Archive for the ‘Custody & Visitation’ CategoryThe Benefits of a “No-Court” DivorceMonday, January 30th, 2012A “no court” divorce, also called “collaborative divorce” is a way for divorcing spouses to resolve all the major issues of divorce outside of court. This gives control over important matters like property division, child custody, and support to the spouses rather than to a judge. It also costs a fraction of what both of spouses would spend fighting over these issues in court. Here is how a “no court” divorce generally works. (more…)
Getting Temporary Emergency Orders in San Diego Divorce and Family Law CasesFriday, October 28th, 2011If you have a divorce or other family law case pending in a San Diego court, there’s a difference between getting a temporary order and an emergency order. Temporary orders are common, and these are usually orders that a court makes after a hearing with all parties. But sometimes one side may ask the court to make an order immediately—without notifying the other side and without a hearing. This is called an “ex parte” order, and they’re not granted in the typical divorce or child custody case. (more…)
A Mediator is not a “Shared” Divorce LawyerMonday, June 20th, 2011Divorce can be long and expensive if spouses battle in court over child custody, the division of their belongings, and/or child support and spousal support (alimony). In many cases, a neutral, experienced divorce mediator can help the spouses reach an agreement on some or all of these issues, reducing the time and expense of court proceedings. In a typical mediation proceeding, each party consults separately with the mediator, and then the mediator brings both spouses together to craft a compromise agreement, which the spouses then sign. (more…)
A Voluntary Declaration of Paternity in CaliforniaFriday, September 10th, 2010Why Establishing Paternity is Important Mutually choosing to have and co-parent a child as an unmarried couple is a choice many people are happily making. However, even is cases where a couple agrees to co-parent, paternity may play an important role in ensuring that the actual goal of co-parenting is achieved with ease, respect, and success. Failure to establish paternity could result in a father being denied a right to custody or visitation; or, in the alternative, deny a mother the right to receive child support. The “Voluntary Declaration of Paternity” in California Under California law when both unmarried parents sign a “Voluntary Declaration of Paternity” they are declaring that they are the legal parents of the child. Once a “Voluntary Declaration of Paternity” is signed each parent has an equal responsibility to support the child and an equal right to custody of the child. A declaration of paternity not only ensures for each parent rights to custody, visitation, and support, but it also protects the rights of the child to obtain benefits through the father including social security, military, or survivors benefits. However, a “Voluntary Declaration of Paternity” may be difficult or impossible to reverse, so it is important that it not be signed if there is a dispute over paternity. The Paternity Lawsuit If the parents of a child born outside of marriage do not sign a “Voluntary Declaration of Paternity,” or if parentage is in dispute, the parent who wants a confirmation of identity can file a court action. Ultimately, the court can order that all parties – parents and child – submit to a DNA blood test to resolve the issue. The Complexity of Paternity Cases in California The Case of Tate v. Wilburn The California case of Tate v. Wilburn is interesting because it illustrates the far reaching effects of failing to follow certain procedures when challenging a claim of paternity. In the Tate v. Wilburn case, the California Court of Appeal upheld a decision that ordered a homeless man to pay child support from his inheritance. In the Tate case, Hari Wilburn was named as the father of Cathy Tate’s daughter, Alexis, in a court proceeding during which Wilburn was ordered to pay child support. Seventeen years later, Cathy Tate asked the Court to take money that Hari Wilburn was going to receive through an inheritance to pay the court ordered child support. The court granted Cathy Tate’s request despite the fact that DNA test excluded Hari Wilburn as being Alexis’ father and had never established a father child relationship. The court held that under California Family Code 7551, Wilburn waited too long to challenge the court’s finding of paternity. Clearly, the facts of the Tate case are unique. However, the facts of any paternity case where the parents fail to sign a “Voluntary Declaration of Paternity” can be just as unique and complicated. It is important to know what your rights are even when both parents of a child are in full agreement about co-parenting outside of marriage. Also, if you are a parent who wants to establish paternity there are complex steps that need to be undertaken. The experienced family law attorneys at San Diego Law Firm can help you understand your rights and ensure that you and your child are protected legally and financially. Please call us at (619) 794-0243 for a consultation.
