Child custody and visitation in California divorce

In California, there are several aspects to the care and control of your child.

The first is custody, and there are two kinds: physical and legal, and for each there are two options – joint and sole custody. Physical custody is where your child lives. If your child lives with you and your ex, then you will have joint physical custody, even if one parent just has one or two nights a month. Only if one parent has a very limited amount of time with your child will one parent have sole physical custody.

Many parenting plans (custody and visitation orders) have a designation of “primary custodial parent,” which is commonly referred to as the parent that has more time than the other. Some parents are adamant that they want this designation. Legally, however, there is no significance to this term. It means nothing, and in my opinion is a potential point of contention that should be eliminated in agreements and orders.

The other aspect is legal custody. Legal custody is the responsibility for the decisions regarding the health, welfare, and education of your child. In the vast majority of cases, this will be joint instead of sole custody, unless, again, one parent is simply absent from the child’s life. Legal custody means that you have to make joint decisions with your co-parent regarding your child’s education (public versus private school? Religious training?), health (surgery? braces?), and can even encompass things such as haircuts (shaved heads and spiked designs come to mind), piercings (sometimes ears, but more often eyebrows and belly buttons), and tattoos.

A common desire by some parents is to simply eliminate them from their child’s life much as they are eliminating the other parent from their life. This is not likely to happen. If a parent wants to be involved, even intimately involved, with their child, then that is to be encouraged. It is understandable that one parent may want to put some distance between themselves and their ex, but the legal reality is that if you have a child with someone, then your life is going to be entangled with the other parent until that child is an adult, and often beyond that.

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Child and spousal support in California divorce

A common issue of serious contention in a divorce or other family law case is support. This is because money is a sensitive and difficult subject in these cases. Often you are dealing with the breakup of a household. Suddenly, the same money that used to support one household now has to support two. It’s tough, and leads to many emotional issues.

Child and spousal support are treated differently, but also the same. Let me explain…

Let’s start with the differences. First, spousal support is not available in a paternity, or UPA, case, but only in a divorce. Second, the judge has discretion to deny a request for spousal support, but cannot deny someone child support. Third, child support is always on the table as an issue, whereas spousal support must be specifically requested in the Petition to be considered.

Spousal support is used to keep each spouse in the same financial position that they were in during marriage. Generally it lasts approximately half the length of the marriage, except in long-term marriages, where it lasts indefinitely (which does not mean forever, but rather it lasts until an undetermined time in the future where it isn’t required anymore). The one receiving support has the legal obligation to become self-supporting as quickly as possible, considering that person’s ability to earn. It is commonly believed that a ten-year marriage is considered long-term, but I saw that the courts did not look at a marriage less than about 18-20 years as being long-term. Other counties may vary.

I already talked about how long child support lasts, so I won’t repeat myself. Child support is used for the health, maintenance and welfare of your child. Given that, it does not mean that you, as a payor of child support, can take your co-parent to court because you do not believe that your child support is being used properly. In California, we trust the parent to spend the child support appropriately, so the court won’t even consider an allegation that someone is squandering child support. At the same time, each parent has the legal responsibility to work to support your child financially. The court may order a parent to work who is not working or not working up to his or her potential.

In the beginning stages of a case, child and spousal support are calculated similarly, using the support calculator (which you can find here: support calculator). Spousal support on a long-term basis is calculated by a judge using a number of factors, including the need of the payee and the ability to pay of the payor.

Dissolution: issues in a California divorce

In every divorce (or dissolution) case, the court has a universe of issues it may resolve. The issues are common to most cases in that most cases have all of them, but some omit a couple. The issues are child custody and visitation, child and spousal support, property and debt division, attorney fees, and status. We’ll examine each of these in detail, but here’s an overview:

There are two aspects of the non-financial issues with your child (and I say child with the understanding that many folks have more than one child): custody and visitation (or parenting time). There is physical and legal custody, and you can have joint custody or sole custody (for one parent). Parenting plans vary like personalities. Some parents share parenting time equally and fluidly with few specifics written down. Some parents have to have every detail recorded in excruciating detail. There are some “standard” parenting plans, but by no means are they uniform.

