Tag: <span>Child Custody Agreement</span>

Grandparent Visitation

March 22, 2022February 25, 2022
by Briana White

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:

The parents are separated;
The whereabouts of a parent have been unknown for at least a month;
One of the parents joins the grandparent’s request for visitation;
The child doesn’t live with either parent;
The child has been adopted by a stepparent; or,
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 child’s health, safety, and will-being;
Any history of domestic abuse;
Any history of alcohol or substance abuse; and,
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.

Child Custody

Where Will My Child Live?

March 8, 2022April 12, 2022
by Briana White

For a parent, nothing is more stressful than staring down the uncertainty of a child custody battle. You’re worried about how they will cope, what they will think, and—perhaps most importantly—where they will live.

The bad news is: we don’t know where your child will live. Parenting time decisions are made on an individual, case by case basis, so it’s impossible to predict the outcome of your dispute.

The good news is: California courts want what’s best for your child; and this means splitting your child’s time as close to equal as possible.

If you’re worried about where your child will live, read on to find out more about how California courts determine child custody, and what Maples Family Law can do to help you navigate these important issues.

Child Custody: Where Will My Child Live?

To answer the question, “Where will my child live?” we first have to look at child custody, as a whole.

In California, child custody isn’t just about where a child will live. It’s also about who has the authority to make decisions on behalf of that child, and the power they have to influence how that child will be raised. This division breaks child custody down into two main groups:

Legal custody
Physical custody.

A parent who has legal custody has the right to make decisions about their child’s health, schooling, medical care, and religious exposure, and to be involved in all major and minor decisions regarding their child. On the other hand, a parent with physical custody has the right to spend time with their child, and to live under the same roof.

When parents get divorced, the court can no longer assume their child-rearing goals are aligned. As a result, these custody powers must be divided.

Exactly where your child lives—and who gets to make that call—will hinge heavily on how the court divides these powers.

Dividing Child Custody: Joint vs. Sole

In dividing child custody, California courts have options. They can either make parents share, or give power to one parent, alone.

Joint custody occurs when parents must share power.
Sole custody occurs when only one parent has authority.

Both legal and physical custody can be either shared, or given to only one parent, alone.

As a general rule, California courts will almost always divide legal custody equally between parents. Joint legal custody gives both parents an equal say in things like health, education, how their child will be raised. Judges won’t award sole legal custody unless it’s absolutely in a child’s best interest (usually in cases of abuse or neglect).

Physical custody, on the other hand, is another matter. Due to busy schedules, distance, and a myriad of other factors, dividing a child’s time equally between parents can be challenging.

That being said, it’s also pretty dang important, because the division of physical custody plays a huge role in where your child will live.

Sole Physical Custody

A parent with sole physical custody is the primary caretaker for their child, and has a lot of discretion in deciding where their child will live. In California, this often goes hand in hand with sole legal custody (though, not always).

A sole custody parent is still bound by the other parent’s visitation order, however, so they can’t relocate out of state without judicial permission. If an out of state move was requested, the court would revisit the custody order, to see if another visitation arrangement would work better.

Joint Physical Custody

Joint custody is favored by California courts. However, even when both parents are qualified, it can still be difficult to split time exactly 50/50.

Luckily, you don’t have to have a perfect split in order to have joint custody. California courts will consider your arrangement “joint,” so long as your child spends a significant amount of time living with both parents.

A parent who has the greater share of time is sometimes called the “custodial parent,” or “primary residence parent.” (In contrast, the parent with less time is the “non-custodial” parent.)

Custodial parents have primary custody over their child, and as such—so long as they stay within certain geographic boundaries—have a lot of sway when determining where their child will live. Like with sole custody, however, they’re still bound by the other parent’s visitation order, and are still required to involve the other parent in all major decisions.

Child Custody Factors

When it comes to making these custody decisions, California courts will analyze a number of different individualized factors, and choose the outcome that will serve your child’s long-term health and happiness the best.

To figure out what outcome that might be, California courts will consider:

The child’s age;
The child’s mental and physical health;
The child’s emotional needs;
The child’s relationship with each parent;
Each parent’s ability to care for their child;
Each parent’s health and finances; as well as,
Any history of domestic violence, abuse, or neglect.

In addition, California judges may consider a child’s preferences, if they are at least fourteen years old. However, this doesn’t mean the child will get their way.

A child is still a minor until they reach eighteen, and teenagers don’t always know what’s in their own best interest. Hence, judges have the authority to overrule these wishes, and pick the arrangement that will ultimately be in the child’s best interest.

