Author: <span>Briana White</span>

Domestic violence is not your fault. We can help. Domestic Violence

Domestic Violence

Divorce is never easy, but for families struggling with domestic violence, the transition can be even more complicated—especially for those who have children, need to file a restraining order, or are worried about retaliation.

Each state has different laws for handling domestic violence during divorce. In some jurisdictions, these offenses can warrant the filing of a fault-based divorce, and end up affecting the division of marital property in favor of the abused spouse. They can also impact child custody, alimony, and even result in criminal charges. 

Here’s what you need to know about how domestic violence can impact your divorce in California, and what the Maples Family Law team can do to help you navigate this rocky transition.  

Overview of Domestic Violence

In California, domestic violence is defined as any abuse—or threat of abuse—that comes from a romantic partner. 

Naturally, this definition includes a spouse, but it actually goes further, encompassing any type of romantic relationship, such as someone you’re living with, a domestic partner, a co-parent you share a child with, and even just someone you’re dating (or used to date).

Under this definition, abuse can come in many different forms, and—according to the domestic violence guidelines on the California.gov website—can include things such as: 

  • The act of physically hurting (or trying to hurt) someone, either intentionally or unintentionally;
  • Making someone think that they (or someone they love) is going to be hurt; 
  • Sexual assault; 
  • Harassment, stalking, threats, and disturbing the peace; and even, 
  • The destruction of personal property. 

As you can see, this type of abuse does not require physical contact with another person—or even their property—in order to be considered domestic violence. It can be as subtle as emotional abuse and threats levied against someone you love, and can even include unintentional physical harm. 

But, what does this mean when filing for divorce? 

Here are some of the ways that domestic violence can impact your divorce, including the division of marital property, child custody, and alimony.

 

Domestic Violence and Marital Property

At its most basic form, marriage is just a contract; a commitment between two people, who want to be seen as a single entity in the eyes of the law. That’s why several states allow individuals to file for divorce under fault-based grounds. 

In a fault-based divorce, the court can assign blame, and hold one spouse financially accountable for their part in the marriage breakup. This is typically done by awarding the victim a larger share of the marital property. 

Along with things like infidelity and drug abuse, domestic violence is one of the primary grounds used in these jurisdictions for filing under fault. That being said, California is not one of those states. 

As a strictly, no-fault divorce jurisdiction, you cannot file for divorce in California using domestic violence as your grounds. In addition—because judges cannot consider guilt or blame when dividing marital property—you also cannot use domestic violence to receive a greater share of your community pot. 

However, that doesn’t mean domestic violence can’t impact your divorce at all… 

 

Domestic Violence and Child Custody

One of the biggest ways domestic violence can shape a California divorce, is in the area of child custody. 

In California, custody decisions are made based on what is in a child’s best interest. This legal standard is driven—not by what parents want—but by what will serve a child’s long-term health and welfare the best. 

Under these guidelines, sole versus joint custody decisions are determined by weighing factors such as: 

  • A child’s health, safety, and welfare.
  • A child’s preference (if over twelve).
  • Each parent’s past role in their child’s life. 
  • Each parent’s ability to care for their child, post-divorce. 
  • Any history or threat of domestic violence. 
  • Any history of drug abuse. 

When considering domestic violence, it is not even necessary that the child has experienced the abuse themselves. In California, domestic violence is still a consideration, even if the harm was only ever carried out on the child’s other parent. 

 

Domestic Violence and Alimony

According to the California Family Code, courts are also required to consider domestic violence when making decisions about alimony.

Alimony (or “spousal support”) are regular payments that a judge orders one spouse to pay the other, in order to help support their care after the breakup. This money is often awarded to a homemaking spouse, to help get them back on their feet after so many years out of the workforce. 

In California, judges cannot require victims of domestic abuse to pay their spouse alimony, however, this is somewhat contingent on what evidence is available at the time of divorce.

A conviction of domestic violence within the past five years is the strongest type of evidence. If available, this creates a “rebuttable presumption,” which essentially means that the court has to operate as if the abuse exists/existed. As a result, a victim of this violence cannot require to: 

  1. Pay temporary or permanent spousal support; or,
  2. Pay their spouse’s attorney’s fees from separate property.

If you don’t have a conviction, you may still be able to get an exemption from alimony. Talk to your attorney about what evidence you may need, and be sure to document any further abuse in as much detail as possible, since the state may want to file criminal charges, as well. 

 

Domestic Violence and Criminal Charges

Domestic violence might have been the reason you decided to file for divorce, but it’s also a crime, and—depending on the severity of the offenses and the available evidence—these actions could be enough to land your spouse with criminal charges. 

But what, exactly, does that mean? And how does a criminal charge differ from what you’re doing in divorce court? 

 

Civil vs. Criminal Court

In the United States, there are two main branches of the court system: 

  1. Civil court
  2. Criminal court

Criminal court deals with offenses like rape, theft, battery, assault, and so forth. These are harmful crimes committed by one person against another, and can result in fines and even jail time. In a criminal case, the state acts as the prosecutor against the accused. 

On the other hand, a civil case is filed by an individual (or business) against another individual (or business). This branch handles pretty much everything that criminal court does not, including real estate transactions, business, contracts, probate, economics, family law, and so forth. 

Divorce—like adoption and child custody—is a subset of family law, which means that these cases are generally held in civil court. However, when domestic violence is involved, civil and criminal courts often intersect.  

Depending on your situation, the state of California might decide to file criminal charges against your spouse for domestic violence. If they do, these charges will be filed as a separate case, held in criminal court, and handled by a criminal court judge. 

Unfortunately, while domestic violence is always a crime, it’s also often a secret crime—one whose harm doesn’t always leave a mark. Hence, in many situations, the state lacks the necessary evidence to prosecute.

 

California Domestic Violence Resources

It’s important to understand that—even without a bruise or scar—domestic violence is never okay. California courts take these crimes very seriously, and if you or a loved one are currently experiencing abuse, it’s critical that you talk to law enforcement (as well as your family law attorney), to figure out the best course of action in your situation.

If you don’t know where to start, or simply need help, these online resources can assist you with the process: 

These sites can help you find a shelter, retain a free or low-cost attorney, and walk you through the steps for things like filing for a restraining order. 

In the meantime, if the danger is immediate, don’t wait, and call the police right away. 

 

Domestic Violence Divorce Attorneys in California

If you are dealing with domestic violence in your marriage, the most important thing to do is to keep yourself—and your children—safe. The next step is to get out of the situation as quickly as that safety will allow. 

If you have more questions about domestic violence in California, and how this might affect your divorce, we want to help. Call the Maples Family Law team at (209) 989-4425, or get in touch online, and together, we can figure out the next best step for you. 

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Unmarried Parents in CA

Divorce and custody go together about as often as peanut butter and jelly. Hence, it’s easy to see why parental rights and marital rights sometimes get mixed up. 

But—just like you don’t have to pair peanut butter with jelly—you also don’t have to be married to be a parent. Which is why parental rights are kept completely separate from the marriage relationship. 

Hence, whether you are married, divorced, widowed, partnered, single, or unmarried, parents everywhere have the same rights and responsibilities to their child, regardless of relationship status. That being said, unmarried parents may still face some additional hurdles, when it comes to child custody.

Here are some of the most common questions that arise for unmarried parents in California, and how the Maples Family Law team can help you navigate these challenges.

