This article discusses issues around co-parenting based on a child’s interests. What child doesn’t need to hear the words spoken above? Unfortunately, when divorce and child custody battles loom, oftentimes, children may go without the luxury of hearing they are simply good enough.
Take the time to show them that they are brave. Believe in their inner capacity for success. Do not give in to their inner critic. Help them nurture that inner strength you know is there. Show them the true nature of their genius.
If you are considering a divorce in California, there are a few things you need to know. Our last article examined the need to establish residency, establish the grounds, complete and file the paperwork, and ensure proper service. In this blog post, we will outline the next four steps you need to take to legally end your marriage in the Golden State. Remember that while these steps provide a general overview of the process, every divorce is unique and may require additional steps. So if you have any specific questions about your family law matter, it is best to speak with a qualified attorney.
Wait for a response.
After you have filed your paperwork and served your spouse, the next step is to wait for a response. If your spouse does not respond to the petition within 30 days, you can proceed with the next steps. However, if they respond, you will need to work out any disagreements before moving forward.
Endure the 6 Month Waiting Period
Even if you and your spouse agree on everything, the law requires you to wait at least six months from the filing date before it can be finalized. This waiting period is in place to give couples time to reconcile their differences.
Attend a Settlement Hearing or Divorce Trial
If you and your spouse cannot agree on all the terms, you must attend a settlement hearing or a trial. At the settlement hearing, a judge will try to help you and your spouse agree on all disputed issues. If you can still not agree, your case will go to trial, and a judge will make the final decisions about your case.
Receive Your Final Divorce Order
Once all the above steps have been completed, you will receive your final order. This document will outline all the terms, including child custody, visitation, child support, spousal support, and property division. Once you have received this document, your divorce will be official, and you can move on with your life.
These four steps are a general overview of the process. However, every family law matter is unique, and you may need to take additional steps. So if you have any specific questions, it is best to speak with a qualified attorney.
As a family therapist, I oftentimes see children who have been labeled by their schools, parents, or other professional parties involved in their life with behavioral disturbances. What is not seen, or is oftentimes overlooked by these parties is the effects family stress has on the development of emotional conflicts that underlie their problematic behaviors.
While divorce is a common occurrence in our country, and children are ultimately left to make sense of the fallout from a family divided, their interests are oftentimes overlooked by the loved ones and professionals who are charged to keep their best interest in mind as their burgeoning minds develop key understanding about what it means to relate with others, find love of self within, accept one’s emerging emotional landscape, develop an autonomous and independent identity, and ultimately learn how to love others in the fruitful garden we call life.
Children’s Mental Health
While divorce is common, our children’s reactions to it may differ. Some factors that may increase problematic behaviors include temperament, personality, and whether pre-existing mental health conditions are present. While children are each unique, as a parent, it is key that you understand your child’s emotional state pre-separation so that you can help them to identify and work through the emotions that underlie any problematic behaviors that arise.
Ultimately, you will teach your child to grieve the death of their parent’s relationship, work through it, and accept the emotions they have about your separation. Through this process, they can develop new healthy relationships with you and your ex as independent parents, both capable of guiding them to a sense of homeostasis. This is the foundation of creating a co-parenting journey for your child to become a healthy adult.
Although this may sound like common sense, it is often all but common practice as parents’ are grieving themselves. More common is a trajectory of grieving parents getting lost in their personal battles, forgetting to help their children tend to the garden of their emotional grief.
Divorce Reaction
If you are undergoing a divorce, child custody litigation, or are thinking about ways to break the news to your child, there are some things you can prepare for to help yourself and your child deal with the onslaught of stress caused by an impending separation.
Realize your child will lose contact with a major influence in their life. While custody arrangements may dictate what parent has their child’s legal or physical interests as a primary responsibility, this does nothing to negate the loss of a parent, the psychological equivalent of undertaking a death in the family. While not an excuse, children cannot express themselves in a manner equivalent to adults, who, at times during the divorce process, maybe as conflicted as their children are in handling the emotional distress caused by separation and divorce.
What can you Do?
1. Create active and empathic communication between yourself and your child(ren) as it relates to your mutual emotional states (but do not communicate the affairs of the divorce or conflict/be neutral)
Children learn emotions and emotional reactions through watching your reactions to emotional distress. Through communication, you can both learn and teach your children effective ways to handle stress.
2. Be firm, fair, and consistent in your rules and expectations.
Children undergoing divorce may have emotional and behavioral outbursts. Expect them to cry, yell, swear, or possibly show even more volatile behaviors that will need to be addressed professionally. They have lost a parent and are undergoing highly conflicted emotional states as they learn to adapt to two home environments.
3. When in doubt, seek professional help.
Children who undergo divorce can have severe emotional reactions, sometimes leading to sexual promiscuity, use of drugs or alcohol, or face significant school-related deficits as they learn to handle the emotional stress present in adapting to a family divided.