Child Custody Modification

California lawmakers are aware that life doesn’t always stay the same. Change happens, and what works now might not in the future, which is why they’ve provided a way for you to modify your custody arrangement.

Both custodial and non-custodial parents are allowed to petition to modify custody. However, for the court to consider this request, there needs to have been a significant change in circumstance.

Situations that often qualify for this consideration include:

A change in career, death in the family, or other illness requiring significant attention.
A parent has put their child in a dangerous environment.
A new relationship puts the child in harm’s way.
A custodial parent is not complying with a visitation order.
A custodial parent has failed to provide their child with proper care (such as, repeatedly missing doctor’s appointments, or arriving late at school).

A custody modification essentially opens both parents up to scrutiny from the court. So it’s important not to make frivolous requests (otherwise, the results could backfire).

Judges will evaluate new evidence, and either approve or deny the change, based on what would be in the child’s best interest.

Child Custody Attorneys in California

Your custody arrangement can’t work, unless it’s unique to you. Which is why it’s so important to have a family law attorney that you know and trust; someone who isn’t afraid to fight for your child’s best interests.

If you have more questions about custody, and where your child will live, 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 find the arrangement that’s right for your child.

Child Custody

Child Custody Overview

December 23, 2021
by Briana White

Child custody refers to the various rights and responsibilities associated with taking care of a child. These authorities and obligations are most commonly associated with divorce; however, they are also relevant to unmarried parents, grandparents, legal guardians, and individuals looking to adopt.

In this child custody overview, we’ll define important terms, talk about parental rights, and help you gain a better understanding of what to expect during this important process.

Child Custody: 101

In the family law arena, child custody refers to the myriad of rights, powers, and obligations associated with caring for a child. Most of the time, we think of these authorities when couples are getting divorce, however, child custody can also be relevant to:

Unmarried parents—couples who are not married, and want a structured parenting plan to govern interactions with their child.
Grandparents—who might be wanting to gain custody over a grandchild who isn’t receiving proper care from parents.
Legal guardians—who may need partial access to certain custodial powers in order to care for a child or incapacitated adult.
Adopted parents—who may want to take on the full mantel a of parental rights for a child who isn’t biologically theirs.

Regardless of circumstances, all child custody cases are governed by the same set of family laws. These laws attempt to make decisions based on what outcome is most likely to serve a child’s best interest.

In California, these custodial powers break down into two main groups: legal custody and physical custody.

Legal Custody

First off, there’s legal custody, which refers to a parent’s decision make authority, and their right to determine how their child will be raised.

This category of custody includes a parent’s right to make decisions about their child’s:

Medical and dental health;
Psychiatric and psychological therapy;
Education and child care;
Religious and cultural exposure;
Travel opportunities; and even,
What extracurricular activities they’re allowed to be involved in (if any).

Most of the time, California parents will end up sharing this authority, equally, meaning that both must pass off on all major decisions.

Physical Custody

The other branch of custody is physical custody. This category refers to a parent’s right to live under the same roof as their child, and to have regular, in-person face time.

Since it’s so difficult to divide a child’s time exactly equal between parents, California courts will almost always assign one parent to be the child’s custodial parent (or “primary residence” parent), while assigning the other ample parenting time in the form of visitation.

A child’s primary residence is where they live most of the time. This parent is in charge of meeting their daily needs, including food, clothing, as well as things like transportation, daily medication, and homework.

Child Custody: Joint vs. Sole

In California, legal and physical custody are assigned separately. To this end, each set of powers can be assigned to one parent, alone (in “sole custody”), or to both, as shared powers (known as “joint custody”).

Most of the time, legal powers are assigned jointly between parents. This means that both must pass off on decisions for their child, and that one cannot act without the express permission and authority of the other. Legal custody is easy to split fifty-fifty, since it doesn’t require a child to be living under the same roof as its parents.

Physical custody, on the other hand, is not as easy to divide equally. Between school, extracurricular activities, competing work schedules, and child care needs, it can be nearly impossible to give each parent an equal amount of face time with their child. Which is why it’s so common for courts to assign one parent to be the child’s primary residence.

To decide which parent will be the child’s primary residence, the court will analyze a number of individual factors, to determine what course of action will be in their best interest.

Primary Residence Factors

Some of the factors the court may consider when deciding on primary residence include:

The child’s relationship with both parents;
The child’s physical, emotional, and educational needs;
The child’s need for continued social stability;
The child’s tie to relatives living in the area;
Each parent’s ability to care for their child;
Any history of family violence; as well as,
Any history of substance abuse by either parent.

Keep in mind that in California, you can still be considered joint physical custodians, even if your arrangement has an uneven division of time.

