Archive for domestic violence

California Holds Facebook Rants In Custody Case Are ‘Free Speech’

facebook angerIt has been a long standing belief in family law: parents should not subject their kids to rants about a custody battle.

Judges have long constrained speech that would unnecessarily expose kids to the nastiness and details of the battle over who gets custody of the children between their  parents.

However, a new case issued by California Court of Appeal (Second Appellate District) seems to set a new boundary around what kind of speech the court can constrain.  It is particularly interesting given the new era of social media communication we live with today.

The case is Molinaro v. Molinaro 19 DJDAR 2709 (2-26-19) (DCA 2), certified for publication on March 28, 2019.

In this matter, a rather nasty Mr. Molinaro earned the privilege of receiving a domestic violence restraining order under the Domestic Violence Prevention Act (DVPA).  The list of his hideous behavior included blocking his wife’s car in the driveway, threatening to throw a chair through the window if she didn’t unlock the door, and threatening to euthanize the dog.  A real charmer.

Mr. Molinaro also endeared himself to the court by arguing with the judge, calling him ‘insane.’  He was so hostile at court, bailiffs had to repeatedly admonish him to calm down.

Mr. Molinaro posting rants about his ‘unfair’ treatment in the case on his Facebook page. Among other things, he posted “about the divorce, about everything that’s happening.” His soon to be ex-wife testified he “posted to Facebook that [she] stole $250,000 from [their] home equity line, that [she] used it all and ran away with it.”  She testified, “He says that I am crazy and having hallucinations.”

Court orders parties not to post on Facebook about their case

To protect the children from being exposed to their father’s Facebook rants about the case, the trial court ordered “Neither party is to discuss any aspect of the case with the minor children until further order of the court-including Facebook posting [about the] subject case matter.”

Granting the wife’s application for a restraining order, the court ordered her then-husband not “to post anything on Facebook … in regards to this action … ”  In an attachment to the restraining order, the court ordered the parties “not to post anything about the case on Facebook” and “not to discuss the case with the children.”

Mr. Molinaro appealed the trial court’s order.

Facebook posts considered to be “free speech” per the court ruling

The appellate court upheld all of the provisions of the restraining order, except for the restraint on Facebook posting, finding it to be an overbroad and impermissible infringement on free speech.

The court held:

“Although we have found the evidence sufficient to support the court’s issuance of a domestic violence restraining order, we conclude the part of the order prohibiting Michael from posting ‘anything about the case on Facebook’ is overbroad and impermissibly infringes upon his constitutionally protected right of free speech.”

The court further argued:

“’It is certainly in the best interests of the children of divorce that adults in their lives act in a mature and courteous manner’ [citation]; however, where a restraint on the freedom of speech is concerned, the restriction must be necessary and narrowly tailored to promoting those interests.  The part of the restraining order prohibiting Michael from posting about the case on Facebook does not meet this test.  We conclude it is overbroad, constituting an invalid prior restraint, and must be stricken from the domestic violence restraining order.”

So, to sum it up, Mr. Molinaro is still a jerk.  But he can talk about it on Facebook.

 

 

 

 

Mediating Your Divorce When the Other Party Is a Bully

San Diego Divorce Mediation when the other party is a bully, Shawn Weber

I will often receive a call from a potential client interested in a San Diego divorce mediation, but who is a little apprehensive because their spouse has had a history of coercion, manipulation and bullying.  The question then arises as to whether mediation is really the appropriate venue to resolve the case.  Many of my peers may disagree with me, but a good mediator can successfully resolve almost any case.  Here are some points to consider for a successful divorce mediation when your spouse is a bully:

Check to make sure you have a well-trained mediator.

Mediating a case where there is a history of coercion or manipulation is advanced work and not for the faint of heart.  You need to make sure that your mediator has the skill, background and personality to ensure a level playing field.  It may be a good idea to bring up your concerns in a  caucus session so that the mediator is aware.

Make sure you consult with an attorney.

Mediation is actually without risk because the mediator makes no decisions in your case.  She can only help facilitate the discussion.  Nothing becomes binding until you sign the marital settlement agreement.  You would be wise, however, to work with advising counsel throughout the mediation process.  Come to mediation sessions armed with knowledge of your rights and what the law may or may not provide.  Under no circumstances should you ever feel pressure to sign any documents without first having had the opportunity to review it with your attorney.  If you continue to feel uncomfortable, you may want your attorney to attend mediation with you.

