Halle Berry has been involved in a custody battle for the past year. She and former Versace model Gabe Aubrey are the parents of a four-year old daughter named Nahla. For the first three years of Nahla’s life Halle and Gabe, who never married, co-parented their child rather effectively, even after their relationship ended.  However, as usually occurs, something changed for the worse in their relationship and the co-parental bliss came to a screeching halt.

In this particular case, Halle became romantically involved with a new man, Olivier Martinez, who happened to reside in France, so Halle petitioned the court to relocate there with Nahla. As we explained in the Katie Holmes blog, relocation requests are very difficult to obtains for a variety of reasons and, when granted, only with great hesitancy by the courts. The judiciary, as aided by psychological experts, has determined that a child’s interests are best served when the two parents reside in close proximity to each other. Proximity enables the child to spend time with each parent on a frequent and consistent basis and avoids making the child travel between great distances such as across state or international boundaries. Additionally, the court’s inclination against relocations generally ensures the child remains with the same schools, churches, activities and family units that have always been in place for that child.

On rare occasion, relocation requests are met with favor. For instance, I have had cases of military personnel that received transfer orders and petitioned for relocation. Obviously, those requests are generally granted. Additionally, relocations are often granted when one parent is, to an extent, more uninvolved in the child’s life than another. In the Halle Berry case, however, none of those conducive factors was present.

The first mistake that Halle Berry made was in allowing the other parent to assume the role of primary caretaker. In the Berry/Aubrey case, Ms. Berry presumably spent a great deal of time on location making movies or on other travel related to her acting career whilst Mr. Aubrey assumed the role of primary caretaker for Nahla. Now please understand, there is nothing inherently wrong with this, and in the context of an actress in Hollywood these are exceptional circumstances. For those of us in the regular world I would strongly encourage sharing the role of parenting equally with the other parent. This practice is good for the child and it is fair to both parents. However, if one wants to later make a claim for relocation, the request will almost certainly be denied if the other parent has consistently assumed more of a parenting role than the petitioner.

Secondly, Ms. Berry made the common mistake of not planning ahead. Compare this case, again, to Katie Holmes’ brilliant execution of foresight. For the year immediately preceding her relocation request, Katie Holmes relocated herself and her child, Suri, to the desired locale of New York City. While she still had a home in California and her then-husband Tom Cruise was on location with movie projects, Holmes started spending the majority of her time at the desired new location. In contrast, Halle Berry spent an inordinate amount of time outside of her home state without Nahla, and did not attempt to establish a home in France until she had already made her request to the court for relocation. Obviously, owing to financial strictures, relocation to another state or country is a more difficult undertaking for the average case than that of a movie star. Most average clients do not own a second home. But if you do, and you wish to relocate to wherever that may be, begin as soon as possible to spend the majority of your time in that second place. If a new job is there (or the new relationship), start spending more time in that state in order to establish a pattern of regular activity. Plan ahead, if possible, by having a job already in place. Most judges will be reluctant to grant a relocation request based only upon desire alone to obtain new employment in the new state. However, if the job is ready and waiting, your chances for relocation approval increase exponentially.  A final component of planning ahead to consider would be to keep your nose clean with respect to criminal issues for a preceding period of 24 – 48 months. A recent positive drug test, for instance, will put the kibosh on any relocation request; as will a criminal record or domestic violence charges. As recent developments in the Berry case concerning the allegations of assault by Mr. Martinez upon Mr. Aubrey have demonstrated, becoming involved with the wrong person can also be damaging to your petition.

The third, and not necessarily final, mistake that Ms. Berry has made was in not choosing a suitable reason for the relocation. As previously mentioned, an easily granted relocation request will include military orders, a new and secure job, or a new and secure spouse.  Ms. Berry’s request was motivated by simple love for her new beau, Olivier, which, while a powerful motivator of human behavior, has little substantial value in court considerations, particularly at the risk of estranging a child from an established parental figure. Halle met Olivier Martinez, fell in love, and, on her own accord, promised to be with him until death do they part. Fulfilling those promises came to a screeching halt for Berry when Mr. Aubrey informed her that their joint custody arrangement forbade her from relocating to France with Nahla, thus the ongoing custody battle began in earnest. While I have seen the court grant a relocating request on the establishment of a new marriage, this has been a rare occurrence in my experience. In such cases, the parent seeking relocation was clearly the primary parent for the child, both on paper and in practice. Generally, a relocating parent will have to be able to demonstrate to the court that he or she cannot earn a living in the current state of residence and a move is required to maintain the child’s standard of living. There must be some compelling reason to move other than a mere wish, e.g. – the new spouse is supporting the family and the previous parent is not, a new job for the spouse and/or parent, or military orders. Few cases outside these narrow examples will be granted.

In summation, if you envision a relocation request in your future, remember these steps, which are simple enough to implement but require the exercise of some patience: Establish yourself as the primary parent; Plan well in advance and start establishing the second home and career in the desired relocation area; Keep your criminal record very clean; Ensure your reasons for relocating are extremely compelling. If these proper measures are put into place, it will go a long in establishing your case. Finally, although it may go without saying, relocation requests will never be granted without counsel.

Call Cortez Family Law today for your free consultation on your request for custody or relocation.

But alas, Tom and Katie let us spectators all down by settling out of court! Not only did they settle, they settled within a week of filing their initial documents. I for one wanted to hear details on the inner workings of the Church of Scientology, or hear confirmations on the rumors of Tom’s affairs, or tidbits on where Suri would be spending her Christmas holidays.

