I have had several media outlets and contributing writers ask me about the Dissolution filing by Ms. Jolie-Pitt (Angelina) and exactly what are at stake?
The filing for Dissolution appears to be “simple” enough on its face—she is not requesting child support and spousal support. She is requesting joint legal custody but sole physical custody with visitation rights to Mr. Pitt (Brad). This last request is for a lack of better word, the “bombshell.”
While there have been no other pleadings filed, there should be a Response filed by Brad’s legal counsel within 30 days of being served. The query will be how he “responds” to her request for sole physical custody.
Several questions posed to me by media outlets, contributing writers to media, and friends are:
- What exactly does physical custody mean? This is the physical care and supervision of a child (under 18 years of age). In other words, it addresses, which parent will the child live with on a day-to-day basis? There is no issue of legal custody (Angelina) requested joint legal custody. This means the right to make major decisions: for example, education, healthcare, religion.
The reason I defined the request to have sole physical custody, as a “bombshell” is that in order for a party to be granted sole legal custody—persuasive evidence (not beyond a reasonable doubt—which is only used for criminal cases) must be proven. The compelling evidence must show why it is to the children’s best interest to order sole physical custody to Angelina.
California’s prevailing public policy is that children should have frequent and regular contacts with both parents and favors joint custody. Generally, the most persuasive evidence and not just mere “he said/she said” are criminal convictions, arrests for domestic violence, child abuse/ neglect/endangerment, and drug and alcohol convictions. The heightened evidence all points to the criminal arena and even then, the courts will allow visitation (supervised or drug/alcohol testing prior to visitation).
While criminal prosecutions do have a higher level of proof than civil/family law cases, the family courts will seriously consider any allegations and arrests of family violence, even if dismissed in the criminal arena. The courts are aware that while you may not be able to prove it beyond a reasonable doubt—it does not mean, it did not occur.
- Another question is whether Angelina’s request for sole legal will be dropped if the law enforcement agencies (i.e. LAPD, FBI) or Department of Family and Children’s Services conclude the allegations of abuse/neglect are “unfounded?”
Reality is that highly publicized cases such as this and even those that are not, if a criminal case is not pursued by the prosecuting agencies, the requests for sole custody weakens. But, family courts (are courts of equity), meaning the Judge can always look at the evidence that led to law enforcement agencies and Family Services investigations.
- Just this morning, I was asked to comment by another legal commentator in whether there are a team of attorneys working on this case? I stated, that what appears to be not clear is whether Brad retained a criminal defense attorney. His first priority, amongst many, is preventing or “defeating” any criminal filing by the prosecutorial agency (whether federal or state) again for the reasons I already stated.
- Another question posed to me by the same legal commentator is if this will be an expensive divorce? All divorces are emotionally and financially “expensive” unless both parties’ are reasonable and their respective attorneys have “client control.” An attorney should adequately advise their client of the pros/cons of their decisions.
I generally categorize divorce into 2 subjects: FINANCIALS (child/spousal support, attorney fees, property division) and CUSTODY (legal and physical, visitation).
If there is a pre-existing prenuptial agreement and it seems that there is one in this case, property division should not be heavily contested. Forensic experts may or may not be needed to evaluate the financials of both Brad and Angelina but this may not even be necessary if the prenuptial agreement addresses most, if not all, assets/debts of the parties.’
- Does it matter that it was a 2-year marriage? Yes, in California 10 years is presumptively defined as a long-term marriage. In this case, since she is not asking for spousal support, the length of marriage is not a big issue.
- So, my answers to all these inquiries: The physical custody is the “nuts and bolts” of this divorce. California Family Code empowers the court, during the pendency of a marital action or at anytime thereafter, to make an order that is “necessary or proper.” The primary concern is to assure the child’s health, safety and welfare of the child. Further, an appropriate custody/visitation award must take into account the codified policy “to assure that children have frequent and continuing contact with both parents after the parent have separated or dissolved their marriage, or ended their relationship, and to encourage parents to share the rights and responsibilities of child rearing in order to effect this policy.
While the financials are somewhat “objective” and can be scrutinized by forensic experts, the issues of custody (both legal and physical) are much more discretionary. The courts have inherent authority to review the totality of the evidence presented and could have external assistance (child custody evaluators, minor’s counsel) but the bottom line, is that the Judge will decide what is for the best interest of the children unless both Angelina and Brad can agree.
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