At this point almost all of America has seen the video of the adorable 6 year girl talking to her mother about divorce. (If you have not seen it yet, take a few minutes and watch it HERE.) With advice such as “Don’t be a Meanie, be a friend” and lines like, “What if there is just a little bit of persons and we eat them? Then no one will ever be here. Only the monsters in our place. We need everyone to be a person” the viewers can’t help but stop and take notice – plus this wisdom is coming from a little girl so sweet you want to eat her…but in a figurative way of course.

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With school back in full swing for children all around San Diego County, I thought I would focus my blog on a very common occurrence in child custody matter; school enrollment.

When two parents decide to get a divorce, one or both of them will often move out of the family residence. With the cost of living so high in San Diego, that can mean moving out of the neighborhood the parties lived while they were together. If the parents end up living in close proximity, the issue of where their children will be enrolled for school is an easy one. What happens when the parents move to other parts of town or into different school districts? This can create a huge headache for parents and children resulting in hours spent commuting to school and work.

If the parties share joint legal custody, they are generally required to make decisions such as school enrollment for their children jointly. (There is a legal loophole for this issue that can be found in Family Code §3083, but be very careful attempting to circumvent joint legal custody orders – you may be on the right side of the law, but you could end up on the wrong side of a Judge.)

If the parents cannot reach an agreement, one of them will have to file a motion asking the court to make the decision. Motions related to school enrollment are decided using the best interest of the child standard. From a legal perspective, the request is no different than a parent filing a motion asking for their custodial time to be increased.

In almost all cases the parties will be required to attend child custody mediation to attempt to resolve the matter. If an agreement is not reached in mediation, the mediator will release a recommendation for the court’s consideration.

In making the decision, the court will look at several factors in making the decision about where the children will be enrolled. While not an exhaustive list, the following are major factors the court can consider.

First is the location of the school in connection with the primary custodial parent’s home. This is common sense; if the children are with one parent a majority of the school week, it makes sense that they attend school nearby.

Another factor the Court will look at is whether the children are zoned for a school they have always attended. Consistency in child custody matters is important to the court, so if possible, the court will consider allowing the children to stay at the school they have always attended.

Finally, the court will consider the respective school rankings and test scores. If all other factors between the competing schools are the same, but one school is rated a 10 on or, often Judges will choose the school that provides the best chance at success for the children.

In unique situations, the parties can retain or consult with educational experts that specialize is school placement for exceptional students, children with IEPs, or other special school related issues. A qualified family law attorney can assist you with deciding what course of action is best for you.

If school enrollment is an issue in your case, or if you think that it could be, it is important to act quickly. Obtaining a hearing date can take as long as 120 days, so you have to plan ahead. It is unlikely you will get a decision from a Judge if you wait until the last minute; leaving you and your kids in limbo. You also run the risk of your kids transitioning from one school at the beginning of the year only to move again several months later.
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At some point in your life, you have probably done a double-take upon hearing news of a crazy-sounding child support payment of a celebrity or famous athlete. The media loves to report on these sometimes exorbitant amounts, for the shock value given to amounts of money that many Americans may never even dream of seeing. Here are some reported examples:
• Halle Berry, paying $20,000 per month to ex-boyfriend for 1 daughter • Eddie Murphy, paying $51,000 per month for 1 daughter • Sean “Diddy” Combs, paying $20,000 per month to ex-girlfriend for 1 son and $21,782 per month for now adult son to another ex-girlfriend
• Charlie Sheen, paying $50,000 per month to ex-wife Denise Richards for 2 daughters, and $55,000 to a different ex-wife for 2 sons
• Allen Iverson, owing $8,000 per month to ex-wife • Terrell Owens, owing $120,000 per month in child support and mortgages to 4 different mothers (whether he actually pays is a completely different story…)

You may be questioning how this happens. Certainly no child eats $20,000 worth of food or needs $8,000 worth of diapers each month, right? So what actually goes into the Court’s calculation of child support?

