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Thursday, July 16, 2009

In Re Jackson v. Rowe: Grandparent v. Bio-Mom - Who Wins?


Before we start, here is my ever-proper lawyer disclaimer: without knowing the SPECIFIC details of the custody proceeding, my opinions are merely based on my legal experience. Thus, I am merely speculating and not giving legal advice.

The main issue I see revolving around the guardianship of Jackson's three (3) children (two whose biological mom is Rowe, and the third whose bio-mother is unknown), is grandparent rights v. biological parents rights.

If it were that simple, custody would go to Debbie Rowe. Hands down. Because Bio-Parent always wins over Grandparent (or third party).

Currently, the mainstream case governing grandparent visitation rights is the Supreme Court court case Troxel v. Granville, 530 U.S. 57 (2000). In that case, the unmarried mother and father of two children broke up and father moved out and in with his parents (grampa and gramma Troxel). The children got quite close to Gramma and Grampa during this brief period, and then father committed suicide two years later.

After father died, the mother stepped in and limited Gramma and Grampa Troxel's visitation to once a month. The Troxels decided to fight back and petition the Court for more visits. At that time, the Washington state law had a statute that basically allowed any third party to have visits if the visits were in the "best interests" of the children. So the Court ordered more visitation for Troxels - much more than what the mother wanted.

Mom appealed and won. The Appeals court held that third parties have no standing (that is, no power to challenge) unless there is already a custody proceeding pending. (Basically skirting the issue of whether visitation was lawful.)

The Washington Supreme Court affirmed the Appeals court, but on different grounds. They said that biological parents have a FUNDAMENTAL RIGHT of due process under the 14th amendment to make decisions for their children. Specifically, "parents have a right to limit visitation of their children with third persons" and between parents and judges, "parents should be the ones to choose whether to expose their children to certain people or ideas".

The U.S. Supreme Court affirmed. They held that parents have a substantive due process fundamental right under the 14th Amendment to solely make the decisions regarding the care, custody and control of their children and, absent a showing of parental unfitness, the state cannot interfere with those decisions. It was irrelevant whether the children would benefit from more time with their grandparents or that such visitation would be in their “best interests” as the state had no right to interfere in the first instance.

After this ruling, many states have enacted "Troxel" statutes. In California, specific code sections codify California’s strong policy preference for the rights of parents over non-parents:

Family Code 3040 states:
a) Custody should be granted in the following order of preference according to the best interest of the child as provided in Sections 3011 and 3020:

(1) To both parents jointly pursuant to Chapter 4 (commencing with Section 3080) or to either parent. In making an order granting custody to either parent, the court shall consider, among other factors, which parent is more likely to allow the child frequent and continuing contact with the noncustodial parent, consistent with Section 3011 and 3020, and shall not prefer a parent as custodian because of that parent's sex. The court, in its discretion, may require the parents to submit to the court a plan for the implementation of the custody order.

(2) If to neither parent, to the person or persons in whose home the child has been living in a wholesome and stable environment.

(3) To any other person or persons deemed by the court to be suitable and able to provide adequate and proper care and guidance for the child.

(b) This section establishes neither a preference nor a presumption for or against joint legal custody, joint physical custody, or sole custody, but allows the court and the family the widest discretion to choose a parenting plan that is in the best interest of the child.

Family Code 3041 states:

a) Before making an order granting custody to a person or persons other than a parent, over the objection of a parent, the court shall make a finding that granting custody to a parent would be detrimental to the child and that granting custody to the nonparent is required to serve the best interest of the child. Allegations that parental custody would be detrimental to the child, other than a statement of that ultimate fact, shall not appear in the pleadings. The court may, in its discretion, exclude the public from the hearing on this issue.

In California, if a custody proceeding is already pending, the non-parent, grandparent, or stepparent, must demonstrate the visitation requested is in the best interest of the minor and that the minor will not suffer detriment if the non-parent visitation request is granted. Under Family Code §3I00, the family law court has discretion to grant “reasonable visitation rights… to any other person [a non-parent] having an interest in the welfare of the child.”

If, however both parents object to visitation by the non-parent, there is a rebuttable presumption affecting the burden of proof that the requested visitation is not in the child’s best interest.

