Legally a Dad? Levi Johnston's Case

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2012
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We see it everyday. Mom files a petition for sole custody and placement alleging that the only safe place for the child is in the arms of the mother. This is certainly not all women. But unfortunately, men come to see us everyday describing a situation where their parental rights are being disregarded and outright violated.

We see it everyday. Mom files a petition for sole custody and placement alleging that the only safe place for the child is in the arms of the mother. A child needs his or her mother and she is the only one who knows what is best for the child. She may “allow” Dad to visit his child (seeing him as just a free babysitter) but when it comes down to it, any substantial periods of placement would put the child in imminent danger. She would be happier if he was out of the picture altogether. Well, except for that monthly child support check. Please excuse the sarcasm. This is certainly not all women. But unfortunately, men come to see us everyday describing a situation where their parental rights are being disregarded and outright violated.

As I brushed up on current events on CNN.com, I came across the Bristol Palin/Levi Johnston custody battle. I will preface: I am not involved in this case; I have never met anyone with the last name Palin or Johnston; I am not commenting on the actual parenting ability of either party; I am not providing any legal advice; and in no way should this article be interpreted to support or oppose any political party. This is an article which explores some of the domestic litigation issues that are apparent from the media coverage of the case. Each state has distinct statutes which govern custody and placement of children. If you are experiencing any issues relating to custody or placement of a child, you should contact a domestic litigation attorney licensed in your state.

Early in her campaign, Sarah Palin announced that her eldest daughter, Bristol was pregnant and was engaged to be married to the father. At the time of the announcement, Bristol was 17 while the father, Levi Johnston, was 18. The two welcomed Tripp Easton Mitchell Johnston in December 2008. A few months later, rumors of their break-up hit newsstands. By news stands, I refer to the magazines in the checkout lane at a grocery store. Fast forward to today, the parties are now in the midst of a custody battle with media coverage every step of the way.

According to the same sources outlined above, in early November, Bristol, now 19, filed a petition seeking sole custody of Tripp and child support payments. In support of her petition, Bristol alleged that Levi has exercised “sporadic” visitation rights and suggests he may have issues with substance abuse based on statements he made about seeking marijuana on the popular social networking site, Twitter. She also includes a request that Levi’s mother, who has a recent drug conviction, be prohibited from unsupervised visits with the child. In addition to her petition, she sought an order closing the proceedings arguing that the scrutiny the case could attract could cause her son embarrassment as he grows older.

In response, Levi, also 19, asked the Court to award the parties joint custody of Tripp and objected to Bristol’s motion to close the court proceedings. He denied that he has avoided responsibilities and combats the drug use allegation by stating he doesn’t have a Twitter account. On Larry King Live, he revealed that Bristol refused to allow him to take Tripp outside of the Palin home. In response to the request for closed proceedings, he explained that he needed the protection an open proceeding would provide against Bristol’s mother and that he just wanted a simple case on the merits.

Coverage of the case intertwines dramatic allegations and comments from the attorneys representing the parties. This article covers only the legal aspects of the case applied to the “facts” obtained from my trusty “sources.”

Are custody hearings open to the public?

Most people do not know that they can attend most court proceedings even when they are not a party to the action. If you do not have cable, you can get your daily dose of drama by walking to your local courthouse. But if you are expecting a Law and Order or Judge Judy experience, you will be sorely disappointed.

The Supreme Court has recognized a First Amendment right to access to the court system in criminal cases. In criminal trials, there is a presumption that the trial and proceedings will be open to the public. This right is rooted in the concerns for fairness, public confidence, and informed governance. The presumption however can be overcome upon a showing that the closure is necessary based on a compelling governmental interest and that the closure is narrowly tailored to serve that interest. Put in more common terms, it is a two-part test, first, the party who wants to close the hearing has to produce evidence that there is an interest which overrides the First Amendment right and, second, that closing the hearing is the least restrictive means of protecting that interest. In cases where the rights of the defendant to a fair trial are in jeopardy, the Judge, in an exercise of discretion, may close the hearing provided he or she articulates that the closure is necessary.

Many courts have read the Supreme Court rulings on access to criminal proceedings to mean that the right also extends to civil cases, including child custody proceedings. However, all states have some form of confidentiality laws for proceedings where the interests of children are implicated. In applying the two part test outlined above, protection of children is a compelling state interest which may trump the access rights of the public. An important distinction in the types of cases involving children that are open to the public is the evidence that the closure is necessary to prevent a specific harm to the child. Some courts require a showing of an imminent harm, while others have simply required a showing of a possibility of harm. Cases with abuse allegations in particular are closed to the public to spare the victim of the public embarrassment and because open hearings may deter the victim from coming forward. In addition to or as opposed to closed sessions, the Court could require the use of pseudonyms or gag orders prohibiting the parties from discussing the details of the case to non-parties. For more information on closed proceedings in your jurisdiction, you should contact a domestic litigation attorney licensed in your state.

