Changing child custody and visitation after the divorce is final

So, you got divorced a year ago…or two or five or ten years ago, and you want to make a change to your custody plan. Called a “post-Judgment modification,” it frequently comes up, especially when custody arrangements were made when children were little…and now they’ve grown. Extra-curricular activities, changes in residence or school, and gradual agreed-upon modifications in the custodial plan can cause problems when there’s a disagreement down the road. Or, common too is when the custodial plan just isn’t working.

I frequently get questions about problems with child custody and visitation after a couple has gotten a divorce, or completed their paternity suit and gotten a Judgment. One parent is constantly late or absent, one parent keeps changing the parenting plan, or one parent has a new boyfriend or girlfriend, and the new significant other is causing problems, or there is some problem with the child that one parent thinks is the other parent’s fault.

The answer is that there is a solution to these issues. Once your divorce is completed, or you have a Judgment, any of your orders can be modified upon a showing of a “change in circumstances.” A change in circumstances is some change from the time of your divorce/Judgment that has caused the problem. It could be a work schedule change, a new partner in your ex’s life, a change in residence, a change in the child’s school performance or behavior, or just a change in the situation. Most courts are pretty lenient when it comes to what kind of change is required.

But you do have to file a motion with the court if you can’t get an agreement with your ex about the change. I always recommend starting the easy way, which is sending a letter or email about the change you want, why you want it, and what steps you will take if the ex doesn’t agree. The steps you take may include going back to court, and you have to make that decision before you put it in writing.

If you have been through a divorce, you probably know how tough the court system can be on your wallet, your nerves, and your relationship with your ex, so think hard about whether you want to open up that can of worms. A qualified attorney can help you to assess the pros and cons of each option, and which would be the best for you and your family. If the situation isn’t working, get the advice you need to remedy the situation.

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Divorce co-parenting: tips to reduce the craziness

The most important tip to highlight is a critical concept for ALL divorced and divorcing parents:  Do not use your child as a messenger.  In general, involving your child in your divorce or in your relationship with your ex in any way is severely damaging to the child.  Many courts even say that giving your child a note to give to your ex is a no no.  I mean, really, in today’s world, just send an email!  In addition, email provides you with a record so the other parent can’t say, “I never got it.”

Another issue that comes up is the activities, homework, excursions, practices, and myriad of other things that parents want and need to know about a child’s school.  Whn you have one parent who is “primary,” sometimes that can mean that the other parent gets left out of the loop.  I mean, if you only see your child every other weekend, then it can be tough to keep up on homework and teachers.  Especially since you may be focused on maximizing the time and not focusing on things like homework.

So we try to put in place provisions to ensure that both parents are actively involved with the child’s school.  This can place a burden on the ‘primary’ parent, but it’s a burden that’s in the best interests of the child and well worth the effort.

We used to suggest creating a notebook – just a spiral bound notebook that passed back and forth between the houses – that kept track of homework, permission slips, activities, etc.  I still think it’s a good idea, but perhaps a quick email is better – that way we avoid the child as a messenger.  One way to systemize this is to send a weekly email – it doesn’t have to be long or overly wordy – but it should include any and all information the parent writing it would want to know about the child’s school (homework, notices, upcoming events, school pictures, field trips, expenses) if the shoe were on the other foot.  It can be a simple list.

To avoid drama and arguments, you can exchange your child at school.  First, exchanging at school (after school, for example) instead of at the other parent’s house, can be a great way to avoid conflict between the parents.  This takes away all interaction at the exchange, so there’s no chance for fighting.  Second, there is no inconvenience to one party if someone is late or the schedule changes, since only one parent is involved and the focus is on retrieving the child.  Third, if you have trouble with fights at school activities, then there is a solution:  If you have a child with activities, and you and your ex can’t be in the same football-field-sized area together without causing a scene, here are some suggestions:

  1. If the practice or game is during your custodial time, you can attend.  If not, you need to avoid it.  This is not always possible, so…
  2. Generally activities have practices and games/events.  Either pick days (Mom can attend events – whatever they are – on Wednesdays, and Father on Tuesdays) or you can alternate events (Mom can go to the game on 9/10, but Dad can go on 9/17).  Obviously, this takes some planning, but isn’t it worth it if it (a) keeps your child out of your arguments, and (b) keeps both parents involved in your child’s activities?
  3. Alternate activities.  Many children are involved in a number of activities, and sometimes one parent gravitates toward one, while another parent gravitates toward another.  Mom may be an assistant soccer coach, so she get to attend all those functions, while Dad is keen on photography, so he spends time working on that and attending those shows and events.

The important thing to remember is to keep your child away from the conflict and to be present at their activities.  Sometimes it’s just the way it is, when parents can’t get along, but the parents have to acknowledge this and work to find a way around it that doesn’t hurt their children.  If you keep your eye on what’s important – the health and well-being of your child, then you’ll be able to find a solution to any problem.

 

Unmarried with children? What happens to your child when your 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.

What happens with your child custody 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.

How to change your child custody &visitation schedule after your divorce is final

In a prior post, we talked about how we can change the parenting plan post-divorce or –Judgment.  What we didn’t talk about is when it is imperative that we do so.  All too often I have someone in my office or calling me who needs help immediately – if not yesterday or last week or month.  Don’t wait too long in a potential emergency, or you could end up in a very difficult spot.  Here are some emergencies that require immediate action:

  1. Move away: when one parent is planning on moving to another location, and this move could be just to another school district, if you want to stop it (and you can), you need to act as soon asyou know the move is happening.  If you don’t, then this can be seen as consent to the move away.  Especially when the other parent has made plans for school, a new house, etc., it can be difficult to stop the move unless you act quickly.
  2. Substance abuse:  if you suspect or you know that your ex is abusing substances, such as alcohol, marijuana, cocaine, methamphetamines, or other illegal drugs, then you need to get back into court to protect your children.  Particularly if there has been legal action, such as a DUI or other arrest, you should file a motion as soon as possible to ensure your children are not harmed.
  3. School changes/issues: if your child is having trouble in school or you want to change your child’s school, then you should try to get this before the court as soon as you can.  With the delay in the Bay Area courts – sometimes 6 weeks or more to get into an Alameda County courtroom – you can’t wait until July to make a change in the school situation.
  4. Domestic violence:  If you or your ex is being abused, get back into court as soon as possible to remove your children from the situation before they are harmed.  Domestic violence is a serious issue that should never be ignored.

Of course, this all assumes that the other parent will not cooperate with the change you want.  Start there, and if you cannot accomplish a change on your own, then you may need to go to court.  We can help!  Click on the link to the right to schedule your appointment online.

Tips to parent effectively in divorce

Thinking of divorce?  Just filed?  Mired in the process that seems endless?  Been divorced for years?  Here are some tips to be a better parent during divorce, and these tips are both to help your children and to help your case.