If one parent passes away, California Family Code §3102 governs, and states,
(a) If either parent of an unemancipated minor child is deceased, the children, siblings, parents, and grandparents of the deceased parent may be granted reasonable visitation with the child during the child's minority upon a finding that the visitation would be in the best interest of the minor child.

(b) In granting visitation pursuant to this section to a person other than a grandparent of the child, the court shall consider the amount of personal contact between the person and the child before the application for the visitation order.

California has its own Troxel case. In Zasueta v. Zasueta (2002), 102 Cal.App.4th 1242, during the divorce, Father committed suicide. Father’s parents petitioned for visitation. Mother opposed the request.

The trial judge (a grandfather himself of seven grandchildren) found Mother unfit based on the fact that she opposed grandparent visitation. Then the trial court, without good reason, held it was in the best interests of all children to see their grandparents, stating among other decidedly inappropriate remarks, that it is the job of all grandparents to “spoil their grandchildren.”

The Court of Appeal reversed, holding the trial court’s decision plainly ignored and therefore violated Troxel and violated Mother’s 14th Amendment fundamental right to raise her children, absent unfitness, as she pleases. In conclusion, the Court stated: “At the very least, Troxel teaches that trial courts must resist the temptation to personalize the proceedings and to substitute personal judgments for the decisions made by fit parents regarding visitation.”

SOOOOOO ...where does that leave Michael Jackson's children? Debbie Rowe is the undisputed bio-mom of two children. Under the statutes, her rights would trump Gramma Katherine's rights. The plot thickens, however - because she had previously terminated her parental rights, but the Court then reinstated them in 2006. How will this play out in the facts?

FINALLY, what about Blanket? Rowe is NOT the bio-mom of the third child. Thus, the statutes favoring bio-parents will not apply here. There IS, however, the inclination of courts to keep siblings together.

Ah, what a fascinating life and legacy he left us....

Wednesday, July 15, 2009

AshleyMadison Enables Married Cheaters In Rough Economy

So...people can't afford divorce these days. Instead, they pay for online subscription to...cheat?

Michiganders flock to Web site for flings with married cheatersAshleyMadison.com hooks up people bent on adultery

"Drew" is a 37-year-old businessman who lives in the Troy area.

His wife is consumed with work. And they don't have sex.

"The truth is I love my wife, but sometimes I feel like I need something on the side," says Drew, who spoke to the Free Press on the condition of anonymity.

So Drew hooks up through the adultery dating service AshleyMadison.com. He said he has met, and had sex with, about 10 women, and he credits the illicit trysts with helping him stay married.

"It has enabled me to meet women in my similar situation and has helped fill the void of the lack of intimacy in my life," says Drew, whose wife has no clue. "Strange as it may sound, it's helped my marriage. The pressure is off ... It's probably a lot cheaper than divorce."

Drew's story dovetails with the sales pitch masterminded by AshleyMadison's founder, Noel Biderman, a Toronto-based sports lawyer who has cleverly and profitably engineered a moneymaker from pairing human foibles with the Internet's social networking reach.
AshleyMadison -- named after two of the most popular baby names for girls -- was born in 2001. And if the site's growing popularity offers a clue, the Michigan economy's swoon means boom times for infidelity.

In Michigan, the site has grown from 38,000 members as of June 1, 2008, to 110,000 twelve months later. Biderman's theory is that economic instability forces shaky couples to stay together -- they can't afford to get divorced. Infidelity becomes a more likely option.
Research does indicate that as work demands and stress increase, so do marital conflicts. Financial declines have always triggered an increase in a range of unhealthy behaviors.
Some 43% of U.S. couples said they are arguing more about money because of the recession, according to the recent "Can't Buy Me Love" poll by Internet payment company PayPal.
Biderman is unapologetic and doesn't shy from controversy or confronting the opposition. He has faced down critics on "The View," "Larry King Live" and "The Tyra Banks Show."
Politicians nationwide also are providing plenty of fodder for discussions about infidelity -- Wednesday, South Carolina Gov. Mark Sanford confessed that he secretly left the state to travel to Argentina to be with his mistress -- and Biderman isn't letting the opportunity for free publicity pass. Earlier this month, AshleyMadison was in the news when a Las Vegas newspaper rejected its full-page ad capitalizing on Nevada Sen. John Ensign's admission of an extramarital affair. Biderman placed a similar ad in the New York Post when Gov. Eliot Spitzer resigned after he was caught using an escort service.

