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Grandparents can play a special role in the lives of their grandchildren.  In fact, the United States Supreme Court recognized this truth when confronted with the request by grandparents for more visitation with their deceased son’s daughters than the children’s mother would agree to:  “In an ideal world, parents might always seek to cultivate the bonds between grandparents and grandchildren. Needless to say, however, our world is far from perfect, and in it the decision whether such an intergenerational relationship would be beneficial in any specific case is for the parent to make in the first instance.”

How a court handles a request by grandparents for visitation depends upon the circumstances of the case. Generally, as the Supreme Court noted, a child’s parents have the right to decide whether or not their child will see their grandparents. The law provides: “A fit parent has a federal due process constitutional right to make decisions concerning the care, custody and control of his or her child.”  But that right is not absolute. The court may grant grandparent visitation if it finds both a preexisting relationship and that grandparent visitation is in the best interests of the minor children.

First, it should be noted that in the event that the parents of the grandchildren don’t live together, either parent can allow the children to see their grandparents during their parenting time. For example, I represented a mother of two girls who had a Domestic Violence Restraining Order against the father. The father did not have any custodial time with his daughters. That father also did not have a good relationship with his own mother, but that paternal grandmother and the children’s mother got along well. In fact, that paternal grandmother was so supportive of her daughter-in-law and protective of her grandchildren that she financially supported her now ex daughter-in-law’s legal position to ensure the safety of her granddaughters.  So while the father did not have any parenting time, the paternal grandmother was able to spend time with the girls because they were with their mother and she consented. The lesson from that story is that a grandparent who has a good relationship with one parent, even if it is not with their child, does not need a court order to obtain visitation even if estranged from their own child. Any parent can grant that right.

When both of the children’s parents are alive, there is a rebuttable presumption against grandparents having visitation if both parents agree that the grandparent should not have visitation rights. In that situation, grandparents seeking visitation with their grandchildren would be required to prove that it is in the best interests of the children. Grandparents should be aware, however, that if they insert themselves into divorce proceedings, the court would then have jurisdiction to make orders regarding them, including ordering grandparents to pay support, such as the provision of basic expenses for the grandchild including medical expense or day care costs.

In instances where a grandparent seeks to obtain court orders for visitation when parents are living apart on a permanent basis or one parent is deceased, then an altogether different statute controls. In that situation, the grandparents need to persuade the court that there is a preexisting relationship between them and the grandchild that has engendered a bond such that visitation is in the best interest of the child. Moreover, the court also has to balance the interest of the child in having grandparent visitation against the right of the parent(s) to exercise their parental authority.  Case law that addresses grandparents requests does require the court to give deference to a fit sole surviving parent’s constitutional right to raise a child, so that a grandparent would have the burden to show by clear and convincing evidence that denial of the grandparent’s request would be detrimental to the grandchild.  In other words, a court would have to find that the evidence is so clear as to leave no substantial doubt about the detriment to the child if it denies the grandparent’s request.

In sum, if you are a grandparent who is thinking about pursuing your rights to visitation with a grandchild, you would be well served to consult competent legal counsel to understand your rights and potential risks before taking any action.

(This article appeared in the November 2024 issue of Living Brentwood)

 

When couples with children divorce, one of the most important issues that must be addressed is the custody of the children. Who will have the children and when?

While that question may be simple, it is often the most difficult to navigate, and there is not one right answer. If the parents have an amicable relationship, it is a much easier issue to resolve than when they are in high conflict. What may be an appropriate arrangement for a 15 year old is likely not an appropriate  arrangement for a 2 year old. What may work for a couple who now live a mile apart from one another may not work for a couple who plan to live 30 minutes or an hour away from each other. And of course, what if one parent wants or needs to move out of state?

California law provides that the public policy of the state is to ensure that the health, safety, and welfare of the children shall be the court’s primary concern in determining the best interests of children when making custody orders. The legislature has also declared that it is the public policy of California to ensure that children have frequent and continuing contact with both parents; however, that doesn’t mean that a court will necessarily order that parents will share custody equally.

