Recently in Custody and Visitation Category

Don't Tell Mom about this... Co-Parenting Tips

March 17, 2015

co-parenting-don't-tell.jpgAll parents go through challenges, but co-parenting has unique issues that are not resolved by conventional problem-solving skills. For many parents, co-parenting can be a difficult adjustment, but you are not alone.

Many co-parenting problems can be resolved by having a conversation with the other parent. Other times, the use of a professional mediator, parenting coordinator or therapist can assist parents in formulating a plan or addressing co-parenting issues in a way that puts the interest of the child first. Still other times, intervention by the Family Court is the only solution. This blog discusses common problems faced by co-parents and some suggestions to address them.

The Other Parent Dislikes You

When relationships end, it is not uncommon for bad feelings to linger long after the separation. This can be especially difficult when there are children involved. While it may be difficult to be the bigger person in these situations, doing so will be better for your child in the long run. Keeping your children protected from these feelings is important, especially if your children are young. When your children are young, it can be difficult for them to fully understand the situation and process why their parents are not getting along.

If the other parent attacks you with disrespectful or vulgar words, you may need to take additional steps to protect yourself and your child from this type of behavior. In some cases, a Domestic Violence Restraining Order may be necessary. This decision is usually made when all other attempts to communicate with the other parent in a respectful and peaceful way have failed. Such requests are taken very seriously by the court, and should only be made when the circumstances warrant them. If you have any concerns about your safety and/or the safety of your child due to the actions of the other parent, you should contact the Family Court or an attorney who can assist you immediately.

You Never Agree with the Co-Parent

When you and the co-parent were in a relationship, if you disagreed with the other parent, one of you would give in or a compromise would be reached. During your relationship, you likely shared common values and beliefs about raising children. This often changes as time passes or when the relationship ends and two parents are raising a child together, but separately.

If you find that the co-parent never seems to agree with you, or that you never agree with the way the other parent is caring for your child, it is important to discuss these concerns together. It is possible to resolve many common parenting issues by sitting down and discussing expectations and beliefs about parenting. It is likely you and the other parent will have differences in the way you parent, but if the children's best interest is at the core of your co-parenting relationship, you should be able to find common ground. It may be necessary to seek the assistance of a mediator or therapist to assist in formulating a plan of action.

Your Child Says the Other Parent is Talking Badly About You

co-parenting-whisper.jpgThis is especially difficult when the messenger is your child. In some cases, the other parent is making direct comments to the child that reflects negatively on you. Other times, the co-parent makes comments to third-parties when the child is nearby and within earshot. Whatever the circumstances, this can be a difficult situation to handle. The last thing you should do is fight fire with fire. When children hear their parents talking badly about one another, it may cause them to feel worried or sad. These are feelings your child should not have.

You will need to speak with the other parent as soon as possible. As difficult as it may be, try not to be confrontational about the situation, as that may cause tensions to rise and the situation to worsen. You do need to be direct with the other parent, that even though your relationship has ended, you will continue to be connected to each other through the child. So while bad feelings may linger, the relationship needs to be respectful and polite for the child's sake.

If this does not resolve the situation, you may need to seek the assistance of the Court or an attorney to intervene on your behalf.

The Other Parent Breaks Agreements Often

If you find the other parent is breaking the court order or makes agreements with you and then breaks the agreements, it is important to address the situation immediately. Most child experts will tell you that children need consistency in order to thrive. If one parent is constantly breaking the court orders, it can be very difficult for the children to find this consistency.

You need to be firm and clear with the other parent that you will not stand for their violation of court orders put in place for the best interest of your child. Explain to the other parent that if they are unhappy with the court orders, you will discuss their concerns, but until a new agreement is reached, you expect the current orders to be followed. Make sure to document your attempts to work with other parent as well as a calendar of their violations of the orders.

If your attempts to work with the other side are not successful, it is important to contact your attorney or the court to intervene.

Co-Parent Neglects Child

I do not mean that the other parent is criminally neglectful, but rather neglects spending time with the child. This can be difficult in many ways. One, if the other parent and your child were close, it is difficult to see your child emotional over loss.

It can also be difficult to go from being a co-parent to a single parent where you are forced to shoulder all of the responsibility. You may need to look to family and friends to provide assistance. Discussing the situation with a therapist familiar with divorce and child custody issues can also be helpful.

Always keep the door open for the other parent to have a relationship with your child, but make sure the other parent knows it will be at a time that is convenient for you and the child.

