When is a Custody Stipulation an Order?… and When are Files Private?

Brad Pitt and Angelina Jolie are back in Entertainment Tonight’s legal spotlight with their court battle and custody stipulation.


Four points of interest and inspection from this article are:

  1. The parties have a stipulation BUT they didn’t initially file it with the court,
  2. Respondent Pitt is trying to get the case sealed,
  3. Child Protective Services has reportedly closed its case, and
  4. Mental health professionals seem to be calling the shots

Here is why I think those are the more interesting points of ETs report on this case:

Breaking Down the Four Points

1. Stipulations and the Courts That Enforce Them

According to the article, the parties signed a custody stipulation in late October.  Petitioner Jolie reportedly filed that stipulation with the court December 2, 2016.  By doing so she made that stipulation into a court order, against Respondent Pitt’s wishes.

If parties never filed the stipulation with the court, the court could still enforce it.  The court recognizes written agreements and in some circumstances verbal agreements the parties enter into.  California Evidence Code section 664.6 allows parties to call on the court to recognize any such agreement as a court order enforceable under the court’s power.  But enforcement inside the court can take a long time and delay the proceedings.

Enforcement Inside the Court

When a party files contempt charges (the ultimate court enforcement action), those charges carry criminal implications.  The accused party has the right to an attorney.  The accused party may call on his/her Fifth Amendment protection against incrimination.  Charges are filed, a plea is taken, a court trial is set, and the entire process can take months.

Enforcement Outside the Court

The simpler method is to present the stipulation to the judge for signature and filing thereby making it an order.  That order can be enforced (to some degree) outside court with assistance from law enforcement.  Note: there are limitations to the efforts to which law enforcement will go to enforce a family law order.

2. Sealing a Court Record

Five days after the Jolie-Pitt stipulation was filed as an order, Respondent Pitt asked to have the court file sealed.

Court is public, and court records are public records.  Divorce cases where two adults are divorcing are part of those public records.  This is in contrast to paternity actions and adoptions where the only party of significance is the minor child, and in these cases the court seals the entire file and only allows the parties and their attorneys to access it.

The court can, upon request, seal certain documents in a court file: if the filing contains legally private or privileged materials, if someone’s physical safety is jeopardized, as examples.  All other pleadings in those cases would be matters of public record and therefore publicly available.

In this case the judge denied the ex parte request to seal the file as he found there was no emergency.  No one’s life or safety was at risk in a manner that outweighed the public’s right to an open court.  The court currently has no future court date set to take up the issue of sealing the file on a non-emergency basis.

Child Protective Services Ends Involvement

Reportedly the Department of Child and Family Services has ended its involvement in this case.  DCFS closes cases when the allegations are either unfounded (determined to be not true) or unsubstantiated (unable to be shown to be true).  If DCFS determines a case is substantiated (likely to be true), that case moves into the juvenile dependency court.  When it comes to custody, an open case in juvenile dependency court would take precedence over even an existing family law case.  So, if DCFS had not closed its case in this matter, the party’s would be discussing custody in the juvenile dependency court even though custody has been requested in the divorce case.

Life After DCFS Involvement

Without DCFS involvement, it is very unusual that a parent would submit to the highly restricted supervised visitation schedule described in the article.  California courts support frequent and continuing  contact between children and parents.  Barring good reason to the contrary, California courts are mandated to get as close to a 50/50 custody schedule as is reasonable and in the best interests of the children.

It seems that the only visitation between Respondent Pitt and the children is supervised by the children’s therapist(s).  It appears from the report that this is in part a hold over from any suggestion once given by DCFS (the department which is reportedly no longer involved).

Custody without DCFS Involvement

The article alludes to correspondence from Respondent Pitt’s attorney stating he could get significantly more custody if the matter was heard in court.  Relying on the scant information in the article, he would be right. If DCFS was content enough to walk away from the case, the court would be hard pressed to find a sufficient reason to order supervised and/or limited visitation. In cases such as these, the court would likely look to (at a minimum) alternating weekends and a few mid-week visits with the goal to work toward a 50/50 custodial schedule.

Who is Running the Asylum (stipulation)?

The article indicates that the order shifts decisions on increased custody to the children’s therapists. A family law court would not likely order such an arrangement.  To the contrary, courts state openly that they will consider input from mental health professionals but they will not relinquish custody decisions to them.  Courts are reluctant to make orders giving that power to professionals outside the legal realm.

And it’s not just loss of control that makes the court reluctant to make such orders.  At least part of the reluctance is from mental health professionals’ aversion to participate in such orders.  With custody responsibility comes potential liability should a party chose to sue.  And it’s not just financial liability — therapists have lost their licenses over such recommendations.  It is unusual to find a therapist willing to risk professional liability to accept such a helm.

This part of the ET article brings up so many questions for me: Who chose the therapists?  Who pays the therapists? How long have the children seen the therapists? (before the alleged incident?)  Does the therapist interact with the parties and the children?  Do the therapists provide reunification therapy focused on resolving any potential issues between parent and child?

To Sum It Up …

In conclusion, the Jolie-Pitt divorce is (in many ways) very typical, but due to the notoriety of the parties it is providing some less-often-seen twists and turns.  I hope the commentary has provided some insights into a few of the niches of family law.