California Divorce and Family Law

After Divorce, Stable Families Help Minimize Long-term Harm To Children

For children of divorce, what happens after their parents split up may be just as important to their long-term well-being as the divorce itself.

A new study found that children who lived in unstable family situations after their parents divorced fared much worse as adults on a variety of measures compared to children who had stable post-divorce family situations.

“For many children with divorced parents, particularly young ones, the divorce does not mark the end of family structure changes – it marks the beginning,” said Yongmin Sun, co-author of the study and associate professor of sociology at Ohio State University’s Mansfield campus.

“A stable family situation after divorce does not erase the negative effects of a divorce, but children in this situation fare much better than do those who experience chronic instability”

The study appears in a recent issue of the Journal of Marriage and Family.  Sun conducted the study with Yuanzhang Li of the Allied Technology Group.

Data for this study came from the National Education Longitudinal Study, which surveyed thousands of students across the country beginning in 8th grade in 1988, when they were about 14 years old. They were surveyed again in 1990, 1992 and then again in 2000 when they were about 26 years old.

The study  compared children who grew up in three different situations:

• Children who grew up in always-married households (5,303 children).
• Children whose parents divorced before the study began, but who lived in a stable family structure between ages 14 and 18(954 children).
• Children whose parents divorced prior to the beginning of the study, and whose family situation changed once or twice between ages 14 and 18(697 children).

In the two divorced family groups, children may have lived in single-parent families or ones with a stepparent.  The key for this research was whether that arrangement – whichever it was -- changed between ages 14 and 18).

The researchers compared how children in these groups fared on measures of education, income and poverty in 2000 when they were 26.

More about this topic at Science Daily.

Study: Impact of divorce on kids less damaging

For years, social scientists have believed that children of divorce have had more behavior problems than kids growing up in two-parent homes.

But the impact may not be as damaging as previously believed, according to new research to be released Friday.

Instead of comparing these youngsters to those with intact families - the usual methodology - a more accurate assessment would be to evaluate them before and after the marital dissolution, argues Alan Li of the RAND Corp.

Many of the problems could be a result of pre-existing personal characteristics that would be a factor in emotional and behavioral issues even if their parents had managed to remain married, said Li, who will present his findings this weekend at the annual conference of the Council on Contemporary Families, or CCF, at the University of Illinois Chicago.

"Many studies end up comparing apples and oranges," Li explained. "Personality, parenting strategies and detailed aspects of a person's biography all affect children, but researchers haven't been able to measure many of these constructs."

In addition, the report said, many earlier studies failed to take into account differences between families, such as parents' socioeconomic status and education, which can affect a youngster's well-being, whether a couple stays together or not.

When these variables are added to the mix, the psychological fallout is negligible, said Li, associate director of the Population Research Center for the Santa Monica, Calif.-based nonprofit.

He drew upon a national sample of about 6,330 children between the ages of 4 and 15, whose mothers were surveyed repeatedly between 1979 and 2002.

Mothers filled out a 28-item checklist on whether their children engaged in conduct such as cheating, crying, arguing and breaking things. On average, less than half showed a one-item increase after divorce, which is not statistically significant.

Stephanie Coontz, a historian who has written extensively on marriage, called the findings provocative, adding that they could reframe the national debate on divorce.

To increase the odds of long and happy unions, states such as Oklahoma are funding marriage education programs, while others want to make divorce tougher. In Louisiana, for example, the waiting period for couples with children doubled from six months to one year.

However, these findings suggest that staying together at all costs may not be the best way to intervene, said Coontz, CCF's director of research.

Robert E. Emery, a professor of psychology at the University of Virginia, takes issue with the conclusion. While Li may not have found increased negative behavior, less quantifiable is the hurt that can reverberate across a lifespan, he explained.

"For example, graduation and weddings can be turned into anxiety-ridden events for children whose parents are divorced . . ." Emery wrote in a response to Li's findings.

Closer to home, most experts agreed that it isn't the split but the discord attached to it that is so harmful.

In eight years as a mediator in the domestic relations division of Cook County, Ill., Circuit Court, Jeff Ginsburg has seen it all. "It never ceases to amaze me when divorcing parents cannot get past their anger with each other to decide what is in the best interest of their children."

