Author: <span>tobyrosen</span>

Maples Family Law Remains Operational During COVID-19

April 6, 2020
by tobyrosen

The Superior Court for San Joaquin county has released guidelines to help parents navigate custody procedures during the COVID-19 crisis. You can view their release below.

Superior Court of San Joaquin county – Child support & custody information

For more information on dealing with custody and support issues during this time, please feel free to contact our office at (209) 910-9865 or online here.

Maples Family Law is committed to remaining operational during the COVID-19, and to doing our part to fight back against the outbreak. We’ll be offering telephone and video consultations, and will continue to process cases on behalf of our clients.

Divorce

What Are My Financial Obligations to My Spouse?

March 29, 2019June 1, 2020
by tobyrosen

California views marriage as a partnership, specifically as it relates to management and control of community assets; this partnership carries rights and obligations which are similar to those in a standard business partnership. So, what are your financial obligations to your spouse? Chief among these obligations is what is known as the “fiduciary duty”, which requires the highest degree of good faith and fair dealing between the parties.

As such, a spouse is obligated to disclose all relevant information, and refrain from damaging the marital partnership’s financial well-being. These disclosure requirements continue until the fiduciary duty has ceased to exist, which is either when a community asset is distributed, or in the case of assets affecting support, when a binding Court order is entered. In short, if one spouse is taking advantage of community assets for their own benefit, they have likely violated their obligations to their spouse.

Beginning in the mid-1970s, California’s concept of a spouse’s duties and obligations in relation to “management and control of community property” has shifted from the concept of “good faith”, to “confidential duty”, to the now controlling “fiduciary duty” standard; today, California uniformly utilizes the “fiduciary duty.” See IRMO Duffy (2001) 91 CA4th 923, 935-939 (providing a comprehensive discussion of the evolution on California’s law regarding management and control of community property). This standard, as applied to management and control of community property, requires the highest duties of good faith and fair dealing; it prohibits one spouse from taking unfair advantage of the other regarding the use of community assets. In short, the fiduciary duty between spouses is identical to the fiduciary duties between non-married business partners; this is because California views marriage as an economic partnership when it comes to their joint assets (which is analogous to a business account). Marriage of Georgiou & Leslie (2013) 218 CA4th 561. It is important to note that while this article focuses on a spouse’s fiduciary duties relating to management and control of community property, that fiduciary duty also applies to one spouse’s separate property. Marriage of Walker (2006) 138 CA4th 1408, 1419 (dictum).

Family Code §721(b)(1) –(3) sets forth a non-exhaustive list of the rights and duties of spouses’ as it relates to community property, and ostensibly separate property, which includes:

Allowing each spouse to access any books which are kept for the purpose of recording transactions, and further allowing that spouse to inspect and copy those records; this right can be exercised at any time;
On the request of one spouse, the other spouse is obligated to provide full and accurate information regarding any transactions concerning community property;
- NOTE: This does not mean that spouses must keep a detailed record of transactions. However, if records are being kept, then either spouse has unfettered right to inspect, copy, and receive full and accurate information about those records.
If one spouse suspects that the other spouse has utilized community property for their sole benefit, without the first spouse’s consent, that spouse has a right to an accounting; any profits or benefits derived from the unapproved community property transaction will be held in trust for the benefit of the community (in most cases); and
A spouse has an obligation to preserve the value of community property real estate in anticipation of divorce. IRMO Hixson (2003) 111 CA4th 1116, 1125.

These fiduciary duties exist from the start of marriage, through separation prior to divorce, and ceases to exist on the date the community asset, or liability, at issue is distributed. IRMO Kochan (2011) 193 CA4th 420, 431-433. However, the fiduciary duty runs longer where the particular asset has a bearing on spousal support, child support, or attorney’s fees; in this situation, the fiduciary duty ceases to exist the moment there is a final binding resolution regarding those assets. IRMO Sorge (2012) 202 CA4th 626, 654-655.

While the fiduciary duty requires disclosures in anticipation of dissolution, those same duties have a profound impact on the management and control of community property during marriage. Family Code 1100, et seq., provides the general fiduciary duties of spouses to each other during marriage, in relation to management and control of community property.

As a general rule, both spouses are presumed to share equal management and control of community property, “with like absolute power of disposition, other than testamentary,” as if they were exercising control over their own separate property. Barnett v. First Nat’l Ins. Co. of America (2010) 184 CA4th 1454, 1460. Keeping in line with this default position that spouses share equal management and control of community property, California has developed numerous specific obligations.

Acting in concert with the general rule that both spouses share equal management and control over community property, California requires that each spouse “shall act with respect to the other spouse” in accordance with the general fiduciary relationship standards specified in Family Code 721. IRMO Feldman (2007) 153 CA4th 1470, 1475-1476. As noted above, California views a marriage as a partnership, and therefore applies the same obligations to management and control of community assets as is applied to non-married business partners under Corporations Code §§ 16403, 16404, and 16503. The duty of loyalty and care, as set forth in Corporations Code §16404 is an area where many spouses breach their fiduciary duties. In short, whichever spouse is exercising management and control over community assets is prohibited from “engaging in grossly negligent or reckless conduct, intentional misconduct or a knowing violation of the law.” Id. While spouses are not bound by the “Prudent Investor Rule”, poor community property investments may constitute a breach of fiduciary duty if that investment amounts to “grossly negligent or reckless conduct, intentional misconduct or a knowing violation of the law.” IRMO Kamgar (2017) 18 CA5th 136, 149. However, one spouse exercising “bad business judgement” alone, without more, represents negligence; ordinary negligence is insufficient to constitute a breach of fiduciary duty. In a “bad business judgement” situation, the acting spouse cannot be held accountable for an investment that went sour.

Another aspect of fiduciary duty, that is frequently litigated, is a spouse’s obligation to disclose relevant information concerning transactions utilizing community property; the Courts have determined that this disclosure requirement is an “affirmative and broad obligation.” IRMO Margulis (2011) 198 CA4th 1252, 1269. These disclosure obligations were briefly discussed above and must make those disclosures to their spouses even when no formal request for that information is made. IRMO Walker (2006) 138 CA4th 1408, 1422-1423.

Like most general rules, the equal management and control default position has exceptions; particularly as it relates to a business that is properly classified as community property. When one spouse is operating a community property business, which is entirely or mostly community property, the operating spouse has “primary” management and control over that specific community asset (rather than “primary” management and control of all community assets). Family Code §1100(d). “Primary” management and control, in the context of operating a community property business, means “the managing spouse may act alone in all transactions but shall give prior written notice to the other spouse of any sale, lease, exchange, encumbrance, or other disposition of all or substantially all of the personal property used in the operation of the business … whether or not title to that property is held in the name of only one spouse.” Id. The notice requirement is diametrically opposed to the general consent requirement for the transfer of community personal property used as clothing, furniture, furnishings, or family dwellings as set forth in Family Code §1100(b) & (c). Similarly, “primary” management and control of the business does not obviate the need to comply with the requirements of Family Code §1102, as it relates to the transfer of real property, which requires both spouses join in the execution of any instrument designed to transfer real property.

As noted above, during marriage, spouses have a duty to provide the other spouse with full and accurate information regarding community property transactions; when the spouses separate in anticipation of dissolution (e.g., prior to the end of the spouses’ fiduciary duties to each other), additional fiduciary duties are triggered. These duties “arise without reference to any wrongdoing” and require the spouses to disclose all assets and liabilities regardless of their nature as community property or separate property, which either party may have an interest or obligation in; this includes earnings, expenses, and accumulations. IRMO Brewer & Federici (2001) 93 CA4th 1470, 1475-1476. The duration of fiduciary duties has a direct impact on the disclosure requirements for divorce; as long as the fiduciary duty continues, both spouses have an obligation to supplement the disclosures discussed above.

As long as the spouses have a fiduciary duty to each other (e.g., until an asset is distributed, if it has no impact on support or attorney’s fees, or until there is a binding Court order if the asset does impact support or attorney’s fees), they have an obligation to “immediately, fully, and accurately update and augment” their disclosures to the extent that there is a material change in the nature of the asset previously disclosed. Id.