Consider hiring a divorce coach or a therapist.

You need to bring your best self to the mediation sessions.  To avoid falling into the same old patterns where you may have been manipulated or coerced in the past, it is wise to meet with a mental health professional knowledgable in divorce issues to prepare you for the sessions so that you can avoid getting your buttons pushed.  You can find divorce coaches by looking up your local Collaborative Practice group.  In San Diego, you can go here: http://www.collaborativefamilylawsandiego.com.

Demand Full Financial Disclosure.

In successful mediation, disclosure is essential.  Make no decisions without having had the opportunity to thoroughly review all material financial information.  A financial disclosure should also include back-up statements and documents.  Like in the cold war, it’s “Trust but Verify.”  You may consider having a financial professional such as a Certified Divorce Financial Analyst (CDFA) review the disclosures to uncover any “red flags” deserving additional investigation.

Stand Your Ground.

Bullies often bluster and threaten.  More often than not, the threats are empty.  If you prepare yourself, you need not be intimidated.  Often times, abusive relationship involve a sort of abuse dance.  You don’t have to dance anymore.  You are getting divorced.  You are intelligent.  You are certainly not stupid.  Stand on your own two feet and rely on your support system to be strong.

If there is physical intimate partner violence, think twice.

It is one thing to be a bit of a blowhard and a verbal bully.  It’s entirely different when the situation involved physical violence.  Do not trifle with domestic violence.  If that is happening, mediation is very difficult.  However, even in such situations, mediation can be appropriate with safeguards in place.  For instance, you can be in separate rooms at all times or you can demand anger management counseling.  In any case, make sure you have trained professionals who know what they are doing.  If for one moment, you do not feel safe, you can withdraw.  However, as a general rule, physical intimate partner violence presents a huge red flag.

San Diego Divorce Mediation, San Diego Divorce Mediator, San Diego Divorce Mediation, Solana Beach, Shawn Weber, San Diego Divorce Attorney

Shawn Weber’s TV Interview on San Diego KPBS: Cuts to San Diego County Courts Are Affecting Families

By Shawn Weber

www.bravewebermack.com

I was pleased to take part in an interview on San Diego’s KPBS TV’s “Evening Edition” on behalf of the Collaborative Family Law Group of San Diego.  The subject of the interview involved the budget cuts affecting the family courts in San Diego and why families and parties going through family law litigation should consider no-court options such as mediation or collaborative divorce.  The host, Peggy Pico, was delightful.  It was a lot of fun and I look forward to more opportunities to explain why out-of-court options are so important.

See Also:

Collaborative Family Law Group of San Diego Blog: “KPBS-TV Interview: Cuts to San Diego County Courts Are Affecting Families

San Diego Superior Court: Court Reporter Information

Brave, Weber & Mack Website: San Diego Collaborative Divorce Lawyer

Brave, Weber & Mack Website: San Diego Mediation Lawyers

Shawn Weber’s Interview on San Diego KPBS Radio’s Midday Edition: San Diego County Court budget cuts will affect family law cases

 

Responding to Recent Violence in Custody Disputes, CA Attorney Mark Baer Advocates Consensual Dispute Resolution Methods to Help Quell Future Meltdowns

 

 

 

Mr. Baer sums up my thoughts regarding the seeming increase in domestic violence in custody disputes.  I am convinced that the adversarial litigation process for resolving family issues has contributed significantly to the level of hostility between parties.  While some parties will be dangerously violent no matter what environment they are in, we can help reduce conflict in many cases as attorneys be referring folks to forms of alternate dispute resolution such as mediation or collaborative divorce.  Even in a litigation context, attorneys should be careful not to “fan the flames” of the conflict.  Much can be done to reduce the chances that a particular family will move into dangerous territory.  Here’s Mr. Baer’s articles:

Responding to Recent Violence in Custody Disputes, CA Attorney Mark Baer Advocates Consensual Dispute Resolution Methods to Help Quell Future Meltdowns.