This brings us to the custody proceedings at hand. Bristol’s motion to close the proceedings was denied after a hearing on the matter in December 2009. In support of her motion, Bristol argued that due to advancements in technology, coverage of the case would be available to Tripp when he is old enough to read. Assuming this was the extent of her argument for closing the proceedings (my sources have not provided the transcripts of the hearing), her statement did not meet her burden of showing that the revelations of the case could or would actually cause harm to the child. Alaska may or may not have a statute which establishes a presumption of open proceedings. In addition, the Judge likely had wide discretion in deciding the matter. But just applying our two part test, the Judge’s ruling was fair considering the statement above is just an unsubstantiated claim that fails to override First Amendment rights.

What are his rights?

News of the breakup allegedly came from Levi’s sister who told Star magazine that Bristol was making visitation nearly impossible. She also participated in the Larry King Live interview which revealed he was not allowed to take the child outside of the Palin home. Tripp has his father’s last name and Levi is publicly identified as the father. Which leads to the question, how can Bristol dictate when and where he can see his child?

If a child is born in a marriage, in most states the parties have equal rights to their children because the husband is presumed to be the father. In many jurisdictions, if a child is born outside of a marriage, the default is sole custody and placement with the mother. This is why it is important to establish paternity through a court order. In situations where the parents are in a relationship, it is highly beneficial for the father to establish paternity while they are getting along as this could prevent custody and placement issues in the event of separation.

So, how do you become legally Dad? In most jurisdictions, genetic testing is not required to establish paternity. Voluntary Acknowledgment of Paternity (VAP) forms are available for fathers to sign at the hospital at the time of the child’s birth. If the VAP is not rescinded within 60 days, the VAP is a binding determination of paternity. Thereafter, the acknowledgment may only be challenged in court on the basis of fraud, duress, or material mistake of fact. The VAP includes various warnings and disclaimers. It is important to read the entire document; after all, when you sign the document, you are stating that you read and understood each of the provisions. The VAP includes a waiver of the right to paternity (DNA) testing. By signing the VAP, the man is declaring to all, including child support enforcement, that he is the father of the child. However, the VAP does not establish a father’s parental rights; rather, a father will have to initiate custody proceedings to pursue parental or visitation rights.

Each state has statutes which explain the procedure for establishing paternity. The petition can be filed by the father, mother or the state. The state files petitions in cases where the mother is obtaining state assistance. When the state files the petition, the focus of the state attorney is to establish child support; he or she will not address custody and placement. The first step in a paternity action is acknowledging that you are the father. If you and the mother signed the VAP referenced above, you have a conclusive determination that you are the father. If not, you may be able to obtain genetic testing to confirm that you are the father. After you are declared the father, the next step is establishing terms for custody, placement and support.

What can he do to obtain joint custody?

According to the news reports, Bristol is seeking sole custody while Levi is advocating for joint custody. This could address only legal custody or it may also be referring to physical custody. Often times, people confuse the two. Legal custody refers to the parent’s legal right and responsibility to make decisions for a minor child pertaining to health, education, and religion. Physical custody, often referred to as placement, is the time that the child will spend with each parent. When determining custody and placement, the “best interests of the child” is the paramount goal for the Court.

When parties disagree on custody and placement, many courts require the parties to go to mediation to attempt to resolve the matter. Mediation is when the parties negotiate a settlement on custody and placement with the aid of a person who is specifically trained to assist couples in resolving domestic conflicts. If mediation fails, the Court may require a home study which typically consists of a social worker interviewing both parents, personal references of the parents, and the child (depending on the age of the child). If after receiving the recommendation of the social worker, the parties are still unable to come to an agreement, then the matter will be litigated before the Court. The Court may appoint a guardian ad litem who will advocate for the best interest of the child in the action. A majority of cases settle prior to trial due to the costs of trial and also the risk involved as the Judge, who is not intimately familiar with your family, is the person who will be deciding your child’s fate.

