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Thursday, September 1, 2011

San Francisco Divorce & Bad Parenting

I was one of those kids who got spanked when I did something wrong.  My dad always used to say that spanking me hurt him more than it hurt me.  Being an adult, I can now understand and empathize with what he said.  I don't think any rational parent would take joy in punishing their child much less spanking them.  I certainly at no point ever considered suing him in court when I became an adult. 

San Francisco child custody cases sometimes have one parent accusing the other of bad parenting.  Some of you may have read the story where recently a 23-year old named Steven Miner II and his 20 year old sister Kathryn sued their mother Kimerbly Garrity over what they called bad parenting.  Even worse, the lawsuit was filed by three lawyers including Steven Miner I ... that's right, the divorced father to the mother!

In court papers, the children accused their mother of making them wear a seatbelt in the car or that she would call the police, at one time sending Steven Minor II a birthday card with no money in it, and imposing a midnight curfew on Kathryn.  The mother also didn't send Steven II care packages when he went to college.  The backdrop focused on the kids growing up in a $1.5 million mansion in an upper scale Chicago suburb.  I can only assume they felt they weren't getting what other kids were.

I'm going outside my realm to say I was quite disgusted by this piece.  I will admit I don't know all the facts.  I don't know whether the children or the father propagated the lawsuit.  If it was the father, he should certainly be ashamed of himself for using these kids as pawns.  If it was the children, then on it's face it seems the sense of entitlement was taken before a court of law and called 'bad parenting'. 

Parents in child custody actions in San Francisco tend to often point the finger and accuse the other parent of 'bad parenting' hoping this will often curry favor with the judges.  Most judges tend not to think twice about this unless it causes an imminent safety issue with the child, or could cause harm or would be against the child's best interests.  Parents very often make mistakes.  As humans all of us do at some point in our lives. It's unfortunate in our system that some view those mistakes as valid reasons to take away custody.  In Kathryn Garrity's case, I'm not so sure the father's decision to represent his kids in suing the mom is going to get the ultimate revenge.  From a straw poll of public opinion with a story that now has national press, the father looks to be the bad parent here. 

Bad Mother Lawsuit Story Link

Wednesday, August 31, 2011

Mel & Oksana - Child Custody Creativity

It would seem the long saga that is Mel Gibson and Oksana Grigorieva has finally come to a conclusion when it comes to child custody.  The pair has been fighting over their child Lucia for years.  Oksana alleged domestic violence, allegedly leaked tapes containing Mel Gibson's rants and both have engaged in an ongoing PR smear campaign for the sake of gaining leverage over the other.  It's been truly disgusting to watch as a practitioner. 

This post doesn't focus on all the riff raff this couple mud slinged on each other over the past few years.  It does however reflect on the final decision reached in the case and the creativity that went into this arrangement between the two parents.  Mel Gibson is to pay his ex-girlfriend, Oksana Grigorieva $750,000, payable in 3 installments of $250,000.  Oksana can live in the house with their daughter which Mel shall continue to pay until the child turns 18 years old.  At that time, the house will be sold and the proceeds shall be placed in a trust for the daughter.

Now if this matter had gone before an actual judge, it is doubtful they would've come to the same arrangement.  In San Francisco family law child custody, it is always good practice to tell clients the options when it comes to settlement versus having the judge decide. 

In a settlement agreement, the parties' can usually frame and agree upon anything they want so long as it isn't against public policy.  As for Mel and Oksana, he agreed to the lump payout of $750,000 and the selling of the house when the daughter turns 18.  This left the decision for their child in their hands, and not some stranger in a black robe. 

When a child custody case goes before a judge, a judge is bound to follow the law.  The law generally indicates they are to make decisions 'in the best interests of the child'.  With such a broad reading of that statute, judges generally stick to the basics relying on California guideline child support, timeshare with the parents and establishing who has custody of the children.  It is doubtful a judge would've come to the same settlement agreement Mel and Oksana reached.

