The New York Times recently published an opinion piece entitled “Beyond Marriage“. The author discusses the reduction in the number of marriages (and possible causes), but cites studies that say: 40% of children are born outside of marriage. The author suggests a number of ways to assist these mothers and their newborn children.
Even if a couple is not married (or even if they are no longer in a romantic relationship), either parent can attempt to establish paternity of the child via a Petition to Establish Parental Relationship. Once the parental relationship is established, the father then has rights to custody and visitation of the child (subject to the the “best interest” of the child) as well as the legal obligation of support. Parents can also sign the Declaration of Paternity to facilitate the paternity process.
If you are a parent of a child born out of wedlock, be sure to talk to an experienced family law attorney to help determine your right and obligations as well as those of the other parent. And perhaps most importantly, the rights of your child.
When divorcing parents (or parents in a parentage action) who share joint legal custody cannot agree on how to raise their child(ren) (whether it be faith, school choice, or sports), one or both parents may ask the court for assistance. California already requires parents to attend court-ordered mediation with Family Court Services. In an opinion piece this Sunday in the New York Times, Dr. Robert E. Emery suggests the legal system should encourage more cooperation between parents, including the honoring of what he calls “parental agreements”.
A “parental agreement,” according to Dr. Emery could include an “enforceable contract… that a parenting coordinator could make decisions for them in the future if they fail to agree.” In California, parents may stipulate to appoint a private child custody recommending mediator (sample Stipulation & Order here and here).
The Recommending Mediator can work closely with both parents to help them reach an agreement on an array of parenting issues. The parents can set the scope of the Recommending Mediator’s work. For example, the Mediator can help with planning extracurricular and religious activities, but could not opine on the custody labels. If the parties cannot reach an agreement, the Recommending Mediator makes a decision. However, that decision can be challenged in the court, and a judge will ultimately be left to decide what is in the “best interest of the children.”
A Recommending Mediator may be helpful in reaching a resolution with the other parent in your case. If you have custody/visitation questions or want to know if a Recommending Mediator is right for your case, be sure to talk to an experienced family law attorney.
The 9th Circuit recently ruled that the “habitual residence” of a child is based on the “shared, settled intent of the parents.” In other words, where did the parents intend for the child to live. The habitual residence is important in Hague international custody cases for a number of reasons including that if a parent wrongfully removes a child from the habitual residence country, the court must order that child be returned to that habitual residence country for adjudication of custody and visitation rights An earlier Supreme Court Hague case is discussed here.
In Murphy v. Sloan, even though the child had spent several years in Ireland, the parties intended the time away to be a trial period. The parties last agreement was that the child’s home country was the U.S. and the time in Ireland was a trial only. While one party (the parent in Ireland) may have changed her mind, the Court looked back to the final “shared settled intent of the parents.”
Acclimatization (“Certain circumstances related to a child’s residence and socialization in another country”) by the child in the new country may overtake deference to the habitual residence. However, the necessary acclimatization to Ireland was not found in Murphy, and the mother’s request to have the children returned to Ireland was denied. (Note: Mother can still attempt to regain custody; however, she must do so in a California and not Irish court.)
International custody disputes may involve California, federal, and international law. Be sure to speak to an experienced family law attorney who is familiar with the Hague convention as well as state and federal law.
US parents who are fighting for the return of their children to the United States received some legal help with the passage of the Sean and David Goldman International Child Abduction Prevention and Return Act of 2014.
The law, signed by President Obama on August 8, 2014, was named for and written in response to a New Jersey’s father custody dispute when his child was wrongfully kept in Brazil. He argued in US and Brazilian courts for many years before his son was returned to the US. According to this article, the bill will “help the State Department put increasing pressure on foreign governments to send home American children who were abducted overseas.”
Congress found that “more than 1,000 outgoing international child abductions are reported every year.” The bill provides the assistance of the United States government to US based parents in international custody disputes by requiring “better reporting and support from the State Department so that left-behind parents are not on their own in overseas battles to win the return of their abducted children.”
Whether your custody dispute is domestic or international, be sure to speak to an experienced family law attorney who can advise you as to your rights as to the proper forum to adjudicate custody and visitation issues.
