• September 26, 2016

Mediation

I have never been a huge fan of traditional mediation, although I believe wholeheartedly in negotiation. The Law Offices of M. Jude Egan treats divorce mediation like more traditional mediation. Divorce lawyers are taught to mediate divorce cases on “fairness.” Sit down in mediation and tell the mediator what you think a fair outcome would be. I believe that each side should come to mediation with knowledge of the law and an understanding of what a court would likely do. This allows you to have an understanding of your “best/worst alternative to a negotiated agreement” (the classic book, Getting to Yes, Fisher and Ury calls this your BATNA/WATNA).  This is what happens if you don’t get an agreement.

We work with divorcing couples in my office regularly. It is mediation but it is also education. I typically represent one party and negotiate with the other. I advise the other to seek an attorney after they make an agreement, i.e., I do not have them sign the Agreement in my office but rather have them have it reviewed by a capable attorney in the area (usually I give them some names), so that they make sure that it is well understood and there are “tricks.”  I explain the law to both sides in this negotiation, so both know their liabilities. I tell the unrepresented party the risks associated with any particular position such that when they go and see a lawyer, the lawyer should not tell them anything they don’t already know.

I have settled hundreds of cases in this manner. I think it’s effective and fair. I think it helps both sides get what they want but also within the realm of reason about what the law would give. We meet with people in this manner three-four times per week and it is a part of my practice that I find highly rewarding. I believe my personality is well suited to this kind of negotiation. We work hard to see if we can get each party the thing they want the most in exchange for something they do not want as much.  I think when two people sign a settlement agreement and walk out of my office feeling like they “won” the divorce, that is an incredible situation. More than one divorcing couple has told me that their ability to co-parent has increased after such a negotiation. I remain convinced that this is better than a pure “fairness” based mediation.

  • September 26, 2016

High-Asset Divorce

There are few offices in Santa Barbara and San Luis Obispo Counties that have the level of technical expertise to handle high-asset or complex asset matters. From horses and cattle, to productive farmland and tightly structured business entities, to stock and dividend accounts, to REITs and Family Trusts and corporations, oil leases and water rights, highly complex assets create a world of problems for attorneys not experienced in California family law. Often, in high-asset cases, there already is a business attorney who represents the family and may attempt to assist in the division of assets. While, from a business perspective, this can make some sense, just the financial disclosures and discovery issues alone can overwhelm an attorney who is more focused on business transactions. The Family Code is its own beast and requires in-depth knowledge of its discovery and disclosure rules, how the Three Basic Property Division Rules work in various situations, ensuring proper calculation of ownership shares and valuations of real and business property.

Then there are possible Breach of Fiduciary duty claims that can lead to tens of thousands of dollars in sanctions and hundreds of thousands of dollars in attorney’s fees, just because you missed a set of disclosures. The infamous Marriage of Rossi decision (a lottery winner did not tell Husband that she had hit a $1 million jackpot – the Court awarded the entire winnings to Husband 6 months after the divorce was final because she had intentionally concealed a known asset) and cases such as Marriage of Davenport (2011) 194 Cal.App.4th 1507 and In Re Marriage of Feldman ( 2007) 153 Cal.App.4th 1470 set forth large sanctions for failing to provide material disclosures.

The California legislature views your case as a general partnership dissolution, and therefore adopts relevant portions of the Corporations Code into the Family Code. Fiduciary and confidential duties abound. Constructive trust and restitution remedies with large interest calculations lurk in hidden places. The disclosure laws punish incompleteness.

We work with business attorneys in high-asset cases, taking the lead as divorce counsel and learning from business and corporate counsel where need be or, alternatively, we work as a full-service firm on high-asset cases, by working directly with the corporate and business documents.

It takes a rare lawyer who can handle both highly complex and technical transactions and the raw litigation of the child custody court.

The Law Offices of M. Jude Egan does both.

  • September 26, 2016

Litigation

Divorce litigation is its own animal. We are conditioned as trial lawyers to believe that we are governed by the Code of Civil Procedure the same as all other matters, but the reality is that the rules of evidence are relaxed in the family court – whether by rule/statute or by practice. There is a sense that documents may or may not have to be authenticated before they are received, hearsay goes more to weight than admissibility, lawyers do a lot of argument.

Winning in divorce litigation is about getting the half that you wanted rather than the half your spouse wanted you to have. We litigate with certain ends in mind. We always seek to understand your goals – from quick settlement to full blown, scorched earth litigation (within the boundaries set by Marriage of Davenport above) – and then work tirelessly toward achieving those goals. We are in it for you.

Litigation should always be the second option; because divorce law is fairly straightforward we should be able to discern the facts enough to settle every case (except maybe custody issues). When we cannot, it is usually because someone is being unreasonable or difficult. In that case, we litigate and we litigate with full force and fury. But litigation is expensive and we always work toward reasonable outcomes that account for the costs of engaging in litigation. I would always rather have you keep the attorney’s fees you spend by a trial and get what you want.  And if we get what you want, I work hard to make sure that you want to take Yes for and answer. But if you do not get what you want, then litigation always remains a viable alternative. I am your advocate but I am also your counsel, so I believe in making sure that you are always aware of risks and liabilities in your case so that you can make informed decisions. I do not like going to litigation over a matter that we know is a loser before we walk into the courtroom, but at The Law Offices of M. Jude Egan we turn over every stone to see if we can work within the law to make sure that we give you the best chance of winning.

