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LEGAL SEPARATION AND DIVORCE CASES
CHILD CUSTODY / VISITATION FAQ’S
GRANDPARENTS VISITATION FAQ’S
ON-DEMAND DRUG TESTING FAQ’S

CHILD SUPPORT
SPOUSAL SUPPORT ISSUES
PARENTAL TERMINATION / ADOPTION ISSUES
DOMESTIC VIOLENCE RESTRAINING ORDERS

 

LEGAL SEPARATION AND DIVORCE CASES

It’s always the personality problems that cause the legal and financial problems within any legal separation or divorce case, and the personalities of the attorneys, the judges, the custody mediators, the in-laws and out-laws or new mates are all part of the problems, or part of the solutions. Understanding what has caused / is causing the personality problems often gives insight into which legal tools to use to achieve the best result with minimal waste of time, money, and emotions.

A Legal Separation is recommended if there is hope that the marriage can be saved after intervention by the courts, or where someone may not have been a resident of the County for the required minimum of three months or the State for the minimum period of at least six months. The other option is where for religious reasons one person must separate but doesn’t have scriptural grounds for filing for a divorce. A legal separation proceeding can usually be transformed into a divorce proceeding, if desired.

Uniform Parentage Act cases are those custody / support cases where the parents have not been married to each other. The laws and procedures for obtaining court orders for custody or visitation are the same as for divorcing parents.

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CHILD CUSTODY / VISITATION FAQ’S

Q. What is “joint legal custody”?
A. Joint Legal Custody is a theory of law that is widely followed in most cases, and gives each parent the equal right to make important decisions about the health, education, and welfare of their child, even if they don’t have shared physical custody. However, Joint Legal Custody is also like the speed limit on the long stretches of Hiway 5 to the north and south of Sacramento – it’s a theory of law that is commonly ignored by most of the drivers.

Q. What is “shared physical custody”?
A. Shared physical custody is another theory of law that does not necessarily mean equal parenting time.

Q. At what age can children have a say in what they want for a parenting plan?
A. Family Court Services Mediators start interviewing children at the age of 5. The older and more mature the child, the more of a say they have in what they want. Generally, by the age of 15, FCS mediators are going to listen very carefully to what the children want, especially if the child’s reasons are well founded.

Q. Does a parent have a right to get copies of medical or school records if they are not the primary custodial parent?
A. Yes. California Family Code Section 3025 guarantees that each parent has access to all health care and school records without regard to custody.

Q. At what age do Family Court Services mediators consider equal shared parenting times?
A. Children as young as 18 months can thrive in equal shared parenting time schedules if the contact with each parent is of split-week schedules, such as Thursday afternoon to Monday mornings with the parent who doesn’t work weekends, and Monday morning to Thursday afternoon for the parent who works weekends. Another option is called the 5-2-2-5 rotating split-week schedule that rotates weekends with each parent. Children by age 8-10 have a much better sense of time and can adjust to alternating weeks of parenting time with each parent. This normally occurs where the parents live relatively close to each other and in the same school district.

Q. What works best for transporting the children for visits?
A. The best arrangement is for the parent receiving custody to pick up the minor child(ren) from the residence of the other parent. This leads to timeliness, with less game-playing and manipulation by one parent or the other.

Q. What about traveling by air?
A. Much depends on the age of the child and the airline. Many courts require one parent to travel with younger children, and most airlines impose an extra fee for “unaccompanied minors” especially where there is a flight change or layover along the way.

Q. Who pays for the flight expenses?
A. The court can determine who pays for the flights. Much depends on the level of incomes between each parent.

Q. What if a custodial parent remarries and wants to move away?
A. Much depends on the circumstances and the reasons for the move. These are tough cases for courts to decide. The parent wanting to move away is usually required to pay for frequent flights for the child(ren) to visit with the parent who stays put.

Q. Do I have a right to a court-appointed attorney in a custody case?
A. No. There are rights to court-appointed counsel where parental rights are being terminated, or where Contempt of Court processes are being used.

Q. Can a person who isn’t a biological parent maintain custody rights?
A. Yes, in some circumstances. The focus would be on the physical and emotional bonds between the child and the “de facto” parent.

Q. Can a step-parent get court-ordered rights to visit with step-children?
A. Yes, so long as their custodial time doesn’t interfere with the other parent’s time and it is in the best interests of the children.

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GRANDPARENTS VISITATION FAQ’S

Q. Can a grandparent obtain court-ordered visits against the wishes of their own child?
A. No, not in California. The legislature here has given parents the right to exclude their own parents from contact with their children. However, that would not preclude the other parent from allowing contact between the children and the grandparents during their own parenting time.

Q. When do grandparents have a right to intervene?
A. Grandparents visitation rights usually occur where they are already bonded with young children and the primary custodial parent is NOT their own child, and won’t let them have contact with the grandparents.

