Author: <span>Briana White</span>

Getting a Divorce in California? Your Step-by-Step Guide

October 14, 2024October 7, 2024
by Briana White

One of the hardest parts about getting divorced is actually making the decision. Once you’ve made that emotional commitment, though, you might be left wondering what happens next?

If that sounds like you, then you’re not alone. Divorce can be a daunting process—particularly if it’s your first time. Each step has its own rules, regulations, and timelines, which must be followed correctly if you want the best results.

To help you get started, here’s what you need to know about how to get divorced in California, and what Maples Family Law can do to help you navigate each of these important steps.

How to Get Divorced in California

No two relationships are ever the same; this means that breakups aren’t, either, and your process will vary, according to what type of divorce you choose, as well as your own particular needs.

That being said, most California divorces will require you to take these eight basic steps:

Meet state and county residency requirements.
Establish your grounds.
File the correct paperwork with your county clerk.
Execute proper service on your spouse.
Wait for a response.
Endure California’s mandatory waiting period.
Attend either a settlement hearing or a trial.
Receive your final divorce order.

Here’s a closer look at each phase, and what you can expect from each one.

Step #1: Residency Requirements

You can’t file for divorce in California, unless you live in California. Hence, before you file for divorce, you should double check to make sure you meet the residency requirements.

In California, this means that at least one of you must have been a resident of the state for six months, prior to filing. (On the county level, this requirement is three months).

Exception: Same sex spouses may have this residency requirement waived, if:

Their marriage took place in California; and,
Neither spouse lives in a state that recognizes same sex marriage.

In other words, if a same sex couple wants a divorce—but they live in a state that doesn’t recognize their union—then California courts are willing to grant them a divorce, so long as the marriage originally took place in California.

Step #2: Establish Grounds

The next step is to determine what grounds you want to file under.

In legal speak, divorce grounds are essentially the reason you want to get divorced. They tell the court why you want to dissolve your marriage, and are a required part of your divorce complaint.

Luckily, California has long since done away with the toxicity of fault-based divorces. This means you simply need to choose from one of two, no-fault divorce grounds:

Irreconcilable differences; or,
Permanent legal incapacity.

While both are no-fault options, the second requires proof of expert medical or psychiatric testimony as to the incapacity. Hence, most California couples choose to file under irreconcilable differences, since it’s much simpler.

Step #3: File Paperwork

Once your divorce complaint is finished, you will need to file it (and any subsequent documents) with your county clerk. Part of this step includes paying a filing fee.

While filing fees vary by county, in California, it’s typical for it to cost somewhere between $435-$450. If you’ve hired an attorney, then they’ll likely take care of this for you, using funds from your retainer account.

Mistakes can be a headache, causing unnecessary delays and additional expense, so be sure to review your paperwork carefully, before filing anything.

Step #4: Execute Proper Service

Due process is a legal concept that—among other things—gives someone the right to defend themselves in court. In order to uphold this important principle, you will need to notify your spouse that you’ve filed for divorce.

Keep in mind, however, that a casual text or phone call won’t cut it here. In order to be valid, this notice must be carried out a certain way—a process known as proper service.

Most of the time, this is done by having someone other than yourself hand-deliver copies of your divorce paperwork to your spouse. However, other options are available in situations where that isn’t feasible.

Step # 5: Wait for Response

Once you’ve successfully executed proper service on your spouse, your spouse will have thirty days to file an answer with the court.

An answer is a legal document that addresses the terms laid out in your original divorce complaint, and it typically arrives in one of three ways. For example, your spouse may:

Respond by agreeing to all of your terms.
Respond by disputing the merits of some or all of your claims (and offering subsequent counter arguments, in return).
Not responding at all.

Most California defendants fall under option two; however, if your divorce is uncontested, then it may be category one. The last option (not responding at all) is the least common of all the response methods, and will generally result in a default divorce.

Step: #6: Mandatory Waiting Period

Unfortunately, even if your spouse agrees on everything, you still won’t be able to just up and get a divorce the next day. Indeed, according to California law, couples who file for divorce must undergo a mandatory six-month waiting period, before their split can be finalized.

This unofficial “time out” acts as a cooling off period, and gives couples the opportunity to reconcile (which actually happens more often than you might think). However, just because a judge can’t finalize your divorce, doesn’t mean you have to be idle.

Waiting periods are a good time to try an out of court negotiation process, such as divorce mediation, or collaborative divorce. These alternative dispute resolution methods are less expensive than a full trial, and offer couples a lot more flexibility in determining the terms of their final order.

While it’s sometimes possible to finalize things before six-months are over, most divorces take an average of eight months to a year to fully complete.

Step #7: Settlement Hearing or Trial

After the waiting period, you and your spouse will need to attend either a settlement hearing, or start preparing for trial.

If your out-of-court negotiations were successful, then your agreement (including important issues like alimony, property, and debt) will be codified into what’s known as a settlement agreement.

This document is then presented to the judge for formal approval, which will take place during your settlement hearing. So long as your agreement meets all the mandatory requirements (for example, child support minimums), judges typically have no problem signing it into a final order.

If your negotiations were not successful, however, then you and your spouse should begin preparing for trial—assuming you haven’t done so already. At trial, your judge will hear arguments and review evidence presented by both sides, and make decisions on your behalf.

Trials are (by far) the least appealing way to get a divorce, since they are much more expensive, time consuming, and offer the least amount of control over decision making. Hence, we suggest doing whatever you can to make mediation successful, and avoid it altogether.

Step #8: Receive Your Final Order

A final decree encompasses all the terms of your divorce, and—once signed and authorized by your judge—it means you are officially no longer married.

You will receive this final order at the end of either your settlement hearing or divorce trial (whichever you ended up doing). Once received, you’ll need to file a copy with the county clerk on your way out.

The terms contained in a final order are not optional. Failure to comply with them can result in some serious legal and/or financial consequences, including contempt of court, so it’s best not to test the limits.

If you are having a legitimate problem complying with your order, then it’s best to speak to a family law attorney about your options, since you may be able to modify it.

Do You Have Questions About How to Get Divorced in California?

Nothing is ever quite as daunting as staring down the uncertainty of an oncoming divorce. And while this process is sure to have its ups and downs, the good news is that with an experienced family law attorney, it may not have to be as bad as you’re thinking.

For more questions about how to get divorced in California—including what that might look like in your situation—we want to hear from you. Call the Maples Family Law team at (209) 910-9865 or get in touch online, and let us help you make this important life transition.

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Divorce Litigation in CA

April 12, 2022December 10, 2022
by Briana White

Divorce Litigation in CA

In California, divorce litigation is a type of contested divorce. This process takes place in an official courtroom setting, where both spouses have the opportunity to make arguments and present evidence before a judge (usually through an experienced family law attorney).

Unfortunately, divorce litigation takes a lot longer than other types of divorce. It’s also more expensive, and offers less control over the outcome, meaning it’s not always the best option, for those who have other choices.

To help you get started, here’s what you need to know about divorce litigation in California, how it compares to other types of divorce, and what Maples Family Law can do to help you navigate these important matters.

Contested Divorce and Litigation

Divorce litigation (or, “divorce trial”) is a type of contested divorce, which takes place in a formal courtroom setting—complete with judge, gavel, and surely courtroom bailiff.

In contrast to an uncontested divorce, “contested” divorce simply means that you and your spouse disagree about how to resolve the terms of your split. It doesn’t have to be emotionally toxic, and can still be amicable.

Because of its cons, litigation is usually the last stop on the divorce train; a place couples go only after exhausting all other options. When this happens, litigation is initiated by one party filing a divorce complaint. Couples will then begin preparing for trial through a process that’s known as “discovery.”

