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.

What happens with your child when your unmarried relationship ends? The California paternity case

A court case for a couple who is not married but has children is called a paternity, or UPA case.  UPA stands for the Uniform Parentage Act, which is the law that governs these kinds of cases. Paternity cases are generally 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.

In a paternity case, both responsibilities and privileges of parenting are granted/ordered.  Once it is determined that you are a parent of a child, you are required to support that child financially by working. 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.

The court’s jurisdiction over a child lasts until age 18 for custody and visitation purposes. At age 18, the court can no longer order a child to visit with either parent because that child is now an adult and not subject to the jurisdiction of the court. 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 in a UPA case.

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Dispelling the fairy tale: How kids benefit from parents who don’t “stay together for the kids”

This morning I posted an article from the Huffington Post about celebrities that made the decision to divorce when they knew they were pregnant.  I am of the opinion that children can sense and feel tension and hostility in the family, even if it’s a cool hostility.  And I am not alone: at the family law update classes I attend, research backs me up.  Children from intact happy households fare the best, but those in intact unhappy households fare worse than those in homes with divorced parents.  But I still often hear from clients and friends that they want to stay together until the children are in college, or at least until they are “old enough to handle it.”

But what is this teaching out children?  We are teaching them to put others before our own happiness, and indeed, that our own happiness does not matter.  In addition, we are over-emphasizing the importance of marriage and the “fairy tale” of a lasting relationship.  As was so eloquently put by another author on the Huffington Post, we teach our children, by staying together past our relationship’s due date, that being married and unhappy is more valuable than being alone and happy.

Is that really the message we want to send?

Estate planning for same sex couples in California

California has made some strides toward equality for same sex couples, but it cannot be said that there isn’t still a long way to go.  As unfair as it is, same sex couple have to do more: prepare more documents, plan for more contingencies/eventualities, update more frequently – than their heterosexual counterparts.  The worst thing that a same sex couple can do is bury their heads in the sand, hoping or assuming it’s ok not to put anything in place – that somehow, some way, it’ll all be taken care of should something go wrong.

Uh, no.

Even in the best of circumstances, what you effectively do when you don’t plan is place an enormous burden on your loved ones; the ones who have loved you and cared about you the most, and the ones you have loved and cared about the most, are going to be put in a horrific situation should something happen to you and you haven’t planned for it.  And this horrific situation, not only does it come at a time of grief for your loved ones, but it is entirely avoidable.

Some tips to get you started:

  1. With no estate plan (will, trust), you die intestate (i.e. the government decides your estate plan) and the government’s plan discriminates against same sex couples.
  2. Without powers of attorney in place, the parents who threw you out of the house when you came out could be making medical and financial decisions for you if you’re incapacitated.
  3. Being a Registered Domestic Partner in California, or married, does not change these points in their entirety.
  4. Holding your property in joint tenancy with your property will not avoid the problems here, plus they could work to DIS-inherit your children and/or cause additional problems down the line.
  5. Not choosing a guardian for your child(ren) could mean they end up in foster care should something happen to you.
  6. Without a living trust, probate fees could take up to 10% of your gross estate (your estate not taking debt into account) and take 2-3 years – if not more – to resolve.

The best way to take care of your family when you are a same sex couple is to put an estate plan in place.

Filing your California divorce case: when and who should go first?

A critical issue that comes up in almost EVERY family law case is: when to file and who should file first.

For either a divorce or other family law case, my general feeling is that it is important to file as soon as possible. Every situation is different, and there are situations where it is a better idea to wait, but in general the best option is to file as soon as possible, or as soon as you realize you need to.

It doesn’t matter who files first, and when you file (whether it’s a divorce or paternity action), you will either be the Petitioner or the Respondent. It doesn’t matter at all which you are.

The key reason why it’s important to file as soon as you can are two-fold. First, once the Respondent is served with the paperwork you have filed, the Automatic Temporary Restraining Orders (ATROs) go into effect. They are located on the back of the Summons, and prevent either party from disposing of or acquiring property – separate property or community property -from leaving the State of California with your child (without the permission of the other party), and changing benefits or beneficiaries on accounts or insurance, like life, health, and car insurance and retirement, bank and stock accounts. The second important reason to file as soon as possible is to get the date of separation determined. I’ve already talked about the importance of the date of separation, so I won’t repeat myself. But nailing down that date is beneficial to everyone.

The importance of the Nomination of Guardian: Who cares for your children when you cannot

Say you’ve gone out to dinner with your friends or your spouse or your new beau. The kids are at home with the babysitter, someone you trust but who’s just a teenager. On your way home, the road is wet (as it has been for a while now all over California) and you get into a car accident. When you’re taken to the hospital, unconscious, the police are going to go to your house to check on your children. When there’s nothing in writing saying who should take your children in the event you are incapacitated (I recommend posting this on the refrigerator), then the police will take your children. The Nomination of Guardian can prevent this.

Your Nomination of Guardian states who you want to care for your children if you are not able to. It can be temporary, such as after an accident, or permanent, such as if you pass away. It is critical to have so that you do not have a gap of time in which your children are taken to the police station and sent out to foster homes until the situation resolves itself.

In the case of a divorce or other child custody case, it takes on a new significance because now there are two households involved. BOTH parents should have a custody and visitation agreement readily accessible to them and their child caregivers, and the agreement should be as specific as possible – even if the couple is agreeing and cooperating with each other – to break the “tie” in the event of a dispute. If the agreement/order says, “visitation as the parents agree,” then the police will not enforce that vague order. With a nomination of guardian, if the couple has already chosen one, both parties have to (1) understand that the other parent will be the guardian if something happens to them (unless there are issues of substance abuse, domestic violence, or some other issue that limits custody/parenting time for one parent), and (2) that the person the couple picked when they were a couple might not continue to be appropriate. Because the couple is now separated, there is a significantly lesser chance that they will die together, but that doesn’t mean a nomination of guardian is less important. Each parent needs to decide who THEY think will be the most appropriate person, and create a document memorializing that.

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.