Child Custody: Visitation

The parent who does not get assigned as the primary residence will still receive ample parenting time in the form of visitation.

A visitation schedule outlines the division of time with your child, and is determined based on what is in your child’s best interest. In California, visitation can be:

Scheduled—a detailed plan that outlines specific dates and times of exchange, including where the child will spend holidays and birthdays.
Reasonable—an open-ended agreement that does not make specific arrangements; instead, parents agree to work out the details between themselves.
Supervised—an arrangement that requires visits to be supervised by another adult, or a professional agency. This type of visitation generally occurs when the child has experienced harm or neglect because of the parent.
No Visitation—a situation where any contact with a parent (even supervised) would be physically or emotionally harmful to the child.

In addition to a visitation schedule, non-custodial parents are often assigned to pay child support.

Child Custody: Child Support

As all parents know, children don’t come cheap, and these expenses don’t end, just because parents get divorced, meaning that—without support—a child’s primary residence parent will inevitably end up shouldering the bulk of costs for these daily needs.

Hence, to offset this imbalanced financial burden, California courts will often require non-custodial parents to pay child support. This ensures both parents are responsible for meeting their child’s needs, and are held equally accountable, accordingly.

In California, child support is calculated using a formula that weighs each parent’s income against their percentage of parenting time. However, the court is allowed to deviate from this formula in situations like a high net divorce, when a higher monthly amount would be more appropriate.

Child Custody: Drafting your Parenting Plan

A family court judge is often needed to help finalize custody matters, however, they aren’t necessarily a requirement, and couples are always free to draft their own parenting plan.

This can be done between individuals—with or without attorneys—or through a more structured process, such as divorce mediation. For some couples, collaborative divorce can be another good, out of court option.

So long as your proposed custody agreement meets certain state guidelines (such as child support minimums), judges are usually happy to sign off on an agreement you reach on your own.

Child Custody: Enforcement and Modification

In California, decisions involving minors are all made under the scrutinizing lens of the best interest of the child. This legal standard requires the court to choose—not what you want, as a parent—but the outcome that will serve your child’s long-term health and wellbeing the best.

When a parent fails to uphold their duties under this order, it’s the child who ultimately suffers the most, and California courts do not take these infractions lightly. Penalties for noncompliance are dependent on the offense, but can result in serious legal consequences, including a restriction on parental rights, fines, and even jail time.

If there is a legitimate life change keeping you from carrying out your responsibilities, then talk to your attorney right away. In some situations, custody orders can be modified, however, these changes cannot be applied retroactively. So it’s important not to wait, if something comes up.

Child Custody Attorneys in California

As a parent, nothing is more important to you than your child. You want what’s best for them, and worry about how divorce will affect them. At Maples Family Law, we understand and empathize with these concerns, which is why we hope you’ll trust us to help.

If our child custody overview hasn’t answered all your questions, we hope you’ll reach out. Call us today at (209) 989-4425, or get in touch online, and let our team of experienced family law attorneys fight for your child’s best future.

Child Custody

Who Gets Custody if My Spouse or I am…

August 5, 2021
by Briana White

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

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

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

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

Will Military Service Affect My Custody Battle?

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

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

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

Federal Military Custody Protections

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

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

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

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

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

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

Stay of Proceedings

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

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

Stay of Execution (Enforcement) of a Judgment

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

Expedited Modification of Support

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

Interest Reduction

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

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

Military Qualified Debt Reduction Program

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

California Military Custody Protections

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

military parents. Some of these protections include:

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

Prohibiting Custody Modifications

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

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

Temporary Amendments

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

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

Case Suspension

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

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

Visitation Requests

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

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

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

Military Custody Attorneys in California

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

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

Child Custody

FAQs About Same Sex Custody

July 29, 2021July 29, 2021
by Briana White

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

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

Luckily, we’ve got you covered.

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

How Does California Handle Same Sex Custody?

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

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

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

What Factors Does the Court Consider During Child Custody?

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

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

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

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

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

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

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

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

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

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

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

What is California’s 3rd Parent Law?

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

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

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

What About Unmarried, Same Sex Partners?

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

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

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

What is a De Facto Parent?

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

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

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

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

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

How Can I Avoid Same Sex Custody Problems?

