SANTA ROSA FAMILY LAWYER BLOG

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A determination of paternity is a vital aspect to ensure a variety of legal rights. As our Northern California family law lawyers know, a determination of paternity must be made before many parental rights decisions can be made, such as child custody orders, child visitation schedules, and child support orders. Paternity can be determined in several ways, dependent on the circumstances of the individual case.

Methods of Determining Paternity Without Genetic (DNA) Testing:
If the parents of a child are married, there is a presumption that the husband is the father of the child. However, there are circumstances where this presumption may not be applicable to the case, such as when the husband is not physically capable of reproducing.
When the parents of a child are unmarried, paternity can be established by executing a Voluntary Declaration of Paternity or by filing a Petition to Establish Parental Relationship. A Voluntary Declaration of Paternity is document stating by both the mother and the father that they both believe the father is the child’s biological father. By signing this form both parents are consenting to paternity being legally established. However, this can be changed by formal court judgment or genetic (DNA) testing at a later date. The Petition to Establish Parental Relationship is a court determination of the biological father of the child.
Determining Paternity With Genetic (DNA) Testing:
In the instance of parties disagreeing as to biological paternity in a Petition to Establish Parental Relationship, the court can order a genetic (DNA) test. Such a test can also be conducted in other instances upon request of the father if he believes he may not be the biological father.
DNA is biological material that determines a person’s physical appearance. It is inherited in part from the mother and in part from the father to create a unique DNA for each person. Parental relationships can be established by comparing the DNA of the mother, father, and child. Almost all cells contain DNA, including saliva, thus a genetic (DNA) test can be done by rubbing a sterile cotton swab inside the mouth of all three parties. father and son.jpg
The test can be performed in many locations. The Department of Child Support Services can perform the test and it is usually free of charge. If the test is court ordered there may be fees of up to several hundred dollars and they may specify where to have the test done as many private testing services may not be allowed. As the requirements are so specific, in our area it would be beneficial to contact a Santa Rosa paternity attorney.
Getting Legal Help in Northern California:
Beck Law P.C. can help guide you through the legal system if you are facing a paternity dispute. Our legal professionals are well versed in the intricacies of all paternity issues, including establishing paternity and contesting paternity. For a free consultation regarding the specifics of your case and any questions regarding California paternity law contact us at 707-576-7175 or contact us online. Do not delay in seeking help.
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It is a common belief that an unmarried couple that lives together for a certain period of time will have entered into a common law marriage. A common law marriage is when a couple is legally considered to be married with all of benefits of a regular marriage, despite the fact that no ceremony was ever held. These types of marriages are recognized in a handful of states, but as our Santa Rosa family law attorney often advises, California is not one of those states.
Lee Marvin.jpgHowever, even though the state of California does not recognize the creation of common law marriages , this does not mean those facing the end of an unmarried cohabitation are left without any legal remedy if the correct steps were taken in advance.
Palimony and “Marvin Claims”
Palimony is the idea that financial assets and property can be divided upon the ending of a cohabitation where the couple was never married. The idea of palimony was front and center in the landmark California case of Marvin vs. Marvin, which popularized the phrase “Marvin Claim”. In this case, actor Lee Marvin was taken to court by his ex-girlfriend Michelle Triola. Triola claimed that in exchange for her promise to give up her acting career and take care of Marvin during their cohabitation, Marvin would take financial care of her for the rest of her life. The agreement was said to be oral, and the court found that an oral agreement was insufficient for any division of financial assets and property. Triola lost her case and left the relationship with only the financial assets and property she entered it with.
Under the decision of this case it was determined that in order for a division of financial assets and property to be made there needs to be clear evidence of a promise for such a division.
Clear Evidence of a Division Agreement
It is important to put any agreement regarding the division of finances and property in writing if you are engaging in an unmarried living arrangement, as oral agreements are often found by courts to be insufficient evidence. Without one you will face the same harsh consequence as Triola did, and leave the relationship only with what you entered it with. This type of document can be created with the help of an experienced family law attorney. With such a document in place your rights will be adequately protected if you are in an unmarried cohabitation that ends.
Getting Legal Help in Northern California
If you are facing the end of such a relationship it is important to seek the help of a California family law attorney as this is a very unique area of the law. The Beck Law Firm can help determine if you are facing a family law issue or a contract issue in your unique case, and thus whether palimony is a relevant concern. The lawyers of the Beck Law Firm can advocate for your rights, and help you reach the outcome that you desire.
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Our experienced Santa Rosa divorce attorneys often explain that the standard issues that arise in a divorce proceeding relate to child custody and marital asset division. Also, it is not unusual to deal with issues of cheating during a divorce proceeding. “Cheating” can refer to many different things in this context, from extramarital affairs or “hidden” assets. In today’s digital age, it is not difficult to uncover a spouse’s possible cheating behavior, no matter what form it takes.

