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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 awarded.

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 Custody

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 performer.

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 children.

Lesson #3: Britney: The Paparazzi Are Not the Only Ones Watching Your Every Move

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 representation.

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?

Joanna Grossman, a FindLaw columnist, is a professor of law at Hofstra University. Her columns on family law, trusts and estates, and discrimination, including sex discrimination and sexual harassment, may be found in the archive of her columns on this site.

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