In most cases, discussing the situation with the co-parent is the best route to go. In stressful or difficult situations, you may want to consider seeking out the professional help of a counselor or mediator. Whether the two of you work things out on your own or with the help of a professional, having an open mind and being flexible will yield the best results when problem solving. A co-parenting program like OurFamilyWizard.com can be helpful.

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SO YOUR EX QUIT THEIR JOB...NOW WHAT DO YOU DO? [Part One - Child Support]

March 10, 2015

quit-job-child-support.jpgWith the national economy making positive strides, and the unemployment rate down more than 4% from the same period in 2010, worry about involuntary termination of employment is less of a concern for parties' involved in a divorce cases in California.

But what happens if the other party voluntarily quits their job? The answer is nothing until one party files a motion to modify support. If the party who quit files a motion to reduce their support obligation, the court has the authority to "impute income" (assign income to a party that is not actually earned) to the party who quit their job.

The court distinguishes between earning capacity for child support orders and for spousal support orders. The application of the law, though similar, is different in some important ways. This blog will discuss the Court's authority to impute income to a parent for the purpose of setting child support. My next blog will discuss the application of income imputation to a former spouse for spousal support orders.

Family Code §4058(b) provides that the court may, in its discretion, consider earning capacity of a parent in lieu of actual income, consistent with the best interests of the children. The policy behind Section 4058(b), and the cases that have interpreted the meaning and application of the statute, is to further the state's policy that a parent's primary obligation is to support his or her children according to the parent's station in life and ability to pay. California has an overwhelming policy interest in ensuring both parents support their children to the best of their ability.

quit-job-child-support-court.jpgFor party to convince a court to impute income to the other party, they must provide evidence to the court of three important factors to prove "Earning Capacity". Those factors are, (1) the ability to work, including age, occupation, skills, education, health, background, work experience and qualifications; (2) the willingness to work exemplified through good faith efforts, due diligence and meaningful attempts to secure employment; and (3) an opportunity to work which means an employer who is willing to hire. These factors were set forth in a case called Marriage of Regnery. One way to prove these factors is to show the Court the other party voluntarily quit their job. The implication is the quitting party is still "able" to earn income at a level consistent with their past employment since it was their decision to leave. That is, but for the parent's decision to quit their job; they would still be earning income at that level. This argument was approved by the Court of Appeal in a case called Marriage of Eggers. In the Eggers case, the Court said, "When a supporting party quits a job, the trial court has the discretion to conclude the parent's conduct reflected a divestiture of resources required for child support obligations. [The Court] may refer to the former job as the basis for its findings of ability and opportunity and may impute income to the parent based on his or her prior earnings."

The Court's authority to impute income to a party is not limited to situations where the party quit their job. If one party refuses to get a job, or has been unemployed for a long period of time, the court may consider imputing earning capacity in these situations as well. In this situation, the party who wants to impute income will need to seek the assistance of an expert, called a vocational evaluator, to provide evidence of the 3 factors discussed above.

Child support requests, especially when they involve a request to impute earning capacity to a parent, can be difficult to navigate without the assistance of skilled family law attorney, so it is important to discuss your case with a qualified attorney.

Continue reading "SO YOUR EX QUIT THEIR JOB...NOW WHAT DO YOU DO? [Part One - Child Support]" »

Is the Other Parents Nanny Raising Your Child?

March 4, 2015

babysitter-raising-your-child.jpgCelebrities are not immune to the problems which arise when two people try to co-parent their child following a divorce or separation; just ask Wiz Khalifa and Amber Rose. It was recently reported that the custody battle between Mr. Khalifa, the Grammy nominated rapper whose songs include "Black and Yellow" and "Payphone", and Ms. Rose, the mother of his one-year-old son Sebastian, is heating up. In papers expected to be filed with the Court, the rapper alleges Ms. Rose is neglecting their son by staying out all night, and leaving their son in the care of family members or babysitters most of the time. According to reports, Mr. Khalifa alleges Ms. Rose has made a habit of only seeing Sebastian for a short time in the morning before leaving him in the care of others.

Child custody can be one of the most difficult aspects of a family law case. Often times, one parent will rely on family members or other caretakers to provide care for a child during their custodial time. This can be frustrating to the other parent who may be available to care for the child during these times. In today's society, where both parents often need to work to financially support themselves and their children, it is not uncommon to rely on family or third parties, such as babysitters or nannies to assist in caring for their child. Issues arise when one parent is deferring a majority of the child's care to others. If the other parent is using third parties to shoulder a majority of the responsibility to care for the child, it could be a basis to modify a custody order in favor of the other parent.