EXAMPLE: Harry, in anticipation of dissolution, disclosed the existence of numerous securities to Wendy. During the pendency of dissolution, but prior to the end of Harry’s fiduciary duties, Harry did not update his disclosures to reflect the changing values of those securities. The Court held that these changes were not a material change in the nature of the disclosed asset, and that Wendy was fully capable of tracking the value of those previously disclosed securities through publicly available information; therefore, Harry did not breach his fiduciary duty to supplement his disclosures to Wendy. IRMO Heggie (2002) 99 CA4th 28, 35.

Ultimately, family law is a set of laws designed to promote equity. If you or a loved one believes their spouse has misappropriated community assets for their own personal gain, it is imperative that you contact a competent attorney immediately. The attorneys at Maple’s Family Law have extensive experience litigating complex family law issues and will vigorously advocate on your behalf.

Property Division

Transmutation and Tracing: Property Division & Divorce

March 1, 2019June 1, 2020
by tobyrosen

As you are likely aware, property can take on two distinct characterizations once a couple becomes married: separate or community. The distinction between the types of property has a critical bearing on the distribution of assets upon divorce. In a perfect world, the characterization of the property remains the same throughout the marriage and divvying that property up on dissolution is a straightforward matter. However, things are rarely perfect, and the nature of property changes through something referred to as “transmutation.” When “transmutation” occurs, dividing assets becomes increasingly difficult, as both parties are seeking to characterize property differently (e.g., the person who wants to keep an asset will seek to have it characterized as their separate property, while the person who wants a share of that asset will seek to have it characterized as community property).

This article will briefly address: (1) How property is initially characterized; (2) What separate property is, and how it works; (3) How separate property is “transmuted” into community property; and (4) How to rebut an argument that “transmutation” has occurred through the use of the tracing method.

How Is Property Initially Characterized at the Time of Marriage?

For purposes of community property law, or divvying up assets at divorce, “characterization of property” means the process of classifying property as separate or community. In Re Marriage of Rossin (2009) 172 Cal. App. 4th 725. The Court considers all relevant information in determining the nature of property. In Re Marriage of Foley (2d Dist. 2010) 189 Cal. App. 4th 521.

“Community property” means any “real or personal property, except as otherwise provided by statute, wherever situated, which is acquired by a married person during the marriage while domiciled in [California].” California Family Code §760. While it is beyond the scope of this article, this definition applies throughout the marriage which ends upon separation (to put it simply, the end of the marriage occurs when there is a parting of ways with no intent to resume marital relations). As a practical matter, nearly all property acquired during the marriage will constitute community property. U.S. v. Berger (9th Cir. 2009) 574 F.3d 1202 (applying California law). If the property does not qualify as community property, it will likely qualify as separate property.

A married person’s “separate property” is comprised of: (1) All property owned by that person prior to marriage; (2) all property acquired by that person after marriage, provided it was acquired by gift, bequest, devise, or descent; and (3) the rents, issues, and profits of all separate property. California Family Code §770, subd (a).

In a nutshell, the entire concept of community property law is that marriage is a partnership, where each spouse utilizes their specific talents, resources, and energy for the benefit of the marital community; as such, it is necessary that all the fruits of those efforts be susceptible to transfer, survival, and common ownership. Franklin v. Franklin (2d Dist. 1945) 67 Cal. App. 2d 717; In re Marriage of Dekker (4th Dist. 1993) 17 Cal. App. 4th 842.

What is Separate Property, and How Does it Work?

Aside from custody, the characterization of property is the most highly contested issue during divorce; this makes sense, because the party who owns the separate property keeps that property after divorce. An individual is only entitled to a share of the community property. Naturally, people will seek to classify as much property as possible as their separate property. As a general matter, characterizing property as “separate” depends on four factors:

When the property was acquired; In Re Marriage of Foley (2d Dist. 2010) 189 Cal. App. 4th 521
What presumptions are in effect in relation to that property; Id.
Whether the property has been “transmuted”; In Re Marriage of Rossin (2009) 172 Cal. App. 4th 725 and
Assuming formal transmutation has not occurred, whether the actions of the parties have altered the character of the property nonetheless. Id.

Where the nature of a particular piece of property cannot be easily labeled, there are certain legal presumptions that come into play; chief among these is that family expenses are first paid from available community funds. Id. As a general rule, separate property is considered separate property from the start of the marriage through the end of it, unless something occurs to change the nature of that property; this is typical accomplished by an agreement between spouses, or by judicial decree. In re Marriage of Moore & Ferrie (1st Dist. 1993) 14 Cal. App. 4th 1472; In Re Marriage of Rossin (2009) 172 Cal. App. 4th 725. Thus, separate property does not become community property by virtue of the marriage itself, or its use in the marriage. In re Marriage of Weaver (2d Dist. 1990) 224 Cal. App. 3d 478. Property can be “transmuted” through an agreement between the spouses, but the more common dispute centers around whether or not property was “transmuted” through the conduct of one, or both, of the spouses.

How is Separate Property “Transmuted” into Community Property?

As noted above, the general rule is that the characterization of property as separate or community is determined by the date and method of its acquisition. Absent a gift or agreement, the nature of property can be changed by showing that either: (1) the nature of a transaction, suggests the property has changed character; or (2) the surrounding circumstances suggest that the character of the property has changed. Isom v. Slaughter (2d Dist. 1962) 200 Cal. App. 2d 700; In re Estate of Froling (2d Dist. 1951) 108 Cal. App. 2d 198.

Example: Harry and Wendy are disputing whether or not a vehicle that Harry purchased is separate property. Harry purchased the vehicle during the marriage, so Wendy argues that the car is community property. Harry argues that because he had no source of income other than his separate property, his purchase of the vehicle must have been through the use of separate property, qualifying the vehicle as separate property as well.

Here, proof that Harry had no money aside from his separate property would justify the Court in concluding that the vehicle must be separate property. In re Barnes’ Estate (3d Dist. 1932) 128 Cal. App. 489. Further, recalling the presumption that the couple’s living expenses are paid out of community funds rather than separate funds, showing that community income is less than community expenses would justify a conclusion that any purchases were necessarily made with community property; this is referred to the “exhaustion method” of tracing.

How Do I Rebut the Presumption That a “Transmutation” Has Occurred Through Tracing?

As mentioned in the beginning of this article, distributing assets on divorce would be simple in a perfect world; neither party did anything to complicate the situation. The reality is that things are rarely perfect and commingling separate assets with community assets is one of the chief culprits. To be sure, it makes sense – nobody goes into a marriage expecting it to fail, why would they protect the identity of their assets in the first place?

The simple act of commingling separate and community funds is not, by itself, what complicates the dissolution process. Theoretically, it is possible to track the contribution of both types of property in relation to an acquisition during the marriage; however, if you cannot track (or “trace”) those funds, the presumption is that the funds and purchases are community property. In re Marriage of Braud (1st Dist. 1996) 45 Cal. App. 4th 797. There are two primary methods of tracing assets in a commingled account: “direct tracing” and “recapitulation tracing”, but they are not the only methods of tracing. See In Re Marriage of Ciprari (February 6, 2019).

Utilizing the “direct tracing” method, the parties identify the disputed asset (e.g., the asset the one party is arguing is separate, and the other is arguing is community), and trace the purchase price to separate funds within the commingled account. In order to accomplish this, the person arguing that the asset is separate property will need to provide extensive documentation showing every community property deposit into the account, as well as every separate property deposit into that account. Further, the proponent of characterizing the asset as separate must show that all the community funds were exhausted by showing withdrawals for community expenses (this is above and beyond the basic living expenses); if it can be shown that only separate property was available to make the purchase, then the proponent has likely met his burden.

Utilizing the “recapitulation tracing” method, also known as the “family living expenses” method, the proponent of the separate property characterization must simply show that the community’s income was less than the community’s expenses; this would lead to the inference that the only funds remaining were necessarily separate property.