Let’s start off with the understanding that if you have a child, you have a legal obligation to support that child. Both parents share equally in this obligation irrespective of their marital status or gender. California uses a statewide uniform guideline to set the amount for child support. Courts are only allowed to depart from the guideline amount in special circumstances (as listed in the Code).

california-child-support.jpgIn setting an amount of child support, the State’s top priority is the best interest of the child. However, this doesn’t just take into account the cost to cover the bare necessities of the child; it also takes into account the standard of living of each parent and can serve to help minimize significant disparities in living standards. Knowing that, these celebrity support amounts already start to make more sense. In a scenario where we have a high-earning celebrity living large in a huge mansion in Beverly Hills, who has a child with a low-income person living in a studio apartment in a rough part of town, then a child support payment to the low-income parent may inevitably raise his or her standard of living as part of the child’s right to support.

Don’t fret though, because while the above amounts demonstrate extreme child support orders, it has been reported that the average child support payment in America is about $430 per month. If you do have a child, and will be receiving or paying child support pursuant to a court order, it is important to understand exactly what goes into the Court’s calculation.

The exact components of the formula are explained in CA Family Code Section §4055. The Court looks at the income of both parents, the net monthly disposable income for each parent, and the percentage of time that each parent has physical responsibility for the child. The Code states that the amount of support as calculated by the formula is presumed to be the correct amount, but that presumption may be rebutted if the Court finds that the guideline amount would be unjust or inappropriate in a particular case (special factors listed in FC §4057).

The California Department of Child Support Services (“DCSS”) provides an online calculator which gives parents the ability to enter their own information and calculate an amount for support under the State’s formula. While this can give you an idea of how much a child support obligation might be, its accuracy really depends on whether you have correct information about the other parent’s finances. The calculator can be accessed via the DCSS website.

While some child support cases may be relatively straightforward, complications can easily arise, especially where complex financial issues are present or where the other parent refuses to pay. In these cases, it may be wise to be represented by an experienced family law attorney.
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We live an increasingly mobile society, so it’s not unusual for families to find themselves in different parts of the country for a multitude of reasons. So, how is it decided which state gets to make custody and visitation orders over the children in these situations?

The Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”) is a common body of rules adopted by every single state (except Massachusetts). A quick glance at the UCCJEA will quickly resolve the overwhelming majority of these questions. For the purposes of this blog post, the rarely used more appropriate forum exceptions will not be discussed.

There are 4 types of jurisdiction under the UCCJEA: (1) Initial jurisdiction (2) Continuing, Exclusive Jurisdiction (3) Modification Jurisdiction and (4) Emergency Jurisdiction.

uccjea-jurisdiction.jpgInitial jurisdiction is described in Family Code section 3421. California has jurisdiction to make an initial child custody determination if California “is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within 6 months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state.” The “home state” is defined as the “state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding. In the case of a child less than six months of age, the term means the state in which the child lived from birth with any of the persons mentioned” by Family Code section 3402.

So if the child was in California for the six months before the first child custody proceeding was commenced, California could assume jurisdiction.

Once California has jurisdiction over the child, under what circumstances does California cede jurisdiction to another state? Under Family Code section 3422, California has continuing, exclusive jurisdiction to make orders over a child unless:

“(1) A court of this state determines that neither the child, nor the child and one parent, nor the child and a person acting as a parent have a significant connection with this state and that substantial evidence is no longer available in this state concerning the child’s care, protection, training, and personal relationships. (2) A court of this state or a court of another state determines that the child, the child’s parents, and any person acting as a parent do not presently reside in this state. ..”

The language of this statute can be intimidating, but it can be boiled down to the following rules of thumb:

1. California will continue to have jurisdiction to make custody and visitation orders if at least one parent remains in California and that parent continues to exercise visitation rights with the child (even if the child lives in another state). This is pursuant to Kumar v. Superior Court.
2. If the neither of the parents nor the child live in California anymore, California no longer has jurisdiction to make orders.