  • September 26, 2016

Support Issues

Child and spousal support are hotly contentious these days. I have noticed a changing world in which women have much more power in the market. Women attend college more regularly than men (the number is something like a staggering 57% women v. 43% men in colleges and universities these days). This translates to higher earnings. We are seeing more men as primary caregivers of children while women are holding professional careers.  We are seeing many more cases where earnings are relatively even and child and spousal support calculations resulting in very small or $0 orders. There is also an increase in palimony payment (Wife pays Husband spousal support) orders.

Child support is calculated by a computer program that crunches input variables into a formula that is so complex no one knows it by heart. But it’s also not even that simple. Lawyers have many “tricks” to skew the formula one way or another that an unsuspecting party or lesser experienced lawyer may not otherwise know about. Issues such as PERS employees mandatory retirement or mortgage interest deductions, pre-tax contributions to a 401K or the difference between pre- and post-tax health insurance premiums, long-term capital gains, and add-backs into self-employment income for depreciation, meals and entertainment and shared expenses like car payments, cell phone and internet payments, and insurance all contribute to the computer program calculation.

There is an old saying about computer programs: garbage in, garbage out. This is just as true in the support calculation and when a mistake has been made, very difficult to correct. It is always best to get it right the very first time.

Property Division

Property is divided in California Family Law with three basic rules:

1.    All property acquired before marriage or after separation is separate property;

2.    All property acquired during the marriage is community property,

3.    Unless the property acquired during marriage was by personal gift or inheritance, then it is separate property.

These three rules apply to every situation. The challenge is to figure out how to distinguish assets that have a mixed character. Thus, your spouse is entitled to the portion of your pension that you contributed during the marriage, but not the portion that was before the marriage or after separation. Your spouse is entitled to a portion of the equity in your separate property home that was paid down during the marriage (and any increase in value as a percentage of the ownership), but none of the separate property down payment or premarital appreciation in the home or growth on the separate property portion. There are complex calculations regarding stock options (that may be both income and an asset), inherited property maintained with community funds, refinances, and items purchased with community credit. Disability benefits, workers’ compensation benefits, and personal injury settlements must all be divided in ways that comport with the Three Basic Property Division Rules above.

  • September 26, 2016

Child Custody

Child custody and visitation matters are near and dear to all parents’ hearts. Virtually every divorcing parent who has walked into my office the first time tells me that the children are all that matters, the number 1 priority. I tell them that I am a father who co-parents with my daughter’s mother and that I understand what they are going through (her mother and I get along great and it’s still not always easy). I also understand that money matters – and I tell people that your children come first, but so does money because you need money to live and care for your children. I remind people that it is not “greedy” or “shameful” to seek money from your spouse. That support and property are essential to giving your children the best life possible for them.

Custody cases are fraught with emotion. Many people, believing they can represent themselves, make the mistake of handling their own custody case. I believe that you are your own best advocate, but I also believe what Abraham Lincoln once said: “he who represents himself has a fool for a client.” This is nowhere more true than in the emotionally charged world of child custody and visitation. We begin to strategize your case through a mixture of storytelling and fact-finding from the minute you step into our office. Constructing a narrative of your case, you as a parent, the life the children have with the other parent, their future opportunities, their mental health and well-being, and how the future is likely to play out gives the Judge a sense of who you are as a person. We approach each case with a similar fact-finding mission, but work to uncover the best approach to present you to the Court. We parcel out all of the irrelevant details of your case – things that when you represent yourself you may think are very important (evidence of affairs or some small amount of marijuana or alcohol use) – and focus on you. What you bring to the children’s lives, your particular situation and how you give care to your children.

This is a level of detail that few firms can provide. We are tenacious and tactical, an approach that has brought us tremendous success in the child custody and visitation realm. We also try to manage expectations about the types of results that are likely – the court will rarely award a week on/week off with an infant and will also just as rarely award “full custody” to one or the other parent of a 12 year old. There are times for each scenario however.  This office has been a part of many different custody and visitation outcomes over the last almost decade of work.

We are passionate about representing parents seeking more time with their children whether at the beginning stages of a divorce or when seeking a visitation modification after the divorce has been final for years.  We file ex parte, emergency motions where there are domestic violence or substance abuse issues or where law enforcement is involved. We strategize longer, more drawn out processes when circumstances call for it – I call it a “double jump” like in checkers – when we play for one custodial order for a period of time solely with the intention to make a second request for a larger timeshare later. We deal with challenging out-of-state custody disputes as well as disputes between parents who are nearly neighbors. We also deal with challenging health, educational or religious issues in parenting – these are the Joint Legal Custody issues. We have worked with parents of sick children limited by religious beliefs, with parents of children whose health issues threaten their ability to work and earn income, with parents who are facing off with a spouse a deeply divergent religious tradition than their own, and with the issues of parochial and other private schools.

The Law Offices of M. Jude Egan brings expertise into the area of child custody and visitation issues.

  • September 26, 2016

Divorce

Few things inspire more anxiety than divorce court. Images of barracuda lawyers ready to spew truthless allegations about your marital problems to harsh judges and your ex-spouse laughing at you all the while, create sleepless nights filled with worry and doubt. There is no question that asking a person who does not know you to tell you when you get to see your children, how your personal property will be divided up, whether you can stay in your home and how much of your income you are going to get to keep, is a process like no other in the court system. However, with the right counsel, there is an order to it.