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

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

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

Same Sex Custody Attorneys in California

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

Child Custody

Same Sex Custody in California

July 29, 2021
by Briana White

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

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

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

Same Sex Custody: The Basics

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

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

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

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

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

Same Sex Child Custody Scenarios

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

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

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

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

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

1. Child is Adopted by Both Parents

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

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

2. Child is Born into Marriage

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

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

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

3. Unmarried, Same Sex Parents

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

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

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

The Doctrine of Psychological Parenting

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

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

De Facto Parents

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

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

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

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

Best Interest of the Child

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

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

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

Same Sex Custody Attorneys in California

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

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

Child Custody

Does Adultery Affect Child Custody in California?

July 22, 2019March 23, 2020
by Angie

If you’re like many people going through divorce, you have a lot of questions – and one of them is Does adultery affect child custody in California?

Adultery – what it’s called when one person “steps out” of a marriage by being unfaithful – isn’t supposed to affect your divorce. In fact, California is a no-fault divorce state. That means you don’t have to have a reason for divorcing, and the courts can’t use fault to determine things like child custody in most cases. (We’ll get to those exceptions later.)

Here’s what you need to know.

Does Adultery Affect Child Custody in California?

The state of California recognizes that it’s in kids’ best interests to have healthy relationships with both parents. (That’s true even if you have a low opinion of your spouse because he or she cheated on you.) The courts won’t say, “Well, you cheated, so you can only see your kids every other weekend.”

Here’s the deal, though. If one spouse’s infidelity during the marriage changed his or her fitness as a parent, the courts can use it to rule on child custody. But being an “unfit” parent is a big deal, and courts don’t throw that around lightly. The fact that he or she cheated – while it did destroy your marriage – doesn’t mean that the courts will see your spouse as an unfit parent.

Related: Is adultery illegal in California?

Your spouse would have to do something that seriously changed his or her ability to parent, like engage in sexual acts with the other party in front of the kids. The adultery could also affect custody if the new partner abuses the children, for example. If the affair changes your spouse’s living arrangements in a way that wouldn’t be good for the kids (like if he or she moved into a studio apartment with the paramour, and there aren’t any beds or sofas for the children to sleep on), the courts would rule based on what’s best for the kids.

Your Kids’ Best Interests

It’s important to remember that the courts will always put the kids’ best interests first. In cases like those, there’s no way to predict how a judge will rule – but the courts definitely have options. A judge might:

Restrict one parent from seeing the kids except when he or she is supervised
Say that the kids can’t have overnight visits with one parent
Come up with any remedy that puts the kids’ needs first

The bottom line is that even though adultery may have destroyed your marriage, it won’t affect child custody unless it has changed your soon-to-be ex-spouse’s fitness as a parent.

It can, however, affect other aspects of your divorce.

Adultery and Divorce: What Does it Affect?

Adultery can have a minimal impact on other aspects of your divorce, but only in limited circumstances. For example, it may affect property distribution and alimony.

How Adultery Can Affect Property Division

When one spouse spends marital money – which is community property – on an affair partner, and when the other spouse can prove it, the courts may order the big spender to repay half of what he or she spent. This can be very difficult to prove, so without a paper trail, you may not be able to show the court how much your spouse spent on the affair partner. Even if you just suspect that your spouse spent money on the affair partner, though, you should let your Stockton divorce attorney know. Your spouse could be hiding money or accounts, which he or she is legally required to disclose during divorce.

How Adultery Can Affect Alimony

In some cases, the courts order one spouse to pay the other alimony. Known as spousal support, this money is supposed to help a lower-earning spouse get back on his or her feet. Several factors go into a judge’s alimony decision, and one of them is the lower-earning spouse’s living arrangements. If your spouse cheated on you and is now living with the affair partner, you may not owe him or her as much alimony as you ordinarily would – after all, there’s someone else living there that can help pay the bills and provide support.

Who Pays for Divorce if Adultery is the Cause?

You can ask the court to order your spouse to pay your legal fees related to divorce, but not because he or she cheated on you. Section 271 of the California Family Code allows the court to order one person to pay another person’s legal fees if that person doesn’t have enough money to pay his or her own legal fees. Sometimes judges can order one spouse to pay the other’s legal fees without need, too, such as when one party keeps trying to drag the other back to court needlessly.

How Do You Prove Infidelity During Divorce?

In California, there’s typically no need to prove infidelity. It won’t impact the outcome of your case (unless your spouse spent all your family’s savings on his or her affair partner, or your spouse engaged in lewd behavior with a paramour in front of your children, that is).

If you believe that your spouse’s cheating will have an impact on your divorce, you’ll need to provide the court with evidence. That could include credit card statements or bank statements that show how much money your spouse spent on the other party, or proof that your spouse (or the affair partner) behaved improperly in front of your children. The behavior has to be extreme, though – as upset as you may be that your children stayed the night with your ex at the same time his or her affair partner did, that alone probably isn’t enough for the adultery to affect your divorce.