Two periods of conflict surround dissolution, said Ginsburg, who is both a social worker and an attorney.

More about this in the Bradenton Herald.

Bill addresses controversy in custody cases

A state bill that would set guidelines for child custody cases has highlighted a nearly 20-year-old dispute over a theory used by psychological evaluators.

Assembly Bill 612, which failed to pass into law in 2007, targeted the controversial theory, called Parental Alienation Syndrome. The syndrome describes behavior in which one parent turns a child against the other, convincing the child the parent has treated him or her badly, even when they have not.

Dr. Philip Stahl, a California evaluator and member of the state's Association of Family and Conciliation Courts, says evaluators are split in their beliefs about whether children can be alienated.

"You have evaluators who really don't understand alienation, and people who want to apply it in every case," Stahl said.    

Evaluators are not the only one with differing views on the issue: There are stalwart advocates who believe that hundreds of people have suffered because of parental alienation, and those who believe just as many have suffered from false charges of the syndrome.

Women's advocates say the theory has been used by courts to place children with abusive fathers.    

"It's junk science used to target women and take their custody rights away," said Karen Anderson, a spokesperson for the California Protective Parents Association. "It's a problem in courts all over the country."

Julia Cotton, a mother from Los Angeles County, said that a custody evaluation in her divorce case accused her of alienation and led to her young daughter being placed with her husband full-time.    

"Her recommendation led to me only getting my daughter for supervised visits," Cotton said. "When I saw her she acted traumatized, and seemed totally out of it."

Cotton said she suspected that her ex-husband was abusing her daughter in some way but didn't know what to do about it.    

"I knew that the more I tried to do something about it, the more I would be accused of alienation."    

While women's groups tout Cotton's story as a typical one throughout California, father's- rights groups have the opposite view of custody courts and alienation.

"Ninety-eight percent of the time that you see abuse charges that have not been verified by police, those allegations are coached," said J. Michael Kelly, a lawyer and a member of the United Fathers of California law group.

One father in the middle of a custody battle who asked to be called Norm said his two teenage daughters say they don't want to have anything to do with him, and he can't figure out why.

"They call me a violent man, they say I am aggravating," said Norm. "I had a bad custody evaluator, and now I barely see them."    

Norm said he believes his wife is genuinely convinced that he does not treat their children well.    

"I don't think she is trying to be vindictive," he said. "I just think in her mind there is some deeper mental problem that is convincing her I'd be bad for the kids."

The text of the 2007 version of A.B. 612 was drafted by the CPPA and explicitly banned the use of Parental Alienation Syndrome, or just the term alienation from use in evaluations. It also aimed to minimize the use of custody evaluations.

The family law section of the State Bar and the several psychologists groups banded together to oppose the bill.     

The 2008 version of the bill is much vaguer than its predecessor, stating evaluators will be forced to conform to "standards generally accepted by the medical, psychiatric, legal, and psychological communities." The bill does not specifically mention Parental Alienation Syndrome.

"The thinking was that if you mentioned specific syndromes or disorders, people who would use them in evaluations would just start calling them by a different name," said Ira Ruskin, D-Redwood City, who introduced the bill.

But Karen Anderson, who helped draft the original bill, said the new version, A.B. 2587, is not strong enough.    

"It's not an unusual process for a bill," said Anderson. "It starts out strong, and then it gets watered down, and a lot of the great stuff gets thrown out."

Stahl said that although the bill provides more guidelines for judges in what to expect from evaluators, the judges themselves still bring their own expectations about alienation into the courtroom.

"Courts are ruling in favor of people unfairly accused of alienation, and they are ruling against people who have been alienated," Stahl said. "Problems described by advocates on both sides on the issue are happening."

An additional problem, evaluators say, is that even with the right training, it is not always possible for them to tell when talking to a child, whether the abuse the child describes is really happening.

"There are real cases of abuse and false allegations," said Dr. Mitch Eisen, a Cal State Los Angeles psychologist and professional evaluator. "Both happen, and it is often impossible to differentiate between the two."

