Archive for the ‘Family Law’ Category
by Chris Dietrich
What is a right of first refusal for childcare?
A right of first refusal, also called a right of first option for child care, is a general term for a child custody order provision which provides that if the custodial parent is unable to be with the child during their scheduled time (be it for work, school, or other engagements) that the other parent is given the option to watch the child before non-parties (like babysitters, nannies, or daycare providers) are called in. The idea behind these types of provisions is that it is best for the child’s development to be with parents to the maximum extent possible.
The devil in the details of right of first refusal orders
As stated above, the term “right of first refusal” is a general term describing a type of order. Without specific language regarding the purpose, intention, and limitations of how a right of first refusal should operate, an agreement that the parties “have a right of first refusal” isn’t worth the paper it’s printed on.
- How frequently are situations where a right of first refusal may apply going to come up? If a schedule provides one parent with time which they are consistently unable to exercise it may be necessary to consider revising the general parenting schedule to establish a more stable routine.
- Is work related childcare included in the right of first refusal? A common reason that one may use childcare is so that they can go to work. Some parties expressly exclude work related childcare from the right of first refusal so that the child can have a more consistent routine, while others want to include work related childcare needs in a right of first refusal to maximize the time the child is with a parent. It is important to address this particular need in crafting a right of first refusal.
- What minimum amount of time should the custodial parent be unavailable before a right of first refusal kicks in? Viewed legalistically, a general right of first refusal without specific limitations could require one parent to call the other if they have to have someone watch the child for a quick shopping trip, requiring the parties to spend more time coordinating logistics than the amount of time the custodial parent is going to be away. To avoid such an absurd result the language of a right of first refusal order only comes in to play if the custodial parent has to be away for several hours or more. The minimum amount of time which is appropriate varies on each individual family and their needs.
- What about time with extended family? Even if a parent is unavailable during their parenting time there are a variety of good reasons they may want to have the child spend time with extended family members. Read legalistically, a right of first refusal could be read to bar this time with extended family unless the custodial parent is present. It’s a good idea to discuss this issue and determine what exceptions like this may apply to a right of first refusal.
The right of first refusal is such a common part of California child custody orders that the California Judicial Council added form language to an optional child custody order attachment for the courts and family law litigants to use to create a right of first refusal for childcare. The form language reads as follows:
“Right of first option of child care. In the event either parent requires child care for (specify number) ______ hours or more while the children are in his or her custody, the other parent must be given first opportunity, with as much prior notice as possible, to care for the children before other arrangements are made. Unless specifically agreed or ordered by the court, this order does not include regular child care needed when a parent is working.” – FL 341(D) – Optional Additional Provisions – Physical Custody Attachment
While the judicial council form language is good and will work for many parents, it is important to ensure that the considerations above are addressed so that a right of first refusal is right for you and your unique needs.
Who is a right of first refusal good for?
Whether a right of first refusal makes sense for you depends on many factors. My experience working with a variety of families shows that generally a right of first refusal can be successful in the following situations.
- If the parents have a good communication skills with each other. The implementation of a right of first refusal requires regular civil communication between parents. Of course, good communication skills do not happen by accident and can be learned, giving such an order a greater chance of success, but this order should not used for parents who are constantly arguing.
- If one (or both) parent(s) have variable schedules. If work, school, or other constraints require one or both of the parents to be unavailable for chunks of their parenting time, making it impossible to set an exact workable schedule, a right of first refusal may be the best solution to that problem.
- Parents who work together with flexibility and cooperation. Like many other parenting issues, being flexible and cooperative with the other parent is good for the productivity of the co-parenting relationship and is good for the children involved. Parents who do this well in practice (but who may need a little help establishing general guidelines on how to do so) can often benefit from a right of first refusal.
Who is a right of first refusal not good for?
Experience also shows that there are some for which a right of first refusal would not be a good idea and may even make a difficult situation worse.
- If there is a history of domestic violence between the parties (whether or not a restraining order is in effect) a right of first refusal may cause more harm than good as it requires a high level of communication with the other parent.
- If one parent’s time is limited to supervised visitation a right of first refusal would not be consistent with the child’s best interests.
- If the parents do not communicate well a right of first refusal will likely not operate well in practice.