At trial, spouses present this discovery evidence before a judge, and make arguments that support their side of the case. Most of the time, these arguments are made through a trusted, family law attorney (though, representation isn’t technically required).

Issues to Settle During Divorce Litigation

Unless you have a valid prenuptial agreement to speed things along, there will be a lot of unresolved issues to sort out, during your divorce trial.

Some of these questions include how you’re going to:

Divide bank accounts;
Assign marital debt;
Handle the family home;
Split retirement and investments;
Resolve child custody;
Pay child support;
Schedule visitation; and,
Allocate spousal support.

During your trial, each of these topics will be carefully discussed, argued, and sometimes even analyzed by outside expert witnesses, until a decision can be reached on each one.

How long all that takes will vary between couples, but it’s not uncommon for divorce litigation to last for months—even years.

After Divorce Litigation

Once each issue is settled, the terms of your divorce will be compiled into a final divorce order (which you will need to file with the clerk).

A divorce order contains a listing of every decision made during your trial. It summarizes your negotiations, and outlines how you’re supposed to handle things like property division, child custody, alimony, moving forward.

In general, spouses have very little say in what goes into a final order. Instead, judges make their own determinations, and you’ll be required to abide by the outcome—whether you like the terms or not.

Divorce Litigation: Pros and Cons

All divorce types have pros and cons, and litigation is no different. Before starting your journey, we suggest getting familiar with this list, to see whether a trial is right for your situation.

Litigation Pros

With so many cons, it’s easy to forget that litigation also has its perks. For instance:

You have no obligation to compromise.
You don’t have to communicate with your spouse.
The law is applied impartially, and without emotion or bias.
Children are better protected from potentially harmful situations.
Judges can subpoena hard-to-reach information out of your spouse.

In short, litigation alleviates you from having to strong-arm your spouse into cooperation. Instead, the California judicial system does that for you.

Litigation Cons

Court trials are often glamorized on T.V. In reality, though, litigation has a lot more cons than pros.

Case in point, during divorce litigation:

Everything takes more time.
You’re at the mercy of an overworked, overbooked, judicial system.
You’ll spend more money than you think.
You’ll have less control over the outcome.
You might not like the judge’s decisions.
The environment is emotionally toxic.
You’ll be more stressed.
Your children will have a harder time coping.
The transition to your family’s new normal will be harder.

In short, litigation is time-consuming, emotionally draining, and comes with a fairly hefty price tag that almost everyone would be better off without. Drawbacks that make litigation one of the least desirable ways to get divorced.

How to Make Litigation Better

Despite the downsides, in some situations, divorce litigation might be your only option. Hence, to help your trial go faster (and run more smoothly), here are three tips you should keep in mind.

1. Come to Court Prepared

Being prepared can go a long way to making your process run like clockwork. This means coming to court ready to participate in the day’s agenda. It means doing your research. Having all your documents together. And never missing a deadline.

Preparation saves valuable time in the courtroom, keeps cost to a minimum, and helps mitigate the chances of unexpected surprises cropping up at a future date.

2. Don’t Dig in Your Heels

Technically, you don’t have to compromise during litigation (after all, that was one of the perks, right?) That being said, just because you don’t have to, doesn’t mean you shouldn’t.

Couples who dig in their heels and argue about every little thing are the ones most likely to end up with years-long divorces. Not only does this back and forth drag down your timeline significantly, it also drives up your bottom line, and creates an incredibly toxic environment that’s hard on everyone—especially young children.

At the end of the day, your judge is going to make decisions, with or without your cooperation. However, engaging in thoughtful compromises can go a long way toward securing a quicker resolution.

3. Avoid Litigation at All Costs

Finally, we hate to be the bearers of bad news and all that, but in all seriousness? The best way to make divorce litigation better is to simply avoid it, altogether.

Contrary to what Hollywood might have you believe, litigation is not the only way to dissolve a marriage—in fact, it’s probably the worst. Because despite its few benefits, no other process is as time-consuming, expensive, or aggravating as a divorce trial.

That’s why, rather than heading straight to the bench, we recommend you try an alternative method of dispute resolution, first.

Two examples of this are mediation and collaborative divorce. Each of these processes takes place out of court, is faster, less expensive, and gives the spouse more control over the outcome. With so many benefits (and very drawbacks), there’s no reason to at least try one of these methods, before heading to trial.

If you’re unsure, an experienced family law attorney can help figure out if one of these methods would work better for your situation.

Are You Preparing for Divorce Litigation in California?

Trials might not be all they’re cracked up to be, but if you’re unable to reach an agreement outside of court, you might not have other options. Luckily, with the right attorney, your day at court doesn’t have to be as stressful as you might be thinking.

For more questions about divorce litigation in California—and what other options you might have—we want to hear from you. Call the Maples Family Law team at (209) 989-4425, or get in touch online, and let us help you through this important life transition.

Inspiration and Hope from Dr. Thomas Maples

Dr. Thomas Maples is a business development consultant for Maples Family Law. His podcast, A Sacred Journey, Inspiration VLOG, and Blog are a free resource open to all who need a little help navigating life difficulties.

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Divorce

What is a Divorce Settlement Agreement?

April 5, 2022December 10, 2022
by Briana White

What is a Divorce Settlement Agreement?

Never, in the history of love, has ever been two relationships that were exactly the same. As a result, no two divorces are identical, either. This is why, when it comes to divorce, you’ll have options.

In California, there are several different types of divorce, and not all require a trial. Indeed, couples who can communicate and compromise need only draft a settlement agreement (and submit it to a judge for approval), in order to get divorced.

A divorce settlement agreement is an agreement couples reach on their own, which encompasses the terms of their split. Because it’s faster, less expensive, and more flexible than litigation, this method is an attractive option for divorcing couples.

Here’s what you need to know about divorce settlement agreements in California, and what the Maples Family Law team can do to help you with yours.

What is a Divorce Settlement Agreement?

A divorce settlement agreement is a legal document that represents the decisions reached by a couple during their out of court divorce negotiations. Its purpose is to document these decisions, and to outline how the couple would like to proceed, moving forward.

Some of the topics outlined in this agreement might include things like:

The division of marital property;
The assignment of debt responsibility;
The terms of child custody and visitation;
The delegation of child support; as well as,
The duration and allocation of alimony.

In addition, settlement agreements provide a way for spouses to change their last name, should they choose to do so.

Because this document is drafted outside of court, it’s much faster and less expensive than a contentious litigation process. In addition, couples have a lot more deference in determining the outcome of their own fate.

How to Get a Settlement Agreement?

In order to get a settlement agreement, you and your spouse must be able to… well… settle the terms of your divorce outside of court. (A.K.A. Without a judge breathing down your neck.)

This can be done via a couple of different options, with most popular being: uncontested divorce, mediation, and collaborative divorce. In some cases, you might even reach a settlement while preparing for divorce litigation (say, if your judge offered you one last chance to settle, before opening your trial).

Once finalized, a divorce settlement agreement must be signed and notarized by both spouses. But—while it might look, act, smell, and think in much the same way—it is not technically not the same thing as a final divorce order.

At least not yet…

Settlement Agreement Transformation

Like a wiggly, green caterpillar, a validly executed settlement agreement contains all the necessary ingredients to become a beautiful butterfly (or, in other words, your final divorce order). However, neither can reach their final destiny without one last, important step.

For a butterfly, that step is a chrysalis. For your settlement agreement, it’s judicial approval.

According to California family law, this approval is critical, and simply having a settlement agreement will not be enough to finalize your divorce. And, without finalization, the terms you so carefully negotiated will not be enforceable.

With judicial approval, however, your itty green caterpillar transforms, changing from settlement agreement into a final divorce order, with fully enforceable terms.