Tracing can be an incredibly complicated process, but it can be made easier with the assistance of an attorney who has experience in the process. The attorney’s at Maple’s Family Law have litigated numerous cases where the character of a specific piece of property is at issue and can assist you in obtaining every penny you are entitled to in a dissolution. If you or a loved one are contemplating divorce, contact us today.

Divorce

Spousal Support Payments Are No-Longer Tax Deductible if You…

December 24, 2018August 14, 2020
by tobyrosen

Spousal Support Payments Are No-Longer Tax Deductible if You Divorce After January 1, 2019

Divorce can be complicated, particularly where there are children involved. However, even cases involving significant amounts of spousal support are highly contentious. Prior to the 2019 change, The IRS provided a useful negotiation tool, making spousal support tax-deductible to the paying spouse; this will all end on January 1, 2019. This article will briefly discuss how support payments and taxes interacted before the January 1, 2019 laws go into effect, and how support payments and taxes will interact after the January 1, 2019 laws go into effect.

If you received a divorce in California, there are four general areas that the tax laws will impact that divorce: (1) dependency exemptions; (2) division of property; (3) tax filing status; and (4) support – this article will specifically discuss the tax implications for support orders, which are issued in conjunction with a dissolution proceeding.

There are 3 basic forms of support in California: (1) family support; (2) child support; and (3) spousal support (commonly referred to as “alimony”). Each form of support receives different treatment under the tax code, which makes it essential that people seeking a divorce contact a competent family law attorney, so they can assist you in determining whether support payments are tax-deductible, or whether that support is considered income for tax purposes.

Family Support Agreements and Their Tax Implications Prior to the Implementation of the January 1, 2019 Tax Laws

In California, provided both parties agree in writing, parties to a dissolution can opt to have a support order for both family and spousal support entered, this is referred to as “family support.” This combination allows the parties to treat the entire “family order” to be treated as though it were spousal support or child support. The practical implication of this is that a “family support” order can be deemed entirely tax-deductible (for the party paying) and entirely taxable (for the party receiving the support). Alternatively, the entire “family order” can be non-taxable like child support. Since a written agreement is a pre-requisite to a “family order”, that written agreement needs to expressly set out the nature of the “family support” if you want to effectuate your desired goals as it relates to taxes.

It is important to note that since “family support” requires an agreement, that agreement can be negated unilaterally by either party. If this happens, then the Court will enter a child support order in conjunction with a spousal support order. The pre-2019 tax implications for these orders is discussed below.

Child Support and Its Tax Implications Prior to the Implementation of the January 1, 2019 Tax Laws

Pursuant to IRS Code §71, subsection (c)(1), states: “Subsection (a) [the subsection establishing that support payments are taxable] shall not apply to that part of any payment which the terms of the divorce or separation instrument fix (in terms of an amount of money or a part of the payment) as a sum which is payable for the support of children of the payor spouse.”

As a general rule, child support payments are not imputed to the recipient (commonly referred to as the “Payee”) of that support’s income, which means that child support payments do not constitute taxable income to the payee; similarly, child support payments are not tax-deductible to the person making the payment (commonly referred to as the “Payor”).

A pre-requisite to obtaining the non-taxable status on these payments is that the Court specifically designate the amount of the payments as “child support.” In the event that the Court is silent on the nature of the payment, it is possible that those payments will not be considered “child support” for tax purposes; a prime example is the federally claimable “Child and Dependent Care Credit. Spousal support is where most battles regarding taxable amounts take place, though this will all change January 1, 2019.

Spousal Support (“Alimony) and Its Tax Implications Prior to the Implementation of the January 1, 2019 Tax Laws

IRS Tax Code §71, subsection (b)(1), states: “The term ‘alimony or separate maintenance payment’ [which are taxable/deductible] means any payment in cash if:

(A) “such payment is received by (or on behalf of) a spouse under a divorce or separation instrument”
- IRS Tax Code §71, subsection (b)(2), clarifies: “The term “divorce or separation instrument” means:
- (A) “a decree of divorce or separate maintenance or a written instrument incident to such a decree”
- (B) “a written separation agreement” or
- (C) “a decree (not described in subparagraph (A) requiring a spouse to make payments for the support or maintenance of the other spouse.”
(B) “the divorce or separation instrument does not designate such payment as a payment which is not includible in gross income under this section and not allowable as a deduction under section 215”
(C) “in the case of an individual legally separated from his spouse under a decree of divorce or of separate maintenance, the payee spouse and the payor spouse are not members of the same household at the time such payment is made” and
(D) “there is no liability to make any such payment for any period after the death of the payee spouse and there is no liability to make any payment (in cash or property) as a substitute for such payments after the death of the payee spouse.”

In plain English, “spousal support” and “alimony” mean the same thing under IRS Tax Code §71. This means that the spousal support recipient (“Payee”) treats those support payments as taxable income (since the support payments constitute income pursuant to the Tax Code. On the other side of the spectrum, the person making the spousal support payments (“Payor”) treats those payments are 100% tax deductible.

The fact that spousal support payments to the Payee are considered taxable income creates an additional consideration; similar to the tax requirements for independent contractors. Since the Payee will be taxed on the entire support payment at the end of the year (rather than having taxes taken out when the money is transferred), it is wise for the Payee to put about 20% of the total support payment into savings so that the Payee is not required to dig into their wallet during tax season.

On the opposite end of the spectrum, considering the additional expense of support payments, many Payors find themselves unable to maintain their previous quality of life vis-à-vis living expenses. Since spousal support payments are considered 100% tax-deductible, the prudent Payor may opt to reduce the number of withholding allowances with their employer to increase the amount of money they receive each paycheck (you should contact an expert on this matter to determine precisely how much you should modify your withholding allowances so that you net the same amount of money annually).

The preceding portion of this article refers to the state of tax law prior to the enactment of the new law on January 1, 2019. It is entirely possible that these new tax laws will be altered, or returned to their pre-2019 status, when the next administration takes office; it is important to understand the laws of both schemes if that occurs.

Having laid out precisely how the old tax laws interacted with various forms of support payment, the remainder of this article will discuss how the 2019 tax law will impact the various support payments.

Where Did The 2019 Changes to The Tax Code, In Relation to California Support Payments, Come From?

It is unlikely that this article is the first time you heard about the changes to the tax code that are going into effect on January 1, 2019. As noted above, spousal support is 100% tax-deductible to the Payor, while simultaneously constituting earned income to the Payee. This will all change on January 1, 2019.

President Trump’s hallmark achievement thus far is the Tac Cuts and Jobs Act (commonly referred to as “TCJA”). This law goes into effect January 1, 2019, but will have absolutely no impact on divorces, and support orders) entered into prior to December 31, 2018.

As a practical matter, the TCJA changes will make dissolution negotiations far more difficult; this is particularly true where the parties getting divorced have a high net-worth. The reason for this is probably straightforward, but we will use a few examples to bolster the point.

Pre-2019 Example: Harry and Wendy are seeking a divorce in July of 2018. Harry and Wendy have been bickering about who gets possession of their community property summer beach house, and neither of them are willing to share; it’s an all-or-nothing situation. Harry, who makes $500,000 per year, realizes that he has an additional bargaining chip – he offers to pay Wendy an additional $5,000 per month in spousal support, until she remarries, in exchange for possession of the summer beach house. Wendy, who earns roughly $50,000 per year, would love to have the additional income for quality-of-life purposes. Wendy accepts Harry’s offer. Come tax time, Harry pays property tax on the summer beach house, and only pays income tax on $440,000 of his income because the entire $60,000 is tax-deductible. Wendy does not pay taxes on the summer beach home but pays income taxes on $110,000 because the entire $60,000 in spousal support is considered income.

NOTE: This example only focuses on the additional spousal support Harry offered in exchange for the summer beach house, but the original support would be treated identically.

Post-2019 Example: The same example as above, however, the results are very different. Now, Harry pays taxes on the summer beach home as well as income tax on $500,000 notwithstanding the $60,000 he provided Wendy in spousal support. Meanwhile, Wendy only pays income tax on $50,000 while the remaining $60,000 is tax-free.