Q. How do grandparents ask for court-ordered rights?
A. Grandparents can file a Motion for Joinder and ask for Family Court Services mediation over the amount of contact they can have with their grandchildren. A “joinder” means that the grandparent(s) become a party to the divorce or custody case.

Q. Can grandparents be ordered to pay child support or attorney’s fees?
A. Yes in theory.
 

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ON-DEMAND DRUG TESTING FAQ’S

Q. Can drug testing be ordered in custody cases?
A. Yes, in most California courts. Mr. Wessels drafted on-demand drug testing standards 20 years ago and began proposing them in all cases where it was necessary, passing out his proposals to other attorneys to use in their cases all over Northern California. But because there are no legislated standards the procedures and consequences vary greatly from one county to another. The legislature will probably adopt standardized on-demand or random drug test procedures shortly. Nationwide standards are needed.

Q. Who pays for the drug testing?
A. The courts usually require the requesting parent prepay the cost of the drug test, which is normally about $55. However, if the test confirms the presence of illegal drugs, the tested parent is usually required to reimburse the requesting parent.

Q. What happens if the tested parent fails to show up for the test?
A. Many courts impose a requirement that the tested parent submit a testable urine sample within four business hours of being served with a Demand to Submit. If the Tested parent fails to show up the courts can construe the no-show as a “failed” drug test.

Q. Will the court suspend parenting time if there is a no-show or a failed drug test?
A. Some courts will issue orders that automatically suspend parenting time with a minor child until the tested parent submits two clean drug tests at their own expenses with at least a two-week interval between the tests. Other courts will simply require supervised visits for a period of four weeks with the requirement of two clean drug tests.

Q. Is it possible to submit a false urine sample?
A. All drug testing labs have multiple layers of security to detect and prevent altered urine samples.

Q. Are the at-home drug tests good enough?
A. There are several advantages to the at-home drug tests that can be purchased at a wide number of drug stores. They are cheaper and can give answers in minutes instead of days. The urine sample can be saved and mailed in for back-up testing, or if the test is positive for illegal drugs, then the more formal and more expensive lab testing can be obtained.

Q. Are there different kinds of drug tests?
A. Yes. There are “random” drug tests, where courts require the requesting parent pre-pay for drug tests to a lab, and give the lab the discretion to initiate the drug test by placing a call to the tested parent. Then if the tested parent doesn’t show up within the allotted time – usually four or five business hours – the presumption is that the tested parent is “dirty”. The problem with “random” testing is that it can be expensive for the testing parent – two tests per month. The other option that some courts are ordering is “on-demand” drug tests, which are within the control of the requesting parent. If the requesting parent hears slurred speech or feels the emotional anger in the familiar tone of voice, or suspects the tested parent has been using illegal drugs over a three-day weekend, the requesting parent can have someone serve the tested parent with a Demand to Submit, which specifies the location of the drug testing lab and the time within which the tested parent must submit a testable urine sample.

Q. Are the drug tests effective for detecting alcohol?
A. Yes, up to 72-80 hours after the use of alcohol, if that test is requested.

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CHILD SUPPORT

Q. How does the court determine who pays how much child support?
A. In California the legislature has mandated the use of computerized schedules that calculate about a dozen factors for each parent, such as income, income tax dependency status, marital status, the need to support other children, the amount of out-of-pocket health insurance premiums, the amount of child care expenses, and so on.

Q. If I remarry, can the court use my new spouse’s income to increase my child support obligation?
A. No. The California legislature has forbidden using a new mate’s income to increase child support, unless the parent is intentionally unemployed or under-employed. Usually, the new spouse’s income decreases the amount of child support that has to be paid because the new spouse’s income puts the supporting parent into a higher income tax bracket. Most family law attorneys have the computerized schedules on their office systems and can predict what the court will do with fair accuracy. Conversely, if the parent receiving child support remarries, their new mate’s income increases their own income tax liabilities, reducing their available post-tax income, which could increase the amount of child support that would be ordered.

Q. Does the primary custodial parent get to claim the child on income taxes?
A. Not necessarily. The court can award income tax dependency status for children to the parent who needs the tax dependency the most. If the father makes two or three times as much money as the mother, the computers recommend to the courts the shifting of income tax dependency to the father – he doesn’t have to pay as much in income taxes but has to pay more in child support, which usually offsets the amount of higher income taxes the mother has to pay.

Q. Is the amount of child support paid taxable income to the recipient and tax deductible for the payor?
A. No. Child support is NOT taxable income. However, child care expenses can be deductible by the parent who pays them.

Q. What is “family support”?
A. Family support is a combination of both child support and spousal support into one sum, and is fully income tax deductible for the payor and fully taxable income to the recipient.