So, despite all the letdown, I must say Katie really did this right. In fact, she may set the textbook standard for how to get the settlement those seeking divorce really want.

First, Katie knew exactly what she wanted and she planned ahead to get it. She did her research and had a plan in place before she showed her hand by even mentioning, let alone filing, for divorce.  Based on many news reports I have read, and based on the history of many Hollywood divorces before her, Tom and Katie probably had a prenuptial agreement that provided for an increasing property settlement for every year of marriage, generally providing for an increased bonus upon reaching a milestone in the relationship such as five years.

But rather than filing immediately upon reaching the fifth year of matrimony, Katie bided time and had planned a course of attack. She identified her most important issue (primary custody of Suri) and planned a course of action that would ensure victory on that particular point. Part of this was establishing verifiable residency in New York, where laws were more favorable towards the custody dynamic she sought to establish. Luckily she was able to do that without raising a huge amount of attention which would otherwise be generated by relocating across country. She simply starting spending more time in the New York house than the Los Angeles house.

To file in New York, she had to have lived there with Suri for the past six months. She did that and established New York as the home state of the minor child ensuring she could file in New York and maintain New York City as her primary home.

By planning ahead for your own settlement, you may wish to go ahead and secure a new home for you and any children, or in the alternative, ask your spouse to move out. In either case, start setting aside money for attorneys fees and living expenses. Remember, once the divorce is final, you will effectively be supporting two households with half the amount of money you used to have. By planning ahead you can ensure there is adequate income to support you through the pendency of the divorce and afterwards as well.

In addition to simply planning ahead, identify your most important issues, prioritze on obtaining that particular item, and be willing to negotiate on the rest. For Katie, in addition to relocating to New York, she wanted Suri raised in the Catholic religion rather than Scientology. And according to various sources, Tom did agree to this stipulation. Tom cannot actively indoctrinate Suri in his religion until such time that Suri is able to make her own decisions on religion, presumably in her teenage years.

Like Katie, you priority may also be raising your child in your own religion, relocating with your child or simply obtaining primary custody. Alternatively, it may be retaining the house or your retirement account. Regardless. Have the goal clearly prioritized beforehand. If your spouse agrees to your most important item, it may behoove you to give in on other issues.

Finally, the one thing Katie Holmes did really well was enlist a wise group of friends, family and attorneys to assist her.  This "Greek Chorus", as many attorneys refer to it, is a a valuable asset and can be both your best friend, but possibly your worst enemy. As your best friend, this group will advise you in the law and in fairness. As your worst enemy this group will simply tell you want you want to hear ("Yes, you will get $5,000.00 per month in alimony, just like I did!"). Ensure your "chorus" is filled with truly wise and caring friends, and not solely your recently divorced (and still bitter) best girlfriend. Better yet, see the counsel of any attorney well before you commence your plan for divorce.

In summation, plan ahead in securing housing, savings and other ideas. Know what you want and request it from the start. Know what you are willing to accede on in order to obtain that most important item. And secure a close group of friends and advisors who will counsel you prior to filing and all along the way. Katie Holmes did all of this and obtained exactly what she needed and most of what she wanted in a very short amount of time, and with the added feat of being a celebrity who maintained a high level of privacy. So, while I may want to “move like Jagger”, I want to divorce like Holmes.

* A reference to my favorite Katie Holmes movie, “Pieces of April”.

• We described a 15-year-old who was removed from his father for purported extreme discipline issues. We represent the father. That child is back with the father, and sees his mother sporadically.

• In the case of the two girls where the parents shared 50/50 custody, that situation has also improved. As in the above case, we are representing the father here. The daughters were removed from the mother’s care for excessive discipline. Their father retains primary custody, but the mother has regular visitation.

• In the case involving the pre-teen sending inappropriate texts and photos: the father slapped her in frustration over the misbehavior and nearly lost custody as a result when the daughter reported his allegedly abusive behavior. The father retained custody in this case, but the mother continues to seek additional visitation. We represent the father here as well.

As one may ascertain from the above examples, our success rate concerning father’s rights is fairly impressive.

All of these cases have certain commonalities. In all instances, the parents have worked together with a counselor on the children’s behalf to improve the children’s relationship with both parents as well as addressing complaints of abuse. The counselors, in turn, invite both parents to participate. When the counselors do not involve both parents, the situation becomes one-sided; akin to a marriage counselor who works with only spouse and somehow expects the marriage situation to improve. More often in these situations, one side becomes utterly polarized against the other, which becomes the same expectation when a counselor meets with only one parent and the affected child (or children).

The fourth case we outlines in the April blog entry involved a father accused of abusing his five children. That case has not been rectified and, if anything, has worsened. At the time of the April entry, that father had not seen his children for nearly four months. As of this month, he has now not seen them in nearly seven months. In the past, Cortez Family Law has represented parents who reportedly used drugs, or who have been accused of flagrantly abusing or neglecting their children, as well as others who have pending criminal charges or existing records and have still managed to obtain equitable visitation and custodial arrangements. The father we are describing has been accused of nothing more than spanking his children.

How is it possible that merely spanking one’s children can lead to, for all intents and purposes, a complete obliteration of one’s parental rights? In this case, it seems to be a perfect storm of bad luck, bad clinicians, bad counselors and bad court decisions.