When can California assume jurisdiction and modify a child custody order from another state? Pursuant to Family Code section 3423, California cannot modify another state’s order unless it would have jurisdiction under Family Codes section 3421 AND either of the following circumstances exist:

“(a) The court of the other state determines it no longer has exclusive, continuing jurisdiction under Section 3422 …
(b) A court of this state or a court of the other state determines that the child, the child’s parents, and any person acting as a parent do not presently reside in the other state.”

In other words, if the child has been in California for six months and neither the parents nor the children continue to reside in the state that originally made the last custody order, California can exercise jurisdiction over the child.

Finally, we get to Family Code section 3424, temporary emergency jurisdiction. Temporary emergency jurisdiction trumps all the other rules. California always has jurisdiction if the child is “present in the state and has been abandoned or it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to, or threatened with, mistreatment or abuse.” This is so, even if California would not otherwise have jurisdiction under Family Code sections 3421, 3422, or 3423.
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All Americans, religious or not, are in an undeniable state of excitement upon Pope Francis’ first arrival on U.S. soil. As we are bombarded with media coverage of the visit at every turn, the divorce attorneys here at the Law Offices of Nancy J. Bickford find it a fitting time to discuss annulment in California and the Pope’s recent reform to the Catholic Church’s annulment process, announced by the Pope’s September 2015 Letters motu propio.

An annulment under California law and an annulment in the eyes of the Church are not synonymous. The Catholic Church does not give divorced people permission to remarry. So, if a Catholic person wishes to remarry, the Church must find that their first marriage was void before they are free to do so.

marriage-annulment-in-california.jpgIn California, there are three legal options available to couples wishing to end or alter their marital status: dissolution (a.k.a. divorce), nullification, and legal separation. Divorce can only be granted where there has been a valid marriage. Nullification can only be granted if there was no valid marriage to begin with. Incest (see CA Family Code §2200), bigamy (see CA Family Code §2201), and lack of a lawful marriage contract (requires both issuance of a license and solemnization, see CA Family Code §300) would be grounds for a “void” marriage, one that will never be valid in the eyes of the law. Minority (under the age of 18 in CA), prior existing marriage, unsound mind, fraud, force, and physical incapacity are factors leading to marriages that are “voidable” (see CA Family Code §2211) meaning that they are valid in the eyes of the law until the parties seek and receive a judgment of nullification from a court.

For more information on grounds for annulment in California, see our April 1, 2015 blog titled, “Do I Qualify for an Annulment.”

For Catholics wishing to remarry, even after receiving a legal judgment of dissolution or nullification, they must still seek a decree of nullity from the Church. This process has faced a lot of criticism throughout the world for being a slow, expensive, and difficult process, and in some countries it is even considered basically impossible to do. So, Pope Francis’ new reform is meant to make the Catholic annulment process quicker and more accessible especially to the Church’s low-income members.

The most notable changes to the Church’s nullification process are as follows:
1. Now only one judgment of nullification is required. Automatic appeal to a second tribunal is removed, but appeal still remains an option in contested cases;
2. The Bishop is named as the principal judge in his diocese, who is able to designate this responsibility to a cleric if so desired;
3. Creation and addition of a third, quicker, process for cases where evidence of nullity is especially clear, to be decided by the Bishop himself. There are a number of situations where the new process can be used. Some examples include cases involving very brief marriage, existence of an extramarital affair at time of wedding or very soon thereafter, malicious concealment of things like infertility or a serious contagious disease, and more; and 4. Reintroduction of the ability to appeal the Bishop’s decision to the metropolitan bishop (or the Metropolitan Bishop’s decision to the Senior Suffragan Bishop).

Regardless of religious or cultural background, dissolution and annulment can be difficult for anyone. There are strict legal requirements and specific timing requirements associated with these requests. Our team of experienced attorneys can provide you the outstanding counsel you may need during these difficult times and will ensure that your needs are met as we help you navigate through the divorce or annulment process.
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Living-separate-under-one-roof.JPGIn Marriage of Davis, the Supreme Court of California was asked to decide the following question: can spouses truly be “living separate and apart” within the meaning of Family Code section 771(a) if they share the same residence? The Court, in a unanimous decision, held that spouses cannot be separated if they share the same residence.

