Secrets of winning child custody in California divorce or paternity cases

I have many clients that come into my office and say they “want custody” of their children.  What does this mean in a California divorce or paternity case?

In California, there are two kinds of custody: physical and legal.  Physical custody involves where your children live.  If they live with both parents, as in most cases, then custody is shared jointly.  In the case where one parent is not involved at all with the children or has domestic violence or substance abuse issues, then one parent may have sole physical custody.  The norm is shared joint physical custody.  Legal custody involves which parent has the right to make the decisions about your children’s health, education and welfare.  Again, this is generally joint except in the instances mentioned above.

What most clients are talking about when they say they want custody is the parenting plan.  This is the schedule of when your children will be with which parent.  I am often asked what a “normal” schedule is, but the reality is that schedules vary as much people do!  The important part of creating a parenting plan is to keep your children’s needs in the forefront of your mind.  They are adjusting, too, and the transition is difficult on everyone.

Second, be reasonable.  You may despise your ex, but that doesn’t give you the right to cut him or her out of your children’s lives – they remain a parent even though they are no longer your spouse.  A judge will frown on an unreasonable request made for no good reason.

Third, pick your battles.  Remember the adjustment period?  Well, that often translates into dropping grades, acting out, misbehaving, sleep problems, and overall a difficult mood or behavior from your children.  This doesn’t mean it’s all your ex’s fault, and it’s not your fault, either.  It’s just a natural part of the process.  Now, if your spouse is acting inappropriately, such as not properly feeding or dressing/grooming your children before school or harming them, then you should see the judge immediately.  But normal acting out in a divorce is, well, normal.

Finally, remember that it will pass.  At some point the custody fight will end and you will settle into a routine.  I mean, you can fight until your children are 18, but do you really have the time, money and energy to do that to yourself and to your children?  The sooner you can get to that normalcy, the better for everyone.

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Changing child custody and visitation after your California 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.

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.

Need more help?  Click here for our FREE Divorce e-Course.

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! Takedetailednotes 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.

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.

Need more help?  Click here for our FREE Divorce e-Course.

A summer parenting plan: why the summer schedules can be more difficult than the holiday schedule

Aaaaah, summer.  It may seem far away now, but if you need to make a change, the time to start working on it is now.  The California family law court system works very slowly, so plan at least 3 months before you may need court assistance, if not more.  In Alameda County and Contra Costa County, courts are setting hearings out as much as 6-8 weeks.

Summer brings with it thoughts of sunshine, barbeques, vacations and…custody issues if you’re a family law attorney working with divorced parents.   Summer brings with it unique challenges for the separated couple that interrupt the schedule:

1. Vacations: a regular schedule can get way off track once a two-week vacation is scheduled.  Anticipating this in advance is critical to avoid last-minute problems.
2. Summer camps, sports camps, and musical camps: summer camps cause problems because it is often one parent who signs the child up, and invariably the camp is set for the other parent’s time. Again, this needs to be anticipated in advance to avoid problems.
3. Summer school: Like summer camps, summer school invariably messes up both parent’s schedules, and the parent signing the child up often does so without the permission or consultation of the other parent.
4. Child care challenges arising from the modified summer schedule: Summer schedules often vary from the school schedule to give the lower-time parent extra time.  Week-to-week schedules are not uncommon where the school schedule just provides for weekends for the lower-time parent.  This means that both parents have to adjust for the summer, which can be tricky when dealing with younger children (who need child care) and working parents not used to having a child home all the time.

The key here is ensuring that you work with someone who knows and can anticipate these problems ahead of time and provide for them in your parenting plan.  First, this means both of you have thought of the potential problem and talked out how you would deal with it.  Second, it provides for a solution in the event you can’t agree when the dispute arises.

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.

Keeping your sanity in divorce

I have represented hundreds of clients in hundreds of family law issues, both big and small.  I have been through my own divorce.  In most divorces, there comes a time where my client wants to just get back at his or her ex, and there comes a time when my client just wants it all to be over, at any cost.  These are normal ups and downs, and I consider it part of my job to help clients through the transition and make sure they don’t agree to or do anything against their interests in the heat of a transitory emotion.

