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Articles Posted in Residency Requirements

Often during the litigation of the a highly contested child custody case the judicial officer has to make very quick and emotionally charged orders in order to effectuate custody results that are correct and effective to all parties involved.  The main objective for the judge is to achieve the best interest of the child standard.  To achieve this result the judge often hears arguments and evidence from both parents including experts who determine the best interest of the child. When the Judge gets his order of change of custody wrong there is a remedy.  The remedy is called a peremptory writ which can be sought by either parent contesting the Judges descision. A party can use a writ if they feel that the Judge based his legal analysis on faulty law.

A recent case in Georgia labeled Dass v Markle illustrated the usage of the peremptory writ in a child custody family law case.  The dispute between the parties Donald Markle and Katrina Dass arose out of the dispute about where the home state of the minor child was established. When there is an interstate child custody dispute and or a move away dispute that arises in the Family Law Courts an error of law is often likely to occur. In the the case of Das v Markle the father left Georgia for New Mexico leaving behind Dasd, the mother the with the child in Georgia. The mother lived in Georgia for another year until 2011 and then Headed to New Mexico and lived their with the father for another year before returning home to Georgia until 2015.  From 2012 to 2015 the child visited with Markle, the father, in New Mexico during the summers. After 2015 to 2016 the child went back to New Mexico and lived with father.  The father then filed a Paternity action in New Mexico to establish who the father and the mother were legally of the child.  In addtion, the New Mexico Court ordered that in order to move the child from New Mexico both parents needed to consent to the move.

The mother, Dass therein filed the writ of habeous Corpus and an emergency custody motion in Georgia Superior Court asking for immediate removal of the child from New Mexico and declaring that Georgia was the home state. The mother needed to show under the peremtory writ law that the Judges in New Mexico did not use “best Interest” standard but used “changed circumstances” standard to determine the custody order.  The Georgia Superior Court granted her writ of habeus corpus.  The father however, filed an appeal in Georgia appealing the granting of the Writ.  The Georgia appeals Court overturned the Superior Court ruling of the return of the child to Georgia.

A spokesman for John Mellencamp confirmed last week that the rocker and his wife of 20 years, Elaine, plan to divorce, according to the Associated Press. It was unclear from the agency report, as well as accounts of the break-up on a number of celebrity-watching blogs, whether the couple plan a California divorce or intend to file in another state.

Mellencamp is famously from a small town in Indiana – a fact he has built into many of his hit songs (including one about his marriage to Elaine, a former model). The couple have been raising their children in Indiana, according to the AP, but also own property in California and, by some accounts, may seek to finalize their divorce here.

If these reports are accurate that would make Mellencamp’s split the latest in a growing line of celebrity break-ups to involve jurisdictional questions. As Winiviere Sy and I have noted in earlier posts, celebrities and their spouses can have a number of reasons for seeking a California or Orange County divorce, or for seeking to avoid one. Shaquille O’Neal’s wife sought to establish residency here shortly before her break-up with the basketball star, apparently with an eye on California’s community property laws. A similar focus on community property may lead Michael Douglas’ ex-wife Diandra into a Los Angeles or Orange County family law court as she continues her battle for a share of the money his earnings from the latest Wall Street movie. Sandra Bullock, in contrast, filed for divorce in Texas with an eye toward avoiding public scrutiny.

Two months after the news broke that Miley Cyrus’ parents, Billy Ray and Tish, are seeking a divorce after 17 years of marriage, celebrity websites are now reporting that the family’s Toluca Lake home has been put up for sale. According to Canada’s CTV News the family mansion is on the market and “Tish has reportedly been spotted looking for homes in Encino and is believed to be downsizing to a $4.6 million pad.”

As I noted in a post last month, Billy Ray and Tish filed for divorce in Tennessee (where Billy Ray is originally from) citing “irreconcilable differences.” Questions remain regarding how, exactly, the couple can get divorced in Tennessee granted that they rather obviously live in California. Also remaining to be seen is how this residency question may effect the eventual division of the couple’s California assets.

Regardless of whether this case moves forward in Tennessee or becomes a Southern California divorce, however, one potential California child custody question has now resolved itself: in the weeks since the divorce petitions were filed Miley, the family’s main breadwinner, turned 18 (custody of two younger children remains to be determined).

Late last week word broke in the celebrity press of the impending divorce of Miley Cyrus’ parents: country music star Billy Ray Cyrus and his wife Tish. The details, in some ways, were standard celebrity divorce fare: legal papers citing “irreconcilable differences”, a report that Billy Ray is seeking joint custody of Miley and her two minor siblings, statements issued through publicists acknowledging that this is a difficult time for the family and asking for public understanding.

Buried in all of this, however, was an interesting detail: the divorce papers were filed in Tennessee. How is that possible? As any quick search of the universe of Miley Cyrus-obsessed websites will tell you, the Cyrus family lives in a mansion in North Hollywood. Wouldn’t that make the parents California residents and, therefore, subject to a California divorce?

The idea of a California couple filing for divorce in another state – especially when the couple are celebrities seeking to avoid public scrutiny – is not unprecedented. As I noted last spring, Orange County residents Sandra Bullock and Jesse James filed their divorce papers in Austin, Texas.

It was reported today that Heidi Montag filed a Petition for legal separation at the Los Angeles Superior Court,.citing irreconcilable differences. I previously blogged the legal ramifications for filing for legal separation here.

TMZ.com incorrectly states that Montag’s filing for legal separation is that “[t]he legal significance of legal separation is that her earnings will become her separate property from the date of separation.” Although that statement is true, it does not distinguish the big difference between filing for divorce versus separation. When filing for divorce or legal separation, generally speaking, all property acquired after the date of separation is the separate property of the spouse who acquired same so long as they can trace the asset to a separate property source. Most people file for legal separation for medical insurance purposes or residency purposes, just to name a few.

It is also interesting to note that Montag listed the date of the filing, June 8, 2010, as her date of separation. I’ve read many gossip magazines and internet sites alluding to the fact that Heidi Montag and Spencer Pratt were having marital problems in the past. If that’s the case, perhaps June 8 is not an appropriate date of separation. But, that’s another issue.

The filing of a Petition for Legal Separation by Shaquille O’Neal’s wife within a day of landing in Los Angeles got me thinking more about the residency requirements for California. If a party wants to file for dissolution of marriage, at least one of the parties must be a resident of California for 6 months and a resident of the county in which the petition was filed for three months immediately before the filing of the petition. Family Code Section 2320. This residency requirement is mandatory and it cannot be circumvented.
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