LEGAL OBLIGATIONS TO ADULT CHILDREN

Recently, Certified Family Law Specialist Garrison “Bud” Klueck appeared on the “San Diego Living” TV program, seen locally on FOX Channel 6 and shared some insight into how and when a parent’s legal obligation to their adult children ends.

QUESTION - Certified Family Law Specialist Garrison Klueck is here to discuss when and how a parent’s legal obligation to adult children ends.

ATTORNEY KLUECK'S ANSWER - We are talking mainly about child support when we discuss parents’ legal obligations to their children. If the child is disabled, particularly if the child has mental challenges, a parent’s obligation to pay guideline child support may extend well into their adulthood, perhaps for the rest of the party’s life. There was a Court of Appeals case, a few years ago, concerning an adult disabled child and guideline child support. In that case, the mother had died and left a trust to pay so much per month for the child’s care. Two of the variables in the California mathematical child support guideline calculation are Mom’s income and Dad’s income. Dad told the court that since Mom is deceased, and therefore can have no “income”, guideline child support ends. The court in that case ruled that the monthly “allowance” from the trust set up by Mom could be used as Mom’s income, along with Dad’s actual income, to calculate the support amount. So in that particular case, a parent’s obligation to support their adult-disabled child extended beyond the actual death of a parent.

QUESTION - The majority of children are not disabled. Absent some kind of disability, does a parent’s obligation to support the child end when the child turns eighteen?

ATTORNEY KLUECK'S ANSWER - Yes, if the child is no longer a full-time high school student. So if the child has graduated from high school already or has dropped out, child support ends at eighteen. But if the child is a full-time high school student, child support can extend beyond their eighteenth birthday up to as late as their nineteenth birthday. The latest that a state-imposed child support obligation can extend is the month of the child’s nineteenth birthday. Excepting, of course, disabled children as we previously discussed.

QUESTION - To clarify then, it isn’t simply that the child turns eighteen and child support ends?

ATTORNEY KLUECK'S ANSWER - No, there are three events which potentially could end, by operation of law, child support. Those three events are: the month the child turns eighteen, if the child is already a high school graduate or drop-out; the month the child graduates from high school, if the child turned eighteen prior to graduation; or, the month the child turns nineteen if the child has remained a full-time high school student between the eighteenth birthday and the nineteenth birthday.

QUESTION - You keep saying “the month the child turns eighteen” or “the month the child turns nineteen.” Doesn’t the child support end on the child’s birthday?

ATTORNEY KLUECK'S ANSWER - No, the court system doesn’t pro rate months. The person paying child support has to pay child support for the full month even though the birthday may have been on the second of the month or the high school graduation day on the third of the month. The full month will be charged; but the payor can know that the last day of the month will be the last day that he or she has to pay child support by operation of law.

QUESTION - You keep using the phrase “by operation of law.” Is there another way that child support can end?

ATTORNEY KLUECK'S ANSWER - Well, the real question is whether there is way that child support can continue, beyond the age of nineteen, if the child is not disabled and the answer is that there is. Parties not infrequently agree, in their marital settlement agreements, to have the Judge order college-age child support. Some states even have college-age child support by law. There have been proposals for California to adopt college-age child support, but they have never passed the legislature. One of our near-by sister states, Oregon, has a complicated system of college-age child support that demands that the child go to an accredited college, have a certain grade point average, and then Mom has some obligation, Dad has some obligation and the child herself has some obligation. I understand New York has child support until age twenty-one, period. But in California, child support ends at nineteen, by operation of law or automatically--unless the parties contract differently in their divorce agreement.

QUESTION - If the parties do contract for college-age child support, will the Judge go along with that?

ATTORNEY KLUECK'S ANSWER - Yes, if Mom and Dad contract for college-age child support in their marital settlement agreement, that agreement ordinarily gets incorporated, or rolled, into a Superior Court Judgment that is a court order and is enforceable, like any other Superior Court Judgment--including by wage assignment or garnishments or by contempt of court actions.

QUESTION - Speaking of wage garnishments, once child support ends, does the wage garnishment end also?