When these two policies are in conflict, the court is required to prioritize the health, safety, and welfare of children. Ideally, parents should work together to reach an agreement about how they are going to share custody. A typical 50-50 parenting plan for school age children presuming the parents both live within reasonable proximity to one another and the child’s school, is to put in place a 2-2-5-5 schedule. That means in a typical week, one parent has the children on Monday and Tuesday, the other parent has the children on Wednesday and Thursday, and the parties alternate each week who has the children from Friday after school through Monday morning.

With this sort of a parenting plan everyone can plan their weeks ahead of time. For example, if mom has the children on Mondays and Tuesdays and dad has Wednesdays and Thursdays and the child takes piano lessons at mom’s house, everyone knows (the child, the parent, the piano teacher) that every Monday night, the piano teacher is at mom’s for the piano lesson. Similarly, if the child has soccer practice on Thursdays, then it will always fall to dad to take the child to soccer on Thursdays. It also makes it easier for parents to plan.

When going through a divorce it makes sense to consult counsel or a mental health professional with expertise in this area to help you work out an arrangement that suits your family. There are therapists with expertise in child development who can help figure out a suitable plan. A child’s developmental stage is important because, for example, a two year old shouldn’t be away from either parent for more than a few days since they don’t have the same capacity to remember people (including their parents) as a 9 year old.

Not only do folks have to work out their regular parenting plan, but they need to figure out how they are going to plan school breaks like Christmas, spring break, and summer vacation.

If you are getting divorced, obtain the advice of a professional to assist in navigating a parenting plan that makes sense for your entire family. If you and your former spouse are unable to work it out or resolve your differences in mediation, there is always the option of asking the court to make orders; however, then you are asking a stranger to decide what’s in your children’s best interests. Judges do have different views and perspectives, so when a court is asked to make orders, one never knows how it will turn out. Given the expense and uncertainty of litigation, it makes far more sense to come to some agreement, with the help of a skilled professional if need be, first!

(This article appeared in the July 2024 issue of Living Brentwood)

 

As of January 1, 2019, the law that governs what happens to the family pet in a divorce changed. Pets had been treated as personal property that could be valued and “divided.” A family’s cat or dog — or iguana for that matter — was treated no different from a lamp. If, for example, a puppy was a gift from wife to husband, the husband would get to keep the pet in the divorce because it was treated as his separate property. It didn’t matter if the wife was the one who fed the dog, bathed the dog, took the dog to the vet, etc. Nor did it matter if the children resided primarily with their mother and were bonded to their dog. The court was not allowed to consider the “best interests” of the pet as it did when making orders for custody of children.

But as of 2019, the law changed. It recognized that pets are more like children than furniture!

Family Code Section 2605 provides that in a divorce the court may assign sole or joint ownership of a pet, taking into consideration the care of the animal. Pets include any animal that is kept in the household (not horses, for example). Notwithstanding if the pet is one party’s separate property, the court has the ability to ignore whether the pet is separate or community property. The family code actually provides the court with a definition of care, which includes, but is not limited to, the provision of food, water, veterinary care and safe and protected shelter.

The court can also make temporary orders for the care of the pet that will be in effect until the divorce is concluded. Those temporary orders shall not have any impact on the court’s final  determination of who ultimately gets to keep the pet. With this new law, the judge now can make orders for both parties to share the dog just as if it were a child. If the parties cannot agree, the court can make orders for a custody schedule or for the parties to share in the right and responsibility to make medical decisions about the pet. Of course, it is always better for a divorcing couple to work out the particulars of their divorce, but if they can’t, now the court can make orders about the time sharing arrangement of the family pet that considers the pet’s best interests.

So just as you would prepare to litigate the custody of children, if you can’t reach an agreement about the pet, you need to prepare to litigate the issue of your pet’s best interest. Maybe that means keeping a log of how often you walked the dog — or stepping up your involvement with the pet if you are the spouse who was less involved. Who took the dog to the vet for shots or scheduled the groomer? Perhaps you need to keep track of how often you or your spouse cuddle with the dog. Maybe it means lining up witnesses who can attest to who cared for the dog most or who the dog is more bonded to.