Will a Judge Approve My Agreement?

As a general rule, judges don’t usually have a problem approving an agreement that a couple comes up with on their own. (After all, they’re overworked and swamped, so if spouses agree, who are they to fight it?)

There are, however, a few things that could hold up this approval, and before giving blanket approval to your terms, your judge will likely pause to check for the following:

1. Residency Requirements

No matter what type of divorce you choose, couples who want a California divorce must meet the residency requirements.

At the state level, this means one of you must be a resident for at least six months; in addition, most counties will require at least three. (Although, there are a few limited exceptions.)

2. Best Interest of the Child

California family law requires that all child custody decisions be made according to a child’s best interest. Hence, your judge will be checking to make sure your proposed parenting plan is the one that will best serve your child’s long-term health and happiness.

If something isn’t right, your judge will likely send you back to negotiations with suggestions on how to revise. If you and your spouse cannot agree on the fix, then the judge will simply make the revisions for you.

3. CA Child Support Guidelines

Part of your custody evaluation will include a thorough analysis of your child support arrangements.

In California, certain minimums must be met, in order to receive approval. This is true, even if you and your spouse agree on what the amount should be. An agreement that does not meet these minimums will not be approved.

4. Property Division

California family law states that any division of marital property must be “just and right.” While there’s a little subjectivity involved in determining exactly what that means, we can say for certain that if it looks disproportionately skewed to one side or the other, your judge will not approve the split.

In addition to having to renegotiate the terms, a skewed arrangement could also arouse suspicions of undue influence, undisclosed assets, or even emotional abuse. Hence, it’s better to simply make the division fair the first time.

5. Representation

While attorneys are not required in California, the presence of them is often a good indication that the agreement was fair. Things get a little iffy, however, if neither one was represented, or, if one spouse had an attorney and the other didn’t.

Generally speaking, spouses should not be sharing an attorney during this process. (It creates a conflict of interests.) To ensure both sides are fairly and earnestly represented during divorce, each individual should be represented by their own, independent attorney.

What Happens if I Change My Mind?

Changing your mind before a settlement agreement is signed is perfectly fine; during negotiations, either side can change their mind for any reason, at any time. When this happens, spouses will simply resume discussions with the new information in mind.

If you change your mind after the agreement has been signed, however, that’s a different story.

The whole purpose of a settlement agreement is to document the terms of a negotiation; a way to lock your decisions into place, so no one can go back later and call foul. As a result, once you sign the document, it’s pretty difficult to change.

After signing, you’ll only have a limited amount of time to rescind before there’s nothing your attorney can do. This is done by filing a motion with the court, and showing your judge why changes are necessary.

Once your divorce has been finalized, though, there’s almost nothing you can do. Unless you can show undisclosed property, undue influence, or fraud. In these situations, the court may reopen the case and rescind the agreement. Otherwise, your only option will be to file a motion to modify.

Do You Need a Divorce Settlement Agreement in California?

When you get divorced, there are a lot of things you’ll be required to do. Thankfully, however, going to court isn’t one of them.

If you have more questions about divorce settlement agreements—and whether one might work for your situation—we want to hear from you. Call the Maples Family Law team at (209) 989-4425, or get in touch online, and together, we can figure out which type of divorce that’s right for you.

Inspiration and Hope from Dr. Thomas Maples

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Why Do I Need an Attorney?

March 29, 2022February 25, 2022
by Briana White

The jury results are in, and the verdict is clear: hiring an attorney is the most expensive part about getting divorced. And not just by a little, either—by a lot.

Between retainers, hourly fees, and other expenses, the price of a good divorce attorney isn’t cheap. And with no concrete way to tell exactly how much your divorce will cost (or how long it’ll take), this leaves many potential clients wondering if they’d be better off not hiring an attorney, altogether.

Unfortunately, this would be a mistake. Because while it’s impossible to tell you exactly what your attorney will cost, what we can tell you is that it will almost certainly be worth it.

For those wondering, “Why do I need an attorney?”, here’s what you need to know about representation, why it’s so important, and what Maples Family Law can do to help you with this important decision.

Why Do I Need an Attorney?

The short answer to this is: you don’t.

According to California family law, you do not have to have an attorney in order to get a divorce. You and your spouse are free to duke things out on your own, draft your own settlement agreement, and can even head to trial without backup.

However, like a lot of things in life, just because you can doesn’t mean you should.

Part legal rights advocate, part therapist, and part divorce trail guide, an attorney is a critical part of any successful divorce squad. And heading into this journey without one would be kind of like sending Frodo on to Mt. Doom without the help of trusty Samwise—or worse, Gandalf.

Hence, whether you are engaging in divorce mediation, collaborative divorce, or want to explore the treacherous path of divorce litigation, here are six reasons why you really do need an attorney.

1. Reducer of Stress

First and foremost, attorneys reduce stress.

Just like you don’t have to worry about things like speed limits when your Über driver is at the wheel, an attorney’s job is to take over legal navigation. When you hire one, you no longer have to worry about all the nitty-gritties of your journey (like deadlines and paperwork and filing fees). Instead, your attorney worries about that for you, freeing up your mental bandwidth, so you can focus on more important things.

2. Communication Buffer

Once you have an attorney, your spouse will be obligated to go through them if they want any information. This means you no longer have to feel obligated to answer your spouse’s call, or to engage with them in pointless, circular, emotional discussions.

The only exception to this, is if a judge initiates a temporary order (about, say, property or child custody), which may require you to occasionally coordinate with one another. Baring the bare minimum required by your judge, however, there’s no other reason you ever need to feel obligated to answer a call or text.

3. Divorce Law Rosetta Stone

Let’s be real, here: divorce law is complicated. The jargon is formal, stilted, and filled with enough long, run-on sentences to drive anyone insane.

Luckily, family lawyers have gone a few rounds in the ring with this type of language, and can now read legal jargon as easily as a child’s bedtime story. Which is great, since it means you don’t have to!

An attorney can help you interpret the law, and apply it to your unique situation in a way that actually makes sense. This will, in turn, save you a lot of time, money, and stress, since there will be a lot of formal information to ferry between parties along the way.

4. Divorce GPS

That education will be good for more than just translating the law… it’ll also be helpful when applying it. Because—believe it or not—when it comes to divorce, you have options.

In California, your first choice will be what type of divorce you want; but the decisions won’t end there. Indeed, your journey will be filled with crossroads, and each choice will have a different result. However, it can be hard to feel right about a decision, when you have no idea where each one leads.

This is where experience comes into play. As one who’s seen it all (or, at least, a lot of it), an attorney is like a really great trail guide—or that GPS app you can’t live without. They help you understand how each choice will affect your divorce, and guide you toward the path that will achieve the best results.

5. Top-Notch Paper Pusher

Paperwork is one of the biggest headaches about divorce—and a huge offender of delays and setbacks.

First off, there’s figuring out which divorce paperwork you need. Next there’s filling then out—which lines you don’t want to miss and what supplemental information you’ll need—and that’s not even getting into where you have to file them and how much you’ll have to pay when you do.

Hiring an attorney is a stress-free fast past to paperwork made easy. Sure, you’ll need to provide information and do the actual signing, but that’s about where it stops. Not only will your attorney make sure you’re filling out the right paperwork, they’ll also make sure it gets filed, too.

6. Risk Mitigation

When it comes to divorce, there are a lot of things that can go wrong. Filing the right paperwork is one of them, but there are also discovery deadlines, financial disclosures, service proofs, and, in some cases, even protective orders that you have to worry about.

All of these things need to be handled within a certain timeframe, and according to very specific protocol. And failure to follow these protocols will—at the very least—result in fines and delays. At most, then can result in a default judgment, the relinquishment of parental rights, or a significant loss of property.

