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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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