Many courts now have a presumption of joint legal custody and a shared placement schedule (though the definition of shared varies by jurisdiction from an every other weekend schedule to a 50/50 schedule). Courts are typically guided by statute in determining the custody and placement arrangements. In my jurisdiction, Wisconsin, the Court considers the following to determine the best interest of a child: the wishes of the parents, the wishes of the child either communicated by the child or through a guardian ad litem, the relationship the child has with each parent and siblings, the amount and quality of time that each parent has spent with the child in the past, reasonable life-style changes proposed by a parent to be able to spend time with the child in the future, the age and needs of the child, the child’s adjustment, mental or physical health of the parties or child, availability of child care services, the cooperation and communication between the parties, the need for regularly occurring and meaningful periods of physical placement to provide predictability and stability for the child, whether one party unreasonably refuses to cooperate or communicate with the other party, whether each party can support the other party’s relationship with the child, whether a party has engaged in abuse of the child or the other party, criminal records of either party and those whom the party resides with or is in a relationship with and whether either party has had a significant problem with drugs or alcohol.

I do not know enough about the Palin/Johnston situation to have an opinion on custody and placement. I can say that both parties are under intense public scrutiny and must be aware of the impact that every move they make can have on the case. There are definitely do’s and don’t while the case is pending (LINK). The focus at all times should be your child and creating the safe and stable environment that your child needs.

A major thorn in cases today is the popularity of social networking sites. Status updates, wall postings and photo uploads are now being used as evidence in all types of litigation: a dated photo of the plaintiff skiing in a personal injury suit, a threatening post in a domestic abuse injunction hearing, or wall posts of last night’s bender from the parent who was supposed to be home with the child. Even if your profile is set to private your posts are not safe, there are a variety of ways to still obtain the information. So if Levi does have a Twitter, Facebook or MySpace account, he should shut down the accounts immediately. Right alongside the social networking sites are cell phones. Text and photo messages can also cause damage to a case. Any time you are preparing to send a text or a message, stop and ask yourself, how many different ways can this be interpreted? Even if the message is appropriate in the context, think of how the situation can be spun around to make you look like the irresponsible parent she has you out to be.

He should also focus on his visitation schedule. She says he visits sporadically, while he claims she denies visitation. The status quo is important when determining placement both for temporary and final orders. It’s hard to argue for primary placement when the parent has never had an overnight with the child. All visitation should be documented including requests and denial of visitation. I advise my clients to keep a journal which details their interactions with their children. The journal should be handwritten and entries should be made daily. If we go to trial, we need evidence that primary placement or a shared placement schedule is in the child’s best interest. We have to be mindful that the opposing party is probably doing the exact same thing. Along the same line, keep in mind others who observe your interactions with your children including teachers, coaches, etc; or in Levi’s case, the paparazzi. Everyone you interact with is a potential witness.

What about while the case is pending?

Paternity cases can take months to resolve. I’m sure Levi would like to see Tripp while the case is pending and Bristol would probably like child support. If the two can come to temporary arrangements, they could draft a stipulation and order for temporary orders. If they cannot, either may be able to petition the court for temporary orders. The Court can set temporary custody, placement and support which the parties must abide by during the pendency of the action. Failure to abide by the temporary orders, and all court orders for that matter, may result in a finding of contempt which could include serious fines and/or jail time.

In addition, in some cases the temporary orders are really a test. If you successfully follow the orders, your attorney has a great argument that you are a fit and responsible parent in support of the placement schedule you are advocating. But if you do not follow the orders, you can expect to take huge steps backwards when the Judge makes the final orders. When it is your placement time, make sure you are picking the child up on time and dropping off on time; no excuses. If you are granted visitation “at all reasonable times” and your goal is shared or primary placement, you better make sure you are requesting visitation as often as you possibly can. Being busy is not an excuse. If the record shows that you only saw your child 4 times in a month and you had 20 opportunities this will weigh heavily on the Judge’s determination. All orders should be followed to a T. This includes paying any court ordered support in full and on time. Read the temporary order multiple times to make sure you understand exactly what is expected of each of the parties. If there is any provision that you do not understand, be sure to ask your attorney immediately.

She is asking for child support?

Although the parties are fresh out of high school, they each are earning income as public figures. According to Wikipedia, Bristol is a paid spokeswoman for the National Campaign to Prevent Teen and Unplanned Pregnancy and the Candie’s Foundation to inform young people about the negative consequences of teen pregnancy. In addition, she likely has the financial support of her family. On the other hand, Levi has agreed to public appearances, interviews and photo shoots; all for compensation. In most states, if Bristol has primary placement, it doesn’t matter that she and her family can support Tripp, Levi would be responsible for paying support based on the compensation he is receiving and any other source of income.