The burden of proof for such a request will depend on whether there has been a final judicial determination of the child's best interest. Final custody orders are usually made following a full trial on custody or as part of an agreement reached by the parties.

If there has been no final judicial determination of the best interest of the child, the parent seeking to modify custody must only show that the requested change is in the child's best interest. In the case of one parent deferring responsibility for the child to third parties, the parent seeking to modify the order will need to show that it is better for the child to be with them than with the third parties. If there has been a final determination of custody, in addition or making a showing of best interest, the parent requesting the change must also show there has been a significant change in circumstances since the last custody order. The reason for this additional burden is that Courts are reluctant to modify custody orders without a compelling reason in order to avoid unnecessary changes in a child's schedule. This additional burden also helps to prevent unwarranted requests to modify custody and visitation orders. This does not mean that such a request is impossible, in fact they are granted all the time. It just means that there is an additional hurdle to overcome.

In Mr. Khalifa's case, if he hopes to be successful, he will need to show that Ms. Rose's choice to leave their son in the care of third parties a majority of the time is not in their son's best interest. He will also need to show that it would be better for Sebastian to be in his care since he is available to parent the child personally.

If you think your child is being left in the care of third parties by the other parent for an unreasonable amount of time, then it is important that you take action. Allowing the situation to continue may be viewed by the court as your acceptance of the other parent's decision. These types of requests are very fact specific, so it is important to discuss your case with a qualified attorney. Our attorneys are skilled in all aspects of child custody litigation, including request to modify visitation. If you would like to discuss your rights under California's child custody laws, we encourage you to contact us as soon as possible.

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How Divorced Parents Should Properly Utilize "Our Family Wizard"

February 23, 2015

co-parenting-app.jpgAs previously blogged in my blog titled "Make Post-Divorce Co-parenting Easier with Apps," the Our Family Wizard software and database is a tool that many parents utilize and rave about. The program is particularly well-known in the family law community because attorneys and family professionals often encourage their clients to utilize the program especially in situations where the parents are in the middle of a highly contested custody case. In fact, as part of a divorce case, family law courts can even order parents to use the Our Family Wizard application.

If the program is used properly, it can significantly help keep high-conflict behavior under control. The possibility of having their lies, manipulations and aggressive behavior exposed through the app seems to deter abusive and inappropriate behavior between parents. However, in order to properly utilize Our Family Wizard and to get the most benefit out of it, it is important to understand everything that the program offers. It is known to be more than just a shared calendar. It gives users access to a variety of tools that help track parenting time, keep a schedule, share important information, track expenses and create communication between the parents. In essence, the program helps parents co-parent with less friction.

Although anyone can use the application, Our Family Wizard claims that it is specifically designed to reduce "the stress from communication and planning between parents who live in separate households." Often times in divorces, the children end up being the "middlemen" or used to relay information to the other parent. Our Family Wizard tries to avoid the children being caught in the middle by providing the parents with a joint calendar where they can create parenting plans, share activities, trade custody days and keep accurate records. There is also an information bank where the parents can share important information, such as the child's medical information, school information, and much more. It's in the children's best interest for the parents to collaboratively co-parent and avoid involving the children in the conflict.

The application also has a message board which keeps their communication secure and accurately documented. Especially in "he said/she said" cases this application, specifically the message board, can be extremely helpful to family law judges. One parent can't claim that he/she never got the communication because each message has a "read stamp" and is preserved in the database. Another great feature of Our Family Wizard is the expense log where the parents can track shared expenses and even make online payments from a checking/savings account.

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I've Been Selected as a Non-Professional Supervised Visitation Provider, Now What?

December 29, 2014

supervised-visitation.JPGAs discussed in my previous blog, "Supervised Visitation as a Safeguard in Divorce Cases," a family law judge may order supervised visitation when necessary to protect the safety of a child. A non-professional provider is typically a friend or family member of the parents who provides the supervised visitation services without pay. If you have been selected as the designated non-professional supervised visitation provider, then you will want to become familiar with your role and duties.

Supervising visitation is a very important responsibility and can be difficult. You must be able to not only follow the court order but also to set your personal feelings aside and have adequate time to supervise properly in a structured setting. Essentially, your role is to help contribute to the welfare of the child.

