Santa Rosa Family Lawyer Blog

When 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.

Q: 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.

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

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

The father's position: The father in our divorce story does not believe that his daughter should be in expensive pageants, and does not want to pay out in child support for them. He believes that the cost of thousands of dollars in costumes, make-up, hair, travel and lodging is excessive and could be used better toward education. He argues he is a middle income earner, and cannot afford costumes that can be upward of $3,000. The father claims that there's too much pressure on his daughter that is causing unrealistic "body image issues". He also feels that practicing 7 - 10 hours per week for a pageant is exhausting for daughter. He's opposed to mother's placing their daughter on low calorie diets and not letting her be a "kid". He feels that mother's control, daughter's long hours, and pageant demands are abusive to his daughter and her right to a carefree childhood. He also believes that he shouldn't have to support such a frivolous past-time as pageantry.

Further to support the father's position, California has no labor laws regarding pageants. Pageants are exempt from federal labor laws under the Fair Labor Standards Act of 1938. Child contestants of pageants are not considered to be "working" as they sometimes spend 10 hour days not "working" at a pageant with their parent.

The mother's position: Mother feels that pageant participation has given their daughter poise, grace and self-esteem. She states that their daughter enjoys being in pageants and that there's a great future for her daughter in modeling, or perhaps an acting career. This mother considers pageantry the same as participating in sports and argues that there are costs associated with sports, including long travel, hours of practice and sometimes expensive coaching. She believes that pageantry is a form of education that's valuable because she has seen her daughter gain confidence in front of an audience. The mother believes that the dad should continue to financially support their daughter in her pageantry goals. The mother has no concern over child labor laws as she feels that participation in sports demands the same focus, drive and work ethic as pageantry.

To add to this, what can drive parents even further apart is that vague possibility that, with enough money, time, and enough hard work, there is always the possibility that their child will become a celebrity or get a full ride scholarship. It was plain and simple basketball that made Michael Jordan who he is today and it is TLC pageantry that created the overnight Honey Boo Boo sensation. This little girl has more "sass", charisma, and charm than the entire state of Georgia. Honey Boo Boo has gone viral. Her parents would argue that the costs and time they spent was well worth it. And when you watch her and her very unapologetic red-neck family, you find the show is so unique and refreshing that you can't wait for the next episode. This must be the only family in America that actually eats "road kill" and is proud of it. A pageant mother's dream comes true.

Regarding California law, in child support battles, whether it be costs associated with pageantry, sports, private school vs. public, music lessons, or gymnastics, the lines are drawn and parents often differ strongly and emotionally in what they feel is necessary for the goodwill of a child. Child support issues require careful consideration and a family law attorney with compassion and good mediation skills to strike a balance between the desires of the father and mother, who often cannot reach an agreement on their own. With good legal advice, compromises can be made on each side, which is always a fine balancing act in an effort to maintain peace during and following a divorce for the sake of the children.

In 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.

See Related Blog Posts:
California Paternity Law Attorney
What Rights Do You Have if You are Not Married and Your Relationship Ends?