Great article by By JOANNA GROSSMAN , a professor at Hoffstra. Link to article
Britney Spears: Why She Lost Visitation Rights, And What Her
Case Teaches Us About Family Law
Tuesday, Jan. 08, 2008
Is there a celebrity more often called a "train-wreck" these days than
Britney Spears? Like a massive pile-up on the highway, Britney's rapid descent
from a celebrity mother with two young children, to a divorced mother stripped
of visitation completely, has captivated our attention. But the story here is
not just about an overwhelmed pop star escalating out of control, but also about
the law: What does Britney's case tell us about family law that we (and she)
ought to know?
The Facts and Legal Twists and Turns of Britney's Story
I first wrote about Britney
Spears in 2004 when she and Kevin Federline married. In a single year, at
the ripe old age of 23, Britney had married one man in Las Vegas, annulled her
marriage to him 55 hours later, signed an agreement with a second man to have a
"fake" wedding ceremony, and then, finally, married him for real. As a law
professor, I found that her marriage-hopping was a great tool to teach about the
rules governing marriage, annulment, and prenuptial agreements. (I still hand
out her petition for annulment in my family law class as an example of how to
get out of a "jest" marriage.) Writing about Britney then did not seem terribly
voyeuristic; after all, her youthful indiscretions had left few permanent scars
on her or anyone else. She and K-Fed were safely married and seemed, at least
fleetingly, to be happy.
Since then, however, the story has taken a much darker turn. In just two
years, Britney and Kevin became parents to two sons. Two months after giving
birth to her second child, Britney filed for divorce in November 2006. In her
petition, she alleged "irreconcilable differences" - a no-fault ground for
divorce recognized in California. She requested both physical and legal custody
of the boys, then ages 13 months and 8 weeks. ("Physical custody" refers to
where the child resides; "legal custody" refers to the power to make important
decisions regarding a child's health, education and religion. Both forms of
custody can be awarded solely to one parent or shared by both.) She asked that
each party pay their own legal fees for the divorce, and that no alimony be
Britney got her divorce - in August 2007 - but ultimately lost on every other
issue. The court ordered her to pay Kevin's legal fees (over $100,000), since
her earnings dwarf his so substantially, ordered her to pay him alimony, awarded
him physical and legal custody of the children, and, very recently, stripped her
of all visitation rights.
Through all this legal wrangling, Britney's life again presents a teachable
moment - this time about the law of divorce and custody, instead of marriage and
prenups - though maybe she is the one who needs the lesson most of all.
I'll focus here on the decisions regarding custody and visitation and the legal
framework in which those decisions are made.
Lesson #1: Courts, not Divorcing Parents, Ultimately Decide
When Britney first requested sole custody in her divorce petition, she
had a very good chance of getting it. Even though it has been held
unconstitutional for courts to assume mothers make better parents or
automatically award them custody, women still end up with sole or joint custody
90 percent of the time. This is especially true when children are young, even
more so for infants. Kevin also seemed a less likely choice at that time since
he had two other out-of-wedlock children and a fledgling career as a
But Kevin did not just roll over. In his response to her divorce petition, he
also asked for sole custody of the couple's sons. And with that response,
a custody battle ensued.
Who normally decides the custody issue? Ultimately, the decision of where a
child should live following divorce and whether one or both parents should have
decision-making power is a question for the court.
In an intact family, parents are entitled to make these decisions without
governmental intrusion. Indeed, there is a long line of U.S. Supreme Court cases
holding that parents have a constitutionally-protected right to make decisions
about the care and custody of their children without governmental intrusion. It
is the rare case in which the government has a sufficiently compelling reason to
overturn the decision of a parent about a child's upbringing. But divorce
literally changes everything.
In divorce, the state's parens patriae power - the power to be a sort
of super-parent - comes to life as it stands over the divorcing parents to look
out for the child. By statute, in every state, the court must ensure that
custody decisions reflect "the best interests of the child." This does not mean
that the parents have no say in the custody decision, however.
A parent who does not want custody will be unlikely to have it forcibly
imposed upon him or her, for example, unless there is no other available parent.
And if both parents want custody, they are free to try and negotiate the issue
themselves. In the vast majority of cases, custody awards reflect an agreement
negotiated by the parties. (Most states do not permit couples to resolve custody
conflicts too far in advance, such as in a prenuptial agreement; custody
agreements must generally be made in anticipation of separation or divorce.)
However, courts have the responsibility to review all such arrangements to make
sure they meet the best-interests-of-the-child standard - and to give them the
imprimatur of law by issuing a custody "order." Still, if the parties reach a
reasonable agreement regarding custody and visitation, courts are unlikely to
alter their agreed-upon terms.
