Divorce News | Sandra Bullock and Jesse James’ Divorce Begets the Issue of Child Custody

Sandra Bullock has filed for divorce from her husband Jesse James, which raises an important question: What about the children?

The divorce is complicated because of the issue of child custody and visitation regarding the three children James and Bullock have from James' first marriage. Bullock has a major caretaking role with them. Bullock also has a three-and-a-half month old adopted son, Louis. Joanna Grossman of Findlaw delves into the case of Sunny, the youngest, with whom Bullock has formed a maternal relationship since her birth in 2004:

As Sunny's stepmother, Bullock is neither a legal parent, nor a co-custodian... And a stepmother, for the most part, suffers the same fate with respect to a stepchild, when she divorces the child's legal parent: After the divorce, she is generally a legal stranger to the child. Fortunately, in California - as I explain below - that is not quite the case...The distinction between legal parents and legal strangers is paramount in determining the rights various adults have with respect to the care, custody, and visitation of children. A battle for custody between two legal parents, neither of whom has been declared legally unfit, is straightforwardly about the best interests of the child. The court asks: Given a variety of factors, which parent is best suited to have custody? But a battle between a parent and a non-parent is completely different.

It is virtually impossible for a non-parent to successfully obtain legal custody of a child who has at least one fit parent. Visitation is sometimes possible - but may be hard to come by.

The leading ruling on visitation was handed down in 2000 by the U.S. Supreme Court in Troxel v. Granville. That case concerned a Washington State law that allowed any third party to petition for visitation with a child at any time. It also permitted courts to grant such petitions over parental objection as long as it was in the best interests of the child. (The statute was not limited to any special situations - such as where one parent had been declared unfit or was divorced or widowed.)

In Troxel, a father had committed suicide, and a court had imposed a very expansive visitation schedule for his parents - the children's paternal grandparents - to see their grandchildren. However, the mother objected to the schedule. The Court held that, as applied in this case, the statute was unconstitutional. It cited the substantive due process right of parents to make decisions regarding the care, custody, and control of their children unless they have been declared unfit: The law must presume that fit parents act in the best interests of their children and give "special weight" to their decisions about, among other things, who should be able to spend time with their children.

In the wake of Troxel, many state courts have ruled on the validity of their respective third-party visitation statutes. As I have discussed in previous columns (here and here), many – but not all – such statutes survived review. Those that survived built in a strong preference for deferring to a legal parent's decision about visitation with third parties.

In California, where Bullock and James live, the state's highest court upheld the state's grandparent visitation law, in In re Marriage of Harris, against a Troxel challenge. (I discussed the ruling in a previous column.) Importantly, the statute requires that courts apply a rebuttable presumption that visitation with a third-party over the objection of a legal parent is not in the best interests of the child. It also requires proof of a pre-existing bond between grandparent and grandchild as a prerequisite to an order of visitation.

These two features of the statute seem to honor the constitutional protection for parental rights that was emphasized by the Supreme Court in Troxel. Thus, the California Supreme Court likely made the right call in upholding the statute.,, This visitation, however, may not be ordered if it would "conflict with a right of custody or visitation of a birth parent who is not a party to the proceeding."... Broader relationships between stepparents and stepchildren after a divorce tend to be the product of mutual agreement, rather than court order. So ironically, attempting civil or even friendly relationships with James and Lindemulder [the biological mother] might be Bullock's best chance to maximize her visitation with Sunny... The bottom line: Sandra Bullock has an uphill battle if would like to divorce James and maintain a parental-type relationship with Sunny. While court-ordered visitation is possible – and on the facts, I think, even probable – Bullock may not legally be able to regain the kind of relationship she has had with Sunny without Lindemulder's and/or James's consent.

Another issue is the custody of Louis, the 4-month-old son Bullock has just adopted. Joanna Molloy of USA Today writes:

In almost every case of adoption of a newborn in this country today, the new parent is chosen by the birth parent," says Adam Pertman, executive director of the Evan B. Donaldson Adoption Institute. And though most birth parents probably would choose a married couple, Pertman says, many types of families are chosen for adoption today, and divorce may not signal the end of an adoption process.

"For almost all states, the standard is: Is the adoption in the best interests of the child?" says Bonnie Rabin, a New York trial lawyer with experience in adoption cases. Considering the tabloid and entertainment magazine reports of infidelity by Jesse James, "it's unlikely the court is going to find that anyone other than (Bullock) doing it alone would be in the child's best interest."

The lag between baby Louis' arrival in the Bullock household in January and Wednesday's announcement is common, Rabin says: Courts want to study the child in the custody of the person or family seeking to adopt. The length of time between guardianship and final adoption varies according to state and adoption type.

All these machinations being kept under wraps for so long is "extraordinary," Rabin says. Bullock "must have so many people around her who wanted to make sure this adoption could go through without a lot of drama."

It is important to hire a lawyer who stays up to date on the latest developments in the law. For further information about The Law Offices of Brian D. Perskin please click here.

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Sandra Bullock and Jesse James’ Divorce Begets the Issue of Child Custody

It is important to hire a lawyer who stays up to date on the latest developments in the law. For further information about The Law Offices of Brian D. Perskin please click here.