Stay tuned for more on Childhood, Divorce, and the Emotional reactions common to a family divided.
In California, divorce litigation is a type of contested divorce. This process takes place in an official courtroom setting, where both spouses have the opportunity to make arguments and present evidence before a judge (usually through an experienced family law attorney).
Unfortunately, divorce litigation takes a lot longer than other types of divorce. It’s also more expensive, and offers less control over the outcome, meaning it’s not always the best option, for those who have other choices.
To help you get started, here’s what you need to know about divorce litigation in California, how it compares to other types of divorce, and what Maples Family Law can do to help you navigate these important matters.
Contested Divorce and Litigation
Divorce litigation (or, “divorce trial”) is a type of contested divorce, which takes place in a formal courtroom setting—complete with judge, gavel, and surely courtroom bailiff.
In contrast to an uncontested divorce, “contested” divorce simply means that you and your spouse disagree about how to resolve the terms of your split. It doesn’t have to be emotionally toxic, and can still be amicable.
Because of its cons, litigation is usually the last stop on the divorce train; a place couples go only after exhausting all other options. When this happens, litigation is initiated by one party filing a divorce complaint. Couples will then begin preparing for trial through a process that’s known as “discovery.”
At trial, spouses present this discovery evidence before a judge, and make arguments that support their side of the case. Most of the time, these arguments are made through a trusted, family law attorney (though, representation isn’t technically required).
Issues to Settle During Divorce Litigation
Unless you have a valid prenuptial agreement to speed things along, there will be a lot of unresolved issues to sort out, during your divorce trial.
Some of these questions include how you’re going to:
During your trial, each of these topics will be carefully discussed, argued, and sometimes even analyzed by outside expert witnesses, until a decision can be reached on each one.
How long all that takes will vary between couples, but it’s not uncommon for divorce litigation to last for months—even years.
After Divorce Litigation
Once each issue is settled, the terms of your divorce will be compiled into a final divorce order (which you will need to file with the clerk).
A divorce order contains a listing of every decision made during your trial. It summarizes your negotiations, and outlines how you’re supposed to handle things like property division, child custody, alimony, moving forward.
In general, spouses have very little say in what goes into a final order. Instead, judges make their own determinations, and you’ll be required to abide by the outcome—whether you like the terms or not.
Divorce Litigation: Pros and Cons
All divorce types have pros and cons, and litigation is no different. Before starting your journey, we suggest getting familiar with this list, to see whether a trial is right for your situation.
Litigation Pros
With so many cons, it’s easy to forget that litigation also has its perks. For instance:
You have no obligation to compromise.
You don’t have to communicate with your spouse.
The law is applied impartially, and without emotion or bias.
The transition to your family’s new normal will be harder.
In short, litigation is time-consuming, emotionally draining, and comes with a fairly hefty price tag that almost everyone would be better off without. Drawbacks that make litigation one of the least desirable ways to get divorced.
How to Make Litigation Better
Despite the downsides, in some situations, divorce litigation might be your only option. Hence, to help your trial go faster (and run more smoothly), here are three tips you should keep in mind.
1. Come to Court Prepared
Being prepared can go a long way to making your process run like clockwork. This means coming to court ready to participate in the day’s agenda. It means doing your research. Having all your documents together. And never missing a deadline.
Preparation saves valuable time in the courtroom, keeps cost to a minimum, and helps mitigate the chances of unexpected surprises cropping up at a future date.
2. Don’t Dig in Your Heels
Technically, you don’t have to compromise during litigation (after all, that was one of the perks, right?) That being said, just because you don’t have to, doesn’t mean you shouldn’t.
Couples who dig in their heels and argue about every little thing are the ones most likely to end up with years-long divorces. Not only does this back and forth drag down your timeline significantly, it also drives up your bottom line, and creates an incredibly toxic environment that’s hard on everyone—especially young children.
At the end of the day, your judge is going to make decisions, with or without your cooperation. However, engaging in thoughtful compromises can go a long way toward securing a quicker resolution.
3. Avoid Litigation at All Costs
Finally, we hate to be the bearers of bad news and all that, but in all seriousness? The best way to make divorce litigation better is to simply avoid it, altogether.
Contrary to what Hollywood might have you believe, litigation is not the only way to dissolve a marriage—in fact, it’s probably the worst. Because despite its few benefits, no other process is as time-consuming, expensive, or aggravating as a divorce trial.
That’s why, rather than heading straight to the bench, we recommend you try an alternative method of dispute resolution, first.
Two examples of this are mediation and collaborative divorce. Each of these processes takes place out of court, is faster, less expensive, and gives the spouse more control over the outcome. With so many benefits (and very drawbacks), there’s no reason to at least try one of these methods, before heading to trial.
If you’re unsure, an experienced family law attorney can help figure out if one of these methods would work better for your situation.
Are You Preparing for Divorce Litigation in California?