"I know people want to vilify me," Biderman said. "I argue back that I didn't invent infidelity."
At the Free Press' request, an AshleyMadison public relations person sent out an e-mail asking if potential cheaters would anonymously speak to a reporter.

One woman, a Detroiter in her late 40s, says she intends to end an 8-year marriage because it has not emotionally, physically or mentally "measured up."

Several months ago, she heard about AshleyMadison on the radio and signed up in February.
It's free to become a member and to create a profile and search others. But to chat with another member, a user has to buy credits-- $49 for 100 credits (it takes five credits to initiate a chat; subsequent back-and-forth chats are free). For the Affair Guarantee Membership it's $249 and the Web site will refund your money if you don't have an affair in three months. "If somebody had a genuine, sincere message and sounded like a nice person, I would send a message back," she says. "You had to really weed through those who didn't want what you wanted."
She said she wanted somebody to have a conversation with, too, before he became a friend with benefits.

The Detroiter chatted online with 10 to 15 guys. She met five of them face-to-face. She met four of them more than once. "I'm not looking to be physical right away at all," she'd tell them, "so please don't go there with me."

Now she says she is regularly seeing a "very nice person" who is married and does not want to leave his wife. She sees him a couple of times a week, meeting in hotels.
"He's filling the things that are lacking. He treats me extremely well. He's a professional. He makes really good money. He's very, very intelligent and very well-educated," she says. "I enjoy intelligent conversation. It's something I can't have in my marriage."

Her husband, she says, has no idea what she's doing.

Biderman says he's providing a service to people who would cheat anyway. But recently listeners of 89X-FM (88.7) radio's morning show, weren't so convinced.

"I think it's absolutely ridiculous that he set up a Web site to help people cheat," a female caller said. "This is the worst thing you can possibly do to somebody you care about."
A caller named Ryan says he's happy in a 7-year relationship, but knowing about the site "makes me want to call it.

"It provides a temptation, you know, for people who might be in a happy relationship, but at the same time (think) hey, maybe I can get away with it," the caller said.
Another caller, Natalie, said her ex-husband cheated on her through dating sites, and she found out.

"I was never mad at the Web sites," Natalie says. "The bottom line is if somebody's going to cheat, they're going to cheat."

Biderman's got a catchy retort for nearly every argument people throw at him.

Adultery is the "only thing in the world people think is immoral but a consensus still do it," he says.

"What I'm saying is don't have an office romance and risk losing your job," Biderman has said. "Don't start a relationship with an unsuspecting single person and definitely don't visit an escort service and risk breaking the law.

"...We're secure, anonymous and it was created exactly for people like you."
Biderman has been married for seven years. He and his wife, Amanda, have two children, and he describes his marriage as happy and secure.

"I've been a faithful person my entire life," he says, but adds provocatively, "to date."
Contact PATRICIA MONTEMURRI : 313-223-4538 or pmontemurri@freepress.com

Tuesday, July 14, 2009

In Love is NOT Enough

In love? It's not enough to keep a marriage, study finds

Reuters – A couple kisses on the beach in the Black Sea coastal town of Bourgas, some 390 km (246 miles) east of …
Tue Jul 14, 12:45 pm ET

SYDNEY (Reuters Life!) – Living happily ever after needn't only be for fairy tales. Australian researchers have identified what it takes to keep a couple together, and it's a lot more than just being in love.

A couple's age, previous relationships and even whether they smoke or not are factors that influence whether their marriage is going to last, according to a study by researchers from the Australian National University.

The study, entitled "What's Love Got to Do With It," tracked nearly 2,500 couples -- married or living together -- from 2001 to 2007 to identify factors associated with those who remained together compared with those who divorced or separated.

It found that a husband who is nine or more years older than his wife is twice as likely to get divorced, as are husbands who get married before they turn 25.

Children also influence the longevity of a marriage or relationship, with one-fifth of couples who have kids before marriage -- either from a previous relationship or in the same relationship -- having separated compared to just nine percent of couples without children born before marriage.

Women who want children much more than their partners are also more likely to get a divorce.
A couple's parents also have a role to play in their own relationship, with the study showing some 16 percent of men and women whose parents ever separated or divorced experienced marital separation themselves compared to 10 percent for those whose parents did not separate.
Also, partners who are on their second or third marriage are 90 percent more likely to separate than spouses who are both in their first marriage.