- If one or both parents are inclined to legalistic behaviors and interpretations of court orders regardless of how that impacts the children, such an order may lead to disputes.
- If the parents do not live close to each other, for practical reasons.
For assistance in determining whether a right of first refusal is workable for you and your needs please contact our office to schedule a consultation with one of our experienced child custody attorneys.
by Chris Dietrich
In the start of a family law case with minor children, the parties often devote much attention to establishing an amount for child support. In almost all cases when parents separate the court will institute an amount of support payable by one part to the other for the parties’ children. This ordered support continues until support is modified by the court or terminated by law. This article addresses those circumstances which give rise to the termination of child support and circumstances which may allow it to continue into adulthood.
Termination of Child Support
As a matter of law there are certain conditions which terminate an obligation to provide support for a child. Generally child support will end when:
- The child dies.
- The child is emancipated.
- The child gets married.
- The child is adopted terminating the parental rights of the supporting parent.
- The child reaches the age of 18 and is no longer a full time high school student.
- The child reaches age 19 (regardless of whether the child is still in high school or not).
Absent certain exceptional circumstances if one of the terminating conditions listed above occurs, child support terminates as an operation of law. After such happens the parent receiving support is obligated to notify the parent paying support and is obligated to refund any support paid after support obligation terminates.
Child Support into adulthood
The court can in certain circumstances, as listed below, order that support for a child continues into adulthood. However, if these circumstances do not exist the court lacks the authority to continue child support.
Support to pay for colleges
While some states have instituted laws that require parents to chip in for their adult child’s college education, California has not done so. The court cannot order a parent to contribute to an adult child’s college expenses over that parent’s objection. However, the parents can agree to pay for a child’s college education, whether informally or as a court order, and if made into a court order the court can enforce that agreement according to its terms. Absent such an agreement, a court order to pay for an adult child’s college education expenses is invalid and is beyond the court’s authority.
Support for adult disabled children
Family code 3910(a) creates an obligation for a parent to support “a child of whatever age who is incapacitated from earning a living and without sufficient means”. The courts have generally imposed a support obligation under this statute when the facts or circumstances indicate that the child has a physical or mental disability which prevents them from being able to work if they chose to do so. In cases where a now adult child has such a disability a careful examination of the facts is needed to determine the child’s vocational interests and their ability to work (whether with or without accommodations). Cases dealing with support for adult children who may be disabled are incredibly complicated and fact specific and should not be undertaken without legal assistance.
If you have any questions regarding child support and its termination please contact our office and set up a time to meet with our attorneys.
by Tom Hogan
Q: Do I need to name a legal guardian for my children?
A: As parents, we would do anything to protect our children. We buy the best and safest car seat, the best strollers, we make sure they attend the best schools and receive the best education possible. But what if something happens to you? Have you done what you need to do to protect your children? Have you made plans to best prepare your children for a future without you? No parent wants to think about not being around to raise their children. I get it. It’s a scary thought. But what is scarier, is NOT thinking about it. If you do not decide proactively what will happen to your children if anything happens to you, a court will decide for you. The problem with that is the court doesn’t know your children. While the judge is obligated to consider the best interests of your child when appointing a legal guardian, the judge won’t know your children like you do.
As a parent, I want to be the one to decide who will raise my children if I cannot. I have worked hard to raise my children a certain way. Naming a legal guardian ensures that your children are raised by the person you want, in the way you want. When you name a legal guardian, you take the control into your own hands. You name the person/couple you trust, love and know would care for your children the way you want your children to be raised. You get to choose the guardian with whom your children have a close relationship, a guardian who has a similar parenting philosophy, similar moral and values, similar religious beliefs and a similar discipline style as you.
I have clients who tell me they know exactly what would happen to their children… “My sister (mother, brother, etc.) would raise my kids.” However, they do not have legal documentation in place to ensure their sister (mother, brother, etc.) would become their children’s legal guardian. The truth is, unless you have legal documentation in place, you don’t know who would raise your children if anything happens to you. That is why, if you have minor children at home, you need to have legal documentation in place naming a legal guardian to raise your children if anything happens to you.
Naming a guardian for your children can also help alleviate unnecessary confusion and conflict that could result if more than one family member petitions the court to become guardian of your children.