First, the children were seemingly encouraged by other parties to call consider spanking as outright abuse.  The spankings in this case were neither frequent, nor were they more excessive than was first reported. However, the disclosing child seemed to get an inordinate amount of attention when he started referring to these instances as “abuse”. The counselors started meeting with him more often. The reporting child then began getting an inordinate amount of attention from the mother. Two more of children seemed to be able to pit the parents against each other even more than they already were. The two children who reported that the father was abusive began to garner the support of other individuals. Before long, the story had grown to mountainous proportions.

It is possible the father was in fact abusive? Is he lying or minimizing his culpability? While anything is possible, there are more than sufficient facts to support the father’s version of events. First, the children had given no previous indications of anything untoward in the father’s home. They were all seen as personable children who got good grades, had friendly relationships and seemingly enjoyed their time in their father’s home. Alternately, police reports document instances of violence in the mother’s home, as well as her inability to control the children, her history of drug abuse and purported lies to police. Most individuals involved in the case believe the father.

However, those whose opinions matter most to the court, i.e. – the children’s counselors, believe and uphold the children’s revisionism indicating that their father was the abusive parent. The counselors have sided with the mother as well, and refuse to involve the father in any counseling and refuse to even consider his version of events. The counselors have effectively allowed the children to run this circus and have further provided them with a forum consisting of full attention and unfettered popularity for their position, and practically nothing in the way of meaningful scrutiny.

While there are many other factors at work in this case, it is hard to ignore the difference in outcomes between the “abuse” cases where both parents are actively involved in the counseling process and this particular case, where one parent is inexplicably prohibited from engaging therein. I hesitate to think of the potentially different and more amicable results that could have been had here had these counselors engaged the father from the beginning.

Collaborative divorce was pioneered in 1990 by attorney Stuart Webb of Minneapolis.  He started the process as an alternative to litigation after many years in battling on behalf of family law clients in the courts. An apparently successful litigator, he mused that there must be a better way of divorcing people than by solely attacking them at great financial and emotional expense. He found that negotiation and interest-based negotiation achieved the desired goals without the forced process of decimating the other party.

Collaborative divorce utilizes interest-based, rather than position-based, bargaining.  In interest-based bargaining, the parties focus of meeting each parties’ respective concerns and interests in a cooperative manner. Conversely, position-based bargaining is the typical approach to negotiating a divorce whereby each party assumes a position that he or she ultimately proves reluctant to move away from. At Cortez Family Law, we strongly support interest-based bargaining because it allows both sides (and both attorneys) to retain more respect.

To start a collaborative divorce, each party retains his or her own collaboratively trained attorney. Both attorneys and their clients will meet to sign a collaborative divorce contract. In this document, the clients both promise to cooperate in reaching a mutually-beneficial end result. The parties also promise to avoid litigation and court intervention. If either party chooses to leave the collaborative process, the parties must hire new attorneys and additionally forego all of the work-product obtained as part of the process, effectively starting over from scratch. The prospect of such a setback is a very expensive consequence, and generally serves as a good deterrent to either party leaving the collaborative process without an agreement.

The parties will next meet with the divorce coach. This can be a counselor, financial advisor or social worker, chosen as part of the team and based on the recommendation of the attorneys. The divorce coach, after meeting with both parties, can assess the more difficult issues, the hot-button topics and various other complications and then reports findings to the attorneys. For instance, the divorce coach may ascertain that one party’s deep betrayal will necessitate moving the case very slowly. Collaborative divorce, fortunately, allows the parties to take that slower approach if the need is warranted. Meeting the perceived-slighted party’s needs in such a way will generally garner more cooperation later in the process when it will be much needed.

The remaining two members of the team are the child specialist and the financial specialist, each of whom will bring their own area of expertise to the case. In a litigated divorce, the attorneys will generally do everything from trying the custody and visitation issues to gathering and analyzing all of the financial documents and presenting everything to the judge at the trial. In even more problematic cases, each side will hire their own expert to present such issues supporting their side to the judge. Alternately, in a collaborative divorce, the child specialist and financial specialist do all the busy work for the attorneys and in a manner perceived as more objective.

The child specialist is generally a child counselor or child psychologist who meets with the parties, and sometimes the children, in an attempt to formulate a parenting and visitation plan amenable to all parties. The child specialist may help the parties formulate a plan in the child’s best interests that works around parties’ work schedules or the children’s extra curricular activities.  The child specialist may recommend certain plans if the child is particularly young, or may indicate to the parties what a judge may typically do in such cases.

The financial specialist has the tedious job of gathering all of the pertinent financial documents and organizing them for the team. This would include the parties’ income documents, retirement statements, credit card and loan statements. The financial specialist may help the parties value their home, calculate child support and alimony worksheets and budgets for analysis by the attorneys. This person’s work saves the attorneys many hours of time, as well as saving the parties potentially thousands of dollars with the utilization of only one individual gathering one set of documents for analysis by the entire team.

During the entire process, the parties will meet together in an attempt to reach agreements on all issues related to the case. In more complex (emotionally or financially) cases, several meetings may be required that involve all of the professionals.  In others, two or three meetings can allow the parties to reach full agreement. At the end of the process, one of the attorneys will draft the documents and everything is signed. The entire process generally takes anywhere from two to eight months.

There are many reasons to choose a collaborative divorce. Collaborative divorce prioritizes your children. It allows both parties to retain respect for themselves and each other. It allows the parties to retain control over the proceedings. It is generally less expensive than a fully litigated divorce. Finally, there is significantly less stress involved both all involved.