Is Adultery Punishable by Law in California?

While adultery is against the law in some states , it’s not illegal in California. As a result, someone can’t go to jail for cheating on a spouse. However, there are other ways that adultery can affect a person going through a divorce, such as property division and spousal support (both of which are discussed above). But remember: California is a no-fault divorce state, which means that a judge is unlikely to consider a person’s infidelity unless he or she spent family money on a paramour (and the jilted spouse can prove it) or if it directly affected the children in a negative way.

So is cheating a crime in California? No, it’s not. However, it can affect divorce in multiple ways.

In What States Can You Sue Your Spouse for Cheating?

Alienation of affection is recognized in a handful of states:

Hawaii
Mississippi
New Mexico
North Carolina
South Dakota
Utah

How Do You Salvage a Relationship After Cheating?

There are many people who believe you can’t salvage a relationship after cheating – but on the other side of the coin, there are people who believe you can. If you’re interested in saving your marriage, you may want to talk to a divorce therapist near you about what to do next. Unfortunately, there’s no one-size-fits-all solution for everyone. Even more, both of you must be willing to salvage your relationship and commit to the idea that you need to create a “new normal.”

Can I Sue My Wife’s Lover in California? (Or My Husband’s Lover?)

Some states do allow you to sue your spouse’s paramour for alienation of affection… but California isn’t one of them. There aren’t any “homewrecker” laws in our state. Although you’re heartbroken over what happened, you’re not going to find justice for your spouse’s moral issue in the court system.

This might really work out in your favor, though. To sue your wife’s lover (or your husband’s lover), you’d have to have concrete proof that he or she cheated on you. Finding that proof can cause more heartbreak than it’s worth.

Remember: You don’t need to prove that someone is at-fault for your divorce in California. You just need to let the court know that your marriage cannot continue because you have irreconcilable differences.

Do You Need to Talk to an Attorney About How Adultery Affects Child Custody in California?

If you’re going through a divorce, or if you need to talk to a lawyer about how adultery affects child custody in California, we may be able to help you. Call us right away at (209) 546-6870 or get in touch with a Stockton divorce attorney online to schedule a consultation today.

Divorce

What is a Motion to Modify Custody?

June 22, 2019August 4, 2020
by Angie

If your child custody arrangement isn’t working out – or if it’s no longer in your children’s best interest – you may be able to file a motion to modify custody.

But what is a motion to modify custody, and how does it work?

Here’s what you need to know.

What is a Motion to Modify Custody?

A motion to modify custody is a legal document your attorney can file with the court on your behalf. (A motion is a request for the court to do something.)

The judge assigned to your case will look at your motion and make a decision based on what’s in your child’s best interests. In order to file a motion to modify child custody, you have to have the legal grounds to do so.

What Are the Legal Grounds to Modify Custody?

If you want to change your custody agreement, you’ll have to show the court that there’s been a change in circumstances. That change in circumstances must make your current agreement unworkable. Some common reasons people file a motion to modify custody include one parent:

Needing to relocate because of work or personal reasons
Exercising religious practices that are harming the child
Putting the child in a dangerous environment
Preventing the other parent from seeing the child
Failing to properly care for the child

These aren’t the only reasons people have for changing their custody arrangements – they’re just some of the most common. If you feel your circumstances (or your child’s circumstances) have changed enough to justify asking the court to modify your order, talk to your attorney. He or she can explain how the court might view your request, as well as file the appropriate paperwork.

Related: What is full custody?

When Can You Ask the Court to Modify Your Custody Arrangement?

You can ask the court to modify your custody arrangement any time there’s a significant change in circumstances. As long as the judge in your case has issued a custody order, you can file a petition to change it.

What Should You Include if You Ask the Court to Change Your Agreement?

If you would like the court to change your agreement, you’ll need to come up with an alternative. Prepare a plan that details scheduled visits and all the other changes you want to make. That way, your attorney can get it on the judge’s desk – and the judge can make a decision based on facts.

You’ll have to explain why you think it’s necessary to change the existing order. If your child’s other parent disagrees, he or she will have the opportunity to say so (and explain why).

Your attorney will be able to give you guidance on modifying your custody agreement, and he or she might even suggest that you talk to a mediator so you and your spouse can agree.

Does Your Child Have Any Say?

In some cases, the courts will take the child’s preference into consideration. Typically, though, the judge won’t allow very young kids to state a preference for living with one parent or the other. If your child wants to have a say in the matter and the court allows it, the judge will consider your child’s:

Age
Maturity level
Intelligence level
Motivations

What if the Proposed Plan Isn’t in Your Child’s Best Interests?