All states have statutes governing child support. These statutes describe what is considered income for support and the formula used to determine support. The formula is typically dependent on the earnings of both parties and the placement schedule. For example, in Wisconsin we have two formulas for support; one if one parent has less than 25% of the overnights in a given year and one if they both have more than 25% of placement. If a parent has less than 25% of placement, his or her monthly support obligation would be a percentage of his or her gross monthly income depending on the number of children the parties have in common; 17% for one child. If the payer is a high income earner (defined as gross annual income of $84,000 or more), the percentage is lower. In less than 25% cases, the recipient’s income is not taken into consideration. If each party has at least 25% of overnights, the formula considers the income of both parties and the overnight placement schedule. Even if the parties have a shared equal placement schedule, one party could owe the other support. The closer the parties are in gross earnings and placement time with the child, the lower the support payment. However, the Judge could decide to deviate from the percentage formula based on an evaluation of statutory factors for deviation. This is the Wisconsin formula. Some states use net income as opposed to gross income and some take other factors into consideration.

I often hear the following complaint, “I pay child support, why should I have to pay for (fill in the blank), isn’t that what child support is for.” Most states do not have a statute which defines what support is supposed to include. The use of the funds is typically at the sole discretion of the recipient. “Support” can also include more than monthly payments to the other parent. In addition to or as a substitution for the monthly payment, the parties could be ordered to share in expenses for the child. One of the parties has to carry health insurance for the child. In addition, there are the uninsured medical expenses, possible daycare costs and variable expenses to take into consideration. All of these contributions can be in addition to a monthly support payment. In addition to expenses, the dependency exemption on annual tax returns has value that can be taken into consideration when ordering support. A domestic litigation attorney licensed in your state will be able to answer specific questions regarding support exposure and what additional obligations may be ordered as a substitution for or in addition to a monthly support payment.

What about the grandparents?

In most states, there are statutes which allow grandparents to seek custody of their grandchildren or a court ordered visitation schedule. However, fit custodial parent have a due process right to the care, custody and control of their children which includes the right to decide who the child will associate with. At this point in time, no one has filed a request for grandparent visitation.

Bristol’s petition asks the court to prohibit Levi’s mother, Sherry Johnston, from having unsupervised visitation with the child based on a recent drug conviction. Although Levi does not want her involved in the custody battle, I did not see any reference that Levi has any intention of keeping Tripp away from Bristol’s mother. The Court can certainly make an order prohibiting unsupervised visitation with the child and Levi’s mother. Assuming Levi objects to Bristol’s request, the Court would perform an evaluation of Tripp’s best interests when ruling on the matter.

This is certainly not an exhaustion of the issues presented in this case. Although theirs has a play by play by the media, the Bristol/Johnston custody case is a typical paternity action. Both are being guided by competent attorneys who are each implementing a case strategy they have developed with their respective client. If their case is like a majority of cases, I will be reading the terms of a settlement agreement at my next trip to the grocery store.

Jennifer M. Paine
Attorney
at Law
Cordell & Cordell, P.C.
DET Office

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In Press-Enterprise Co v. Superior Court of California, the Court held that criminal proceedings cannot be closed unless specific articulated findings demonstrate that “closure is essential to preserve higher values and is narrowly tailored to serve that interest.” 464 US 501 (1984).

For example, the Supreme Court of New Jersey held that “the societal and institutional values served by open access to criminal proceedings are also implicated in civil proceedings.” New Jersey Division of Youth and Family Services v. J.B., 120 N.J. 112, 124, 576 A.2d 261, 267 (1990). “In cases involving the State’s compelling interest in safeguarding the physical and psychological well-being of minors, trial courts should weigh a variety of factors relating to the actual effect of open proceedings on the particular child.” Id.

Smith v. Daily Mail Pub. Co., 443 US 97, 105 (1979).

In Troxel v. Granville, the US Supreme Court held that a Washington law which allowed any person to petition a state court for child visitation at any time, and authorized the court to order visitation rights for any person when visitation might serve the best interest of the child was unconstitutional as applied when the grandparents did not allege that the mother was an unfit parent and the mother never sought to cut off visitation entirely. 530 U.S. 57 (2000)

Richard JaramilloRichard “RJ” Jaramillo, is the Founder of SingleDad.com,
a website and social media resource dedicated to single parenting and specifically for the newly divorced, re-married, widowed and single Father with children.
RJ is self employed, entrepreneur living in San Diego and a father of three children. The mission of SingleDad is to help the community of Single Parents
“Make Life Happen…Again!”

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Richard “RJ” Jaramillo, is the Founder of SingleDad.com, a website and social media resource dedicated to single parenting and specifically for the newly divorced, re-married, widowed and single Father with children. RJ is self employed, entrepreneur living in San Diego and a father of three children. The mission of SingleDad is to help the community of Single Parents “Make Life Happen…Again!”