Trials might not be all they’re cracked up to be, but if you’re unable to reach an agreement outside of court, you might not have other options. Luckily, with the right attorney, your day at court doesn’t have to be as stressful as you might be thinking.
For more questions about divorce litigation in California—and what other options you might have—we want to hear from you. Call the Maples Family Law team at (209) 989-4425, or get in touch online, and let us help you through this important life transition.
Dr. Thomas Maples is a business development consultant for Maples Family Law. His podcast, A Sacred Journey, Inspiration VLOG, and Blog are a free resource open to all who need a little help navigating life difficulties.
Never, in the history of love, has ever been two relationships that were exactly the same. As a result, no two divorces are identical, either. This is why, when it comes to divorce, you’ll have options.
In California, there are several different types of divorce, and not all require a trial. Indeed, couples who can communicate and compromise need only draft a settlement agreement (and submit it to a judge for approval), in order to get divorced.
A divorce settlement agreement is an agreement couples reach on their own, which encompasses the terms of their split. Because it’s faster, less expensive, and more flexible than litigation, this method is an attractive option for divorcing couples.
Here’s what you need to know about divorce settlement agreements in California, and what the Maples Family Law team can do to help you with yours.
What is a Divorce Settlement Agreement?
A divorce settlement agreement is a legal document that represents the decisions reached by a couple during their out of court divorce negotiations. Its purpose is to document these decisions, and to outline how the couple would like to proceed, moving forward.
Some of the topics outlined in this agreement might include things like:
In addition, settlement agreements provide a way for spouses to change their last name, should they choose to do so.
Because this document is drafted outside of court, it’s much faster and less expensive than a contentious litigation process. In addition, couples have a lot more deference in determining the outcome of their own fate.
How to Get a Settlement Agreement?
In order to get a settlement agreement, you and your spouse must be able to… well… settle the terms of your divorce outside of court. (A.K.A. Without a judge breathing down your neck.)
This can be done via a couple of different options, with most popular being: uncontested divorce, mediation, and collaborative divorce. In some cases, you might even reach a settlement while preparing for divorce litigation (say, if your judge offered you one last chance to settle, before opening your trial).
Once finalized, a divorce settlement agreement must be signed and notarized by both spouses. But—while it might look, act, smell, and think in much the same way—it is not technically not the same thing as a final divorce order.
At least not yet…
Settlement Agreement Transformation
Like a wiggly, green caterpillar, a validly executed settlement agreement contains all the necessary ingredients to become a beautiful butterfly (or, in other words, your final divorce order). However, neither can reach their final destiny without one last, important step.
For a butterfly, that step is a chrysalis. For your settlement agreement, it’s judicial approval.
According to California family law, this approval is critical, and simply having a settlement agreement will not be enough to finalize your divorce. And, without finalization, the terms you so carefully negotiated will not be enforceable.
With judicial approval, however, your itty green caterpillar transforms, changing from settlement agreement into a final divorce order, with fully enforceable terms.
Will a Judge Approve My Agreement?
As a general rule, judges don’t usually have a problem approving an agreement that a couple comes up with on their own. (After all, they’re overworked and swamped, so if spouses agree, who are they to fight it?)
There are, however, a few things that could hold up this approval, and before giving blanket approval to your terms, your judge will likely pause to check for the following:
At the state level, this means one of you must be a resident for at least six months; in addition, most counties will require at least three. (Although, there are a few limited exceptions.)
2. Best Interest of the Child
California family law requires that all child custody decisions be made according to a child’s best interest. Hence, your judge will be checking to make sure your proposed parenting plan is the one that will best serve your child’s long-term health and happiness.
If something isn’t right, your judge will likely send you back to negotiations with suggestions on how to revise. If you and your spouse cannot agree on the fix, then the judge will simply make the revisions for you.
3. CA Child Support Guidelines
Part of your custody evaluation will include a thorough analysis of your child support arrangements.
In California, certain minimums must be met, in order to receive approval. This is true, even if you and your spouse agree on what the amount should be. An agreement that does not meet these minimums will not be approved.
4. Property Division
California family law states that any division of marital property must be “just and right.” While there’s a little subjectivity involved in determining exactly what that means, we can say for certain that if it looks disproportionately skewed to one side or the other, your judge will not approve the split.
In addition to having to renegotiate the terms, a skewed arrangement could also arouse suspicions of undue influence, undisclosed assets, or even emotional abuse. Hence, it’s better to simply make the division fair the first time.
5. Representation
While attorneys are not required in California, the presence of them is often a good indication that the agreement was fair. Things get a little iffy, however, if neither one was represented, or, if one spouse had an attorney and the other didn’t.
Generally speaking, spouses should not be sharing an attorney during this process. (It creates a conflict of interests.) To ensure both sides are fairly and earnestly represented during divorce, each individual should be represented by their own, independent attorney.
What Happens if I Change My Mind?