If you wish to read more about collaborative divorce, please review our website at:  www.cortezfamilylaw.com

Case 1.  In this particular case, Mother and Father share 50/50 timesharing with two boys.  The 15 -year old son had climbed onto the roof.  When the father repeatedly told the child to descend and child refused, father climbed onto the roof to retrieve the child. A tussle ensued and father tackled the child.  Fortunately the roof was flat, however, son was bruised in the fall.  Father also proceeded to spank his son with a belt following the incident. (While spanking with a belt is legal, it is discouraged.  I do not support belt spanking.) The son was clearly bruised in the incident, either from the fall, the belt or both.  CPS investigated and substantiated the abuse because the spanking did cause bruising.  After a hearing and testimony by CPS, both children were removed from Father’s home and Father was placed on supervised visitation.

Today’s status.  Both children again reside with Father.  Father was not ordered to undergo counseling. Supervised visits continued for only three months before custody was reinstated.

Case 2. In this case, Mother and father have a fairly good relationship. Pre-teen daughter resides primarily with Father and spends only every other weekend with Mother.  When Father discovered the child was posting provocative pictures of herself on Facebook and texting men more than twice her age, Father reacted, angrily slapping the daughter.  A school worker noticed bruising the following day and called CPS and the case went to court.  Like the first case, the hearing officer heard two hours of testimony and ruled that the discipline, while slightly excessive was not abusive and returned the child to Father’s care.

Today’s status. Child resides with Father but spends time with Mother and both parents continue their amicable relationship co-parenting their daughter.

Case 3.  In these latter two cases, the parents share very acrimonious relationships and such seems to contribute to the disparate results from those above. In this case, Mother believed son was sending inappropriate texts and confiscated his phone.  When son attempted to retrieve the phone, Mother slapped son.  Son slapped back. Mother called the police to have son arrested and although the police supported Mother’s use of discipline, they temporarily placed son with Father rather than take him into custody.  Father, however, interpreted the slap as abusive and sought an order of protection against mother which he obtained.  In this case, the Hearing Officer referred the case to the Court Clinic.  The clinician interviewed the child, who still angry with mother’s restrictions, told the clinician he wanted nothing to do with Mother.  The clinician then recommended a suspension of Mother’s timesharing.

Today’s status.  Mother has not seen the child more than four times since the slapping incident which occurred three months ago.  Her timesharing is unlikely to be reinstated any time soon.

Case 4. This case in particular has the most unexpected and unreasonable results.  Like case 2, the children resided primarily with Father and spent time with Mother every other weekend as, as previously stated, the parents shared an extremely acrimonious relationship. In fact, the parties were in the middle of a custody battle whereby each parent was trying to obtain more time with the children.  Shortly before Christmas, the son told a teacher that he was fearful of father because Father was “abusing” him.  The school reported the allegations to CPS and the case proceeded to court.  Like the previous case, the same hearing officer, rather than simply hearing the evidence, referred the case the court clinic.  Again after brief interviews with the children, recommended a suspension of father’s timesharing.  That was four days before Christmas and Father has not seen or spoken to the children since that day. CPS substantiated emotional abuse because of Father’s systematic threats akin to “see me behind the woodpile.” The children’s testimony was not abuse, but occasional paddle spankings.

Today’s status. The judge has ordered the parties to undergo an expensive custody evaluation and refuses to allow even supervised visitation until such is concluded despite father’s pleas that he did nothing untoward.  The judge also referred Father for a 52-week batterer’s intervention program. There were no marks on the children and only one child disclosed abuse, the other three did not.  These latter two cases where the court clinic suspended timesharing based on the children’s wishes were both heard by Hearing Officer Rosemary Cosgrove-Aguilar.

After pondering the facts of these cases over the past several months, I have come to the following conclusions. Despite spanking being legal in this state, and despite the progressively out of control behavior of the teens in these cases, the court clinic and Rosemary Cosgrove Aguilar will suspend visitation in cases where the children wish the visitation suspended.  After suspension of visits, it is very difficult to reinstate.  I have never seen children given so much control in previous litigation and am concerned with the turn the courts are taking here.

I am not a huge proponent of corporal punishment or physical discipline.  It simply cannot be instituted while parties are in a custody battle for the obvious reasons and it cannot be used in anger.  But is legal and allowable in all cases. In all but the last case above, discipline was implemented by an angry parent.

Although I am concerned with the court’s decisions in cases involving the use of legal and reasonable corporal punishment, I am even more concerned with the court’s placing the children in control of these custody disputes.  Allowing children to dictate with whom they wish to live after being appropriately disciplined in one home is an egregious violation of a parties’ rights and a dangerous precedent. I certainly intend to keep such cases from Hearing Officer Cosgrove-Aguilar and the Court Clinic.

Paragraph A.  First, congratulations on being one of the lucky individuals in this decade still owning your home. Of course you want to do everything to save your home, unless maybe, you do not. If your home is upside down, you need to honestly consider whether or not you should let it go. If your home is $10,000.00 – $25,000.00 upside down, try to save it. Between the payments you will be making toward the principal and the turnaround of the market, which forecasters are saying is just around the corner, my opinion is that the house is worth saving.

Because this home is worth saving, you don’t want to move out because it can then be very difficult to get back in. Sometimes I am asked whether it can be viewed as abandonment if one leaves the house.  There is no abandonment unless you leave the home and stop all efforts at paying for the home. The problem arises if you leave the house in the hands of your spouse who then stops paying for the house. In certain instances, a party has already moved out and obtained alternate housing. That party is likely paying rent, thereby making it nearly impossible to afford both the now deficient house payment and the soon to be delinquent rent payment. Don’t leave the house.