But there are ways to manage these emotions, and in fact keep your own sanity and power in the divorce process. Here are some tips I have learned:

1. Focus on what YOU can do in the process and stop worrying about your ex, your ex’s lawyer, the judge, and other professionals or friends/family members.  Blaming others for the difficult process is not going to make it move faster, or be less expansive, or easier.
2. Referring to #1 above, the process is always more time-consuming and expensive than you thought it would be.  Accept this, make sure you’re working with an attorney who is on the same page with you (and not working against you in terms of time or cost), and who helps to educate you about the process in reality instead of promising things that are impossible to get, and try to move on the best you can in the context of the process.
3. Examine your own motivations.  The law does not allow you to use it to get revenge or hurt your ex, and ultimately these tactics hurt everyone, prolong the process and cost you more money.
4. Don’t make decisions based on emotion.  If the new request from your ex has you seeing red, take a day or two to calm down before responding. Talk it through with your lawyer and make a reasoned decision about how to respond instead of a knee-jerk reaction that may hurt you in the future, or embarrass you when you’ve cooled down.
5. Keep both your boundaries and your wits about you.  If you get down in the trenches and play dirty with your ex, then you’re just stooping down to their level instead of maintaining your own sanity and dignity. Does s/he try to bait you by pushing your buttons in court, at your child exchanges, or in meetings? Don’t rise to the bait.  Keep your cool and you’ll move on and be happier sooner.
6. Try not to obsess.  Your divorce is a huge part of your life and a big transition.  But it’s not your whole life.  Spend some time on the things that make you happy and help you to get over the trauma of divorce.  See a therapist.  Spend time with friends.  Find hobbies that make you happy.  The more you move on, the more you move on and can get through the process.

What helped you through your divorce?

Child support and the dependency exemption: Who claims the child?

In a divorce with children, the issue of child support arises, generally, very quickly.  I’ve written about child support before, but today wanted to tackle the issue of the dependency exemption.  There are still many couples that have one parent as the primary wage-earner and one parent who is the primary child care provider.  In the event of a divorce, the wage-earner finds him- or herself trying to balance work and child rearing, and the child care provider must face both sharing the joys and obligations of child upbringing as well as heading out into the job market.

In a first divorce hearing in California when the couple has children, the issue of child support is frequently on the table.  In California, child support is calculated using a software program, and the two main factors considered are timeshare spent with the child(ren) (stated as a percentage) as well as each party’s income.  Once child custody and visitation is worked out, at least on a temporary basis, then child support can be calculated.  Often, the higher wage-earner is looking to claim the child for tax purposes because the higher wage-earner will receive a higher benefit from that exemption.

What may be unclear to both parties, however, is the way child support is calculated in California.  The software program takes each party’s gross income (that’s income before taxes) and the program itself calculates your taxes.  Therefore, the program is designed to know which party will receive the highest benefit from the child exemption as well as what the benefit is.  In California, too, it is presumed that the parent with the highest percentage of timeshare with the child will receive the tax exemption.  This presumption can be shifted to the lower-timeshare parent, however not without consequences.  Because the dependency exemption confers a benefit on the party who claims it, generally when the lower-timeshare parent claims the child, this results in a higher dollar amount of child support paid.

Therein lies the rub.  I have had many clients who have insisted that they claim the child for tax purposes, but once the amount of increase in child support becomes clear, their tune changes instantly.  In cases where the lower wage earner makes little to nothing, however, most courts will generally order the dependency shift because the lower earner gets no or almost no benefit from the exemption.

Which would you prefer?  A lower monthly amount of child support or the dependency exemption?  In most cases, it depends on the specifics of the situation, timeshare, and incomes…yet another reason why there are no “easy” divorces.

Gender & divorce in California: Common themes for men

Here is the second part of our series on Gender & Divorce in California.  These are common issues that come up for men in divorce.