The court’s main concern is always the best interests of the child. That means that if you submit a proposed change that isn’t best for your child, the court can – and will – kick it back and tell you to try again. Remember, the legal system in California is set up to protect children… and the law recognizes that a child has a right to both of his or her parents.

Do You Need to File a Motion to Modify Child Custody?

If you need to ask the court to change your custody agreement, we may be able to help you. Call us at 209-546-6870 to schedule a consultation with a caring, compassionate and knowledgeable Stockton divorce attorney now. We can also help you with issues related to parentage and child custody, spousal support and other divorce issues.

Child Custody

How to get a Child Support Order

January 30, 2017May 24, 2020
by Anna Maples

How to get a Child Support Order

If you have a child with someone who is not your spouse or is a former spouse, getting child support can be a necessity in order to ensure the continued health, welfare and wellbeing of both yourself and your child. If you live in California that process can be accomplished by requesting an order for child support from the appropriate court. A court order can be requested either directly by going to the court or indirectly through a local child support agency. However, how the process is initiated will depend on whether or not you already have an open family law case.

Who Can Seek Child Support?

Anyone with a child can request child support from the other responsible party. For example, single mothers can request that the biological father pay support, same-sex couples, where both parents are the legal parent of the child, can request child support, and divorcing couples with children can request child support.

How Does the Court Decide Who Has to Pay Child Support?

If the parents are married at the time the child is conceived or born, then both are automatically presumed responsible and the court will usually require the non-custodial parent to pay child support to the custodial parent. However, if the parents are not married, then the parentage of the child must be established before a court can issue a child support order. (How to establish parentage is discussed below.)

PROCEDURE WHEN YOU HAVE AN OPEN FAMILY LAW CASE

It’s much easier to get a child support order when you already have an open family law case. The court recognizes several different types of family law cases, including:

Divorce cases (dissolution of marriage)
Legal Custody cases
Legal Separation
Annulment
Domestic Violence Restraining Order Proceedings
A petition of custody and support of minor children
Any local child support agency case

If you have any of the above cases already before the court, you simply need to fill out and file some forms:

1. A Request for Order (FL-300) – available online or through your local family court.

2. An Income and Expense Declaration (Form FL-150) OR a Financial Statement (simplified) (FL-155) – also available online.

**If you are unsure which financial form you need to use, form Which Financial Form – FL -155 of FL 150 (DV-570) is available to assist you.

After you’ve completed the forms, you should have either a family law facilitator or a private attorney review them to ensure that they are properly filled out and ready for the court to process.

After you’ve had your forms reviewed, file them with the appropriate court. Once you file the forms, the court clerk will give you a date and time for your child support order hearing. After you’ve been given a court date, you MUST serve the papers on the other parent.

Serving The Other Party

It’s important that the other party is properly served. Failing to properly serve the other parent can cause unnecessary delays in getting your child support order. To properly serve the other party, have someone over the age of eighteen either give the papers directly to them or mail the papers. You cannot give them the papers yourself and you cannot mail the papers yourself, a third party must do it.

The papers you serve on the other parent should include a copy of the papers you filed as well as a blank Responsive Declaration to Request for Order (Form FL-320) and a blank Income and Expense Declaration (Form FL-150).

If you don’t know anyone who can serve the papers, you can usually get a sheriff’s deputy to serve the papers. The court will be able to give you direction on how to have a sheriff serve the papers on your behalf. (There may be an extra charge for this).

After you’ve served the other parent, have the person who served the papers file a Proof of Personal Service (Form FL-330) with the court. If the papers were served by mail, have them file a Proof of Service by Mail (Form FL-335). It is imperative that the proof of service is filed. This is your legal proof that the other party was given adequate time to review and respond to your request for child support. Failing to file the proof of service allows the other party the opportunity to dispute that the papers were properly served, which could unnecessarily delay getting your order.

Now all you need to do is simply show up to your court date with your paperwork and present your case!

WHAT TO DO WHEN YOU DON’T CURRENTLY HAVE AN OPEN FAMILY LAW CASE

In this case, the steps you will need to follow will depend on whether or not you are married to your partner or in a registered domestic relationship.

Married or in a Registered Domestic Relationship

If you do not already have an open family law case, you need to first initiate a case, then follow all of the steps listed above for filling out, filing and serving the paper work.

However, not all cases are related to a breakdown in the relationship or the marriage. If you and your partner are either married or in registered domestic partnership and would still like to have the benefit of a child support order, you can start a case under a Petition for Custody and Support of Minor Children. A petition for custody allows the court to enter an order of child support as well as any other related orders.