When the parties do not agree, however, all bets are off. Custody battles can
be long, drawn-out, nasty affairs that cost a fortune. But when there is a
custody battle, who wins? To receive custody or visitation, a parent must be
considered legally "fit." An unfit parent can have parental rights temporarily
suspended or permanently terminated. In most custody cases, however, the battle
is between two parents who meet this minimum standard of competence. Then, the
custody decisions turns on the desires of the parents, their respective
abilities and deficiencies, the particular needs of the child, and a long list
of other relevant factors. A court has a lot of flexibility to tailor a custody
arrangement to a particular situation - it can order joint physical or legal
custody, or sole custody to one parent with visitation for the other, and the
particular details of any of these arrangements can vary.
In the end, the court decides whether a parent gets custody or visitation and
on what terms. Before their divorce became final, Britney and Kevin shared
custody of their sons. They privately agreed to this arrangement, and the court
gave legal effect to their agreement pending a final ruling. Since then, of
course, that arrangement has been greatly altered.
Lesson #2: Parental Behavior Matters in Custody Battles
Among the factors considered in custody cases is parental behavior. It used
to be the case that courts would think nothing of stripping a parent of custody
or visitation rights simply because they violated a societal norm by, for
example living with someone outside of marriage or engaging in same-sex
behavior. Courts no longer use custody rulings as an excuse to police parental
compliance with such societal norms, but they do - and should - still take into
account parental behavior to the extent it bears on the health or well-being of
a child. The so-called "nexus" test followed in most states asks whether a
particular type of parental conduct has caused, or is likely to cause, physical
or emotional harm to a child. If the answer is yes, then the court may set or
modify custody arrangements accordingly.
Why is this relevant to Britney's case? Because after Kevin filed his
competing request for custody - suggesting that the parties did not agree about
the appropriate custody arrangement, and thus that there might be a courtroom
battle - Britney seemed to devote herself to conduct that might jeopardize her
plea for custody. She was vilified in the tabloids and elsewhere for a whole
host of behaviors - everything from appearing in public one too many times
without underwear, to shaving her head, to fleeing the scene after hitting
someone's car in a drugstore parking lot.
Of the things she has allegedly done, only some are potentially relevant to
the custody case. While many of Britney's missteps will probably cause
embarrassment to her children someday, when they grow up and discover an archive
of US Weekly magazines, that's not the sort of harm courts worry about
too seriously. Her hit-and-run accident? Probably also not relevant, because
this behavior, while illegal, does not directly jeopardize her children's
well-being. Driving without a California driver's license? Definitely not, since
being licensed in the wrong state does not affect her ability to drive safely,
whether or not it violates the law.
But Britney's behavior did become relevant, for it also involved
allegations of alcohol and drug abuse, since children could certainly be
endangered by a parent's lack of sobriety, and driving her children around
without car seats, as photographs showed. These allegations, if proven,
certainly satisfy the nexus test used in custody matters. Indeed, based on the
court's recent finding that she is a "habitual, frequent and continuous" user of
alcohol and controlled substances, it ordered Britney to submit to random drug
and alcohol testing twice weekly, beginning in September 2007. The court also
ordered her to meet with a parenting coach, enroll in a "parenting without
conflict program," and refrain from using alcohol or drugs when with her
Lesson #3: Britney: The Paparazzi Are Not the Only Ones Watching Your
One last, hard lesson for divorcing parents is this: There is no such
thing as a permanent custody order. Until children reach the age of majority,
the court has jurisdiction to enforce and modify its orders regarding custody,
visitation and child support.
What this means is exactly what we have seen with Britney and Kevin:
when new allegations are made about parental fitness, or anything else relevant
to custody, the court can revisit its orders and change them as appropriate.
Although courts tend to require a "change of circumstances" in order to
relitigate the basic question of who gets custody, it has the power to take
another look when the need presents itself.
It is this ongoing scrutiny by the court - not just by the paparazzi and the
millions of Americans who follow celebrity news - that left Britney vulnerable
to her current fate: losing contact with her children altogether. She first lost
shared custody last October; shortly thereafter, she also temporarily lost
visitation rights for failing to comply with court orders regarding alcohol and
drug testing. She regained visitation rights shortly thereafter, but only on the
condition that the visitation be "supervised," which means that an approved
third party had to be present every minute when she visited her sons.
Britney has now lost visitation rights completely once again. Given courts'
strong presumption that children should continue to have meaningful contact with
both parents following divorce, the complete denial of visitation is serious
business. Britney allegedly refused to turn her children over to Kevin's
bodyguard at the end of a visit, became hysterical, and was hospitalized. A
court then temporarily suspended her visitation rights with her sons. Britney's
custody lawyer has also filed a request to be removed from the case, stating
that her inability to communicate with her client was hampering the
Britney's younger sister, pregnant at 16, with a mother who is alleged to
have sold that news to a tabloid for a million dollars, may soon give Britney a
run for her money in the train-wreck department. But, for now, the title is all
Britney's . The good news, in the custody arena, is that a denial of visitation
can be reversed just as easily as it is instituted. Courts want fit parents to
be involved with their children. So if Britney could just shape up and get her
life under control, she should be able to re-establish legal contact with them.
The question now is not a legal one, but a factual one: Can she?
Warren Shiell is a Divorce Lawyer in Los Angeles