 

Presumption of Parenthood 

We meant what we said in our intro about parental rights: all California parents have the same parental rights and obligations, regardless of relationship status. 

But if that’s true, you might be wondering, then why do unmarried parents in California face additional challenges?

The primary reason that unmarried parents are in this conundrum is because of California’s presumption of parenthood, which assumes that any child born into a marriage is the legal offspring of the individuals in that marriage. 

This presumption is great, if you’re a legally married couple, because it allows you to automatically assume the mantel of parenthood (and all of its accompanying rights and responsibilities) without any hoopla. However, there are two main instances when the parenthood presumption falls short: 

  1. When both parents are unmarried.
  2. When one parent is married, and the other is not (a.k.a.: adultery).

In both of these instances, California’s presumption of parenthood either wrongly presumes who the parents are, or simply fails to cover one half of the duo, altogether. 

Because of this, unmarried parents may have a few more hoops to jump through, in order to establish themselves as legal parents—however, this does not mean that the rights of unmarried parents are any different.

 

The Rights of Unmarried Parents 

Whether adopted or biological, the job of a parent comes with a lot of authority, decision-making power, and responsibility over a child. This authority is what’s roughly defined as child custody, which is divided into two main categories: 

  1. Legal Custody—the right to make decisions on behalf of your child, and to determine how they will be raised. 
  2. Physical Custody—the right to see your child, spend time with them, and have them live in your home. 

These parental rights are given a lot of deference by California courts, and—whether you are married or unmarried—they will not be taken away unless it’s absolutely necessary for a child’s best interest. 

However, because the presumption of parenthood falls short, unmarried parents will need to establish themselves as a child’s legal parent, before they are able to exercise these rights. 

 

Establishing Parentage 

The nature of the birthing process doesn’t leave a lot of room for doubt as to who a child’s mother is. Hence, a birth mother is automatically considered a child’s legal parent—with full legal power and parental authority—as soon as her child is born.

Unmarried fathers, on the other hand, are not given this automatic presumption, unless they have already been living with their partner in a family-type setting prior to birth. If not, however, the unmarried father will be unable to claim rights to things like custody or visitation until they are recognized by the court as a legal parent. 

This can be done one of two ways: 

  1. By mutual consent of the parents, upon the child’s birth. 
  2. Through a court trial. 

Here’s a closer look. 

 

1. Consent at Birth

The easiest way to establish paternity is for both unmarried parents to sign a Declaration of Parentage, upon their child’s birth. 

If this form is completed before you leave the hospital, then an unmarried father can be included on their child’s birth certificate right from the get-go. However, this declaration can also be signed later on—even after the birth certificate has been issued—so long as it is voluntarily executed by both parents.

In the event that an unmarried mother refuses to recognize her child’s father, or, if the father does not want to take responsibility for their child, then things will need to be settled in court. Which brings us to the second method of establishing parentage. 

 

2. Court Contested Parentage

The second way to establish parentage is through a judge. 

This is obviously a more complex (not to mention emotional) method of establishing parentage. On the bright side, however, these days it is also a fairly straightforward process, thanks to DNA testing.

In California, either a mother or a father can file a parentage case, so long as they meet California’s six months residency requirement, and can show that they have a valid claim. 

Typically, the court will respond to these petitions by ordering a non-invasive DNA test (or, in other words, a mouth swab). Refusing to take this test is usually considered an admission of guilt, and the court will assign parentage, accordingly. 

Keep in mind, however, that you can’t take the perks of parenthood without the responsibilities. If the court determines that you are, in fact, a child’s legal parent, then you will be responsible for more than just playtime and decision making—you’ll also be on the line for your child’s care, too, which will likely include child support. 

Once this parentage is legally established, both parents will need to draft a parenting plan, which will organize your respective rights and duties as co-parents. 

 

California’s Third Parent Law

Historically, same sex couples have faced a lot of problems in the areas of parentage and child custody. This is because—even when they are legally married—it’s impossible for both spouses to be their child’s biological parent. 

Because of this, the presumption of parenthood is inherently prejudiced towards them, acting as a barrier to legitimate parents, who are unable to assume parental rights upon their child’s birth. 

The problem is, of course, how do you extend these rights to same sex parents, without accidently infringing on the rights of a birth mother (who may not want to give up her rights, altogether)? 

Thankfully, California legislatures are working hard to address these issues, and in 2013 they adopted a groundbreaking “Third Parent Law.” Under this new rule, three, gender neutral parent lines are now provided on a child’s birth certificate, allowing a birth mother to retain her rights, while also giving committed, same sex couples and spouses full parenting rights immediately upon their child’s birth. 

 

Unmarried Parents Attorneys in California

Whether you’re a peanut butter and jelly couple, a single condiment parent, or some other kind of sandwich, altogether, parental rights are the same, regardless of your relationship status.  

Hence, if you’re an unmarried parent in California, and have more questions about the rights and obligations of you and your child’s other parent, we want to hear from you. Call the Maples team at (209) 989-4425, or get in touch online, and let us help ensure your child’s best interests are being met. 

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Who Gets the House?

Your house is more than just a roof over your head… Not only does this structure act as the sacred keeper of your family’s memories, but it’s also often the most significant investment a married couple will make. 

Hence, if you find yourself worried, wondering: Who gets the house? in your divorce, don’t fret. You aren’t alone.

Here’s what you need to know about who gets the house in a California divorce, and how the Maples Family Law team can help you navigate these important issues. 

 

Who Gets the House: It Starts with Community Property

In California, a house is considered property. Hence, just like your car, bank accounts, debt, and that heirloom silverware your grandmother left you, this structure is subject to the same rules of community property, if you ever get divorced. 

Community property is one of two systems that US courts use to divide marital property, which focuses on ensuring each partner gets an equal share of marital assets. Here, the timing of when you got married (as well as when you acquired the property) will be important to determining how much of your joint assets you’ll ultimately walk away with.

To make these decisions, California courts will follow these four steps: 

  1. Identify all of the couple’s property.
  2. Classify all property as either separate or marital.
  3. Value all marital property. 
  4. Divide all marital property between spouses.  

Here’s a closer look at each of these steps, and how they specifically apply to our question: Who gets the family house? 

Step 1: Identify

First thing’s first: identify all of your property.

This ‘role call’ might sound silly (after all, how hard is it to identify a house?); however, it’s not just the house you’ll need to identify. During this step, you’ll need to produce documentation on everything you own, including all assets, real property, retirement accounts, debt, loans, credit cards, and investments. 

While these assets might not directly relate to your house, knowing exactly what you have will be important during the valuing and division phases. (After all, the court can’t divide a home’s value fairly, without knowing what else the couple owns.) 

Identifying property also acts as an important accounting step, to ensure that neither spouse is trying to hide assets from divorce court.

 

Step 2: Classify

Once property has been identified, the court will need to classify everything as either separate property (a.k.a. “individually owned” property), or marital property (a.k.a. “it belongs to both of you” property). 

In a community property jurisdiction, anything acquired before or after marriage is considered the separate property of whoever brought it into the marriage. In addition, gifts, inheritances, and awards of personal injury are also considered separate—regardless of when they were received. 