Changing your mind before a settlement agreement is signed is perfectly fine; during negotiations, either side can change their mind for any reason, at any time. When this happens, spouses will simply resume discussions with the new information in mind.
If you change your mind after the agreement has been signed, however, that’s a different story.
The whole purpose of a settlement agreement is to document the terms of a negotiation; a way to lock your decisions into place, so no one can go back later and call foul. As a result, once you sign the document, it’s pretty difficult to change.
After signing, you’ll only have a limited amount of time to rescind before there’s nothing your attorney can do. This is done by filing a motion with the court, and showing your judge why changes are necessary.
Once your divorce has been finalized, though, there’s almost nothing you can do. Unless you can show undisclosed property, undue influence, or fraud. In these situations, the court may reopen the case and rescind the agreement. Otherwise, your only option will be to file a motion to modify.
Do You Need a Divorce Settlement Agreement in California?
When you get divorced, there are a lot of things you’ll be required to do. Thankfully, however, going to court isn’t one of them.
If you have more questions about divorce settlement agreements—and whether one might work for your situation—we want to hear from you. Call the Maples Family Law team at (209) 989-4425, or get in touch online, and together, we can figure out which type of divorce that’s right for you.
Dr. Thomas Maples is a business development consultant for Maples Family Law. His podcast, A Sacred Journey, Inspiration VLOG, and Blog are a free resource open to all who need a little help navigating life difficulties.
The jury results are in, and the verdict is clear: hiring an attorney is the most expensive part about getting divorced. And not just by a little, either—by a lot.
Between retainers, hourly fees, and other expenses, the price of a good divorce attorney isn’t cheap. And with no concrete way to tell exactly how much your divorce will cost (or how long it’ll take), this leaves many potential clients wondering if they’d be better off not hiring an attorney, altogether.
Unfortunately, this would be a mistake. Because while it’s impossible to tell you exactly what your attorney will cost, what we can tell you is that it will almost certainly be worth it.
For those wondering, “Why do I need an attorney?”, here’s what you need to know about representation, why it’s so important, and what Maples Family Law can do to help you with this important decision.
Why Do I Need an Attorney?
The short answer to this is: you don’t.
According to California family law, you do not have to have an attorney in order to get a divorce. You and your spouse are free to duke things out on your own, draft your own settlement agreement, and can even head to trial without backup.
However, like a lot of things in life, just because you can doesn’t mean you should.
Part legal rights advocate, part therapist, and part divorce trail guide, an attorney is a critical part of any successful divorce squad. And heading into this journey without one would be kind of like sending Frodo on to Mt. Doom without the help of trusty Samwise—or worse, Gandalf.
Hence, whether you are engaging in divorce mediation, collaborative divorce, or want to explore the treacherous path of divorce litigation, here are six reasons why you really do need an attorney.
Just like you don’t have to worry about things like speed limits when your Über driver is at the wheel, an attorney’s job is to take over legal navigation. When you hire one, you no longer have to worry about all the nitty-gritties of your journey (like deadlines and paperwork and filing fees). Instead, your attorney worries about that for you, freeing up your mental bandwidth, so you can focus on more important things.
2. Communication Buffer
Once you have an attorney, your spouse will be obligated to go through them if they want any information. This means you no longer have to feel obligated to answer your spouse’s call, or to engage with them in pointless, circular, emotional discussions.
The only exception to this, is if a judge initiates a temporary order (about, say, property or child custody), which may require you to occasionally coordinate with one another. Baring the bare minimum required by your judge, however, there’s no other reason you ever need to feel obligated to answer a call or text.
3. Divorce Law Rosetta Stone
Let’s be real, here: divorce law is complicated. The jargon is formal, stilted, and filled with enough long, run-on sentences to drive anyone insane.
Luckily, family lawyers have gone a few rounds in the ring with this type of language, and can now read legal jargon as easily as a child’s bedtime story. Which is great, since it means you don’t have to!
An attorney can help you interpret the law, and apply it to your unique situation in a way that actually makes sense. This will, in turn, save you a lot of time, money, and stress, since there will be a lot of formal information to ferry between parties along the way.
4. Divorce GPS
That education will be good for more than just translating the law… it’ll also be helpful when applying it. Because—believe it or not—when it comes to divorce, you have options.
In California, your first choice will be what type of divorce you want; but the decisions won’t end there. Indeed, your journey will be filled with crossroads, and each choice will have a different result. However, it can be hard to feel right about a decision, when you have no idea where each one leads.
This is where experience comes into play. As one who’s seen it all (or, at least, a lot of it), an attorney is like a really great trail guide—or that GPS app you can’t live without. They help you understand how each choice will affect your divorce, and guide you toward the path that will achieve the best results.
5. Top-Notch Paper Pusher
Paperwork is one of the biggest headaches about divorce—and a huge offender of delays and setbacks.
