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.

family-law

How to Enforce Spousal Support in California

February 5, 2021February 1, 2021
by Briana White

When your ex refuses to pay spousal support, is late on payments, or doesn’t give you the full amount, this can be understandably frustrating. Especially since the entire point of spousal support is to help a homemaker become economically independent after a divorce. Without this reliable, financial assistance, getting back on your feet becomes much more difficult.

If a judge included spousal support in your divorce order, it isn’t optional. Your ex might not like you, or agree with the verdict, but the hard truth is, that court orders are as iron clad as any other law—the only difference being, that it’s personalized to you. And California courts don’t look kindly on law breaking.

If you need to enforce spousal support in California, here’s how that might look in your situation.

Enforcing Spousal Support: Earnings Assignment

The easiest and fastest way to enforce spousal support in California, is to file an earnings assignment with your county clerk immediately after your divorce is finalized. An earnings assignment—also known as wage garnishment—is a legal document that requires your ex’s employer to pay you spousal support before giving them their take-home pay. This type of enforcement is automatically available to every California divorce.

Filing an Earnings Assignment in California

The only requirement to filing an earnings assignment, is that your divorce is finalized. Once you have your support order from the judge, activate your earnings assignment by completing:

A Findings and Order After Hearing (Form FL-340);
Any of the required attachments; and,
An Earnings Assignment Order for Spousal or Partner Support (Form FL-435).

Upon completion, take the finished forms (and attachments) to your local clerk for signatures. After everything has been processed, you can pick them up and have copies properly served to both your ex and his or her employer. This is done via mail, and must be initiated by someone who is not a party to the case (meaning: you can’t do it yourself). Make sure to have your server fill out two proof of service forms (one for your ex, and one for the employer), as these will also need to be filed with the clerk.

Earnings Assignments Are Not Required

Although convenient and efficient, wage garnishment isn’t actually required. If both parties agree, an earnings assignment can always be “stayed,” or rather: put on hold. Though, it’s important to note, that a stay of earnings can always be reversed, if proper payments are not made on time in the future.

How Long Before an Earnings Assignment Takes Effect?

Once everything has been filed and served, your ex’s employer will have ten days to begin deducting spousal support from the paycheck. If they do not, the employer could be held liable for payments in your ex’s stead.

Enforcing Spousal Support in California: Other Tactics

If your ex falls behind on payments, or you are having trouble with an employer not meeting the terms of a valid earnings assignment, you may need to involved the court again. In these situations, a judge might reinstate an earnings assignment, or possibly hold an employer liable for noncompliance, if applicable. During this process, you will likely need to make an accounting of all missed payments, so that the increased amount can be included in the amount owed.

While it’s possible for you and your attorney to do these things on your own, if you are still having problems, at this point you might also want to consider soliciting outside help.

Local Child Support Agency (LCSA)

One way to get help enforcing spousal support in California, is to open a case with your local child support agency (or LCSA). The LCSA is authorized to help enforce orders of both spousal support and child support, and they can do so at no charge to you.

The biggest benefit to using the LCSA, is the arsenal of enforcement tools they have at their disposal—tools that certainly aren’t available to the average citizen. To enforce spousal support in California, the LCSA can:

Report all late and missed payments to major credit reporting agencies, detrimentally effecting credit scores;
Notify the U.S. State Department, who can place a holds on the passport of any individual owing $2,500 or more in support payments;
Put a lien on your ex’s land or house, so that if the property is sold, profits can’t be collected on the proceeds until support payments are made;
Suspend any state-issued licenses, including any driver’s, business, or professional licensures your ex might have;
Use the Franchise Tax Board to collect money from bank accounts, real property, deposit box cash, or even vehicles owned;
Notify the IRS to take support payments out of tax refunds before they issue anything to your former spouse;
Take the owed support out of unemployment benefits, or workers compensation; and even,
Claim lottery winnings—if your ex happens to be so lucky. (And there’s definitely some satisfying karma in that, we think.)

As you can see, the tactics used by the LCSA are much more motivating than anything you can do on your own, and since they’re available at no cost to you, it might make a lot of sense to just skip the drama, and involve them in your case as soon as possible.

Contempt of Court

In extreme cases, it might be necessary to enforce spousal support by holding your ex in contempt of court. Unlike divorce cases, which are held in civil court, a charge of contempt is a very serious criminal charge, and could result in jail time.

When deciding on contempt, the judge will analyze whether or not the support was withheld on purpose—particularly if your ex was able to pay, but just decided not to. Because while you can’t (technically) get thrown in jail for being in debt, intentionally ignoring a court order can definitely get you there. This is usually a measure of last resort, though, and most judges will attempt to find a reasonable solution before putting anyone behind bars.

Spousal Support Modification

Because there are such serious consequences attached to not paying spousal support, if you are on the paying end and cannot fulfill the court’s order, it’s important you notify them as soon as possible. The court understands that life is unpredictable, and circumstances change. That’s why there are ways to modify a spousal support agreement—ones that don’t involve enraging the Powers at Be for not paying (which, really, is never a good idea).

Communication is the biggest key, here. As soon as you are aware of the change in circumstance, don’t wait. Notify the court, and fill out the necessary forms to initiate a hearing to modify. Amount changes cannot be applied retroactively, so acting fast is critical, as you’ll still be on the line for the original amounts, however long it takes you to get the wheels rolling.

Depending on the reasons for your request, the court may reduce the amount, though they’re unlikely to eliminate altogether.

Attorneys to Enforce Spousal Support in California

For many divorcees, spousal support is a critical means of income in the post-divorce era, and not receiving these funds in full and on time can be extremely stressful and financially crippling.

If you are entitled to receive regular spousal support, and are not getting it, we can help. Call us at (209) 989-4425, or get in touch online to schedule your consultation today. With our assistance, we can make sure you receive the funds you’re entitled to, without the stress and headache of going it alone.

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