On the other hand, anything acquired while married—be it a paycheck, loan, credit card, or winning lottery ticket—belongs to both, equally, regardless of whose name it’s in. (Which, of course, is why your date of separation is so important, and why it’s a good idea to formalize it with a legal separation.)

Hence, in an extremely general, very sanitized scenario, a house purchased prior to marriage would possibly be considered separate property, and one purchased during marriage, marital property.

However, life is never that simple, and there’s a really good chance that at least some of the home’s value belongs to the marriage—even if it was purchased prior to tying the knot. (More on that to come…) 

 

Step 3: Value

Next, the court will assign a price tag to all of your marital property, including debt, investments, retirement accounts, and even bitcoin, too.

Pricing everything out is important to our house question, because a physical structure can’t be cut in half (sorry, Solomon!). Hence, only one spouse will be able to actually keep the house. The other will need to be compensated with a greater share of marital property, to make up the difference in value.

 

Step 4: Divide 

Finally, it will be time to divide the house and your marital property. To this end, couples can either:  

  1. Sell the house and split the value.
  2. Spouse A keeps the house, and refinances the mortgage to remove Spouse B from the loan. 
  3. Spouse A and Spouse B agree to temporarily keep the house together. 

Typically, the simplest option is to simply sell and split the value. In California, courts can’t force lenders to remove someone from a valid contract. Hence, sometimes complications can arise with refinancing. 

Then again, if kids are involved, it might be better for the custodial parent to keep the house for their emotional stability. 

In the end, there are pros and cons to each option, and it will be up to the couple and the court to determine which is best for their situation. 

 

Who Gets the House: Complications

So far, we’ve made the house dividing process sound very neat and clean, but the truth is, it’s usually anything but. 

For example, let’s say Spouse B purchased a house before getting married. This structure might have started out as separate property, however, once married, it was almost certainly paid for, maintained, or upgraded using marital funds at some point. Hence, there’s a good chance Spouse A shares at least some of the value in Spouse B’s home.

On the other hand, consider the possibility that Spouse A used separate money (like… say… funds from an inheritance) to finance a major upgrade on a house purchased after marriage. In this scenario, it’s possible Spouse A owns a share of the home’s value as separate property, even if it was purchased while married. 

Bottom line? Short of a valid prenuptial agreement, the question of who gets the house is not an easy one to answer. That’s why it’s so important to have an experienced attorney looking out for your interests during this process.

 

Divorce Attorneys in California

Your house might just be the biggest investment you made as a couple, so it’s pretty important to make sure its division is done right. That’s why we hope you’ll trust our experienced team to lend a hand in your divorce. 

If you have more questions about who gets the house in a California divorce, and how these rules might affect your situation, we want to hear from you. Call Maples Family Law at (209) 989-4425, or get in touch online, and let us help fight for your best interests. 

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Dating During Divorce

One question that clients sometimes ask us is, “What happens if my spouse is dating during divorce?” 

It’s a fair question. Until the ink dries on your order, you’re still technically married, and in many jurisdictions, infidelity can have a significant, detrimental impact on how divorce proceedings shape up—particularly when it comes to things like property division and alimony.

So, what does that mean for you? Do you need to be worried about dating during divorce in California?

We’re glad you asked. 

 

Breaking the Marriage Contract: Fault or No-Fault? 

Marriage might mean a lot of things to a lot of people, but for legal professionals it all boils down to a contract; a legally binding agreement for two adults who have decided to share their lives together. 

Divorce, then, is the opposite. It is the severing of one life into two, so to speak. When this happens, the marriage contract (which was created on your wedding day), must be broken. 

In general, there are two ways to do this: 1) No-fault Divorce, where neither party shoulders blame for the breakup; and 2) Fault Divorce, where the guilty party is held accountable for their role in the marriage’s failure. 

Back in the day, pretty much every jurisdiction required you to show proof of fault in order to get a divorce. These days, however, it’s the opposite, with every state now offering some kind of no-fault divorce grounds, and most doing away with fault, altogether. 

But how does fault apply to dating during divorce? you might be wondering. 

Because, dear reader, in some jurisdictions, dating during divorce could actually trigger a claim for fault-based divorce grounds. 

 

Dating During Divorce and Fault

Fault-based divorce grounds come in a variety of shapes and sizes, from felonies to infertility, and other things in between. However, the one thing that all fault states have on their Naughty List, is infidelity.

Infidelity (or adultery) is when two people engage in sexual relations, and at least one of them is already married… to someone else. 

In a fault-based jurisdiction, this could potentially mean the cheater gets less marital property, less alimony, and/or saddled with more than their fair share of marital debt. All of which is meant to penalize them for causing the marriage contract to fail. 

Of course, dating during divorce doesn’t always lead to sex, but it often does, and those who do are leaving themselves wide open to grounds for adultery—claims that can have some pretty catastrophic ramifications for cheaters living in a fault-based jurisdiction. 

However, luckily for cheaters in the Golden State, California is not one of those jurisdictions. 

 

California and Fault-Based Divorce

California is one of the many states that have completely done away with fault-based divorces. So, not only are you (legally) permitted to commit adultery to your heart’s content, you can also date during divorce without having to worry about putting your share of marital property in danger. (Not that we’re promoting adultery or anything, here, because obviously, that’s not cool. We’re just saying that dating isn’t likely to raise any legal red flags.)

The only way cheating might be held against you in divorce court, is if you included an infidelity clause in your prenuptial agreement. So long as the prenup is valid, the court will likely enforce whatever penalties you willingly submitted yourself to when you got married. 

That being said, even if you aren’t having sex, there are still a few things you might want to be warry of, if you’re thinking about dating during divorce.  

 

Dating During Divorce in California

Alright, so you’re legally permitted to commit adultery in California. Cool. So, does that mean dating before everything is official never impacts a divorce’s outcome? 

Not exactly. 

While California courts won’t consider fault—and, by extension, infidelity—when dividing up assets, there are a few things you might want to remember, before powering up your Tinder profile… 

 

1. Marital Money Doesn’t Belong to You, Alone

California courts might not penalize you for having an affair, but that doesn’t mean you’re free to spend marital assets on your new squeeze. 

California is a community property state, which means anything that either of you acquire after marriage, belongs to both of you equally—no matter whose name is on that paycheck. This means that if your divorce isn’t finalized yet, you’re not just spending your money on your dates. You’re spending your spouse’s money, too. (Awkward.)

Hence, your judge will likely require you to reimburse whatever money you spent on dates before divvying up marital property. And, depending on how discreet you were (and how long you were dating before divorce), this could end up being a lot. 

 

2. Don’t Neglect Your Children

Just like dating won’t directly affect marital property, neither will it directly affect your custody arrangement. However, it could have an indirect effect… 

In California, custody decisions are made according to the best interest of the child. If you are neglecting your child in favor of your dating life, or if your dating life is exposing them to harm in some way, then the court might think twice about how large a role you should play in your child’s life, post-divorce. 

Bottom line? If dating during divorce, keep your priorities straight, and remember that being a parent comes first.

 

Dating During Divorce: Just Don’t

Like with many things in life, just because you can date during divorce, doesn’t mean you should. 

Breaking up with a spouse is extremely stressful. This is someone you once loved enough to say, “I do,” so even if you know it’s the right decision, there will still be a lot of complicated emotions clouding the waters. (Not to mention demands on your time). And those aren’t the most ideal conditions for starting a new relationship. 

