Santa Rosa Family Lawyer Blog

In the midst of divorce, property rights, use of accounts, custody arrangements, and other issues become legal matters--rather than just private affairs. That is why a heightened level of personal scrutiny is always demanded during divorce proceedings. There is no way to keep emotions out of the process, but it is important to understand the legal ramifications of actions during marriage dissolution which are often fueled by emotion.

For example, our Santa Rosa divorce attorneys often remind residents that when you are involved in divorce proceedings it is extremely important to properly manage your social media presence and internet personality. If children are involved it is likely important to be careful about social media issues even after the divorce. In this context, "social media" is used expansively. It includes everything from Facebook, MySpace, Twitter, and personal blogs to email messages, online message boards, and text messages.

Social media in divorce cases is becoming an increasingly useful weapon, especially when children are involved. A recent attorney survey from the American Academy of Matrimonial Lawyers (AAML) found that 81% of attorneys were using evidence that had been gleaned from social media sites. This evidence can influence spousal support or child custody decisions.

California child custody laws focus on the best interests of the child. This usually includes a look at whether a parent is willing and able to help his or her child maintain a good relationship with the other parent. Public displays of animosity against another parent on a social media site can be harmful when it comes to determining child custody arrangements. Additionally, the social life of the parent can be a factor in the custody decision. Posting pictures of a night out with friends or other social activity may raise questions about a parent's actions or contradict previous statements which may influence a judicial determination. Even though it may be completely innocent behavior, comments and images gleaned from these social media sites can paint a deceptive picture. This is especially true in the courtroom where the only thing the judge has to go on is the evidence presented to him or her--they do not know those in front of them personally.

Many people incorrectly believe that their information will be protected as long as they block their spouse and his or her close friends from seeing what they post. However, as individuals have discovered in a wide range of situations--including divorce--it is incredibly difficult to keep things private once they are posted online. It is always best to simply assume that anything sent in an email or put onto a social media site may eventually be seen by everyone.

Considering the potential pitfalls, sometimes the it is best to disable social media pages entirely for the duration of the divorce proceedings. Most social media sites allow you to disable your page so that it will not be available for anyone to see. This also usually prevents all others from locating your page via searches but does not require you to permanently delete previously posted information.

For the same reason, it is important to avoid saying anything in email and text messages that might come back to haunt you later. Even if you trust the person to whom you are writing, you simply cannot be sure that messages will stay private. Always try to write everything with an assumption that it will eventually become public, and try to imagine ways that it could be used against you. You cannot be too careful when it comes to social media and your internet presence during a divorce or child custody dispute. If you are in doubt about how a message or action may affect a proceeding always ask for guidance from your divorce lawyer or other legal professional.

See Our Related Blog Posts:

Where do I File for a Divorce in California?

Am I Entitled to Spousal Support?

Prior to a California court making a determination of child custody, child visitation and child support there first needs to be a determination of paternity and depending whether the parents are married or not, the law provides for different presumptions and procedures.

For example, when a married couple is living together and a child is born, as long as the husband is not impotent or sterile, it is presumed that the husband is the father. In several limited situations, this presumption may be challenged. .

If the parents of a child were never married there are different issues the parent must contemplate regarding the issue of paternity.

Parents who were not married may legally establish paternity through the execution of a Voluntary Declaration of Paternity, which is a document commonly available at any hospital. In essence, the voluntary declaration includes a statement by both the mother and father stating they each believe the declared father to be the child's biological father and that they consent to paternity being legally established. When unmarried parents have a child born in a different state and the parents signed a voluntary declaration in that separate state, a California court will recognize a declaration signed in that different state.

The signing of the voluntary declaration does not prohibit the declared father from later having a court enter a formal judgment regarding paternity or having the voluntary declaration set aside if DNA tests show that he is not the biological father.

For the any unmarried parents that have never signed a voluntary declaration who wish to establish paternity, they must petition the court to determine paternity. This requires a parent to file a Petition to Establish Parental Relationship. However, the filing of a Petition to Establish Parental Relationship does not allow the court to make orders regarding child custody, child visitation and child support. The Petition to Establish Parental Relationship only allows the court to determine paternity and if a parent wants the court make orders regarding child custody, child visitation and child support, the parent must file a separate motion for those particular issues.