Not surprisingly, money also plays a role, with up to 16 percent of respondents who indicated they were poor or where the husband -- not the wife -- was unemployed saying they had separated, compared with only nine percent of couples with healthy finances.

And couples where one partner, and not the other, smokes are also more likely to have a relationship that ends in failure.

Factors found to not significantly affect separation risk included the number and age of children born to a married couple, the wife's employment status and the number of years the couple had been employed.

The study was jointly written by Dr Rebecca Kippen and Professor Bruce Chapman from The Australian National University, and Dr Peng Yu from the Department of Families, Housing, Community Services and Indigenous Affairs.

Monday, July 13, 2009

Recession-Proof Marriage?

True love? Or tough times? I've been asked by several people whether my practice is being affected by this rough economy. Luckily - I am fine - but my colleagues have suffered...and here is why...
What God Has Joined Together, Recession Makes Hard to Put Asunder
For Some, the Downturn Keeps Divorce on Ice; Ms. Brewster, Husband Share a House Divided

Rhonda Brewster and her husband have decided they don't want to be married to each other anymore. But while they're ready to move on, they still can't move out.

They don't want to sell their home, in Huntsville, Ala., in a down market. They can't afford two households until Ms. Brewster finds steady work. So for now, they are living under the same roof but on separate floors.

The "kids are OK with it." says Ms. Brewster, a 39-year-old freelance writer and stay-at-home mother. "They just know that mommy lives upstairs and daddy lives in the basement."

Unwinding the ties of matrimony is rarely simple or inexpensive, but for many couples, the sour economy is complicating the process further.

Divorce lawyers say many couples are delaying the decision to dissolve marriages and are staying in unpleasant situations for fear of being on their own at a time of economic uncertainty. Others are being forced to live together after the divorce is final for financial convenience. That can strain the emotions and result in awkward negotiations about subjects like dating.

In Nashville, Tenn., Randy and Lori Word jointly filed for divorce in February, after 10 years of marriage, and expect to get a court date this summer. Meanwhile, they continue to share a house while Ms. Word -- who had been a stay-at-home mother in recent years -- tries to find work in marketing. "I don't see jobs out there," she says.

Things are getting a little cramped in the house. Mr. Word, a 36-year-old construction-project manager, keeps his clothes in boxes in the study and sleeps in the living room. "Luckily, we bought a very nice couch two years ago," he says.

Ms. Word, who is 37, works part time as a waitress while she is searching for full-time work. Some nights she returns home from a shift to find Mr. Word in the bed complaining that his back can't take another night on the couch -- and asking her to please sleep in the living room, which she does.

Both say they are actually getting along better now that they are no longer in an emotional marital relationship.

"We're a lot kinder to each other," says Ms. Word, adding, "We're not so offended and bothered by each other." Mr. Word says, "We've actually developed or redeveloped a friendship that I think had gotten lost a little bit."

A May survey by the Institute for Divorce Financial Analysts, a national organization for financial professionals who work on divorce cases, found that the recession was delaying divorces, and inspiring "creative divorce solutions" in living arrangements.

"People are saying, 'I've put up with it for the last 10 years, I can put up with it for another year,'" says Gary Nickelson, president of the American Academy of Matrimonial Lawyers. In a poll of 1,600 of its members, the group says, respondents estimated that divorce cases in the six months through March were off 40% from normal levels.

It's still unclear how the recession is affecting divorce rates overall, because of lags in government data. But courts in some major population centers say fewer people have been filing for divorce since the downturn began in late 2007. In New York County 9,349 couples filed for divorce in the first four months of 2009, off 14% from 10,848 in the same period in prerecessionary 2007, according to records from New York State Unified Court System.

In Los Angeles County, divorce filings in the first four months of this year dropped 3%, to 9,048, from the same period last year and are down 9% from the comparable span in 2007, according to records from the Los Angeles Superior Court.

A lull in divorce could be a silver lining in the recession, says Steve Grissom, president of Church Initiative, a Wake Forest, N.C., organization that runs DivorceCare, a national support group. Mr. Grissom says couples who postpone splits may be able to work through problems and reconcile.

