Bay Area Divorce Lawyer Blog

January 17, 2012

Conflict Resolution Quotes for the New Year

As a Collaborative Family Law Attorney and Mediator, I am privileged to work with those who, because of their divorce, are undergoing a significant life change. Although a mediated or Collaborative divorce is far less painful, emotionally, psychologically, and financially, than a litigated divorce, it is still a divorce, and according to the Surgeon General, divorce is one of life’s greatest stressors.

So it is often helpful to rely on insights from some our spiritual leading lights to help lead the way and remind us to be present when stress and anxiety arise. These sayings can also help us get in touch with our own inner wisdom as we move forward into a new life after divorce. They are also useful reminders for all of as a new year begins.

“Be kind whenever possible. It is always possible.” ~ Dalai Lama

January 7, 2012

Grandparent Visitation in California

by Lorna Jaynes

A recent California Court of Appeal opinion upheld a grant of visitation to a grandparent over a father’s objection.

Child custody and visitation issues often give rise to the most high conflict disputes in a California divorce. If parents can’t agree about living arrangements, vacation schedules and the best educational environment for their child or children, these decisions may very well be made by a family court judge based on his or her assessment of the best interests of the children and the parents’ capabilities.

A recent California Court of Appeal Opinion in Hoag v. Diedjomahor considered a less common scenario: the court’s grant of visitation to a grandparent over a parent’s objection. The maternal grandmother filed for visitation following the death of her daughter, the mother of couple’s daughters. The parents had lived at the grandmother’s home, as had the mother and children alone during a period of legal separation. After the parents reconciled, the grandmother moved in with the family.

December 31, 2011

New California Law Allows Mature Children to Be Heard in Custody Matters

by Lorna Jaynes

Until now, the law in California regarding a child’s ability to address the court in his or her parents’ custody case has been very limited, and rarely are children able to testify. Courts have typically heard the child’s perspective through reports, or from third parties, such as the court-appointed mediators or sometimes therapists.

The California legislature has approved amendments to this process under Senate Bill AB 1050. The new law, which amends California Family Code §3042 is effective January 1, 2012, modifies the rules about children speaking to the court and give children a greater voice in their custody preferences.

“If a child is of sufficient age and capacity to reason so as to form an intelligent preference as to custody or visitation, the court shall consider, and give due weight to, the wishes of the child in making an order granting or modifying custody or visitation,” states Amendment (a) of AB 1050.

December 26, 2011

Proposition 8 & DOMA – Marriage Equality in California

by Lorna Jaynes

Proposition 8 – Perry v. Schwarzenegger

Following the holding of the California Supreme Court in May 2008 in the Perry v. Schwarzenegger case that state statutes limiting marriage to opposite-sex applicants violated the California Constitution, same sex couples flocked to California to marry. But in November of 2008, California voters adopted Proposition 8, a constitutional amendment that precluded same sex marriage. In response, couples denied marriage licenses filed several lawsuits challenging the validity of the amendment and arguing that Prop 8 violates the U.S. Constitutional guarantee of due process and equal protection.

On August 4, 2010, Judge Vaughn Walker announced his ruling in favor of the plaintiffs, overturning Proposition 8 based on the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the U.S. Constitution. Walker determined that California had no rational basis or vested interest in denying gays and lesbians marriage licenses, stating that:

December 19, 2011

Co-parenting, Custody & Visitation During the Holidays

by Lorna Jaynes

Sorting out and establishing visitation or co-parenting schedules for the holidays can be stressful and unpleasant, but it does not have to be. If it is stressful and unpleasant for you, it is probably also for the kids, and that is not what most parents want for their kids any time, and in particular during a season that is supposed to highlight our better natures.

Hopefully, the following tips will help.

1) Establish a standard that works for all – Alternating holidays every year works well for some families. If the other parent has the kids for Thanksgiving or Christmas this year, next year will be your turn turn. A regular plan can be helpful in eliminating conflict.

December 6, 2011

Herman Cain, Philandering Politicans & Misappropriation of Community Property

by Lorna Jaynes

Herman Cain, erstwhile presidential candidate and pizza chain CEO, whose campaign website proclaims that the ultimate source of our greatness as a nation is America’s moral foundation, has now come to be known primarily as a serial sexual predator and long-term philandering husband.