These types of mistakes are avoidable, but only if you know what to watch out for. When you don’t, they can often be costly—sometimes impossible—to reverse. Hence, instead of playing Russian roulette with self-representation, it’s better to hire an attorney.

The right representation mitigates risk by steering you around common pitfalls, not only saving you time and money, but safeguarding your rights, as well.

Wrapping it all Up

While almost every divorce could benefit from an attorney, not everyone will need the same type of services.

For example, a couple that’s chosen an uncontested divorce certainly won’t need the same attorney involvement as a divorce trial. Similarly, spouses with a prenuptial agreement will probably be just fine with mediation.

That being said, all of these couples could benefit from attorney involvement. Just how much, however, depends on your unique circumstances.

A good attorney is the one who caters their legal strategy to fit your needs. They are one who respects your time, your wants, and—perhaps especially—your budget, fighting tirelessly for your rights within whatever parameters you set.

Do You Need A Divorce Attorney in California?

If you have more questions about divorce attorneys in California—and how one might be able to help with your situation—we want to hear from you. Start your divorce process out right by calling Maples Family Law at (209) 989-4425, or get in touch online, and let us help your divorce go as smoothly as possible.

family-law

Grandparent Visitation

March 22, 2022February 25, 2022
by Briana White

You love being a grandparent and want to keep being a part of your grandchild’s life, once their parents get divorced.

Unfortunately, in California, grandparents do not have any automatic rights to visitation with their grandchild; however, just because this process isn’t standard procedure, doesn’t mean you can’t ever get visitation.

California courts understand that grandparents can often play a key role in a child’s early and adolescent development, providing a meaningful bond that can enrich both sides of the relationship. Because of this, the courts are willing to grant grandparent visitation, in some situations.

Here’s what you need to know about filing for grandparent visitation in California, and what the Maples Family Law team can do to help you get the arrangement that’s best for your grandchild.

What is Grandparent Visitation?

Visitation is a critical part of child custody, and refers to the allotted time a non-custodial parent gets to spend with their child.

This in-person facetime is critical. It allows parents to cultivate a relationship with their child, and to influence how they’ll be raised—regardless of their relationship status—which is why the courts take it so seriously.

Unfortunately, visitation is a parental right, not a grandparent right. Meaning that—once the child’s parents get divorced—their custodial parent has no obligation to let you be a part of their life, anymore.

Despite this, there are some situations when California courts may grant grandparent visitation, if it’s in the child’s best interest. (Even if the parent disagrees.)

Who Qualifies for Grandparent Visitation?

In California, custody decisions are made according to a child’s best interest. This legal standard makes a child’s long-term health and well-being the driving force behind every decision made. As a result, judges aren’t necessarily interested in what parents want; instead, they’re focused on what’s best for the child.

Enter: grandparent visitation.

Remember that unique, grandparent/child bond we talked about, earlier? The court recognizes that this is a good thing—a relationship that not only benefited the child leading up to this moment, but one that will serve them well in the future, too.

Because of this, there are some situations when the court will grant grandparent visitation, if it’s in the child’s best interest.

When Parents are Still Married

Generally speaking, grandparent visitation is out of the question while parents are married, though—you guessed it—there are a few exceptions.

According to California law, judges are permitted to consider grandparent visitation (while parents are still married), if:

The parents are separated;
The whereabouts of a parent have been unknown for at least a month;
One of the parents joins the grandparent’s request for visitation;
The child doesn’t live with either parent;
The child has been adopted by a stepparent; or,
One of the parents is incarcerated or involuntarily institutionalized.

However, even if the court grants visitation under one of these scenarios, there’s still a catch: once the situation no longer exists, either parent can ask for a termination, and the court will be obligated to do so.

When Parents are Not Married

Far more common are visitation requests when parents are not married. This often occurs in the wake of a divorce, but can be relevant to unmarried parents, as well. In these situations, you initiate the process by filing a grandparent visitation petition with the court.

Things then go forward much like any other child custody process, with judges analyzing facts and making decisions based on what will ultimately be in the child’s best interest. Some of the factors analyzed in this process include:

The child’s health, safety, and will-being;
Any history of domestic abuse;
Any history of alcohol or substance abuse; and,
The relationship that exists between grandparent and child.

That last point is important. For visitation to be in your grandchild’s best interest, there actually must have been a preexisting relationship between you two.

In California, courts will not grant a grandparent visitation request, simply because you want the chance to start a relationship with your grandchild; one that was never there to begin with. Here, the amount of prior contact will be a very important factor in the judge’s decision.

How to File for Grandparent Visitation

Filing a grandparent visitation request is not for the faint of heart. This process does not favor grandparents. In fact, right from the start, the court will assume the position that you’re wrong, and the child’s parents are right. From there, it’ll be your job to prove that assumption is wrong.

And we won’t lie. That’s a high bar to clear.

For those grandparents who are up for the challenge, these steps will tell you what you need to know about filing for grandparent visitation in California.

Step 1: Is There an Open Case?

And by “open case,” we mean any current case that involves your grandchild in any way—be it adoption, probate, CPS intervention, or any otherwise.

If there is, you’ll want to start by filing your petition under that case. This requirement ensures that all relevant decisions about a topic are being made at the same time.

Step 2: Fill Out Paperwork

If there isn’t already a case open, you’ll need to initiate a new case.

To do that, start by collecting the necessary forms (which will include a Request for Order, and a Child Custody and Visitation Application). These documents will ask you to explain the type of visitation you want and why you want it.

Remember: the burden of proof is working against you, here, so you’ll want to provide as much detail as possible. The evidence you provide here sets the foundation for all future arguments, and will play a critical role at your hearing.

Step 3: Make Copies

When you file your paperwork, you don’t get it back. Hence, before you file, be sure to make a copy for your own personal records.

Additional copies will be needed, in order to execute proper service. Depending on how many relevant parties there are, that could mean anywhere from 2-3 extra copies, so make sure you have enough, before filing.

Step 4: File Your Paperwork

Family law cases are heard in county court, so you’ll need to file them at the courthouse for your jurisdiction. This will include a filing fee; however, if you can’t afford to pay it, you can always request a fee waiver.

Step 5: Notification

California law requires you to notify someone when you open a case against them. For grandparent visitation, this will likely mean the child’s parents—both biological, and/or adopted.

Notification must be done through proper service, otherwise it won’t be valid. This is typically carried out by hand-delivering copies of paperwork to everyone who is a party to the case. (Which is why you don’t want to skip step 3!)

Step 6: Settlement and Hearing

Once everything has been copied, filed, and delivered, you will likely be required to attend mediation with the child’s parents, to see if things can be resolved outside of court. If they can’t, your mediator will notify the judge, and you’ll be assigned a hearing.

At the hearing, both sides will present evidence to the judge. After hearing arguments and reviewing paperwork, your judge will decide whether or not to grant grandparent visitation.

Is Grandparent Visitation the Right Answer?

Grandparent visitation is often initiated when a stepparent (or another grandparent) adopts the child. In these situations, it may be in a child’s best interest for the relationship to continue, while allowing parents to retain custody.

However, what happens when this isn’t enough?

When a child is removed from their home because of domestic violence, neglect, or abuse, the court’s first priority is to keep the family together, whenever possible. If this can’t happen, they may want to assign the child a permanent guardian, or even adopted parents.

A trusted grandparent is often the best solution for the child in these situations. Hence, if you’re able (and willing) to care for your grandchild, you may want to consider more than visitation… you may want to consider custody.

If this is something you’re interested in, an experienced, California family law attorney can help you figure out your next steps.

Do You Need Help with Grandparent Visitation in California?

