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Custody
Lisa Zonder discusses high-profile custody cases

An interview with Ilyssa Panitz of Authority Magazine

Not every divorce settles quickly. In fact, many drag on for years. The big question is why? The answer? It depends. A couple may have accumulated a lot of money and other financial assets during their marriage. People may have started a business together and operate as equal partners. They have multiple homes that bear both of their names and then of course, they may have children together and need to work out custody/visitation. Although lawyers try to settle custody first, sadly reaching an agreement on the kids isn’t always the case and everything takes time to untangle. Take for example Oscar winners Brad Pitt and Angelina Jolie. The two have been fighting over five of their six children 17-year-old Pax, 16-year-old Zahara, 15-year-old Shiloh, 12-year-old Vivienne and 12-year-old Knox since they filed for divorce in 2016. Only five minors are subject to custody decisions. Maddox is 19-year-old and considered an adult. Although the A-listers were declared divorced in April 2019, the actors still have not resolved custody of their kids and the case is heading back to court due to many setbacks. Lisa Zonder, a California based attorney and member of The National Association of Divorce Professionals has been closely following the Pitt/Jolie case. Zonder says, complicated matters like this take a long time to complete.

Ilyssa Panitz: Brad Pitt and Angelina Jolie finalized their divorce in 2019, but custody and visitation issues for five of their children (the eldest Maddox is no longer a minor and therefore not part of this fight) is still in court. Why is this?

Lisa Zonder: While we do not have access to private judging records, we are able to provide general information here which may be informative. Of course, we do not have firsthand insight into their specific reasons. A court has the ability to grant a termination of marital status, even while resolution of other issues is pending. Known as a “bifurcated divorce,” this is one possible explanation. Should the parties agree to end the marriage before resolution of all issues, a court may issue just such an order.

Ilyssa Panitz: Don’t most divorces settle custody/visitation first and then tackle the financials and other misc. items?

Lisa Zonder: In an ideal world, yes. But the resolution of child custody disputes, as well as the resolution of financial disputes, is a moving target. If parties are unable to agree on child custody, a mediator or judge might be needed to bring closure to the dispute. Many parents, including high-net-worth litigants, are understandably more concerned about their children than they are about the finances. Even when it seems child custody has been settled, time passes, and things change. There are infinite possible unforeseen factors which may arise and create the need for a reassessment of existing child custody arrangements. Some examples include developmental milestones, changes in parents’ living situations, the prospect of a child’s changing schools, health considerations of the children or parents, etc. Unsurprisingly, it is not uncommon for “custody battles” to intensify when a potent emotional charge exists between the parties.

Ilyssa Panitz: There has been a tremendous amount of back and forth between Pitt and Jolie over the children. At one point a private Judge was handling the case. Then in July that was overturned, and the Judge was removed from the case. Now Pitt’s legal team has filed a petition with the California Supreme Court, challenging a decision made in this on-going custody battle. How much weight will something like this hold?

Lisa Zonder: Our understanding is that Pitt’s Petition seeks to uphold Judge Ouderkirk’s (the parties’ private judge) child custody rulings, which were issued after four years of contentious litigation. If the appellate Court decision is overturned, the California Supreme Court may have to weigh in as to whether to uphold these rulings.

Ilyssa Panitz: When it comes to custody battles, do the California courts ever question the children and ask what they want?

Lisa Zonder: Yes. California Family Code §3042(a) provides that children who are 14 or older may state their custodial preferences unless a Court believes their doing so would be detrimental. Although the law specifies the age of 14, children who are younger than 14 may also testify unless a Court determines that offering such testimony would not serve the child’s best interests. If a court does not allow a child to testify, another avenue must be provided for the child to express his or her opinion. There are various ways to accomplish this, but this is most commonly achieved through the appointment of a child custody evaluator or other expert. Also, it is important to note that while a court will evaluate a child’s reasons for his or her custodial preferences, a child will not necessarily “get their wish” simply because they expressed it.

Ilyssa Panitz: How are complicated custody/visitation matters ever resolved if no one pays attention to the children’s needs and wishes?

Lisa Zonder: In our experience, courts are attentive to the mature, expressed preferences of a child and will evaluate those preferences within the framework of the child’s best interests. A child custody evaluator is commonly tasked with assisting the court in this assessment. An evaluator may act as the court’s expert or, in the alternative, each party may retain his or her own expert. From a philosophical standpoint, we believe it important that the professional divorce community (attorneys, therapists, evaluators, forensic accountants, etc.) work with their clients in a way which encourages settlement and protection of the family, both emotionally and financially.

Ilyssa Panitz: What proof does a person need to show the court that they are a great parent who only wants to spend time with their children?

Lisa Zonder: It is nearly impossible to offer a comprehensive response to this question. Each case is nuanced and contains its own facts. Evidence for consideration differs on a case-by-case basis depending on what those facts might be. A judge is tasked with issuing custody and visitation orders which serve a child or children’s best interests. In a hotly contested case, a judge may enlist the assistance of a licensed custody evaluator, as was previously mentioned above, or other mental health expert who has the resources to assess the entirety of a situation and offer impressions to the Court. A judge often relies on such an expert in making its determination. An expert must determine what serves the child or children’s best interests not only by assessing each parent’s perspective, but also by assessing the situational facts and circumstances as a whole. California Family Code §3011 is explicit that the health, safety and welfare of the child or children must be considered.

Ilyssa Panitz: What happens if one side makes false allegations about their “ex” to a Judge?