California divorces happen in 3 stages: the initial petition and response (and temporary orders), the financial discovery documents regarding income and assets, and the trial or settlement. California laws are very straightforward regarding the division of most property issues. I estimate 85-90% of the time, the law is very straightforward. Most courts do not award “full custody” to one parent or the other – in fact, most courts lean toward shared custody and the battle is over how much time each parent will spend with the kids. Child support and temporary spousal support is calculated by a computer.

We help you each step of the way, ensuring fair outcomes, always trying to resolve your case in a way that leaves you better off than when you walked through the door, first by settlement (settlements are less expensive and usually more durable than litigation) and, if not, through a process of aggressive and thorough representation to the trial court.

Divorce is an orderly process, although the issues are complex and highly technical at times. While the laws of financial issues are straightforward, the analyses are often very technical, leaving many with poor no representation leaving tens or hundreds of thousands of dollars on the table for their soon-to-be ex-spouse. From dividing up military retirements, Federal and ERISA pensions, to determining ownership of real and personal property, ensuring that debts get paid, credit scores stay intact, and that support (especially for self-employed spouses) is calculated properly, and your children have the time with each parent they deserve, good counsel is of paramount importance to your future.

As highly complex as the financial issues in a divorce can be, child custody and visitation is more about strategy: telling the story of you and your role and relationship with your children. This is where it is important to understand what our Judges view as relevant and to position yourself in a manner that will resonate with the Court. The custody and visitation issues are often the most emotional issues in a divorce case, and they are very important to the child and spousal support calculation.

A divorce is not unlike the Olympic biathalon – where competitors cross-country ski until their heart is going to burst out of their chest, and then the stop, calm their nerves and shoot a target. It is a process of both an all-out sprint for the custody and litigation issues and the calm and cool objectivity of reviewing financial documents.

The Law Offices of M. Jude Egan brings a wealth of experience and knowledge of thorny and complex financial issues as well as an ability to strategize a child custody case to put you in the best light possible. We bring a rare mixture of technical expertise in the area of complex family law issues and old-fashioned litigation skills and tactics to help win the custody disputes.  We are well-versed in both asset issues such as stock options, trust income, small business ownership and separate property (before marriage or via inheritance) and in the types of issues that arise in custody disputes (substance abuse, child abuse, domestic violence, age-appropriate visitation schedules and physical and mental health issues).  We work with people of all income levels and bring the same high-quality of care to no asset divorces as we do to the most discriminating high-asset cases. You have an absolute attorney-client privilege and we fiercely protect that right.

  • September 26, 2016

Choosing The Right Lawyer

The Law Offices of M. Jude Egan has had over 400 family law clients in the last few years, the vast majority of whom have been satisfied with the work I have done for them.  I try very hard to settle cases quickly and fairly and when that fails the degree to which I am reasonable with opposing parties (and lawyers) depends entirely on the degree to which they are reasonable.  We litigate every case hard when it comes to litigation, but we litigate only as a last resort.  There are so many creative ways to settle cases, but once in the courtroom the Parties are subject to the blunt instruments of the judges.  This is fair – judges don’t really have much time to truly spend with individual sets of parties, so they rely on their tried and true means of resolving disputes.

For the judges, you fit into one of several pre-set categories the judges have set out ahead of time as a way of being efficient in their own work.  The family litigator’s job is to make sure you fit into the right category (the “good dad” versus the “absentee father”; the “stay at home mom” versus the “freeloader,” the “hard working mom who does all the housework and raises the kids on her second shift” versus the “party girl,” etc.).  This is done in a variety of ways – what we do at The Law Offices of M. Jude Egan is figure out the way we are going to tell your story from the very beginning – I call this “strategizing” your case.  I am continually thinking of ways to position you with the Court, including ways of dealing with set backs and new pieces of damaging information (including your ex positioning you as the bad guy).

All in all, the biggest complaint I hear when a client engages me after being with another attorney is not complaints about billing, which is what you might have thought, but rather complaints about personality fit (“she just screamed and yelled and billed me for it,” “it was embarassing”, “nothing ever got done”, etc.) .  When clients fire me and move to another attorney, which doesn’t happen often, but does happen, I don’t get to debrief them, but I can usually tell by the lawyer they picked and the differences of opinion that we had in the case that the personality fit just wasn’t there (“I wanted someone who was going to punch my ex in the nose”, etc.).

We settle most cases and the ones we don’t settle, we settle most issues in the case and litigate the hard stuff.  That’s because we have ways of working with just about every attorney in town.  You should want it that way, if you engage me.  If you are the type who wants to fight on for fighting’s sake that’s the type of personality non-fit that would usually lead me to make a referral to another attorney.  We have lawyers in town who will gladly take your money to tread water until you drown but they will make it a spectacular death with all sorts of blood and gore! Your ex will hate you and hate your lawyer! And everyone in the courtroom will see you scoring “nasty points” in the courtroom! But sadly, you will be nowhere closer to finishing your divorce and your ex will be nowhere closer to working with you after the lawyers are gone.