Few things in life are more rewarding than becoming a grandparent, and it’s a relationship we want to help you preserve.

For more questions about grandparent visitation in California—and how that might work in your situation—we want to hear from you. Call Maples Family Law at (209) 989-4425, or get in touch online, and let us help secure the best future for your grandchild.

Child Custody

Visitation Schedules

March 15, 2022February 25, 2022
by Briana White

Between school and work schedules, the modern family has a lot going on. As a result, even when both parents are qualified, it’s not always possible for California courts to split a child’s time fifty/fifty.

When this happens, the court will sometimes choose a primary residence for the child, and award the non-resident parent ample visitation.

Visitation comes in several types and can be either scheduled or not. This important parental right ensures both parents have time to cultivate a meaningful relationship with their child and to influence how they’re raised.

Here’s what you need to know about visitation schedules in California, and what Maples Family Law can do to help you figure out the plan that’s right for your family.

What is Visitation?

Visitation is a critical part of child custody, and refers to the allotted parenting time given to a non-custodial parent. This in-person time is critical to maintaining parental rights, and ensures both parents have access to their child.

When visitation is planned in advance, this is called a visitation schedule. Visitation schedules can be as detailed or flexible as parents can handle; some need everything planned out, while others work better on an as-needed basis.

Visitation—whether scheduled or not—is only really applicable in situations where one parent is assigned sole physical custody. If both parents have their child for an equal (or close to) amount of time, this is called joint custody.

In California, all custody decisions—including visitation—will be determined, according to a child’s best interest.

Figuring Out the Visitation That’s Best for Your Child

The best interest of the child is a legal standard that makes a child’s long-term health and wellbeing the driving force behind every decision made.

When applied to custody and visitation, the court will weigh a number of different individualized facts, and choose the outcome that will serve your child best.

Some of these considerations include:

The child’s age;
The child’s health;
The child’s relationship with each parent;
The child’s ties to school, home, and community;
Each parent’s ability to care for the child; and,
Any history of family violence or substance abuse.

Judges are also free to consider any other tidbits they think might be relevant to this decision—though, we should point that, that a parent’s wishes will never be one of those morsels.

Types of Visitation

Like with everything else in family law, visitation isn’t a one size fits all situation. Families are each unique, and thus, each will need an arrangement tailored to their child’s unique needs.

To accommodate all these varying needs, California family law offers four main types of visitation. These include:

Scheduled Visitation
Reasonable Visitation
Supervised Visitation
No Visitation

Here’s a closer look at each of these, and when you might use one over the other during a custody dispute.

1. Scheduled Visitation

When people think of visitation, scheduled visitation is usually what comes to mind. In this arrangement, a child’s time with each parent is planned out—often in fairly significant detail.

Often, this calendar often will include information about:

The dates and times with each parent;
Drop off times and locations;
Where the child will spend major holidays;
Who gets the child on birthdays;
School schedules, summer holidays, and family vacations; as well as,
Directions for how special events will be handled.

Contrary to popular belief, parents do not have to use the court in order to get a scheduled visitation. Parents are always free to make their own parenting plan, and can tailor it to meet their family’s specific needs. If you can’t, though, then the court will draft one for you.

This is usually done using a standard visitation schedule as a starting point. These standard schedules come in a variety of different formats, such as alternating weeks, every other weekend, and even age appropriate schedules, depending on the child’s needs. (For example, a daytime only schedule for a newborn baby.)

Scheduled visitation is often preferred over other types of visitation, since both parents know what to expect. This helps them to avoid conflict, and provides children with a set routine. However, not all parents like the rigidity of a scheduled arrangement, which is why some choose our next option.

2. Reasonable Visitation

Unlike scheduled visitation, reasonable visitation does not try to plan everything out. Instead, parents agree to allow the other a “reasonable” amount of time with the child, and get to decide—on their own—what, exactly, that means.

Reasonable visitation is essentially an open-ended, “fly by the seat of your pants” arrangement, and offers families a lot of benefits. Like flexibility, and ongoing communication. Because of this, they work particularly well for amicable divorces, unmarried parents, and those with unpredictable work schedules. However, it’s definitely not for everyone.

With no structure in place—or, even a definition of what “reasonable” might be—this type of visitation can easily lead to disagreements, requiring parents to head back to court again, later on down the road.

3. Supervised Visitation

In a supervised visitation arrangement, a parent’s time with their child is chaperoned. This can be done either by a neutral third party (such as a family friend or family member), or, in some cases, may require a paid professional (such a social worker).

Judges usually require supervised visitation, when the health and safety of the child are in question. Sometimes, this is because of domestic violence. Other times, the court might be worried about mental illness, substance abuse, or even, parental abduction. However, supervised visitation doesn’t always mean you’ve done something bad.

Supervised visitation is also used to help parent and child ease into a relationship, if the two haven’t seen each other in a long time.

4. No Visitation

And finally, there’s our least commonly used type of visitation: no visitation.

We say “least commonly used,” here, because parental rights are pretty dang important in California. Hence, in order for the court to completely restrict a parent’s access to their child, the threat of harm has to be fairly significant.

This is usually implemented in cases of known domestic violence, where the threat of physical and/or emotional harm still exists. In California, the court will not put a child in danger just to uphold a parent’s right to access. That being said, keep in mind that you (as a parent) don’t get to make that call.

In California, parents are not allowed to withhold visitation for any reason. Doing so could put your own parental rights at risk, and prompt the court to reevaluate your custody order.

If you believe your child is in danger, then you should call the authorities. Afterwards, talk to your family law attorney about filing a formal case.

Do You Need Help with a Visitation Schedule in California?

As a divorced or unmarried parent, your allotted parenting time is a critical part of establishing and maintaining a relationship with your child. That’s why it’s so important to have the right attorney fighting for your rights during a custody dispute.

If you have more questions about visitation schedules in California, and how one might work in your situation, we want to hear from you. Call the Maples Family Law team at (209) 989-4425, or get in touch online, and let us fight for the arrangement that’s in your child’s best interest.

Child Custody

Where Will My Child Live?

March 8, 2022April 12, 2022
by Briana White

For a parent, nothing is more stressful than staring down the uncertainty of a child custody battle. You’re worried about how they will cope, what they will think, and—perhaps most importantly—where they will live.

The bad news is: we don’t know where your child will live. Parenting time decisions are made on an individual, case by case basis, so it’s impossible to predict the outcome of your dispute.

The good news is: California courts want what’s best for your child; and this means splitting your child’s time as close to equal as possible.

If you’re worried about where your child will live, read on to find out more about how California courts determine child custody, and what Maples Family Law can do to help you navigate these important issues.

Child Custody: Where Will My Child Live?

To answer the question, “Where will my child live?” we first have to look at child custody, as a whole.

In California, child custody isn’t just about where a child will live. It’s also about who has the authority to make decisions on behalf of that child, and the power they have to influence how that child will be raised. This division breaks child custody down into two main groups:

Legal custody
Physical custody.

A parent who has legal custody has the right to make decisions about their child’s health, schooling, medical care, and religious exposure, and to be involved in all major and minor decisions regarding their child. On the other hand, a parent with physical custody has the right to spend time with their child, and to live under the same roof.

When parents get divorced, the court can no longer assume their child-rearing goals are aligned. As a result, these custody powers must be divided.

Exactly where your child lives—and who gets to make that call—will hinge heavily on how the court divides these powers.

Dividing Child Custody: Joint vs. Sole

In dividing child custody, California courts have options. They can either make parents share, or give power to one parent, alone.

Joint custody occurs when parents must share power.
Sole custody occurs when only one parent has authority.

Both legal and physical custody can be either shared, or given to only one parent, alone.

