Articles Posted in Children

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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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Ripples of Water.jpgIn California, Family Court judges can order a child custody evaluation, which may also be referred to as a “730 Evaluation,” to look into the mental health and parenting practices of one or both parents. The evaluation usually takes place over a period set forth by the judge or the evaluator, from weeks to, sometimes, months. It will generally consist of psychological testing as well as interviews conducted with all adults involved with the child, including parents, step-parents and sometimes other adults who have significant roles in the child’s life. While the judge orders the evaluation, either parent may also make a request for an evaluation.

Child custody evaluations have become quite commonplace in California family courts. Child custody evaluations are most often ordered when the judge has concerns about the best interests of the child. Judges will often base custody and visitation orders on the findings in these evaluations. Typically, an evaluation could be ordered for a number of reasons, including:

· Concerns about child abuse
· Substance abuse
· Mental health problems
· One parent wishes to move out of state and the other parent objects
· Questionable parenting practices
· Inability to agree on a custodial agreement
· Questions or concerns about the child’s upbringing
Of course, there are other reasons you may wish to have an evaluation completed, and if that is the case, you can certainly request one.

In California, a custody evaluation must be conducted by a qualified mental health professional, like a psychiatrist, psychologist, qualified social worker, or marriage and family therapist. Even when a psychologist serves as the evaluator, they may choose to enlist another psychologist to complete the testing, with the evaluator then interpreting the test, since it is a highly-skilled area. The evaluator may either be chosen directly by the judge, or the judge may ask the parties to submit a list of evaluators, which the judge will then choose from.

After the evaluation, the evaluator will write up and submit a report to the judge and the parents’ attorneys. The evaluator may be called into court to testify, either to defend or explain the recommendations, and in some cases, can be ordered to conduct further study into the matter. The parties will receive the evaluator’s report in enough time to allow them to review it and make any objections.

If you disagree with the evaluator, you may challenge the evaluator’s report or even file a motion to have the evaluator removed. In a recent case a father successfully moved to have the evaluator removed. In that case, the evaluator acted in ways to suggest that he was biased against the father. Furthermore, the court found that, through this bias, the evaluator may have negatively influenced the child’s view of his father. Because the court then awarded sole legal custody to the mother based, at least in part, on the evaluator’s report and on the child’s possibly tainted statements, the court ordered the evaluator removed and the court’s custody determination reversed.

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storm - child support.jpgWhen a married couple with children separates or divorces, or where only one of an unmarried couple has custody, the non-custodial parent may be responsible for paying child support.

Child support is typically based upon the non-custodial parent’s income and the number of dependent children. California courts use child support guidelines – a matrix allowing the court to apply the parents’ total income and match it with the number of children. The matrix then provides the amount of money the family should provide for their children. Then the court can determine what percentage each parent contributes to the monthly income. Under California law, in unique circumstances, the court may deviate from the guidelines. However, such deviations are rare, and the court must then state the reasons for doing so. It is the legislative intent in California that a parent’s first and principal obligation is to support his or her minor children.

In the past, parents were left on their own to work through child support issues. However, state child support enforcement agencies are now taking a significant and aggressive position with regard to seeking payments from non-custodial parents. Even where the non-custodial parent has a reduced income, whether due to a job loss or salary reduction, they must still continue to pay child support. They may seek to have the child support obligation reduced, but they cannot decide on their own to simply reduce the amount they pay in child support.

Remedies that may be used to collect child support include:

Earnings Withholding Order for Support (Garnishment): An order issued on writ of execution, directing an obligor’s employer to withhold and pay a percentage of obligor’s earnings to the levying officer to satisfy a judgment for support.

Earnings Assignment Order: A court order directing an obligor’s employer to withhold and pay a percentage of obligor’s earnings to the obligee under a support order. Earnings assignment orders are automatic for support orders issued or modified on or after July 1, 1990, unless the assignment order is stayed or quashed.

Security Deposit Before Delinquency: A court order directing an obligor to establish a child support trust account in a state or federally chartered financial institution, into which obligor must deposit of up to one year’s child support. Amounts may be deducted from the account and paid to the obligee if the obligor is 10 or more days late in making support payments.

Security Deposit After Delinquency: A court order directing an obligor to deposit cash or other assets with a court-designated deposit-holder to secure future child support payments. The assets may be used or sold to pay child support arrearages if payments continue in arrears.

Government Benefits Intercept: Permits a support obligee in cases in which the support obligation is not being enforced by a local child support agency to intercept certain payments by state agencies and other public agencies to the obligor to enforce a support obligation owing to the obligee, including tax returns.

Monetary Penalty on Delinquent Support Payments: Allows support obligee to file and serve a notice of delinquency on the obligor whenever payments under a support order are more than 30 days in arrears. Any payments that remain unpaid for more than 30 days after such a notice has been filed incur a penalty of 6 percent per month, up to a maximum of 72 percent of the unpaid balance.

Loss of Driver License: In cases where the local child support agency is enforcing the support obligation, your driver license can be suspended, revoked, not issued, or not renewed if you are delinquent in child support payments.

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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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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.

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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.

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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.

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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.

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

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The emotional distress of a divorce is usually multiplied when children are involved. Naturally, in many proceedings perhaps the primary concern of the spouses involves the specific custody arrangements for the children. Unfortunately, sometimes being so involved and worried about the legal process causes the parents to overlook the mental state of the children and how the divorce proceeding might affect their emotional condition. It is certainly important to understand the legal process of divorce and child custody, but our Santa Rosa divorce attorneys also recognize that understanding the mental and emotional effects of the legal battle on the children is extremely critical.child.jpg

According to an article in Life123, studies have shown that divorce can cause extreme negative effects on a child’s mental, psychological and physical health. It is important that these risks be accounted for to ensure the divorce is not unduly detrimental on the children. Compared to children who are products of a family whose parents stayed together, children of divorced parents are more likely to experience psychological challenges. The stress of divorce causes a higher chance of being diagnosed with attention deficit order and related behavior issues. Also, according to studies, it is common for children of divorced parents to feel compelled to mature at a much quicker pace by assuming adult responsibilities, such as those associated with care-taking roles. This expectation to act adult-like may cause increased anger and resentment towards the parents for separating.

Not only are children from divorced households at a higher risk of mental and psychological issues, they are also more likely to develop health problems, such as asthma, headaches and depression following the divorce. Such ailments may be physical manifestations of the mental and emotional stresses that children endure during the divorce process.

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