SANTA ROSA FAMILY LAWYER BLOG

Articles Posted in Visitation

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HOW FAMOUS PEOPLE SUCH AS DANICA PATRICK, PAMELA ANDERSON, KATIE HOLMES, MICHAEL JACKSON AND STEVEN SPIELBERG DEAL WITH THE LEGALITIES OF A LONG TERM BREAK-UP

Hollywood.jpg Believe it or not, the odds of a marriage ending in divorce are the same for celebrities as they are for the rest of the population (currently 50%); however, attorneys handling high profile divorce must have the know-how and experience to maintain the high level of privacy necessary for the high profile clients. We at Beck Law maintain that privacy for every client, no matter the circumstance.

While Honey Boo Boo’s parents, June “Mama June” Shannon and Mike “Sugar Bear” Thompson, exchanged vows in their backyard in Georgia while Shannon sported a camouflage and orange tulle wedding gown (People reports), we find Danica Patrick, one of the most notable Formula, Indycar and NASCAR drivers in the history of American auto racing, ending her marriage to Paul Hospenthal as quietly and privately as possible, given her fame and fortune.

Some high end divorces last, well . . . not very long. For example: here is a link to famously short marriages that includes Kid Rock and Pamela Anderson (4 months), Rudolph Valentino and Jean Acker (6 hours), the famous Kim Kardashian marriage of 72 days and the Las Vegas marriage of Brittany Spears and Jason Alexander (55 hours). Further, celebrity divorce can be very expensive: Michael Jordan reportedly had to settle his divorce action for more than $150 million to his wife of 21 years. Steven Spielberg, worth about $3 billion, settled with Amy Irving after four years of marriage for $100 million.

Attorneys handling any divorce, including a high profile divorce, must keep in mind not only attorney-client privacy, but also protection of clients’ personal information as well. Not only must the attorney reach the best divorce settlement, an attorney representing a high profile client, or any divorce client, must consider the client’s image, the client’s wishes, the client’s children and family dynamics and how information in the legal proceedings is being distributed to the public; the attorney must adopt the mindset of a public relations expert to maintain the reputations and public images of all clients, including high profile clients.

Law firms, who handle divorce on a daily basis, should have sensitivity to their clients’ needs, and take extraordinary measures regarding resolving issues surrounding the emotional turmoil of the loss of marriage and the special needs of child custody and child visitation.

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Moving.jpgWhen one parent wants to relocate with the minor child in a custody case, they will usually need either the consent of the other parent, or they will need a court order granting the move away orders request. This issue comes up often when one parent wants to move out-of-state for a new job or because they are getting remarried.

Issues that come up in a move away request are how the move would affect the minor child or children involved, how visitation and/or custody would be affected by the move, the reason for the move, and like all child custody matters, whether it is in the best interest of the child to make the move.

If a parent wants to move, it is not impossible to simply get the other parent to consent to the move. The law usually requires notification to the other parent of the proposed move before a court action is filed, and it is important to offer a reasonable visitation schedule to the other parent, since a move will usually make it more difficult for the other parent to maintain the current visitation schedule.

If the other parent does not consent to the move away request, then you will usually need to file a request with the court to be able to move with the minor child or children, unless a prior order already gives you the right to change residency without the consent of the other parent. In a court hearing, there are some presumptions that favor the parent with primary custody of a child. However, those presumptions can be overcome, as it is important to make a clear case to the court why the move will benefit the minor child or children.

One of the most important factors is which parent has been providing a stable environment for the child. Other important factors are comparing the schools – for example is the new school better for the child than the old school – and also community statistics. A judge is more likely to grant a move away request where the parent is moving somewhere with a lower crime rate and better schools, than the other way around.

An important caveat to remember is that a move away request is not automatic, even if you are the primary custodial parent. A request should be made with plenty of time to spare before the planned move; this is not something to request at the last minute. A court may not allow you to move with the child, which means you could still move, but custody would switch and the child would stay with the other parent.

Also, a move away court dispute can be very costly, so it makes better financial sense for parents to try to work out an arrangement that allows the move but maintains sufficient contact with the other parent. With modern technology, this is much easier, with parents able to video chat with their children over the internet from anywhere in the country, or even the world. Also, often the parent who doesn’t have as much visitation time during the school year after the move could have most of the time during summer and holidays.