It goes to show, when you settle, it is nearly limitless as to the creativity you can agree on and furthermore, you and the other parent control the outcome.  When a judge decides, they are bound to the law and more often that not, reach decisions that both parents find some dissatisfaction with.   

Monday, August 29, 2011

San Francisco Divorce Tax Free Transfers

There aren't very many silver linings in most San Francisco divorce proceedings.  I had a consultation last week and the individual needed some good news after I explained his particular situation.  I told him that one thing that might be good is that transfers pursuant to a divorce decree are considered tax free under Internal Revenue Code section 1041.

1041 essentially provides in a nutshell that any gain or loss from one individual to another in a divorce Judgment shall not be considered taxable income.  Transfers of property subject to a divorce are considered tax free if they occur within one year after the date of which the marriage ceases.

Note the intricacy of this rule though.  Lets say that husband (H) keeps the marital residence pursuant to a divorc decree and buys Wife (W)'s interest out of the house for $100,000.  The $100,000 is the buy-out of W's interest.  When the divorce is finalized, H transfers $100,000 to W in consideration for her community interest in the home.  That transfer of $100,000 is not taxed.  H keeps the home.  When H sells the home years later, H will be solely responsible to pay taxes for capital gains on the home and any other taxes that apply.

Tax implications are unfortunately a necessary component to think about when it comes to divorce proceedings.  Altohugh the 1041 rule applies to transfers subject to a divorce decree, it does not apply to 'taxable' events that may occur subsequent to the divorce.  It is a good idea to speak to a family law attorney about these issues during your initial consultation with the attorney or as you begin attempting to work out a property division agreement in your divorce.

Monday, August 22, 2011

San Francisco Child Support / Private School

When it comes to educational costs in the child support calculation, this is treated as a "discretionary" expense rather than a mandatory one.  This means that the Judge has the discretion to determine whether the private school costs being asked for by one parent are appropriate and that both parents should be forced to contribute to such costs in the child support formula. 

Some of the things the Judge has looked at in San Francisco child support cases I have handled have include:

1.  Needs of the child - Does the child have a specific need for private school due to a mental or physical disability or other medical diagnosis? 

2.  Length of attendance - Has the child attended private school previously?  Did both parents pay for the private school costs prior to one of the parties filing their motion before the court?  If the child has an established history of attending private school this is an argument weighing in favor that private school continue.

3.  Standard of Living - Does the child have an established standard of life that should be expected to continue?  This also weighs into the issue of ability to pay.  One or both party's ability to pay the high cost of private school tuition should always be taken into consideration; and very often this is a compelling argument for most judges for the private school issue.

4.  Are there other alternatives other than private school?  If the child will not be attending private school then where will the child have to attend school?  What kind of standing or reputation does the school have in the community?  What does the neighborhood in which the school is located look like?

Private school in short is a discretionary expense when it comes to the California child support formula.  However your child custody attorney should be asking these additional questions in giving you a better answer on this often disputed issue between parents involved in ongoing litigation.

Sunday, August 21, 2011

Child Custody and Travel With The Children

One of the most frequent questions that arise in child custody proceedings that come across in my San Francisco family law practice is 'can I travel with my children out of state'?  I am going to disclaim from any of you construing this post as legal advice because this question more often than not is, 'it depends'.
The first question that must be answered is, 'Do you have a child custody court order in place?'  If the answer is 'yes' then the follow-up to this question is 'what does the order indicate regarding travel with the children?'  If there are no restrictions on travel with the children outside the state of California, then presumably there is nothing legally preventing you from travelling outside the state with your children.  Be careful though!  There may be other orders in place such as a requirement for written notice to the non-traveling parent.  There might be 'other' restrictions set down in court orders before any such travel can be made with the child.

The best advice is to read your court orders very thoroughly!  This goes even for the standard judicial council forms that look like you check a bunch of boxes.  A lot of people don't read these and these are especially important.  Be extremely diligent about knowing what restrictions if any the court has laid down regarding travel with the children.

