Child Custody Mediation: An Invaluable Process

Posted November 16, 2009 in Family Law by Mitchell Ehrlich.

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November 16, 2009
Child Custody Mediation: An Invaluable Process
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If you have minor children and you separate or seek a divorce from your child’s parent, you will need to decide who will have custody of your children and how they will be taken care of. Although there are specific legal definitions, in short “Custody” means:

Who your child will live with and where (“physical custody”)

Who will make important “legal custody” decisions for your children (health care, education, other important decisions) and how.

All together, this is often called a “parenting plan.”

Your Parenting Plan

You need a parenting plan that is in the best interest of your child.

For “Physical custody,” which means time with the children, think about activities, overnights, and day-to-day care:

Where should my child be during the week? On weekends?

Where should my child be for holidays, summer vacations, and special days?

Which parent will be in charge of which activities (sports, music, homework)?

Which parent is in charge at which times?

How will my child get from one parent to the other (Transportation/pick ups   and drop offs)?  Who will pay the costs?

For “Legal custody,” which means making decisions about the children, be clear and specific about which decisions each parent can make on their own and which decisions you will make together:

Things such as Schools, Daycare, Religion, Medical and dental care

When and Why Mediation?

If you and the other parent are not able to informally reach a parenting plan, per California Family Code Section 3170, the court will order you and the other parent to meet with a professional child mediator before you can appear before a judge and have the court render a decision regarding custody.

The goals of mediation are to:

Help you and the other parent make a parenting plan that’s in the best interest of your children;

Help you and the other parent make a parenting plan that lets your children spend time with both parents, assuming it is safe and healthy to do so;

Avoid expensive, lengthy and emotionally taxing custody litigation.

What Happens in Mediation

Mediation involves both parents and a professional mediator. Attorneys rarely attend.  Mediation is a way to make decisions about your children without the time, expense and emotional cost of contested, litigated custody “battle” in court. You and the other parent keep control over the outcome by making your own agreement for how you will take care of your children, instead of leaving it up to a judge to make the decision for you. The legal term for this agreement is “stipulation.” It is also called a “parenting plan” or a “parenting agreement.”

What do mediators do?

Although most child custody mediators are experienced in family and marriage counseling, mediation is not counseling. A mediator meets with both parents and works with them to try to agree on a plan that is best for their child. In fact they are duty bound per Family Code Section 3180 which provides that the mediator has the duty to assess the needs and interests of the child involved in the controversy, and shall use his or her best efforts to effect a settlement of the custody or visitation dispute that is in the best interest of the child.

Guidelines for mediation:

Treat each other with respect. You will both get a chance to explain your ideas.

Listen to each other and try to find real solutions.

Put the children first. Think about what they need and can handle.

Frequently Asked Questions

Is what I say in mediation confidential?

In some counties such as Santa Clara County, Lonich and Patton’s main county of practice, what you say is completely confidential. The other party can’t use it in court in any way. This is pursuant to Family Code Section 3177 which provides that Mediation proceedings pursuant to this chapter shall be held in private and shall be confidential.  All communications, verbal or written, from the parties to the mediator made in the proceeding are official information within the meaning of Section 1040 of the Evidence Code.

In other counties, such as Santa Cruz and Alameda Counties, mediators make “recommendations” to the judge when the parents don’t reach an agreement in mediation. What you say in mediation can be reported to the judge and to the other parent and his or her attorney – but it’s confidential as far as anyone else goes.

What happens if we can’t agree on everything in mediation?

The failure to reach an agreement on every single issue does not mean that the mediation was unsuccessful. Even if you can only agree on vacations and holidays, or perhaps a temporary schedule for the next six months, you still have achieved success. In these instances, though, what happens after mediation (if there is not a full agreement) depends on the court.

What if the other parent and I cannot agree on anything?

Mediation can still be a valuable tool. For example, even if you can’t agree on a parenting plan, you may be able to narrow the scope of the dispute with an idea of what the other parent’s main areas of concerns are. For example, if you are a working parent and the other is not, they may be concerned about your parenting ability or experience. Or perhaps you have concerns about the other parent’s ability to control their anger.

By learning of these concerns in mediation, even in the absence of an agreement, perhaps the parties can take parenting classes or anger management counseling that will placate the others parent’s concerns.

Should I meet with my lawyer prior to Mediation:  Yes.