Do yourself a favor, and simply don’t date during divorce. Your kids need you right now. You need you right now. Wait until everything is finalized; until you’re in the right frame of mind to give your full heart to someone new.

Trust us, you’ll be glad you did.

Divorce Attorneys in California

While dating during divorce is unlikely to have a direct impact on your breakup, it’s not necessarily the best idea—especially when kids are involved. If you have more questions about why, or want to discuss other divorce-related questions, we want to hear from you. Call the Maples team at (209) 989-4425, or get in touch online, and let us help this process run smoother for you.

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Intro to Mental Health and Divorce

Those who are impacted by mental illness—whether personally, or indirectly, through a loved one—know that these unique issues don’t respect boundaries. The effects of mental illnesses (such as anxiety, depression, OCD, and addiction) stretch across every aspect of life, affecting everything from the everyday, to the atypical, including divorce.

Which is why it’s so important to address how mental health and divorce interact. Not just in terms of how these issues might impact your split, but in how divorce, itself, might affect you.

In this article we’ll introduce some of the biggest questions that often arise when mental health and divorce collide, and outline how the right attorney can help you navigate these complex matters during your California divorce. 

 

Mental Illness and Filing for Divorce

Many clients wonder whether the mere existence of a mental illness—either in themselves, or their partner—will prevent them from securing a divorce. 

The answer is a firm no. 

While “insanity” is a legitimate defense to criminal charges, it will not prevent you from getting a divorce from a mentally ill spouse. This is because family law (including divorce) falls under civil court jurisdiction, not criminal court. Hence, the same defenses don’t apply. 

California courts will never force you to stay married, just because your spouse suffers from a mental illness. 

 

Mental Illness and Marriage Annulment

Mental capacity is a key element to negotiating any valid contract, and this includes a marriage contract. This essentially means that both parties know what they’re doing (getting married), and that they are both old enough to make that decision (in California, eighteen). 

Without this mental capacity—say, if you’re too drunk, too high, or underage to know what you’re doing—it’s possible to get a marriage annulled. And it’s definitely possible to see how a mental health crisis might prevent someone from having adequate mental capacity for marriage. 

However, in order for an annulment to stick, you can’t have gotten better after the marriage. Hence, if the individual had a mental illness, but then recovered and lived freely in a marital relationship afterwards, then a judge will not annul the marriage. 

 

Mental Illness and Grounds for Divorce

Mental health issues often come up when couples cite their grounds for divorce. 

In legal speak, your “grounds” tell the judge why you want to get divorced. Grounds are a required part of your divorce complaint, and in some jurisdictions, can be used to assign blame to one spouse for breaching the marriage contract. 

Grounds that request some kind of guilt be placed on one party or the other are called “fault” grounds. Grounds that do not attempt to assign blame are called “no-fault” grounds. 

California is a solidly, no-fault divorce state, meaning judges will not consider fault when dividing marital assets or alimony. Instead, couples filing for divorce must choose between one of two no-fault divorce options:  

  1. Irreconcilable differences 
  2. Incurable insanity

 

1. Irreconcilable Differences

Irreconcilable differences essentially mean that you are no longer able to reconcile with one another, and want out. When filing this way, neither party needs to back up this claim with proof, and no one is held liable for the breakup. 

Because it’s so quick and painless, this is by far the most common grounds cited for divorce in California. 

 

2. Incurable Insanity

Incurable insanity, on the other hand, is rarely cited as grounds for divorce, since the burden of proof is so high. In order to file under these grounds, you must show that your spouse lacks legal capacity. 

Legal incapacity occurs when someone doesn’t have the mental wherewithal to make decisions, and may manifest as:  

  • An inability to stay alert and attentive; 
  • An inability to process information (such as memory or communication); 
  • A detachment from reality (such as the existence of delusions or hallucinations); or, 
  • An inability to control mood and affect.  

Not only must you provide proof from multiple physicians that these elements exist, but these experts must also testify that your spouse is unlikely to ever recover. Which—considering the unpredictable nature of mental illness—is a very difficult diagnosis to procure.  

Furthermore, when mental illness really is that severe, your judge will need to assign your spouse a guardian, who will look out for their interests during divorce process. 

Because of all these complexities, most couples choose to simply file for irreconcilable differences, instead.

 

Mental Illness and Child Custody

Mental illness does not directly influence decisions about child custody. However, depending on the condition—as well as the severity of the symptoms—it’s possible that mental health could still indirectly influence custody. 

This is because in California, custody decisions are made according to the best interest of the child. Here, everything from primary residence, visitation, and child support are determined based on which outcome will serve a child’s long-term health and happiness the best. This is done by weight a number of individualized factors, including:  

  • The child’s age and preference (if old enough);
  • The child’s health and need for stability; 
  • The child’s relationship with each parent; 
  • Each parent’s ability to care for their child; as well as,
  • Any history of domestic violence, abuse, or neglect. 

As you can see, while mental illness isn’t a direct consideration, it can still significantly contribute to many of these factors. Especially when it comes to violence and neglect, or if the mental illness prevents the parent from providing a stable home for their child (such is often the case with drug and alcohol abuse).

Regardless of the circumstances, the court will put the child’s needs above all else, while maintaining parental rights as best as possible within that scope. 

 

Mental Illness and Property Division

Since California is a no-fault divorce state, it’s unlikely that mental illness will have any impact on the division of marital property.  

California is a community property state, which means that anything acquired after marriage belongs to both spouses equally—regardless of whose name is on the paycheck, deed, loan, or card. Hence, without fault to influence this decision, all of this shared property will be divided equally, upon divorce.

 

Mental Illness and Alimony

In some cases, mental illness affects a spouse’s ability to hold down a job, post-divorce. These individuals may struggle to make ends meet, and to maintain their marital standard of living, once divorced. 

In these situations, the court may require the stable spouse to make spousal support payments to help out. Though, the court is highly unlikely to require this when the mental illness is related to alcohol or drug abuse. 

Mental Health During Divorce

When it comes to divorce, it’s not just about how preexisting conditions can affect your breakup. It’s also about the way the breakup affects your mental health. 

Divorce is an extremely stressful and emotional process—even for people who don’t have mental health problems. That’s why it’s so important to make sure you’re mindful of your own equilibrium throughout the entire divorce process. 

For some people, maintaining good nutrition, getting enough sleep, and exercising are adequate. Others might benefit from therapy. Parents, especially, shouldn’t neglect themselves in this regard, since it’s difficult to support a child’s emotional needs when you aren’t taking care of yourself. 

If you need additional resources, your attorney can assist you in finding qualified therapists and programs that can help your family through this transition.

 

Divorce Attorneys in California

Whether you are dealing with your own demons, or the mental illness of a loved one, mental health struggles are never easy. That’s why it’s important to have an attorney understands your needs, and can address your unique needs. 

If you have more questions about mental health and divorce, we want to hear from you. Call Maples Family Law at (209) 989-4425, or get in touch online, and let us help you navigate these matters with the sensitivity and gravitas you deserve.

Child Custody

International Custody

Child custody battles are difficult to settle, even for families under normal circumstances. Throw in a couple passports, international job offers, or a few competing citizenships, though, and things get even more interesting. 

