Family Law Corner: Custody Chaos

Even living under a rock wouldn’t be enough to avoid the controversy between Mel Gibson and his girlfriend, Oksana Grigorieva.  The audio tapes alleged to be Gibson have been all over the internet and have been the subject of more than a few comic routines.

A little over a year ago, Gibson’s wife filed for divorce and shortly thereafter he announced that he was having a child with Grigorieva.  According to various reports, during pregnancy, Grigorieva signed a cohabitation agreement which bars her from bringing any claim under In re Marriage of Marvin (1976) 18 Cal.3d 660.  A Marvin action allows one half of a cohabitating couple to bring suit based on violation of an express or implied contract, basically allowing unmarried cohabitators financial recovery.  The parties also reportedly have an agreement on custody, though the gossip sites are split on when this agreement was reached (i.e. before the birth of their child or around the time of their split).  What is agreed is that shortly after implementing this agreement, Gibson filed for a restraining order against Grigorieva restricting her from releasing “certain information,” according to the Huffington Post.  Around the same time, tapes purporting to be Gibson yelling at Grigorieva were released.  Finally, Grigorieva requested a restraining order based on an incident where she alleges Gibson hit her.  Gibson is now being investigated by the District Attorney and child protective services.  Grigorieva is seeking supervised visitation and child support.  Their family court judge has made a temporary order that the co-parenting agreement will be followed, which means Gibson continues to have unsupervised visitation with their daughter.

The case raises a number of issues regarding secretly recorded telephone calls. Recording calls without the consent of all parties is prohibited and punishable by fine (Penal Code §632 and Flanagan v. Flanagan (2002) 27 Cal.4th 766).  However, a judge issuing a temporary restraining order may give a person the right to record calls.  It remains to be seen if Grigorieva recorded the calls or had the right to do so.  
The outcome of the domestic violence restraining order will pose the most problems for Gibson.  If it is found that there are grounds for a permanent restraining order, under Family Code §3011, there is a rebuttable presumption that joint custody of a child is detrimental to the best interests of the child.  This would mean that Gibson would face an uphill battle in gaining more custodial time with their daughter.