moved out and in with his parents (grampa and gramma Troxel). The children got quite close to Gramma and Grampa during this brief period, and then father committed suicide two years later.

After father died, the mother stepped in and limited Gramma and Grampa Troxel's visitation to once a month. The Troxels decided to fight back and petition the Court for more visits. At that time, the Washington state law had a statute that basically allowed any third party to have visits if the visits were in the "best interests" of the children. So the Court ordered more visitation for Troxels - much more than what the mother wanted.

Mom appealed and won. The Appeals court held that third parties have no standing (that is, no power to challenge) unless there is already a custody proceeding pending. (Basically skirting the issue of whether visitation was lawful.)

The Washington Supreme Court affirmed the Appeals court, but on different grounds. They said that biological parents have a FUNDAMENTAL RIGHT of due process under the 14th amendment to make decisions for their children. Specifically, "parents have a right to limit visitation of their children with third persons" and between parents and judges, "parents should be the ones to choose whether to expose their children to certain people or ideas".

The U.S. Supreme Court affirmed. They held that parents have a substantive due process fundamental right under the 14th Amendment to solely make the decisions regarding the care, custody and control of their children and, absent a showing of parental unfitness, the state cannot interfere with those decisions. It was irrelevant whether the children would benefit from more time with their grandparents or that such visitation would be in their “best interests” as the state had no right to interfere in the first instance.

After this ruling, many states have enacted "Troxel" statutes. In California, specific code sections codify California’s strong policy preference for the rights of parents over non-parents:

Family Code 3040 states:
a) Custody should be granted in the following order of preference according to the best interest of the child as provided in Sections 3011 and 3020:

(1) To both parents jointly pursuant to Chapter 4 (commencing with Section 3080) or to either parent. In making an order granting custody to either parent, the court shall consider, among other factors, which parent is more likely to allow the child frequent and continuing contact with the noncustodial parent, consistent with Section 3011 and 3020, and shall not prefer a parent as custodian because of that parent's sex. The court, in its discretion, may require the parents to submit to the court a plan for the implementation of the custody order.

(2) If to neither parent, to the person or persons in whose home the child has been living in a wholesome and stable environment.

(3) To any other person or persons deemed by the court to be suitable and able to provide adequate and proper care and guidance for the child.

(b) This section establishes neither a preference nor a presumption for or against joint legal custody, joint physical custody, or sole custody, but allows the court and the family the widest discretion to choose a parenting plan that is in the best interest of the child.

Family Code 3041 states:

a) Before making an order granting custody to a person or persons other than a parent, over the objection of a parent, the court shall make a finding that granting custody to a parent would be detrimental to the child and that granting custody to the nonparent is required to serve the best interest of the child. Allegations that parental custody would be detrimental to the child, other than a statement of that ultimate fact, shall not appear in the pleadings. The court may, in its discretion, exclude the public from the hearing on this issue.

In California, if a custody proceeding is already pending, the non-parent, grandparent, or stepparent, must demonstrate the visitation requested is in the best interest of the minor and that the minor will not suffer detriment if the non-parent visitation request is granted. Under Family Code §3I00, the family law court has discretion to grant “reasonable visitation rights… to any other person [a non-parent] having an interest in the welfare of the child.”

If, however both parents object to visitation by the non-parent, there is a rebuttable presumption affecting the burden of proof that the requested visitation is not in the child’s best interest.

If one parent passes away, California Family Code §3102 governs, and states,
(a) If either parent of an unemancipated minor child is deceased, the children, siblings, parents, and grandparents of the deceased parent may be granted reasonable visitation with the child during the child's minority upon a finding that the visitation would be in the best interest of the minor child.

(b) In granting visitation pursuant to this section to a person other than a grandparent of the child, the court shall consider the amount of personal contact between the person and the child before the application for the visitation order.

California has its own Troxel case. In Zasueta v. Zasueta (2002), 102 Cal.App.4th 1242, during the divorce, Father committed suicide. Father’s parents petitioned for visitation. Mother opposed the request.

The trial judge (a grandfather himself of seven grandchildren) found Mother unfit based on the fact that she opposed grandparent visitation. Then the trial court, without good reason, held it was in the best interests of all children to see their grandparents, stating among other decidedly inappropriate remarks, that it is the job of all grandparents to “spoil their grandchildren.”

The Court of Appeal reversed, holding the trial court’s decision plainly ignored and therefore violated Troxel and violated Mother’s 14th Amendment fundamental right to raise her children, absent unfitness, as she pleases. In conclusion, the Court stated: “At the very least, Troxel teaches that trial courts must resist the temptation to personalize the proceedings and to substitute personal judgments for the decisions made by fit parents regarding visitation.”