Given the various methods available on the Internet, smart phones and other investigatory portals, it is relatively simple for any individual to obtain sensitive records that could bring to light unflattering facts of the targeted person being investigated. These accessible modes of investigation tempt suspicious individuals, especially those in the midst of a divorce, to conduct informal detective work with the objective of uncovering cheating behavior.

However, prior to conducting such an investigation, it is vital for an individual to determine whether it is legal to find evidence of cheating behavior in this particular manner.

There are potential dangers of spying on a spouse via his/her digital life. It is possible to overstep the boundaries of privacy by obtaining information through informal digital investigations. If the boundaries have been violated, then the information obtained through such intrusive means cannot be introduced into the courtroom as legally obtained evidence. There have been instances where individuals have installed spyware software into their spouses’ computer with the intention of analyzing their every keystroke on the computer. Whether such practice is legal depends on the shared status of the computer. If the computer is shared by both spouses, then installing such spyware is deemed to be legally sound in most cases. However, it appears that California courts are inclined to deem such investigatory behavior as illegal if the computer is exclusively used by one spouse and is protected by passwords. Google.jpg

Suspicious individuals in the midst of divorce proceedings are not the only ones resorting to these methods. In today’s technologically advanced age, it is becoming common practice for divorce attorneys to use “advanced research tools” to sort through digital evidence in preparation for divorce cases.

Due to this relatively new practice of evidence collection via digital portals, laws regarding this subject matter have not yet been established. Therefore, it is imperative for an individual going through a divorce to seek the advice of an attorney in order to gauge whether or not he/she is within the legal bounds in terms of uncovering unsavory details regarding his/her spouse. Introducing evidence obtained illegally could not only put an individual in jail, but it could also put the individual in an unfavorable light with the judge of the divorce proceeding. Our Santa Rosa divorce attorneys will ensure that an individual in the midst of a divorce will not obtain evidence through illegal means.

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divorce heart.jpgGiven that California is a “no-fault” divorce state, it is relatively easy to get an actual court order ending a marriage. However, unbeknownst to the average person, certain wrongdoings – such as adultery – can still present hardships during the negotiation process of the divorce–though not necessarily factored by the court during the dissolution itself.

Grounds
As our experienced Santa Rosa divorce attorneys often explain, the meaning of “no-fault” is that one is not required to prove that his/her spouse has committed a wrong during the marriage in order to obtain a divorce. As mentioned in a previous post, California offers only two grounds for asserting dissolution of marriage, which are (1) irreconcilable differences and (2) incurable insanity. Therefore, because individuals pursuing a divorce in California are limited to two grounds, marital infidelity is an irrelevant factor in the court’s divorce order.

Although adultery committed during the marriage does not affect the procurement of a divorce, it can potentially affect the child custody determination – if children are involved – and the management of marital assets.

Child Custody
In regards to child custody, the question is whether an extramarital relationship that carries over after the separation restricts the adulterous spouse from certain child custody or visitation rights. The answer to this issue hinges on the more important question of what the best interests of the children are. In relation to this particular discussion, the specific issue is whether it is in the best interests of the children to be around the extramarital partner. California courts do not view exposing children to non-marital relations as detrimental to their best interests. The courts seem to express that allowing the children to spend time with the “new girlfriend” or “new boyfriend” does not significantly impact the children as it does the jilted spouse. Therefore, continuing an extramarital relationship after the separation will not likely affect a child custody order unless there are unique circumstances in the relationship.

Property
Extramarital relations may, however, have repercussions in regards to the handling of marital assets. During the pendency of the marriage, each spouse has the responsibility to manage the marital assets for the benefit of the family. Using marital assets on an extramarital partner is not for the benefit of the family. Such spending that is contrary to the well-being of the family is called misappropriation. If the cheating spouse has committed misappropriation during the marriage, then the other spouse is entitled to reimbursement of one-half of the funds spent from the date of the misappropriation.

Negotiations
Overall, infidelity may not hinder one from obtaining a divorce, but it may have repercussions – specifically for the adulterous spouse of the marriage – during the negotiation process of the divorce. Many divorces agreements are hashed out between parties when not in front of a judge. As such, even though infidelity may not play a formal role in decision left up to the court, they will certainly affect emotions and strategies during negotiations between the parties and their attorneys. The “injured” party of the marriage may have leverage during the negotiation process to obtain a divorce order that is more favorable to him/her. It is vital for all sides in these disputes to have legal counsel on their side familiar with the unique issues affecting these dissolutions.

Legal Help
Whatever the situation may be, divorce proceedings involve a great deal of stress and complicated issues, such as infidelity. If you are in Northern California please contact our Santa Rosa divorce attorneys to ensure that your interests are protected.