In Davis, the parties seem to agree that their marriage was “over” sometime around June of 2006. However, they continued to reside together, for the sake of their children, until 2011. The wife contended that the date of separation was in 2006, while Husband, relying on the fact that wife did not move out until 2011, argued a date of separation in 2011.

supreme-court.jpgThe Court’s decision came down to statutory interpretation. The Court held that, on its face, the plain meaning of the term “living separate and apart” required a physical separation. To the extent there was some ambiguity in the statute, the Court noted that the term “living separate and apart” had not been altered in subsequent iterations of the statute since 1870. The Court also noted that, in 1870, “living separate and apart” required that the wife establish “her own place of residence.”

The Court did not address, and therefore did not foreclose the possibility, that spouses could live separate and apart in separate residences while “they continued to literally share one roof.” For now, what this means exactly is up to the lower courts, or possibly the legislature.

Determining the date of separation can be critically important in many family law cases. As the community exists only between the date of marriage and the date of separation, it is only after the parties separate that they begin to accumulate separate property. If the parties aren’t separated, the spouse will, for instance, continue to have a one-half interest in the other spouse’s earnings. Over the course of many years, this can make a difference of tens or even hundreds of thousands of dollars. The date of separation is also important in spousal support, as the duration of spousal support heavily depends upon the length of the marriage.

If you have questions about what the date of separation is in your case, it is important that you discuss your rights with an experienced family law attorney.
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In recent years, same-sex marriage has undergone a radical transformation in California and in the rest of the nation. The Law Offices of Nancy J. Bickford is well aware of these important changes in the law.

On June 16, 2008, the Supreme Court of California held that California’s same-sex marriage ban was not permitted under the California constitution. On November 5, 2008, however, the California electorate amended the California constitution through Proposition 8. This reinstated the same-sex marriage ban in California.

On August 4, 2010, United States District Court Chief Judge Vaughn Walker declared that Proposition 8 was unconstitutional under the Federal (not California) constitution. However, through appeal, the order was stayed until the United States Supreme Court reinstated Judge Walker’s ruling on technical grounds in Hollingsworth v. Perry. The Hollingsworth v. Perry opinion was issued on June 26, 2013 and allowed same-sex marriages to resume in California.

same-sex-divorce-gavel.jpgOn that same date, the United States Supreme Court issued the landmark Windsor v. United States decision, striking down language in the Defense of Marriage Act (DOMA) that limited the definition of marriage to opposite-sex couples. Before Windsor v. United States, same-sex couples throughout the nation were deprived of many federal benefits opposite sex couples enjoyed. Justice Kennedy, describing some of these benefits, wrote as follows in the majority opinion:

“Under DOMA, same-sex married couples have their lives burdened, by reason of government decree, in visible and public ways. By its great reach, DOMA touches many aspects of married and family life, from the mundane to the profound. It prevents same-sex married couples from obtaining government healthcare benefits they would otherwise receive… It deprives them of the Bankruptcy Code’s special protections for domestic-support obligations … It forces them to follow a complicated procedure to file their state and federal taxes jointly … It prohibits them from being buried together in veterans’ cemeteries.”

After the Windsor decision, same-sex married couples did not face these burdens in California or other states that allowed same-sex marriage. However, it was not until June 26, 2015 that the Supreme Court ruled that all same-sex marriage bans were unconstitutional in Obergefell v. Hodges. This has a practical effect for same-sex couples in California that were already married: they can now freely move to any other state and that state will be required to recognize the marriage. This was an unsettled issue until Obergefell.