ATTORNEY KLUECK'S ANSWER - That is a good question because the answer is no. Nothing much happens automatically at court. Although having the child turn eighteen or nineteen gives the payor the right to end any wage assignment associated with that child, the ending of the wage assignment does not happen automatically. You have to get a new court order that recognizes that the payor no longer has an obligation to pay for that child. You need a new court order and new garnishment paperwork to get the matter fixed.

QUESTION - If you, or someone you know, has any further questions, about child support, or any of the hundreds of other issues in family law cases, you can contact Attorney Klueck at (619) 448-6500 or through his website at www.familylawsandiego.com.

HOW JUNO GOT IT WRONG...

During a recent appearance on the San Diego Living@ TV program, Certified Family Law Specialist Garrison “Bud” Klueck shared some thoughts on what a very popular movie’s script said about divorce and why the filmmakers did not get it quite right.

QUESTION - Certified Family Law Specialist Garrison Klueck would like to discuss a popular recent movie’s portrayal of divorce and how the filmmakers got it kind of wrong. Which movie are you talking about?

ATTORNEY KLUECK ANSWER - the movie is titled “Juno” and it just passed “Sideways” as the highest-grossing indie film in movie history. For those of you who have not seen it, the main plot line involves a very bright and funny 16-year-old girl who becomes pregnant. She decides against having the baby aborted and instead, will be permitting the baby to be adopted by this kind of yuppie couple who really want a child. Well, about eight months into the pregnancy, the husband announces that he is leaving his wife and wants a divorce. As an attorney who handles divorces, and all other areas of family law, my ears perked up when the movie characters started to talk about their divorce. Of course, from my perspective, as a legal specialist, the film folk got it all wrong.

QUESTION - Do you find most movie discussion of family law subjects accurate?

ATTORNEY KLUECK ANSWER - No, in fact, this situation falls into “Klueck’s Ironclad Rule.” Klueck’s Ironclad Rule says that the more that a viewer knows about how a situation is handled in real life, the less that movie or TV portrayals of that same subject will be believable. We can more easily believe that movies and TV are being accurate about activities that we don’t know much about. But when the viewer knows a lot about a given subject, the movie or TV version of that subject will seem all wrong.

QUESTION - What was wrong about what the characters said in “Juno?”

ATTORNEY KLUECKS ANSWER - Early in the film we are introduced to an attorney who draws up the paperwork for the adoption of the teenager’s baby by the yuppie couple. Later on in the film, when the husband says he wants a divorce, he tells the wife that he has already talked to this same attorney and “she can represent us both in a process called collaborative divorce, it’s all the rage.” Wrongo—Bongo! That’s just not correct.

QUESTION - Isn’t Collaborative Divorce “all the rage?”

ATTORNEY KLUECKS ANSWER - Collaborative Divorce is popular and becoming more popular. The part of what the husband said that I have real trouble with is not the popularity of Collaborative Divorce, but the notion of the one attorney “representing” both spouses. That can never be the case. There is an obvious conflict of interest. The answer to a lot of questions about the law is, “it depends.” But, this is not one of those situations! One attorney can never represent both spouses in a divorce. Sometimes, I am the only professional in the room with both spouses, but that is when I am acting as a mediator. When I am acting as a mediator, I am there as a neutral and I specifically do not represent either spouse.

QUESTION - How would you, as a collaborative professional, describe how the collaborative process actually works?”

ATTORNEY KLUECKS ANSWER - Collaborative Divorce is essentially a team approach. The team consists of five or six professionals. Unlike what the “Juno” script says, each party has their own attorney. Husband has his attorney and wife has her attorney. Each party also has their own mental health professional who serves as their “divorce coach.” These people may also be therapists, in other areas of their practice, but divorce coaching is much more concentrated and focused. The focus is to get the person through the divorce process in one psycho-emotional piece. The process teaches the party to communicate better with the other spouse and to deal specifically with divorce-related issues. If you want to delve into childhood traumas, that may be appropriate--but it is done elsewhere. Divorce coaching is much more focused on the immediate here-and-now of what is happening during the divorce.

QUESTION - In addition to the two attorneys and two divorce coaches, who are the other professionals on the team?