Once a Petition to Establish Parental Relationship has been filed by either parent, the parties can either reach an agreement if neither the father or mother contests the issue regarding who is the biological father. However, if neither party agrees a DNA test may be ordered by the court to either establish paternity or disestablish paternity.

When parties in Northern California are considering a divorce, sometimes they question whether they can get an "annulment". Under very specific and limited circumstances, parties can request a California court to declare their marriage null and void.

For the court to grant a judgment of nullity the must determine that the marriage was either void or voidable. Under the Family Code, a marriage is void from the beginning when the marriage involves either incest or when a marriage is entered into while either party is married to another person. In the later situation, the marriage is usually bigamous and void from the beginning.

A party who mistakenly believes their spouse to be deceased can have a marriage deemed void if for 5 successive years immediately preceding the marriage, the party's spouse had been absent and not known to the party to be living or at the time the marriage was entered into, the party's spouse was generally reputed or believed by the party to be dead.

Under the Family Code, when a marriage is void, it is void from the beginning, technically meaning that no marriage has occurred. However, this does not mean that a party should not obtain a judgment of nullity, because depending on the circumstances, a party may want a public record of their marital status. Furthermore, in specific circumstances, a party to a void marriage may be entitled to assert property and support rights as though the marriage had been valid and the parties may also address issues of custody, visitation, and child support in a nullity action.
On the other hand, a voidable marriage is valid until it is declared void and judicially declared a nullity. A marriage is voidable when a spouse was a minor and lacked the ability of consent; a spouse had an unsound mind at the time of marriage; consent was gained through fraud or force; or a spouse is physically incapable of entering into the marriage.
In situations of minority, a marriage is voidable if, at the time of the marriage, the petitioner was under age 18 and the requisite parental and court consents were not obtained. Nullity based on unsound mind occurs when either party is incapable of understanding the nature of the marriage contract and the duties and responsibilities it creates at the time of the marriage ceremony. Seeking an annulment on the basis of fraud will require the court to determine that the consent to enter into the marriage was obtained by false representations relating to a matter of substance that go to the very essence of the marital relation.

Making the decision to file for a divorce in California is very difficult and many people are overwhelmed with the process and the paperwork. There are complicated decisions about finances, dividing assets and debts, developing a parenting plan and so much more. Additionally, and often times just as important as the legal issues is the emotional turmoil many parties feel and a feeling of not knowing what to do.

When a person makes that difficult decision to file for divorce sometimes there are some initial questions such as "Where do I file?" and more importantly "Can I file for divorce in California?"

The later question should be answered first because in order to file for divorce in California, the state requires that you be a resident of California for at least six months and that you have been a resident of the county wherein you reside for at least three months. Depending on the specific circumstances of your matter even if you do not meet with the jurisdictional requirements for a divorce in California, you may be able to file for a legal separation, which can later be amended.
The question of "Where do I file?" is more easily answered. Filing for divorce in California requires the preparation of several documents and a filing fee. The required documents are a Petition for Dissolution of Marriage, a Summons and if the parties have children, an additional form called the Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act or "UCCJEA". In short, the UCCJEA is a uniform act that grants the court of the "home state" of a child exclusive jurisdiction for issues of child custody. All of these documents listed above must be completed and delivered to the clerk of the family law court, with two copies, and the required fees.
However, simply filing a Petition for Dissolution will not grant either party rights to child custody, child visitation, child support, spousal support or divide any property rights. A party seeking to have any of the above issues must file a motion with the California court specifically seeking the requested relief.
Another serious issue to consider is the numerous tactical issues that affect the timing of a person filing a California Petition for Dissolution. These can range from specific issues regarding a determination of child custody and the best interests of the children to issues of property control. For example, by filing a California Petition for Dissolution and serving the required documents on your spouse, there are financial restraining orders that prohibit your spouse from transferring property, encumbering property or changing beneficiary designations without your consent.

