DIVORCE & FAMILY Resources
It is possible that you are facing one of the more stressful, challenging times in your life. Cassandra Hearn addresses your situation with the utmost care and knowledge. Furthermore, she works to ease the pressure that arises from family legal proceedings by providing you with the most current information available.
While the resources below should not be deemed a suitable substitute for expert legal advice, they may offer deeper insight into your present situation. Call Cassandra Hearn today.
Usually, custody disputes are based around the demands of the respective parents. The issue of child custody can be a very complicated one. However, it is essential for your the well-being of your children that an agreement is made in a constructive, humane manner. Getting through this process can be important to the welfare of your children.
Meet With An Attorney
Often, working with an experienced family law attorney is an effective means of protecting the best interests of your children. They can help you understand the process and walk you through what you can expect over the next months and years. Custody battles sometimes continually go back and forth until the child becomes an adult. Be prepared for a long process, but an experienced attorney can certainly ease the stress of the dispute and complete all the paperwork and communicate your wishes with the court.
If you have met with an attorney, they will likely ask you for a lot of personal information to help complete the court forms. If you are filing for custody or responding to a custody request, having an attorney fill the forms ensures that they will not be rejected from the court for errors. This will save you money in the long run since when you file, you must pay a filing fee which can be several hundred dollars whether it is rejected or accepted.
This is when you and the other parent sit down and try to work out a visitation and custody plan to determine who has the kids when. The plans may vary based on the children’s ages, personalities or already established routine. It is important that no matter what the plan is, that it be consistent, easy to follow and establishes a routine for the child. This will alleviate stress on both the child and the parents involved.
Here are few terms to consider when creating a plan:
- Physical Custody: means who the children primarily live with. This can be sole or joint. “Sole” meaning the child resides primarily with one parent. “Joint” meaning the child resides with each parent equally.
- Legal Custody: means who has the power to make important life decisions for the child, look at medical records, school records, etc. This can also be sole or joint. “Sole” meaning that only one parent has the right to make these decisions or “Joint” meaning each parent has equal ability to make these decisions. Often notice is needed for big life changes or decisions relating to the child.
If parents cannot agree on a parenting plan for custody or visitation, they will be sent to Family Court Services. A mediator will meet with the parents together, and separately to assess what is in the child’s best interest. The mediator will then make a recommendation to the court for a parenting plan. The meditator’s recommendation is very persuasive in court. The judge often relies heavily on a recommendation when ordering a parenting plan in court.
Whether both parties agree and sign a stipulation (meaning you agree to the terms of the plan) or obtain a mediation recommendation from Family Court Services, once the judge signs the plan and it is filed with the court clerk, then it becomes a court order. This means that if either party violates the plan, it is enforceable by contempt of court. Contempt is a serious offense and can result in both civil and criminal penalties.
This is of course a very basic overview of the custody process and it will vary depending on the facts of each case.
The court will reduce child support if there have been significant change in circumstances. This change can come in 3 different ways. Either the noncustodial (the parent without the child) has had a significant drop in income. The custodial parent has had a significant increase in income, or your time share has changed. If you believe you fall within one of these three situations, you need to do the following:
- Gather up your financial documents. You will need your last 2 months of pay, or if you are now unemployed, let your attorney know when you lost your job.
- Talk to your attorney about the change in circumstances. You can get a good estimate on what the change in your support will be by using the child support calculator. Please note that this is not an exact amount. However, it should serve as a guideline.
- At the court hearing, make sure you are on time and let your attorney know about any new circumstances that might have occurred after filing.
If the court decides there has been a substantial change in your financial situation, they will lower your monthly child support payment.
The amount you pay in child support is dependent primarily on your time share of the child or children and your salary, though other factors are involved. To give you a better idea of how much you could pay, you can use the DCSS child support guideline calculator. This will give you a close estimate of how much you could be assigned in child support.