ATTORNEY KLUECKS ANSWER - Where there is a minor child or children, the team would include a “child’s specialist.” The child’s specialist is a specially-trained mental health professional who helps the child or children process what is happening to them as their family is re-forming itself, Additionally, the child’s specialist brings the child or children’s concerns “to the table” when the grown-ups are negotiating. This aspect is a big advantage over the traditional litigated model because, although a child’s world is being greatly affected by the parent’s divorce, they ordinarily have no say in the process itself. In Collaborative Divorce they do have a say through the child’s specialist.

QUESTION - Who is the sixth and final member of the Collaborative Divorce Team?

ATTORNEY KLUECKS ANSWER - The last professional on the team provides an element that clients in the collaborative process often find most appealing. That is the joint financial specialist. You know that the so-called “financial pie” has not gotten any bigger, although it is now expected to support two households. There needs to be immediate, short-term planning, medium-term planning and long-term planning. The couple that has been planning to grow old and retire together is not going to do that now. In addition, financial language can be even more confusing than legal language to a lot of people. The joint financial specialist can go over those weird terms with the clients and explain what they mean.


If you, or someone you know, could benefit from Attorney Klueck’s expertise built up over twenty years, about Collaborative Divorce, or any of the hundreds of other issues in family law cases, you can contact Attorney Klueck at (619) 448-6500 or through his website at www.familylawsandiego.com.

Child Custody Issues

Family Law "Specialist," Bud Klueck, discussing the legal aspects of child custody fights like the Britney Spears and K-Fed fight. Bud, what would cause a court to change custody from one parent to the other like what happened to Britney Spears?

ATTORNEY KLUECK’S ANSWER-- Well, like the Britney case, it takes "grown-ups behaving badly." In particular, drugs or alcohol are big concerns because not only is such behavior extremely bad role modeling for the child, it is hard if not impossible for a parent to concentrate on the child’s needs when that parent is under the influence.
Brintey Spears appears particularly out of control, for example driving without a license with the kids in the care, driving with the kids on her lap, lots of very public bad behavior. The issue is one of degree- with Britney we have an extreme example but the legal substance of Britney’s case is not that unusual. What has made this case a bit unusual is the special procedures that we have seen. We sometimes see judges handle things a little differently when dealing with celebrities. In the Britney case the judge conducted the hearing in chambers, or, "in camera," rather than in open court which is how hearings usually are held. The judge also ordered that there be no transcript of the proceedings and this raises the possibility of a First Amendment challenge under the public’s right to know.

HOST’S QUESTION-- Under what circumstances are child custody orders or arrangements changed by court orders?

ATTORNEY KLUECK’S ANSWER-- Well, generally things need to be pretty out-of-hand before the court will change an existing order. The thing you have to understand is that public policy # 1 is children’s safety. The courts are always looking at the "best interests" of the children, not the interests of the parents. The courts place great value on the doctrine of "stability." Child development experts have found that children cling to and are comforted by what is familiar to them. Before the court will disrupt the stability of children, there needs to be a threshold showing of a significant change in circumstances. That is, something has to be real different than the last time custody orders were made. In the Britney case, there is so much going on– criminal arrests, driving without a license. Britney has done so much and done it out in public. It is probably not hard to prove that there has been a change in circumstances. Also, it might not have been hard to prove that K-Fed is a better parent here, but we will never know because the record has been sealed.

HOST’S QUESTION-- What could a parent who lost custody, like Britney, do to get it back?

ATTORNEY KLUECK’S ANSWER-- You know, in some ways the court system is kind of like church–very redemption oriented. You admit your wrong doing or "sins" and take steps to change your life. In court, "sins" are "exorcized" by taking classes. For parents, this means taking parenting classes. The court system itself has parenting classes and there are many fine parenting classes outside the court system. Here in San Diego County we have the Parent’s Turn and Kid’s Turn Programs. There are continuing education programs available at Community Colleges and high schools. There are twelve-step programs that can address whatever the parent’s issues are-- work the steps and bring proof of attendance to court. The court really does celebrate when the "lost lamb" has returned to the flock– for example, "drug court" holds graduation celebrations. The system is similar in Family Court.