When a marriage or domestic partnership is being dissolved, the issue of spousal support or alimony is often a primary concern of the parties. In part, this is because marriage involves mutual obligations of respect, fidelity and support and this continues even through the dissolution process. The experienced family law attorneys at Beck Law will assist you in this very important determination, regardless of whether you are the spouse entitled to receive temporary spousal support or the party that may have the obligation to pay

Temporary Spousal Support

During the dissolution process a spouse may have the right to receive temporary spousal for the purpose of assisting that spouse balance their financial obligations. Often times, it is very important to obtaining a temporary spousal support order immediately so as to secure financial security to a spouse who was dependent on the income of the other party. In the situation of temporary spousal support its calculation is generally based upon the needs of the supported party and the ability of the supporting party to pay. Prior to a judgment for dissolution, temporary spousal support is calculated much like child support and uses a judicially recognized "guideline" calculated by a program.

How is Temporary Spousal Support Calculated?

To calculate temporary spousal support, the experienced attorneys at Beck Law, will determine the relative income of each party and calculate what guideline temporary spousal support may be. This is a complex process, which involves many specific calculations and consideration of applicable deductions and allocation of expenses between the parties. If not performed correctly, the calculation may result in a spouse receiving far less than what they may be entitled to receive or paying far more than they should.

Permanent Spousal Support

Permanent spousal support, or support that may be ordered after a judgment for dissolution has been entered, is calculated by a careful consideration of a long list of factors under Family Code section 4320. In particular these include the respective incomes of each spouse, the length of the marriage, ability of a party to pay, the standard of living during the marriage, the assets and debts of each party and whether there has been any domestic violence. Permanent spousal support is generally payable for duration of half the length of the marriage, except in cases of a marriage of a long duration, or over 10 years, where the court may reserve jurisdiction over the termination of spousal support.

How is Permanent Spousal Support Calculated?

When calculating permanent spousal support it is important to evaluate the specific factors of the Family Code and also to consider the unique facts applicable to your case. For example, will the supported spouse require any retraining or education, did the parties pay for one spouse to go to school and obtain additional professional skills, did the supported spouse previously have job skills and is that supported spousal maximizing their earning potential. When you are going through a dissolution that involves spousal support and permanent spousal support in particular it is important to have an experienced family law attorney because a negative result may not be modifiable and financially impact you for many years to come.

Families going through a divorce often hear about "family court" and that they may need to go before a "family court judge," but don't know what to expect. Does everyone have to appear, even the children? How often do you need to appear? What is family court like, in Sonoma County and in other parts of California? A skilled California family law attorney can help prepare you if you ever need to appear in family court.

How Often Do I Need to Appear in Family Court?

It depends upon the type of dispute with your ex-spouse. If you have disputes over child custody, spousal support, and child support payments, the court will schedule one or more hearings to determine each issue. If neither ex-spouse appears, the hearing will be rescheduled. However, if your ex-spouse requested the hearing and appears, but you don't, the hearing will take place as scheduled. If the dispute involves child custody, your children may appear in court to testify, but are not required to do so. On the other hand, if you and your spouse prepare an arrangement prior to your divorce and never have another problem, you may never need to appear before a family court judge.

Why is Family Court Separate From the Other Courts?

It is common for superior courts to be separated into civil, criminal, juvenile, family law, and other divisions. Since family law disputes are among the most common, it would bog down the court calendar too much if they were mixed in with other types of disputes, causing lengthy delays for all of the parties involved. Also, family law is a complex, specialized area best left to judges very knowledgeable of the matters. In Sonoma County, the Family Law Division covers divorce, legal separation, parental rights, child support, child custody and visitation, family support, adoptions, and domestic violence restraining orders.

Are There Differences Between the Family Courts?

Every court is slightly different, depending upon the judges appointed and the population of the county. Some courts have more crowded calendars than others. Some judges may be viewed as "fairer" than others. Also, each court has local rules for how to proceed that your attorney should understand thoroughly. That said, all of the courts enforce laws that apply to the entire state.

How Can I Avoid Going to Family Court?