As you can see, the 2019 changes removed a very useful bargaining chip in the negotiations.

Time will tell precisely how the 2019 changes will impact negotiations surrounding divorce, and how long these laws stay in effect, but the changes are going into effect nonetheless. If you or a loved one are considering a divorce, it is essential that you contact the attorneys at Maples Family Law today. We pride ourselves on our ability to adapt, as well as our ability to assist parties in reaching mutually agreeable terms as it relates to supporting. While the tax benefits have been removed from spousal support, that is not the only item in our toolbox. From all of us at Maples Family Law, we wish you a safe and happy new year.

Child Support

Child Support and FAFSA Applications

September 26, 2018August 13, 2020
by tobyrosen

As mentioned in other articles on our site, dissolution is generally a hotly-contested issue, even more so when there are children born from the marriage. A major issue that regularly comes up, is who is going to pay for that child’s college education; this issue is made exponentially more ripe for conflict because many dissolution orders don’t address the issue of college tuition since most children are over the age of 18 when they go to college (child support obligations end when a child reaches the age of majority, which is 18).

To remedy this issue, approximately sixteen states have adopted postsecondary (college) child support statutes, which essentially force divorced parents to support their children’s college tuition. (ALA. CODE § 30-3-1 (1975); CONN. GEN. STAT. § 46b-56c (2011); HAW. REV. STAT. § 580-47 (2015); 750 ILL. COMP. STAT. § 5/505 (1991); IND. CODE ANN. § 31-16-6-2(effective July 1, 2007); IOWA CODE § 598.21 (effective July 1, 2009); MASS. GEN. LAWS ch. 208, § 28 (effective July 1, 2012); MISS. CODE ANN. § 43-19-103 (1989); MO. REV. STAT. § 452.340 (effective Aug. 28, 2011); N.J. STAT. ANN. § 2A:34-23 (effective Sept. 10, 2014); N.Y. DOM. REL. LAW § 240 (McKinney effective Jan. 12, 2014); N.D. CENT. CODE ANN. § 14-09-09.7 (1999); OR. REV. STAT. § 107.108 (2011); S.C. CODE ANN. § 20-3-160 (1976); UTAH CODE ANN. § 30-3-5 (amended 2013); WASH. REV. CODE § 26.09.170 (effective June 10, 2010)). However, California has not addressed this issue yet.

This article will: (1) briefly address the importance of a college education, (2) briefly discuss how Free Application for Federal Student Aid (“FAFSA”) works, and (3) briefly discuss the impact child support has on eligibility for student aid.

The Importance of a College Education

Since the Great Recession of 2008, the rates of college attendance have skyrocketed. Simultaneously, and directly correlated to the sharp increase in college attendance, the tuition for attending post-secondary educational institutes has skyrocketed as well. Ultimately, however, in an economy where more people are obtaining college educations it is critical that a child obtain a college diploma if they want to remain competitive in the job market; a common lamentation by those graduating from college after 2012. It cannot be denied that receiving a college education will provide an individual with greater financial stability (which many argue is good for the economy as a whole), but a college education has also been shown to increase an individual’s overall happiness and health. Further, graduating from college provides tangible benefits to the individual, even where their area of study is irrelevant or where a degree is not a prerequisite for the job itself. In a recent study, a full-time employee who has received their bachelor’s degree were found to receive approximately 83% more income from employment that their counterparts with a high-school diploma. Finally, individuals with a college degree are notably less likely to be incapable of finding employment. With all those benefits in mind, it stands to reason that a college education is of the utmost importance, but who is going to pay for this critical aspect of a child’s life?

Attendance and Cost on the Rise

In 2012, one-third of individuals ranging from the ages of 25 to 29 earned a bachelor’s degree or higher; a record high. Roughly 90% of individuals ranging from the ages of 25 to 29 have received a high-school diploma, and nearly 63% have completed a portion of their college education. As noted above, the number of people who received bachelor’s degrees or higher in 2012 was an all-time high in this country and is mind-boggling when contrasted to a period of time where college was only available to the wealthy elites of this nation. Despite these massive gains, not every college-aged individual has the ability to attend.

History of Parental Support

The notion that parent’s have a legal obligation to support their minor children is well established in American jurisprudence. Specifically, parents are expected to provide their children with necessities including food, shelter, clothing, and medical attention. Up until 1971, this obligation lasted until the child was 21 years old (college age) and attained the age of majority. However, in 1971, the United States Congress ratified the 26^th Amendment, which reduced the voting age from 21 to 18. Consequently, all states passed laws that reflected this new age of majority, including laws pertaining to child support. The net result was that child support obligations no longer extended to a child’s college years, a time where many children need support more than ever.

The Cost of a College Education is on the Rise

At any social gathering where there are multiple parents of 18-24-year-old present, it is inevitable that conversations about how expensive a college education will come up. In fact, between 2013 and 2014, the average tuition fee plus room and board at a private non-profit 4-year educational institute is approximately $40,917; this number is reduced by roughly 25% for public non-profit educational institutes – $31,701. (Tuition and Fee and Room and Board Charges Over Time, 2003-04 through 2013-14, COLLEGEBOARD, http://trends.collegeboard.org/college-pricing/figures-tables/tuition-and-fee-and-room-and-board-charges-over-time-2003-04-through-2013-14 (last visited Nov. 1, 2014).).

In recent years, this rampant increase in college tuition has slowed down; however, between 2003 and 2013 this country saw college tuition increase by approximately 80%. While married couples have the ability to choose to provide financial support to their children as a unit, divorced parents certainly have a more difficult time making unified decisions that impact their finances significantly.

How FAFSA Works

Financial aid for college affects married couples and divorced couples alike. When children receive little-to-no support from their parents in paying for college, they are forced to seek other options that will assist them in subsidizing the college education, this usually takes the form of financial aid. A popular form of financial assistance for the educational expenses associated with post-secondary education is the Free Application for Federal Student Aid (“FAFSA”).

Students are classified as either independent or dependent for purposes of determining FAFSA eligibility. When a student is deemed to be a dependent, their FAFSA eligibility is dependent on their parents’ incomes (thus the dependent of a high-income family is unlikely to be FAFSA eligible). Conversely, where a student is deemed an independent, or a dependent of a low-income family, their FAFSA eligibility will likely be approved.

For children of divorced parents, a dependent child is required to disclose their custodial parent’s income. Naturally, in most cases, a single-income earner will make less than a dual-income family. As such, students who are deemed of divorced parents are far more likely to be deemed FAFSA eligible than students who deemed dependents of married couples.

Child Support and FAFSA Eligibility

As noted above, students applying for FAFSA are categorized as either dependents of their parents, or independent of their parents for purposes of determining eligibility. If a student is deemed a dependent of their parents, their parents are required to disclose their relative incomes in order to their child’s FAFSA eligibility to be determined. In the case of a student who has divorced parents, their custodial parent’s income is the only income used in determining their FAFSA eligibility; naturally, the sole custodian of the child’s income is likely lower than it would be if they have a second income earner reporting their assets.

As a rule of thumb, the parent which the child lived with the most in the preceding year is the parent who provides their financial information on the FAFSA application. In the even that the student has spent an equal amount of time with both parents in the preceding year, then the parent who provides the most support is the parent whose income is utilized in the FAFSA application. It is important that this determination is based on who provides more actual support, as opposed to which parent claims the student as an exemption on their federal tax returns.

In 2009, the US Department of Education stated that “child support” for purpose of a FAFSA application only includes the amounts paid in direct compliance with a valid separation agreement, legal child support agreement, or a divorce decree. This means that voluntary payments from a non-custodial parent to their child’s education are treated as the child’s untaxed income. Unfortunately, this shifts a parent’s gift from a boon to harm; it acts as though the child is making more money than they actually have – making the application reflect a higher “expected family contribution” (“EFC”) than is supported by reality.