Stahl says that in some cases, the children themselves aren't even sure if what they are saying is true.    

"You've got kids who don't know what to believe," said Stahl. "It's hard to tell what is and isn't real."

From the San Bernardino Sun.

Evaluators in Child-Custody Cases Scrutinized

Psychologists and other mental health professionals are increasingly playing a role in child custody disputes.                         

Using a battery of psychological tests and expert judgment, psychologists make recommendations about which parent should have custody.                        

Those decisions are accepted by judges more than 90 percent of the time, but critics say the tests are flawed and the decisions are often more personal than professional.

Listen to this NPR All Things Considered on Evaluators in Child Custody Cases.

Case Law Development: Preference for De-Facto Parent Applies in Adoption Case rather than Placement with Relatives

The California Court of Appeals weighed the application of preferences for relatives versus caregivers in child protection cases in deciding whether a 10-year-old girl should be removed from the home of her de-facto parent and placed with her maternal aunt in Oregon. The trial court had ordered the girl removed from her de-facto parent, placed her with her aunt with an adoption plan, and terminated the girl's parental rights.  Both the girl and her de facto parent appealed.  The court of appeals reversed, holding that the preference for placing children with relatives did not apply in this case because the child was already placed with the de-facto parent and no new placement was necessary.  While the de-facto parent had not yet been able to have the court designate her as a "prospective adoptive parent" (which provides more procedural protections), she intended to adopt the child, so that the caretaker preference standards should have been applied.  Aunt had argued that the caretaker preference could not come into play until after termination of parental rights, but the court of appeals concluded that the preference arose whenever adoption became the permanency plan.  The court concluded that the trial court had preferred placement with the aunt because it had misunderstood the impact of the relative placement and remanded for consideration of the de-facto parent's application "on a level playing field."

The case would make a fascinating case study, both for the careful legislative interpretation necessary to decide when each preference applies, and for consideration of the importance of timing and procedural posture in child protection cases. 

In re Lauren R., Cal. App. 4th District (March 19, 2007)
Opinion on web (last visited March 20, 2007 bgf)

Once agian, a big thanks to the Family Law Prof Blog.

How to make a difference for a child of divorce even as a bystander

Divorce these days surrounds us. Children everywhere are affected. It affects our grandkids, our nieces and nephews, our neighbors, our students or patients, and many other kids that touch our daily lives. Sometimes on the outside it's hard to know what to do.

After all, these kids are missing their parents. They are subjected to different rules and routines. Sometimes they are even the victims of intense emotional battles that rage between their parents. From the outside looking in, it's a helpless feeling watching these situations. So just what can you do? Here are ten suggestions to help make a difference for a child of divorce you might know:

1. Give lots of hugs. A child who is being bounced around between homes may not be getting the kind of love and attention she needs. Don't force it, but be ready to show affection when she needs it. Pay extra attention to the children. Mom and Dad often don't realize how neglectful they have become and the kids need all the love they can get.

2. Listen. When a child is feeling comfortable enough to talk to you about the situation, just be there and listen. You don't need to offer suggestions just give them a safe place to share what they are feeling.

3. Suggest a support group. If you have the kind of relationship with either parent that you can make suggestion, you may want to suggest a support group. There are divorce groups for the parents as well as grief organizations (such as Rainbows.org) for kids.

4. Don't talk down about either parent. Children need a safe-haven for discussion and if you insert your feelings, especially negative ones, the child is less likely to feel comfortable talking with you.

5. Read together. Reading out loud can be very soothing. You may wish to include a few books on the subject of divorce or split-family living. It may be enough to help them realize the feelings they are keeping inside and begin opening up about them. It also helps them to realize they are not unique in this kind of lifestyle. If it seems appropriate give or lend the books to the parents to possibly begin their own conversation.

6. Stay neutral. No matter how bad you want to take sides, don't. Keep those feelings to yourself and help the children feel comfortable about confiding and sharing feelings.

7. Do not get involved. Unless you are legally required to do so, do not get involved. It is very difficult to know both sides of a story, nor do you probably want to. You may some day need support from both parents for some unknown reason and you do not want to have burned any bridges.