Not Married or in a Registered Domestic Relationship

For people who are not married or in a registered domestic relationship, you can seek a child custody order by opening the following types of cases:

Domestic Violence Restraining Order

You can file a domestic violence restraining order if the other parent of your child has either emotionally or physically abused you. In this instance, you do not need to be in a romantic relationship with the person, so long as you share a child you can seek child support when you file the restraining order.

Petition for Custody and Support of Minor Children

If you already have a signed Declaration of Paternity you can file under a Petition for Custody and Support of Minor Children. If you do not have a signed Declaration of Paternity, then you will need to initiate a parentage case.

Parentage:

Parentage is perhaps the most complicated method of attaining a child support order. A parentage case is for unmarried people who share a child or children, but who do not have either a signed Declaration of Paternity or any legal documentation to establish who has legal responsibility over the child or children.

What is Parentage?

Parentage is the legal determination of who will be responsible for supporting the child. In order to be legally responsible for a child, a parent does not have to be the biological parent. Parentage can be established for adoptive parents, same-sex couples, or any person who has agreed to take legal responsibility for the child. Generally, if the child was not conceived or born during a marriage, then establishing the child’s parentage is necessary in order to seek custody, support, or visitation with the child. Once parentage is established, the legal parents are responsible for the child and failing to pay court ordered child support could have legal consequences.

Parentage is not the same as paternity. A biological father, who was never married to the mother, has no legal rights or responsibilities in relation to the child until his parentage is established.

How to Establish Parentage

Parentage can be established in several ways, including:

Signing a Declaration of Paternity:

Signing a Declaration of Paternity is voluntary and can be done either at the hospital when the baby is born or at a later date. Once a Declaration of Paternity is signed and filed with the California Department of Child Support Services, the signer becomes the legal father of the child. Once the declaration is signed a court order is no longer needed to establish parentage.

Providing Proof Of Giving Birth To The Child
Providing A Court Order Of Adoption
Asking A Local Child Support Agency To Bring An Action To Establish Parentage
Asking the Court to Issue a Court Order

Steps for filing a parentage case can be found here: http://www.courts.ca.gov/11298.htm

Establishing Biological Paternity

California law provides a presumption of paternity in certain cases. When there isn’t a presumption of paternity, then DNA testing can be done to establish paternity.

A. Presumptions of Paternity:

Paternity is presumed when:

A child was born during a marriage or within 300 days after the marriage ended,

A child was born during an attempted marriage that appeared to be legal, or the child was born within 300 days of the attempted marriage,

There was a subsequent marriage or attempted marriage after the child’s birth,

The child is welcomed into the home and is held out to be the natural child of the presumed parent.

Once you have successfully initiated one of the above proceedings, then simply follow the steps provided in the first section: Procedure When You Have an Open Family Law Case and you are on your way to getting your child support order!

However, if you still have questions or concerns about how to file your child support case or if your case is unique in some way, you should speak with a knowledgeable family law attorney or a family law facilitator.

Child Custody

Dividing the Child: Should Children be Involved in their…

May 5, 2016May 24, 2020
by Dr. Thomas Maples

Current California law requires the courts to give due weight to the wishes of a child who is 14 years of age or older regarding their custody and visitation arrangements if that child is shown to be of “sufficient age and capacity to form an intelligent preference as to custody or visitation.” However, AB 2098, currently under consideration by the state legislature, will move the age of decision making capacity from 14 to 10 years of age if it is passed.

This bill, commencing July 1, 2017, would instead require the court to permit a child who is 10 years of age or older, of his or her own volition, to address the court regarding custody or visitation, unless the court determines that doing so is not in the child’s best interests. The bill would require the court to determine whether the child is addressing the court of his or her own volition and to provide the child with an age-appropriate form developed by the Judicial Council that explains to the child specified information prior to the child addressing the court regarding custody or visitation. The bill, commencing January 1, 2017, would require the Judicial Council, no later than July 1, 2017, to develop this age-appropriate form (https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201520160AB2098)

On a practical level, this bill may sound promising at first. Why shouldn’t children have the capacity to choose the parent with whom they want to live? Why shouldn’t they be in control of the visitation arrangements they will be subjected to take part in as they learn to form independently operating relationships with either or both parents of their choosing? It is their life, is it not! Shouldn’t it be their choice?