As the supervised visitation provider, your specific duties will include the following:
1) Get a copy of the court order from one of the parents, the parent's attorney or the Court Clerk's office. Read the court order so that you know the times, places, restrictions and other conditions of the visitation.
2) Do not allow the parent to discuss the court case with the child
3) Do not allow the parent to make derogatory comments about the other parent to the child.
4) Be present during the entire visit and make sure that you can clearly see and hear all conversations and contact between the parent and child
5) Avoid taking sides with either parent and instead remain a neutral third party
6) Although not mandated by law, you are encouraged to obtain training in identifying and reporting child abuse and neglect and to report any known/suspected instances of child abuse or neglect to the child abuse agency or child abuse hotline.
7) Do not allow any emotional, physical or sexual abuse. This may seem like a no brainer but remember that this includes spanking, tickling too hard, or even just threatening the child.
8) Do not allow visitation to occur when the parents appears to be under the influence of illegal drugs or alcohol.

supervised-visitation-flower.JPGIt's imperative that you are strict with setting rules and that you do not let the parent violate any of your rules or stray outside of the court order. Family Code Section 3200.5 specifically requires that "Each provider shall make every reasonable effort to provide a safe visit for the child and the noncustodial party. If a provider determines that the rules of the visit have been violated, the child has become acutely distressed, or the safety of the child or the provider is at risk, the visit may be temporarily interrupted, rescheduled at a later date, or terminated."

Spending time with a child in the presence of a third party supervisor can be very uncomfortable and awkward for both the parent and the child. However, acting as a non-professional supervised visitation provider can be rewarding to protect the welfare of a child and watch the relationship between a parent and child grow.

If you anticipate supervised visitation orders as part of a child custody battle, it is important to know that a lawyer can help you understand the process accurately. Our team can provide you with the caring and outstanding legal counsel you need and deserve. If you would like to discuss your rights under California's child custody laws, we encourage you to contact us as soon as possible.

Continue reading "I've Been Selected as a Non-Professional Supervised Visitation Provider, Now What?" »

Tips for a High Conflict Child Custody Dispute

custody-case-conflict.JPGDespite the oppositional nature of family law, many cases are able to proceed through the court system with little to no hostility between the parties. However, for a variety of reasons, some cases are so high conflict that the parties' lives are consumed by their family law matter. This high conflict case structure is particularly common if custody and visitation is in dispute. In addition to the emotional and mental drain a high conflict case has on both parties (and their child(ren), conflict also drains the financial resources of the parties especially if one or both parties have retained counsel. If you think your custody matter is high conflict, here are a few tips on how to reduce further tension between you and your co-parent.

Adult Issues are for Adults: Although children have substantial information about your co-parent, never discuss custody/visitation or any other adult issues with children. Not only are such conversations detrimental to the children, but if discovered, could be used against the parent and result in reduced (or even supervised) visitation time. Further, must custody/visitation orders contain direct prohibitions restricting both parents' communication with the children about the pending case and any other adult matters. Thus, such conversations may be treated as a direct violation of a court order and could result in sanctions imposed against the offending party.

Implement only the Current Order: In a high conflict case, giving or requesting "one time" adjustments to the current custody/visitation order often leads to more problems. In these cases, it is best to stick to the exact language of your custody/visitation order or agreement. Further, when the court makes custody/visitation orders, it is important to request that the court be as specific as possible. This same rule applies to any negotiated custody orders. For example, ensure the order specifies the date, place, and manner of transfer for all exchanges. In addition, lay out a clear plan for holidays, school breaks, and special occasions. It is also important to limit the child's exposure to potential domestic conflict or violence and ensure the safety of all people involved.

custody-case-email.jpgCommunication is Key: Conflict tends to arise out of frequent negative communication between the parties. Communication could be considered harassing due to its volume or the tone of the parties' exchange. If one or both of the parties have "unfinished business" with each other after the break down of their romantic relationship, they sometimes try to hold onto that former relationship by attempting to "get to" the other parent through an ongoing custody battle. In order to avoid this type of conflict, make sure all communication is in writing (except in the case of an emergency). Restrict the topic of communication only to matters related to the children and keep a friendly tone with your co-parent. In some cases, the parties use a service called Our Family Wizard which records the written communication between the parties and makes it accessible to attorneys and even the judge on the case. Often, when parents are aware their communication is being monitored (particularly by the judge in their case), they tend to speak more civilly to each other.

We understand that this is a sensitive situation that could greatly affect your family and your relationship with your children, and our team can provide you with the caring and outstanding legal counsel you need and deserve. If you would like to discuss your rights under California's child custody laws, we encourage you to contact us as soon as possible.