In a modern world full of ever-shrinking borders and broadening horizons, international custody is becoming more and more commonplace. Hence, if you’re sitting there wondering: “Who gets custody if my spouse or I live internationally?” then you’re far from alone. 

International child custody disputes happen every day, and—while slightly more complicated than the regular variety—federal courts and international treaties have already laid out a clearly established set of guidelines for California courts to follow in these situations. 

Here’s what those laws look like, how they’re applied in California, and what the team at Maples can do to help resolve your international custody dispute.

 

International Custody: The Basics

International custody refers to child custody disputes between parents with competing nationalities. This could be because of differing citizenships, international job opportunities, long term travel, immigration, student or work visas, or a number of other scenarios.

In these situations, if both parents recognize the authority of a United States court to decide matters, then there really isn’t an issue, and the case will proceed more or less like a normal custody dispute. Where problems arise, however, is when one parent raises a jurisdictional challenge. 

For these matters, California judges are bound to follow the rules and guidelines set down by federal law and international agreement. (This is because—as a state court—California does not have the power to negotiate with foreign courts on its own.) 

In the United States, there are two main bodies of law that govern international custody, and they are: 

  1. The Hague Convention—an international treaty that deals primarily with international child abduction (especially where parents are involved), and provides judicial protocol for returning a child to their home country for custody resolution. 
  2. The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)—a federal law that helps state courts determine who has jurisdiction, and requires California courts to follow the laws of a child’s home country, if it’s determined that the U.S. does not have jurisdiction.

Hence, when presented with an international custody case, the first thing California courts will do is to see if the country in question has signed on to the Hague Convention. 

 

1. The Other Country is NOT Part of the Hague Convention

If the country in question has not signed the Hague Convention treaty, then before anything else, the court will need to determine who has jurisdiction over the case. In California courts, this determination is made using the UCCJEA. 

Under the UCCJEA, a child’s “home” is wherever they have lived during the six months immediately prior to the child custody dispute.

If it’s determined that the child’s home is California, then the court may apply the other country’s laws during the dispute, but aren’t obligated to (and especially not if those laws violate human rights). 

If, on the other hand, the other country is their child’s home, then the U.S. will be required to make custody decisions based on that country’s laws (or, according to the UCCJEA, whichever has ultimate jurisdiction). 

 

2. The Other Country IS Part of the Hague Convention

If, on the other hand, the country in question has signed onto the Hague Convention, then the Convention is only triggered if the child has been wrongfully abducted from their home country (or, “habitual residence”). 

Here, the country who initiates a claim has two options. They can either:

  1. Demand the immediate return of the child; or, 
  2. Request an arrangement for the other parent to have continued access to their child.  

The problem is, even when both countries have agreed to the Convention, foreign courts don’t always see eye to eye, and will sometimes refuse to comply. This refusal is exasperated by the fact that there aren’t any real consequences for not following the Convention. 

Hence, if you’re worried about an impending divorce that involves international custody, it’s critical to talk to your attorney immediately, just in case you need to file a temporary order.

 

International Custody and Move Away Requests

Sometimes the court gets an international move away request after a divorce is finalized. 

A move away request is essentially a petition for custody modification, which will allow a custodial parent to relocate their child outside the specified geographic boundaries of their parenting agreement. 

Like in a regular move away request, your judge will weigh the merits of different factors, in order to determine what scenario will be in your child’s best interest. These include: 

  • The distance of the move.
  • The reasons for the proposed move.
  • The child’s age.
  • The child’s wishes (if old enough). 
  • The child’s need for stability and continuity.
  • The child’s relationship with both parents.
  • The relationship between the two parents (including how each communicates, and if both are willing to facilitate the child’s relationship with the other). 
  • The current custody arrangement (including who the custodial parent is, and by how much). 

Additionally, when a move will take a child outside of the United States, California courts will pay particular attention to:

  • The cultural differences between what the child has here, and what they’d experience there (and how that disruption would affect them). 
  • The distance of the move, and what it would mean in terms of travel expenses, jet lag, time difference, and obstruction of contact with the child’s other parent.
  • Any ongoing jurisdictional problems with the other country (say, for example, whether or not the country was part of the Hague Convention). 

Because of the disruption it poses to the child’s life—as well as the challenges it would pose for the child’s other parent—international move away requests are much more difficult to approve than state to state moves.

 

Parental Kidnapping 

Unfortunately, parent kidnappings are a very real, very common occurrence—especially where international custody is concerned. In fact, it’s estimated that over 90% of international kidnappings are carried out by a child’s parent, and these abductions can happen at any time before, during, or after divorce proceedings. 

When this happens, the Hague Convention is triggered, and will require the country in question to return the “wrongfully removed” child back to their home country for custody resolution.

The problem is, that—even when both countries have signed the Hague Convention—it’s always more challenging to get a child back, once they’re in another country. And those challenges get worse, the longer the absence drags on. 

Hence, if you’re worried your ex might try to remove your child from the country without consent, it’s vital to contact your attorney, and notify officials. In some situations, a temporary order can be filed to ensure they cannot flee with your child. 

 

International Custody Attorneys in California

While international custody isn’t nearly as straightforward as your regular, run-of-the-mill variety, with the right attorney, this process doesn’t have to be as scary as you might be thinking. The key is to act early. 

If you have questions about international custody in California, and how these laws might apply to your situation, don’t wait. Call the Maples team at (209) 989-4425, or get in touch online, and let us help protect your child’s best interests in these important matters.

Child Custody

Who Gets Custody if My Spouse or I am…

Regardless of what type of divorce you choose, there’s no getting around the fact that child custody is a brutal process fraught with fears of denied rights and less time. 

Worries like these can be particularly strong for parents serving in the armed forces. However, whether you are the spouse at home, or the one serving abroad, you are not alone if you find yourself wondering, “Who gets custody if my spouse or I am in the military?” 

Fortunately, both federal and California state legislatures have taken measures to protect the rights of service women and men, who are out fighting for our country whilst simultaneously dealing with divorce. 

Here’s what you need to know about military custody in California, and how the Maples Family Law team can help safeguard your rights while you’re on active duty. 

 

Will Military Service Affect My Custody Battle?

The short and emphatic answer is: absolutely not. Both state and federal laws prohibit judges from making custody decisions based solely on military obligations. 

The longer—and somewhat convoluted—answer, is that temporary concessions might still have to be made, in order to ensure that a child’s care doesn’t lapse or suffer, while a parent is away on active duty. Because the reality is: you can’t actually be home to care for your child and be on active duty at the same time. Which means that sometimes military service can inadvertently influence a judge’s custody determination. 

That being said, California courts have long maintained that a child’s best interests are served when allowed to have a loving, healthy relationship with both parents whenever possible. And to that end, both federal and state governments have provided a host of protections to ensure that the rights of military parents are not suspended, revoked, or denied based on their service to our nation. 

 

Federal Military Custody Protections

The last thing our government wants is for parents to feel like they’re being punished for devoting time to the armed forces. (We’re thinking that wouldn’t be very helpful for recruiting officers). Not only would it be unjust to punish someone for their service, but distracted soldiers aren’t the most productive ones, either. 

This two-fold concern is largely what motivated the adoption of the Servicemembers Civil Relief Act (SCRA), which, among other things, can be used to temporarily suspend divorce and custody hearings for service women and men, while on active duty.