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child (Cia de Photo).jpgIn the event that unmarried parents separate, both parties are faced with problematic legal issues. These issues hinge upon whether the paternity has been established. Paternity refers to the legal system recognizing a person as a child’s biological parent. As our experienced Santa Rosa family law attorneys know, the male figure in the relationship is not presumed to be the father if the couple is unwed and a child is born from the union.

Under California law, once paternity is established, parents assume the full rights and responsibilities involving their children. As discussed in a previous post, unmarried parents can establish paternity through the execution of a Voluntary Declaration of Paternity, or filing a Paternity Case with the court. If paternity is not established, each parent faces serious legal issues. The mother has no rights to recover child support from the father, and the father cannot seek custody or visitation rights with his child.

Not having the right to child support is a problem especially for unwed mothers, particularly those with low-paying jobs. In many cases a father may have begun paying child support. However, for a variety of reasons–perhaps because the relationship went the south–the father may stop paying. In those situations, paternity still must be shown to get a court order forcing payment of the support.

Although they cannot seek child support from the father without proving paternity, unwed mothers have other options for financial assistance. One such option is seeking financial assistance from the county. When the county disburses financial aid to the unwed mother, this does not relieve the father from providing financial support. The county is required to seek welfare reimbursement from the father by filing a lawsuit. To obtain reimbursement, the county must first acquire a court finding of paternity, establishing that the father is the biological parent.

Unmarried fathers may also face issues regarding their children upon separation from the mother. One of the major issues that unmarried fathers face is in regards to child custody and visitation rights. Oftentimes, unmarried couples agree upon a child visitation schedule without involving the court. In the event that the mother establishes that the schedule is no longer working, the father has no enforceable rights to visit the child unless he has a court order. Obtaining a court order will protect the father’s custody and/or visitation rights with the child.

As illustrated, establishing paternity is extremely important to enforcing certain rights for both the mother and father. Without the declaration that the father is in fact the biological parent of the child, both parents are in a position to lose certain rights that are presumed when paternity has been established. Due to the serious financial and emotional harm, it is vital for unmarried parents contemplating separation to seek legal advice from our Santa Rosa family law attorneys.

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Child custody is one of the most important issues to consider when going through a divorce. As discussed in a previous post, custody judgments hinge upon the best interest of the child involved in the dissolution of a marriage or other relationship. In determining the best interest of the child, the family court has several options to exercise in placing the child in the most favorable situation as possible. While less common, it is possible for a court to award sole custody to one parent alone, giving that one parent the complete child custody privileges and responsibilities and denying these rights to the other parent. Our experienced Santa Rosa custody attorneys often advise clients that a sole custody judgment requires a strong showing that the other parent who is to be denied any rights in regards to the child is unfit for parenting. divorce.png

The Bar is High
Because of the high threshold of proving that one of the parents is unfit for parenting, it is difficult to obtain a sole custody judgment. In order to be considered unfit for parenting, extreme examples must be illustrated to the family court, such as a history of violence and/or destructive behavior, placing the child in dangerous situations, and mental instability. If such unfavorable attributes are displayed, then the court may award sole custody rights to the parent seeking such rights under the premise that the radical behavior of the other parent is not in line with the best interests of the child.

Example in the News
An illustration of this type of custody battle is exemplified by the divorce proceedings of Katie Holmes and Tom Cruise. According to reports, Holmes is reportedly seeking full legal custody and primary residential custody of their 6-year-old daughter. Physical custody addresses who the child will live with on a daily basis. Legal custody pertains to which parent will have the right to make important decisions for the child in regards to such issues as education, health care, and religion. From reports that have surfaced thus far, it appears that Holmes’ drastic decision to seek sole custody is predicated on the couple’s disparate views on religion. To obtain a sole custody judgment, Holmes will have to provide extensive evidence as to why Cruise is unfit for parenting. As stated by one legal observer, “…unless she can show some kind of outrageous and dangerous behavior by Mr. Cruise, she is not going to get it.”

Thus, strong evidence is required to prove that a parent is unfit to be in the child’s life as a primary caregiver. The Holmes/Cruise situation reinforces the high standard that the family court has established when considering whether or not it would be in the child’s best interest to be under the sole custody of one of the parents.

Of course, child custody can be arranged in several different ways. One parent may be awarded full legal custody rights but share physical custody with the other parent. One parent may have sole custody rights while the other parent may have supervised visitation rights. These are just a few of the options available. Because there are so many ways to arrange custody rights, it is vital to seek the advice of a Santa Rosa divorce attorney in order to understand the available options and to establish which option is most favorable in the given situation. If you decide that pursuing sole custody is the best option, then it is absolutely vital to have the aid of an experienced legal professional who can advocate that position in front of the judge.

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