Continue reading "Tips for a High Conflict Child Custody Dispute" »

False Allegations of Child Abuse - Penalties for the Accuser

false-allegations.jpgIn family law, especially cases involving custody and visitation disputes, it can be tempting for litigants to make false allegations in order to get ahead in their cases. However, false accusations have no place in family law and in fact may be severely punished if discovered. San Diego family law judges take allegations of child abuse seriously and tend to err on the side of caution if there is any doubt to an allegation of abuse. There are three main statues which were enacted, in part, to deter the use false allegations of abuse as a litigation tactic by providing the following remedies to the falsely accused.

Supervised Visitation or Limited Custody/Visitation: Family Code § 3027.5 provides that the court may order supervised visitation or limit a parent's time with the child if the court finds the parent knowingly made false accusations of child abuse against the other parent. In order to prevail on a claim brought under this code section, the accused parent must also show that the accusations were made with the intent to interfere with the other parent's lawful contact with the child (particularly during the pendency of a custody proceeding). The court will also take into consideration whether supervised visitation or limited custody/visitation is necessary to protect the child's health, safety, and welfare balanced against the child's interest to have frequent and continuing contact with both parents.

false-allegations-child.jpgSanctions: Family Code §3027 provides family courts with authority to impose monetary sanctions upon any witness, party or party's attorney who knowingly makes false child abuse or neglect accusations during custody proceedings. The amount of the sanctions imposed will be calculated based on all costs incurred by the accused as a direct result of defending the accusation plus fees and cost associated with bringing the sanction request. It is important to note that the court may impose monetary sanctions in addition to (not in lieu of) any additional remedies requested. The requesting party, however, must be sure to bring his or her claim for sanctions within a reasonable time after clearing his or her name.

Mandatory Reconsideration of Custody Order: A parent falsely accused of child abuse or neglect has the option of pursuing criminal charges or a civil action against the accusing parent. If the accusing parent is convicted of a crime in connection with false allegations of child against the other parent, the falsely accused parent may move for reconsideration of the existing child custody order. A parent's motion for reconsideration of such an order must be granted under these circumstances.

We understand that this is a sensitive situation that could greatly affect your family and your relationship with your children, and our team can provide you with the caring and outstanding legal counsel you need and deserve. If you would like to discuss your rights under California's child custody laws, we encourage you to contact us as soon as possible.

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Supervised Visitation as a Safeguard in Custody Cases

December 8, 2014

supervised-child-visitation.jpgThe state of California has a public policy to promote the best interest of the child when his/her parents have a custody or visitation matter in family court. In addition to promoting frequent and continuous contact with the child, the courts must make sure that the child is safe and protected. Sometimes as a safeguard in order to protect the safety of a child, a family court judge will place limits on the non-custodial parent's visitation with the child and order what is known as supervised visitation.

Supervised visitation means that a child may only have visitation with the non-custodial parent when a neutral third party is present to supervise the visit. The third-party can be a professional or a therapeutic provider who has experience and is trained in providing supervised visitation. Professional and therapeutic providers typically charge an hourly fee to supervise the visitation. The third-party may also be a non-professional provider, like a family member or family friend who is qualified under specific criteria and agrees to supervise the visitation (typically at no cost to the parties).

supervised-child-beach.jpgA family court judge may order supervised visitation for a variety of reasons in which there is a concern about the protection and safety of a child. For instance, allegations of neglect, substance abuse, domestic violence or child abuse will likely warrant supervised visitation. Supervised visitation may also be ordered when there is a threat of kidnapping or there is a concern of mental illness. Additionally, if the parent has been absent in the child's life for a significant period of time or there is a lack of relationship between a parent and child, supervised visitation may be necessary to help introduce the parent and child.

A court order for supervised visitation will specify when the supervised visitations will take place and for how long they will last. Sometimes the court order will also specify where the visitations are to take place and who exactly will be the designated supervisor. Depending on the circumstances, a court may even order that the supervised visitation only take place within a visitation facility.

Ultimately, the goal of supervised visitation is to protect the child and to get the family in a position where supervision isn't necessary. A court will continue to monitor a case to determine if supervised visitation is still necessary or if it can be lifted to unsupervised visitation.
We understand that this is a sensitive situation that could greatly affect your family and your relationship with your children, and our team can provide you with the caring and outstanding legal counsel you need and deserve. If you would like to discuss your rights under California's child custody laws, we encourage you to contact us as soon as possible.