Q. Who pays for the child care costs?
A. The court usually orders each parent to pay for half of the work or school-related child care costs, over and above the amount of child support.

Q. Can I get a Wage Assignment?
A. Wage Assignments are now mandatory in virtually every case.

Q. When does child support end?
A. Child support goes past the age of 18 to graduation from high school, up to the maximum of the age of 19. However, the 18 year old must attend high school full time to be eligible for ongoing child support past the age of 18.

Q. Do I have a right to a court-appointed attorney in my child support case?
A. Technically, no, parents don’t have a right to court-appointed counsel in DCSS child support cases, but there are nationwide child support collection laws that require local governments provide child support enforcement services on behalf of the children.

Q. What if the child support obligor is self-employed?
A. Courts can require that self-employed persons pay child support, and in some cases, deposit funds into a savings account as security for future payments.

Q. Can the Department of Child Support Services (D.C.S.S.) help me get the support owed?
A. Yes, in many cases. They are required to help anyone obtain and enforce the child support laws; but there is also a difference between the theory of law and reality. Tremendous tenacity is sometimes needed to get things done.

Q. What if the child support obligor moves from one job to another, or won’t work?
A. The court can impose “seek-work” orders and require people to supply duplicate copies of job applications every two or four weeks until full-time employment is found.

Q. What if the other parent gets a pay increase or a new job but doesn’t disclose it?
A. There is a right to request income tax returns / current employment data from the other parent every year.

Q. Must I disclose my income tax returns?
A. Yes as a matter of law. Year-to-date pay stubs must also be disclosed upon request.

Q. What about out-of-pocket health care expenses?
A. Courts normally order each parent to be responsible for half of the out-of-pocket health insurance costs, which normally covers orthodontics, co-pays, and counseling expenses. There is a specific set of rules called the Notice of Rights and Responsibilities Act (NORRA) found in Family Code Section 4063. Generally if one parent pays $10 for prescription co-pays, they have to send a copy of the receipt to the other parent within 30 days, and the other parent has 30 days to reimburse half of the cost.

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SPOUSAL SUPPORT ISSUES

Q. Will the courts order the payment of spousal support for short-term marriages?
A. Yes, depending on the circumstances. The most important factor is the amount of income each party has, and/or or their ability to earn. Temporary spousal support is required to be set by the Guidelines imposed by the legislature in cases where it is appropriate.

Q. How much will the court order be paid as spousal support?
A. Temporary spousal support is set by the legislature in accordance with the same dozen or so factors on each side of the case, just like child support. Child support payments are automatically deducted from the payor’s side before spousal support is calculated. In sum, if one parent is receiving a large child support award from the other parent that reduces the payor’s ability to pay spousal support over and above the level of ordered child support. The computerized Guidelines adjust to the circumstances of each case.

Q. What is a “long-term” marriage?
A. The California legislature has deemed any marriage of longer than ten years a “long-term” marriage.

Q. How long will spousal support payments last?
A. There are ten spousal support factors listed under Family Code Section 4320 that courts must decide and issue written orders on in contested spousal support cases. Experienced attorneys can usually predict what judges will order with a fair degree of accuracy. If a stay-at-home mother has been out of the job market for ten years and needs two years of college to regain employment skills, there is a good chance that the court will set a review of the spousal support issues within two and a half or three years after making a long-term spousal support order. One of the ten factors under FC 4320 is the goal that the supported spouse become fully self-supporting within half of the length of the marriage.

Q. Is spousal support tax deductible / taxable income?
A. Yes, payments of spousal support are tax deductible to the payor and taxable income to the recipient.

Q. Can assets be used to offset spousal support obligations?
A. Yes, but great care must be used to properly set out the factual reasons and precise values of property being transferred, and the years in which it is being transferred, because of the income tax consequences to both parties. For instance, a carefully and accurately worded Marital Settlement Agreement can effectively transfer $50,000 of equity from a house to the recipient at the rate of $10,000 a year for each of five specified years.

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PARENTAL TERMINATION / ADOPTION ISSUES

Q. What are the rules for abandonment?
A. In California, there is a presumption that if a parent doesn’t make any attempt to exercise custody or visitation, nor pay any support, for a period of one year, that the parent has abandoned their parental rights.

Q. Are there rights to get a court-appointed attorney in parental termination cases?
A. Yes, if the parent claims that they don’t have the ability to pay for a private attorney, the courts must appoint an attorney to represent that parent. The court can also appoint an attorney to represent the minor child under some circumstances, especially if the child is too young to comprehend dangers beyond for their years.

Q. What are the rights to an unmarried father to a newborn infant?
A. The father could step forward to claim parental rights, along with the concurrent support obligations, and the father or potential father must be notified of the birth and intent to place the baby for adoption. If the father is notified and fails to take the initiative, the courts can and will terminate the parental rights of the father.