First off, there’s figuring out which divorce paperwork you need. Next there’s filling then out—which lines you don’t want to miss and what supplemental information you’ll need—and that’s not even getting into where you have to file them and how much you’ll have to pay when you do.
Hiring an attorney is a stress-free fast past to paperwork made easy. Sure, you’ll need to provide information and do the actual signing, but that’s about where it stops. Not only will your attorney make sure you’re filling out the right paperwork, they’ll also make sure it gets filed, too.
6. Risk Mitigation
When it comes to divorce, there are a lot of things that can go wrong. Filing the right paperwork is one of them, but there are also discovery deadlines, financial disclosures, service proofs, and, in some cases, even protective orders that you have to worry about.
All of these things need to be handled within a certain timeframe, and according to very specific protocol. And failure to follow these protocols will—at the very least—result in fines and delays. At most, then can result in a default judgment, the relinquishment of parental rights, or a significant loss of property.
These types of mistakes are avoidable, but only if you know what to watch out for. When you don’t, they can often be costly—sometimes impossible—to reverse. Hence, instead of playing Russian roulette with self-representation, it’s better to hire an attorney.
The right representation mitigates risk by steering you around common pitfalls, not only saving you time and money, but safeguarding your rights, as well.
Wrapping it all Up
While almost every divorce could benefit from an attorney, not everyone will need the same type of services.
For example, a couple that’s chosen an uncontested divorce certainly won’t need the same attorney involvement as a divorce trial. Similarly, spouses with a prenuptial agreement will probably be just fine with mediation.
That being said, all of these couples could benefit from attorney involvement. Just how much, however, depends on your unique circumstances.
A good attorney is the one who caters their legal strategy to fit your needs. They are one who respects your time, your wants, and—perhaps especially—your budget, fighting tirelessly for your rights within whatever parameters you set.
Do You Need A Divorce Attorney in California?
If you have more questions about divorce attorneys in California—and how one might be able to help with your situation—we want to hear from you. Start your divorce process out right by calling Maples Family Law at (209) 989-4425, or get in touch online, and let us help your divorce go as smoothly as possible.
You love being a grandparent and want to keep being a part of your grandchild’s life, once their parents get divorced.
Unfortunately, in California, grandparents do not have any automatic rights to visitation with their grandchild; however, just because this process isn’t standard procedure, doesn’t mean you can’t ever get visitation.
California courts understand that grandparents can often play a key role in a child’s early and adolescent development, providing a meaningful bond that can enrich both sides of the relationship. Because of this, the courts are willing to grant grandparent visitation, in some situations.
Here’s what you need to know about filing for grandparent visitation in California, and what the Maples Family Law team can do to help you get the arrangement that’s best for your grandchild.
What is Grandparent Visitation?
Visitation is a critical part of child custody, and refers to the allotted time a non-custodial parent gets to spend with their child.
This in-person facetime is critical. It allows parents to cultivate a relationship with their child, and to influence how they’ll be raised—regardless of their relationship status—which is why the courts take it so seriously.
Unfortunately, visitation is a parental right, not a grandparent right. Meaning that—once the child’s parents get divorced—their custodial parent has no obligation to let you be a part of their life, anymore.
Despite this, there are some situations when California courts may grant grandparent visitation, if it’s in the child’s best interest. (Even if the parent disagrees.)
Who Qualifies for Grandparent Visitation?
In California, custody decisions are made according to a child’s best interest. This legal standard makes a child’s long-term health and well-being the driving force behind every decision made. As a result, judges aren’t necessarily interested in what parents want; instead, they’re focused on what’s best for the child.
Enter: grandparent visitation.
Remember that unique, grandparent/child bond we talked about, earlier? The court recognizes that this is a good thing—a relationship that not only benefited the child leading up to this moment, but one that will serve them well in the future, too.
Because of this, there are some situations when the court will grant grandparent visitation, if it’s in the child’s best interest.
When Parents are Still Married
Generally speaking, grandparent visitation is out of the question while parents are married, though—you guessed it—there are a few exceptions.
According to California law, judges are permitted to consider grandparent visitation (while parents are still married), if:
One of the parents is incarcerated or involuntarily institutionalized.
However, even if the court grants visitation under one of these scenarios, there’s still a catch: once the situation no longer exists, either parent can ask for a termination, and the court will be obligated to do so.
When Parents are Not Married
Far more common are visitation requests when parents are not married. This often occurs in the wake of a divorce, but can be relevant to unmarried parents, as well. In these situations, you initiate the process by filing a grandparent visitation petition with the court.
Things then go forward much like any other child custody process, with judges analyzing facts and making decisions based on what will ultimately be in the child’s best interest. Some of the factors analyzed in this process include:
The relationship that exists between grandparent and child.
That last point is important. For visitation to be in your grandchild’s best interest, there actually must have been a preexisting relationship between you two.