I say all this because I read a recent article on Huffington Post about choosing a good divorce lawyer.  While I don’t agree with absolutely everything the author says, I think it’s generally a very good piece on how to choose a divorce lawyer. Personality fit is front and center.  You need to trust your lawyer.  You need to feel good about the approach your lawyer uses in the courtroom (i.e., respectfully approaching the Court and other parties with reasonable settlement offers and working toward getting things accomplished; choosing battles versus kicking and screaming and raising a fuss – treading water and burning retainer;  etc.).  You need to be comfortable with the way your lawyer explains things to you.  You need to be comfortable with whether your lawyer stands up for you, and the ways in which he does so.  And you should never ever feel embarrassed for one of your lawyer’s behaviors.

There are things that the lawyers in a smaller community know that you most likely don’t.  For example, the lawyers know how the judges are likely to rule on particular issues (does that mean we always predict things correctly? No, but we have higher than average success rates in predicting judicial behavior).  The lawyers know which other lawyers settle cases and which other lawyers litigate everything (i.e., the churners and water-treaders) and which lawyers will sit down and hash out (im)perfect but better than the alternative plans.  The lawyers know which lawyers take unsupportable settlement positions and losing courtroom arguments and which ones take reasonable steps to get your case resolved.

A key takeaway point: in California, “winning” a divorce means getting the 50% of the stuff that you wanted rather than the 50% that got assigned to you.  It means getting a decent and sustainable support order, one that your ex can live with and if you tighten your belt a little, you can live with too.  It means getting good orders for your children to spend time with each parent (so you have breaks too).  That means that even a divorce lawyer you find out is a terrible fit for your personality is unlikely, if they know the system at all, to lead you to a bad (i.e., losing) outcome.  Just make sure that you are making progress toward the finish line – always moving forward to finality.  Finality even with imperfect outcomes, 97% of the time is better than limbo in search of perfection (and is 100% of the time better than limbo to fuel the anger).

My unsolicited (non-legal advice) is this: do not let your lawyer fire your anger up so much that you do irrational things like spend all your money on unwinnable custody fights (trying to squeeze out an additional 4 hours with the kids each week – people who get along with their exes see their kids so much more than those who extract every second from their ex).  Don’t let anger fuel you in your quest to destroy your ex.  The chances that any of our judges (or any of our lawyers) will allow you to be completely destroyed (or completely destroy) is very slim.  The law really doesn’t allow it anyway.

Do, however, look for someone that asks what it is you really want as an outcome and works tirelessly to push toward fair final resolutions.  When they ask for documents, get them turned around right away.  When they ask for declarations or statements about the situation, turn them around right away.  Keep pushing toward judgment rather than revisiting temporary orders over and over again.  And be wary of lawyers who urge to rush into court on small things.  Keep your eyes on the prize – finality with dignity and the 50% of things that you want rather than the 50% that someone else makes you take.

Remember that personality is not the end all be all for a lawyer in the courtroom.  Our judges have been very clear that they don’t like blood in the water campaigns.  They want to see parties moving forward toward resolution.  Most of the lawyers in town can get you there so long as they are continuing to move a case forward.

  • September 26, 2016

Children In The Courtroom: A New Rite Of Passage – Santa Maria Child Custody Lawyer

Rites of Passage

Time was when a child went through a teenaged rite of passage with the elders of his or her clan.  Such a rite of passage might have included learning a Hebrew poem, an important dance, or going off into the woods on a solo adventure.

In more modern times, the rite of passage has increasingly been one in which kids come to the courthouse to talk to judges about their living situations.  Most judges don’t blatantly ask the children with whom they might like to live, but they will ask them a variety of other questions about who does the majority of the parenting and with whom they feel the closest feelings of warmth and love.

The CA Family Code, section 3042 requires that the Court hear from a 14 year old regarding their preferences and may allow a child under 14 to state a preference, either in Court or to another person the Court appoints.

Here is the text of CA Fam. Code Section 3042 with my comments in bold:

3042.  (a) 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.

If a child is mature enough to address the court, the Court shall consider and give weight to the child’s wishes.

(b) In addition to the requirements of subdivision (b) of Section 765 of the Evidence Code, the court shall control the examination of a child witness so as to protect the best interests of the child.

The Court can control how a child witness is examined (i.e., usually in chambers with a court reporter but no lawyers or parties present).

(c) If the child is 14 years of age or older and wishes to address the court regarding custody or visitation, the child shall be permitted to do so, unless the court determines that doing so is not in the child’s best interests. In that case, the court shall state its reasons for that finding on the record.

Any child over 14 has the right to address the Court. 

(d) Nothing in this section shall be interpreted to prevent a child who is less than 14 years of age from addressing the court regarding custody or visitation, if the court determines that is appropriate pursuant to the child’s best interests.

A child under 14 may address the Court if the Court finds that the child’s best interests would be served by allowing this (the Court may but doesn’t have to allow a child under 14 to address the Court).

(e) If the court precludes the calling of any child as a witness, the court shall provide alternative means of obtaining input from the child and other information regarding the child’s preferences.

If a child is not permitted to testify, then the Court shall (must) provide an alternate method to gain information.

(f) To assist the court in determining whether the child wishes to express his or her preference or to provide other input regarding custody or visitation to the court, a minor’s counsel, an evaluator, an investigator, or a mediator who provides recommendations to the judge pursuant to Section 3183 shall indicate to the judge that the child wishes to address the court, or the judge may make that inquiry in the absence of that request. A party or a party’s attorney may also indicate to the judge that the child wishes to address the court or judge.

There are a number of different ways to get this input.

I write about this as a rite of passage for many children around the age of 14.  Many judges will meet with 11 or 12 year olds – indeed in an adoption proceeding, 12 year olds are required to speak with the court about their preferences.