High Conflict Divorce Tip #1: Boundaries

In my career as a divorce professional, I have developed a name for myself as an attorney who knows how to guide clients through a high conflict divorce. My business partners observe that I have some of the craziest cases they have seen in their careers. Clients and professionals learn quickly that I am good with tough, emotionally charged cases. Lately, I am even being asked to provide consultation to other attorneys regarding how best to handle cases like this.  My best talent is in helping parties settle even the most acrimonious cases outside of court.

High Conflict Divorce Tip #1: Boundaries

Good Fences Make Good Neighbors

My first high conflict divorce tip: set clear boundaries early in the case.

A good deal of the emotional and legal pressure of family law cases results from the parties being unable to respect each other’s boundaries- or maybe just being unable to understand what boundaries should be set. I think of the Robert Frost poem, “Mending Fences”. Here is an excerpt:

I let my neighbor know beyond the hill;

And on a day we meet to walk the line

And set the wall between us once again.

We keep the wall between us as we go.

To each the boulders that have fallen to each.

And some are loaves and some so nearly balls

We have to use a spell to make them balance:

‘Stay where you are

until our backs are turned!’

We wear our fingers rough with handling them.

Oh, just another kind of out-door game,

One on a side. It comes to little more:

. . . .

He said it for himself. I see him there

Bringing a stone grasped firmly by the top

In each hand, like an old-stone savage armed.

He moves in darkness as it seems to me~

Not of woods only and the shade of trees.

He will not go behind his father’s saying,

And he likes having thought of it so well

He says again, “Good fences make good neighbors.”

(from http://writing.upenn.edu/~afilreis/88/frost-mending.html visited 05/21/2011.)

Family law is unique because in the vast majority of cases, the opposing parties have had sex with each other. That takes the whole dispute up to an entirely different emotional level from your garden variety legal dispute. The parties have likely spent years with each other lowering boundaries and emotional defenses between them. We are most vulnerable with the one’s we love. We also feel the safest and allow the mixing of our lives. Privacy becomes less important to us than closeness. Trust is more important than verification. We lower our defenses with our lovers and share everything. But when the break up happens, we try to go back to what we were before we met. The problem is that folks invest a lot in each other emotionally. So even though there is the intellectual understanding that lives should be disentangled, old habits die hard and we leave our boundaries open.

I had a difficult high conflict divorce case early in my career where a husband and wife chose to divorce, but live next door to each other. The idea was that this would be good for the kids. Having mom and dad live next door to each other would make co-parenting easy. They believed that an informal and less rigid co-parenting arrangement would be best.

However, what happened was that the father in this relationship didn’t quite sever the relationship in his head. He kept a key to the mother’s residence and would walk in unannounced. He tried to leave his dirty clothes in the hamper at the wife’s house. He would walk in and take food from the fridge. One day the wife came home and found him in her shower. He explained that he was remodeling his shower and that he needed to use hers. Naturally, he never paid towards her water bill or replaced any of the food he “borrowed”. The wife became exasperated and the tensions escalated. She asked him not to come in uninvited anymore and to do his own laundry. He became angry because, after all, the divorce was not final and his name was still on the deed to the house. He talked to the kids about how “unreasonable” their mother was being. Although she changed the locks, he obtained copy of the new key from their teenage daughter. Needless to say, we spent a lot of expensive time in court on this one.

In my opinion, the case got off to a bad start because the husband wanted to keep the same level of familiarity with his wife even though he had filed a petition for divorce. I am no shrink and I am sure a psychologist could talk about what issues there were that led him to not wish to sever the relationship. The wife’s mistake was not being very clear on her required boundaries early in the case. When he moved out, perhaps he should not have moved next door. Perhaps it should have been clearer for both of them that they now had separate residences and that although they used to sleep in the same bed, privacy and respect for personal space had to be respected. Sadly, the conflict in this high conflict divorce escalated to the point where their children were in emotional crisis.

I spent a good deal of time in this high conflict divorce case helping the parties set new boundaries. The locks would be changed again. The wife would express that he could not come over unannounced. He had to do his own laundry and buy his own food. He would shower at his own place. Most importantly, the children would not be exposed to the adult business of their dispute. With boundaries, things improved.