This is not an uncommon issue. This is what happened to the Barber Family. The Barbers were a young family from Southern California with three sons. The Barbers took their family on a road trip to Arizona and were involved in a fatal car accident. The parents passed away and all three children survived. They were placed in foster care until a relative came to get them. What happened next could have been avoided if the Barbers had taken the time to name a legal guardian for their children. More than one family member petitioned the court for guardianship of the boys. The family fought for months over what the parents would have wanted for their boys. Accusations were made, nine attorneys were retained and many thousands of dollars were spent fighting in court. In the end, the court made a decision to place the boys with one family member. However, by this time, damage had already been done, relationships were strained and the boys missed out on relationships with their extended family.
While the court did make a decision, we still don’t know what the parents would have wanted because they did not name guardians for their boys. What I can imagine is that the Barbers did not want their familial relationships torn apart fighting over who would be named legal guardian for their boys. This is one of the biggest personal risks we face when we do not take the time to name legal guardians for our children.
If you have minor children at home, it is imperative you take the time to legally document who you would want to be the guardian of your minor children if anything happens to you. If you cannot decide who you would choose, we can walk you through a series of steps that will help you reach the best decision for you and your children. It is not easy to make these decisions and they should not be made on your own. It is important to have good legal guidance. Contact an attorney in our office to help guide you through the process, answer all of your questions, help you consider all of your options and to help avoid harm in the future.
by Chris Dietrich
Parties who are filing or responding to a petition for dissolution of marriage will quickly come across a section for them to state their “date of separation” on the court’s pleading forms. The question for almost all parties then immediately becomes, when did we separate? And why does the court need to know? Why does this matter?
Why does date of separation matter?
The date of separation is important in California divorces for two main reasons:
- Property Division: California law provides that generally property which is acquired by either spouse after the date of separation is the separate property of that spouse, which is 100% theirs. This can include salaries, real property, personal property, accumulation of retirement benefits, as well as other property items. While there are major complications which can arise in determining whether an item was received fully from a party’s separate property, in general the date of separation can have a significant impact on how the parties’ property is divided.
- Spousal Support: One of the biggest factors that the court considers in setting the duration and amount of spousal support is the length of the parties’ marriage. Generally, the longer the parties are married the longer the spousal support will last (and potentially the higher it will be). So, a choice between two different dates of separation can have a major impact on the support rights and obligations of the parties.
How does the court determine our date of separation?
Determining the exact dates that parties did in fact separate is a question that has perplexed the courts throughout the years and has led to inconsistent decisions. For some parties there is no dispute and the separation is clear. For example, if a husband and wife decide to live in separate residences on January 1st and the husband moves out that same day to his own apartment with the wife staying the marital home, January 1st is their separation date. For other couples with multiple move-ins and move-outs, ongoing financial ties, and other ongoing joint activities the question of a date of separation can be even more complicated. A third common category of couples may live under the same roof but separate their finances, schedules, and activities and live together as “roommates”. What is the court looking for in deciding when the parties separated? Is it about parties emotional connection? Physical intimacy? Their living situation?
In 2015 the California Supreme Court weighed in on the issue of the parties’ date of separation for the first time. In the case In Re Marriage of Davis the Supreme Court established that for parties to be separated they must be living in separate residences. In essence, parties are not separated until they no longer live under the same roof. However, the court also recognized the reality that parties may live in the same household and still be separated in certain exceptional circumstances, but did not elaborate on what those circumstances could be. This caveat, buried in a footnote in the court’s opinion, leaves the door open for this rule to change in the future. As it stands now though, parties must first and foremost be living in separate residences to establish their separation.
Other older cases make clear that parties can still be married (unseparated) even though they do not live in the same residence. In essence it is not enough for the parties to live in different residences; the parties’ conduct and the circumstances of their marriage may refute a finding that they are separated. The best example of this comes from the case Marriage of Baragry, where the husband lived with his girlfriend/employee in his own apartment, but often went home to his wife and children to enjoy her home cooked meals, have her do his laundry, and otherwise maintained ongoing ties with his wife while living with his girlfriend. The court refused to allow the husband to claim that they separated when he first moved out in light of the benefits husband continued to receive due to his ongoing relationship with his wife, even though he didn’t actually “live” there. Essentially, the court will not allow parties to have it both ways.