Q. What are the rules of law where a husband knows he is not the father of a child?
A. The presumption of law is that the ex-husband is the father of any child born within 300 days of a final decree of divorce.

Q. How accurate are the paternity tests?
A. DNA tests are precisely like fingerprints, and can exclude an ex-husband or other men as the father of a child. This is important because the DCSS is required to go after potential fathers for purposes of obtaining child support.

Q. What are the procedures for a parental termination?
A. Once a Petition for Termination is filed, a Citation is issued by the clerk of the court to force the other parent to come to court to answer the charges.

Q. Are there any other grounds other than abandonment?
A. Yes – There are other grounds for terminating parental rights. Moral depravity is one, such as a pedophile with convictions. Mental incapacity is another ground – such as a Down’s Syndrome mother who has the mind of a five year old but a body capable of producing children. Long-term provable drug and/or alcohol addiction is another ground. Most of these cases arise in the Juvenile court, and require a year or so of reunification efforts before the termination actions can be started. This is because parental rights are so highly prized in our society.

Q. Must there be a step-parent adoption waiting in the wings before parental rights can be terminated?
A. No. The Legislature has NOT set any requirements for a step-parent adoption before or concurrent with a parental termination action. However, getting judges to follow the law may be a different story.

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DOMESTIC VIOLENCE RESTRAINING ORDERS

Q. Why do I hear so many horror stories about domestic violence cases?
A. The worst of human emotions surface with tremendous emotional strife and anger during relationship conflicts, and there are many in our society who use alcohol or drugs to medicate the stress, which exacerbates the problems. There are selfish persons in every society.

Q. Is it true that there are almost as many false allegations about domestic violence as there are true cases of domestic violence?
A. From my perspective of 25 years of family law litigation, yes. I don’t know what the WEAVE statistics show, but I’m not sure I would completely trust their statistics either.

Q. What should I do if I am living with an abusive mate?
A. GET HELP! It is imperative that you find someone you can trust and tell the whole truth. The book Boundaries is required reading for my clients for a reason – the more the client understands the need to set and enforce their own boundaries, the more the client understands what he or she has been doing that was wrong, the easier my job is, which saves thousands of dollars in attorney’s fees.

Q. What if I am facing false allegations of abuse?
A. GET HELP! It is imperative that you find someone you can trust and tell the whole truth. The book Boundaries is required reading for my clients for a reason – the more the client understands the need to set and enforce their own boundaries, the more the client understands what he or she has been doing that was wrong, the easier my job is, which saves thousands of dollars in attorney’s fees. If I believe that a client has been wrongly accused of domestic violence, I will send my client to a psychologist I can trust to perform psychological screening evaluations. These “screening evaluations” can provide me and possibly the court with a personality profile, which can defuse criminal or family law charges.

Q. Is it ever appropriate to compromise the truth for expediency? I just can’t afford to spend $5,000 in attorney’s fees defending myself against false domestic violence charges.
A. NO. There are serious long-term complications that WILL arise somewhere down the road if you compromise truth for expediency. The family law court is compelled by several laws to consider domestic violence restraining orders when it comes to custody, or long term spousal support, or attorney’s fees and costs. The most appropriate response to false allegations of domestic violence is to request the psychological screening evaluation be performed on the person who is making the false allegations. The evaluations cost about $500 per person, and can save many thousands of dollars in attorney’s fees, let alone thousands of dollars in overly high child and/or spousal support. If the charges become criminal complaints, the accused person has a right to a court-appointed attorney to defend themselves against the charges.

Q. How long will domestic violence restraining orders last?
A. The courts can extend restraining orders for up to three years, and if there is an ongoing need to keep the restrained person away, the court can re-issue the restraining orders.

Q. Are there different kinds of Restraining Orders?
A. Yes. The court can issue stay-away orders, or anti-harassment orders, or no-contact orders depending on the needs. The court can also issue orders allowing one person to retain possession of a car, or even a house depending on the circumstances. The court can also order one or the other to make payments on the car or the house for a period of time.

Q. Where can I find out more information about domestic violence?
A. There is a wealth of information readily available at WEAVE. There are a number of excellent organizations nationwide that have helped tens of thousands through the domestic violence cycle.

Q. Can we ever stop domestic violence through education or enforcement?
A. No. There can never be any governmental program that can change human nature. There will always be selfish persons who let their emotions control them; there will always be good actors or actresses who will make false allegations against others out of anger or a desire to manipulate or control others, or cause the other to suffer. There will never be a cure for self-righteousness this side of heaven.
 

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Steve Wessels is no longer practicing law, and the general information contained within this website should not be relied on in any jurisdiction for legal advice. Every case turns on different facts and circumstances within the vastly different laws and procedures of each jurisdiction, and everyone who is seeking legal advice should consult an experienced attorney where they live.