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Getting the Kids Back to School for Newly Divorced Parents

divorce-school-1.jpgThe beginning of a new school year is an exciting and stressful time for children and their parents. Parents are worried about getting their children clothes for the cooler season, school supplies for new classes, and making sure they get back into the rhythm of homework and extra- curricular programs. If you are recently divorced, getting the kids back to school will be even more challenging and it is important to consider different issues which tend to arise. The following is a list of tips for newly divorced families to help ensure the first transition back to school is successful for the children.

Have a Meet and Greet with the New Teacher

It is important to the success of your child that parents and teachers are on the same page regarding the child's education and any behavioral issues. Especially if your child is established at his or her school, it may be a good idea to discuss your recent divorce with your child's teacher. Let the teacher know about the new custody and visitation arrangement and how your child is handling the divorce. Teachers at the school may be used to only calling or emailing a particular parent whenever an issue arises. To ensure the lines of communication are open, ask the new teacher to provide duplicate handouts to your child and to update both parents whenever he or she has information to report. That way both parents can stay equally involved in the child's education.

divorced-school-kids.jpgUpdate Contact Information with the School
Many divorcing parents opt to sell their marital residence in order to reduce overall costs for the two households which now must be financed. It is important to make sure your child's school is aware that your child has moved, if applicable. In addition, your child's school should have updated contact information for both parents.

Coordinate Child Sharing with your Co-Parent - not your Child
Now that a new school year has started, there are a lot of small details to be worked out regarding who will drop the child off at school, what time school starts, who will pick the child up from school, making sure homework is completed on time, and scheduling extracurricular activities. It is important to work these details out with your co-parent without involving the children. Putting the children in the middle of these discussions is stressful and confusing. Try to stay organized with your co-parent so that the children have a smooth transition between school and their two new homes.

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Does My Child's Custody Preference Count?

September 17, 2014

childs-custody-preference.jpgAt the core of a custody dispute in a divorce is your child. You may think that the child should be in your sole custody but your spouse might wholly disagree and think that the child should be in his sole custody. The court will take the both sides' arguments into consideration when determining custody division. But when will the Court look to the child and ask for his/her preference for living with mom and/or dad? Does the child even get a say in the matter?

The conventional thought has typically been that a courtroom is not a place for a child and as mature adults we should not be directly entangling children in custody disputes. Consequently, there was a time in California when a child's preference regarding custody after his/her parents divorced really wasn't considered by family law judges unless the child was in his/her late teenage years. However, a child's preference regarding which he/she lives with, how the child can make that preference known to the court and the appropriate age for a child to be able to make a choice has evolved over the years.

Family Code Section 3042 became operative in January 2012 and changed the game with regard to a child's custody preference. Family Code Section 3042 provides that: "If a child is of sufficient age and capacity to reason so as to form an intelligent preference as to custody or visitation, the court shall consider, and give due weight to, the wishes of the child in making an order granting or modifying custody or visitation." Although the law does not require children to testify, if the child is 14 years of age or older and wishes to address the court regarding his/her preference for custody or visitation, the court is required to hear from that child absent a good cause finding that it would not be in the child's best interest to do so (and the judge states the reasons on the record). If the child is under the age of 14 and wishes to address the family law court regarding his/her custody preference, then the court may allow the child to testify "if the court determines that it is appropriate pursuant to the child's best interests." California Rules of Court 5.250 is intended to implement Family Code section 3042.

The above changes in the law are significant considering that previously courts seldom allowed children to testify. Again, no law or court rule requires children to participate in the custody proceedings in court. However, when a child wishes to participate, the court must balance its duty to consider the child's input with its duty to protect the child. While family law judges have the discretion to listen to a child's custody preference, this does not mean that the judge will follow every aspect of the child's preference.

Regardless of whether you are the parent who seeks custody based on your child's preference or you are the parent opposing your child's preference, we understand that this is a sensitive situation that could greatly affect your family and your relationship with your children. Our team can provide you with the caring and outstanding legal counsel you need and deserve. If you would like to discuss your rights under California's child custody laws, we encourage you to contact us as soon as possible.

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My Child is 18 - Why Do I Have to Pay Child Support?

graduation-child-support.jpgIn California child support cases, the parties may be surprised to learn that a parent's duty to financially support his or her child may continue after the child becomes a legal adult at the age of eighteen (18). This idea is often confusing to the parties because child support is inextricably linked to the time the child spends with each parent. Generally, the more time the supporting parent spends with the child, the lower the child support amount will be. On the other hand, the lower the amount of time the supporting parent spends with the child, the higher the child support obligation will be.