As a natural corollary, the parent who is providing their child with voluntary payments for education (above what they may have been legally obligated to provide) is unable to reduce their own FAFSA income by the amount provided, resulting in a higher EFC for that parent. The practical effect of voluntary payments to the child is two-fold then, and ultimately creates a higher EFC than is correct.

Ultimately, it is in everyone’s best interest for the parent making the voluntary payments to their child’s educational fund to request that the Court modify the standing support agreement to include their voluntary payments.

At Maple’s Family Law, we understand that it is every parent’s dream to send their child to college; it is a path to a better life which is the ultimate goal of all parents. If you or a loved one are seeking advice on how to modify a support order to assist your child in becoming FAFSA eligible, contact us today.

Parenting

Practical Parenting: Fatherhood Mishaps in Positive Discipline

August 23, 2018November 6, 2019
by tobyrosen

via Dr. Thomas Maples, Ph.D.

The foundation of family values centers on the discipline we teach our children. However, discipline within itself is a difficult task for any parent to enact with their children. Lets face it, it’s hard enough to discipline ourselves, let alone try and force someone else into our value system. But this is the plight of parenting, and should be taken seriously, if you want your children to have a healthy foundation.

What kind of parent do you want to be. Every day, you are faced with choices. These can include being mean, understanding, showing empathy and patience, or feeling like a push-over. Lets face it, parenting is stressful, but in the end, we learn as much from our children as we teach them in the mutual journey of life. Many times, this is a catch 22 that any parent can get caught up in, especially when it comes to implementing positive discipline. Let us explore ways we can pass on our family values in a manner that assures optimal psychological development for both your child and you as a parent.

A few years ago, my oldest son was not focused in his Aikido class. He was going for his black belt in a few months, and I thought he had fully harnessed his skills of concentration and attention. That was wishful thinking. Tommy was six at the time, and found that talking with his friend about his newest Pokémon trading cards was a much more interesting topic than going over the moves he would have to test on in order to receive the black belt he had worked so hard to achieve. The sensei pulled him aside after the class, and informed him of the transgression of respect he had committed, and then, in an old-school disciplinary fashion, informed me as well, of his lack of attention. We were to promote together, and I knew I needed to reinforce the lesson the sensei was trying to instill. I thought to myself, “What can I do?”

Console him – tell him that it was ok. It was only one mistake and he would definitely have to work harder to try and concentrate next. I mean, he is only six right.
Ground him – assume the strict role, take away all his electronics and avenues for fun, making his life a miniature prison environment to instill the lesson the sensei wanted to instill.
Payback – Make him learn the power of concentration by cleaning the mat, forcing servitude as a means of respect to pay the sensei back for his transgression.
Redirect him – help him to learn a lesson by using both positive and negative aspects of reinforcement by punishing the wrong behavior through removing the elements of guilt from his possession, and then letting him earn them back when he showed positive behaviors.

Yound boy angry with his father

While my heart was in the right place, and I was leaning towards number 4, four months later, he asked for his Pokémon cards back. I asked him, “what?” He said, “papa, you still have my Pokémon cards in your closet. I asked, “are you sure?” I must have surely gave them back 4 months ago. He took me to my closet door pointed me to a space behind my hats, and said, they are up there. I looked, and voila, there were his tin boxes of Pokémon cards, right where I placed them 4 months earlier.

Wow, what kind of a monster was I? Four months of grounding for a small indiscretion of not paying attention at class. While the only punishment implemented was to give up his Pokémon cards, I had completely missed the boat with this one.

My original plan was to take the cards back for the week, and if he did well concentrating the next lesson he would “earn” them back. I had the best of intentions, but like him, I had a momentary lapse of attention. Intention, when dependent on attention, will in many circumstances fail you, until you develop habits around positive discipline and practical parenting.

What I should of done was simple. Redirection was by far the best choice listed above. I should have taken away the cards that distracted, and then once he showed that the lesson was learned, he would be given back the cards. The punishment would have been a day, or two at the most. He would be reunited with his cards, having learned that when it is time to work, it is time to work, and when it is time to play, it is time to play. But he was not afforded this. He received the equivalent of a life sentence for one act of attention loss. Wow, what kind of a judge, jury, and executioner he must have thought his father was. Reflecting on what was, I looked him in the eye, and said the one thing I could say.

“I am so sorry. You should have gotten these back months ago.”

Parenting is hard. We have to encourage, punish, reward, redirect, ground, teach lessons, empower, and help them come into their own being. We do this is in the name of love. In doing so, we teach our children how to be loving, productive, and caring individuals who will in turn pass the very values we have taught them to the next generation of our family tree. From a practical parenting perspective, how should we discipline our children to create the most effective outcome for all parties.

Parenting 101 Letterpress

Negative Reinforcement – As a parent, you can use punishment effectively as a means to correct negative behaviors. However, it is imperative that you associate the negative behavior to the punishment given. In the example above, I took the Pokémon cards that distracted my son away from him. This negatively reinforces the negative behavior, which if implemented correctly, should lead to a positive outcome.
Positive Reinforcement – When your child does something good, take notice of it. They crave your attention. Positive reinforcement of positive behaviors should lead to positive outcomes if implemented correctly. In the example above, if I had engaged in positive discipline with my son, he would have received the cards back as soon as he got a positive report from his sensei. Because I forgot about the cards, the lesson was not reinforced in a manner that could have lead to a positive outcome. In a perfect scenario, I would have linked his ability to play with the higher value I wish to teach him about hard work, which would lead to a positive outcome for both of us. He gets to play and I teach him the value of hard work.
Intermix Positive and Negative Reinforcement Schedules – The most effective use of positive discipline is to combine the use of punishment and positive reinforcement. Lets say your child had poor grades. As a parent, you suspect that video game time interfered with study time. A negative reinforcement schedule for this would include taking away the video game system. By limiting their time, you can then re-engage their attention to the work at hand. However, in this example, it is imperative to give them their reward after they completed the work needed. This would look something like trading one hour of play time for one hour of work time to be earned by your child or heather time equivalent you feel is appropriate.

Positive Discipline is an integral exercise for Practical Parenting. Its foundation is built upon the belief of being firm, fair, and consistent. As people, we will make mistakes in parenting. When we do, it is good enough to accept accountability, apologize, and learn from those mistakes. Remember, you are learning experientially how to be a parent with each lesson you teach your child. In Fatherhood Mishaps of Positive Discipline, I shared a story of a major mishap I engaged in when I took my son’s Pokémon Cards from him. However, since that time, I have been able to redirect my parenting efforts in a manner that is more holistic, and not so one sided in the punishment aspect. What are your Fatherhood or Motherhood mishaps in practical parenting? Until next time Advance Confidently in the Direction of Your Dreams!

Dr. Tom

Divorce and Psychology

Practical Parenting: Oh no — the sky is falling!

August 3, 2018September 16, 2019
by tobyrosen

via Dr. Thomas C. Maples, Ph.D of Stockton Therapy Network

How are we to stay positive for our children in such of a barrage of negative messages we are subjected to daily?

Today I watched my children staring at their personal devices. One was watching Stampy play his some-odd hundredth episode of Let’s Play Minecraft and the other was also watching Stampy play Splatoon Two. Each child has their own taste; and who wouldn’t want to have a varied interest from one’s older or younger brother. While I do not understand at face value the meaning behind watching other people play a game versus playing it yourself, one thing began to stand out for me as I listened to the two equally engaging storylines: both focused on positive aspects of life from the art of story telling of hero’s and heroine’s who make the storyline take place. Were my children, in all their simplistic beauty, on to something that my more complexly trained, social scientist mind could not grasp. I believe they were.