The cases on date of separation are complicated and at times contradictory. As discussed above, this issue can be critical and can have a substantial impact on the rights of the parties. If you have questions about the date of separation in your case and the best approach to take, it is important that you contact one of our attorneys to guide you through this process.
What to do when the house is in the other spouse’s name. Use of a “Notice of Pendency of Action” in California Divorce Cases.
by Chris Dietrich
For many divorcing couples, what will happen with a house after the divorce is a critical concern for both spouses. These concerns only increase when title to the house is only in one of the spouse’s name. For the spouse who is not on the deed, it is important to take steps to protect their interest in the house to prevent the other spouse from borrowing against, selling, or losing the house to foreclosure prior to a final Judgment.
One of the best tools a spouse can use to protect their interests in a house that titled in the other spouses’ name is to file and record a “Notice of Pendency of Action” against the house. This document becomes a public record, which when properly drafted and recorded gives notice to the other spouse, and anyone else that there are pending court proceedings regarding this house. With this notice, the other spouse will not be able to effectively sell the house to a third party. This notice will come up on any title search and will be flagged to the attention of any buyer of a house or any bank who might lend funds to purchase the house. It also provides a mechanism for you to be notified about important occurrences with the house, such as default and foreclosure, allowing you to step in and take other actions to protect your interests. Also, this Notice of Pendency of Action may work to prevent a party from borrowing against the equity in their house during the divorce, either through a home equity line of credit or a Family Law Attorney’s Real Property Lien.
The Notice of Pendency of Action is a tool which can be used in conjunction with the Standard Family Law Restraining Orders to prevent one spouse from taking actions to unilaterally undermine the other spouse’s interest in a property item away during a pending family law proceeding. Use of the notice of pendency of action gives additional “teeth” to the Standard Family Law Restraining Orders and allows for additional remedies which you may not have been able to use otherwise.
The Notice of Pendency of Action is a valuable tool and should be used carefully and properly. This document puts a “cloud” on title and once the family law proceeding is finished needs to be removed to avoid future hardship for both parties. Further, there are circumstances when the court can remove the Notice of Pendency of Action from the house.
A final related note, it is important to remember that in California community property law that whose name is on a house is not the final determinative issue in deciding who gets the asset and whether the other spouse has to be “bought out” from the house. Rather, there are multiple ways in which the spouse not on title can claim an interest, including seeking a determination that the asset is community property in spite of its title, seeking a percentage of the house under a Moore/Marsden theory, or requesting reimbursement for expenses paid towards another spouse’s separate property home. Therefore, it is important to consult with an experienced family law attorney to discuss the use of this tool and what interest, if any, you may have in a house in the other spouse’s name.
by Chris Dietrich
One of the most pressing concerns for any parent going through a divorce, legal separation, or break up is what will happen with the children. Even in the most amicable of breakups numerous new challenges arise, including changes in housing, finances, scheduling, work, and many other areas of life, all of which must be considered and addressed to create a parenting plan in the children’s best interest. In more contentious breakups there may be additional serious issues present such as neglect, abuse, addiction, as well as other serious concerns.
California Family Code §3170 requires that in any contested custody case that the parties first participate in mediation to attempt to resolve custody disputes with an agreement before the issues are tried in front of a judge. This requirement is imposed under the belief that an agreement which the parties come up with themselves for their children is usually better and will be more successful in the long term than one imposed by the courts. To assist the parties in working through these various difficult issues the mediation is conducted with the assistance of highly trained therapists who are familiar with the common issues that need to be addressed in custody disputes.
In some counties, commonly referred to as “recommending” counties the mediator has an additional role when the parties are unable to reach an agreement. In these counties the mediator will present a written recommendation to the court regarding a parenting plan for the minor children. In these counties the mediation process has increased significance as the mediator’s recommendations are often adopted in whole or in large part by the court. Many local counties, including Sacramento, Placer, Yolo, San Joaquin, and Stanislaus counties are recommending counties. In other counties, the mediation process is entirely confidential and the mediator does not make recommendations to the judge if the parties are unable to reach an agreement.