SOOOOOO ...where does that leave Michael Jackson's children? Debbie Rowe is the undisputed bio-mom of two children. Under the statutes, her rights would trump Gramma Katherine's rights. The plot thickens, however - because she had previously terminated her parental rights, but the Court then reinstated them in 2006. How will this play out in the facts?

FINALLY, what about Blanket? Rowe is NOT the bio-mom of the third child. Thus, the statutes favoring bio-parents will not apply here. There IS, however, the inclination of courts to keep siblings together.

Ah, what a fascinating life and legacy he left us....

Michael Jackson's Children

Jackson custody case: the legal issues

Michael Jackson's ex-wife Debbie Rowe is reportedly considering whether to fight for custody of the couple's two children.

The BBC News website asked Professor Scott Altman, an expert in family law from the University of Southern California, to explain the legal issues surrounding the custody battle.
Who will win custody of Michael Jackson's three children? Many variables seem like they could affect the outcome.

Jackson's will names his mother as guardian (or in her absence, Diana Ross). His ex-wife Debbie Rowe tried to disclaim her status as a legal parent, and then returned to court and had the termination of her rights overturned.

And Jackson's youngest child seems to have no legal mother, having been born to an as-yet-unknown surrogate.

Bizarre and complex as these facts seem, most of the legal issues raised have been long settled in California (where admittedly bizarre and complex family disputes are more common than elsewhere).

In California, children born to a married couple are strongly presumed to be the spouses' legal children.

In this case, no one will be able to dispute Jackson's or Ms Rowe's status as parent to the older children.

Nor will Ms Rowe's early effort to terminate her parental right be final, because parents cannot terminate their own rights without a judicial investigation.

Likewise, Jackson's will should not affect child custody.

If the children know her as a mother and have seen her frequently, she will almost certainly win
Although parents regularly indicate in a will who should be named guardian in case of their death, these designations typically become effective only upon the death of both parents.
One parent's will cannot unilaterally deprive the other parent of custody.

So how will the court decide?

California law presumes that minor children belong in the custody of a legal parent - in this case Ms. Rowe.

The law also allows judges to override this presumption if parental custody would be detrimental to the children.

So a court will need to see evidence.

If, as has been widely speculated, Ms Rowe has rarely visited her children over many years and has almost no relationship with them, a court could easily deny her custody.

But if the children know her as a mother and have seen her frequently, she will almost certainly win.

This leaves the question of the youngest child. Ms Rowe has no claim to be his legal mother.

She did not give birth to him, and was not married to Jackson when the child was born. Certainly a court might award Ms Rowe custody of all three children - most courts favour keeping siblings together.

Back to School for Divorcing Parents

A common fight between divorcing parents is WHERE their children will attend school.

For parents with joint legal custody, the most frequent fight usually centers around the convenience of the PARENTS. One party has moved far away; and proceeds to enroll the children in another school, taking away the security of a school they've attended for a long time.

My advice here is the same everywhere - first and foremost, think of the CHILDREN - what are their best interests? Consider their stability - have they attended a certain school district for a while? Do they have good teachers, and friends at school? Remember, divorce is a very unstable event for a child, and a good support system outside of the home (in school) is vital. How do the schools rank in terms of academics? Does it have afterschool care? What are the transportation arrangements - must the children travel long distances in the car?

Custody battles are best resolved between the parties. I will tell you this - attorneys and Judges absolutely HATE meddling with people's custody disputes. I get involved only when one party is simply being unreasonable. Generally, I urge the parties to sit down, get over their animosity towards one another, and work out a good parenting plan.

My website contains a wealth of information on parenting plans, mediation, etc.
http://www.purposedrivenlawyers.com/FamilyLawLibrary.html

Work it out.

Are you going through a divorce with children? Some tips.

I stumbled on this article the other day, published by the American Academy of Matrimonial Lawyers. It is worth reading.



Ten Tips for Divorcing Parents

Divorce is never easy on kids, but there are many ways parents can help lessen the impact of their break-up on their children:

1. Never disparage your former spouse in front of your children. Because children know they are "part mom" and "part dad", the criticism can batter the child's self-esteem.

2. Do not use your children as messengers between you and your former spouse. The less the children feel a part of the battle between their parents, the better.

3. Reassure your children that they are loved and that the divorce is not their fault. Many children assume that they are to blame for their parent's hostility.

4. Encourage your children to see your former spouse frequently. Do everything within your power to accommodate the visitation.