It is also important to consider how that schedule could change in the future. Do you want to agree that the schedule can be modified if circumstances change? You should also think about making an agreement about how expenses relating to the pet will be divided.  Owning a pet can become quite expensive. If your pup someday needs knee or hip surgery, it can cost thousands of dollars. Who is going to be liable for those expenses?

Additionally, the court has the power to issue restraining orders that include the family pet. The court may order the respondent to stay away from the animal and forbid the respondent from taking, harming, or otherwise disposing of the animal. If you are requesting a domestic violence restraining order against your spouse and you have a family pet, you should seriously consider asking for orders that also protect your pet.

The good news for animal lovers is that the law has evolved to treat pets as family members just as it would children. The bad news, of course, is that who gets the pet is yet another issue in a divorce that can take on a life of its own. This is just another reason why it is important to retain skilled family law counsel to assist you when going through a divorce.

(This article appeared in the March 2024 issue of Living Brentwood)

 

When parents get divorced, among the issues that must be addressed is how the children’s holiday and vacation time shall be shared by the parents. Not only are  there summer break and three day holiday weekends to think about, but parents also need to figure out what makes sense for the Winter holidays.

There are many ways to divide the time. But it is complicated by the fact that parents thinking about divorcing cannot possibly see the future clearly. Does it make sense to simply split the school vacation equally down the middle with a transition from one parent to the other at the mid point? Does it make more sense to divvy up the vacation allotting one parent the Christmas holiday and the other parent the New Years holiday? Does Christmas eve need to be one with parent and Christmas day with the other? And what about Hanukkah? Since there are 8 nights of Hanukkah, do we divide them equally between the parents? And how does travel factor into the holiday division?

Post divorce, are you going to want to take the children on a trip over their winter break, perhaps to ski? Often at that time of year, hotels require minimum night stays. If a parent has to be back in town to transition the children to the other parent for Christmas day, for example, how can one plan a trip?

In some instances, custody agreements provide that parents alternate based on odd and even years, so that if, for example, mom has the children for the first half of the winter break in an even year, then dad would have them for the first half of the break in odd years. Or if dad has the children for Christmas Eve in 2023, then mom will have them for Christmas Eve in 2024.

But alternating, for example, who has Christmas Eve each year does not allow parents to create family traditions that can be celebrated together consistently each year. Perhaps it makes more sense to agree that mom will always have the children for Christmas eve and dad will always have the children for Christmas day. These are important issues which must be resolved for everyone’s comfort and happiness.

There is no one way to approach scheduling vacation time, nor is there only one option. It is really up to parents to try to figure out and agree what best meets their and their children’s needs.

Of course, the issue is further complicated by the children’s ages.  What works for a 2-year-old is likely vastly different than what works for a child aged 7 or 15. It may be that a 2-year-old is better served not being away from either parent for as long as 7 or 10 days, whereas one would not have the same concerns about an older child.

And how should it be handled when a teenager is invited to vacation with a friend’s family, but it falls during only one parent’s custodial time? Is that teenager allowed to go and does one parent lose their time? Do parents  modify their schedule to accommodate the inevitable but unpredictable opportunities the child will have or do parents prioritize their preferences? So how should the parenting plan evolve over time? It certainly must do so.

When divorced couples are on amicable terms, they can usually work through these issues relatively simply, and if necessary, changes can be made to their prior agreements. Of course, it is easier for all concerned if the two parents can have a respectful and productive dialogue and reach compromises that meet everyone’s needs. However, that is often not the case. When the couples are higher conflict, they could sit down with a family law mediator or therapist who specializes in assisting divorced parents with their co-parenting issues and work towards a resolution. As a last resort, parents can retain counsel to litigate these issues. But, if it is necessary for a court to get involved, one must plan well ahead because counsel cannot file a request with the court on December 5th and expect a ruling before Christmas.