However, if your house is more than $25,000.00 upside down, consider letting it go. But now be prepared to face the following: foreclosure, bankruptcy, and bad credit. Is it worth these risks? My opinion is that it probably is. A house that is so substantially upside down will take years to rectify, certainly more than five years. Your credit will not take that long to fix. In my opinion, paying $300,000.00 for a $200.000.00 house is like throwing $100 bills out the car window for 5-10 years. While your credit may not be at the level it is currently is in five years, it will be comparable. Let the house go.

Paragraph B.  The question I am most frequently asked is, “Should I move out if my spouse won’t let me take the children?”  The answer is a resounding “No!”  But like every other answer herein, the answer is qualified.  If your spouse is the primary parent and you have no opposition to your spouse remaining in that role, then there is no disadvantage to leaving the home as long as long as you also don’t wish to retain the home. If you do, then you also need to read the answers above in paragraph A.

However, it is never good to leave the home if you have no visitation arrangement in place even if you are okay with your spouse being awarded the lion’s share of the timesharing. I have many cases wherein once the spouse is gone, the first parent becomes super vigilant and refuses to allow any timesharing. While our office can quickly file a motion to obtain child custody timesharing for you, it is best to wait until an order is already in place before moving out. I am finding that the judges are more and more willing to order fairly equal timesharing for both parties even while the parties still reside together.

If you are hoping to be awarded primary custody, it is fairly imperative that you do not leave the home without the minor children.  As it has been the rule for over two centuries in this country, possession is 9/10′s of the law. Frankly, this applies to the home or the children. That supposition remains today. I have yet to see a parent who has left both the home and the children later be awarded primary custody, so do not put yourself in that position.

My advice to anyone in this situation is to move slowly.  Discuss the possibility of divorce with your spouse. Although in many instances this is not possible, a discussion before the fact is always better than running to court afterwards. Additionally, start practicing a timesharing arrangement while you still reside together. Your period of responsibility may, for instance, be the first three days of the week. On those days, make your child’s breakfast (and dinner), take your child to school, make arrangements for day care, etc. By doing this, you are setting the precedent for the court to act, whether are still in the home with your children or whether circumstances have caused you to leave.

Paragraph C.  Certain clients I represent have significant ownership of personal property. This may include art collections, antiques, or other valuable investments. Other clients run their businesses from the home. I always counsel these clients to stay with the home. There is certainly no disadvantage to leaving once the valuables have been divided, or well-documented if they not divided. As for the business, this is one of the best reasons for staying with the home, and the judge is more likely to award the home to the party with the business therein. It may even be a good strategy to pre-emptively move the business home if divorce is on the horizon.

In conclusion, be careful in any scenario where you leaving the home if you wish to retain it later. Exercise the same caution if your children, valuables or source of livelihood are in the residence. On the other hand, it may be prudent to move out if the home is financially upside down, if there are no significant valuables in the home, or if you are taking the children with you. Cortez Family Law can assist you in any of these circumstances.

We are not talking about spy rings or conspiracy theories. We are talking about your involvement with the phenomenon of social networking. Insofar as you personally are involved with websites such as Facebook, Twitter, MySpace, LinkedIn, etc., or blogging, the “electronic surveillance” we spoke of is occurring with your willing consent.

We put entirely too much information about ourselves on the Web. Although I find it personally distasteful, there are millions of people who enjoy the posting and publishing the minutiae of their lives.  (See never-ending chronicles of the minutiae.) Clearly, this phenomenon has been taken too far by those who choose to chronicle and have even filmed themselves committing crimes in public and then willfully uploaded these videos to sites such as YouTube for consumption. They are seemingly oblivious to the fact that such recordings, liable to be seen by millions of people, would eventually find their way to being reviewed by local press or law enforcement agencies.

Wherever your particular involvement with social networking lies, we are going to discuss the ramifications of social networking with the popular website Facebook as our main emphasis since it is among the top three most popular websites visited every day.  However, much (if not all) of this material will also be applicable to users of MySpace, and to a lesser extent, personal blogs.

Concerning Facebook, many Albuquerque family law attorneys will attest to one very critical fact; Facebook is a veritable gold mine for discovering information about opposing parties which can frequently lead to more advantageous outcomes with respect to custody, property settlements, etc. for those whom the attorneys are representing. In the course of researching some of our own cases, Cortez Family Law attorneys have found photographic and textual evidence of opposing parties’ involvement in activities such as drug abuse, giving alcohol to minors, and adultery. One opposing party frequently wrote on Facebook about how unhappy and annoyed she was with her children. These writings provided our attorneys with evidence compelling enough to have our client awarded primary custody of the children. It is worth repeating that, in all of the above examples, every piece of information we gathered from Facebook was posted there intentionally by the opposing parties.