Pursuant to Family Code section 3901, "the duty of support imposed by [Fam. Code §3900] continues as to an unmarried child who has attained the age of 18 years, is a full-time high school student, and who is not self-supporting, until the time the child completes the 12th grade or attains the age of 19 years, whichever occurs first". As stated in this code section, even if a child attains the age of 18 years, a parent will still be obligated to financially support the child until the child finishes high school. However, despite the ability of the family court to order child support, the court cannot make corresponding custody and visitation orders of an 18 year-old adult. Therefore, a parent may be ordered to pay child support for a child who is not required to spend specified time periods with either parent.

graduation-support.jpgConsidering the fact that timeshare with the children is such a major factor in calculating child support, parties are faced with a conundrum when one child requiring financial support is a legal adult and cannot be forced to comply with a custody and visitation order. In these cases, the court bases child support on actual timeshare instead of timeshare which is ordered pursuant to a custody and visitation agreement or order. This means that if the 18 year-old student does not want to spend time with the supporting parent, child support will be calculated with the supporting parent have minimal time with the child. As a result, the supporting parent's child support obligation will be higher than if the parties shared equal time with the child.

Cases where a child does not want to spend time with one or both parents are very difficult. If you feel like the relationship between your child and you and/or your former spouse is deteriorating, it is important to discuss your options with your divorce attorney to work towards repairing that important relationship before the child turns 18.

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Hague Convention - Return of Abducted Children

child-abduction.jpgMany countries, including the United States, have become members of the Hague Convention. The Hague Convention contains an Article on the Civil Aspects of International Child Abduction. Pursuant to the child abduction provisions, the court "shall order the return of a child forthwith" upon proper petition of the court if a child has been wrongfully removed from another country. This creates a nearly automatic return order for any children in the United States which have been wrongfully removed from other countries. However, there is one small catch. The provision ordering the immediate return of a child only applies if a petition requesting the return of the child has been made within one year of the child's wrongful removal.

The one-year period attached to the child abduction provision of the Hague Convention has caused a growing split between lower courts. Some courts held that the one-year period is tolled (essentially put on pause) when the abducting parent has concealed the location of the child. Other courts held that the Hague Convention does not contain a provision tolling the one-year period and therefore, courts cannot impose one. In March 2014, the United States Supreme Court handed down the deciding vote and determined that United States courts cannot toll the one-year period for parents to file a Hague petition requesting a child's immediate return.

The U.S. Supreme Court based its decision largely on an analysis of the best interest of the abducted children. The Court reasoned that, regardless of whether a child's whereabouts were concealed, the child would likely be settled in a new place after a year had passed. Ordering automatic return of the child would uproot him or her from his or her newly established life, which may be detrimental to the interests of the child. In addition, the Supreme Court relied on the fact that the drafters of the statute could have included exceptions to the one-year period but did not.

In a concurring opinion, one Supreme Court Justice pointed out that although U.S. courts cannot toll the one-year period, judges still have the ability to return the child after the one-year period. If the judge determines that the factors favoring the child's return outweigh the factors favoring the child being settled in a new home, the court may order the child returned. In addition, the court may take the concealment of the child into account when weighing all of the appropriate considerations. In sum, the Supreme Court's ruling does leave a loophole open for courts to order the return of child when it is in the child's best interest to do so.

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What if my teenager doesn't like the court order?

custody-visitation.jpgSo, you have battled with your former spouse in court, attended countless hearings and mediation sessions, spent thousands of dollars on attorney fees and finally won primary physical custody of your child. Most parents are willing to deal with the pain of litigation, the financial stress of attorney fees, and the long court delays if it means getting to spend more time with their child. However, it can be devastating to discover that after all of your sacrifice to get more time with your child, your child does not want to live with you. For a variety of reasons, this is not an uncommon result at the end of a custody battle.

The first consideration in determining the proper reaction to a child's preference on where he or she would like to live is the age of the child. If the child is around age ten (10) or younger, it is important to be speculative regarding the motivation behind his or her preference. Especially in a contentious custody battle, parental alienation may be a factor influencing the child. The child may also prefer to live with one parent over another because that parent is more lenient and lacks discipline. However, more serious issues such as alcoholism, drug use, or abuse may be causing the child to vocalize his or her parental preference. If the child displays a strong aversion to spending time with one parent, the court will likely order an evaluation and depending on the findings, modify custody and visitation. However, at such a young age, the child's preference is not dispositive.

custody-visitation-choice-01.jpgIf the child is a teenager it is much more difficult to set aside his or her strong preference to live with one parent versus the other. As long as alcoholism, drug use, and abuse are ruled out as factors in the case, the teen's preference should be given serious thought. One of the most difficult jobs of a parent is to put the best interests of the child ahead of his or her own. If you were awarded primary physical custody of your teen by the court, but your teen would prefer to live with your former spouse you have the option of permitting the teen to do so. Often children are unable to see the full picture; therefore, it is important to consider whether (considering your teen's preference) it would be in the best interest of the child to live with the other parent.