Lisa Zonder: While perjury is frowned upon and certainly illegal under the Penal Code it does happen in Family Court. If a parent makes knowingly false statements, consequences may include contempt, sanction and fines. The Elkins task force in 2010 attempted to address the issue. It would be helpful if the judges had authority under statutes to impose issue preclusion and evidentiary sanctions.

Ilyssa Panitz: Until the Pitt/Jolie matter is resolved, are the five children allowed to spend time and overnights with their father and if not, what steps does Pitt and lawyer need to take to get a temporary order to be with his kids?

Lisa Zonder: Our understanding is that Pitt did not “lose” custody of the children. Rather, he is now asserting that Jolie should not have custody. As of May 2021, he was granted joint custody with Jolie, but as the Court order is sealed, we do not have any details. It is possible that the public Courtroom judge will issue temporary orders. But we consider it more likely, given the high-profile nature of these parties and their high net worth, that they will retain a new private judge for this purpose.

Ilyssa Panitz: Fox News is reporting, Pitt’s legal team argues that the 2nd District Court of Appeal’s ruling to disqualify a private judge in the case, a previous request from Jolie’s side, “effectively upended the constitutionally authorized temporary judging system in California and generated widespread confusion, uncertainty, and instability for judges, litigants, and the California judicial system as a whole.” Can you break this down and explain what this means?

Lisa Zonder: Perhaps we should begin with a little background. Jolie successfully appealed the private judge’s order because Pitt had personal/business ties to him. The appellate Court agreed the private judge should have been disqualified. Pitt is now asking the California Supreme Court to overturn that ruling, espousing that, because of an administrative error, the private judge’s order should stand. Pitt argues essentially that vacating the private judge’s order will wreak havoc on the practice of retaining private judges in litigation.

Ilyssa Panitz: Why does it appear so difficult for Pitt to be fighting like this? As a father, doesn’t he have rights?

Lisa Zonder: Though this is not necessarily a “legal” opinion, we try to remember that celebrity news stories are heavily influenced by public relations teams and other factors which have little to do with the reality of the process. Yes, Pitt has rights as a father. Our understanding is he is asserting those rights. As stated above, we do not have details of the order, but we can say the following:

One: He “won” custody with the private judge, whether that custody is sole or joint;

Two: Jolie went to Court to overturn the order. She was successful in the appellate Court;

Three: Pitt now asks the California Supreme Court to reverse the appellate Court. While that matter pends, the parties share custody, although of course the specifics of that arrangement are unknown to us.

Ilyssa Panitz: You are a California based lawyer. Based on your professional experience, might you have an idea as to why the courts have not rendered a decision on the Pitt/Jolie matter, which has been going on for over four-years?

Lisa Zonder: Unfortunately, some cases languish for years on end. This typically happens when the emotions involved are particularly intense. It appears to us that they could not settle the case and retained a private judge to assist. Jolie did not like the private judge’s order and appealed based upon the aforementioned disqualification issue. In turn, Pitt did not like that the appellate Court sided with Jolie and has now petitioned the California Supreme Court. We do not perceive that the fault here lies with the Court. Rather, the enduring nature of this case appears to be a function of the emotional energy which commonly pervades a high-conflict divorce.

Ilyssa Panitz: Back in May the Judge, issued a temporary ruling giving the couple shared custody of five of the kids (again Maddox is no longer a minor). At that time, “Us Weekly” reported, Pitt was delighted by the decision, while Jolie was already planning her next move. A month later that Judge was disqualified. Is it possible some of this could be personal and, when parents are locked in a dueling custody battle of the children, do they sometimes let their anger get in the way of making the best decision for their little ones?

Lisa Zonder: It is not only possible that some of this could be personal; it is without question personal. This matter centers around the most important element not only of their divorce case, but likely of their lives: their children. It is not uncommon in high-conflict cases for litigants to seek orders which are not necessarily in the best interests of their children. This happens for many reasons, some of them righteous and some of them less righteous. In our experience, many litigants genuinely believe what they seek will serve their children’s best interests. Sometimes they are mistaken in that belief. Other times, emotions become so amplified that rational assessment toward the children’s best interests becomes nearly impossible. This is exactly the reason our philosophy endeavors toward settlement, and sometimes that means guiding a client away from emotion and toward the “big picture.”

Ilyssa Panitz: What are some solutions to solving a situation like this so everyone, especially the children, can move forward?

Lisa Zonder: There are a variety of out-of-court options for cases like this one, including mediation, custody therapists, custody coaches and even collaborative divorce.

Mediation is one example of an out-of-court solution to resolving a family law case. Through confidential meetings with a neutral mediator, parties are able to negotiate the issues in their case. The mediator does not represent either party in negotiations or cannot offer legal advice. The mediator can, however, provide suggestions and insights as to how cases would be handled in the courts as well as how they can be handled when parties work together.

Collaborative divorce is a client-centered, non-adversarial process. It is team-based and emphasizes a pledge not to go to Court. In addition to separate collaboratively trained attorneys, team members may include divorce coaches, financial professionals, child specialists and others. The parties engage whichever experts are needed for their particular situation It is typically more cost effective than traditional divorce and is confidential, meaning none of the case is revealed in open Court.

 

 

https://medium.com/authority-magazine/california-attorney-lisa-zonder-explains-why-custody-cases-like-brad-pitt-angelina-jolies-take-a-e4f15401f41c

 

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