In California, courts will not grant a grandparent visitation request, simply because you want the chance to start a relationship with your grandchild; one that was never there to begin with. Here, the amount of prior contact will be a very important factor in the judge’s decision.
How to File for Grandparent Visitation
Filing a grandparent visitation request is not for the faint of heart. This process does not favor grandparents. In fact, right from the start, the court will assume the position that you’re wrong, and the child’s parents are right. From there, it’ll be your job to prove that assumption is wrong.
And we won’t lie. That’s a high bar to clear.
For those grandparents who are up for the challenge, these steps will tell you what you need to know about filing for grandparent visitation in California.
Step 1: Is There an Open Case?
And by “open case,” we mean any current case that involves your grandchild in any way—be it adoption, probate, CPS intervention, or any otherwise.
If there is, you’ll want to start by filing your petition under that case. This requirement ensures that all relevant decisions about a topic are being made at the same time.
Step 2: Fill Out Paperwork
If there isn’t already a case open, you’ll need to initiate a new case.
To do that, start by collecting the necessary forms (which will include a Request for Order, and a Child Custody and Visitation Application). These documents will ask you to explain the type of visitation you want and why you want it.
Remember: the burden of proof is working against you, here, so you’ll want to provide as much detail as possible. The evidence you provide here sets the foundation for all future arguments, and will play a critical role at your hearing.
Step 3: Make Copies
When you file your paperwork, you don’t get it back. Hence, before you file, be sure to make a copy for your own personal records.
Additional copies will be needed, in order to execute proper service. Depending on how many relevant parties there are, that could mean anywhere from 2-3 extra copies, so make sure you have enough, before filing.
Step 4: File Your Paperwork
Family law cases are heard in county court, so you’ll need to file them at the courthouse for your jurisdiction. This will include a filing fee; however, if you can’t afford to pay it, you can always request a fee waiver.
Step 5: Notification
California law requires you to notify someone when you open a case against them. For grandparent visitation, this will likely mean the child’s parents—both biological, and/or adopted.
Notification must be done through proper service, otherwise it won’t be valid. This is typically carried out by hand-delivering copies of paperwork to everyone who is a party to the case. (Which is why you don’t want to skip step 3!)
Step 6: Settlement and Hearing
Once everything has been copied, filed, and delivered, you will likely be required to attend mediation with the child’s parents, to see if things can be resolved outside of court. If they can’t, your mediator will notify the judge, and you’ll be assigned a hearing.
At the hearing, both sides will present evidence to the judge. After hearing arguments and reviewing paperwork, your judge will decide whether or not to grant grandparent visitation.
Is Grandparent Visitation the Right Answer?
Grandparent visitation is often initiated when a stepparent (or another grandparent) adopts the child. In these situations, it may be in a child’s best interest for the relationship to continue, while allowing parents to retain custody.
However, what happens when this isn’t enough?
When a child is removed from their home because of domestic violence, neglect, or abuse, the court’s first priority is to keep the family together, whenever possible. If this can’t happen, they may want to assign the child a permanent guardian, or even adopted parents.
A trusted grandparent is often the best solution for the child in these situations. Hence, if you’re able (and willing) to care for your grandchild, you may want to consider more than visitation… you may want to consider custody.
If this is something you’re interested in, an experienced, California family law attorney can help you figure out your next steps.
Do You Need Help with Grandparent Visitation in California?
Few things in life are more rewarding than becoming a grandparent, and it’s a relationship we want to help you preserve.
For more questions about grandparent visitation in California—and how that might work in 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 secure the best future for your grandchild.
Marriage involves a shared legal interest in things like property, debt, and child custody, which is why when you file for divorce, you can’t just cross your fingers and hope your spouse gets the memo about when and where to show up.
Instead, California courts will require you to notify your spouse of your actions through a specific set of steps known as “proper service.” This ensures both sides have ample time to prepare for divorce, and are given the opportunity to be fully involved.
Here’s what you need to know about executing proper service in California, and what our team at Maples Family Law does to help you with this important step.
What is “Proper Service”?
You might have already heard, but in the U.S. legal system, due process is kind of a big deal. This important personal right ensures your interests are properly represented, and that you have a chance to defend yourself in front of a judge, when someone takes legal action against you.
That’s why when you file for divorce, you have to notify your spouse—and not just any old text message will do. Instead, you have to execute this notification properly.
“Proper service” (or “service of process,” as it’s sometimes called), is the formal notification method for telling your spouse that you’ve filed for divorce. This info alert is a required part of filing for divorce in California, and is typically accomplished by hand delivering copies of divorce paperwork to the other party.
Proper service is mandatory. Failure to follow the correct process puts your case at risk of being thrown out, and can cause frustrating delays. Which is why it’s best to make sure it’s done right the first time.
How to Execute Proper Service in California
In California, executing proper service involves delivering copies of divorce paperwork to your spouse. However, in order to be valid, things have to be done “properly,” including:
Proper paperwork
Proper server
Proper process
Proper proof
Here’s a look at each of these, and how to make sure they’re done… well… properly.