If you and your soon-to-be ex-spouse work out an agreement privately, such as for child custody, you will not need to dispute the issue before a judge, though the court would need to certify. You also have the option of working with a family law mediator to reach a fair agreement. Mediators are available through the courts; they are neutral parties who listen to you and help you consider all options. If you reach an agreement on all matters, you will not need a hearing before a judge.

Q: I am concerned about my grandchildren and have not been able to visit them at all for many months now; do I have any legal rights to visitation with my grandchildren?

A: Yes, but as with most legal matters, it depends on the specific facts of each situation. In a very general sense, Family Code § 3100 grants the court jurisdiction to award visitation rights to any other person (i.e. grandparents, stepparents, etc.) having an interest in the welfare of the child.

Therefore, grandparents may petition the court for visitation with their grandchildren in the following situations:

• When a parent is deceased (Family Code §3102);
• When there is a pending family law proceeding where child custody is already at issue (Family Code §3103);
• The parents are not married to one another, including after dissolution of a marriage (Family Code §3104)
• The parents are married but are living separate and apart on a permanent or indefinite basis and satisfaction of additional statutory requirements (Family Code §3104)

The central theme that is common to all of the above situations is the obligation of the court to make a decision in the best interests of the children, or in this case, the grandchildren.

Grandparents petitioning the court under Family Code §3102 can only do so when a biological parent is deceased.

Family Code §3103, permits grandparents to petition the court for visitation when a family law proceeding is pending and the issue of child custody is already at issue. However, if a petition is filed under this section, any visitation awarded to a grandparent would automatically terminate upon the court issuing a judgment regarding dissolution of marriage or determination of parentage. Thus, a grandparent would then be forced to file a petition under Family Code §3104.

Grandparents bring a petition for visitation under Family Code §3104 when the parents a legally separated, divorced or living separate on a permanent basis. However, grandparents should be aware that the court must make a threshold determination as to whether a bond or relationship exists between the child and the grandparent. This requires the court to strike a balance between the grandparent's interest in visitation and the right of parents to exercise authority over the child.

Grandparents petitioning the court under Family Code §3104 may have to overcome several rebuttable presumptions, depending on the wishes of the natural parents of the grandchildren. For example, if the natural or adoptive parents of the grandchild agree that the grandparents should not have visitation, a rebuttable presumption arises that it is not in a child's best interest that the grandparents should not have visitation rights. [See Family Code §3104(e).] However, case law has stated that this presumption does not apply when one of the parents supports the grandparent's petition for visitation and the other parent opposes it. (See Marriage of Harris 2004, Cal.4th 210.)

Therefore, as you can see, depending on the unique facts and circumstances of each case, grandparents do have the right to have visitation with their grandchildren.

This blog has discussed what to do when a visitation dispute arises, but what can you expect from visitation on a regular basis? Visitation is not the same as joint custody. While there may be visitation in a joint custody situation when one parent has sole physical custody, visitation is frequently awarded when one parent has both physical and legal custody of the children. The court believes that it is in the children's best interest for the other parent to see them regularly. If you find yourself in a situation where you or your ex-spouse has visitation rights, find out more from a California family law attorney about what these rights involve.

Do I Get to Decide When and Where I Meet the Children?

Usually the custodial parent has the power to decide the time and place of the non-custodial parent's visit with the children. However, since it tends to be the source of many ugly disputes, sometimes resulting in the non-custodial parent getting little contact with the children, courts prefer that you and your ex-spouse create a parenting plan ahead of time that outlines visitation rights. If this does not succeed, the parent being denied visitation can petition the court, which may then order mandatory visitation rights.

Do I Still Get to Make Decisions About My Children's Upbringing?

If you are a non-custodial parent with visitation rights, you do not have the legal authority to make decisions about your children concerning issues such as school, religion, medicine. However, a good relationship with your ex-spouse might allow you to give feedback about the children's needs and have it be factored in. If you are a parent with legal, but not physical, custody, you have the legal authority to make decisions about your children. More courts are moving away from granting sole legal and physical custody to one parent, allowing more cases in which both parents have the legal authority to make decisions about the children.

