Recently in Divorce and Children Category

False Allegations of Child Abuse - Penalties for the Accuser

December 15, 2014

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.

Continue reading "False Allegations of Child Abuse - Penalties for the Accuser" »

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.

Continue reading "Supervised Visitation as a Safeguard in Custody Cases" »

Changing My Child's Last Name After Divorce

October 6, 2014

last-name-change.JPGChild actor, Corey Feldman, and his wife Susie were married in 2002 but later separated in 2009. Their divorce was recently finalized and according to the court documents that TMZ obtained, Susie gets to keep the couple's 2002 Hyundai but not her surname. Apparently, Susie agreed to return to her maiden name of Sprague post-divorce. But what about their 10 year old child - can Susie change his last name to her maiden name also?

The issues of child custody and child support are hot topics in a divorce. However, one issue related to the children that is not very commonly addressed is the issue of the child's last name. Even though the Wife may choose to change her last name back to her maiden name, the parents usually don't dispute their children keeping their last name. However, in some cases a parent (typically the mother) will want to change not only her last name but also the child's last name.

As is the case with other decisions about children during a divorce proceeding, the Court's focus is on what is in the best interest of the child. Generally, you cannot change your child's last name simply because you are divorcing your spouse whose last name the child has. Rather, petitioning the Court to change your child's last name is typically done in a separate legal action after a divorce and some Court's will consider it if it is clearly in the child's best interest. Courts will consider several factors, including the length of time the child has had his/her current last name, the need of the child to identify with a new family unit (if there has been a remarriage), the strength of the child's relationship with his/her father, any benefits to changing the last name and any negative impacts the child would suffer as a result of changing his/her last name. Ultimately the Court must decide what is in the child's best interest.

Some circumstances that may specifically warrant a change of the child's last name include the following: When the biological parent has terminated his/her parental rights, when the biological parent was abusive or engaged in criminal behavior or when the child has been adopted by a step-parent.

It's important to note that even if the Court does decide to grant a name change for the child, this will not affect the legally recognized identity of the child's biological father. In other words, the father's relationship with the child as it relates to his rights to custody/visitation, his obligation for child support and rights of inheritance will not be affected simply by the changing the child's last name.

Continue reading "Changing My Child's Last Name After Divorce" »

Kris Jenner Files for Divorce

September 25, 2014

jenner-bruce-kris.jpgAfter more than twenty (20) years of marriage, matriarch of the Kardashian clan filed for divorce from Olympic gold medalist, Bruce Jenner. The couple announced their split in October 2013, but continued to work to figure out their relationship on the reality show Keeping up with the Kardashians. The couple began to live separate and apart when Bruce moved out of the family home and into his own place in Malibu, California. However, they continued to take family vacations together and celebrate family events. In September 2014, Kris filed a Petition for Dissolution citing June 2013 as the parties' date of separation - a few months earlier than previously announced. Shortly thereafter Bruce filed a Response to the Petition citing the same date of separation.

The date of separation is a crucial consideration in any divorce proceeding. Regardless when either party files a divorce petition, the marital community ends upon the date of separation. The date of separation occurs when one party has determined there marriage is over and his or her actions evidence that decision. Typically, all the earnings and accumulations of the parties from the date of marriage through the date of separation are community property. This means that those earnings and accumulations will be equally divided upon divorce. Since Bruce and Kris agree they separated in June 2013, all earnings and accumulations of either party after that date are the separate property of that party.

Pursuant to the filings, the parties agree to share joint legal and physical custody of their seventeen year-old daughter, Kylie. Out of the ten (10) children Kris and Bruce have collectively only one of their children is under the age of eighteen (18). In reality, Kris and Bruce will not likely share custody of Kylie in the normal sense of a "week on week off" schedule or "every other weekend" plan. As shown on their reality show, Kylie generally travels between her parents as her busy schedule permits. Both parents have encouraged Kylie to spend quality time with the other.

According to sources close to the Kardashian's Kris and Bruce's respective managers have worked out the fine details of their divorce during the past eleven (11) months of their separation. As a result, the divorce process should be relatively quick. One incentive for celebrities to reach agreements outside of the court system is privacy. As long as the Jenner's have reached an agreement on all issues, they will likely be required to file many more documents to officially wrap up their divorce. In addition, the Jenner's have the option to file an abbreviated version of their final judgment, keeping the specific terms out of reach for the public.