Knowing all of this, your first (and probably best) inclination is to begin deleting any pictures, written comments, or other posts on your Facebook page which portray you in anything less than a favorable light. This is all well and good, but bear in mind that certain damage may already be done. If you were to upload to Facebook a photo of yourself (hypothetically) drunk and nearly passed out on the street, then decide to delete that photo as little as two minutes later, within that timeframe copies of that picture will have already been distributed to the Facebook news feeds of anyone currently in your Friends list who happens to be actively browsing Facebook at that time. Although the picture was deleted from your news feed, it takes very little time for any one of those other people to print, or download, a copy of that photo before it is recalled. The longer something unfavorable about you has been posted online, the greater likelihood exists that someone has already made a copy of it. With this in mind, we offer the following pieces of advice for regulating who exactly has access to what you post on Facebook:

1. Change the settings of your Facebook account from “Public” to “Friends Only” – By default, a brand new Facebook account is openly accessible to anyone, known or unknown to you, registered on that website. Your posts, pictures, etc. are visible to everybody. The preferred privacy setting for one’s profile is to limit its visibility to persons you have added to your “Friends” list. Refer to Facebook’s online help documentation for instructions on how to do this if you haven’t already enabled this setting. Make sure you set the privacy level to “Friends Only”, as opposed to “Friends and Friends of Friends Only”, for reasons which will be made evident in the below points.
2. Know who your “Friends” really are – There is a misperception in social networking that the more “Friends” we have associated with our Facebook profile, the more popular we in fact are. Common sense, however, suggests, that it is probably unrealistic for us to be directly (or even casually) acquainted with an excess of five-hundred or more people online and still be able to reliably account for every name and face. Take a close look at your Friends list and ask yourself, on a per-person basis: Do I actually know this person? Have I met him face to face? How many times have I had a real conversation with her? Anyone whom you cannot personally reconcile through direct experience should be removed from your Friends list. This is especially true of persons of whom your only knowledge is through online interaction, such as someone who initiated a Friend request with you, sight unseen. Opposing parties in family law cases have been known to fabricate completely false online personas for the sake of gaining access to the knowledge of another’s personal life.
3. Know who your real friends are – This sounds identical to item 2 above, but the distinction is important. Interpersonal relationships can be complicated. You and an ex-spouse may have a mutual pool of real-world friends, many of whom populate both of your Facebook Friends lists. Similarly, you may believe yourself to still be on good terms with some members of your ex-spouse’s immediate or extended family, such as your former siblings-in-law or an aunt residing in another state. So they, too, still inhabit your Friends list. In these instances, a breakup or a divorce has the potential to shift sympathies among shared friends oh-so-slightly to one side or the other, completely unbeknownst to you. Something slightly critical you write about your ex-spouse will eventually be made known by the “friend” who’s more in his/her camp than your own. Operating under the adage that “blood is thicker than water”, those former in-laws are much more likely to be – let’s not sugarcoat this – spying on you, and reporting back anything that gives their kinfolk leverage over yours wherever matters may be pending in family court. If you followed the advice in item 2 and reduced your Facebook Friends list to only people you know, then item 3 here is about reducing the list further to only people you can trust.
4. Remember that you’re not the only one with a phone and/or a Facebook account – Even if you have the foresight to not directly post pictures or write things on Facebook which can be problematic in regard to your family law matters, remember that there is a strong likelihood someone else can and will do this, with or without intention of harming your case. Using the example again of being drunk and passed out in the street, virtually everybody else at that same party is likely carrying a device which can photograph, film, tweet, text, or otherwise document and report your inebriated state to the world at large with no consent needed or given on your end. At the risk of sounding paranoid, anybody carrying a cell phone, or who has access to the Internet, has the potential to be spying on you. Keep than in mind before embarking on an action that may embarrass you later on if it is revealed.

In summary of the points above, never post online, or allow to be posted online, any evidence of behaviors, beliefs, or actions which you are not prepared to defend or explain to the world at large.

NMSA  § 40-9-1 1978 is actually titled “Grandparent’s Visitation Privileges Act.” While the Act does give grandparents, in certain circumstances, the right to petition the court for visitation, it does not obligate the court to grant the request for visitation, even under those circumstances. As noted in the title, grandparents’ visitation is a privilege, not a right, even if one or more of the threshold statutory requirements for filing the Petition are met.

Under the Act, a grandparent may Petition the Court for visitation privileges under the following circumstances (a.k.a. “threshold requirements”):

 if one the child’s parents have filed a Petition for Divorce or Legal Separation from the other parent;

if one or both of the parents are deceased;

If the grandchild resided with a grandparent for a period of at least three months and the child was less than six years of age at the beginning of the three-month period and the child was subsequently removed from the grandparent’s home by the child’s parent or any other person;

If the grandchild resided with a grandparent for a period of at least six months and the child was six years of age or older at the beginning of the six-month period and the child was subsequently removed from the grandparent’s home by the child’s parent or any other person;

If the grandchild has been adopted or adoption is sought by anyone, including adoption by a step-parent;

Even if one or more of these threshold requirements are met, grandparent visitation with grandchildren is far from automatic. There are two significant hurdles that grandparents must clear.

First, the Family Court’s primary consideration will always be the best interests of the children. By the time you get to the point of seeking relief from the court, it is probably a safe bet that your relationship and/or communication with one or both of the parents is tenuous if a relationship exists at all. In this case, it is extremely difficult to convince the judge that it is in the children’s best interest to be exposed to the tension and anxiety that results from bad blood between you and the surviving parent or both parents. The court will find that it is better for the children to deny a grandparent’s request for visitation if that means that the children will not be exposed to animosity between the parent(s) and the grandparents. Consider also that if the court were to grant visitation notwithstanding feuding between the parent(s) and grandparents, the children would likely be subject to interrogation in both camps.