If My Ex-Spouse Does Not Appear to be Treating the Children Well, Can I Petition to Modify the Custody Arrangement?

Yes, you can petition the court for a modified custody arrangement. Be prepared to provided documented evidence of your ex-spouse's lack of care. Also, you may have a more difficult time establishing that you deserve custody if you deliberately left the family, leaving your children with the other parent.

What if My Ex-Spouse Wants to Move?

California courts will allow the spouse to move if he or she has a good reason. However, they might deny it if the move would be too detrimental to the child, or the custodial parent was moving just to deny the other parent visitation rights.

Along with spousal support, child support is a contentious and anxiety-provoking issue in almost any divorce. If you are the parent who pays it, you might worry that you can't afford it. If you are the parent with custody of the child, you might worry that you can't afford not to receive it. Because child support goes toward the stability and well being of the child, it is important that you know all of the facts before proceeding with your divorce.

How is It Determined Who Pays Child Support?

Child support is paid by whichever spouse is the non-custodial parent of the child. Unlike spousal support, which is discretionary, child support is mandatory and determined by a state-provided formula. A California child support calculator is used to calculate what the non-custodial parent owes. It considers the number of children you have, how much time you spend with each one, your monthly income, the amount you pay in taxes, whether you owe child support from previous relationships, retirement benefits, and other factors before determining a payment. A family court judge makes the final determination, so it is possible that the actual amount you would pay would be different from the one calculated.

Do I Still Need to Pay if I Have Joint Custody of the Child?

Many people believe that if you have 50-50 physical and legal custody of your children, you don't owe child support. In fact, even parents with equal custody may have to pay child support if his or her income is much higher than the other spouse's, even taking other factors like taxes into account. This has generated a lot of anger between ex-spouses, with accusations that the non-paying spouse uses child support money for frivolous purposes. Yet the purpose of paying child support is to ensure that the children have the same standard of living that they enjoyed before the divorce. If the children spend half of their time with a parent whose lifestyle is much poorer, the children will suffer. The parent who pays child support pays less when there is 50-50 custody than if the non-paying parent had primary custody.

What if My Custody Payments Don't Go Toward the Child's Care?

As mentioned above, the paying spouse's biggest fear is usually that the money paid isn't being used to support the children. If that is the case, you should not stop payment. Instead, petition the court to modify child support payments and, if necessary, custody arrangements. It is common for spouses to modify child support payments once their children have outgrown certain care arrangements, such as day care. Ask a California family law attorney for more information about what to do in this type of situation.

What if I Can't Pay? / What if My Spouse Doesn't Send a Payment?

If you are the paying spouse and have a change of circumstances, do not hesitate to let the court know as soon as possible. The court may then modify the amount you owe. Do not stop payment, because if you fall too far behind, the non-paying spouse can go to court and get a contempt order against you, requiring you to pay not just the overdue child support, but also interest and penalties. If you are a non-paying spouse, you can also pursue the payment through various options such as a wage assignment or a lien.

It is becoming increasingly common for couples to form stable, long-term relationships without ever getting married. This includes both heterosexual couples and same-sex couples in domestic partnerships. Many view marriage as an unnecessary social stamp on a relationship that is already strong. However, when the relationship falls apart, the lack of a legal framework can make it difficult for parties to know where they stand, what happens to their property and their children. If you ever have this problem, even though you are technically not getting a divorce, you should find a California family law attorney who can explain your rights and what to expect.

What Happens to Our House and Our Shared Possessions?

Members of an unmarried couple are not legally entitled to split the assets without a valid oral or written agreement. This is part of what is called "palimony," where one ex-partner pays the other payments that are like spousal support.

Without this sort of agreement, the division of property depends upon whether the assets were bought jointly or separately. If separately, the asset remains with whoever bought it, even if the other partner used it frequently. This can lead to a lot of division, which is why many unmarried couples have signed written agreements that discuss asset division. In contrast to other states, California does not recognize common law marriage.

What if I Want Custody of Our Children?