Last caveat, do not try to move away just to get an advantage in a custody case. If you aren’t doing something with the child’s best interest in mind, that could really backfire in a custody case.

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Chess GameQ: What is an action for contempt against spouse and what is it used for?

You and your soon to be ex-spouse are going through a highly contested divorce proceeding. You believe that your spouse does not play by the rules, and your spouse believes that you are hiding assets. The unfortunate aspect of your divorce is that you have three young children, and there are child custody orders which grant both you and your spouse joint legal and joint physical custody of your children. In conjunction with those orders, you have a child visitation schedule with your three children on a week-on, week-off time-sharing schedule, with exchanges to take place every Sunday at 6:00pm.
It never fails that whenever there is a major sporting event on television, your spouse NEVER exchanges the children on time. In fact, your spouse is always hours late to the exchange, and you never can count on receiving the children on time. This last Sunday, October 28, 2012, the San Francisco Giants were playing the Detroit Tigers for the World Series. If the San Francisco Giants won the game, they would have been crowed the World Series Champion. Well, you knew, just as it always happens, that your spouse would not exchange the children on time. In fact, on this October 28, 2012, after the San Francisco Giant beat the Detroit Tigers to win the World Series, your spouse did not exchange the children but withheld them from you. As far as you were concerned, this was the last straw and you wanted to know how you could compel your spouse to abide to the rules set forth by your child custody court order.
The answer is simple. You have the right to file an action for contempt against your spouse. An action for contempt is a quasi-criminal matter. If found guilty, your spouse could actually be sent to jail or could instead receive a sentence requiring them to perform a significant amount of community service.
Actions for contempt are governed by California Code of Civil Procedure §1209 et al, which states that “(5) Disobedience of any lawful judgment, order, or process of the Court…” are contempts of the authority of the court. CCP §1209(5). Pursuant to CCP §1218(c), in any action where a party is found in contempt pursuant to the family code, “the court shall order the contemner to perform community service of up to 120 hours, or to be imprisoned up to 120 hours, for each count of contempt.” In addition, CCP §1218 prescribes a fine and/or punishment and provides that for each act of contempt the contemnor may be fined up to $1,000.00.

“The purpose of…civil contempt proceeding is not to punish but to secure future compliance with the orders of court…” Wilson v. Superior Court (1987) 194 Cal.App.3d 1259, 1275, citing Toussaint v. McCarthy (N.D.Cal 1984) 597 F.Supp. 1427, 1431.
In order for a party to be held in contempt of Court for disobedience of any lawful order, “the acts constituting the contempt must be clearly and specifically prohibited…” Brunton v. Superior Court (1942) 20 Cal.2d 202, 205. In fact, the “most basic premise in the law of contempt is that such punishment can only rest upon clear, intentional violation of a specific, narrowly drawn order.” Wilson v. Superior Court (1987) 194 Cal.App.3d 1259, 1273.

In your case, where your spouse has consistently disobeyed a Court order requiring exchanges of your children to take place each Sunday at 6:00pm, a Court may find that each instance of your spouse failing to return the children to you on time is a separate and distinct charge of contempt. Therefore, if your spouse has not returned the children on time on five different occasions, theoretically, your spouse could be held in contempt of five distinct charges. Under this scenario, your spouse could be sentenced to over 600 hours of community services, or fined up to $5,000.00.

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GrandparentsIn today’s challenging economic situation, grandparents are playing a more pivotal role in their grandchildren’s lives. This does not just mean that grandparents are visiting their grandchildren more, or that they are helping out a little more, but rather financially assisting in rearing their grandchildren. According to Reuters, the AARP reported that today, 37 percent of grandparents are assisting with the daily living costs of their grandchildren. Despite the large percentage of grandparents helping to support their grandchildren, our Northern California family law attorneys are still assisting many grandparents fighting for the right to visit their grandchildren.

Grandparent Rights in America:
In 2000, the grandparent’s right to visitation took a hard hit and has subsequently become a very difficult case to win. That year the United States Supreme Court decided the case of Troxel v. Granville, wherein a Washington state law that allowed courts to grant visitation rights to grandparents if it was in the child’s “best interest” was struck down. This decision led many other states to strike down similar laws. However, grandparents still may be granted visitation in some states across the U.S. .