Bonnie Hughes, a 51-year-old financial planner, says she developed stomach problems when the real-estate slump turned her marital split into "the divorce that never ends." She and her husband divorced in February 2007, but for financial reasons continued to live together in their house in Chattanooga, Tenn., until the following May. Ms. Hughes moved out, but the ordeal wasn't over. They put the house up for sale, with each planning to use the proceeds to finance the next stages of their lives, Ms. Hughes says, but "it just wasn't selling."

They finally sold in August 2008, after dropping the price by $100,000 to $324,000, which was less than they had paid for the place four years earlier. She used her proceeds to move to Atlanta.

In Alabama, Ms. Brewster and her husband say they are avoiding complications by sticking together even as they plan to part.

The couple decided in March to split after 16 years of marriage. Ms. Brewster has hired a divorce lawyer and says she has been advised to have as little interaction as possible with her husband. Both say reconciliation isn't in the cards.

But to afford two separate households, they either need to sell the house they bought four years ago -- which they don't want to do in a down market -- or wait until Ms. Brewster has steady income.

In the meantime, Ms. Brewster lives on two floors of the house, residing with the couple's two children, plus the family pets: a guinea pig, a squirrel, a dog, two rabbits, two gerbils, five cats and five lizards.

Her husband lives in the finished basement, formerly the family's game room. "We had to take down the pool table so he'd have a place to sleep," she says. He sleeps on an air mattress, and has his own entrance and a full bathroom, though his only cooking equipment is a microwave.
Each calls the other before entering their respective domains; they schedule use of the washer and dryer and negotiate evenings out, Ms. Brewster says.

"He still takes the garbage out and mows the lawn. Sometimes, I will call him and say, 'I know you're eating frozen dinners; I cooked extra, come up,'" Ms. Brewster says. "I try to take the high road in front of the kids. Goodness knows they've seen the bad side of marriage -- the arguing."

Both have resumed dating and have even given each other advice on how to get back into the singles world. Ms. Brewster took the photograph of her husband that he put on match.com, the online dating Web site. On some Saturday nights, she says, they hire a baby sitter so they can both go out, and they share their plans so they won't run into each other.

Their living situation has scared away some potential suitors. "It freaks a lot of them out," says Ms. Brewster. "I tell them upfront: Here's my situation. Eventually I will move on, but I'm not going to do something to mess myself up financially."

Write to Jennifer Levitz at jennifer.levitz@wsj.com

Tuesday, July 7, 2009

Michael Jackson's Children

Jackson custody case: the legal issues

Michael Jackson's ex-wife Debbie Rowe is reportedly considering whether to fight for custody of the couple's two children.

The BBC News website asked Professor Scott Altman, an expert in family law from the University of Southern California, to explain the legal issues surrounding the custody battle.
Who will win custody of Michael Jackson's three children? Many variables seem like they could affect the outcome.

Jackson's will names his mother as guardian (or in her absence, Diana Ross). His ex-wife Debbie Rowe tried to disclaim her status as a legal parent, and then returned to court and had the termination of her rights overturned.

And Jackson's youngest child seems to have no legal mother, having been born to an as-yet-unknown surrogate.

Bizarre and complex as these facts seem, most of the legal issues raised have been long settled in California (where admittedly bizarre and complex family disputes are more common than elsewhere).

In California, children born to a married couple are strongly presumed to be the spouses' legal children.

In this case, no one will be able to dispute Jackson's or Ms Rowe's status as parent to the older children.

Nor will Ms Rowe's early effort to terminate her parental right be final, because parents cannot terminate their own rights without a judicial investigation.

Likewise, Jackson's will should not affect child custody.

If the children know her as a mother and have seen her frequently, she will almost certainly win
Although parents regularly indicate in a will who should be named guardian in case of their death, these designations typically become effective only upon the death of both parents.
One parent's will cannot unilaterally deprive the other parent of custody.

So how will the court decide?
California law presumes that minor children belong in the custody of a legal parent - in this case Ms. Rowe.

The law also allows judges to override this presumption if parental custody would be detrimental to the children.

So a court will need to see evidence.

If, as has been widely speculated, Ms Rowe has rarely visited her children over many years and has almost no relationship with them, a court could easily deny her custody.
But if the children know her as a mother and have seen her frequently, she will almost certainly win.
This leaves the question of the youngest child. Ms Rowe has no claim to be his legal mother.
She did not give birth to him, and was not married to Jackson when the child was born. Certainly a court might award Ms Rowe custody of all three children - most courts favour keeping siblings together.