There are still unique issues that same-sex couples face. For example, what happens when a same-sex couple had a domestic partnership and then married after it became legal to do so in California? Does this couple have to both terminate the domestic partnership and dissolve the marriage? In cases like this, what is the length of the “marriage” for purposes of spousal support?
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life-after-divorce.jpgThere may have been a general consensus that the stress of a relationship ending and divorce are damaging to your health, but those effects do not have a long term impact. Researchers from the University College London institute of education, London School of Economics and London School of Hygiene and Tropical Medicine have studied the issue and have found that “transitions such as separation and divorce do not have a long-term effect.”

While this may not be great news while you are struggling through a divorce, it shows that the pain of ending a marriage, especially an unhealthy one, has no lasting effect on you. In fact, this study cites previous research which “suggests that individuals in poor-quality couple relationships have worse health than those in happier ones and those who are unhappily married are at greater risk of poor health than divorced people.” So, in other words, the move to end an unhealthy marriage has health benefits.

broken-heart.jpgRegardless, when going through a divorce you need a knowledgeable and caring attorney to help you navigate both the complexities of family law and who knows the emotional toll a divorce can take on a person. A knowledgeable attorney can ease the burden of a divorce by providing accurate information so you are not blindsided during court proceedings.
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San Diego is home to a great many families who serve our country in the armed forces. However, as is often the case, members of the military are deployed for periods of time away from home and separated from their families. Deployment is stressful for families, but takes on an added dimension after a divorce when parties have crafted a parenting plan for their child. What happens to your parenting plan when you are deployed overseas?

The State of California has made it a matter of public policy to ensure that a parent who is unable to follow a parenting plan due to their deployment is protected. California Family Code Section 3047 states, in part, that being deployed for military purposes shall not be a reason for a modification of a parenting plan on its own. It further states that upon a parent’s return from deployment there is a presumption that the parties’ return to the pre-deployment parenting plan. Any changes to that plan would require a showing that a reversion in not in the best interests of the child.

military-parenting-deployment.jpgThe courts have recently reiterated the importance of Section 3047 in Marriage of E.U. and J.E. which requires both a speedy resolution to custody matters for a parent returning from deployment and placing the initial showing on the non-deployed parent to show why a reversion is not in the child’s best interest. This ruling strengthens a deployed parent’s rights upon their return.
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Having to litigate the issue of child custody can be an emotionally exhausting process. Litigation also tends to fray the relationship between the parents and the resulting tension almost always affects the children in some form. Clients justifiably want to know: when will it end?

Under California law, the Court continues to have the power to make child custody and visitation orders until a child turns 18. The orders can be changed at any time upon the filing of a motion. However, this doesn’t mean that the Court starts from scratch each time a parent files a motion to change the parenting plan. Sometimes, the law requires that the Court apply the changed circumstances rule, which makes it significantly more difficult to change custody. In these cases, the Court must find that there are significant changed circumstances exigent to the health, safety, and welfare of the child before it changes custody.

So when does the changed circumstances rule apply? It applies when there is a “final judicial custody determination” as stated in the Montenegro v. Diaz California Supreme Court case. If the parents litigate the issue of child custody at a trial or post-judgment hearing, these custody orders would be “final” and subject to the changed circumstances rule. A stipulated custody order or judgment that contains a clear, affirmative indication that the parties intended the stipulation to be a final judicial determination of custody will also invoke the changed circumstances rule.

child-custody-co-parenting.jpgIt is important to note that there are many circumstances where the Court makes an order after a contested hearing, but the order is not considered final. Temporary child custody orders and custody orders made pursuant to a Domestic Violence Restraining Order request, for example, are not considered final judicial custody determinations. Therefore, the changed circumstances rule does not apply to these types of orders.

Even though a finding of changed circumstances may be required to change custody, the Court never has to find changed circumstances to make slight modifications to the visitation schedule, pursuant to the Enrique M. v. Angelina V. case. Adding an overnight, for example, would probably not invoke the changed circumstances rule. In these situations, the Court would apply the best interests of the child standard as set forth in Family Code section 3011.
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