I had another potentially high conflict divorce mediation case where the parties chose to remain in the same residence for a period of time. Given the state of today’s real estate market, many parties are choosing to delay the sale of real estate. We spent a good amount of time early in the case establishing boundaries, in spite of the choice to continue to cohabit. The parties agreed to a nesting schedule for the children, where one parent would be “on duty” at a time. They chose not to expect to have meals together. They bought two refrigerators. They did, however, agree that one day per week they would have dinner together with the children as a family. All of the finances were divided and they no longer shared expenses. They would pay equally on certain joint household bills like homeowner’s insurance, property taxes or the mortgage. Most importantly, they agreed that if there was ever going to be an argument or dispute between them, the children would never see it. If a disagreement became too much for them to navigate on their own, they would return to mediation for a facilitated discussion before letting it get out of hand.

I was very concerned about this case because of the parties’ close proximity. I was terrified it would become a high conflict divorce and I would be receiving a call in the middle of the night that one of them had been arrested. However, I was gratified that they followed their boundaries quite well and even came up with new rules as needed. Because they respected one another’s space and privacy, things actually went very well. In my opinion, they could only have such success in reducing the conflict between them because they chose early on to set rules and boundaries. Then, the respected the rules and boundaries that they set. Later they told me that at first it was easy to slip back into the old habits they had when married, but that they quickly learned that respecting the rules made their lives more peaceful.

Now, I would not recommend a cohabiting relationship for most divorcing couples – especially those in a high conflict divorce, but I can say that the lesson to be learned here is that boundaries matter. Redefining the relationship early in the process is essential and can have a tremendous effect on how the case goes. It can be the difference between a mutually agreeable settlement or thousands of dollars in court costs in a high conflict divorce. It can be the difference between happy and emotionally healthy children and kids in crisis.

Another useful metaphor for the high conflict divorce is that it is important to know, as if on the highway, which lane you are supposed to drive in. If people switch lanes chaotically or don’t follow the traffic rules, bad things can happen.

So here are some pointers for building good fences to prevent the case from devolving into a high conflict divorce:

  • Have a meeting early in the case to determine what boundaries need to be set and what rules for interaction are agreeable to the parties’ transition from married to single people.
  • Make sure the kids’ boundaries are respected. Don’t allow the kids to be used as messengers between the parents. Make sure they are not exposed to the parents’ legal dispute or “put in the middle” in any way. They just need to know that they have two parents, who love them. They don’t need to be immersed in “adult business”.
  • Get a parenting plan figured out early and then follow it to the letter. Make sure that the parenting plan accounts for possible disagreements and clearly spells out times and locations for exchanges. The plan should specify a clear holiday and vacation schedule. Err on the side of overly detailed. The parties can always choose to be flexible with one another, but make sure there is a clearly defined procedure for parental communication and for how the parenting plan could be modified in the event of mutual agreement.
  • Be sensitive about introducing new love interests. Sometimes it can be very upsetting to the other party when the new love interest comes into the picture. If step-parenting is anticipated, make sure that the parties have a conversation about the roles and expectations regarding the step-parents and their relationship with the children.
  • Codify the agreed about boundaries by stipulated court order and make sure that the order includes clearly defined consequences should a boundary be crossed.
  • Divide financial responsibilities early. Have clear understandings about who is responsible for what joint bills. Consider establishing a temporary support regime as early as possible. Make sure that financial disclosure happens early and that automatic temporary restraining orders relating to community assets and debts are followed and enforced. A lot of the fights in high conflict cases arise from simple misunderstandings about financial boundaries and responsibilities.

So, do fences make better neighbors? Possibly. Do good, clear and respectful boundaries make better ex-spouses and co-parents? Absolutely!

For more information about managing a high conflict divorce,
contact San Diego Divorce Mediator  Shawn Weber at 858-410-0144.

 

Other helpful posts about setting boundaries in your high conflict divorce:

How to Establish Boundaries After Divorce

Bill Eddy, LCSW, JD, Clear Court Orders for Shared Parenting: http://billeddyhighconflictinstitute.blogspot.com/2010/08/clear-court-orders-for-shared-parenting.html

Women’sDivorce.com, Dealing With Your Ex After Divorce and Setting Boundaries: http://www.womansdivorce.com/ex-after-divorce.html

YouTube – Couple Saw House In Half

I have seen some creative ways of dividing community property.  This couple in Cambodia, however, takes the notion of splitting the community property real estate to a whole new extreme.  Perhaps San Diego judges could order a house sawing for some of my Rancho Santa Fe clients.  That would, I think, encourage more settlement. What do you think?