When an unmarried relationship dissolves, the mother automatically receives sole custody of the children. She has the discretion to permit or deny visitation or shared custody. She can also seek child support from her ex-partner, because California does not base child support on marriage, but on the best interests of the child. To do so, she must establish her ex-partner's paternity. This involves filing and serving a Petition to Establish Parentage on the father, and an Order to Show Cause for child support in a family court.

If the male partner wants custody or visitation, he must file a Petition to Establish Parentage and an Order to Show Cause for custody, visitation, and/or support. Should the male partner deny that he is the father, or if the female partner deny it, either can request a DNA test that will establish whether paternity exists. Once paternity has been established, the court can then order visitation rights or shared custody, unless the judge believes that it would not be in the child's best interests. If paternity is not established, the mother retains the sole right to decide visitation and shared custody. Likewise, the mother cannot expect to receive child support payments from her ex-partner.

Does a prenuptial agreement before marriage mean a kinder divorce? Many couples think so, which is why they enter into a signed mutual agreement beforehand. Often these couples have been divorced once before, and are aware of the pitfalls. But does a prenuptial agreement always ensure that the worst aspects of divorce -- painful fights over assets and child custody -- will be avoided? A California family law attorney can help you understand the benefits and drawbacks of a premarital agreement, and which would be right for you.

What is a Premarital Agreement?

It is a written agreement signed by both members of the couple before marriage. In California, prenuptial agreements are called premarital agreements and are governed by the Uniform Premarital Agreement Act. It requires that (i) both members of the couple fully disclose their financial situation; (ii) both members of the couple fully understand the terms of the agreement; (iii) both sign voluntarily; (iv) the agreement was created in a timely manner; and (v) that the terms of the agreement are fair.

The premarital agreement can determine how any financial asset -- such as house, cars, and income -- is divided in the event of a divorce. It is not used to dictate relations during the marriage (such as household chores).

Benefits of a Premarital Agreement

Couples who enter a premarital agreement often have significant assets and children from a previous marriage. They want these assets to pass to their children. Since California is a community property state, sometimes when one spouse's separate property is used for the family, it becomes community property. This property is then split between the two spouses in a divorce, depriving one spouse's children of their full inheritance. A premarital agreement makes it clear that certain assets must remain separate property.

Another benefit is that the tension and anger of fighting over assets is largely avoided. That can be especially beneficial for the children. Also, if you and your spouse know that one of you will stay home and raise the children, a premarital agreement can ensure that the stay-at-home spouse gets spousal support in a divorce.

For many people, the decision to divorce comes after years of domestic violence -- where one spouse has abused the other, as well as the children. For the abused spouse, it is often a difficult decision. He or she may still love the other spouse. The abusive spouse may have left the abused spouse questioning his or her self worth, or fearing that the abusive spouse will come after the abused spouse if he or she tries to get away. While most incidents of domestic violence involve male-on-female violence, there have been increasing reports on female-on-male violence. Also, domestic violence can affect same-sex marriages or domestic partnerships. What can you do if there is domestic violence in your family? In the event of divorce, how does domestic violence affect the spouses' legal rights?

If I Want to Divorce My Abusive Spouse, What Do I Do First?

The first thing many abused spouses do is get to a safe place and file for a temporary restraining order in family court. A "TRO" can be issued within 24 hours. Whether you are married, divorced, or in a domestic partnership, it can protect you from a wide range of abuse. A TRO prevents the abusive spouse from having any contact with you, your children, or your relatives. It may prevent the spouse from taking your children away. It can be granted without first giving notice to the other spouse, allowing you time to put a safe distance between you and the abusive spouse. The TRO will be effective even if you move.

A TRO usually lasts three weeks, but may be turned into a permanent restraining order. In addition to the above restraints, it may also provide for child support and spousal support. While a TRO or an EPO (an Emergency Protective Order, which can be issued by the police if you need immediate protection from your spouse and lasts five days) can be acquired without an attorney, at some point, you should find a California family law attorney.

What if My Spouse Was the One Who Earned the Money?

A history of domestic violence is one of the factors the family court considers when it determines spousal support. If you were unable to work during the marriage, the court might decide that you need spousal support until you can support yourself.

What if My Spouse Wants Custody of Our Children?