1. Proper Documents
First, you’ll need to make sure you’re delivering the right documents. In California, this usually means copies of all your divorce paperwork, such as your:
Petition for Divorce
Summons
Property Declaration
Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act
Child Custody and Visitation (Parenting Time) Application
You’ll also want to throw in a few blank divorce forms, including:
Response—Marriage/Domestic Partnership
Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act
With these documents collected, you can then move on to the next step: choosing your courier.
2. Proper Server
Naturally, proper service can’t be carried out by just anyone—you need the right one.
Luckily, the qualifications aren’t very strict, so you’ll have a lot of options to choose from; however, there’s one very important person who cannot serve papers: you. That’s right. In California, you cannot be the bearer of your own bad news.
Instead, the notification must be carried out by someone who is:
Over eighteen;
Not a party to the case; and,
Is identified by name and address on the return of service form.
Servers in California do not need to be licensed. Hence, you can choose just about any adult friend or family member to deliver paperwork for you. (Just make sure they’re responsible enough to complete and return proof of service.)
3. Proper Process
California has several delivery options to choose from; however, the most common—by far—is hand delivering documents to your spouse.
To do this, your courier simply needs to:
Meet with your spouse at any location;
Identify their purpose (to deliver divorce papers);
Leave paperwork with them; and,
Return proof of service to the clerk.
If a spouse refuses to accept paperwork, servers are permitted to leave documents on the ground in front of the person.
Other methods of executing delivery include:
Mail—must be done via certified mail, and include two blank copies of Notice and Acknowledgement of Receipt.
Substituted Service—occurs when a process server leaves papers at the person’s residence or workplace.
Publication—carried out by printing a notice of the divorce in a major newspaper in the responding spouse’s last known location for four weeks.
Posting—when notice of the divorce is posted at the courthouse.
Generally speaking, hand-delivering divorce papers is the best and most widely used method of delivery. Alternative methods shouldn’t be used unless you have no other option.
4. Proper Proof
Finally, don’t forget to have your server return proof of delivery to the court.
In California, this proof comes in the form of a completed Proof of Service form. This written affidavit tells the court how, where, and when divorce documents were delivered, and must be signed and returned by your server, in order to conclude proper service.
After Proper Service
Your spouse will have thirty days to respond to your divorce paperwork. However, even if they don’t, your hearing will still go forward as planned. (Since, you know, California isn’t going to make you stay married, just because your spouse refuses to engage.)
Instead, your judge will simply enter a default judgment in your favor.
A default divorce grants a petitioner everything they asked for in their original complaint, and essentially operates as though the other party had agreed to everything.
Obviously, this is not a great situation to be in. Hence, if you’ve been properly served with divorce paperwork, it’s best to simply speak to a family law attorney about what your options are, moving forward.
Do You Need Help with Proper Service in California?
Improper service can cause expensive time delays in your divorce process that no one wants; which is why it’s so important to get it right the first time. Luckily, an experienced family law attorney can help you do just that
If you have more questions about how to execute proper service in California, and what that might look like in your situation, we want to hear from you. Call the Maples Family Law team at (209) 989-4425, or get in touch online, and let us worry about the filing logistics so you don’t have to.
Few things in life are more exciting than becoming a grandparent. Despite its benefits, though, this relationship comes with a lot of uncertainty, as well, since grandparents do not have the same rights as a child’s biological (or adopted) parent.
On the bright side, however, just because a grandparent doesn’t have the same rights as a parent, doesn’t mean they don’t have any at all. And, indeed, it may be possible for a grandparent to qualify for visitation and custody, if certain requirements are met.
Here’s what you need to know about grandparent’s rights in California, and what the Maples team can do to help you navigate these important issues.
Grandparent’s Rights: Not the Same Thing as Parental Rights
To begin, what are grandparent’s rights, exactly? And how do they apply to you?
Unfortunately, there isn’t a clear-cut answer to this question (probably because grandparents don’t inherently have them…). However, grandparent’s rights can generally be defined as the power and authority to care for their grandchild, and to influence their life.
Compared to parental rights, though, this authority is extremely limited.
In California, it is parents—not grandparents—who have full legal and physical custody over their child. This includes the right to live with and care for their child, make decisions for them, and to determine how they will be raised. These custodial powers are inherent, and cannot be taken away unless it is in a child’s best interest (usually only in cases of neglect or abuse).
Grandparents, on the other hand, do not have these inherent rights. You
may have raised that child’s parent, but unfortunately, that doesn’t give you the right to be the Ultimate Authority in your grandchild’s life.
That being said, a grandparent might qualify for some limited rights—but only if certain requirements are met. Here’s a closer look at what we mean.