Child and spousal support are also issues in a divorce case. Support is calculated using a software program adopted by the State of California. You can find it for free here: Support Calculations. Permanent, or long-term, spousal support is calculated using a variety of qualitative factors not necessarily related to the software, however.

The court will also divide all property and debt you and your spouse acquired during your marriage. This includes any real property, or homes, as well as personal property, vehicles, bank and stock accounts, 401Ks and pension/retirement accounts, and any and all debt. California law provides for EQUAL division of all property and debt.

The court can and will also resolve the issue of attorney fees, particularly if the incomes of the spouses are very different. If one spouse makes the majority of the money in the household, the court will likely order that spouse to pay the majority of the attorney fees.

Finally, there is the issue of your status. Your status is whether you are divorced or single. You can separate, or bifurcate, the issue of your status and become divorced if you feel your case is taking too long. Divorce cases can last several years. Most often, your status is dissolved, making you a single person, at the resolution of your case. The earliest this can happen is six months and one day from the time the Petition was served on the Respondent.

UPA: Paternity action in California

UPA stands for Uniform Parentage Act, and is the name of the case when you have a child outside of marriage. Commonly called paternity cases, this is the way you formally and legally establish the parents of a child. Generally the father is the one thought of in these cases, but in a UPA case, both mother and father are determined. Either parent may bring a paternity case, and upon the establishment of parentage, both rights and responsibilities attach.

Once it is determined that you are a parent of a child, you are required to support that child financially. You are also entitled to parenting time (visitation) with the child, subject to the best interests of that child (for example, you are entitled to parenting time unless the time would endanger the child’s welfare, such as if you are ingesting illegal substances at the time). This responsibility lasts, legally in California, until that child is 18 and graduated from high school, to a maximum age of 19.

What?

The court’s jurisdiction over a child lasts until age 18 for custody and visitation. At age 18, the court can no longer order a child to visit with either parent. For purposes of child support, however, the obligation lasts until your child graduates from high school, up to the age of 19. So if your child turns 18 in January, then graduates in June of the same year, then you pay support until June. If your child graduates in June and turns 18 in October a couple months later, then the support can last into college. If you have a child who turns 19 in April before graduating in June, then support will last until your child’s birthday in April. Perhaps that was a longer explanation than necessary, but at least now you get it (hopefully!).

A UPA case cannot handle, however, issues around your relationship that do not have to do with the child. For example, a UPA case can resolve issues surrounding pregnancy and birth expenses, but cannot resolve issues, for example, around the return of property or disposing of joint assets (such as a car or house). The court will only get into that with married couples. If you have to go to court on issues of property division with someone to whom you are not married, then you have to go to small claims court. Obviously, too, there is no spousal support (alimony) in a UPA case.

How to file for divorce in California

In general, filing a family law case is fairly simple. For a divorce or paternity case, the process is about the same. You need to file a Summons, which basically just identifies you and your opponent and states that you are suing your opponent. With the Summons, you have to file a Petition (different for divorce and paternity), which is the ‘meat’ of the filing. The Petition specifies what’s going on and what you want, and defines the universe of options for your case.

For example, as I mentioned in an earlier post, if you want to be able to get spousal support at any time during your case, you MUST mark that box in your Petition. If you don’t, then it comes off the table completely. You need to file your Petition correctly, and there can be tricky elements, but for the most part it is fairly simple.

Finally, if you have children, you need to file the Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). This form sounds scarier than it is, as it’s simply where your child has lived for the last five years.

Of course, if you are asking for any orders, such as a custody or visitation order, child or spousal support, or anything else, you have to file other forms. But merely filing your case involves just these three forms: Summons, Petition, and UCCJEA.

California divorce terminology

I am often asked about the terms I use. Here’s a couple:

The term “Family Law” encompasses all kinds of cases, such as divorce, child custody and support, paternity cases, adoptions, domestic partnerships, guardianships, child support cases with the Department of Child Support Services, and modifications to existing orders.

The term “dissolution” is a fancy way of saying divorce. At some point, California decided that the word “divorce” was insufficient and that, for a divorce case, we would call it a “dissolution of marriage.”