Grandparent Visitation Rights in California:
In California Grandparents do not have an absolute right to visitation of their grandchildren. However, there are instances where grandparents may be able to have limited visitation granted by the courts. Some instances where grandparents may be granted visitation rights are when one parent of the grandchildren has passed away, when the grandchild is not living with either parent, or if the court makes a determination that visitation with the grandparent is in the best interest of the grandchild.

The type of visitation that may be granted can vary widely, depending on the specific circumstances of the case. Grandparents can be given a significant amount of visitation, such as a weekend a month or extended time during summer break. Grandparents can also be given very little visitation, such as invitations to the grandchild’s games or recitals. Grandparents can also be completely removed from their grandchildren’s lives.

As the parent’s rights are always first and foremost, gaining grandparent visitation rights can be difficult. If both parents do not want grandparents to have visitation, an extreme case would have to be found by a court in order to grant any sort of visitation. Further, this area of the law is ever evolving as family roles change. It is therefore vital for grandparents to seek a grandchild visitation lawyer’s help in these cases.

Getting Legal Help in Santa Rosa California:
Our Santa Rosa family law attorney can help you in your pursuit of obtaining visitation of grandchildren as a grandparent. These cases can be extremely tricky and it is very important to have the assistance of an experienced family law lawyer on your side. The attorneys of Beck Law PC has vast experience advocating for their client’s visitation rights and can adequately protect your rights during this complex process. For a free consultation regarding the specifics of your case contact Beck Law P.C. at 707-576-7175 or contact us online.


See Related Blog Posts:

Can California Grandparents Adopt their Grandchildren?
Where do I File for a Divorce in California?

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Family Law - Child Picking Flowers.jpg

Child Custody, Legal Custody, Physical Custody and More

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

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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

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Grandparents_visitation_rights_in_California.jpgQ: I am concerned about grandparent visitation rights. I have not been able to visit my grandchildren 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.

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dad_and_daughter.jpgThis 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.

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Thumbnail image for Sonoma-County-Child-Custody-and-Visitation-Disputes.jpgChildren are precious. Unfortunately, in many Santa Rosa child custody and visitation disputes, the children are considered the prize that both parents want to win. Sometimes a parent will take advantage of visitation and refuse to return a child at the agreed-upon time. If there is no court order regarding physical custody, Sonoma County law enforcement cannot do anything unless the child is in danger. If you find yourself involved in this difficult circumstance, there are some things you can do to ensure you are acting in the best interests of your child and within the law.

Try to Talk it Out
The very first step should be to attempt to work things out with your ex without involving outside parties. You should attempt to find out why your ex does not want to return the children. Does she feel like they do not get enough time with the children? Does he have concerns about the health and safety of the children while they are in your care? Find out if you can resolve these issues between the two of you.

Contact Law Enforcement
While your local Sonoma County law enforcement officials will not be able to do anything unless the children are determined to be in danger, call them anyway and ask to file a statement. This protects you by having the situation officially documented. This is important because the children’s other parent could state that you refused to pick them up and this will alleviate this.

Document Everything
Make sure to write down when you dropped the children off, when you attempted to pick them up and any conversation that took place between your ex and yourself. You should also note your children’s behavior that you are able to observe – were the children trying to get out the door when they saw that you were there? Could you hear them in the home? Did you get to see them at all?

Go to Court
If there is already a custody order in effect, then there are procedures in place for going to court to file for a contempt of court complaint and obtaining an emergency custody order. You may consider contacting an experienced and knowledgeable attorney to ensure that you and your children are being protected. Other services or programs may be ordered at that time, such as parenting education, home studies, background checks and possibly psychological testing and counseling. At this time, the judge will also approve a temporary custody order which will stand until programs are completed and the final custody order is determined.

Sonoma County Child custody and visitation disputes can be a stressful part of divorces and breakups. It is hoped that both parents are able to communicate well enough to work through these issues on their own. However, if you are unable to resolve these disputes on your own, the legal system will become involved and decide for you, in the best interests of the child.

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