Continue reading "Kris Jenner Files for Divorce" »

Getting the Kids Back to School for Newly Divorced Parents

September 19, 2014

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.

Continue reading "Getting the Kids Back to School for Newly Divorced Parents" »

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.

Continue reading "Does My Child's Custody Preference Count?" »

Questions to Ask Yourself Before Filing for Divorce

August 18, 2014

divorce-questions.jpgThinking about or talking about the possibility of divorce is very different than actually taking affirmative steps to file for divorce in Family Court. Moving forward with this step can take a significant amount of mental and emotional strength. If you're still in the thinking or talking stages of a potential divorce, ask yourself the following questions to help determine if you are ready to take the next step and file for divorce from your spouse.

1. Are you Facing a Hard or Soft Problem?
The need for a divorce may be more immediate if you are in a situation where you are facing a "hard problem" as marital therapists like to call it. "Hard problems" include situations in which you are facing abuse from your spouse or your spouse has an untreated addiction. If this is the case, you may want to act fast and stop just dwelling on the possibility of divorce. However, if you are facing a "soft problem" maybe you need more time to decide if you and your spouse can work on the problem or if a divorce is the preferable option. "Soft problems" include things such as feeling as if you've grown apart from your spouse, that you're unhappy in the relationship or that you aren't in love anymore.

2. Are You and Your Spouse Even Compatible?
What are your odds of succeeding as a married couple? Perhaps taking a "Rate Your Mate" quiz (http://www.divorcenet.com/interest/rate-mate-compatibility-divorce-test.htm) will help you determine if you're destined for doom, in which case you might as well just go ahead and prepare those divorce papers. The "Rate Your Mate" quiz tests areas such as common interests, money, mutual respect and personal safety, which are common issues that many couples face.

3. Should You Stay Together for the Kids?
There are two opposing schools of thought: 1) stay together because divorce is destructive to children; or 2) get a divorce because if the parents are happier the children will ultimately be happier. If you are contemplating divorce and you have children with your spouse then you should think about whether it's in your children's best interest if you stay with your spouse or split. Many couples prefer to wait until their children have turned 18 and left for college before they decide to get a divorce. But if your children are young, this might not be a realistic option for you. Also, if your marriage is filled with havoc and constant fighting then staying together for the kids might actually be hurting, rather than helping your kids.

4. Are You Ready to Part With Some of Your Stuff?
Your house, your cars, your furniture and furnishings...these are all things that were likely acquired during your marriage and will be subject to division during a divorce. Getting a divorce means parting with some or all of these "things" in order to divide assets with your spouse. For instance, in many divorces, where one party cannot afford to keep the home and "buy out" the spouse, the family home will need to be listed for sale. Even though you can likely negotiate with your spouse to keep certain items or assets, you will need to accept the reality of parting with some of your stuff. If this idea seems too traumatic for you then you should re-evaluate whether or not a divorce is the route that you want to take.

Continue reading "Questions to Ask Yourself Before Filing for Divorce" »

Hague Convention - Return of Abducted Children

August 7, 2014

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.

Continue reading "Hague Convention - Return of Abducted Children" »

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

July 15, 2014

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.

Continue reading "What if my teenager doesn't like the court order?" »

Should I Stay Friends with my Ex's Family After Divorce?

July 8, 2014

staying-friends-couple.jpgEnding a marriage, doesn't necessarily mean that you have to cut all ties with your ex spouse's family. Or does it? When your spouse brought you into that family, they were expected to welcome you with open arms and treat you like part of the family. Then when you actually got married, you not only gained a husband/wife but also a whole new family. So now that you are no longer the husband/wife of your ex-spouse, does this mean that you can no longer have a relationship with his family too?