8. Stay firm. Whatever rules or expectations were in force in your dealings with the child should not change. Softening your expectations sets the child up to use his circumstances to not be the best he can be. Staying firm can be one step that can prevent a child from spiraling into poor behavior.

9. Start a new tradition. Offer to take the child to the library and start a book club where you each pick a book for the other to read. Maybe go for ice-cream on Tuesday afternoons. Do something to reinforce your relationship with the child.

10. Learn the routine. If you show frustration with the schedules and routines, children will see that. If instead you accept the routines and try to make the best of it, you will take extra frustration out of the child's life, and he doesn't feel like he is doing something so unusual.

Source for post is SheKnows.

Parental alienation: The latest weapon in nasty divorces

"Welcome to the swamp."

That's what a judge once told a client of Anchorage divorce attorney Steve Pradell when accusations of parental alienation were leveled against the client in a custody hearing.

Parental alienation syndrome - a controversial diagnosis to describe a child who compulsively denigrates one parent in response to consistent brainwashing by the other parent - has become a common weapon in custody cases.

"It happens all the time," said Michael R. Walsh, a divorce attorney in Orlando, Fla. "If Mom can't hurt Dad another way, what has she got left after she's tried to rake him over the coals on everything else?"

According to Richard Gardner, the psychologist who is considered the father of the syndrome, it typically manifests itself as a campaign of denigration by one parent against the other, which is accompanied by weak, frivolous and absurd rationalizations for the deprecation. As a result of this steady campaign of insult, the child reflexively supports the alienating parent and experiences no guilt over their own cruelty towards the targeted parent.

But the mental health profession is far from agreement about the existence of the syndrome. Noting the lack of supporting data, the American Psychological Association has "no official position on the purported syndrome," according to a statement in its website. The legal community is divided as well. While many family lawyers believe the syndrome is a legitimate psychological diagnosis, others view it as nonsense. They say it's used primarily by parents who want someone to blame for their poor relationship with their children. "I think it's more of a code word that gets used in trial because one parent is not maintaining the relationship with the children and believes the other parent is interfering with the relationship," said Minneapolis divorce attorney Susan Gallagher.

Like it or not, parental alienation has become a common weapon in courts across the country. Even in jurisdictions that don't recognize it as a diagnosable syndrome in children, lawyers can still argue straight parental alienation - that one parent's attempts to turn the child against the other parent indicates that the first parent is not fit to have custody. Sometimes the behavior that prompts charges of parental alienation is subtle - frequent disparaging remarks within earshot of the child or setting up appointments and activities for the child during times when the other parent is scheduled to have visitation. Other times it is openly aggressive, such as unfounded accusations of child abuse or neglect. In some cases, a parent is deluded enough to believe their unfounded accusations - and other times when the accusations are true - so sorting out what is real and what is not can be a tall order for the courts.

"I can't tell you if the syndrome exists psychologically, but I can say it's very troubling and one of the hardest things for a judge to figure out if it's really happening," said Pradell. It's also possible for the child to be alienated from one parent without any campaign of denigration by the other. "Just for the sake of illustration, a 13-year-old girl finds out before Mom that Dad is cheating on Mom. That 13-year-old girl may become alienated from Dad, not because of Mom, but the alienation is there," said Patrick O'Reilly of Buffalo, head of the Family Law Section of the New York Bar Association. As the Anchorage judge said: "Welcome to the swamp."

Making it stick

Although parental alienation has become a common weapon in custody cases around the country, proving it can be a tall order. "It's like everything else in a custody case - it all comes down to what you can prove at trial. A lot of bad things happen, but they're very difficult to prove," said Ben Stevens of Stevens MacPhail in Spartanburg, S.C. The best place to begin is with witnesses - anyone who was present when one of the alienating interactions occurred.

In some states, clients can record telephone calls or other conversations to create audio evidence. O'Reilly suggested that lawyers encourage their clients to communicate via e-mail and voice mail to create a tangible record. This will be far more effective in court than the typical he-said/she-said battles that dominate most custody battles. But the heart of any parental alienation case is the expert testimony, according to Stevens. "Take the child to a mental health professional and let him do testing," he suggested. "Then you've got an expert witness to come and say, 'In my expert opinion, this is what's going on.'"