Children are ultimately the ones who are subjected to the will of a third party, whose decision will ultimately affect the course of their academic, social, and familial future until the time they are 18. Unfortunately in today’s arena of highly contested divorces and custody conflicts, it is the children who are placed in the middle of the family conflict that is forever dividing the landscape they were born too. While it used to be common ground to tell children, “it is not your fault,” regarding the division of their family tree, now the state legislature and the judicial officers will be placing the capacity, no the responsibility to decide as to what parent they will lose: Oops, I mean which parent they will choose, even though both parents are ultimately at fault for their childish inability to take that same child’s best interest into account. A child simply must have the answer of what is in their best interest: Right. Or do they?

At first sight, this seems to be a progressive step towards children’s rights. From a purely philosophical perspective, it would seem to grant children the rights to exercise judgment under the guise of free will. However, from a practical perspective, can a child be expected to house this burden of choice, where an audience with the judge “will” come with a heavy price tag, one they may not be able to shoulder as the repercussions of their decision immediately takes form as a final order is rendered by the court. What emotional repercussion will take place for this child, and at what expense will their development be affected due the decision made to choose one parent over the other? Is a child 10 years of age even capable of making a decision of this magnitude? From a developmental perspective, the answer is clearly, NO!

From a developmental perspective, a child 10 years of age is in a socially awkward stage of life. This stage of development is commonly called latency. During latent development, a child has mastered core concepts of survival during infancy through early childhood, and can effectively care for themselves in a limited, but highly dependent manner. They remain dependent on their parents, even though either / or both parents may be unable or even unwilling to find the middle ground when it comes to the emotional, developmental, and spiritual needs of the child they fight so vehemently for within a custody dispute. This is especially difficult for a child of this age, who not only knows of the physical and emotional dependence they have on their parents, but concurrently lacks the cognitive capacity to formulate a multifaceted approaches to understanding the specific ramifications an either / or decision such as custody determination or visitation arrangements will have on their personal development. Children of this age, simply cannot think beyond the either or perspective enough to understand the consequences associated with their decision.

The idea of allowing a 10 year old a voice to choose custody preference or visitation arrangements becomes even more flawed when viewed from a psychosocial or a cognitive developmental lens. During their latent development, a period of childhood that begins roughly at 6 and lasts until 12 years of age, a child becomes more keenly aware of their personal strengths and weaknesses. This is especially true in areas of social, educational, and familial expectations. Values are passed on during this time, and these are linked not only to educational and social expectations, but specific values the nuclear family finds important to pass on to their offspring. During latent development, a child develops the capacity to see things from a “concrete operational perspective,” can reason about objects and simple relationships between them, but lacks the capacity to entertain multifaceted hypothetical scenarios common to abstract thought (Newman & Newman, 2003). While children may have the capacity to focus on relationships among adjoining or related ideas, they lack the capacity to see how draw inference as to how these ideas can related to other areas of life. In order to complete this form of complex thought process, a child must develop the capacity to abstractly reason, a developmental task that does not occur until mid adolescence.

Because children lack the capacity to form multifaceted, complex ideas around the ways either / or decisions can affect a variety of other factors that occur within their life, they are often seen to make rash decisions, which ultimately can be based upon the ulterior volition of one parent, where the will (whim) of the child can and ultimately will sabotage what is in their best psychological interest. From a cognitive perspective a child is unable to understand the brevity of the decision they are forced to make, regardless of a form they have been given to complete may imply.

Form a psychosocial perspective, a child during latency Must learn age appropriate social, familial, and occupational expectations. It is during this stage that a child needs his or her parents the most. Despite the division that occurs during the divorce process, the more perspectives a child receives regarding values and ethics formation, the better equipped they are to enter and model the complex thought capacities needed to form abstract ideals about the world in which they live.

A child during latency is said to enter a psychosocial crisis of industry versus inferiority. They learn social industry during this stage of development, which is inclusive of family values and / or expectations. If a child fails to engage appropriately in social industry development, the begin to lack the self esteem needed to push on towards further avenues of success. This oftentimes stands as the catalyst for future self-esteem problems that form the basis for numerous mental health disorders seen in early adolescence and early adult life.

Childhood is a special time where they must learn ways to appropriately interact with the environment that they not only live within but will eventually make their mark upon. Pushing children to grow up too quickly is never a good idea, expecting them to make decisions they are simply incapable of is a poor choice not only for the children, but also the courts who would implement this law, and the state legislature that is imposing a parameter on a population that cannot meet the expectation given. This is a bad idea. Not only from a psychological and developmental perspective, where the child who was once sheltered from the atrocities played out in family court will now be exposed and offered a voice as to what is the best of the two worst case scenarios.

If you’d like to get more information, or if you’re ready to speak to an attorney, please contact Maples Family Law.