5. At every step during your divorce, remind yourself that your children's interests – not yours – are paramount, and act accordingly. Lavish them with love at each opportunity.

6. Your children may be tempted to act as your caretaker. Resist the temptation to let them. Let your peers, adult family members, and mental health professionals be your counselors and sounding board. Let your children be children.

7. If you have a drinking or drug problem, get counseling right away. An impairment inhibits your ability to reassure your children and give them the attention they need at this difficult time.

8. If you are the non-custodial parent, pay your child support. The loss of income facing many children after divorce puts them at a financial disadvantage that has a pervasive effect on the rest of their lives.

9. If you are the custodial parent and you are not receiving child support, do not tell your children. It feeds into the child's sense of abandonment and further erodes his or her stability.

10. If at all possible, do not uproot your children. Stability in their residence and school life helps buffer children from the trauma of their parent's divorce.

Britney Spears Making Headway on Custody Case

Britney Gets More Time With the Lil' Ones!
Posted May 6th 2008 3:59PM by TMZ Staff
Britney Spears has gained more visitation of her two young sons, Sean Preston and Jayden James -- though how much more is unclear.K-Fed's attorney, Mark Vincent Kaplan, said after the court hearing today that he wouldn't talk about the custodial timeshare between Brit and K-Fed -- except to say that it is "more than it has been." Kaplan said the modifications to custody made today will be implemented "in the near future" and Kevin's "goal and his hope is his children will have the benefit of having two parents participating actively in their lives."Jamie and Lynne Spears released a statement that says they were "so pleased with Britney's progress" and "very appreciative" of the court's recognition of her progress.

And here I am, discussing the latest custody finding with Chris Harrison of Hollywood 411, on the TV Guide Channel.

What is a "Presumed Father"?

Here is an interesting question that was posed on the Avvo website (incidentally, a wonderful website with tons of resources and the "ins and outs" of attorneys).

"My wife nor I ever told the third party he was the father of our little girl. We never pursued child support or asked for any type of help at all. I was in the hospital when she was born, I signed the birth certificate, and I am raising her. Now, my daughter is age two, he wants to do a paternity test. Neither me or my wife want this done. What are his rights?"

This entry will discuss the difference between a biological father and a presumed father. In California, presumed fathers are accorded greater rights than natural fathers, such as the right to counsel and reunification services. [In re A.A. (2003) 114 CA4th 771, 779-780; see WIC §361.5(a).] Services are discretionary for non-presumed parents. Due process for an alleged father requires only that he be given notice and an opportunity to appear and assert a position and attempt to change his paternity status, and he is not entitled to appointed counsel or to reunification services. [In re Kobe A. (2007) 146 CA4th 1113, 1120.] A man is a presumed father of a child if he meets any of the following conditions:

So what is a presumed father?
A man is a presumed father if:
1) he was married to and cohabiting with the mother at the time of conception, and was not impotent or sterile. [FC §7540 et seq.]; OR

2)He and the mother were not married, but they both executed and filed a witnessed voluntary declaration with the Department of Child Support Services. [FC §7570 et seq.]; OR

3) He and the child's natural mother are married or were married, and the child is born during the marriage or within 300 days after the marriage is terminated by death, annulment, declaration of invalidity, or divorce, or after entry of a judgment of separation. [FC §7611(a).] OR

4)He and the child's mother tried to marry before the child is born, but the marriage is not legal, and the child is born either: During the attempted marriage or within 300 days after the marriage is declared invalid, or Within 300 days of cohabitation if the attempted marriage is invalid without a court order. [FC §7611(b).]

5) After the child is born, he and the mother marry or attempt to marry and
He consents to being named on the child's birth certificate, or

6) He is obligated to support the child under a written, voluntary promise or by court order. [FC §7611(c).] OR

7) He receives the child into his home and openly holds out the child as his natural child. [FC §7611(d).]

The presumption may be rebutted by clear and convincing evidence [FC §7612(a)], or by a judgment establishing paternity by another man [FC §7612(c)]. IT IS IMPORTANT TO REMEMBER THAT THERE CAN BE MORE THAN ONE PRESUMED FATHER. And when there are competing presumed fathers, the biological paternity of one father does not necessarily rebut the presumed status of the other man.

So what's the answer to the original question. If you had presumed father status, this would effectively override any biological father claims.

It is important to remember that presumed father status MUST be raised in order to successfully challenge a bio dad's paternity action. I once had a case where I represented the bio dad, and on the other side, there was a presumed father. The mother's attorney never raised the issue, and I was able to successfully obtain custody and visitation for my client.

Yes, I know this is confusing. If you have any questions, please discuss with someone well-versed in California Family Law.