It many cases the judge will require a court-appointed psychologist to work with both parents and the children in order to obtain a non-partisan expert opinion. In a similar vein, lawyers may want to ask the court to appoint a guardian ad litem who will advocate on behalf of the child to determine whether parental alienation has occurred.

In the end, though, lawyers should be prepared for a tough battle. "It's very hard to prove, because if you have the client from whom the children are estranged, you don't have a child willing to cooperate with the process, and that's where most of the proof would be," O'Reilly said.

Defending against a charge

These same strategies, and a few others, are useful if unfounded allegations of alienation are leveled against your client. "Obviously they have the burden to prove the client's doing something," said O'Reilly. "It's not, 'The child doesn't talk to me, res ipsa it's your fault.' You have a little bit of advantage." First, make sure your client always takes the high road. Although the natural instinct of clients is to become indignant and defend themselves vehemently, protesting too loudly could undermine their credibility in the eyes of the court, said Gallagher. Instead, develop an action plan for how your client can build a stronger relationship with the children.

Change any behavior that is suspect. Have clients tell the judge that while they don't feel there is evidence to support the allegation, they are seeking the help of a professional as a precaution, and are prepared to change any behavior that is deemed inappropriate. "Who is not confident in a parent who is going to do and say that?" Gallagher asked. But just as in the case of the accuser, the most powerful weapon for a client who is accused of alienation is the psychological expert. "A good forensic expert has credibility because that person doesn't represent your guy and doesn't represent the other party - he's appointed by the court," said Tom Carnes of Carnes Ely in Houston.

Third-party witnesses can also be a powerful weapon in court. "Try to line up witnesses that would have had the opportunity to see [the parent] interact with the child. Teachers, scout leaders, dance teachers, karate teachers - people who see them during times when parents let their guard down and can say, 'I've never seen Dad say anything bad about Mom or Mom say anything bad about Dad,'" Stevens suggested. Finally, Carnes suggests that lawyers request more visits between the targeted parent and child in an effort to strengthen the relationship between them. Of course, the best defense against an alienation charge is to make sure it's never made in the first place.

Advise your client not to get in the middle of disputes between the child and the other parent, O'Reilly advised. If a child refuses to go with the non-custodial parent, the custodial parent should insist. He or she should tell the child that the judge has required the visit. "I encourage my clients to act reasonably, assume anything they do or say could be shown to the judge - or better yet, that the judge is standing there watching," said Stevens. "I don't know if that's great advice or I've just had good clients, but I haven't had many alienation claims alleged against my clients."

From Lawyers USA.

Case Law Development: Parent of Child Who Has Been Abused May Not be the Monitor for Child's Supervised Visitation with the Abusive Parent.

The trial court allowed a father, who sexually abused his adopted son,  to return to the family home on weekends and designated the non-offending second parent as the monitor after finding that both parents had been participating in counseling and parenting classes.  The non-offending parent was employed full time and the offending parent had been a stay-at-home parent.

The court of appeals reversed, because it found that the offending parent's return to the family home under these circumstances could not meet the needs of monitored visitation.  It reasoned that even if the non-offending parent were able to arrange for another adult to monitor the visit while he was at work, "living together in the family residence will necessarily mean periods exist, even if somewhat brief (for example, when [non-offending parent] is asleep or showering), when the designated monitor will be unavailable. At least when the threat to the dependent child is the likely recurrence of sexual abuse, the concept of monitored visitation is fundamentally incompatible with around-the-clock in-home contact."

In re Ethan G., 2006 Cal. App. LEXIS 1922 (December 6, 2006)
From the Family Law Prof Blog.

Case Law Development: Modification of Joint Custody in Relocation Case Does Not Require Proof of Changed Circumstances if Joint Custody Continues after Move

The California Court of Appeals has handed down a fascinating decision involving modification of joint child custody plans.  In terms of the legal developments, the majority and dissenting opinions' debate over the "changed circumstances" test  in child custody modifications is extensive and well-written.