What this means is that I have visions of skinny 12 year olds slouching outside the courtroom in the hallway staring down at the floor trying to control their emotions.  Too often one parent or both parents have talked to the child about their preferences and even coached them into stating that they want to live with one parent or the other.  We hope our judges are able to discern what is coaching from what is genuine feeling (and most of our judges are quite good at this – or I should say, all of our judges seem to be generally good at this).

I am on the record with clients and the Courts as saying that I do not believe children should come to court, that these are adult issues to be worked out by adults.  But there are simply times when the facts as seen by the parties are so at odds that the only thing to do is bring the children in.  I always feel it’s a sad day when the children come to court and, to quote my 5 year old daughter “it hurts my heart” to see it occur.  The kids suffer so much anxiety in the lead in to stating their preferences, that it’s something they will likely never forget (on a personal note, I talked to the judge at 14 in my own parents’ divorce and I will never ever forget the experience – we were well-coached by a family friend to walk into chambers and state emphatically that we loved both parents and wanted week over week visitation, which we got).

There is another side to having teens come to court, a positive side.  This is an opportunity for their voices to be heard, the only time most of them have their voices heard and considered by someone “official” in the divorce proceedings.  This is what I mean by rite of passage.  There is something powerful about letting children come to the courtroom and describe their experiences, wishes, hopes and fears to the judge in the case.  In some sense, it is the most “authentic” action that happens in an entire divorce case, because even the children who have been the best coached, end up telling the whole story to a judge who is paying attention and knows how to ask the right questions.  This can be empowering for the teenager whose voice is often so lost in the process of the divorce that they become hidden in the all of the action.  The parents become so intent on “winning” or “sticking it to” the other side, that they too forget (not out of malice or neglect, just out of sheer overwhelm) that the children have deep feelings about what is going on – those feelings may include more than anger or sadness – I remember feeling embarrassed, hurt, and guilty among other emotions.  Mostly, I just wanted things to get normal again.

So, while I am a strong advocate for keeping children out of the courtroom at almost any cost, I do think that this particular rite of passage can have a positive effect on the self-esteem of the children being asked to share their feelings with the Court.  It can give them a feeling that their voice is truly being heard by someone important at a time when their voices are often lost in the process.

I do not meet with children at my office as a general rule, largely because although I might hope they will say one thing or another to the Court, I do not want to put any such pressure on them.  Heck, the pressure on the adults can be very severe, so severe that many adults have a difficult time bearing it, but for the kids it can not only be extreme but they may carry it with them the rest of their lives.  The last thing most of them need is a lawyer in a suit coaching them on what to say.

If I do see a child, I tell them the same thing every time: “the judge will be very kind to you.  These are adult problems but you are old enough to have a voice.  Your voice will get louder and louder as you get older.  This is your opportunity to share with the judge the feelings you have about the situation – that no one else may know.  Be honest with the judge because your voice matters.”

I try to encourage my clients to say the same thing to their children.  By framing it this way, adults can help children can view what might otherwise be an unpleasant experience as an empowering moment in their lives.  Despite the acrimony between the parties in a divorce case, the children have an opportunity to grow each step of the way.

  • September 26, 2016

Santa Maria Child Custody Lawyer: A Father’s Day Blog Post

[Ed. Note: This post was written on Father’s Day 2013 but due to a technical glitch and site transfer, did not get uploaded until today. Father’s Day or not, I still feel like it’s relevant.]

Happy Father’s Day Blog Post

It’s Father’s Day and I had a great day I spent in that bittersweet way that only a father in a blended family can have. I had my four and half year old daughter Stella, a bundle of electric energy that is only outperformed by the depths of the thoughts she manages to put together as a pre-schooler. I also spent the day with my 20-year-old stepdaughter Savannah, herself a picture of grace caught in that in-between place between adulthood and late teenager with leanings each and every day more toward the adulthood side of things. My wife, who planned in the way that I love things to be planned, a gameplan with a lot of open space for changing things up as we went along with the day. Not to belabor the day, but I got to sleep in past Stella’s customary 5:58 am wake-up, had a way too carb-laden off-diet breakfast in Buellton, CA an then we fed ostriches on an ostrich farm, picked berries in Los Olivos, petted rescue donkeys in Los Olivos, and came home and planted some new vegetable starts in the garden (Stella didn’t want to get her hands dirty). I got a little sunburn. Then after dropping Stella at her mom’s house and Savannah leaving for work, my wife and I went on a lovely drive into Sisquoc and ended up having wine at Costa de Oro.

I’ve been wanting to write a good Father’s Day blog for a couple of years now, and since the day is almost over, I think it’s high time I tried it. I want to write a few words about all of the lame Father’s Day articles that get written each year around this time, point to the blog post that got me thinking and say a few things legal.

First, it’s overwhelmingly common for men as fathers to be stereotyped as absent minded, not overly caring and slightly goofy dads who need moms to fix everything. Articles about what to give dads on Father’s Day focus on booze, knick knacks, days on the golf course or other manly man pursuits. They forget that Father’s Day is about that most precious gift that any father ever experiences in their lifetime, fatherhood. This is also invariably the time of year when anecdotal comments come out about how dad ditched the family when they were young or dad was never present in people’s lives. The majority of the blog posts and articles that come out this time of year tend to focus on a) how dad was a real jerk or b) how dad is someone to be made fun of.