As a general rule, California courts will almost always divide legal custody equally between parents. Joint legal custody gives both parents an equal say in things like health, education, how their child will be raised. Judges won’t award sole legal custody unless it’s absolutely in a child’s best interest (usually in cases of abuse or neglect).

Physical custody, on the other hand, is another matter. Due to busy schedules, distance, and a myriad of other factors, dividing a child’s time equally between parents can be challenging.

That being said, it’s also pretty dang important, because the division of physical custody plays a huge role in where your child will live.

Sole Physical Custody

A parent with sole physical custody is the primary caretaker for their child, and has a lot of discretion in deciding where their child will live. In California, this often goes hand in hand with sole legal custody (though, not always).

A sole custody parent is still bound by the other parent’s visitation order, however, so they can’t relocate out of state without judicial permission. If an out of state move was requested, the court would revisit the custody order, to see if another visitation arrangement would work better.

Joint Physical Custody

Joint custody is favored by California courts. However, even when both parents are qualified, it can still be difficult to split time exactly 50/50.

Luckily, you don’t have to have a perfect split in order to have joint custody. California courts will consider your arrangement “joint,” so long as your child spends a significant amount of time living with both parents.

A parent who has the greater share of time is sometimes called the “custodial parent,” or “primary residence parent.” (In contrast, the parent with less time is the “non-custodial” parent.)

Custodial parents have primary custody over their child, and as such—so long as they stay within certain geographic boundaries—have a lot of sway when determining where their child will live. Like with sole custody, however, they’re still bound by the other parent’s visitation order, and are still required to involve the other parent in all major decisions.

Child Custody Factors

When it comes to making these custody decisions, California courts will analyze a number of different individualized factors, and choose the outcome that will serve your child’s long-term health and happiness the best.

To figure out what outcome that might be, California courts will consider:

The child’s age;
The child’s mental and physical health;
The child’s emotional needs;
The child’s relationship with each parent;
Each parent’s ability to care for their child;
Each parent’s health and finances; as well as,
Any history of domestic violence, abuse, or neglect.

In addition, California judges may consider a child’s preferences, if they are at least fourteen years old. However, this doesn’t mean the child will get their way.

A child is still a minor until they reach eighteen, and teenagers don’t always know what’s in their own best interest. Hence, judges have the authority to overrule these wishes, and pick the arrangement that will ultimately be in the child’s best interest.

Child Custody Modification

California lawmakers are aware that life doesn’t always stay the same. Change happens, and what works now might not in the future, which is why they’ve provided a way for you to modify your custody arrangement.

Both custodial and non-custodial parents are allowed to petition to modify custody. However, for the court to consider this request, there needs to have been a significant change in circumstance.

Situations that often qualify for this consideration include:

A change in career, death in the family, or other illness requiring significant attention.
A parent has put their child in a dangerous environment.
A new relationship puts the child in harm’s way.
A custodial parent is not complying with a visitation order.
A custodial parent has failed to provide their child with proper care (such as, repeatedly missing doctor’s appointments, or arriving late at school).

A custody modification essentially opens both parents up to scrutiny from the court. So it’s important not to make frivolous requests (otherwise, the results could backfire).

Judges will evaluate new evidence, and either approve or deny the change, based on what would be in the child’s best interest.

Child Custody Attorneys in California

Your custody arrangement can’t work, unless it’s unique to you. Which is why it’s so important to have a family law attorney that you know and trust; someone who isn’t afraid to fight for your child’s best interests.

If you have more questions about custody, and where your child will live, we want to hear from you. Call the Maples Family Law team at (209) 989-4425, or get in touch online, and let us help find the arrangement that’s right for your child.

Divorce

Proper Service

March 1, 2022March 29, 2022
by Briana White

Marriage involves a shared legal interest in things like property, debt, and child custody, which is why when you file for divorce, you can’t just cross your fingers and hope your spouse gets the memo about when and where to show up.

Instead, California courts will require you to notify your spouse of your actions through a specific set of steps known as “proper service.” This ensures both sides have ample time to prepare for divorce, and are given the opportunity to be fully involved.

Here’s what you need to know about executing proper service in California, and what our team at Maples Family Law does to help you with this important step.

What is “Proper Service”?

You might have already heard, but in the U.S. legal system, due process is kind of a big deal. This important personal right ensures your interests are properly represented, and that you have a chance to defend yourself in front of a judge, when someone takes legal action against you.

That’s why when you file for divorce, you have to notify your spouse—and not just any old text message will do. Instead, you have to execute this notification properly.

“Proper service” (or “service of process,” as it’s sometimes called), is the formal notification method for telling your spouse that you’ve filed for divorce. This info alert is a required part of filing for divorce in California, and is typically accomplished by hand delivering copies of divorce paperwork to the other party.

Proper service is mandatory. Failure to follow the correct process puts your case at risk of being thrown out, and can cause frustrating delays. Which is why it’s best to make sure it’s done right the first time.

How to Execute Proper Service in California

In California, executing proper service involves delivering copies of divorce paperwork to your spouse. However, in order to be valid, things have to be done “properly,” including:

Proper paperwork
Proper server
Proper process
Proper proof

Here’s a look at each of these, and how to make sure they’re done… well… properly.

1. Proper Documents

First, you’ll need to make sure you’re delivering the right documents. In California, this usually means copies of all your divorce paperwork, such as your:

Petition for Divorce
Summons
Property Declaration
Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act
Child Custody and Visitation (Parenting Time) Application

You’ll also want to throw in a few blank divorce forms, including:

Response—Marriage/Domestic Partnership
Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act

With these documents collected, you can then move on to the next step: choosing your courier.

2. Proper Server

Naturally, proper service can’t be carried out by just anyone—you need the right one.

Luckily, the qualifications aren’t very strict, so you’ll have a lot of options to choose from; however, there’s one very important person who cannot serve papers: you. That’s right. In California, you cannot be the bearer of your own bad news.

Instead, the notification must be carried out by someone who is:

Over eighteen;
Not a party to the case; and,
Is identified by name and address on the return of service form.

Servers in California do not need to be licensed. Hence, you can choose just about any adult friend or family member to deliver paperwork for you. (Just make sure they’re responsible enough to complete and return proof of service.)

3. Proper Process

California has several delivery options to choose from; however, the most common—by far—is hand delivering documents to your spouse.

To do this, your courier simply needs to:

Meet with your spouse at any location;
Identify their purpose (to deliver divorce papers);
Leave paperwork with them; and,
Return proof of service to the clerk.

If a spouse refuses to accept paperwork, servers are permitted to leave documents on the ground in front of the person.

Other methods of executing delivery include:

Mail—must be done via certified mail, and include two blank copies of Notice and Acknowledgement of Receipt.

Substituted Service—occurs when a process server leaves papers at the person’s residence or workplace.

Publication—carried out by printing a notice of the divorce in a major newspaper in the responding spouse’s last known location for four weeks.

Posting—when notice of the divorce is posted at the courthouse.

Generally speaking, hand-delivering divorce papers is the best and most widely used method of delivery. Alternative methods shouldn’t be used unless you have no other option.

4. Proper Proof

Finally, don’t forget to have your server return proof of delivery to the court.

In California, this proof comes in the form of a completed Proof of Service form. This written affidavit tells the court how, where, and when divorce documents were delivered, and must be signed and returned by your server, in order to conclude proper service.

After Proper Service

Your spouse will have thirty days to respond to your divorce paperwork. However, even if they don’t, your hearing will still go forward as planned. (Since, you know, California isn’t going to make you stay married, just because your spouse refuses to engage.)

Instead, your judge will simply enter a default judgment in your favor.

A default divorce grants a petitioner everything they asked for in their original complaint, and essentially operates as though the other party had agreed to everything.

