Legal Blog: ‘RHOA’ Star Phaedra Parks & Apollo Nida’s Battle Over Joint Custody & Assets — Who Will Get What!

What will happen to Real Housewives of Atlanta cast members Phaedra Parks and Apollo Nida’s children – and money – now that Apollo has filed documents from prison requesting joint legal custody of their two young sons, Ayden and Dylan, and an equitable split of their collective assets?

The convict filed his divorce petition in Georgia on Thursday, Dec. 1. Apollo said in the documents that their marriage is broken beyond repair and that he and Phaedra can no longer live together as husband and wife. He lists their date of separation as June 2014, before he was imprisoned. RHOA fans wonder if Apollo was responding to Phaedra’s filing or if he was filing his own divorce paperwork so that he could move on quickly with fiancée Sherien Almufti. But the more interesting question is how will Apollo’s checkered legal past impact his present and future.

Sherien Almufti

The couple married in 2009 after Apollo left prison for a prior five-year sentence for racketeering. Apollo fails to mention in the documents filed on Dec. 1 that he is currently serving eight years in federal prison for financial fraud. Apollo has been in prison since 2014 for bank and identity theft. He pleaded guilty to charges in a fraud scheme that federal prosecutors say stole millions of dollars from at least 50 people over four years. He supposedly opened fake bank accounts and then got hold of stolen U.S. Treasury checks, stolen retirement checks from Delta Airline employees, and checks that were supposed to go to people who had unclaimed tax money.

Having a criminal record could have devastating consequences that affect Apollo’s chances for receiving joint legal custody and an equitable split of marital assets.

Joint Legal Custody

Every child custody case boils down to what is in the best interest of the child. Phaedra’s lawyers will argue that a criminal is hardly a fit person to make decisions about the child’s schooling, medical care, and religious upbringing. The law is on Phaedra’s side: In most cases, child custody and criminal convictions are a recipe for disaster.

Apollo is asking for “joint legal custody,” which refers to the right of a parent or guardian to make major life decisions for the child. With joint legal custody, both parents have equal rights and responsibilities to make major decisions concerning the child over healthcare, schooling, and religion. However, one parent usually has final decision-making rights.

Because the character and propensities of a parent are relevant to a determination concerning legal and physical custody, anyone with a prior criminal conviction may find their history a major factor in subsequent child custody proceedings. With all other factors being equal, Apollo may still be at a disadvantage because of his status as a convicted felon.

Apollo does have one thing going for him, and that is the nature of his crimes: No family court is pleased with a parent who commits fraud but in the eyes of the law, that is a far less significant crime than a conviction involving battery, weapons offenses, stalking, domestic violence, etc. Stated another way, if you have ever been convicted of child abuse, child endangerment, or a sexually related felony, it is possible that you will not be able to get custody of your child and you will probably have severe limitations as to your rights when it comes to child visitation and decision-making powers.

The fact that Apollo committed crimes when he was an adult and not some irresponsible 16-year-old is problematic for him. Fresh convictions that show poor judgment or reckless/dangerous behavior will typically be more difficult to overcome in a custody proceeding. A conviction in the very recent past will have much more weight and impact than one that occurred decades ago, everything else being equal. Apollo has exhibited a pattern of criminal behavior: He was previously imprisoned from 2004 to 2009 for RICO federal racketeering charges related to an auto theft ring.

If Apollo can show that he is a changed man since the conviction and that all possible steps towards rehabilitation have been taken, then the judge may be inclined to look at his convictions as past aberrations that he learned from and that he will never again repeat. The judge is given broad discretion in custody situations. The best interest of the child is the axiom.

A conviction related to fraud may not necessitate the court to question Apollo’s ability to care for Ayden, 6, and Dylan, 3, but rather his suitability as a role model. Put yourself in the judge’s shoes. Is joint legal custody appropriately applied here? Joint legal custody means parents must make large decisions together. The legal concept is somewhat controversial in the United States because it allows parents to have an equal voice in making decisions, but it can only successfully work where the parties involved are relatively stable, amicable parents who can behave in a mature, civilized fashion. Parents must be capable of cooperating in making decisions on matters relating to the care and welfare of the children with joint legal custody.

Equitable Split of Assets

One of the most significant policy questions involving the division of marital property is whether the division should be influenced by one spouse’s misconduct during the marriage. At present, a majority of jurisdictions hold that marital misconduct is a factor to be considered, especially where it has an economic impact on the marital estate.

Georgia is an equitable distribution state. Equitable does not mean equal, or even half, but rather what the court considers fair. Each spouse keeps his or her separate property and the court divides the property acquired during the marriage on an equitable basis.  In the state of Georgia all divisions of marital estates are considered to be equitable and therefore subjected to a flexible standard dependent upon the judge’s perception of the facts of each case. Georgia recognizes that both spouses have an equitable interest in all marital property acquired during the course of the marriage.  Once a court determines what assets are marital, it must determine how that property is to be divided. 

Divorce courts are “courts of equity” (courts governed by notions of fairness), so they have complete discretion when deciding how to award marital property. The courts in Georgia – unlike community property states – are not bound by any predetermined rules or formulas; they will distribute property in any proportion they believe is fair under the particular circumstances of each case. 

Georgia courts typically consider when deciding what is a fair division of assets the separate assets and financial status of each spouse; the cause for the divorce; liabilities of each of the parties; the earning capacity of each spouse; the conduct of the spouses towards each other during the marriage; and any wrongful conduct that resulted in a dissipation (waste) of assets by either spouse.

In a Georgia divorce, if misconduct on the part of one of the spouses is proven, that spouse may face consequences regarding the award of alimony and the equitable division of marital property. Under Georgia law, while a spouse who committed misconduct during the marriage will not be totally barred from receiving an award of the marital property as a result of his or her misconduct, the amount of marital assets awarded to the guilty spouse may be decreased as a result of his or her misconduct.

One reason to give one spouse a larger share of the marital assets is the bad conduct of the other spouse. When making a decision concerning the award of marital assets between the spouses, the court presiding over the case may consider evidence of adultery or crimes committed by the spouses. This misconduct may result in an unequal split of the marital property favoring the innocent spouse, especially if marital assets were used in the commission of the crime or marital assets were depleted due to the crime.

Should Apollo’s criminal background have an affect on a custody case or the distribution of marital property? Grab your gavel, join the conversation, and tell us what you think.

 

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