The case involves an unmarried mother and father whose relationship was, in the words of dissenting judge Bedsworth, "Byzantine in its complexity."  The couple had an on-again, off-again relationship for over ten years after the child was born, despite the fact that Father was married to another woman for most of this time.   Custody and paternity proceedings were filed when the child was five years old and a custody order entered over four years later.   The custody order provided a 50/50 joint custody arrangement and ordered that neither parent could relocate out of the state without the other parent's permission or the permission of the court. A year later, mother moved to modify the parenting plan and for permission to move to Colorado, based on her allegations that she could no longer afford to live in California, her sister had offered her employment in Colorado, and father was "very controlling" and was abusing son in his sports workout sessions.  Father argued that mother's request was in bad faith because his wife was expecting their first child and he believed mother wanted to move away in order to prevent son from bonding with his new half-sibling.

The court heard the custody issue de novo under a best interests standard, rather than applying a changed circumstances rule.  It appointed an attorney for the child and a child custody evaluator.  Father employed a psychological expert to evaluate son, but the expert was unwilling to testify (with father alleging that his reluctance was due to pressure from mother and child's attorney).  The court refused to accept that expert's report into evidence, concluding that the expert had freely chosen not to testify.  Finally, the court refused to hear the testimony of the 12-year-old son or interview him in chambers, stating that it had a policy against children testifying and that it had sufficient information from the custody evaluator and child's attorney.

The trial court modified the child custody judgment, granting mother's move-away request and establishing a new co-parenting plan for joint physical custody, with son living with mom in Colorado during the school year, Dad during the summers and on alternate Thanksgiving and spring breaks.

The court of appeals affirmed, noting that ordinarily the parent seeking to change custody would have to prove changed circumstances, but such a requirement did not apply here "because the court did not change custody. Although the court gave [mother] permission to relocate [son], the court continued joint custody with a modified co-parenting arrangement."  The court also found no error in the trial court's refusal to allow the child to testify.

The dissenting opinion is a lovely piece of writing in which Judge Bedsworth takes the majority to task for its conclusion that changed circumstances were not required in this case.  Here is a small excerpt to give you a flavor of the opinion:    

They [decide the changed circumstances rule does not apply] by concluding that a thousand-mile move is not a change in physical custody, but merely some kind of “modification of the coparenting arrangement.” ... In essence, they’ve said something akin to: “Your pet is still a golden retriever, only now instead of orange fur, big floppy ears and a long tail, it has silver scales, fins and gills and isn’t quite as huggable.” I am not yet willing to throw in the towel on something as important as finality of judgments, and would not allow what I believe is a reassessment of a final  custody judgment in this case, absent a showing of significant changed circumstances.

Niko v. Foreman (October 30, 2006)
Via the Family Law Prof Blog.

Understanding California Law for Child Custody during Divorce

Many people are unaware how the courts determine which parent will have physical custody of the children in a divorce, particularly where the parents cannot agree on this issue.

In California, children do not automatically go to the custody of the mother. Rather, California law requires judges to have as their primary consideration the child's "best interest" when determining the appropriate physical custody of a child.

California courts have wide discretion in determining a parenting plan that would be in the best interest of the child. The "best interest" rule does not necessarily mean that the parent with more money will win custody (although money is a valid and appropriate consideration). Rather, the judge will consider the full range of facts involving the health, safety, and welfare of the child.

The Court must determine which parent can better provide a nurturing, safe and stable environment for the child. Some factors under consideration include the amount of quality time each parent is able to provide for the child, discipline, safety precautions, feelings and desires of each parent, history of spousal or child abuse, stability and continuity of environment, and sometimes the child's own wishes. These are just some of the factors considered by the Court.

For most cases, after all of the evidence has been submitted to the Court, it will fashion an appropriate custody order that strives to give the child access to both parents, not just one parent. The Court wants to assure that "frequent and continuing contact" with both parents is maintained, as this is usually considered in the "best interests" of the child. In all cases, it is beneficial to both parents (and usually beneficial to the child) if they can come to an agreement regarding this issue.

From the Navy Compass.