Posts Tagged ‘family law’

Child Support: Termination and continuation beyond age 18

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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:

  1. The child dies.
  2. The child is emancipated.
  3. The child gets married.
  4. The child is adopted terminating the parental rights of the supporting parent.
  5. The child reaches the age of 18 and is no longer a full time high school student.
  6. 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.

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.

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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.

The role of mediation and its alternatives in contested child custody cases

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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.

Can there be more than two parents under California Law?

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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.