Grandparents’ Visitation and Custody Rights in CaliforniaMonday, June 21st, 2010The Role of Grandparents Did you know that over 1 million children in the United States are being cared for by a grandparent with no parent present? Or that over 3.2 million children in the United States live in their grandparents’ home? Given these statistics it’s clear the role of a Grandparent in a child’s life is often invaluable. It can be devastating for all parties involved when a nuclear family has to be restructured due to divorce or legal separation and that disconnect results in the end of a relationship a grandparent has established with a grandchild. Today, grandparents’ rights are a growing issue in family law throughout the United States and in California. While grandparents’ rights are not constitutional, the law is evolving. The History of Grandparents’ Rights Currently, all 50 states have some type of “Grandparent Visitation Statute” through which grandparents can petition a court to grant them the legal right to visitation. Some states will grant visitation only if the child’s parents are divorcing. Other states have less restrictive laws that allow the courts to consider a request for visitation even without the dissolution of a marriage as long as the visitation would serve the best interests of the child. Under California family law a grandparent can request reasonable visitation rights when the parents divorce, even if both parents object. The facts of the U.S. Supreme Court decision which have shaped the current laws afforded to grandparents in the United States are sad and unfortunate. In that case, Troxel v. Granville, a father, Brad Troxel, left behind two daughters and their mother Tommie Granville at the time of his death. The two parents were estranged. But Brad’s parents still maintained a strong relationship with their grandchildren and visited their grandchildren regularly after Brad’s death. After Tommie remarried, she limited the grandparents’ visits. Ultimately, Brad’s parents went to court. The trial court agreed that the state law which allowed for grandparent visitation applied to the Troxels’ as long as they were able to prove that visitation was in the best interest of the child. However, the U.S. Supreme Court disagreed by stating that the applicable state law was “too broad” and that it infringed on a parent’s fundamental right to make decisions for her children. In the end, the U.S. Supreme Court struck down the trial court’s decision that granted the Troxel grandparents’ right to more visitation. Seeking Visitation or Custody in California California law gives grandparents the right to petition for visitation in one of many circumstances. For example, a grandparent can file for visitation when the grandchild’s parents are divorced, not married, or separated. It also allows a grandparent to make a claim for visitation when the grandchild is not living with either parent. However, one of many factors that may have to be proven is that a relationship between the grandparent and child existed prior to the grandparent’s petition seeking visitation rights. Under California law, one situation that would allow a grandparent to file for custody of a grandchild would be one where both parents have died or parental rights have been terminated due to a number of reasons. There are many more circumstances in which custodial rights could be granted if it can be shown that it would be in the child’s best interest to take custody away from a parent. Do Parents in California Have Rights When a Grandparent Petitions for Visitation? The answer to this question is yes. Unlike the evolving laws regarding grandparents’ rights, the right of parents to make decisions about raising their children is fundamental. In the wake of the Troxel case, groups such as the Coalition for the Restoration of Parental Rights and the American Civil Liberties Union have championed the rights of parents and the U.S. Supreme Court’s decision. This is primarily because the decision affirmed the right of a fit parent to have the final say on how to rear their children. This is so even if such decisions include limiting or excluding grandparent visitation based on the parents’ own belief that it is in the best interest of his or her child to have no visits, or only brief visits, from grandparents. As mentioned at the beginning, having to restructure the family unit during or after a divorce is not an easy task. Every family is different, but every parent, every child, every grandparent will no doubt feel loss when relationships change due to dissolution. Whether you are a parent trying to figure out the best way to maintain the stability of relationships that your kids have with the parents of an already, or a soon-to-be ex-spouse, or a grandparent who feels alienated from a grandchild, it is important to seek good legal advice. The family law attorneys at San Diego Law Firm have much experience dealing with the many issues that face families upon divorce. Call our attorneys at 679-794-0243 if you are a parent or grandparent who needs help understanding or protecting your rights. The procedures for seeking visitation and or protecting your rights are complicated; we can help you.
Co-Parenting After Your California Divorce: What Happens When You and Your Ex Have Different Religions?Friday, April 23rd, 2010Courts throughout California and the country have dealt with questions about child custody and religion for decades. What will happen if divorced parents (or unmarried parents who are no longer together) have different religions and disagree about which faith to raise their children in? The truth is, unless and until the U.S. Supreme Court decides this question, there’s no black and white answer that applies nationwide. (more…)
Family and Financial Protection During Your San Diego Divorce, Part Two: What Other Court Orders Will You Need?Friday, March 12th, 2010Divorces in San Diego and throughout California can’t become final until at least six months after a spouse is served with divorce papers. Usually, a divorce will take longer than this minimum waiting period. Many steps need to be taken during the transition to protect your family, business, and finances. For divorcing spouses who have kids, a Divorcesupport.com blog provides advice on how to best meet your children’s emotional needs during a divorce. It cautions that you shouldn’t be the only one providing your kids with emotional support. When family and friends aren’t enough, then look for counseling options. You’re also encouraged to get emotional support for yourself, such as through a local support group, family, and friends. (more…)
When Can a Judge Impute Income to an Unemployed Parent? Understanding How California Family Courts Calculate Child SupportTuesday, February 9th, 2010Hard financial times are still troubling many parents in California who have been laid off from their jobs. The Associated Press reports in the Los Angeles Times that nationally, new jobless claims have recently risen higher than expected, although California has fortunately seen some decreases. For many of these parents who owe child support, the question is, when unemployment benefits end, will that parent be excused from paying the support until a new job is found? On the other hand, if the paying parent is lucky enough to be in a better financial position than when the child support was first ordered, will that parent automatically pay more now to support his or her child? The short answer in either case is no, and will continue to be no, unless and until one of the parent’s gets the child support order modified in family court. (more…)
Whether In or Out of Wedlock, California Paternity Law Can Automatically Presume FatherhoodTuesday, December 8th, 2009California’s paternity laws provide a process for determining who a child’s legal father is. By establishing fatherhood, many other important questions can be answered. For example, will a child have a right to his or her father’s medical records to help identify inherited health problems and risks, will the child be able to benefit from his or her father’s health or life insurance coverage, have rights to social security or veterans benefits, and have the right to be financially supported and receive an inheritance from both parents? (more…)
Online Divorce: How Would You Decide Who Gets What in Your San Diego Divorce?Wednesday, November 18th, 2009Divorce at the click of a mouse – it may be coming soon to Brazil, according to an AP article published in the San Diego Union Tribune. Brazil’s Senate recently approved legislation allowing online divorces under certain circumstances, and the bill awaits a vote from the House of Representatives. If the bill becomes law, not everyone would be eligible for quick internet divorces, since it’s meant for those with less complicated and consensual divorces. The idea has not come to California yet, but if it did, how well would it work? As part of Brazil’s online divorce, you’d be able to divide assets. While this seems like it should be simple enough, many of the most difficult issues in a divorce come up when figuring out who gets what. For example, under California law, do you know what happens if one spouse started a business before getting married (making it separate property), and continued working in the business during the marriage? (more…)
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