Santa Rosa Family Lawyer Blog

In parentage cases, also called paternity cases, the court issues orders that say who the child's legal parents are. If you are targeted by a paternity suit, you may be wondering what your options are. If you are served with a Petition to Establish Parental Relationship by the other parent, you have 30 days to respond. It is very important to respond, because after 30 days, the court may grant the petition and legally find that you are the child's father without a paternity test.

If paternity is established, you will expected to provide monetary child support until the child is emancipated. In California, emancipation occurs when the child is 18 and graduates high school, but could continue until the child is 19, if they are unmarried and attending high school full-time.

If parents are married when a child is born, there is usually no question of parentage. The law assumes that the husband is the father and the wife is the mother, so paternity is assumed. However, if there is a question as to paternity, the assumption can be overturned.

Paternity can often be determined by highly accurate tests conducted on blood or tissue samples from the alleged father, mother, and child. Typically, such DNA tests are between 90% and 99% accurate. Originally in the 1950s, paternity was determined by comparing blood types of the tested parties. However, blood typing is not a completely accurate method of determining paternity. In the 1970s, a new test was developed using white blood cell antigens, which is able to exclude about 95% of falsely accused fathers.

With DNA testing, the genetic characteristics of the child are compared to those of the mother, and those characteristics that cannot be found in the mother must have been inherited from the father. Each individual's DNA is unique, except in the case of identical multiples, like twins. DNA testing is the most accurate form of paternity testing. If the DNA patterns between the child and alleged father do not match on two or more DNA probes, then the alleged father can be ruled out. Generally, DNA testing is done through a blood sample or using a swab that was rubbed against the inside of the subject's cheek. Children can be tested at any age, and the tests can even be run on an umbilical cord blood specimen at birth.

In California, if you do not wish to accept the results of the paternity test, you have the right to ask for another. However, you may have to pay for the second paternity test. Even with the proven accuracy of DNA testing, it is possible, although unlikely, that the results are inaccurate. DNA testing can be challenged for: tainted lab results, fraudulent lab results, proof of infertility or sterility, or proof that the tests were tampered with.

See related blog posts:
The Importance of Establishing Paternity
Methods of Determining Paternity

Married couples who have chosen to part ways may wonder about their options. Most people are not aware of the differences between divorce, annulment, and legal separation.

Annulment
An annulment is when a court says your marriage is not legally valid. Annulments are rare, and can only be granted by a judge. Unlike a divorce, an annulment treats the marriage as if it never occurred. A marriage is always considered invalid if it is incestuous or bigamous (marriage to more than one person). Marriages may also be annulled if the marriage occurred due to force or fraud, if one of the spouses is too young to marry or already married, or if there is physical or mental incapacity. Similar to a divorce, the judge presiding over the annulment may determine issues of child custody, child support, alimony, and division of assets.

Legal Separation
A legal separation is an agreement by a married couple to live separately. Typically, the simple act of living apart or agreeing to separate for a period of time is not enough for a legal separation; it requires the spouses to legally file for separation. A legal separation does not end the marriage, and you cannot marry someone else if you are legally separated. Couples that have a religious objection to divorce often choose legal separation. Other times couples choose legal separation because they have concerns about the availability of benefits, like insurance, for one spouse. However, some insurance policies will not cover a spouse following a legal separation. A legal separation allows couples that do not want to divorce to live apart and have a judge assist with the process. The judge can help decide issues like division of money and property, visitation, and child support.

Divorce
A divorce is a dissolution of marriage, and officially ends the marriage. After you are divorced, you are considered single again. You may marry again if you would like. During the divorce proceedings, a judge can order child support, spousal support, custody, visitation, restraining orders, and division of property. Spouses may choose between two types of divorce: "no-fault" or "fault-based" divorce, depending on the laws of the state in which the petitioner resides. No-fault divorces allow a spouse to file for divorce without blaming the other spouse for the dissolution. The grounds for a no-fault divorce include irreconcilable differences, irremediable breakdown of the marriage, or loss of affection. In some states, spouses may also file for a fault-based divorce. A spouse may choose a fault-based divorce to avoid the required waiting period or to influence the judge when deciding child custody, child support, alimony and property division. The grounds for a fault-based divorce include adultery, abandonment, domestic violence, and substance abuse.

Deciding whether to obtain an annulment, legal separation, or divorce is a decision each divorcing couple needs to make based on their own circumstances. For example, California requires a married couple to live in the state for six months before they may file for divorce, so they may choose to legally separate until the six month period expires. An attorney will be able to provide the best advice, given your particular circumstances, and can advise you on the best option for you.