Grandparent’s Rights: When Parents Get Divorced
There are two main branches of child custody: legal and physical. In California, legal custody deals with decision-making power, while physical custody governs a child’s physical time, including visitation schedules, and where they will live. When the court is presented with either a divorce, or a paternity case, these custodial powers must be divided, according to a child’s best interest.
If you are a grandparent in one of these scenarios, we can fairly confidently declare that you will not receive any legal authority (a.k.a. decision making power), so long as both parents are alive and fit. However, it may be possible for you to sue for visitation.
In California, a grandparent may request “reasonable visitation” with their grandchild, if:
There is a pre-existing relationship between grandparent and grandchild; and,
It would be in the child’s best interest to keep that relationship going through visitation.
But what do these requirements mean, exactly? What qualifies as a pre-existing relationship, and how does the court determine whether you are in your grandchild’s best interest?
Pre-existing Relationship and Best Interest of the Child
As with grandparent rights, there is no set definition or timeline requirement for what qualifies as a “pre-existing relationship.” Instead, the court will simply look at whether or not it was enough time to form a meaningful bond, and whether it’s in the child’s best interest to keep that bond going.
Again, much of this is subjective, but when determining a child’s best interest, some of the factors the court might look at will include:
The child’s overall health, safety, and well-being;
Any history of domestic violence or abuse by anyone seeking custody—whether grandparent or parent;
Any drug or alcohol use; as well as,
How often the grandparent was in contact with the child, prior to suing for visitation.
With these questions in mind, the court will then weigh arguments for and against visitation, to determine what will serve the child best. If the child is over fourteen, then the judge will also take their wishes into consideration (though, they aren’t required to do what the child wants).
Divorce is (by far) the most common trigger for grandparents seeking visitation rights, but what if you want visitation when the child’s parents are still married? What then?
Grandparent’s Rights: When Parents Are Still Married
When it comes to custody and visitation, California courts follow the Best Interest of the Child standard. This legal principle puts a child’s interests above everything else, making their health and wellbeing the driving force behind every decision made in that case.
And—according to a longstanding history of California common law—the best interest of a child is to stay with their parents, whenever possible. Unfortunately for grandparents, this means that most of the time, you cannot petition for rights while the parents are still married.
There are, however, a few limited exceptions, and you may still be able to file, if:
A parent’s whereabouts have been unknown for at least a month;
One of the parents joins the petition for visitation;
The child doesn’t live with either of its parents; or,
A stepparent has adopted the grandchild.
That being said, even if you do qualify under one of these circumstances, your rights can be terminated at the request of either parent, if the qualifying circumstance ever changes.
If this happens, the court will honor parental authority, and terminate your grandparent visitation rights. In order to reinstate them, you’ll need to file another petition with the court.
How to File for Grandparent Visitation in California
If you’re interested in petitioning for grandparent’s rights in California, you’ll need to follow these steps:
Determine whether there’s an open case. If a case involving the child (or their parents) already exists, then you should file your petition under that case. If not, you’ll need to open a new one.
Fill out paperwork. To initiate a new case, you’ll need to file several forms, including a Request for Order, and a Child Custody and Visitation Application. On these forms, you should explain what type of visitation you want, and why in as much detail as possible.
Make copies. Part of initiating this case involves serving each of the child’s parents with copies of your paperwork. Hence, we recommend making at least three copies of everything, before you file.
Submit forms. Once everything is complete and copied, the next step is to file your documents with the county clerk; this will include paying the filing fee. (If you can’t afford to, you should request a fee waiver.)
Execute proper service. Part of filing includes notifying the child’s parents that you’ve initiated a case. This must be done via proper service, or it will not be valid.
Attend your hearing. Once these steps are complete, the last thing left is to attend your hearing. At that time, both sides will have the chance to present evidence, after which the judge will make their decision.
As a general rule, arguing for grandparent visitation is a very high bar to clear. Your judge will be operating under the assumption that the child’s best interest is with its parents; meaning that you’ll essentially be arguing that the parents are not in their child’s best interest.
If this is truly the case, then you might want to ask yourself if grandparent visitation is the right answer, at all, or if, perhaps, some other solution might be better.
Is Grandparent Visitation the Right Answer?
If your grandchild is being neglected or abused, then visitation might not be the right answer, at all. Instead, you might want to sue for guardianship, or even full custody.
Domestic violence is something California courts take very seriously. If you believe your grandchild might be experiencing harm from their parents, then it might be time to talk to a family law attorney about what other (more permanent) options are available.
Do You Have More Questions About Grandparent’s Rights in California?
Becoming a grandparent is one of the most rewarding experiences in life. And while you may not have as much authority over your grandchild as their parent, there are circumstances that could warrant grandparent visitation, guardianship, or even custody.
If you have more questions about grandparent’s rights in California, and what that might look like in your situation, we want to hear from you. Contact the Maples Family Law team today at (209) 910-9865, or schedule a consultation online, and let us help you get the best arrangement for your grandchild.
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