HOST’S QUESTION-- If someone has a question about child custody, or any Family Law concern, how can they get in touch with you?ATTORNEY

KLUECK’S ANSWER-- They can reach me at The Law & Mediation Offices of Garrison Klueck, 619-448-6500 or by email at garrisonklueck@yahoo.com or they can visit our websites at www.familylawsandiego.com.

What’s All This Stuff About Mediation?

QUESTION--Bud, we hear a lot about this process called “mediation.” We understand that you are a “mediator.” What is mediation and what does a mediator do?

ATTORNEY KLUECK’S ANSWER--Mediation is part of alternative dispute resolution, or “ADR.” So what does that mean? Alternative to what? Well, the answer to that is alternative to court resolution, ADR procedures are alternatives to resolving matters in court. The courts favor ADR because our courts are very crowded and ADR helps to relieve some of that congestion.

Research has shown that parties, who resolve their dispute through mediation, rather than going through the courts, are more content with the outcome of the dispute than those people who go through the full course of litigation. One of the reasons for this higher level of contentment is that with mediation the parties themselves have much more control. Someone who is a party to a dispute obviously has a much greater personal “investment” in the result than a judge. The parties to the dispute are the ones that are going to have to live with the outcome. In mediation, unlike in traditional litigation or lawsuits, the parties can create “customized” outcomes that judges do not have the power to order. The parties can fashion a creative solution that meets their individual needs and goals. The courts lack the time and power to do so. I think we can all agree that we are much more content when we feel like we have some control over our affairs. Mediation is really about allowing the parties to the dispute to have a greater degree of control over the outcome while still providing safeguards to ensure that a party with a “smaller” voice still has a fair chance to be heard.

QUESTION--Bud, in addition to “mediation” we hear a lot in the media about “arbitration.” What is the difference between mediation and arbitration?

ATTORNEY KLUECK’S ANSWER--Both arbitration and mediation are very popular forms of alternative dispute resolution. But they are different and it is important to differentiate between them. In arbitration, the arbitrator is like a mini-judge. He or she is a neutral third party who makes the decision regarding the dispute, just as a judge or jury would in a traditional lawsuit. However, arbitration is less formal and less expensive than going to court. The rules regarding evidence and procedures are more relaxed. For example, in arbitration the arbitrator can consider a doctor’s report without actually having the doctor physically present. In court, in order for the judge to consider that same doctor’s report, that doctor would generally have to be physically present. Paying for an expert to come to court can obviously be a big expense!

In contrast to arbitration where the arbitrator makes the decision, in mediation the mediator is a neutral third party who assists the parties in reaching their own decision. The mediator can help each party to hear the other’s point of view, explain what the relevant law is and that sort of thing. The big difference in mediation though is that it is the parties, and not the mediator, who make the decision.

QUESTION--So, in mediation during the process is it just the mediator in the room with the parties?

ATTORNEY KLUECK’S ANSWER--Mediation is a very flexible process and the parties make the decision as to what format they will use. Sometimes just the parties and the mediator are present in the room. Sometimes the parties and their attorneys are all in one room along with the mediator. Other times the parties and the mediator might be in the room and the parties will consult with their attorneys who are behind the scenes, perhaps standing by via telephone.

I myself have worked many different types of mediation and worked in pretty much every role, I’ve acted as the mediator in many cases, consulted as an attorney in others. I am credentialed by the National Dispute Resolution Center.

QUESTION--So if our guests want to get in touch with you, about mediation information or any family law matter, how can they reach you?

ATTORNEY KLUECK’S ANSWER--As always, you can reach my office at (619)448-6500 or visit our website at www.familylawsandiego.com.

QUESTION--And now for something a little more serious—Bud we understand that your Dad passed away recently and that you wanted to say a few words about him.

ATTORNEY KLUECK’S ANSWER--Yes. Thank you for the opportunity. My Dad passed away on November 2, which Christians call “All Souls Day” or “El Dia de los Muertos” in Mexico. Dad passed away peacefully at Grossmont Hospital surrounded by his family. I just want to say that he was never in TV or radio, unlike his son, but he was a remarkable man who read more books than anybody I ever met outside of academia. We attended lots of Aztecs games together and I will miss him every day of the remainder of my life. Thanks you for the opportunity to talk briefly about my Dad.