When a judge makes an order, it is not optional. A party can certainly appeal a decision, but an order is an order – even if the judge orders you (or your attorney) to meet and confer to discuss an issue. Failure to talk to opposing counsel may result in sanctions as it did in this case.
The link provides a summary of the family law litigation (re child support arrears). In addition to the general rule to comply with a court’s order, the story also provides a reminder that many (though admittedly not all) issues can be resolved between the parties (or their attorneys) without court intervention, if the parties are reasonable and wish to avoid unnecessary litigation.
Certain marriages are void at the start; it’s as if they never happened. Incestuous and bigamous marriages are void at the outset. Family Code §§ 2200, 2201.
But just because the marriage “never happened”, it’s still possible that the parties may have acquired the rights of a putative spouse and property acquired during the relationship (what would have been community property if the marriage wasn’t void) can be subject to equal division as quasi-community property.
If you think your marriage is void, be sure to speak to an experienced family law attorney to discuss what rights you (or your putative spouse) may or may not have as it comes to quasi-community property.
You’ve married. And now you want to get divorced. Or maybe legally separated. What’s the difference?
A judgment of dissolution (aka divorce) means the parties are back to being unmarried and can re-marry if they so choose. Fam. Code § 2300. If the parties choose to be “legally separated” they cannot re-marry, but they can later enter a judgment of dissolution if they want. Fam. Code § 2347.
Both a judgment for dissolution or legal separation can address paternity, custody and visitation, child support, spousal support, property division, and attorney’s fees. The main difference is that in the latter, the parties are still married. Some people choose that route for religious reasons or to maintain insurance or other financial benefits.
It’s All Your Fault!
You want to get divorced and share a few choice words about your soon to be ex-spouse. However, the Court only cares about “irreconcilable differences” or “incurable insanity”. Fam. Code § 2310. California is a “no-fault” state which means the reasons behind the break-up are less important than the the fact you are breaking up. However, bad acts are not ignored and will likely implicate the outcome of custody/visitation, support, and property division decisions. (Each area to be discussed in a subsequent post.)
“Irreconcilable differences” is defined at Family Code Section 2311. Those differences can range from people growing apart all the way to adultery. One party need testify that the marriage cannot be made right again.
“Incurable insanity” is defined at Family Code Section 2312. A party needs to show “competent medical or psychiatric testimony” to obtain a dissolution/legal separation on these grounds.
If you want to learn more about the differences between legal separation v. dissolution, be sure to speak to a qualified family law attorney.
California judges are required to abide by the Code of Judicial Ethics. If Florida has a similar code, the criminal law judge shown in this video may have some explaining to do.
A California judge acting like the one in Florida could be removed for cause.
However, the law provides that a family law litigant can also move to have a judge or commissioner removed if the officer “is prejudiced against a party or attorney or the interest of a party or attorney appearing in the action or proceeding.” Code Civ. Proc. § 170.6. That does not mean a party cannot simply ask to remove the judge or commissioner because she doesn’t like or agree with the judge’s ruling. There are time limits as to when a 170.6 Motion can be filed. A party does not then get to pick the next judge to hear your case.
If you have questions about appearing before your family law judge or commissioner, be sure to speak to an experienced family law attorney.
Generally speaking, information you share with your attorney is protected by the attorney-client privilege. Evidence Code § 954. However, an exception applies if the client wants help committing crime or fraud. Evidence Code § 956. In those cases, the information is not protected. The 956 exception does not cover information shared about past crimes or fraud (i.e. a client talking to his criminal defense attorney).
But what if your lawyer doesn’t know everything? Lawyers like to ask other lawyers questions. And some lawyers can (and do) so long as they protect their client’s information. A new website is up and running for lawyers to ask questions – confidentially. Click here for a link on the site.
Ford Family Law APC attorneys take their responsibility to their clients seriously. They protect their client’s information and do not reveal confidential information to unauthorized third parties. A client should feel comfortable sharing private information with their attorneys. We respect our clients and believe that enforcing the attorney-client privilege encourages open communication between attorney and client. This allows us to learn more about you and your case – making us best able to represent you.
At Part 5 of the Petition, the Petitioner can identify his or her separate property. Community property is:
Community property is subject to equal division by the Court. Family Code Section 2550.
If you are unsure about the characterization of certain property, be sure to talk to an experienced family law attorney.