“Spousal support” is also called alimony or “separate maintenance.”  While other states do, California does not distinguish between alimony and spousal support.  In California divorce, the term spousal support is the correct one.

Forms in California divorce: Navigating document overwhelm

Forms, forms, forms. The life of a family law litigant is filled with forms. The first thing you will file is your Summons and Petition, then every time you want something, you will have to file another form (or two or three). Completing your case involves even more forms.

The bad news? The forms are complicated, confusing, and far from user-friendly. One example is just the title. The title of the form, the name of it, is located at the bottom of it, which is probably the last place you’d look for a title.

More bad news? You MUST fill out your forms properly to (1) convey what you want, (2) get what you want, (3) have your documents accepted by the court (and not kicked back unfiled), and (4) complete your case properly.

The worst bad news? Filling out a form can be devastating to your case. For example, if you fail to make the box for “spousal support” on the Petition for divorce when you first file, then you can never ask for it. Ever. (OK so there are ways to amend your Petition, but this is not easy or common, and is far from guaranteed). So if you file and do not ask for spousal support, then your ex, three years later when you’re still fighting, wins the lottery just as you lose your job, you’re out of luck.

Redeeming news? There’s help out there, all over the place. You can even fill out the forms online here: CA Judicial Council Forms. Just be careful.

Being thankful for your divorce. Wait, what?

As we approach the Thanksgiving holiday, is divorce something that we can be thankful for? Perhaps it’s most difficult in the beginning, but we CAN get to that point.  Are there reasons you can think of to be thankful for your divorce?  Here are some reasons to be thankful for divorce.

Hiring a Lawyer or Coach in California divorce

Some people find it to be very scary to meet with a lawyer. A couple times, I met with potential clients who burst into tears when they came to my office. Some shook with nerves. The person you are meeting with should understand that the meeting itself is a little nerve-wracking, and do all they can to put you at ease.

If you’re meeting with one, hopefully any and all of your anxiety will disappear in the first few seconds of meeting with him/her. If not, then perhaps the person is not the one for you. Attorneys are people too (judges as well, but we’ll get to that later), and you won’t get along with or connect with every one. Some will have personalities or traits or mannerisms or ways of handling their cases that you just don’t like. That’s ok. Your case is YOURS, and you MUST feel comfortable with your representation. Each client is looking for something different. Some want an attorney who is more aggressive and some want one who is more compassionate. Some want – and need – more constant or regular contact, and some are more hands-off. Some want comprehensive control over their case, and some want to leave a lot up to the attorney.

There’s no right or wrong answer to these considerations, but you have to recognize that you do not have to go with the first attorney you meet. There are all kinds of options for you, from doing it yourself using books like those from Nolo Press (www.nolo.com), using your county’s resources (like classes or a family court facilitator, or a local “lawyers in the library” service), working with an attorney or coach on an as-needed basis, or hiring a lawyer. And if you decide to hire an attorney, it’s a good idea to shop around a little bit. At least talk to more than one so you can recognize differences in style.

The more you know, the better off you will be during your case.

Preliminary Considerations in California Divorce

There are a lot of things that an attorney or coach can help you with in your divorce, custody, paternity or support case. One thing, however, that they cannot assist you with is making the decision. YOU have to decide if you want to take the step to file your case.

What we can help you out with is by giving you information about what can and will happen if you DO file. We can tell you about how the process will go, potential pitfalls, and possible outcomes. We can talk to you about procedures, strategy, and pros and cons. If you have proper information specific to your situation, then you can make an INFORMED decision.

Sometimes the worst thing you can do is to dive into something you know nothing about. I would strongly encourage someone even thinking about a family law case to consult with an attorney. It does not cost more than a few hundred dollars, and will be worth every penny if it allows you to move forward with eyes open. Be sure you bring a list of questions, and make sure you include overall, or total, cost as one of your questions. Hiring an attorney can cost $10,000 to start, and many tens (if not hundreds) of thousands to complete. Your finances and what you spend on assistance in your case (and how!) can be a huge consideration that is often overlooked at the outset of a case.

In a court case, any court case, knowledge is power. There’s a lot of information out there, so learn how to find accurate and helpful information and use it.