Cain claims that the alleged 13-year extramarital affair was platonic and that the money paid to Ginger White, the woman claiming the affair, was to help her out with bills and expenses due to unfortunate financial circumstances. Indeed, claims Cain, she wasn’t the only friend he helped in these tough economic times because he is a soft-hearted person when it comes to this stuff.

Setting aside the issue of whether or not marital infidelity is or should be a relevant factor in the characteristics important in political figures, many influential people, political and otherwise, have had extramarital affairs, including but not limited to, Newt Gingrich, Bill Clinton, Larry Craig, Warren Harding, Franklin D. Roosevelt, Martin Luther King – the list is truly quite endless.

December 1, 2011

Gay Marriage, Sister Wives, Polygamy, Contracts, Personal Freedom

by Lorna Jaynes

I have long been a supporter of gay marriage and the rights of LGBT folks to have the same rights as the rest of us. However, I also think it is important to be flexible and open to new ideas and discussions any all controversial issues. Hence, more ideas on gay marriage and beyond.

As same-sex marriage becomes increasingly legal in various states, more companies require that their employees become legally married in order for their partners to qualify for health insurance. Currently, many of these same companies already provide domestic partner benefits for employees with same sex partner in states where cannot legally marry.

While this would appear to be what advocates of same-sex marriage want, there may also be unintended consequences. One obvious problem is that although the marriage may be recognized in a given state, it is not yet recognized by the federal government making marriage not a feasible choice for some couples and in so doing would deprive them of the health insurance benefits they previously enjoyed. It is important that when states legalize gay marriage, they also keep the domestic partnership option available at least until gay marriage is recognized by the federal government.

November 28, 2011

Divorcing in California? Protect Your Children

by Lorna Jaynes

Talk to your children about what is happening

Only a minority of divorcing parents sit down with their kids and explain that the marriage is ending and encourage them to ask questions. Some say nothing, surely leaving the kids totally confused and fearful. It is so important to talk to your kids, because almost without fail, they know something is wrong, they just don’t know what and that creates a great deal of anxiety. Tell them as simply as possible, what is happening and what it means to them and their lives. When parents don’t communicate this to the children, the kids feel anxious, upset and fearful and have a much more difficult time coping with the separation and divorce.

Be sensitive and thoughtful

November 21, 2011

Budget Cuts Threaten Access to Bay Area Family Courts

by Lorna Jaynes

Across the country, state courts face severe budget cuts that threaten access to justice for many and California is no exception. California state legislators have cut $350 million from the state court budget, with more cuts certain to follow. Local court will lose $135 million in the fiscal year that began July 1 and another $170 million next year from an overall budget of more than $3 billion.

In Santa Clara County, it means a loss of $6.8 million this year and perhaps more than double that amount next year. San Mateo County’s courts will take at least a $2.7 million hit this year, while Alameda County’s court system will be cut by more than $6.7 million. Contra Costa County’s courts will absorb more than $3 million in cuts and will likewise be forced to cut even more from next year’s budget.

For those considering divorce, be prepared. Twenty-five of San Francisco’s 63 Superior court chambers have been closed; two hundred of 480 employees will be laid off. “It will take a year and a half to get a divorce in San Francisco and to get a child custody order. If you file suit, we won’t do anything with your case for five years,” according to San Francisco Superior Court spokesperson Ann Donlan. That can be disastrous if the matter concerns custody of children, visitation, or many other sensitive issues.

November 14, 2011

Divorce, Family Law & Pet Custody in California

by Lorna Jaynes

We just got a new puppy, a 3 month old Australian Shepherd and while there is no separation or divorce pending, it made me think about what that situation might look like. For many couples who choose to forego having children, their pets become an increasingly important part of the family. But even in many families with children the pet is often almost another child whom all are very attached to. However, the family law system in California and most states provides few options to divorcing pet owners.

In California and most states the law regarding human children is intended to protect the best interests of children in divorce and thus provides for shared custody and support. Pets, however are classified as personal property. Some have advocated for additional recognition and status of companion animals, but legislators have yet to show that type of vision or thoughtfulness, so there is currently no legal distinction between your dog and your sofa when it comes to divorce and no basis in the law for treating the dog any differently than the sofa. (This article assumes the pet is community property) The Court of Appeals Iowa in ruling on an award of a dog to the husband in a dissolution held that a dog is personal property whose best interests need not be considered. In re Marriage of Stewart, 356 N.W. 2D 611 (Iowa Ct. App. 1984)

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