Every morning, I go to the gym. It’s healthy. I get the endorphins flowing, and my mind clears, as I run the elliptical and pummel through the weights. However, I can’t help but be distracted while I am their by the 20 screens that buy for my attention; yes, literally 20 screens that buy for my attention while I am supposed to be focused on my physical and mental health. In a prior article, entitled Turn Off, Tune Out, and Drop In: Media, Politics, and the Social Spin Cycle as Symptom & Dream I explored how it seems that our brains are programmed on a daily basis through traditional and social media’s reliance on catastrophizing. An insight arose for me when writing this article, and I committed myself to not stare at the 20 screens that buy for my attention. However, being ADHD, I also at times cannot help but notice that my focus moves from the reading material I that bring to expand my mind to the brainless commentary offered by the 20 different channels, most of them newscasts that permeate the gym.

If you listen to the journalists, every day “the sky is falling.” They provide commentary on how law and social order are somehow, not lawful or orderly enough. They promote traditional as old, social chaos as right, and seem to center their beleifs not on objectivity, but subjective oppinion as a basis to educate both adults and children on what is right as a means to raise the next generation. What was once considered right, is now flipped upon itself, and values are quickly being changed at a whim without consideration of the deeply engrained structures they represent; and all of this is being “programmed” within us in the name of progress.

This brings me to the moral of today’s story: how do we help our children process the information they are subjected to while passing on our own moral code and ethics? How do we pass on the values, which, despite what the media attempts to inform you of as being wrong, ultimately stands as the foundation for your children’s future success? This article is about practical parenting, not political commentary. But as I watched Stampy play his “lovely” games, it struck me. You are over thinking it. You have to engage your children where they are at. You have to engage them by what they they watch, play, and read.

As a child therapist, I often engage in play as a means to help children sort through their emotions. Children are simple. They engage their emotional states through play. They love to color, play board games, will even engage in a video game, and yes, the love to even watch other players play the video games they love. They do this to engage with storylines they find interesting. These actions form the foundation of their moral reasoning.

In a time not so distant, we told our children stories. Fairytales formed the foundation from which children learned of adults who had evil intentions, formed the basis general safety habbits, and exposed their mind to hero’s and heroine’s who despite adversity, somehow overcame most of the hardships they faced to live “happily ever after.” These were not only stories of legend used to expose children to everyday occurrences and ways to overcome adversity; these stories acted as a cornerstone from which children could interact freely through their burgeoning imagination with adult life to come. By telling stories, children were allowed to interact more freely with their parent’s values, learning, and passing them on through the context of lived interaction. In the act of telling stories, mothers and fathers sat down to pass on the very story lines that were important to them as a child. In doing this engaged their children in a way that not only provided direct access to their familial and cultural lineage, but also formed the foundation for the continued success of their psychological development. Now, the story tellers all seem to be online, and there appears to be general levels of disconnect, as many of the messages children are exposed to may not reflect the traditional values you find dear. In fact, your child may be watching a storyteller tale a tell tale that is age appropriate, but it’s intent is overshadowed by commercialism buying for valuable adspace that is not necessarily age appropriate. PARENTS, MONITOR WHAT YOUR CHILD SEE’S ON SOCIAL MEDIA (INCLUDING YOUTUBE).

If your child is exposed to electronic devises, chances are they are exposed to idea that “the sky is falling.” They may even have this ideal deeply engrained without ever having been exposed to the storyline of the once neurotic “Chicken Little.” How can they not be in this day and age of bad, worst yet, and worst ever news we are constantly exposed too by network and social media. As a social scientist, I understand the drastic effects that constant exposure to these kind of messages have on a child’s growing psyche. They set the foundation for future anxiety and depression by forcing messages of unconscious hopelessness and helplessness. If something is wrong at every corner they are exposed, where is the hope for the future that children must have as a foundation for healthy self-esteem. Where are the heros they are to idolize as a means to find the courage and strength to overcome life’s obsticles. What are we to do, if our children, or even worse, we have adapted a “sky is falling” attitude.

Go Outside: There is something so beautiful and wonderfully connecting when you simply get away from the electronics and go outside with your children. Your children are programmed to play. It helps them to get their seemingly endless supply of energy out, gives them natural, not artificial experiences, and is even good for you for general stress reliever.
Listen to Music: values are passed on through the music we listen too. Please make sure it is age appropriate. Because like I said, values ARE passed on by the music we listen too. Children begin to form their identity and values of life based upon the messages they receive, both overtly and discreetly. If you are listening to music that curses or puts specific genders or races down, this will be the meta-messages your child will assume as normal behavior. If you disagree, watch how quickly a child assimilates the language of someone they idolize. You might as well channel this energy towards someone worth idealizing who assumes a similar value set as you or your family.
Read or Listen to an Audio Book: stories have a profound influence on your child. Discuss the moral of each story, and the learned parts that you find of value. This will allow you direct access to understand their emerging values. It will also help you to pass on your own values to their emerging psyche. Last Night, I had to explain to my four-year old son the ending scene of the book “The Alchemist.” He was confused when the book said the protagonist realized that the soul of the world was intimately connected to the soul of God, which in turn was a reflection of his own soul. I told him, we are all connected with God, and by having a piece of him with us, we have the ability to make “nice” choices. I know! It was not a work of theological fact, but it prompted him to think about how he can make good choices in life.
Engage in a Craft: Formalized Education is a relatively new phenomenon. In prior years, skills were passed on from parent to child in a manner that helped them to survive and thrive in a skill set that was of value. This is not the case these days, where children must stay in a work type setting for nearly 8 hours a day called school. However, just because the social order has changed, does not mean that human biology or psychology has caught up. Children yearn to learn from mom and dad. Teach them a skill you love, you will soon see your child flourish, and possibly even surpass you within the skill set you taught. And what is even better, you have taught a lifelong skill that one day your child may value som much it becomes part of their work ethic.

You only have one chance at raising your child. Take a Moment to Make a Moment. Please, tell me your experiences with Practical Parenting.

Divorce and Psychology

Practical Parenting: Take a moment to make a moment

August 1, 2018July 6, 2020
by tobyrosen

via Dr. Thomas C. Maples, Ph.D of Stockton Therapy Network

In the daily hustle and bustle of life, we often find ourselves stressed out for time. Sound familiar? It is an all to common event, especially in a time where it seems that every moment is accounted for in a manner that seems to give us no control over our daily lives. I know from personal experience, that until I became conscious of time, it just seemed to slip away from my grasp. It was as if someone or something else was in control of my time, let alone my life; what was even worse, I would casually speak with my wife about how time seems to slip away, as we both lovingly gazed upon our children, talking about how fast it seems that they are growing up.

Time is a tricky phenomenon, one that is highly difficult to grasp, let alone assume control over. As Einstein’s theory states, time is relative. What’s worse, it is the only commodity that we can never take back. However, those that suffer most from the lack of ability or willingness we have to take control of time are the very one’s that need it the most, the children we so deeply love.

It only takes a moment to make a moment?

This morning, during my first hour awake, I noticed I had told my son’s on at least 4 occasions to hold on, to wait a minute, what (as I found myself distracted with a new app. buying for my attention), and worse yet, “I don’t have the time” when I was asked to take them to a Pokemon gym to make a seven day streak of Pocket Monster hunting. As a professional, a doctor, a writer, a business person, and more importantly, a father, husband, and a family man, I wear many hats during the day. But which one assumes the most importance, and at what time? This is the most difficult question that affects me on any given day, especially as it relates to time management. However, it is one I am very familiar with, seeing both children and adults in my practice. This crunch for time seems to be very much a collective phenomena, especially as it relates to the general levels of psychological a and physiological distress time management problems cause.

Where does the time go? And more important, how can I assure that I attend to not only my children’s needs, but also their wishes, desires, and dreams? How can I balance their desires with my own personal ambitions, let alone find balance between my familial, personal, and professional obligations and the dreams I wish to pursue to make my life whole and worthwhile. Can anyone say stressful? But this seems to be the plight of all career parents.

It only takes a moment to make a moment in your child’s life! As I realized that I told my sons no, that I didn’t have time to take them to get that seven day Pokemon streak, I became conscious of what I was doing. I was simply allowing other priorities to control the precious time I do have to spend with them. I unconsciously gave up control of the one thing I do have control over, my schedule. For a professional, it is hard to come to grasp with this concept. I have people I need to see, things I need to do, employees to worry about, let alone spending a moment to engage in “play?” To this my mind focused, on what is more important, taking that moment to play, or loosing the battle of my childrens’ healthy psychological development over something as rudimentary as 10 minutes to just take a break and teach them to Poke-Hunt. My answer was clear.