Even a recent article from my alma mater “Five reasons why it’s a good time to be a dad” by Jeremy Adam Smith on the Greater Good blogsite at UC Berkeley, which is a great step in the right direction, still falls short of honoring the true gift of fatherhood. The article has a great start: “are you feeling fed up and burned out, Dad?” and then it goes on to discuss something that is important in the current cultural climate: dads are more involved in their children’s lives than they ever have been before. In fact, the article cites Pew Center research that shows that Dads are juggling the work/life balance, “just like moms.” From there the article basically refutes a whole lot of stereotyping about dads. Again, a good blog post, or at least a blog post with its heart in the right place, but what’s missing?

His first article on the Pew Center (“How to be a happy working father”) research is better but still not great – he discusses something that is truly important – that even though the time dads have spent with their children has tripled since the 60s, men are twice as likely as moms to say they aren’t spending enough time with their kids.

The good stuff gets glossed over (and I don’t mean to pick on these articles, as I said, I think they are among the better ones out there compared to much of the men hating going on) – we already knew how important fatherhood was going to be to us, whether we became fathers by accident or by choice. I don’t believe though that it’s about finding a family friendly workplace or cutting down your commute or putting the extended family “team” in place, so that you are less tired when you see your children, it’s about digging deep inside yourself to spend quality time with your children even when you are exhausted, there is a looming deadline and your kids are full of unbridled energy that you simply cannot contain. It’s about finding a sense of calm amidst the chaos and getting your four year old into the bath and into jammies, reading a story, singing a lullaby and rubbing her back until she goes to sleep, even though you can feel that every second ticking off the clock is another second until you are going to be able to go to bed. It’s carefully putting a pink Dora the Explorer band-aid on your finger before you go to court in the morning and letting your daughter pick out your tie for the day. It’s sitting down with your child and taking the time to listen to everything from knock-knock jokes to the first time she has realized that it was a judge who decided how much time she was going to get to spend with you (I’m not kidding, four years old, and I get told “Judges think that kids should spend more time with mommies than with daddies”).

But this is a lesson for all parents. Spending quality time with the kids is being present for them even amidst the absolute pandemonium of the world outside.

A new generation fathers are participating more fully in their children’s lives than the generation before – which participated more fully than the generation before them. Let’s stop talking about it in comparison to moms. That comparison is not only getting tired, but it’s also getting a little boring. The other thing that I find generally boring is the novel concept of the “stay at home father.” Let’s face it, other than a very few exceptions, the true stay at home father movement was a product of the downturned economy with men in the trades being out of work, while women in the services industry still had jobs. Daycare bills had to be cut, and Dad became the stay at home parent. I would hazard a guess that most of these guys loved their children as much as any parent, but did not prefer to be a stay at home dad or even classified as one. They were looking for work – signing the book at the union hall, scouring the internet for jobs, and taking the kids to the park while they did it. But, let’s not get confused that in most of these households the men were trading this task with the women – moms had already been working, it’s just that their jobs weren’t lost in the downturn.

I have a general feeling – anecdotal at this point, but having spoken with members of more than 300 families in the last two years, not so anecdotal as to be without any scientific basis – that men and women both overestimate the time moms spend with kids and underestimate the time dads spend with kids. So many of us live in two income households with dads and moms both doing everything they can to raise their children together. We are all tired and we are all struggling to find that one more gear to handle what is an overwhelming task – parenthood. But we are still bound by our preconceptions about who does the work with the children in the home. Is bath time any more caregiving than coaching soccer? Is helping with homework any less caregiving than making dinner? Is drop off at school less of a challenge than picking up from school?

As a family lawyer and noncustodial father, I am in a position to see the ways judges are bound to the designation of the primary caregiver – and the rules that flow from it. Moms tend to come to court very sure that they are obviously the primary caregiver, because they are the mom after all. And Dads are all too ready to concede the point – which is why many Dads come to court with the foregone conclusion that Mom will have the kids and they will get the Daddy Plan.

The truth is that while have seen a remarkable shift in Court rulings in recent months with judges in my jurisdiction beginning to award greater shared custodial arrangements, more shared parenting time, it has still not gone far enough. In my experience, there needs to be more recognition of two things: 1) in many respects, in two income families the notion of the “primary caregiver” tends to mean something different now than it did in the 1970s when the “best interests of the child” standard was born. I believe we should examine it more closely if it’s going to be meaningful and 2) it is demanding on anyone – mom or dad – to try to raise a child full-time on their own. This includes parents with strong extended family networks and parents with spouses who are involved and caring stepparents.

As to the first, the legal notion of the “primary caregiver” is that the best interests of the child will generally be served by having the child live with the primary caregiver.
But, who is the primary caregiver in a household where: 1) Dad takes the kids to school in the morning because Mom starts her shift at 6:45 am and Dad doesn’t have to be at work until 8:30 am; 2) Mom picks the kids up from after-school care at 3:45 pm and runs them to practices; 3) Dad stops at the store on the way home to pick things up for dinner and gets it started, then runs off to coach the youngest daughter’s soccer practice and take her home; 4) Mom finishes prepping dinner, has the oldest set the table, clears the dishes while Dad gets the kids into the shower and Mom figures out what to pack for their school lunches; and 5) they both tuck the kids into their beds at night and give them a good night kiss, only to fall asleep on the couch about an hour later and do it again? What if the parents share days off work if the kids are sick? What if only Mom takes days off work because she works an hourly wage job while Dad’s salary job means they can take paid vacations in the summer to take the kids to grandma’s house?