Visitation is the time-share that parents have with their child. There are many types of visitation that may be agreed upon by the parties or ordered by the court. The law determines visitation and custody based on the “best interest of the child”. Child support and visitation are not dependent on each other. In other words, one cannot simply withhold child visitation based on a missed payment of child support.
- Visitation According to a Schedule — Generally it is best for visitation to be put on a schedule to establish a routine for a child. That way there is less conflict with time with the kids and it can be anticipated and planned. This also helps alleviate stress on most children and parents. This is the most common visitation between parties.
- Reasonable Visitation — This is left open for the parties to establish time with the children between themselves. This works for parents who communicate well with each other and are flexible with their routines or schedules.
- Supervised Visitation — In instances when the court believes that it is in the best interest of the child to be supervised when having contact with a parent. The supervision may be by a chosen family member, friend or a court program that offers supervision during visitation.
- No Visitation — when it is determined that it is in the best interest of the child to not have contact with a parent, no visitation is ordered. This is generally when there is some violence or abuse present and the child would be harmed if a parent was granted time with the child.
How Visitation is Determined
- Mutual Agreement — Two parties can come to an agreement between themselves. It is useful for the parties to discuss many potential issues with co-parenting the children of a marriage or domestic partnership. While some parties can create an agreement and sick to it, it is not enforceable until it becomes a court order.
- Court Order — This is an enforceable agreement between parties that has been signed by a judge and filed with the court. If a party breaks the terms of the agreement, you can bring them to court to force them to act or risk contempt charges.
- Family Court Services — If parties cannot agree, they will be ordered to family court services for meditation. Both parties meet with a mediator and then they create a recommendation to the court to establish custody and visitation. The court takes the mediator’s recommendation very seriously to help create a parenting plan for the parties.
Child Protective Services / Child Welfare Services
If you come home to find a business card on the door from Child Protective Services (CPS), alternately called Child Welfare Services (CWS), we have one key piece of advice: call an attorney.
Frequently, the purpose of a visit from the CWS is to investigate allegations of an unsafe home, child abuse or neglect. According to their website:
“CWS investigates reports of suspected child abuse and neglect and intervenes with families who do not meet the minimum community standards of health and safety as required by law.”
And while CWS has the capacity to be of service to the community, it is also essential that social workers respect your rights. That’s where an attorney comes into play. While it is usually advantageous to cooperate with the CWS, it’s best to do so with a lawyer.
The CWS is banking on you not getting an attorney, as it’s easier for them to gather evidence against you if you choose to waive your constitutional rights. Opening a voluntary case without the advice of an attorney can open you up to a world of problems.
Social workers have limitations just like any other civil servant. They cannot forcibly search your home, drug test you, and you certainly have the right to seek the services of an attorney.
Divorce or Annulment
Both a divorce and an annulment would effectively dissolve your marriage. An annulment, however, would void the marriage contract. Annulment would be proper if your marriage was never valid in the first place. There are several factors that could be used in annulment. According to the California Courts, some of the legal reasons for an annulment are:
- The party filing for the annulment was under 18 years old at the time of the marriage.
- Either party had a prior existing marriage or domestic partnership.
- A spouse was of “unsound mind,” or not mentally competent enough to understand the nature of the marriage.
- Either party got married as a result of fraud, as in the cases of marrying only to get a green card or hiding the inability to have children.
- Either party consented to getting married as a result of force.
- The parties got married while one of them was “physically incapacitated,” i.e. one of the spouses or partners was physically incapable of “consummating” the relationship.
California is a “no fault” divorce state. This means you do not have to prove that one of the parties did anything wrong. With both an annulment and a divorce you would still have to submit financial disclosure documentation. The only difference is how property may be distributed. Any assets gained during the marriage are “community property,” but if you state that your marriage was never valid in the first place, the property may then be classified as separate. It is important to address the legal implications of filing as an annulment with an attorney.
The violation of a restraining order, whether criminal or civil, is considered a criminal offense.