The other thing to keep in mind regarding travel with the children if there are court orders in place, is even if there are no actual restrictions on travel, your travel must not interfere with the other parent's custodial time.  This means (depending upon your scenario) that if you have court ordered timeshare with the child over the weekend but the non-custodial parent has time with the child on Monday and there are no restrictions regarding travel with the child, you must have the child / children back by Monday for the other parent's custodial timeshare or you will be in violation of a court order.

Even if there are no restrictions regarding travel, it is always a good idea to give the other parent the itinerary, notice and the travel schedule even if no orders are in place.  These things can always be made standard orders in front of a judge, and even in the absence of an order, both parents should be given the opportunity to know where their child is if the other parent is traveling in the case of an emergency.

I will close this post with the standard advice that this area should be addressed with a San Francisco child custody attorney as pro per litigants often miss certain things in existing child custody orders.  The last thing you want to be is wrong and have to explain this in front of a judge. 

Wednesday, August 17, 2011

Pets and Divorce

San Francisco family lawyers sometimes deal with the issue of pets caught in the middle of a divorcing couple.  These little or often big bundles of love and compassion can often be thought of as children in the eyes of most people and certain clients have come to think that custodial rights attach when it comes to dogs or cats or the family bird. 

Unfortunately, pets are not treated like children even though they are capable of love, some element of understanding and communication and even though they often are our best friends.  Judges do not consider any custody rights to attach to pets.  This is why you haven't heard the term "pet custody".  There is no California law on the books regarding sharing custody of a pet. 

The general guideline of the courts in the end is to treat pets like property.  This means going back to when the pet was acquired, with which funds were they purchased with etc.  People can make any informal agreements they want concerning their pets.  I've had clients make informal visitation agreements and sharing of custody of a pet following a divorce by mutual agreement.  I've had other clients make agreements so that the pet is exchanged at the same time as the kids, so essentially the pet follows the child. 

If going in front of a judge and a couple without kids contests who the dog should be with, some creative arguments would have to be made.  Other states have sometimes considered in contested trials evidence of 'who the pet is more attached to' or 'who would be better able to care for the pet.'  As there is no current law for the judge to take this approach, it would be the judge's discretion whether to consider such testimony before making a final decision.  Without such consideration, the pet is nothing more than property in a divorce much like silverware, pots and pans or a bank account. 

Tuesday, August 9, 2011

Do divorce attorneys encourage divorce?

I can only speak for myself and the philosophy behind my San Francisco divorce and family law practice.

 As a divorce lawyer and family law attorney I always explore into a couple's relationship.  I want to make sure a client isn't dealing with emotions propelled by last night's argument with their spouse and that there is perhaps a chance of reconciliation.

During my initial consultation with my (Potential) clients, one of the first things I ask is whether the marriage is salvageable.  I inquire as to the reasons behind the divorce, what led him/her to consult with me, and whether they truly believe their marriage is over.

Many times, I not only play the role of a divorce lawyer, but also that of a therapist.  A client needs an outlet or some non-legal advice.  On several occasions I have referred my clients to a couple's therapist, even after the petition for divorce has been filed.  Believe it or not, I'm proud to report that I have seen some of my clients reconcile with their spouse.  It may not be good for my pocketbook, but I'm happy nonetheless, because I don't want to encourage a divorce.

If a couple loves each other, somehow they will find their way back, sometimes a dose of reality kicks in and they realize what they have to lose (not just 1/2 of their community estate) once a divorce seems imminent.  Now, I am NOT suggesting that you go out and file a divorce just to kick your spouse's butt in gear.  A divorce is serious.  I'm just illustrating to you that not all who file for a divorce end up divorcing.  Some couples do in fact reconcile and end up leading happier lives than right before their divorce was filed.

So, at least in my practice, we don't encourage a divorce, nor do we create more issues just so we can pocket legal fees.  If a marriage seems to have the makings of a reconciliation, by all means, we encourage you to do so.  But in case you need a divorce lawyer and family law attorney, you can always count on Parks Law Group.