Obviously, this is not a great situation to be in. Hence, if you’ve been properly served with divorce paperwork, it’s best to simply speak to a family law attorney about what your options are, moving forward.

Do You Need Help with Proper Service in California?

Improper service can cause expensive time delays in your divorce process that no one wants; which is why it’s so important to get it right the first time. Luckily, an experienced family law attorney can help you do just that

If you have more questions about how to execute proper service in California, and what that might look like in your situation, we want to hear from you. Call the Maples Family Law team at (209) 989-4425, or get in touch online, and let us worry about the filing logistics so you don’t have to.

Domestic Violence

Someone Filed a Protection Order Against Me… Now What?

February 16, 2022February 18, 2022
by Briana White

A California protective order (sometimes called a “restraining order”) is a legal document that can be used to help protect victims from harassment or abuse from a specific individual.

This order is one of the most helpful ways of protecting victims of domestic violence from future harm. Unfortunately, it can also be misused, and employed as a tool during divorce, in order to gain the upper hand in a custody battle.

If you feel that you’ve been unfairly issued with a protection order, try not to panic. As an accused, you have rights too, and will have the opportunity to present your side of the story to a judge, before the terms become permanent.

To help you prepare for your hearing, here’s what you need to know about protective orders in California, and what the Maples team can do to help you navigate these serious allegations.

What is a Protective Order?

First off, what is a protective order, exactly, and how does it work in California?

A protective order is a legal document that is designed to protect a specific individual (or individuals) from specific types of harm, from a specific individual. These orders are signed by a judge, and can be used to either prevent or require certain behavior from a specific individual. (For example, to prevent a perpetrator from coming within 100 yards of a certain person, or require them to move out of the family home.)

Obviously, this document isn’t exactly body armor—and thus, cannot physically shield a person from future domestic violence. However, what a protective order does do, is attach some fairly hefty legal and financial consequences for any violation.

This then, has the dual effect of both deterring would-be abusers from committing future crimes, and enabling law enforcement to take swift, harsh action in the immediate aftermath, if one does take place.

Not the Same Thing as a Civil Restraining Order

While similar in function and name, we should point out that a protective order is not technically the same thing as a restraining order.

This is confusing, we know (especially since Hollywood is always calling it the wrong thing), however, a criminal protective order and civil restraining order are two different things.

Unlike a protective order—which is used exclusively to protect individuals from harassment and violent crimes—civil restraining orders have a much broader scope. In fact, these orders are often issued to keep spouses from retaliating against each other during divorce, and to maintain the status quo until a case can be settled.

In this context, a restraining order might be used to protect assets, limit account withdrawals, prohibit the sale of the family home, keep a parent from moving their child out of state, address debt, require spousal support, or even enforce a temporary child custody arrangement.

Types of Protective Order in California

In California, there are actually three different types of protective order: emergency, temporary, and permanent. Each of these is a kind of “level,” and will lead directly into the next one, if not taken seriously.

Here’s a closer look.

1. Emergency Protective Order

Judges and law enforcement are the only ones who can request an EPO—victims, themselves, cannot. When issued, these orders become effective, immediately, and are set to last seven days.

Emergency protective orders are typically issued in the immediate aftermath of an altercation; typically when it’s obvious that some kind of physical harm, sexual assault, or abuse has taken place, and that more harm could follow.

This type of order acts like a Band-Aid; it offers swift, immediate protection to potential victims, and gives them a week to file a temporary protective order on their own behalf, if more time is needed.

2. Temporary Protective Order

A temporary protective order is similar to an emergency protective order, in that a judge can issue one, without an accused being present.

However, victims must request this order themselves, and it will only be granted if they can convince a judge that an immediate threat actually exists. Furthermore, the order will only last between twenty and twenty-five days, before it expires.

If an accuser wants the protections to last longer, they must schedule a hearing for a permanent protective order (usually within that twenty to twenty-five day period), and notify the accused via proper service.

3. Permanent Protective Order

A permanent protective order can only be issued after a formal hearing has taken place—a hearing that, by law, an accused has the right to be present at. Notification of this hearing must be issued via proper service.

At this hearing, both sides will have the opportunity to present evidence, and to tell their side of the story. After reviewing all of the information, a judge will decide whether or not to issue a permanent protection order, or to dismiss the request, entirely.

While its name may imply “forever,” permanent orders actually only last five years, and must be renewed at another hearing, if longer protection is needed.

Someone Filed a Protection Order Against Me… Now What?

Allegations of harm and abuse are incredibly serious, and are not taken lightly by California courts. If ignored, a temporary protective order can get serious, fast, quickly morphing into a permanent protection order that can have a lasting impact on your life. Influencing things like child custody, your divorce, and even your permanent criminal record.

Hence, if someone has filed a protection order against you, don’t wait. Act immediately, by following these four steps:

Comply With Your Order. Whether or not you think you’re innocent, you will gain nothing by ignoring a protective order. Remember, compliance is not an indication of guilt, and you will have the opportunity to set the record straight at your hearing.
Hire Representation. Domestic violence allegations are nothing to sneeze about. If you’ve been served with a protective order, you’ll want an experienced attorney fighting for your rights during this process—especially if the person blaming you has already done the same.
Surrender All Firearms. In California, you are not allowed to own or possess guns, firearms, or even ammunition, when there is an active protective order against you. If you already have one, then you’ll need to sell it, store it with a licensed dealer, or turn it over to law enforcement, immediately.
Attend Your Hearing. It’s vitally important that you attend your hearing, and prepare for it with the utmost gravitas. Failure to attend won’t stop the proceedings, if you’ve been properly served. Instead, your judge will simply enter a default judgment against you, in your absence—an outcome that’s far worse than the effort it will take to properly defend yourself.

Do You Need Help Responding to a California Protective Order?

Protective orders are a serious matter, and should not be taken lightly, even if you believe you are innocent. An experienced attorney can help you focus your efforts where you need to, collect the evidence you need, and fight tirelessly for your rights.

If someone has filed a protection order against you—and you have questions about what to do next—we want to hear from you. Call the Maples Family Law team today, at (209) 910-9865, or contact us online, and let us help fight for your rights in these important matters.

family-law

Grandparent’s Rights

February 12, 2022February 12, 2022
by Briana White

Few things in life are more exciting than becoming a grandparent. Despite its benefits, though, this relationship comes with a lot of uncertainty, as well, since grandparents do not have the same rights as a child’s biological (or adopted) parent.

On the bright side, however, just because a grandparent doesn’t have the same rights as a parent, doesn’t mean they don’t have any at all. And, indeed, it may be possible for a grandparent to qualify for visitation and custody, if certain requirements are met.

Here’s what you need to know about grandparent’s rights in California, and what the Maples team can do to help you navigate these important issues.

Grandparent’s Rights: Not the Same Thing as Parental Rights

To begin, what are grandparent’s rights, exactly? And how do they apply to you?

Unfortunately, there isn’t a clear-cut answer to this question (probably because grandparents don’t inherently have them…). However, grandparent’s rights can generally be defined as the power and authority to care for their grandchild, and to influence their life.

Compared to parental rights, though, this authority is extremely limited.

In California, it is parents—not grandparents—who have full legal and physical custody over their child. This includes the right to live with and care for their child, make decisions for them, and to determine how they will be raised. These custodial powers are inherent, and cannot be taken away unless it is in a child’s best interest (usually only in cases of neglect or abuse).

Grandparents, on the other hand, do not have these inherent rights. You

may have raised that child’s parent, but unfortunately, that doesn’t give you the right to be the Ultimate Authority in your grandchild’s life.

That being said, a grandparent might qualify for some limited rights—but only if certain requirements are met. Here’s a closer look at what we mean.