A criminal protective order (CPO) is intended to protect victims of crime from the perpetrators. The defendant in a criminal case is commonly served papers containing a list of things they are prohibited from doing, such as calling the victim, using a third party to contact the victim, being within a certain distance of the victim, and so forth.
There are two types of civil restraining orders: a standard restraining order, and a domestic violence order. A standard restraining order deals with situations where a person has been the target of harassment, stalking, or threats. Under these circumstances, the complaining person does not have to have been in a close relationship with the offender. For example, the parties could be neighbors, co-workers, acquaintances, and so on. If the court finds that the request for protection is not based on a violation of the law, the court can assess filing fees for a civil restraining order of $435.00.
In the case of a domestic violence restraining order, the Superior Court of California requires that the victim have had a close personal relationship with the individual he or she is asking to restrain — this could include parents, spouses, in-laws, exes, and partners. There is no fee for filing a request for protection, and the forms can be obtained on the court’s website online or at these locations.
Once the court issues and serves a protective, criminal or civil, breaching the court order is a crime. Both forms of restraining order carry penalties of up to one year for each violation.
Asking the court for protection is a serious request and should be crafted carefully. The court requires a high burden of proof to sustain a restraining order.
When the issue of custody coincides with a restraining order, there are several questions on how the two will interact. Dealing with custody and restraining orders simultaneously is no easy task. They are very fact-dependent, and will likely vary based on the details of each case. One primary factor is whether the event(s) that caused the restraining order involved the children, or if that person has showed himself or herself to be a violent individual.
Often the court errs on the side of caution and will order only supervised visitation between the restrained person and the child. The supervision can be conducted by a family member, family friend or court approved supervision location. If the restrained individual is deemed to be a danger to children, no visitation will be ordered. The court might order a plan for the restrained person to follow to lead to more visitation time. However each case will be different and it is a complex area of law. To get a better idea on how it might affect you, speak to an Attorney.
Adoption is a legal process that permanently gives parental rights to adoptive parents. Through this process, you effectively accept a child into your home as a permanent family member. This includes raising this child and providing all financial and emotional support for the child.
In the United States, the adoption process is a very highly regulated one. Here is a breakdown of the process as it is in California:
- Contact an adoption agency. If you live in California, you may call the California Adoption and Foster Care Referral Line at 1-800-KlDS-4US for a referral to an agency in your area. Also visit the California Department of Social Services website for more details about the process.
- Attend an orientation. Most agencies, including the state, require your attendance at a meeting or orientation to go over the adoption process, your concerns and wishes and provide you with the necessary information for that agency.
- Fill out an application. You will be required to fill out a lengthy application that will address your background (medical, criminal, employment, marital etc.) and will be reviewed by an agent working for the agency as required by law to determine suitability as a placement for adoption.
- Background check. Be aware that you will undergo an extensive background investigation that will get into your very personal history. This investigation is required by law and necessary for the adoption process. This is to ensure that the child or children to go to a safe and loving home. This process can take several months, remain patient and open with your adoption agent. Quickly provide them with information they need, this could speed up the process significantly.
- Child placement. There may be a home visit where the child is placed in your home for a short period of time to test how you and the child interact. There may be a report written and a study done by an adoption counselor to make a final recommendation as to the child and your suitability. If all checks out then the child will be placed with you permanently.
It is a common misconception that you cannot adopt out of your state of residence. This is not true. The Adoption and Safe Families Act of 1997 and the Safe and Timely Interstate Placement of Foster Children Act of 2006 state that jurisdictional boundaries across state lines cannot be used as an excuse to keep a child out of a permanent home. If you do look for a child out of state, it may be a longer process than in state adoption.
Gay / LGBTQ Adoption
California allows single, couple and second parent petitions for adoptions. The process for adoption for gay individuals or same sex couples is identical to heterosexual couples or straight individuals.
There are many resources available to connect gay and same sex couples who are currently going or have gone through the adoption process. Reach out to Cassandra Hearn today for more advice. (619) 800-0384.