While there are cases where the abusive spouse gets custody of the children, determination of custody is usually based on several factors. This includes the best interests of the child; whether the abusive spouse has completed a 52-week batterer's program and not committed any other domestic violence; and whether the abusive spouse has followed court orders to take rehabilitation classes and obeyed the restraining order. Failure to do any of these things would jeopardize your abusive ex-spouse's claim to custody of your children.

During a divorce, it is important for parents to keep in mind the best interests of their children. For many, that means agreeing to a joint-custody arrangement where the children live with both of their parents. Yet while joint custody sounds straightforward -- children live with their parents equally -- it actually varies depending upon the circumstances. A California family law attorney can help you understand what it involves, so you can work out the best arrangement for you and your children.

What is Joint Custody?

When people think of joint custody, they often think of children split between the parents 50-50. In fact, there are several types of shared custody. The 50-50 scenario takes place in a "pure" joint custody situation, where neither parent has sole legal or physical custody of the child. It may also take place in a joint physical custody arrangement, where each parent has "significant periods of custody," so that the children have "frequent and continuing contact with both parents." However, joint physical custody does not require an even split -- just that they children live with both parents. Then there is joint legal custody, where parents share the decision-making responsibilities on issues like their children's education and welfare. There may also be divided custody arrangements, where each parent has sole custody of one of the children.

How Will My Custody Situation be Determined?

As we mentioned in earlier posts about child custody, courts generally look at what is in the best interest of the child. In a best-case scenario, the divorcing spouses will have already come up with a custody arrangement that just needs court certification. When both parents have already agreed to a joint-custody arrangement, there is a legal presumption that it is in the best interest of the child. Otherwise, the courts will look at the child's health, safety, and welfare; any history of abuse by one of the parents; the nature and amount of contact between the child and each parent; whether one parent uses illegal substances; whether the parent can adequately care for the child; and the child's ties to the community.

Courts no longer automatically award custody to the mother. A judge could decide that based on the above, the father should be the main custodial parent even in a joint custody situation.

How Can I Ensure That Our Joint-Custody Arrangement Is Successful?

Parents who have sat down and discussed an arrangement before coming to court are most likely to be successful. The animosity often present in custody situations will be minimal, ensuring that the child is happier and more secure. Otherwise, the most important thing is for both parents to provide a safe, stable home environment within or near the community where the child has grown up. Many arrangements will specify that your child must go to school in a certain district. If one parent needs to relocate for a job, that can seriously impact the joint-custody arrangement. If you must relocate, you should petition the court to have your joint-custody agreement modified.

Whether to pay spousal support is one of the most contentious issues in a divorce situation. For the first time, both spouses face having to live alone and support themselves, as well as children. After arguments over bank accounts and child custody, often the last thing a spouse wants is to worry about supporting the other spouse for years, if not a lifetime. Yet the spousal support issue is shrouded in a lot of myths that make it seem more frightening than it really is. A California family law attorney can help you learn the facts and maintain a good relationship with your ex-spouse.

Spousal Support is Not a Factor in Every Divorce

Just because you are divorcing does not mean you or your spouse will have to pay spousal support. In fact, in all but a tiny fraction of cases (10 to 15%), spousal support is not even awarded. And when it is awarded, the divorcing spouses had to first meet several conditions. The key is whether both spouses earn enough to maintain the standard of living they grew accustomed to during marriage. A family court judge considers whether the "supported" party has marketable skills, whether the supported party was unemployed for long periods of time to be a stay-at-home parent, the length of the marriage, the extent to which the supported party helped the "supporting" party obtain an education, and other factors. The list of factors is long, and as you can see, most divorcing couples do not meet the standards requiring spousal support. So don't feel that you can't get a divorce because you aren't able to make expensive support payments. The chances are high that you will not need to make any at all. If you do, they do not need to be a burden.

You Would Not be Required to Support Your Ex-Spouse Forever

There are cases of permanent spousal support, but in California, spousal support is generally meant to be "rehabilitative," until the other spouse becomes self-supporting. The law claims that it must be within a "reasonable period of time": usually half the length of the marriage, unless the marriage has lasted 10 years or longer. You can also stop paying support when your ex-spouse remarries, or, inevitably, if your ex-spouse predeceases you.