I took the time to go spin that Pokemon Stop and catch those Pokemon with my sons. However, I also took the time to inquire of them a simple question that became the basis for this article. What is the most important thing for you to do with your parents? They answered eagerly, “go on vacation with you guys.”

In a way, I think the vacation we just took was fresh in their memory. It had to be, as everyone is still overcoming the tiredness of jet-lag present. So as a social scientist, I had to think for a minute. Is this the correct answer? Something was not sitting fully right with me. Because I know that my children have much more fond memories than the vacations we go on. I began to think, what is the most important thing you can do with your children? The answer became clear.

When you go on vacation with your child, the one thing you give them is uninterrupted time. By exposing your children to uninterrupted time, you expose them to your values, give them an opportunity to interact with the lessons and passions you find important, and more importantly, you allow them access to your moral compass. While not every day can be a vacation, as a parent, you can commit to at least moments to make a profound impact on your child’s life. It Only Takes a Moment to Make a Moment in the life of a child. Those moments will add up to great results in the relationship you and your children establish for the future. Those moments also secure the foundation for their success as adults, who will one day face the same challenges you have as a parent.

Have you taken a moment with your child today? Please share what you have done and your thoughts. Much appreciated.

Divorce and Psychology

Practical Parenting: Teaching Effective Judgement

July 19, 2018August 13, 2020
by tobyrosen

via Thomas C. Maples, Ph.D, Stockton Therapy Network

Good, bad, right, wrong, holy, evil, black, white, night, and day; we are subjected to numerous paradoxes (the capacity we have to make inference and judge lived experience) on a daily basis. However, in recent times, the waters have become muddied, especially in terms of judging what is what, let alone what is right in today’s highly contested view of normalcy.

The issue of judgment has recently become a politically polarized construct where what made sense yesterday no longer makes sense in today’s emerging new world. Our children are taught that judgment, especially if it does not go along with the status quo is somehow bad. They are made to believe that other’s opinions are the only one’s that matter and they are forced into a proverbial box created out of a fear based response of not wanting to be somehow different from the masses. Those that think outside of this box somehow become a target to the group, are referred to in the most negative of light, and called names too negative to use in an article that focuses on the positive aspects of practical parenting. However, this appears to be world and the values our children we are passing on to our children. Good or bad. It’s your choice.

Parenting 101 Letterpress

How can a child make sense of the world they will one day inherit, when there is little consensus about values, let alone the civility to work through problems in an non-polarizing manner where one side will try to supersede the others beliefs as being somehow false and without merit? What are we as parent’s to do in teaching our children effective ways to use judgment to better their lives despite the clear programming they receive from the barrage of media and social media exposures they are subjected to en masse before they can ever be legally culpable of making an informed decision?

First, it is imperative for us as parents to take responsibility for our own values and moral compass. In making this argument, I do not side with one versus another side of a value. In fact, I say pick one but fully study and understand the other, it will make your child much stronger of a person than if you shift from side to side because of uninformed judgments we are fed on a daily basis. This is not a lazy man’s or woman’s game, but instead requires work to research your own opinions outside of what Facebook or the television feeds you as a your daily dose of programming. It is from a firm understanding of our self as a person, our likes, dislikes, and our views about what is right versus wrong that our children build the foundation for their own moral reasoning. In many ways, a child is a blank slate. This is especially as it relates to the value based lessons we expose them too. It is through our capacity to learn effective ways of judgment as parents that our children can then learn to implement the same capacity in their own life, thus assuring they have a strong sense of character from which to become successful in the future. Therefore, it is imperative to understand the things you value most and offer that guidance to your children. Not from the perspective that they have to somehow become clones of yourself and live the dreams you have for them, but from the perspective that they have a firm foundation from which to form their own value based decisions and capacity to judge in a manner that keeps them safe and informed of things that can have adverse effect on their lives.

Secondarily, Children learn through emulation of behaviors. By having a firm foundation of your values and moral compass as a parent in place, you can then show through action instead of words what you value most. Children are exposed to a barrage of mixed messages on a daily basis. One example of this is the clear division that exists to between the federal campaign that permeates schools to Just Say No To Drugs vs. the growing (adult) movement to legalize marijuana seen in Colorado and California.

How can a child make sense of whether or not drugs are good or bad when you have two competing sides sending different messages, and both of them governmental agencies? Can anyone say Oxymoron, or better yet Hypocrisy. What is important here, is not to assume one side is somehow more right than the other. Politically, this is where we get into trouble, assuming that one opinion is somehow of a higher moral compass than the other. Remember, the acronym for the word assume is that it makes an “ASS out of U and ME.” However, what is important in this case is that you take a stand and teach your children what you believe is right and what is wrong based upon your value system. If you disagree with drugs, you probably don’t use them, and this is an important construct to teach your children as part of the value lineage you will pass on to them. If you value the use of drugs in your life, your children will probably also, and I guarantee you, they will either likely follow in your footsteps or develop a keen dislike of the behaviors exhibited during their childhood and develop an adverse reaction to drug use. Either way, if you can present your ability to work through both sides of the argument, you are teaching your children an effective skill that will stay with them for the rest of their life, as they will learn to use effective judgment to help them overcome life’s obstacles and form their own informed decissions based upon thought and not one based upon masse psychology.

Third, we cannot confuse the capacity for judgment as being somehow negative or without merit. The capacity to judge is a psychological phenomenon that has merit in its capacity to keep us alive, keep us safe, and help us make both informed and uninformed decisions. The only place where judgment becomes problematic, is when the person who is judging is unconscious of this behavior, and through being unconscious uses it as a means globalize one conclusion to fit all scenarios. This is pre-judicial in essence and leads only to an affirmation of one’s preconceived notions. Globalizing is the shadow of our natural capacity to judge. It indicates an immature psychology that is based primarily upon programming to view all phenomena from a limited source of information. Globalization can only be overcome through making a conscious effort to test all scenarios from a conscious perspective of judgment, which thereby allows us as an individual to challenge the information we are fed as a method of self-growth. Children are not the only ones that grow from this perspective. This also allows us as adults to learn and challenge our own viewpoints and preconcieved notions with new information, and model to our children effective ways to grow as parents and as citizens of a community.

Lastly, it is important that we call a spade a spade. In many ways, we are now programmed to view other’s opinions as right if it is part of the masse psychology we are fed. The voice of the many has now become more important than listening to our own inner voice. This is a mistake of immense proportions. We have hunches, gut reactions, and the hair stands on the back of our neck for a reason. Judgment is made to keep us safe. In making this argument, I am not assuming one versus the other side. As a social scientist, I know that darkness does not exist as a separate construct from light, but merely as an absence of light’s illuminating essence. As spiritual person, I also understand that evil does not exist unto itself, but merely as an absence of a holy essence of life-giving goodness that makes life worth living. Some people call this essence God, some a Higher Power, others Jesus, and still others Buddha or Muhammad. None of them are wrong, and none of them are right in the same token. However, these prophets, the religions, and the spiritual practices they teach all seem to point towards one global construct, the need to live a life that is good, righteous, on our own terms, and to do well by others the same we would expect to do with us. Oh yeah, did I mention the Golden Rule! If you skipped the rest of this article, and learn only of the need to teach the Golden Rule, you will have a successful parenting outcome with your child.

In this article I have offered four ways to teach judgment as a skill for practical parenting. Don’t worry about making mistakes. You will! However, rest assure, that your children will try not to repeat the same mistakes you have made as a parent. They will also try repeat the enjoyable experiences they had with you as a child with their own children. The key is not to be a perfect parent. You will eventually become the great parent you are destined to become if you teach your children effective ways to make decisions based upon personal and family values and the establishment of their own moral compass. It is not about being right or wrong in the sense that we are taught. It is about teaching a skill to make sound decisions based upon a value driven judgments that are truly informed by both sides of the equation. At least from this perspective, work has been done to help you and your children grow from a perspective that takes both side of the equation into account before assuming a position you have been fed en masse. In doing this, your children are allowed to flourish, creating their own oppinions, while you will have successfully navigated the stressful journey of parenthood. What are your thoughts?