While mediation is not intended to be an adversarial process, preparation with your attorney is invaluable and will lead to greater success. Your lawyer can help explain the process and educate you on the issues that should be addressed during the mediation. A good attorney can also assist you in how to communicate your concerns and how to ensure that you have sufficient time.

Will my lawyer look at my parenting plan before I go to court?

Yes. Your lawyer should go over this agreement (also called a “custody and visitation agreement”) before it becomes a permanent child custody order.

Good luck with your parenting plan.

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Transmutation of Community Property for Estate Planning Purposes

Posted November 13, 2009 in Estate Planning, Family Law by Michael Lonich.

Two recent California court decisions have held that once a spouse has transmuted his or her separate property into community property, then that property is permanently considered community property, regardless of explicit language in the transmutation agreement to the contrary.

In both Marriage of Holtemann and Marriage of Lund, a husband agreed to transmute his separate property into community property because he wanted his wife to have access to it in the event that he died before she did.  However when the parties divorced, the wife claimed that the husband’s separate property, pursuant to the agreement, was now community property.  In turn, the husband argued that the agreement effected a valid transmutation only for estate planning purposes, and therefore was not effective for dissolution purposes.

Both courts held that there is no such thing as a transmutation of property for estate planning purposes only, regardless of language in the agreement that purported to condition the transfer upon the death of either spouse.  Therefore, California courts have held that once separate property has been transmuted into community property, it is considered community property for all purposes, including dissolution.

Marriage of Holtemann (2008) 166 Cal. App. 4th 1166

A husband and wife entered into an agreement for the purpose of designating how their property was to be disposed of when they died.  Specifically, the agreement stated that the husband was transmuting his separate property into community property.  Although there was language in the agreement that alleged to have qualified or limited the transfer upon the death of either spouse, the appellant court held that the agreement effected a present transmutation of the husband’s separate property into community property.  However, the court did note that the husband still retained his right to seek reimbursement for his contribution of separate property to the community estate pursuant to California Family Code §2640(b).

Marriage of Lund (2009) 174 Cal. App. 4th 40

A husband and wife signed a written agreement that transmuted the husband’s separate real properties into community property.  The agreement further provided that it was a transfer of property only for estate planning purposes.  The appellate court held that a valid transmutation of the husband’s separate property had occurred.  The court reasoned that the husband had made an express declaration in writing of his unambiguous intention to transmute all of his separate property and therefore a valid transmutation had taken place notwithstanding the fact that the agreement did not use the word “transmutation.”  Thus, the court effectively held that there is no such thing as a transmutation for estate planning purposes only.

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Recent Developments Re: Domestic Violence Restraining Orders

Posted November 13, 2009 in Family Law by Julia Lemon.

In the recent case of In re Marriage of Nadkarni (173 Cal. App. 4th 1483), Husband accessed Wife’s private email account during a custody proceeding to find out information about her whereabouts; he then attached emails to pleadings filed with the court and alleged that he obtained other information that was inflammatory and sensitive that he planned to use in future litigation.  Wife filed a request for a Domestic Violence Temporary Restraining Order under the Domestic Violence Prevention Act (DVPA), asserting that Husband had improperly accessed her private email account without her authorization and was threatening to use inflammatory material to detrimentally affect her business relationships and embarrass her in court.  She also alleged that Husband used information from her email account to monitor her social calendar, and that his knowledge of her activities, coupled with his history of spousal abuse, made her fear for her safety.  While the trial court initially granted a Temporary Restraining Order, it subsequently determined that Husband’s conduct did not rise to the level necessary for an extended DVPA restraining order and dismissed her application.

On appeal, the court determined that a restraining order could be issued to prevent someone from, among other things, stalking, threatening, harassing, making annoying phone calls, or disturbing the peace of the person making the application or his or her family members; violent conduct or actual physical harm is not necessarily required.  It then defined “disturbing the peace” to include “conduct that destroys the mental or emotional calm of the other party.”  Therefore, the court reasoned that Husband could certainly have disturbed Wife’s mental and emotional calm by accessing her email account, reading her emails, and publicizing their contents, and her application sufficiently alleged conduct that could be threatening and injurious to her mental and emotional well-being.  Therefore, the trial court should have held a hearing on the issue.