This leads to the second, and arguably higher hurdle grandparents face, which is the court’s reluctance to interfere with the parents’ fundamental right to raise their children as they see fit. “Fundamental Right” is a loaded legal term meaning it is a right earning the highest degree of protection by the courts. If the parent(s) both agree that it is better for the children not to have contact with grandparents, the court may support the parents’ right to make that determination. Parents fighting against one another over custody matters is one thing, because parents are usually on equal Constitutional footing with one another, so the Court is forced to decide those matters. Grandparents, on the other hand…not so much.  They will never be on equal footing with parent(s) pursuant to the Grandparent’s Visitation Privileges Act. This is important for grandparents to remember. Every Grandparent’s Visitation Privilege proceeding I have appeared in or witnessed has ultimately hinged on the quality of the relationship between the parent(s) and the grandparents. If the relationship is really bad, the Court will be less inclined to award visitation privileges to the grandparent.

As an Albuquerque Family Law attorney, I am not always able to tell clients what they want to hear. Sometimes I have to tell them what they need to hear. And grandparents need to hear that if the parent(s) do not want the children to have contact with the grandparents, the court may not force them to do so.

This is where attorney becomes counselor. When representing grandparents in this situation, my primary objective is to facilitate communication between the grandparents and parent(s). This involves identifying and addressing the parent(s) specific concerns in order to make them feel better about moving forward with visitation. Often times there are old wounds that need to heal. There is trust that needs to be rebuilt. Attempting meaningful communication is usually more constructive than resorting to the adversarial climate of a courtroom. Taking this type of issue before a judge is in fact likely to do more harm than good to the relationship. If the individuals involved are conscientious and honest about their concerns, that should be enough to begin building upon. In most cases, the conflict between parent(s) and grandparents did not develop overnight, so it is unlikely to be resolved overnight either. It is a process that takes time, and the attorneys at Cortez Family Law can help guide you constructively toward that goal.

So grandparents should be aware that the Grandparent’s Visitation Privileges Act might give you a legal right to ask the court for visitation privileges, but it does not mean that the court is required to award it.

Following the stabbing, the ruffians left the scene and the man, only “mostly-dead,” called for help repeatedly while stumbling down Darlington Place NW on Albuquerque’s Westside only to have his pleas fall on completely deaf ears. No one came to his aid. Eventually in a moment of desperation, he deliberately fell into the Richey family’s front window, and pleaded for their assistance hoping he had at last found his Good Samaritan.

Now if you think this is a modern day version of the Biblical Good Samaritan, you would be wrong. That is not where this is going.

Mr. Mueller has instead described being treated with absolute disdain. The Richey family, especially Mrs. Richey, has gone on record stating what a hassle this has been for them. She complains about the repair costs, the broken window, the irreparable carpet, the out of pocket deductible, all while treating the injured man with scorn and disdain. In addition to the financial ramifications, she says, is the fear that the incident has instilled in her children who can no longer sleep without nightmares”after the crazy guy broke into their living room.”

Why should THIS be what this family takes away from this situation? Why not the spirit of aid and kindness they could have provided, a sense of comfort to this possibly dying man. Other than the inconvenience and anger over the refusal of insurance of pay for their new wall to wall carpeting, this family said their children were now fearful. Granted, being awoken in the middle of the night by broken glass and a bloody guy is somewhat fear-inducing, but instead of teaching their children something good here, the Richey family of Darlington Street, taught their children to fear.

Fear is taught and Ms. Richey is well on her way to having fearful, insecure children and not because of Mr. Mueller. Instead of telling her children, “We were grateful for the aid we could provide Mr. Mueller. . .” Instead of saying “We wished we would have acted sooner and beg Mr. Mueller’s forgiveness. . .” Instead of saying “Children, this is what we do when people are injured and dying. .” Ms. Richey tells us the cost she is out of pocket for her carpeting. She is blaming Paul Mueller. She has taught her children to be fearful instead of helpful. Oh my poor children having to deal with this. Her poor children for having her as a mother.

Our family has had some fearful incidents. We live downtown and our home has been burglarized five times over the past five years, four times in one year. Two of incidents involved forays into our children’s rooms to steal their belongings. We have been in several car wrecks, one which involved being hit by a semi truck. My children could be fearful. They have every right to be fearful and sometimes they are fearful, but I will not teach them to be fearful and therein lies the difference.

There are many ways we can teach our children to be fearful and most if not all is in our reaction to everyday events. You don’t know how to swim, so you, in your failure to swim, teach your child to fear water. You fear new places and therefore avoid new places, but by implication also teach your child to fear new places.

Where I see a lot of fear is in my Albuquerque family law cases. One parent has rational or irrational fear of the other parent. Now what we are discussing is not rational fears. If a husband assaults his wife, she is right to fear her husband and the child has the right to fear his father. Rational fear is understandable but is not the subject of this blog. What we are dealing on a daily basis are irrational fears. Fears that the parent will withhold the child, steal the child, kidnap the child, smoke pot with the child, smoke crack with the child, let the child drown in the bathtub, let the child run wild, let the child fail to do his homework, etc.

In a consultation this week, the mother wanted supervised visitation for her 10-year old because the mother feared for the safety of that child. There had been one incident of domestic violence between mother and father four years prior, but nothing between father and child. While any domestic violence is unacceptable, this mother had allowed her fear to take over all rational thought when it came to this child and now this child was fearful of nearly everything and certainly fearful of his father to the point that all visits must be supervised until apparently the mother was no longer scared.

It’s like me on a cold day. If I am cold, my children must wear coats. Well, if I am afraid, then you must be too. I am not sure this is the lesson we want to teach our children.

I would rather teach my children how to avoid a child molester while walking to school rather than keep them from ever walking. I would rather teach them how to call the police, rather than how to avoid men with hats pulled low over the eyes. I would rather teach them to come to the aid of others, rather than how to be fearful when a stranger crashes through the living room window. And I would rather teach my children to love that other parent rather than to fear him.