This federal act, adopted in 2003, applies to all:

  • Active duty members of the regular forces (army, air force, navy, marine corps, and space corps); 
  • Members of the National Guard (when in active service, under federal orders); 
  • Members of the reserve (when called to serve on active duty); and, 
  • Members of the Coast Guard (when serving on active duty, in support of the armed forces). 

SCRA is specifically designed to relieve these individuals from the stress of civil litigation back home, so that they more fully direct their attention to their posts abroad.  

Here are a few of those SCRA protections relating to parental rights. 

 

Stay of Proceedings

The right to stay (or “hold off”) certain legal proceedings is an important one for the SCRA. This safeguard applies to individuals who cannot attend a hearing (or other legal procedure) in person, because of a military obligation. 

Individuals who invoke this particular protection should be prepared to provide proof of service. They should also keep in mind that, when granted, this hold won’t be infinite. Once their service is complete, they will be required to attend the proceedings. 

 

Stay of Execution (Enforcement) of a Judgment

Similar to a stay of proceedings, a stay of enforcement can be used to stop a judge from carrying out the terms of an order. However, once again, you must be able to show that military service was directly responsible for keeping you from upholding your obligations under whatever order you violated. 

 

Expedited Modification of Support

This protection gives you the right to request an expedited hearing for a modification of child support. Typically, this protection is utilized by service personnel who are being deployed out of state, so that they can get their modification reviewed and revised before departure. 

 

Interest Reduction

Certain parents might also qualify for a 6% reduction in interest for past due child support payments, for times when they were on active duty.

A non-custodial parent who wishes to file for this relief must show that his or her inability to pay the full amount of support was a direct result of military assignment. (Usually because they were making more money before deployment.) 

 

Military Qualified Debt Reduction Program

The SCRA also allows some National Guard parents to qualify for government debt reduction (such as federally backed student loans). This protection is reserved specifically for those whose income decreased, as a result of deployment.  

 

California Military Custody Protections

In addition to full compliance with the SCRA, California legislatures have also adopted their own, state-level safeguards for

military parents. Some of these protections include: 

  • Prohibiting custody modifications in certain situations; 
  • Keeping amendments to custody temporary; 
  • Suspending cases while the military parent is absent on active duty; and, 
  • Honoring official visitation requests issued by the military parent. 

 

Prohibiting Custody Modifications

According to the California family code, compliance with a military assignment cannot be used to justify a modification argument. (For example, if your ex wanted to use your absence as a way to justify a geographic relocation, or as an argument in favor of full custody, the court would not allow it).

That being said, judges are still permitted to consider other, non-military arguments in favor of modification. 

 

Temporary Amendments

If the disruption of your responsibilities is drastic enough to completely derail your parenting plan—such as would be the case if a custodial parent received an out of state assignment—then custody may be amended to give the secondary parent custodial power while you were away. 

However, these orders would be considered temporary, and custody would revert back to the original terms, once the primary parent came home again.

 

Case Suspension

If you are on active duty, custody and other family law cases can be suspended until you return.

In a similar vein, any default judgments that might have been entered against can be overturned—and the case reopened—if you can show the judgment was entered against you while you were on active duty.

 

Visitation Requests

Finally, a military parent in California can sometimes facilitate visitation rights for an outside adult (such as a step-parent, grandparent, or other family members), if: 

  • A preexisting relationship already exists; 
  • The visitation will help the child cope while their parent is away; and, 
  • The visitation doesn’t interfere with the remaining parent’s rights.  

This outside visitation cannot be requested by the outside party, however. It can only be initiated by the military parent. 

 

Military Custody Attorneys in California

Regardless of whether you are the spouse at home, or the one serving abroad, when it comes to military custody, it’s important to hire the right family law attorney. Someone who knows—not just California family law—but is experienced in understanding how these laws are affected and altered by military obligations. 

If you have more questions about military custody, and how it might play out in your divorce, we want to hear from you. Call the Maples team at (209) 989-4425, or get in touch online, and let us help ensure the best outcome for your child. 

Child Custody

FAQs About Same Sex Custody

Same sex marriage might be legal across the United States, but LGBT couples still face unique challenges in divorce and custody, where—even when applied the same—family laws often contain inherent discriminations that exclude same sex couples.  

This is particularly true in child custody, where the presumption of parenthood falls short of the mark for same sex parents, prompting a lot of head-scratching questions about how same sex custody actually works in California. 

Luckily, we’ve got you covered. 

Here are answers to some of the most commonly asked questions about same sex custody in California, and how Maples Family Law can help with these important matters.  

 

How Does California Handle Same Sex Custody?

During a same sex custody dispute, there are four main issues that the court will need to address, they include deciding: 

  • Which parent(s) will have legal custody.
  • Which parent(s) will have physical custody. 
  • The terms and conditions of visitation for the child’s non-custodial parent.
  • How much child support will be paid by the child’s non-custodial parent.

Here, your judge will assign legal and physical custody either to one parent, alone (called “sole custody”), or to both, together (in “joint custody”). This split will be made by examining a number of individualized factors, and decided according to your child’s best interest.

 

What Factors Does the Court Consider During Child Custody?

No two families are ever the same, which means that when it comes to child custody, no set formula can apply to every situation. 

Instead, the court will make custody decisions by weighing a number of different factors against potential outcomes, such as: 

  • The child’s relationship with both parents.
  • The child’s emotional and psychological needs. 
  • The child’s physical, medical, and educational needs. 
  • The child’s relationship with other members of the immediate households. 
  • Each parent’s ability to care for their child. 
  • Any history of domestic abuse, violence, or neglect.
  • Which parent seems most likely to encourage a relationship between their child and their child’s other parent. 

At the end of the day, your judge will choose—not necessarily the outcome you want—but the one they think will best suit your child’s long-term health and happiness.

 

Are the Rights of Same Sex Parents Different from Hetero Parents?

No. In California, it does not matter whether parents identify as hetero, or LGBT. Parental rights are the same, regardless of sexual orientation. The same is true for child custody laws, which are applied the same, regardless of the parental matchup. 

 

If the Laws Are the Same, Then Why Do Same Sex Couples Have More Problems During Custody Disputes? 

If both parents are legally registered parents, then (theoretically) their custody dispute shouldn’t have any extra problems. The problems—when they arise—occur when only one parent is legally recognized. 

Many family laws are inherently prejudiced against same sex relationships, meaning that—even when they’re applied “equally”—the results affect LGBT parents differently.

This is especially evident with the presumption of parenthood, which states that only a child’s biological parents can claim rights at the child’s birth. This inevitably excludes one parent in a same sex relationship, requiring them to adopt before they’re granted parental rights.

California legislatures are working hard to eliminate inherent prejudices such as these. 

 

What is California’s 3rd Parent Law?

The “3rd parent law” refers to a 2013 change to California’s family code, which upped the number of legal parents allowed on a child’s birth certificate from two to three.

Yes, you read that right. In California, three parents can be listed on any of the three (gender-neutral) parent lines. 

This radical new change allows both partners in a same sex marriage to assume parental rights over their child, without the need for adoption. At the same time, it also safeguards the rights of the child’s other biological parent.

 

What About Unmarried, Same Sex Partners?

A couple does not have to be married to take advantage of California’s 3rd parent law. Registered domestic partners, as well as long-term (unregistered) partners can also claim rights under these rules.  