This case is important because it clarifies that the statutes pertaining to domestic violence should be interpreted broadly and that the court should focus on the big picture and the context of victimizers’ acts when addressing domestic violence related matters to ensure that they are handled fairly and appropriately.

Excerpted from California Family Law Report July 2009 at http://www.cflr.com/com/2009_07.php

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10 Tips for choosing a Guardian

Posted November 3, 2009 in Estate Planning by Michael Lonich.

Choosing a guardian for your children is one of the most important estate planning decisions you and your spouse can make. Without a guardian, the court will choose one for you if you and your spouse die unexpectedly. This is a big motive for you to choose and have the say in who will care for your children should the unexpected happen. These are 10 tips to help you make an important decision.

1. Take inventory. Form a list of potential guardians. These can be a number of different people that don’t just have to be family members.

2. Make value judgments. Consider the values that you and your spouse share and ask yourselves which guardians share them as well. You might not find a perfect match so be sure to pick the most important values.

3. Consider the intangibles. Intangible qualities are a big part of a potential guardian. Is this person a “good match”? Do they have the patience and maturity? Are they loving?

4. Consider age. Factor in the age of your guardian to your children. Grandparents may not be the perfect match for the energetic four year old.

5. Be practical. Be sure to pick a guardian that can support your children. Make sure they can accommodate them at their house and take notice of their location.

6. Don’t dismiss the possibility of separate guardians. If the children are from different marriages, are far apart in age, or have special needs, consider separate guardians that might serve them better.

7. Talk it over. Narrow down your choices and choose a first choice with some alternatives. Talk with them about your decision and make sure that person is on the same page as you with becoming your children’s guardian.

8. Put it in writing. Be sure to put the guardian or co-guardians in writing in your will. In this stage you can also exclude potential guardians, name alternate guardians, and the person who will attain the role of guardian in the case of divorce.

9. Choose a temporary guardian. You should also consider choosing a temporary guardian that can take care of your children in the event that you are unable to do so (for medical reasons, for example). This could be the same or a different guardian as your permanent decision.

10. Be flexible. Be sure to check back on your guardian decision as your children get older because what might be a good fit today may not be 10 years from now.

We would be more than happy to help with your guardianship or any other estate planning needs. Fell free to contact us or comment with questions.

Courtesy of The Estate Planner, Triplett Services, LLC, May/June 2009 issue.

10 Tips for choosing a Guardian

Choosing a guardian for your children is one of the most important estate planning decisions you and your spouse can make. Without a guardian, the court will choose one for you if you and your spouse die unexpectedly. This is a big motive for you to choose and have the say in who will care for your children should the unexpected happen. These are 10 tips to help you make an important decision.

  1. Take inventory. Form a list of potential guardians. These can be a number of different people that don’t just have to be family members.

  1. Make value judgments. Consider the values that you and your spouse share and ask yourselves which guardians share them as well. You might not find a perfect match so be sure to pick the most important values.

  1. Consider the intangibles. Intangible qualities are a big part of a potential guardian. Is this person a “good match”? Do they have the patience and maturity? Are they loving?

  1. Consider age. Factor in the age of your guardian to your children. Grandparents may not be the perfect match for the energetic four year old.

  1. Be practical. Be sure to pick a guardian that can support your children. Make sure they can accommodate them at their house and take notice of their location.

  1. Don’t dismiss the possibility of separate guardians. If the children are from different marriages, are far apart in age, or have special needs, consider separate guardians that might serve them better.

  1. Talk it over. Narrow down your choices and choose a first choice with some alternatives. Talk with them about your decision and make sure that person is on the same page as you with becoming your children’s guardian.

  1. Put it in writing. Be sure to put the guardian or co-guardians in writing in your will. In this stage you can also exclude potential guardians, name alternate guardians, and the person who will attain the role of guardian in the case of divorce.

  1. Choose a temporary guardian. You should also consider choosing a temporary guardian that can take care of your children in the event that you are unable to do so (for medical reasons, for example). This could be the same or a different guardian as your permanent decision.

  1. Be flexible. Be sure to check back on your guardian decision as your children get older because what might be a good fit today may not be 10 years from now.

We would be more than happy to help with your guardianship or any other estate planning needs. Fell free to contact us or comment with questions.

Courtesy of The Estate Planner, Triplett Services, LLC, May/June 2009 issue.

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