All courts in California have an office called Family Court Services to provide mediation services to the parties in contested custody cases. Most custody mediation is handled through these court offices that provide their mediation services at no cost to the parties. As an alternative parties may request (either with an agreement or without) that the parties be referred to private Child Custody Recommending Counseling (CCRC) to assist parties in resolving contested custody issues and if needed, to investigate and prepare a recommendation to the court regarding custody. This counseling is done by an experienced therapist within special training dealing with contested custody issues. The expense of the private CCRC is paid by the parties, usually with the party who requested it advancing or paying 100% of the cost upfront with the court reserving the ability to divide the cost between the parties at a later date. Due to limited resources in the office of Family Court Services, most mediation sessions last between 15 minutes to one hour, whereas when the case is set for private CCRC the parties will spend multiple hours with the counselor who will also invest time outside of these meetings investigating and preparing recommendations. While it is not necessary or affordable for parties in all cases, private CCRC provides a valuable service to resolve difficult custody disputes.
If you are facing decisions regarding custody issues it is important that you contact an experience family law attorney who can advise you regarding your options and strategies to obtain a custody order in your children’s best interests.
by Chris Dietrich
The fundamental purpose of child support in California is to ensure that the needs of children are provided for. Under California law each parent has an obligation to financially support their children (Family Code §4053(b)). Practically, the state has adopted a uniform guideline formula to calculate the amount of support that should be paid keeping in mind each parent’s obligation to support their child. Simply speaking, the guideline formula calculates support based upon each parent’s income and the amount of time each parent has with her child.
To ensure that a child is supported, in the appropriate case the court may count a new spouse’s income in calculating support. However, under the law a new spouses’ income should not be considered except in an extraordinary case (Family Code §4057.5(a)(1)). The family code lists examples of these extraordinary cases, including when a parent “voluntarily or intentionally quits work or reduces income” or when a parent “intentionally remains unemployed or underemployed and relies on a subsequent spouse’s income” (Family Code §4057.5(b)). The law recognizes that in this case it is appropriate to use a new spouse’s income to calculate support so that the entire burden for supporting a child does not fall on the parent who is still working. (Marriage of Paulin (1996) 46 Cal.App.4th 1378, 1384, fn. 5).
It is important that if you are facing these issues that you contact an experienced family law attorney to ensure that child support is set in an amount that is fair and proper.
by Chris Dietrich
On October 4, 2013 Governor Jerry Brown signed into law Senate Bill 274 which enacted new statutory amendments to clarify that a child may have more than two parents in the appropriate circumstance. This means that in certain circumstances more than two parties can have the rights to custody and visitation of a minor child, and that more than two parents may have the obligation to support a child.
The new law provides that a child may be found to have more than two parents if it would be detrimental to the child to recognize only two parents. To determine whether there would be detriment to a child in this circumstance the court is called to consider various factors including whether a proposed third parent has met the physical needs of that child, whether they have met the psychological needs of a child for care and affection, and how long they have assumed that role, among other factors.
In addition to showing that there would be detriment to the child if there are only two parents, one of several existing statutory grounds to establish paternity will have to be proven as to the non-biological parent. Some examples of these methods of establishing paternity are (1) being married to the mother of the child, (2) attempting to marry the mother of the child before or after the child’s birth, (3) or receiving that child into their home and holding it out as their own.
Demonstrating to a court that these facts exist can be complicated and may require expert testimony from child psychologists or other child custody professionals and will often have to be resolved with a trial or evidentiary hearing. It is important if you are facing these complicated issues that you consult with a family law attorney right away to assist you in navigating these very tricky claims.
My spouse had been staying at home with our children, but now they are older. Spouse works occasionally, but could do a full time job even though not physically handicapped. Does the spouse just get to stay home and not work? My income is not really big. Can the court impute minimum wage into the numbers to figure out alimony and child support?
by Tom Hogan
In the State of California, the courts may be able to impute minimum wage earning capacity to a parent, and it is up to that parent to prove why he/she may not be able to earn or get a minimum wage job. For example, if he/she has a disability, or lacks in education or skills, medical condition, etc. The reason for this is that both parents are required to give support to their children, regardless of whether one is acting as the primary caregiver or not. Read the rest of this entry »
Why would my soon-to-be-ex-husband only file and Expense and Income Declaration and no response? Do you need to file a move away order in a true default case?
by Tom Hogan
Expense and Income Declaration is voluntary in default cases. If your case is a true default case, you may include a petition for move away in your petition after 30 days following the day you have served him the petition. Read the rest of this entry »