If Your Financial Situation Changes, You Will Not Need to Keep Paying the Same Amount

If you suddenly lose your job, or find a lower paying job, you do not need to keep making the same fixed payments to your ex-spouse. Instead, you could petition the family court for a temporary abatement, or for permanently reduced support payments. Similarly, if your ex-spouse starts to earn more money, you can seek to have your support payments reduced or stopped altogether.

Your Ex-Spouse Must Try to Find Employment

If your ex-spouse does not try to find employment, you can seek a vocational evaluator to examine his or her skills. The court might then decide to terminate your spousal support payments if you can show that your ex-spouse is purposely not looking for work. In some cases, an ex-spouse might truly be disabled. Then it would be best to have a medical evaluation done to determine whether your ex-spouse can do employment that meets his or her limitations.

It is a common belief that women are the more capable parent and child caregiver. Historically, the public has stereotyped the mother's role as critical to a child's physical, emotional and social development. Alternately, the father's customary role was the supplying of food, shelter, clothing and acting as a disciplinarian. His position in the home rarely involved the direct care and nurturing of the couple's children. Because of these long-established biases, when a couple divorced the mother usually received custody of the children.

California family courts no longer embrace the traditional model of parental roles and view the approach as antiquated. Rather than favoring one parent over the other, California family courts have adopted a more balanced and evolved philosophy that guides child custody awards. This viewpoint requires that custody determinations be based on only what the evidence demonstrates is in the best interest of the child. In this stance, the role of both parents is critical to the overall development and well being of the child.

Child custody battles often have devastating effects on both parents. However, in a heated and prolonged custody battle, your child is the person who suffers the most. Because of the potential long-term negative effects on your child, California family courts frequently disfavor those parents who attempt to alienate their child from the other parent. Parental alienation occurs when one parent tells lies to their child about the other parent, thwarts the other parent's visitation time or engages in other behaviors that could cause the child to lose trust and respect for the non-custodial parent. Prevailing in a custody dispute requires the presentation of only truthful, objective and verifiable evidence. Making false allegations of child abuse, neglect, endangerment or other questionable behaviors will weaken even the most solid of child custody cases. Alternately, the court will favor the parent who consistently demonstrates that they are in the best position to assist the child in fostering a positive relationship with the opposing parent.

Several factors can influence the father's likelihood of success in a child custody case. The father must demonstrate to the court his readiness to assume the role of primary custodian. The odds of winning are higher if the father can show a history of gainful employment and job stability. To gain custody the father must secure and maintain a safe and sanitary residence that can adequately accommodate the needs of the child. Additionally, the court may ask to review the father's plans for childcare for the times he is at work, medical care arrangements and more.
During custody disputes, the court scrutinizes the character of both parents. It is best that personal conduct is unmarred. Those individuals with a history of criminal convictions, drug and alcohol abuse problems, untreated mental illness and domestic violence rarely receive a custody award.

Statistics demonstrate that if a father's personal conduct is unmarred and he can prove that he is ready to take on the task of primary caregiver, he can, and often does prevail in a child custody dispute. Sadly, many men who desperately seek this custodial role give up prematurely. They fear and erroneously think that the family courts favor the mother. Moreover, many fathers simply stop the custody battle because they cannot afford the mounting legal fees, the costs associated with court appointed professionals, cannot take the time off work for court hearings and more. As fathers become more educated, they will realize that that they do have good odds of gaining custody of their children. However, they must persevere in the legal proceedings and not give up prematurely.

The California family court has evolved and no longer views the mother as the only suitable caregiver for children. Today, the family court views the father's role as equally important. Within the current legal system in California, fathers are encouraged to step up and play a more active role in their child's lives. For fathers, becoming the primary custodian is no longer an unachievable goal. However, once the responsibility is obtained, the custodial parent has an obligation to foster their child's relationship with the non-custodial parent. After all, a positive relationship with both parents is in the best interest of the child.