You may hate that parent for what he or she did to you, how that person hurt you, but allow that child to love and your child will thank you for it.

Under what circumstances would a court order supervised visitation? As previously stated, supervised visitation is a necessity when serious physical or mental abuse has occurred and generally substantiated by CYFD. Supervised visits are also a necessity in drug or alcohol abuse cases.  The duration of the supervision will differ depending upon the severity of the abuse or neglect, or the level of drug or alcohol abuse.

The notion of supervised visitation may be imposed in a custody case when drug or alcohol abuse is alleged and the court orders drug testing. One party invariably tests positive for illicit drugs, and that party will be forced to do all visitation as supervised by one of the facilities delineated below. The Court will probably set a review hearing within three months while the violating party continues the supervised visits until the review hearing date. If that party has no further drug infractions, unsupervised visits may be reinstated. If, however, the drug abuse is long-standing and substantiated by the court or CYFD (as opposed to solely upon the word of the opposing party), supervised visitation could continue indefinitely.

Supervised visitation may also be imposed when one party alleges the other parent has harmed the child in some manner or another. In those cases, the Court is placed in the unenviable position of determining whether abuse occurred based on a “he said/she said” scenario. There may be allegations ranging in severity as serious as discipline with a belt or on-going verbal abuse, or as minimal as forcing the child to walk home from school, or even frequent crying from the child following a visit or statements of not wanting to return to the other parent’s home. I have seen the court implement supervised visitation under all of these factors.

What is expected when such allegations are made is that the Court will order an investigation, similar to what CYFD would undertake prior to the implementation of supervised visits.  This may include the services of the Court Clinic or guardian ad litem. What the court should not do is order supervised visitation without an investigation, based on the flimsy allegations of one parent. I find those cases terribly unfair and I see these cases quite typically with certain judges.

In one recent case, our firm represented the father.  He had had a terrible time obtaining reasonable timesharing with his son. The mother refused to allow any visitation other than that supervised by herself.  Through our firm and after a lengthy court battle, the father finally obtained unsupervised visitation with his three year old son.  He had two visits when the mother filed a motion to reinstate supervised visits.  The mother reported the child was “acting out” after visits with father. The judge reinstated supervised visits based on nothing more than mother’s statements that child was “reacting.”

In another case, supervised visits were initially justifiably imposed by the judge because of the father’s chronic alcoholism. However, five years later, the supervised visitation was still being imposed! The father had stopped drinking years earlier, but the mother would not agree to unsupervised visits, nor apparently would the judge.

Judges tend to err on the side of caution in these cases, but I really believe the notion of supervised visitation is completely overused and is not in the children’s best interests.  If allegations of drug abuse or physical abuse are made, a very simple investigation can be undertaken to determine if the abuse has occurred.  If CYFD investigates and does not substantiate the abuse, supervised visitation should not be imposed. If CYFD is not investigating, then the court clinic, guardian ad litem or even the court itself can undertake a very simple investigation and order drug testing. If there are no factors justifying supervision, supervision should not be imposed.  If there is no abuse, but only flimsy allegations by an overly controlling parent, perhaps it is that parent who should be supervised. However, more often than not, the courts are kowtowing to those parents to the detriment of the other innocent parties involved.

If supervised visitation has been ordered in your case, there are three private facilities in town that provide such supervisory services:

• APN Family Support Center is located in downtown Albuquerque at 700 Lomas Blvd. My records show it was founded by Jeri Miller in 2002. Its facility consists of an older home with several rooms devoted to visitation including rooms devoted to toys, movies or kitchen facilities. Cost is generally $25.00 per hour.
• Neutral Corner, located on Nob Hill at 118 Dartmouth, is also a private supervising agency, although Youth Development Inc (YDI) recently took over management according to YDI’s website. Its setup is similar to APN’s and the cost is approximately $20.00 per hour, also offering sliding scale fees.
• Family Services is located at 1520 Deborah in Rio Rancho. It too has been in existence approximately 10 years and like the other agencies, charges $20 to $25.00 per hour.

Another alternative is Mr. Paul LaBarre, a locally trained parenting coach often retained by the courts or individuals to supervise visits and/or provide parental coaching.  He might offer disciplinary techniques or counseling to a parent he overhears inadvertently disparaging the other parent or berating a child. Mr. LaBarre charges from $25 – $40.00 per hour and accompanies the parent and child on various outings as decided by the parent.

As far as agencies go, I strongly prefer APN over the other two facilities. Ms. Miller retains a well-trained, friendly staff who are not easily drawn into the pathos brought into the agency by the sparring parties.  While Neutral Corner has the benefit of a sliding fee scale, APN has supervisors that will accompany the parent outside the agency, to the family members’ home or to places such as Chuck E. Cheese or movie theaters. Neutral Corner has grown less palatable since been taken over by YDI and retains a strong institutional feeling.  The parent being supervised is treated like a presumed criminal. APN, on the other hand, seems to view everyone in a neutral manner.  I have not yet had significant dealings with Family Services of Rio Rancho.

At the supervising agencies, one can expect two to four hours with the child in a sterile environment while your every move is observed by a younger person working in an intern-like capacity taking copious notes which will later be subpoenaed into court by both sides hoping to prove their respective case. I think it is very difficult to promote a normalized relationship between a parent and child in such a setting. Judges should keep this in mind when they order supervised visitation as frequently as it seems to occur.