However, the 3rd parent law isn’t a failsafe catchall. For example, it doesn’t specify what should happen when a couple’s relationship begins after the birth (or adoption) of a child, and the non-biological parent never formally adopted.

There is no easy answer for same sex couples in these situations, however, one solution might be to argue for rights as a de facto parent.  

 

What is a De Facto Parent?

A de facto parent is someone who has assumed the role of a parent long enough to have formed a strong, parent/child bond with a child that is not legally theirs.  

To determine whether this relationship exists, the court will analyze the situation, to see if:  

  • The non-parent ever lived in the same house as the child. 
  • The child’s legal parent was aware of and/or encouraged a parent/child bond.
  • The non-parent took responsibility for the child’s daily care, social development, education, financial needs, and health.
  • The relationship lasted long enough for a parent/child bond to form with the non-parent adult. 

Needless to say, de facto parents have an uphill battle, and you won’t qualify just because you were in a relationship with someone who happened to have a child. 

California courts will only grant this status when doing so serves a child’s best interest—or, in other words, when not granting these rights would essentially cause the same, psychological harm as it would to keep a child away from their legal parent. 

 

How Can I Avoid Same Sex Custody Problems?

Most same sex custody problems happen because one of the parents is not legally recognized at the time of divorce. Hence, the single biggest thing couples can do to avoid these issues is to make sure both are legally recognized as soon as possible—even if that means formal adoption.

If that ship has already sailed, try to avoid waging a parentage battle in open court, where you could easily end up with a prejudicial judge. Instead, we suggest mediation (which is almost always better, anyway). 

At the very least, always try to remember to put your child’s emotions and needs before your own.

 

Same Sex Custody Attorneys in California

If you have more questions about same sex custody in California, and how these laws might apply to your situation, we want to hear from you. Call the Maples team at (209) 989-4425, or get in touch online, and let us help ensure your parental rights are protected.

Child Custody

Same Sex Custody in California

In 2015, the Supreme Court of the United States made same sex marriage legal, meaning that LGTBQ couples now enjoy the same, basic rights to marry and divorce as hetero couples—no matter which state they live in. 

Theoretically, these considerations also apply to parental rights, too, including custody. (After all, children are a pretty big part of family relationships.) However, same sex custody isn’t always as cut and dry, and same sex couples often face unique challenges in custody disputes.

Here’s what you need to know about same sex custody in California, and how the Maples Family Law team can help you resolve these important matters during a divorce. 

 

Same Sex Custody: The Basics

Child custody is a legal term that encompasses the wide range of rights and responsibilities that a parent has, in relation to their child. Specifically, it refers to a parent’s right to make decisions for that child, and to have contact with them, while young. 

In a custody dispute, a judge will grant legal and physical custody to parents either together (as “joint custodians”), or to one parent, alone (called “sole custody”). Based on these decisions, visitation and child support obligations will then be assigned, accordingly.  

Theoretically, this child custody process should apply to parents the same, regardless of sexual orientation. The reality is, though, that many states fall short in recognizing that—even when applied “equally”—child custody laws are inherently discriminatory against same sex parents. (Largely due to the fact that, in a same sex partnership, only one parent can be a child’s biological parent.) 

California legislatures have attempted to remedy these inherent discriminations, by creating child custody laws that are gender neutral and inclusive to all parents, regardless of sexual orientation. 

That being said, same sex parents are still more likely to face challenges during a custody dispute—the range and extent of such problems generally revolving around the legal status of both parents, at the time of divorce.

 

Same Sex Child Custody Scenarios

The legal status of a child’s parents will be the best indicator of how easy it will be to settle custody. 

If both parents are legally registered, then the question of who has a claim to rights becomes relatively straightforward. If one parent isn’t legally recognized, however, things get more complicated. 

In a same sex partnership, this legal status generally presents as one of three main scenarios: 

  1. The child is adopted by both parents, and both are registered as legal guardians. 
  2. The child is born into a marriage, registered partnership, or civil union.
  3. Same sex partners are unmarried, and only one of them is the child’s legal parent. 

Here’s a closer look at each of these scenarios. 

 

1. Child is Adopted by Both Parents

In the first scenario, child custody is a relatively simple matter (well, as simple as custody ever gets, that is). Once complete, adoption confers the same rights and responsibilities to adopted parents as biological ones—regardless of gender. 

Hence, same sex partners who have both legally adopted their child will each have an undisputed right to claim all the powers and responsibilities associated with parenthood, upon divorce.  

 

2. Child is Born into Marriage

In California, it doesn’t matter if you are in a same sex partnership, or a hetero one, if a child is born into your union, you are treated as the child’s legal parents, under the presumption of parenthood. 

California is one of very few states that have granted same sex parents this presumption. By allowing it, however, they’ve taken a huge step in helping to eliminate discrimination towards same sex parents. 

We should also note that this allowance doesn’t eliminate the rights of either of a child’s biological parents, either. As of 2014, as many as three parents can now be listed on a child’s birth certificate, thereby giving all parties involved the peace of mind in knowing their parental rights are protected.

 

3. Unmarried, Same Sex Parents

Finally, we have unmarried, same sex parents—a situation where either the biological parent is the child’s only registered parent, or else a non-biological, adopted parent is the only legally registered parent. 

Out of all our scenarios, this is the most precarious place for same sex couples to be, because here, only one half of the duo is recognized as the child’s legal parent. These are co-parents who never had a chance to assert parental rights at a child’s birth (or adoption), but who—nonetheless—played a pivotal role in the child’s upbringing and development. 

To answer these questions, California courts turn to the doctrine of psychological parenting. 

The Doctrine of Psychological Parenting

This doctrine recognizes that a co-parent doesn’t necessarily have to have legally adopted a child for them to have fulfilled that role in a child’s life. This principle places the best interest of the child above the need for strict, legal formalities, and—in some situations—will grant a non-biological/non-legal co-parent parental rights, without requiring a formal adoption.

In California, a parent who qualifies under the doctrine of psychological parenting is called a “de facto parent.”

 

De Facto Parents

Not everyone in this situation will qualify as a de facto parent (in fact, more likely than not, the cards will be stacked against you). Instead, the court will seriously evaluate a number of different things, including whether:  

  • Whether the non-parent lived in the same house as the child.
  • Whether the child’s legal parent was aware of—and consented to—the formation of a parent/child bond. 
  • Whether the non-parent took responsibility for the child’s development, care, education, and financial needs. 
  • Whether the relationship lasted long enough for the child to form a parent/child bond with the non-parent adult. 

As you can see, becoming a de facto parent isn’t a foregone conclusion, and requires more than just a romantic relationship between partners—one of whom just so happens to have a child. 

Still, why would the court uphold de facto rights at all? Isn’t that kind of strange? (We’ll give you a hint: it has nothing to do with you…) 

 

Best Interest of the Child

If you answered with, “Because it’s in the child’s best interest,” then you’d be correct. 

In all cases of child custody—not just those involving de facto parents—the court’s driving motivation is to find the arrangement that will best serve a child’s long-term happiness, health, and wellbeing. And if that child has formed a bond with someone who has acted like a parent, looks like a parent, and smells like a parent, then the court figures it’d be pretty damaging to separate that child from that person, even if the relationship was never formally recognized through adoption. 

