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.

Advertisements

Make sure your California divorce attorney knows estate planning. And your California estate planning attorney? Make sure they know family law, too.

There is a great deal of overlap between estate planning and family law.  So much so that, if you’re seeking a lawyer in either area, you should make sure you have one with experience in the other area of law.

Take your divorce lawyer.  Why would knowledge of estate planning be important?  Well, for starters, your divorce is going to end at some point.  And because divorces often take much longer than we’d like, we are often exhausted after they’re done, and have no desire to do any other kind of planning or work on the whole divorce issue.  But once the divorce is done, this is when the really critical aspects of your financial life and future come into play.  You need to change your beneficiaries on your retirements and life insurance.  You need to change and update your will and estate plan, your powers of attorney, and the guardians for your children.  A divorce lawyer without estate planning experience is not necessarily going to make sure you’re properly advised on these issues.

Conversely, let’s look at your estate planning attorney.  First, in blended families (where one or both spouses have children from a prior relationship), there are specific estate planning issues that overlap with family law.  In addition, it’s important to know whether either of the spouses has separate property.  Separate property is property that either spouse owned prior to the marriage.  If either has separate property, then putting the property into the trust without a separate property agreement transforms the property into community property….and this could make the owner spouse quite upset should the couple eventually decide to divorce.

These are just a few of the small issues that overlap, and there are many more.  So many that it would be detrimental to you and your family – not to mention your financial future – to consult with an attorney who lacks knowledge and experience in one of these areas.

Estate planning guide for new parents in California

Your bundle of joy has arrived, and now you’re trying to figure out the new schedule and when you’ll ever get any sleep again.  Also, in the back of your mind, you know that you should probably “do something” about your will or figure out what will happen should you pass away.  Now there’s another life to worry about!  But time passes, you don’t know what to do or how to do it, or who to ask, so it gets placed on the back burner.  Suddenly Junior is 14 and you’re dealing with the death of your parents.  What are the things you wish you had known when Junior was a baby?

  1. The time to do your estate planning is NOW.  Should both parents be in an accident and hospitalized for a period of time (or, obviously, if you die), Junior could end up in the court system and/or in foster care.  If you do not choose who will care for your child if you cannot, then the court will decide.
  2. Having the court decide who will be the guardian for your child is NOT what you want.  When the court decides, the court does not have the time or ability to distinguish between your crazy Aunt Rose, who you have not seen in years, who lives in a small town in Arkansas (not that there’s anything wrong with Arkansas) and can’t seem to keep a steady job, and your sister and brother-in-law who are close to the entire family and would be the perfect guardians.  If YOU don’t decide who is going to raise your child, a stranger will.
  3. Not being able to decide on who your guardian will be it not a good excuse for delaying your estate plan.  A good estate planner will help you decide.  In addition, while you may not have decided definitively, you have probably narrowed the field among the options.  Remember, the court won’t know who you have ruled out.  I can help you to know what to think about, what to consider in making the decision, how to make the decision, and how and when to change it.

Don’t wait.  Once you have a child, it’s time to put your affairs in order.  You love your family and you love your child: it’s them, not you, who will suffer if you neglect these very important tasks.

Divorce & the sleepover with the new boyfriend/girlfriend: When is it ok if there are children in the house?

The divorce process can take years, literally. In addition, in many cases, the relationship is long over by the time the couple pulls the trigger on the divorce paperwork. In the Bay Area – in California – the waiting period is six months, which means that a couple cannot be divorced earlier than six months after the divorce Petition is filed. But some divorce cases – I had one recently out of San Ramon – can be resolved in a matter of weeks, and the paperwork is just a little slower. Other divorces – like one client I have from Oakland – can go on for years and years.

So, with those varying timetables, in many cases it seems inevitable that one or both parties will move on into other relationships. Also inevitable is what the parent is to do when faced with the dilemma of when to allow the significant other to sleepover or, perhaps more difficult, when to allow the ex’s significant other to sleep over. Here are some tips to consider:

1. Just because it’s too soon for you may not mean it’s too soon for your ex or your child(ren).
2. Making it a big deal makes it a big deal.
3. Try to understand your child’s point of view, and then determine how to react. Children can be very adaptable, so the change from dates to overnights may not make much difference to the child.
4. If you can, get to know the significant other. And don’t interrogate your child to do so. Simple, non-threatening questions about whether your child likes the significant other, and why, what they do together, how much time they spend together, and what they talk about will be sufficient. Don’t make it an agenda about your ex! Make sure you’re asking to determine the relationship the significant other has with your child, because this is the important part.
5. Take into consideration the age of the child, as well as the child’s maturity, always bearing in mind that it is likely to be much more traumatic for you than your child.

It’s inevitable that it will happen sometime, so you might as well make it an easy transition now. Plus, the better you react, the more likely your ex will react well when it comes time for you to have a sleepover.

What happens if you can’t take care of your children: important estate planning for parents

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, you take your eyes off the road for a split second 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 can take your children – because you can be assured that they will not leave your children with a young babysitter. 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.

Don’t wait.

The pain of child support & alimony in California divorce: for both of you

One of the hot button issues in divorce is child and spousal support (alimony). It’s a hot button because it involves money, and money is the leading cause of divorce. Many couples are already tense about money, and when you add in the support issue, things can blow up. The problem is one of simple math:

You have one household surviving on the income of two parties. You take that household and divide it in two when the couple separates, and you have the same amount of money (not enough) now supporting two households instead of one. Ouch.

Regardless of who moves out and who is the spouse paying for child and/or spousal support, it hurts both parties. The one paying can see in his or her paycheck that the amount being brought home is, in some cases, actually smaller than the amount being paid for support. The one being paid just looks at the money coming in and the bills to be paid, and can’t quite see how to resolve the disparity.

Arguments, often heated ones, ensue. The key is to recognize that not only is this going to happen, but to catch it early and address it. It isn’t going to be easy for either of the spouses, and they had better be prepared. Both spouses, in most cases, are working hard to maintain their lives while they go through the difficult time, and a small amount of understanding goes a long way.

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.