It is a good practice for parents to sort out the holiday and vacation schedules long before they occur to avoid the drama and expense that could otherwise likely ensue.

(This article appeared in the December 2023 issue of Living Brentwood)

 

Stephanie I. Blum and Timothy D. Reuben’s article Discarding the Reasonableness Standard in DVROs Muddies the Process is published in the Los Angeles Daily Journal on October 2, 2023.

 

Among the issues that often need to be addressed during divorce is what happens to the family residence. How does a couple divide the house?

In California, unless there is a prenuptial agreement which governs how their property will be divided, all property acquired during the marriage as a result of either party’s work efforts is community property. Property owned prior to marriage or received by way of inheritance or gift is considered separate property. Community property is supposed to be divided equally between spouses. Separate property is confirmed to the spouse who owns that property.

The character of property, whether separate or community, is determined at the time of its acquisition. If it is community when acquired, it remains so throughout the marriage unless the spouses agree to change its nature or the spouse charged with its management makes a gift of it to the other. If a home is purchased during marriage, it is presumed to be community property, and thus the burden is on the spouse asserting its separate character to overcome the presumption.

The presumption applies, for example, even when a husband purchases property during the marriage with funds from an undisclosed or disputed source, such as an account or fund in which he has commingled his separate funds with community funds. In community property states such as California, property ownership turns on the method and timing of acquisition of the property.

Some might ask what happens to a house that is acquired when living somewhere other than California at the time acquired. Is it treated the same? The answer to that question is yes. Property acquired by either spouse while domiciled elsewhere, which would have been community property if the spouse who acquired the property had been domiciled in California at the time of its acquisition, is called quasi-community property. That too, must be divided in a divorce.

Even if a home is purchased by a couple during marriage, that does not mean that upon divorce the equity in the house will automatically be divided equally. If, for example, the wife made the down payment on the house with monies she inherited, or was gifted, or that she earned before marriage, she would be entitled to be reimbursed for the down payment notwithstanding that title to the home is held jointly.

California Family Code Section 2640 provides that unless a party has made a written waiver of the right to reimbursement or has signed a writing that has the effect of a waiver, the party shall be reimbursed for the party’s contributions to the acquisition of property to the extent the party can trace the contributions to a separate property source.

That said, the amount reimbursed is without interest and may not exceed the net value of the property at the time of the division. Notably, contributions to the acquisition of property include not just down payments on property, but also payments for improvements or payments that reduce the principal of a loan used to finance the purchase or improvement of the property. In contrast, they exclude payments of interest on the loan or payments made for maintenance, insurance or taxes.

What if a wife similarly contributed separate property monies to a separate property house belonging to the husband? The answer to that question is wife is also entitled to reimbursement for that contribution unless there has been a written transmutation waiving the right to reimbursement.

To further complicate matters, and much to the surprise of some, the community can acquire an interest in a home that a spouse owned before marriage in his or her name only. If, for example, the husband owned a home before marriage but after the marriage continued to make the mortgage payments with monies he earned during marriage, at the time of divorce we determine how to apportion the equity in the home based upon the amount of the separate property obligation paid off with community funds.

Yet another question to be asked is what happens when a spouse’s name is added to the title of the other spouse’s separate property residence during marriage? How do you calculate who gets how much? This would require a determination of the fair market value of the property at the time of the conversion to joint ownership less the outstanding encumbrances and less any community property contributions prior to the conversion. A refinance during marriage may drastically change the equation. If the lender looks to the spouse’s earnings during marriage as the source for repayment of the loan, then it will be held to be a community contribution, regardless of whether the underlying security was that spouse’s separate property.

As is apparent, due to the complexities of these calculations, in the event that you or a loved one is going through a divorce where valuing or dividing the equity in a home is one of the issues, it is wise to consult competent family law counsel before entering into any agreements concerning same.

(This article appeared in the August 2023 issue of Living Brentwood)