That being said, LGTBQ parents in this situation still face an uphill battle—especially if paired with a judge who has strong prejudices against same sex relationships. That’s why, when dealing with same sex custody, it’s so important to hire a family law attorney you can trust. 

 

Same Sex Custody Attorneys in California

In theory, same sex couples have the same rights to marry, divorce, and parent as their hetero counterparts. However, despite lawmakers’ best efforts, the practical execution of these laws doesn’t always pan out the way they’re meant to, which is why you need an experienced family law attorney to help fight for your rights. 

If you have more questions about same sex custody in California, we want to hear from you. Call the Maples Family team at (209) 989-4425, or get in touch online, and let us help ensure the best interest of your child is met. 

Divorce

Parental Rights

Between tantrums and teenagers, it’s sometimes hard for parents to feel like they have control over anything their child does. However, while there’s only so much you can do to change the tides of an adolescent mood swing, in the legal sphere, your role as your child’s protector and provider actually comes with a lot of rights. 

These powers are called “parental rights,” and they are inherent to the job title, which means that even if you get a divorce, your right to have a relationship with your child won’t expire.

Here’s what you need to know about parental rights in California, and how Maples Family Law can help make sure yours are protected. 

 

What Are Parental Rights?

First off, let’s define exactly what we’re talking about, here. 

In California, parental rights refer to the various powers and responsibilities that parents have to care for, and make decisions on behalf of their child. 

This authority is inherent to your role as a parent, meaning it can’t be taken away from you, except by court order (which generally only happens under extreme circumstances, such as neglect, abuse, or family violence). 

While married, neither spouse needs the permission of the other to exercise their parental authority. Instead, the court presumes that the decisions of one parent speaks for the mind of both, and that they are united in the direction of care for their child. Once you get divorce, however, all that changes. 

 

What Happens to Parental Rights During Divorce?

Unlike marital rights, parental powers are not severed by divorce—after all, you don’t stop being a parent, just because you’re no longer a spouse. (The same logic applies to unmarried parents, whose parental authority isn’t invalidated by the fact that they aren’t married.) 

That being said, just because these powers don’t disappear, doesn’t mean they’ll operate the same way on the other side of divorce. 

When you file for divorce, that’s a pretty clear indication that you and your spouse are no longer on the same mental wavelength. And since the court can no longer assume that the decisions of one represents the mind of both, they’ll need to set parameters on how parental authority is used, and where your child will spend their time. In layman’s terms, we’re talking about a “custody battle.”

In a custody dispute, the court assigns parental rights by breaking them into two main categories: legal and physical. Each can then be distributed either to one spouse, individually (in “sole custody”), or to both, as a shared responsibility (“joint custody”). 

Whether your child came to you biologically, or through adoption, these custody distinctions—as well as the various laws governing parental rights—remain the same. 

Parental Rights and Adoption

Unlike a guardianship, adoption is permanent, and has far-reaching effects. This legal action completely alters a child’s family tree, reaching both forward and backwards through time, shifting the lines of inheritance to adopted parents, and requiring the child to have a new birth certificate. 

In other words, once adoption is complete, it’s as though—for all intents and legal purposes—the child’s adopted parents were its only parents.

This means that adopted parents enjoy the same rights as their biological counterparts—in the eyes of the law, there is no difference. Once finalized, adopted parents may claim the full mantle of parental rights and responsibilities.

 

Parental Rights for Unmarried Parents

When a child is born into a marriage, California courts presume that the baby is the biological offspring of the mother and father in that marriage. A baby’s parentage can also be assumed if the parents have been living together, but aren’t married. 

What happens, though, if the parents aren’t married, or if the baby is fathered by a man who isn’t the mother’s husband? 

Technically, parental powers should apply, regardless of your marital status. However, because they aren’t married, California’s presumption of parenthood can’t be applied the same way, and this can cause some unique hurdles—particularly for unwed fathers.

 

How the Court Views Unwed Mothers

Once her child is born, an unwed mother automatically assumes parental power. 

This is because, well, let’s be real, here: birth is a pretty hard thing to fake. It’s not something that leaves a lot of doubt on who the biological parent is, and hence, this half of the parental rights duo is easy to legally assign.

Unless someone is challenging her ability to care for the child, an unwed mother receives full custodial power and parental authority upon the birth of her child—no legal hoops necessary.

 

How the Court Views Unwed Fathers

Due to nature’s biological constraints, it’s a lot harder to verify an unwed father’s claims to parenthood than a mother’s. That’s why in California, unwed fathers are not automatically given parental rights when a child is born.  

According to California family law, unwed fathers are not considered a child’s legal parent until they establish paternity—regardless of whether or not they are in a relationship with the child’s mother, or even if they are listed on the child’s birth certificate. 

Unless the father has actually been living with the mother for a significant amount of time prior to the child’s birth, he must establish paternity before he can assume parental authority. Until he does so, he will not be able to make decisions on behalf of the child, or have any right to custody, including visitation. 

 

Establishing Paternity

There are two ways for an unwed father to establish paternity: 

  1. To have both mother and father sign a “Voluntary Declaration of Paternity” form; or, 
  2. Pursue a paternity action in court. 

Naturally, the most headache-free option of these two, is to simply sign and submit the paternity form. 

However, if the mother refuses to acknowledge paternity—or, conversely, if a father, himself, refuses to take responsibility for his child’s welfare—then either father or mother will need to file an action in court, before rights and responsibilities can either be claimed or assigned.  

A court paternity action can be filed by any of the following: 

  • The child’s mother; 
  • Any man claiming to be the father; 
  • Any man that could possibly be the father; 
  • A child support agency; or, 
  • An adoption agency.

Usually when a paternity case is brought before the court, a judge will require both the baby and its potential father to submit material for genetic testing. These tests are much less invasive, once a baby is born, which is why courts almost never require in utero genetic tests.  

Once the baby’s parentage has been established, the court will then assign each parent their various rights and responsibilities, including child support, custody, visitation, and health insurance. 

If the male in question refuses to cooperate with genetic tests, the court is permitted to take this as evidence that he is the father, and may assign him parental responsibilities, anyway. 

 

Same Sex Parental Rights

Over recent decades, California has set itself apart as being one of the most progressive states, in terms of protecting the rights of same sex couples, spouses, and parents. 

Because of these efforts, same sex parents in California now enjoy the same parental rights as those of a hetero couple, with other anti-discrimination laws in place to protect them from unfair prejudice in court. California has even enacted legislation that allows more than two parents to retain parental rights, which can help a same sex parent retain custody, upon divorce.

Even still, same sex couples continue to face discrimination when it comes to child custody. Hence, the best way to ensure that both have indisputable custodial rights over their child, is for each to simply adopt, right from the onset.

If you have more concerns about how parental rights apply to same sex custody situations, it’s best to speak to a family law attorney about your unique situation. 

 

Parental Rights Attorneys in California

At Maples, we know that nothing is more important to you than your child. You care about their emotional and physical wellbeing, and worry that you won’t be able to see them, after your divorce. As parents, ourselves, we understand these concerns, which is why we hope you’ll trust us to help protect this precious relationship. 

If you have more questions about parental rights in California, and how divorce might affect your family dynamics, we want to hear from you. Call Maples Family Law at (209) 989-4425, or get in touch online, and let us help protect the best interest of your child.

Anna Y. Maples Maples Family Law



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