April 23, 2010

If Sandra Bullock Divorces Jesse James, What happens with the Kids?

Posted in Celebrity Divorce, Visitation tagged , at 6:42 pm by demetriagraves

The troubles in the marriage of Sandra Bullock and Jesse James have been headline news for the past few weeks. So far at least five women have claimed affairs with James. Bullock has moved out, and is reportedly ready to file for divorce.

It seems there are parallels here to the Tiger Woods scandal: A claim of sex addiction by the cheating husband, a stint in sex rehab, and more and more women emerging, over time, to claim affairs. Though, there is an important difference, too.

Elin Nordegren will very likely get primary custody of her children in the event of divorce – for she is their legal mother, has been their primary caretaker, and would likely stack up better than Tiger in any assessment of relative parental fitness.

In contrast, although Sandra Bullock has played a major caretaking role with respect to James’ children – especially his six-year-old daughter Sunny, from his second marriage – Bullock probably will not receive legal custody, for reasons I will explain, though she may be granted visitation.

Generally speaking, Jesse will attempt to argue that Sandra does not have any constitutionally-protected  rights, and therefore she will not owe any child support nor should she be allowed to visit with the children.  Sandra did not adopt the children but it is very clear and understood that she has played a BIG part in the daughter’s life, but at the end of the day she is not her “mother”

Under these basic principles, Sunny has two legal parents: her biological mother Janine Lindemulder, a porn star who was recently released from jail after serving six months for tax evasion, and Jesse James, who was married to Janine when Sunny was born.

James and Lindemulder divorced shortly after Sunny’s birth in 2004. In 2005, Jesse married Sandra Bullock. Bullock has, by all accounts, been an integral part of Sunny’s life since infancy. Sunny has lived in their home and, since December 2009, James has had sole legal custody of Sunny. In October 2009, after Lindemulder was released from jail, she sought to regain custody of Sunny. But James successfully fought off her attempt; instead, the court awarded full custody to James last December, giving Lindemulder only limited weekly daytime visitation rights.

As Sunny’s stepmother, Bullock is neither a legal parent, nor a co-custodian. However, her presence in the home and her relationship with Sunny were highly relevant to the court’s decision to allow James to retain full custody. And, as long as she remains married to James, and he retains custody of Sunny, she will have the chance to continue effectively (but not legally) parenting Sunny, just as she had been doing and rightfully so, as it would NOT benefit Sunny to abruptly remove Sandra from her life.  Hopefully it doesn’t come to this, but Sandra could petition the court for “visitation” as a 3rd party, which could also have ramifications for her.

But what if she files for divorce? As a stepparent relationship is created by marriage – it terminates when the marriage is dissolved. Just like when a mother-in-law becomes a “legal stranger” to the person her son or daughter has divorced. Generally, a stepmother 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. Though, fortunately in California – that is not quite the case.

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.

Fortunately for Bullock, California law also provides for visitation by a stepparent when he or she divorces a child’s legal parent. Under California Family Code §3101, a court may grant “reasonable visitation” to a stepparent during a divorce or annulment proceeding to dissolve the marriage that created the stepparent-stepchild relationship.

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.” This provision must also be applied in any particular case in a constitutional manner. It would not be enough for a court to determine, merely, that visitation time with Bullock would be in Sunny’s best interests.

Under this statute, Bullock could request visitation with Sunny even if she divorces James. But court-ordered visitation time for Bullock would have to come out of James’ time with Sunny, rather than out of her mother’s visitation time.

Given the apparently close relationship between Bullock and Sunny; the court’s seeming prior acknowledgement that Bullock is a good influence on Sunny; and the presence of a variety of destabilizing aspects in Sunny’s life, it is not far-fetched to predict that Bullock will be able to get some visitation with Sunny even if she divorces James. This same set of facts may, ironically, operate to the detriment of James, as he fends off yet another custody challenge by Lindemulder. James’ behavior and Bullock’s departure could be enough to give her a leg up in this round.

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 might be Bullock’s best chance to maximize her visitation with Sunny.

The bottom line is that Sandra Bullock has an uphill battle if she plans to divorce James and maintain a parental-type relationship with Sunny. While court-ordered visitation is possible, Bullock may not legally be able to regain the kind of relationship she has had with Sunny without Lindemulder’s and/or James’ consent.

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