When considering whether or not to stay close with your ex's family post-divorce, it's important to first think about the underlying cause of your divorce. Sure your divorce papers might have said the cause was "irreconcilable differences". But what was the root of those "irreconcilable differences?" Was it bad behavior, such as abuse, addiction or infidelity on your ex's behalf? If so, perhaps staying close with your ex's family might cause you to re-live the pain that you went through with your ex-spouse. On the other hand, your ex-spouse's family might be more willing to offer you the support that you need and that you didn't receive from your spouse. It's important to keep in mind though that your ex's family will inevitable stay loyal to your ex so you need to be sure to know where your boundaries are and exercise caution.

Another consideration is what message it will send to your children if you stay close friends with your ex's family. In many cases, this will be helpful for your children because your continued relations with your kids' extended family will help ensure that they don't suffer more loss of relationships as a result of your divorce. If the kids see that you are staying friends with your ex's family then the whole divorce might appear to be a bit less dysfunctional for them. And maintaining a pleasant family environment for your children is likely to help them through this transition in their life.

staying-friends.jpgLastly, before rushing to hang out with your ex sister-in-law on a daily basis or having your ex mother-in-law over for dinner every night, think about how your continued relationship will affect your ability to rebuild your life and move on from your ex. Can you really begin to focus on yourself if you haven't given yourself the opportunity to let go of the past? Perhaps maintaining such close ties with your ex's family will prevent you from accepting that the marriage is really over. On the other hand, maybe your ex-family is all that you really have and their support and friendship will help you get through this difficult transition in your life.

Continue reading "Should I Stay Friends with my Ex's Family After Divorce?" »

Reluctant to Visit - Parental Alienation

July 1, 2014

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.

Continue reading "Reluctant to Visit - Parental Alienation" »

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.

Continue reading "Joint Custody but Different School Districts" »

Keeping Kids a Top Priority During a Custody Fight

June 20, 2014

custody-dispute-001.jpgA custody battle is all about your children so your actions and behavior during the custody battle should also be all about the children and making sure that they are the top priority. Below are some tips for things to do or not do if you are fighting for custody of your child or children:

1) Do not discuss legal matters around your child. No matter how angry or upset you are with your spouse, your child is not the person you should be venting to about the divorce. Consider meeting with a therapist or at least save the divorce discussions for your adult friends.

2) Despite the anger and resentment you may have towards your soon to be ex-spouse, do your best to encourage your child to have a relationship with your soon to be ex-spouse. It's important for a child to have both a mother and father role model in his/her life.

3) Avoid separating your child from your soon to be ex-spouse's family members (i.e. grandparents, aunts, uncles, etc.). Remember that just because you and your spouse have chosen to call it quits doesn't necessarily mean your child should have to forfeit his/her relationships with extended family members. Also, when you feel the urge to say something bad about your ex's family members, remember that even after the divorce your child will still be related to them even though you will not.

4) If you have been ordered to pay child support, do not withhold that support just to punish the other parent. By doing so, you will ultimately be punishing and deprived your child as child support is meant to help out with expenses related to the child.

5) Respect your spouse's privacy rights when your child is in his/her care. As much as you may want to snoop on your spouse and make sure that your kids are being taken care of, the more respect you show your spouse then more you will likely receive in return. Additionally, so long as your child is not in danger, avoid trying to control every move of what your child does while in the custody of your spouse.

6) Be open to the possibility that a 50/50 shared custody arrangement may not be in the best interest of your child. Keep your child's unique needs in mind. This is especially true if you have a special needs child who may not react well to change and different environments.

Continue reading "Keeping Kids a Top Priority During a Custody Fight" »

More than Two Legal Parents Recognized in California Family Law Courts - Part 2

May 12, 2014

multiple-parents.jpgAs blogged about in Part 1 of my previous blog entitled "More than Two Legal Parents Recognized in California Family Law Courts" new legislation was enacted changing the traditional perception of "family" in the California court system. Until recently, children were presumed to have only one or two parents. Having three parents was not even a consideration. However, under the new law, which went into effect January 1, 2014, Courts are now able to recognize that a child may have more than two legal parents.

The modification of Family Code Section 3040, as discussed in Part 1, gives the Court authority to allocate child custody and visitation among all parents in the case of a child with more than two parents. Such allocation must be based on the best interest of the child, including stability for the child by preserving established emotional bonds and patterns of care that the child has had. While the modification of Family Code Section 3040 focuses on custody and visitation, the addition of Family Code Section 4052.5 sheds light on the Court's authority to allocate child support when a child has more than two parents.