  1. Stop the arguing in front of the children.  There was probably enough of that when you were still together.  Now that you’re separated, cut it out.  It hurts your kids and it makes the judge mad.  Don’t make the judge mad.  Disengage.
  2. Cope how you need to cope, but if drugs or alcohol is your mechanism of choice, keep either far, far away from your children.  There’s nothing – other than domestic violence – that’s going to lose your kids for you faster than drug and alcohol abuse.  Is it a problem?  Acknowledge it and get help immediately.
  3. Move as quickly as you can past the intense emotions when dealing with your ex.  Try to think of your relationship as a business deal, and treat it as such.  This is extremely difficult, but also very valuable and will help you in the long run.
  4. Save the trash talk for a dinner out with friends.  Don’t let your children know how you are feeling about your ex.  This only causes them to be conflicted in theirfeelings for their other parent.  Don’t make them feel guilty for loving their parent, which is how they will feel if you tell them how awful your ex has been to you.
  5. Jump into another relationship if you must, but keep the children away from it for far longer than you want to.  The blush of infatuation – and feeling wanted again – may be something you want to shout from the rooftops, but your children will be confused and perhaps angry by it.  Give it time before introducing a new special someone.
  6. Similar to saving the trash talk, don’t think you “owe it” to your children to let them know why you are divorcing.  They don’t need to know.  What they need to know is that you and your ex love them very much, and that the divorce is *not* their fault.  This may need to be repeated again and again.
  7. Expect that your children will act out during the divorce.  Grades will slip, tantrums will intensify, and some tough love may be in order.  What you must keep in mind is that your children need you, and that the acting out is normal and not some reflection of how poorly your ex parents.  Instead of taking the bad behavior and using it as ammunition against your ex, understand that it’s your children that need love and attention, and perhaps punishment.
  8. Understand that the divorce is really tough on your children, just like it is on you.  They’re going to be confused, angry, depressed, hurt, and disoriented.  Do what you can to keep their lives as normal as possible.  Don’t move if you don’t have to, don’t change their schools or activities.  If you’re the one in a new location, try to make it as normal and comfortable as possible.  Your kids will thank you … later.

Divorce is tough on everyone.  Remember this and you can help to not make it worse than necessary for your children.

Your family law hearing in California divorce: child custody, child visitation, child support, spousal support, attorney fees…

In most family law cases, one or both parties need the court to help them with initial matters, such as child custody, child visitation, child support, spousal support, and attorney fees.  Because the parties cannot agree on how to handle these matters, a motion is filed with the court, asking the court to make orders on these issues.

After you file your motion with the court, you have to serve it on your opponent. Hopefully, you know that already. Once your opponent receives your motion, he or she has time to file a response. By filing your paperwork in advance, you each have the opportunity to review what the other is saying, and prepare your response to it. This is important because you should never be forced to respond to something about which you do not have advance warning. This goes both ways: you can’t spring something on your opponent and get away with it.

When you get to court on your appointed day and time, remember the following:

1. Get there early to allow yourself to get lost (and find it), to get the layout of the place, and to have time to get settled and take a deep breath.
2. Read the signs posted in and around the courtroom, as these will give you a lot of information about what is going to happen and the specific court’s procedures. Determine which notes apply to you and act accordingly.
3. Take a deep breath and try to relax. You may be waiting a long time.
4. You will probably have the check in and let the court know you are present. Often you check in and give your name (and sometimes case number) to the bailiff or the courtroom clerk.
5. Most counties have a rule regarding a “meet and confer” prior to being heard by the judge. This is a requirement that you at least try to talk to your opponent to work out your differences before the judge will hear your dispute. DO NOT avoid this if it is a county rule in your county, as it will anger the judge that you ignored the rule – and do it even if there is no rule. Making the judge mad is a big no-no in my book.
6. When your case is called, announce your name and approach the tables in front of the judge. You’ll get an opportunity to present your side of the argument, and it’s helpful if you have notes responding to what your opponent is going to say. You know what your opponent is going to say because you read his or her paperwork and also talked to him or her immediately prior to the hearing.
7. Don’t make the judge mad. If he or she cautions you because you have done or said something inappropriate, be sure NOT to repeat your error. One thing that makes most judges mad: interrupting. If you have something to say, find the right time to say it rather than interrupting your opponent or the judge.
8. Once the judge has heard enough, she or he will say so and announce the order. THIS IS WHAT YOU CAME FOR! Take detailed notes because you will need to create a written order from the judge’s words.
9. Before you leave, ask the court for the “Minute Order,” which is the court’s informal notes of the results of the hearing. You can use this to prepare the order. Also, find out which party is preparing the order. Whoever brought the motion generally does this.
10. Thank the judge as you leave, whether you won or lost. Judges work hard and deserve your thanks for taking their time to help you. You may not like their decision, but thank them anyway.

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