Divorce

Legal Custody in California – The What and How

June 15, 2018November 6, 2019
by tobyrosen

The first section of this article will assist the reader in understanding the legal terminology that is utilized in California Family Courts. The second section will discuss: (1) the types of custody orders that exist, (2) the types of visitation orders that exist, (3) the laws relating to custody and visitation orders, and (4) how to obtain a custody or visitation order. The third, and final section of this article will focus on “joint custody.”

Section 1 – Legal Terminology in California Family Court

In divorce and separation cases, the terms “visitation” and “custody” come in very frequently. “custody”, as it relates to children, is simply the legal shorthand for the relative rights and responsibilities between the parents for caring for their legal children (For a brief discussion on Parentage in California, read this [Cross-Link to Parentage Article] article). The term “visitation” is shorthand for how the parents will a lot their time with their children. In nearly every contested divorce, where children are involved, the parties or the Court will need to decide who gets “custody”, what type of “custody” the parties have, and how “visitation” will work.

In California “custody” determinations, the Judge decides whether one parent will have custody over a child (“sole custody”), or whether both parents will share “custody” (legal and/or physical) of their children (“joint custody”); as a practical matter, the Judge will adopt a plan that both parties agreed to (the “parenting plan”). When parties can’t agree on a “parenting plan”, the Court must make the decision, though this rarely happens prior to having the parties meet with a mediator who works with Family Court Services.

Section 2A – Types of Custody Orders That Exist

There are two (2) types of child custody:

“Legal Custody” – The parent (or in “joint custody”, both parents) with “legal custody” are granted the legal authority to make decisions about the child’s health, safety, education, and welfare.
“Physical Custody” – The parent (or in “joint custody” both parents) with “physical custody” is where the child lives.

Legal Custody

As mentioned above, the parent(s) with legal custody have the legal authority to make determinations regarding their child’s:

Child care;
Education;
Religious Activities;
Religious Institutions;
Psychiatric Care;
Psychological Care;
Dental Care;
Extracurricular Activities;
Travel; and
Residence

Where the parents have “joint legal custody” each one is capable of making their own decision about the items listed above, regardless of whether they agree. However, this is a sure-fire method to end up back in Court contesting whether “joint legal custody” is appropriate. As a practical matter, it is best to communicate with your ex-spouse and find a middle ground that satisfies both of your goals. At the end of the day, the Court is only interested in the child’s best interest and may substitute their judgment for yours in extreme situations (that is, they may side with one parent or the other and make a “custody” order removing your legal custody over your child).

Physical Custody

As you may have already surmised, in a situation involving “sole physical custody”, the child’s permanent residence is with the parent who has physical custody. Generally speaking, if one parent has “sole physical custody”, they will have at least “joint legal custody” (i.e., it is highly unlikely that one parent will have physical custody while the other has legal custody).

In the “joint physical custody” variant of physical custody, it is not necessary that the child spend 50% of their time with both parents, it is common for one parent to have the child with them more than the other – this parent is referred to as the “primary custodial parent.”

In situations where the Court has granted the parties “joint legal custody”, but grants one parent “sole physical custody”, the parent who does not have “physical custody” of their child is often granted a “visitation order.”

Section 2B – Types of Visitation Orders That Exist

“Visitation”, which is synonymous with a “time-share plan”, is a Court order dictating how the parents will apportion their time with the child. As a general rule, the parent who has physical custody of their child less than 50% of the time, will be granted “visitation” with their child. There are a number of types of “Visitation” orders that exist, and the Court will make those orders based on: (1) the parent’s situations (money, whether they get along, whether the parent has a history of substance abuse, etc.), (2) the best interest of the child, and (3) “other factors.” Some of the types of “visitation orders” include:

Visitation According to A Schedule – The most common form of a “visitation order” involves the Court, along with the parties, creating a schedule setting forth what days and times the parent with less custody will be able to see their child. This schedule generally sets forth which holidays the child will spend with each parent (the holidays generally switch every year so both parents can spend time with their child on all major holidays), where the child will spend their breaks from school, and where the child will spend special occasions (birthdays, etc.). The purpose of creating a schedule is to avoid confusion and provide the parents with a tangible document to refer to in the event of a dispute.
Reasonable Visitation – The Reasonable Visitation Order is different from the Visitation According to a Schedule detailed above in that there is no tangible document setting forth every little detail of a parent’s rights to visitation. Rather, this type of Order is open-ended and allow a flexible schedule. This type of Visitation Order is generally reserved for parents who aren’t in conflict with each other on a regular basis. Keep in mind that the Court can modify a visitation schedule as it sees fit based on the factors listed above, and below. (i.e., if a Reasonable Visitation Order causes conflict, the Court may force the parties to create a Visitation Schedule and abide by that).
Supervised Visitation – When the Court determines that a child’s well-being (mentally and emotionally) and/or safety are at risk, the Court will mandate that a parent’s visits be supervised by the other parent, another adult, or a professional agency. This type of visitation is also ordered when the child and parent have become estranged, and the child needs supervision to feel safe as they get to know their estranged parent again.
No Visitation – When the Court determines that it would not be in a child’s best interest to have contact with the other parent, they will issue an order prohibiting the parent who puts the child at-risk is not to have any contact with their children. As a practical matter, the Courts are not eager to make this Order, and will usually make it a temporary Order conditioned on the other parent completing some task (anger management, rehabilitation, etc.).

Section 2C – The Laws Relating to Custody, and Visitation, Orders

When making determinations about the “custody” and “visitation” as it relates to a child, the Court’s sole basis for making a determination is what is in the child’s best interest. In making that determination, the Court will look at a number of factors, which include:

How old the child is;
The child’s general state of health;
The emotional bond that has been formed between the child and the respective parents;
Each parents physical, mental, financial, and emotional ability to care for the child;
Any history of substance abuse of domestic violence; and
The child’s attachment to a school in one parent’s school district, the attachment to the home they have spent most of their time in, and the child’s attachment to the community of one parent or the other.

It is a common misconception that the Court will automatically grant the father or mother custody based on the gender of the child. The Court also does not automatically grant, or deny, “custody” or “visitation” based on the marital status of the parents, one parent’s religious beliefs, lifestyle, or sexual orientation; the Court is only concerned with the best interest of the child.

Section 2D – How to Obtain A Custody or Visitation Order

In the typical divorce proceedings, the parents mutually agree on “custody” and “visitation” discussed above; these amicable agreements do not require a Court Order. An issue arises when one parent unilaterally stops abiding by the agreement, since the Court cannot enforce your agreement without entering a Court Order. In the situation where there is no Court Order, and one parent has stopped honoring that agreement, the parent who is abiding by the agreement can submit the initial agreement to the Court for an Order to the same effect. This agreement is generally adopted by the Court as a matter of course and become binding and enforceable.

In other situations, the parents simply cannot see eye-to-eye on “custody” and “visitation”, and thus can’t reach an agreement in the first place. In this scenario, the Court generally orders the parents to attend mediation, which is overseen by a professional mediator who works with Family Court Services. In the event that the parties still can’t agree on “custody” and “visitation” after mediation, the Judge will hear both party’s arguments, and make a determination based on his opinion about what is in the child’s best interest; this is a Court Order and is enforceable against both parents.

At Maples Family Law, we understand how emotionally charged discussion can become when discussing “custody” and “visitation.” This emotional charge is naturally enhanced by the fact that the discussion is invariably tied to the dissolution of a marriage. The attorneys at Maples Family Law have ample experience advocating on behalf of their clients for “custody” and “visitation” issues. If you or a loved one believes that there may be a dispute as to these very important issues, contact us today for a consultation.

Author: <span>tobyrosen</span>

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