If you have decided to deny your teen's request to live with your former spouse, that decision may have a negative impact on your relationship with your teen. Your teen may resent you and this hostility could create a stressful living environment. In some cases, respecting your teens wishes can strengthen the parent-child relationship. Ultimately, where a teen will live is up to his or her parents and in each case the parents will have to decide what is best for their child in their unique case.

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Reluctant to Visit - Parental Alienation

Parent-visitation-mom.jpgOne of the most heart wrenching parts of divorce is its effect on the parties' children. Even the most amicable divorce will have a great impact on a child's life; however, the more tension that grows between the parents, the more trauma the child will experience. Unfortunately, it is not uncommon for parents to (intentionally and unintentionally) involve children in adult issues including their divorce. One common result of a child's over involvement in divorce litigation is parental alienation. If one parent is unable to protect the child from his or her own negative views the child may become alienated from the other parent.

Definitionally, parental alienation is a disturbance in the relationship between a parent and a child. The child may express feelings of distrust or even hatred for one parent while being inexplicably aligned with the other. A common indicator of parental alienation is the strong reluctance of the child to visit with the alienated parent. In family law cases, by court order or agreement of the parties, a parenting plan will be put in place. As part of the parenting plan, both physical and legal custody will be allocated between the parents. Legal custody is the right of a parent to make decisions regarding the health, safety, and welfare of the child. Physical custody is timeshare of the child between the parents. One parent may have primary physical custody of the child meaning that the child will live a majority of the time with that parent. If one parent has primary physical custody, the other parent will likely have visitation with the child.

Parent-visitation.jpgWith a court order for visitation, a parent is legally entitled to spend the specified times with his or her child. However, what is the parent supposed to do when the child absolutely refuses to go with him or her for visits? In parental alienation cases, when an exchange is scheduled to take place, a child may cry, kick, scream or even make a public scene in order to avoid visiting with the alienated parent. In these situations it becomes the responsibility of the non-alienated parent to encourage visitations. Refusing to follow the custody and visitation orders (despite the wishes of a child) can result in sanctions or even a loss of custody for the primary care parent. Although both parents may carry guilt regarding the divorce, it is important for them to foster a healthy relationship between the child and the other parent.

If you believe parental alienation may be occurring with your child, it is important to immediately consult with an experienced family law attorney. A family law attorney can seek court intervention in order to initiate an investigation into your case. Further, family courts can make appropriate orders to get your child the help he or she needs.

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Joint Custody but Different School Districts

June 24, 2014

custody-school-choice-001.jpgOnce parents have split and begin residing in separate homes, a common issue in divorces involving children is the decision of where the child will go to school. This is particularly of concern when the parents begin residing in different school districts and don't see eye to eye on where the child should be getting their education. It wouldn't be fair to make the child switch schools each week when he/she switches households. So, who decides where the child will go to school in this situation?

Determining where your child will go to school depends on the parties' custody agreement that has been made an order of the court. There are two types of custody in a divorce case, physical custody and legal custody. Physical custody refers to where the child will live after separation or divorce. Legal custody, on the other hand, refers to who will have the right to make major decisions about the child's health, welfare and education.

If one parent is awarded sole legal and physical custody of the child then the decision of where that child will go to school is left solely up to that parent and typically based on that parent's residence. The other parent won't have any legal rights to chirp in regarding where to enroll the child. However, in many California divorces, the parents are awarded joint physical and legal custody of their children. This means that both parents will have significant periods of physical custody such that the child has frequent and continuing contact with both parents. Additionally, both parents will have equal rights to make decisions about the child's education. This often becomes a problem when the parents reside in different school districts and their preferences don't align regarding where the child should attend school.

custody-school-calendar-001.jpgUnless the custody agreement provides otherwise, the child will typically be able to attend school in either the school district in which mom resides or the school district in which dad resides. One parent may prefer his/her school district because it will be easier for transportation purposes. Or maybe the other parent thinks that his/her school district has a better sports team for the child. Whatever the parent's reasoning may be, the issue needs to be resolved before the school year begins. If the parents are unable to reach a mutual agreement on which school their child will attend, then the issue will need to be litigated.

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