Children can be significantly affected by a divorce. Many divorcing parents today are employing written parenting plans to assist themselves and their children with the transition. A parenting plan is a written document that attempts to address many of the potential areas of contention between divorcing parents.

The major benefit with parenting plans is the consistency they offer. Whenever an issue arises between the parents, they can review the parenting plan to determine the proper course of action.

Just as every child, and every family, is unique, so should each parenting plan be unique. Your parenting plan should be tailored to your child's needs. Those needs will change depending on your child's age and personality. As your child grows and changes, the parenting plan should be updated accordingly. The plan should also take into account each parent's schedule and parenting strengths.

Of course, in order to create a parenting plan, the parents must discuss and agree upon many different and diverse issues. Some of those issues will be difficult to agree on and many will be emotionally charged.

Child custody and child visitation should always be discussed at length in a parenting plan. There are many, many different kinds of child custody arrangements and just as many visitation scenarios. Some families prefer to change child custody over short periods of time, while others prefer for the children to reside with each parent for longer periods at a time.

One contentious issue between divorcing parents is transporting the children. When divorcing parents live close to one another, then parents must discuss whether the custodial parent will drop off the child or whether the not custodial parent will pick them up. The situation is more difficult when parents live farther away. In those situations, the child may need to take a train or plane in order to reach the other parent's home. Until the child is older, they will likely need someone to accompany them, and the parenting plan should specify which parent that will be.

Parenting plans should also discuss the basic care of the child. Such basic care includes food, sleep, and activities. Recently, more and more families are adopting organic, vegetarian, or vegan diets. Parents may wish to include these dietary choices in a parenting plan, to ensure continuity for their child.

Parenting plans can cover any issue that parents wish to address. For example, parents may want to limit the amount or type of visitors that a custodial parent has while watching the child. Parents may also address the usage of cell phones, computers, and the Internet. The plan can also delve into the child's involvement in sports and other extra-curricular activities. Such activities can be particularly difficult, because some parents may need to discuss how they will attend the child's events. Finally, one particularly contentious issue that must be addressed is religion. Even when both parents are religiously compatible, the parenting plan should address when and where religious activities will occur, and how the child may participate.

Under California law, a child's legal parents have rights and responsibilities to physical and legal custody. Child custody includes not only physically taking care of the child, but also authority over the child's medical, religious, and educational care. Obviously, taking care of a child requires a lot of responsibility and can be very difficult. In some cases, parents are not able to take care of their child, and those parental rights are terminated. Termination of parental rights is not a subject to be taken lightly, and if those rights are voluntarily waived, it should not be done without considerable thought.

The termination of parental rights can occur either voluntarily or involuntarily, in a number of different circumstances. The termination of parental rights means that the parent is no longer considered the minor child's legal parent. Therefore, the parent loses the right to make decisions about the child's upbringing and is released from his or her obligation to provide financial support.

The subject of terminating parental rights comes up most frequently with adoptions. In order for a stepparent to formally adopt a child, the corresponding biological parent must have their parental rights terminated, whether voluntarily or involuntarily. For example, where a stepfather would like to adopt the child, the biological father may either consent to the adoption and voluntarily waive his rights, or the mother and stepfather may ask the Court to determine that the biological father is unfit, thereby terminating his parental rights without consent. In California, failure to pay child support may be grounds for involuntarily terminating parental rights in a stepparent adoption. Similarly, both parents may choose to waive their parental rights to the child, where they will either become a ward of the state or will be adopted by a new family.

A parent, or both parents, may have their parental rights involuntarily terminated by the court when someone reports mistreatment. The grounds for involuntary termination of parental rights are specific circumstances under which the child cannot be safely placed in the care of the parent or parents. The child is considered in danger when there is a risk of harm by the parent or when the parent is unable to provide for the child's basic needs. The most common reasons for determining parental unfitness are:

· Severe or chronic abuse or neglect
· Abandonment
· Long-term mental illness or deficiency of the parent
· Long-term alcohol or drug based incapacity
· Failure to support or maintain contact with the child
· Involuntary termination of the rights of the parent to another child

Parental rights may also be terminated for a parent's felony conviction for violence against the child or another family member, or a conviction for a felony where the prison term's length will have a negative effect on the child.

The termination of parental rights is not always permanent. In California, a child over the age of 12 may petition to re-establish parental rights if it has been more than three years since the parent's rights have been terminated.

See Related Posts:
Child Support Battles Honey Boo Boo Style
Methods of Determining Paternity

When parents divorce, or when unmarried people have a child together, child custody is almost always an issue. After all, both parents will usually want to spend as much time with their child as they can. Prior to starting a child custody battle, many parents are not aware of the different types of child custody.