Grandparent’s Rights: When Parents Get Divorced

There are two main branches of child custody: legal and physical. In California, legal custody deals with decision-making power, while physical custody governs a child’s physical time, including visitation schedules, and where they will live. When the court is presented with either a divorce, or a paternity case, these custodial powers must be divided, according to a child’s best interest.

If you are a grandparent in one of these scenarios, we can fairly confidently declare that you will not receive any legal authority (a.k.a. decision making power), so long as both parents are alive and fit. However, it may be possible for you to sue for visitation.

In California, a grandparent may request “reasonable visitation” with their grandchild, if:

There is a pre-existing relationship between grandparent and grandchild; and,
It would be in the child’s best interest to keep that relationship going through visitation.

But what do these requirements mean, exactly? What qualifies as a pre-existing relationship, and how does the court determine whether you are in your grandchild’s best interest?

Pre-existing Relationship and Best Interest of the Child

As with grandparent rights, there is no set definition or timeline requirement for what qualifies as a “pre-existing relationship.” Instead, the court will simply look at whether or not it was enough time to form a meaningful bond, and whether it’s in the child’s best interest to keep that bond going.

Again, much of this is subjective, but when determining a child’s best interest, some of the factors the court might look at will include:

The child’s overall health, safety, and well-being;
Any history of domestic violence or abuse by anyone seeking custody—whether grandparent or parent;
Any drug or alcohol use; as well as,
How often the grandparent was in contact with the child, prior to suing for visitation.

With these questions in mind, the court will then weigh arguments for and against visitation, to determine what will serve the child best. If the child is over fourteen, then the judge will also take their wishes into consideration (though, they aren’t required to do what the child wants).

Divorce is (by far) the most common trigger for grandparents seeking visitation rights, but what if you want visitation when the child’s parents are still married? What then?

Grandparent’s Rights: When Parents Are Still Married

When it comes to custody and visitation, California courts follow the Best Interest of the Child standard. This legal principle puts a child’s interests above everything else, making their health and wellbeing the driving force behind every decision made in that case.

And—according to a longstanding history of California common law—the best interest of a child is to stay with their parents, whenever possible. Unfortunately for grandparents, this means that most of the time, you cannot petition for rights while the parents are still married.

There are, however, a few limited exceptions, and you may still be able to file, if:

The parents are living separately, or are legally separated;
A parent’s whereabouts have been unknown for at least a month;
One of the parents joins the petition for visitation;
The child doesn’t live with either of its parents; or,
A stepparent has adopted the grandchild.

That being said, even if you do qualify under one of these circumstances, your rights can be terminated at the request of either parent, if the qualifying circumstance ever changes.

If this happens, the court will honor parental authority, and terminate your grandparent visitation rights. In order to reinstate them, you’ll need to file another petition with the court.

How to File for Grandparent Visitation in California

If you’re interested in petitioning for grandparent’s rights in California, you’ll need to follow these steps:

Determine whether there’s an open case. If a case involving the child (or their parents) already exists, then you should file your petition under that case. If not, you’ll need to open a new one.
Fill out paperwork. To initiate a new case, you’ll need to file several forms, including a Request for Order, and a Child Custody and Visitation Application. On these forms, you should explain what type of visitation you want, and why in as much detail as possible.
Make copies. Part of initiating this case involves serving each of the child’s parents with copies of your paperwork. Hence, we recommend making at least three copies of everything, before you file.
Submit forms. Once everything is complete and copied, the next step is to file your documents with the county clerk; this will include paying the filing fee. (If you can’t afford to, you should request a fee waiver.)
Execute proper service. Part of filing includes notifying the child’s parents that you’ve initiated a case. This must be done via proper service, or it will not be valid.
Attend your hearing. Once these steps are complete, the last thing left is to attend your hearing. At that time, both sides will have the chance to present evidence, after which the judge will make their decision.

As a general rule, arguing for grandparent visitation is a very high bar to clear. Your judge will be operating under the assumption that the child’s best interest is with its parents; meaning that you’ll essentially be arguing that the parents are not in their child’s best interest.

If this is truly the case, then you might want to ask yourself if grandparent visitation is the right answer, at all, or if, perhaps, some other solution might be better.

Is Grandparent Visitation the Right Answer?

If your grandchild is being neglected or abused, then visitation might not be the right answer, at all. Instead, you might want to sue for guardianship, or even full custody.

Domestic violence is something California courts take very seriously. If you believe your grandchild might be experiencing harm from their parents, then it might be time to talk to a family law attorney about what other (more permanent) options are available.

Do You Have More Questions About Grandparent’s Rights in California?

Becoming a grandparent is one of the most rewarding experiences in life. And while you may not have as much authority over your grandchild as their parent, there are circumstances that could warrant grandparent visitation, guardianship, or even custody.

If you have more questions about grandparent’s rights in California, and what that might look like in your situation, we want to hear from you. Contact the Maples Family Law team today at (209) 910-9865, or schedule a consultation online, and let us help you get the best arrangement for your grandchild.

Author: <span>Briana White</span>

Table of Contents

How to Get Divorced in California

Step #1: Residency Requirements

Step #2: Establish Grounds

Step #3: File Paperwork

Step #4: Execute Proper Service

Step # 5: Wait for Response

Step: #6: Mandatory Waiting Period

Step #7: Settlement Hearing or Trial

Step #8: Receive Your Final Order

Do You Have Questions About How to Get Divorced in California?

Divorce Litigation in CA

Contested Divorce and Litigation

Issues to Settle During Divorce Litigation

After Divorce Litigation

Divorce Litigation: Pros and Cons

Litigation Pros

Litigation Cons

How to Make Litigation Better

1. Come to Court Prepared

2. Don’t Dig in Your Heels

3. Avoid Litigation at All Costs

Are You Preparing for Divorce Litigation in California?

Inspiration and Hope from Dr. Thomas Maples

More from Dr. Thomas C. Maples

What is a Divorce Settlement Agreement?

What is a Divorce Settlement Agreement?

How to Get a Settlement Agreement?

Settlement Agreement Transformation

Will a Judge Approve My Agreement?

1. Residency Requirements

2. Best Interest of the Child

3. CA Child Support Guidelines

4. Property Division

5. Representation

What Happens if I Change My Mind?

Do You Need a Divorce Settlement Agreement in California?

Inspiration and Hope from Dr. Thomas Maples

More from Dr. Thomas C. Maples

Why Do I Need an Attorney?

1. Reducer of Stress

2. Communication Buffer

3. Divorce Law Rosetta Stone

4. Divorce GPS

5. Top-Notch Paper Pusher

6. Risk Mitigation

Wrapping it all Up

Do You Need A Divorce Attorney in California?

What is Grandparent Visitation?

Who Qualifies for Grandparent Visitation?

When Parents are Still Married

When Parents are Not Married

How to File for Grandparent Visitation

Step 1: Is There an Open Case?

Step 2: Fill Out Paperwork

Step 3: Make Copies

Step 4: File Your Paperwork

Step 5: Notification

Step 6: Settlement and Hearing

Is Grandparent Visitation the Right Answer?

Do You Need Help with Grandparent Visitation in California?

What is Visitation?

Figuring Out the Visitation That’s Best for Your Child

Types of Visitation

1. Scheduled Visitation

2. Reasonable Visitation

3. Supervised Visitation

4. No Visitation

Do You Need Help with a Visitation Schedule in California?

Child Custody: Where Will My Child Live?

Dividing Child Custody: Joint vs. Sole

Sole Physical Custody

Joint Physical Custody

Child Custody Factors

Child Custody Modification

Child Custody Attorneys in California

What is “Proper Service”?

How to Execute Proper Service in California

1. Proper Documents