UNHEALTHY PARENTS

Recently on the "San Diego Living" TV program, seen locally on FOX 6, attorney and Certified Family Law Specialist Bud Klueck shared some information about how the legal system addresses the problem of psychologically "unhealthy parents" and the impact that they have on their own children.


QUESTION–Recently, there have been several heartbreaking stories in the media about parents with serious psychological problems. Certified Family Law Specialist Bud Klueck has some information to share regarding what the legal system can do to protect children from the effects of "unhealthy parents."


ATTORNEY KLUECK’S ANSWER–There are two primary principles that are applicable in this unfortunately common situation of "unhealthy parents." The first principle is that the California State Code says that protection of children is the most important goal of the State government. The second principle is that the court system, particularly the family court system, is kind of like church in that it is very remedial. The court system, like a church, wants the person with problems to succeed and improve, if they truly desire to improve.


QUESTION–Is the most important issue is the desire to improve?


ATTORNEY KLUECK’S ANSWER–Yes, as folks say in all the twelve-step/anonymous programs, the first step always is to acknowledge that the person has a problem. In church they call the problems "sins;" In court they are called "issues." If the person acknowledges the problems and resolves to take steps to correct or improve on them, the system is behind them. The system offers resources to assist the parent that wants to improve.


QUESTION–What resources are available?


ATTORNEY KLUECK’S ANSWER–In serious cases, as Dr. Kanner has suggested, there is counseling. There is a Family Code section that permits the court to order counseling for up to one year. In very serious cases of "unhealthy parents" there can be more long-term therapy. The children themselves may need some help in the form of counseling and the courts would order that the parents cooperate and provide the resources to have their children in counseling or therapy.
QUESTION–Are there other resources besides individual therapy or counseling?


ATTORNEY KLUECK’S ANSWER–Yes, there are parenting classes. Many community colleges have specialized parenting classes, different classes for the care of infants, for example, and different classes relating to the parenting of teenagers, School districts’ Adult Education Departments have parenting classes, often at little or no cost. There is a wonderful program called "Kid’s Turn," for kids whose parents are divorced or separated. Kid’s Turn, as the name implies, actually involves the children, from I think as young as three years on through teenagers. Parent’s Turn, organized by the same group, is focused just on the adults.


QUESTION–Is sending them to counseling, therapy and classes the only things that courts can do with "unhealthy parents?"


ATTORNEY KLUECK’S ANSWER–In very serious cases, where the parent does not acknowledge that there are problems, or that parent represents real risks to the children, judges can order so-called "supervised visitation." Even in this most serious of cases, there are still various levels of court-ordered supervision. The levels of supervision range from a kind of "supervision light" where supervision is provided by family members, often grandma or grandpa, through paid-for visitation where trained professionals are present to monitor the visit, and even on through high-level security supervision. In some cases where there has been serious estrangement between the parent and the child, there can be therapeutic visitation where the only contact between the child and the parent is in the office of a therapist.


QUESTION–Can judges appoint an attorney to represent the children themselves?


ATTORNEY KLUECK’S ANSWER–Yes, the law permits the appointment of so-called "minor’s counsel." In order to qualify to be on the appointment list, an attorney needs to have a certain level of experience and must complete special training. I went through the training and was put on the appointment list many years ago and over the years our office has been appointed many times, by many different judges, as minor’s counsel. They were all difficult cases.


QUESTION–Has your office had its share of exposure to family law cases with "unhealthy parents," as a lawyer for the children and otherwise?


ATTORNEY KLUECK’S ANSWER–Yes, I have been practicing law for more than twenty years and we have had to handle many cases involving "unhealthy parents." Custody and visitation or access to children are important issues whenever there are children involved in divorce or paternity cases. Having one or more "unhealthy parent" makes the process infinitely more complicated and challenging.


QUESTION–If you or someone you know wants to avail themselves of Bud’s expertise built up over twenty years, about "unhealthy parents" or any of the hundreds of other issues in family law cases, you can contact Attorney Klueck at (619) 448-6500.