Family Code Section 4052.5 dives deeper into the realm of recognizing that a child can have more than two legal parents and gives family law courts the authority to divide child support obligations among all parents under certain circumstances. Specifically, Family Code Section 4052.5 provides, in part, the following: "The statewide uniform guideline, as required by federal regulations, shall apply in any case in which a child has more than two parents. The court shall apply the guideline by dividing child support obligations among the parents based on income and amount of time spent with the child by each parent, pursuant to Section 4053." However, this section further provides that "... the presumption that the guideline amount of support is correct may be rebutted if the court finds that the application of the guideline in that case would be unjust or inappropriate due to special circumstances, pursuant to Section 4057. If the court makes that finding, the court shall divide child support obligations among the parents in a manner that is just and appropriate based on income and amount of time spent with the child by each parent." [emphasis added]. In other words, the Court may deviate from statewide uniform guideline in the case where a child has more than two parents, when it is just and appropriate to do so.

multiple-parents-kid.jpgGiving Courts the discretion to allocate child support obligations (or receipt of child support) to more than one parent is significant because it allows for the financial responsibility of a child post-divorce to be distributed among all parents who are involved in raising the child based on each parent's income and respective time spent with the child. As a result, children are afforded the legal opportunity to be financially supported by all of the adults that play a central role in his or her care.

Continue reading "More than Two Legal Parents Recognized in California Family Law Courts - Part 2" »

More than Two Legal Parents Recognized in California Family Law Courts - Part I

May 10, 2014

three-parent-family.jpgIf you open up a fresh copy of the 2014 Family Law Code and do some heavy reading, you might notice the modifications to Section 3040, 4057, 7601, and 8617 as well as the addition of Section 4052.5. Back in October 2013 new legislation was signed which now allows California Courts to recognize that children can have more than two legal parents. Although conservative groups viewed this new legislation as an attack on the traditional family structure, the purpose of these new and modified sections is to address changes in family structure that are often present in California. These include the "not so uncommon anymore" situation of a same-sex couple having a child with a biological parent of the opposite sex.

The basis for the legislation apparently arose as a reaction to a 2011 court decision (In re M.C (2011) 195 Cal.App.4th 197) that involved a same-sex couple who ended their relationship for a brief amount of time. One of the women conceived a child with a man (and began raising that child with the man) prior to resuming her relationship with the other woman, whom she ended up marrying shortly thereafter. After a fight put one of the women in the hospital and the other in jail, the child was sent to foster care because although all three adults seemed to meet the criteria to be a legal parent of the child, the biological father did not have parental rights under the law at the time. The court reasoned that it was prohibited from recognizing that more than two people may claim a right to parentage.

In response to the Court's ruling in In re M.C., the Family Code was modified to give Courts the authority to expand the interpretation of the parent and child relationship. Specifically, Family Code Section 7601 provides that Courts are not precluded from making "a finding that a child has a parent and child relationship with more than two parents."

three-parent.jpgAllowing the Courts to recognize that a child may have three or more legal parents is quite significant for purposes allocating custody and financial responsibility during and after a dissolution proceeding. With regard to the allocation of custody and visitation, Family Code Section 3040 has also been modified to provide for the following: "In cases where a child has more than two parents, the court shall allocate custody and visitation among the parents based on the best interest of the child, including, but not limited to, addressing the child's need for continuity and stability by preserving established patterns of care and emotional bonds. The court may order that not all parents share legal or physical custody of the child if the court finds that it would not be in the best interest of the child as provided in Sections 3011 and 3020." [emphasis added].

As a result of this modification, Courts have the ability to prevent children from being separated from an adult that he or she has always known as a "parent" simply because of a technicality in the law. This modified section allows Courts to place the interest of the children first by giving them the authority to protect children from the emotional and psychological impact of being separated from one of his or her parents. Thus, rather than having to place a child in foster care, the Courts are now able to consider the presence of someone who has played a vital parental role in the child's life.

Continue reading "More than Two Legal Parents Recognized in California Family Law Courts - Part I" »