Increasingly in my practice, this is the type of shared parenting we are seeing at the outset of the divorce. Both parents want the children with them. Typically, Dads come to me asking that they have 50% custody of the children, stating emphatically “I would never take the children away from their mom, I just want them with me half the time.” Moms tend to come with the position that Dad can visit with the kids, but they need to sleep in their own beds.

I believe that men have become more involved as parents because we take our roles seriously. It can be simple: as one of my clients said in open court when asked why he was pushing for 50% time with his daughter, “I’m trying to keep my daughter off the [stripper] pole.”

There are also more complex reasons: we view it as a sacred bond and sacred duty. When my daughter was born, I felt my very DNA was changed upon seeing and holding her for the first time. She was born by C-Section and that meant that in her first two hours, it was just she and I. Her mom had had 9 months to bond with her in utero, but for those first two glorious hours it was just my baby girl and me in the hospital nursery. From the time when she was an infant, I carried her in the Baby Bjorn on early morning walks and stayed up late feeding her when her mom was exhausted. A bond was formed. Maybe more on me even than my daughter.

This is a little more personal than I usually get, but because it is Father’s Day, I am feeling a little more deeply about the subject. I am blessed with a great relationship with Stella’s mom and an involved and caring wife, who is a fantastic stepmother to Stella. I have been further blessed with three amazing stepchildren, each of whom I love dearly in their own ways. One of whom, in particular, whose dad is not in the picture, I feel is my own daughter. I am grateful for all that has been given to me each and every day.

But, it did not come easy and it took time, patience, pride-swallowing and releasing some of those negative emotions that were holding me back.

As a lawyer, I work tirelessly to bring parents to an understanding about the importance of involved parenting. By involved parenting, I mean being there for and with your child when your child is with you.

One of our judges said recently, “your child knows you love them because you show up when you say you are going to show up. If you can be there every Tuesday and Thursday than I will give you every Tuesday and Thursday. But when you miss your days, maybe we need to set the schedule when you can always make it. Wednesdays? One Saturday a month? When is it going to be?” Being there means literally being there. I will work as hard as I can for a Dad or Mom who wants to be there for their child more than they already are – and I believe that our Courts reward parents, particularly Dads because they are frequently the non-custodial parent, who want to be there for and with their child.
As a lawyer I work with both mothers and fathers as clients. I try to make sure that parents have healthy, active relationships with their children and that they understand what is lost when they keep the child from the other parent. That the person they hurt is the child and that ultimately, as another child of divorced parents told me, “my mom kept us from our dad most of our lives. I didn’t know my dad, I just knew my mom said that he was a true jerk. When I got to be 16, I decided I had to know my dad more than the one weekend a year that I would see him. So, I saved my money and bought a ticket to Norway and flew to go see him one summer. You should know that now, as I am a father, and all through my adulthood, my close relationship is with my dad. It’s my mom who I see one obligatory time per year.” I want to tell that story to my young father clients who find themselves with a parenting schedule dictated by a judge that has them spending so little time with their kids they aren’t sure what to do. When you see the tears on these men’s faces – and I am not talking about sensitive new age Berkeley guys like myself, but true working men, blue collar guys who the stereotype says won’t care – you know that they see fatherhood as I do, as a type of sacred duty.

As I mentioned, in our jurisdiction, the judges are beginning to see this new sort of reality, but it’s nowhere near perfect. When I read articles about “shared custody” I sort of gag a little bit. It’s the law in most jurisdictions that the parents, absent some good showing, will share legal custody of the children. This means they will confer about which school, which doctor, which religion and the like. But shared legal custody is increasingly meaningless because the parent with primary physical custody has the strongest role in making those decisions – shared legal custody is like a participation ribbon when you wanted the first place trophy – you get it as long as you cross the finish line. If there’s a tie (which is frequent between two people who got divorced because they couldn’t get along), the tie goes to the person with the larger share of physical custody.

True shared custody boils down to one thing: timeshare. Standard Daddy Plans still have Dad at 20% timeshare with every other weekend and one weekday dinner visit per week. These plans are entirely based on the financial outcomes – child support is calculated on the basis of timeshare and income differential and the state has a policy of maximizing support. This means the stated public policy in California of “continuing care and contact” is balanced against the need to maximize support. Timeshare, primary parenting, physical custody is a product of the financial equation. That means a 49% primary caregiving dad can end up with 20% timeshare of the children for support purposes.

Most dads I talk to in my office are there crying about the kids and not the money – they’d rather pay the 20% timeshare support and see their kids than effectively be shut out of their lives because of the money. But after custodial parents have been once through the system, they get wise to the idea that every additional minute Dad spends with the kids is a dollar less they get in their support each month. I believe in paying child support and I believe that the lower-income earner and the parent caring for the children the majority of the time needs support. But I do not like support being tied to timeshare.

Now I am getting a little far afield – I will pick up the support issue below.