Physical Custody
Physical custody is the most common custody type available. Physical custody means that the parent has the right to have the child or children live with him or her. Most modern custody agreements give physical custody to one parent and child visitation rights to the other parent. These visitation rights typically include exclusive time with the child on weekends, holidays, and a number of weeks during summer vacation.

Legal Custody
Legal custody means that the parent has the legal authority to make decisions about their child's education, health, and upbringing. Legal custody is often given jointly to both parents, even when one parent has sole physical custody, unless it is shown that one parent is clearly unfit. Joint legal custody requires the parents to come to a consensus about many difficult subjects, such as religious instruction, medical care, and education, all of which will shape the child as he or she grows.

Sole Custody
Sole physical custody occurs where the court determines that one parent is unfit, and the child lives only with the other parent. Sole physical custody most often occurs when one parent has financial, drug, or alcohol problems. It may also be awarded where on parent is living with a new partner and the new partner is deemed unfit to care for the child.

In most instances, the parent with sole custody has both physical and legal custody. Sole custody arrangements are actually rare, and limited to situations where one parent is clearly unfit. Even where one parent has sole physical and legal custody, the non-custodial parent will still likely have periods of visitation with the child. However, where domestic violence or child abuse is involved, these visits may be supervised.

Joint Custody
Joint physical custody means that the child lives with both parents on a scheduled basis. The schedule will often be created by the parents and approved by a judge. Every schedule is different, and is based upon the needs of the child and the parents' schedules. Depending on the child's age, the parents may rotate by day, week ,or even month when both parents live in close enough proximity to the child's school. However, where one parent lives a significant distance away, the child may live with one parent primarily during the school year and the other parent during weekends, holidays, and summer vacation.

A newer form of joint child custody is referred to as a bird's nest custody arrangement. With the bird's nest arrangement, the child or children continue to live in the family home at all times. The parents then rotate who lives with the children on a scheduled basis. The arrangement is seen as beneficial to young because it allows them to attach their emotions to the family home.

See related blog posts:
International Child Custody Case Reaches the United States Supreme Court
Resolving a Child Custody Matter With the Courts

The popular misconception of what does child support cover is that child support is intended only to cover only a child's bare necessities, like food and clothing. The truth, however, is that child support covers much more. Child support includes school fees, entertainment, medical expenses, and extracurricular activities, among other things. In California, courts do not require parents to prove the child support payments they receive are going toward specific activities. The exception to this rule occurs where there are concerns that the child's basic needs, like food, shelter, and clothing, are not being met.

Basic Necessities
It seems fairly obvious that child support may be used to pay for food, shelter, and clothing. Purchasing groceries and clothing, and even paying the mortgage, rent, or utilities is acceptable.

Uninsured Medical Expenses
Child support may be used to pay for uninsured medical expenses and any out-of-pocket medical costs exceeding the cost of basic health insurance. Such costs include co-pays, deductibles, and surgery expenses. In California, parents must pay for half of all uninsured medical costs.

Education
Even public education is not completely free. Child support may be used toward the cost of school uniforms, textbooks, lunch money, and even private tutors, if necessary. California divorced parents are required to pay for half of all education-related expenses.

Childcare
If one or both parents work, and cannot stay home with their child, child support is appropriate for covering childcare expenses, including daycare, babysitters, and nannies. Of course, during school breaks in the summer months or on holidays, child support may also be used to cover any childcare needs.

Transportation
Child support may pay for basic transportation and travel costs, because children need to be transported safely and securely. Transportation costs may include car maintenance, gas, registration, and insurance. Child support may also be used for travel costs, particularly when traveling to visit the non-custodial parent.

Entertainment
Child support may be used for age-appropriate entertainment activities, as agreed upon by both parents. Entertainment can range from computers, television, and the internet to the movie theater, amusement parks, camping trips and possibly other activities as questioned in our recent family law attorney blog post..

It is important to remember that the purpose of paying child support is ensuring that the child's standard of living does not decrease simply because his or her parents divorced. At any time, either parent may request a review of the child support order by the local child support agency. The request must be in writing, stating the reasons for changing the support order. Generally, modification is justified when getting a new job, losing a job, or if custody/visitation changes. However, quitting a job is not justification for a review.

If the local child support agency decides the requirements for review are not met, the parent requesting the review may ask the court to review the order. In the event that both parents can agree on the amount of support ahead of time, the parents can sign a stipulation that must be filed with the court.

Certainly, in these difficult economic times, payment of child support is a difficult obligation. In the event that a parent cannot make the full child support payment, they should immediately contact their local child support agency to avoid or minimize any legal actions as a result.

See related blog posts:
The Importance of Establishing Paternity
Divorce in Six Months or Six Years