The second point is that it’s damned difficult to be a good, involved parent and work full-time or more than full-time as many of us are now doing. You have to dig deep. You have to work a shift, be present for your children and then work a second shift. Without going into a whole bunch of self-congratulatory detail, during this last year, I worked as a tenure-track Cal Poly professor and a full-time lawyer and have been a husband and 35% timeshare father. What that effectively means is that there have been dozens of nights (this one included) when I have worked until picking up Stella from school – ten hours most of the time, no lunch break – picked her up, played princesses, jumped on the trampoline, got her fed (with my wife’s help) and into the shower, into jammies, read books, sung lullabies, and said our prayers, only to come back out to the living room couch right afterward and worked until 2 am. All this only to be woken up at 6 am to start again.
Exhausted as I sometimes am, I would do that every single day to have more time with my daughter. But we have to be reasonable. The body and mind do not function that way and we need time and space to replenish ourselves. We need time and space to spend with friends, to go on a walk by our own selves, to go to the gym (that’s wishful thinking), to fall in love again, to get married again, to do all of those things that are completely necessary to live fulfilled and fulfilling lives. Don’t we want our children to witness us happy and fulfilled in our lives? Our children need us to replenish ourselves so that we are ready to spend that time with them.

One more anecdote: a friend told me a story about how when his parents divorced when he was 8, his mom moved from Los Angeles to Nipomo, about a 3 hour drive away. He said that his dad was awarded weekend visits with him, two per month. He noted that his dad drove up from Los Angeles for every one of those weekend visits from the time when he was 8 until he was 18; he never missed a visit. In the meantime, his dad remarried and had two additional children. His dad would come even when my friend got to the age when he didn’t really want to see his dad that much – he’d have rather been hanging with his friends or girlfriend or whoever. This dedication never dawned on my friend until he was older and he realized how much energy his dad put into staying in contact with his son.
Not all dads will be like that. I see that some of the dads who tend to fade from the picture are the ones who get cut out of their children’s lives by early court orders – the ones with a single Saturday visit each week or alternate weekends with Mom in another town. You set Dad on a course where he sees the kids for Bob’s Big Boy on Wednesday nights and every other weekend in his apartment, and he is going to be trying to find some other meaning in his life – another relationship, other children he sees every day, extra hours at work, a promotion, devotion to his church or worse, alcohol and drugs. Being shut out of one’s child’s life is so painful, that you have to expect that some dads will start over again or get involved in something else just to ease the pain.

This is why sometimes I believe that custody/timeshare awards should have an aspirational character to them. Dad, if you want this much time with the kids, prove it. If Dad proves it, the situation is great for everyone – the kids have a dad who cares for and loves them and is involved with their lives, Mom has a chance to date, spend time with her friends or with herself, and Dad is given the gift of being allowed to be the father to his children.

Solutions

Finally, this blog post got very long: I argue for a new system of child custody proceedings. This has been taken up by others before me. It’s called “no fault child custody.” In child custody proceedings, for the low wage earner who is also usually the low-income earner, support is the most important part of the equation. The low-income earner, usually Mom, needs funds to be able to live. Dad usually has some additional funds (although not much) and wants to spend time with the children. Support is directly tied to timeshare. It is a common lawyer’s tactic when representing Mom to try to make Dad look like he is only trying to increase timeshare to reduce child support payments. Savvy lawyers know that they must get around this by not asking to change support at the time that they ask to change the timeshare. Wouldn’t it just be easier to have support from high-income to low-income parent at a reasonable formulaic level and then let the presumption be that the children would spend time with both parents on a relatively even level, making certain (BIG) exceptions? That is, rather than tie support to time-share, we would tie it to some other formula, such as income differential and need.

These BIG exceptions would be: 1) proven allegations of abuse, 2) proven lack of safe environment for the children, such as substance abuse; 3) very young children – infants in particular – who would be with their primary caregiver until a certain reasonable age at which point they would be introduced more and more to the other parent (so that Dad, if shut out early in the game would know that as the child got older, the child would definitely spend more time with him); 4) Dads (in particular) who do not exercise their time with their children; and 5) private custodial agreements. This doesn’t have to mean 50-50, but would certainly mean more than 20%. I think between 35-50% is reasonable. 35% would look like every other weekend Friday after school to Monday morning and one overnight per week – five overnight visits in 14 days. Further, we would not count hours in the week and give one parent credit for sleep time or time in school unless the child is in poor health and would need to miss a lot of school and one parent is primarily responsible for care giving on those missed days – then the other parent should share the cost of the lost work time.

I think that both moms and dads have come a very long way in recent years in their willingness to share children with one another. There is progress, but in order to see greater development in the area, we need to see policy shifts that create default positions that encourage sharing and discourage calculations of support based purely on timeshare. We also need to reduce the chance that either party could hurt the other with the children. It’s time to really start thinking about the changes we need to bring about.

One thing I would suggest is that every parent going through a divorce conduct a thought experiment: if you are a Mom, imagine that you are a Dad, and if you are a Dad, imagine that you are a Mom. Then both parents spend time imagining that they were each of the children. Ask what would be the things that would hurt most and what would be the thing that would ease the pain. Try to step outside of the anger for just a few minutes while you think through it. If you can do that, you can see just how important shared parenting really is.

My suggestion: we default to a 35% shared custody arrangement for kids under 8, and move to a 50% timeshare when kids turn 8 until high school. Child support would be calculated on a 30% timeshare basis immediately for all timeshares until the child turns 14 and starts high school. At high school age support drops to the 50% timeshare rate. Even when kids are under 8, they will spend 35% time with one parent and 65% with the other. The support number won’t move off the 30% level unless one of the BIG exceptions above is met with regard to support.