Tag: <span>Best Interest of the Child</span>

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

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.

More from Dr. Thomas C. Maples

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

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.

Child Custody

Intro to Visitation in California

January 12, 2022January 14, 2022
by Briana White

Between school, play, chores, and extracurricular activities, kids are a busy bunch. Which means that when it comes to divorce, it can sometimes be tricky for California courts to divide a child’s time exactly equally between parents—even when both are evenly qualified.

That’s why, in California, it’s common for judges to assign one parent to be the child’s primary residence parent, while awarding the other ample parenting time in the form of visitation.

Visitation is an essential part of custody, and parental rights. It ensures each parent has access to their child, and that both can continue strengthening that relationship through in-person contact.

Here’s what you need to know about visitation in California, how it relates to child custody, and what the Maples Family team can do to help you navigate these important parental rights.

An Intro to Visitation in California

Visitation refers to the scheduled time that a noncustodial parent gets to spend with their child. It is also a major component of child custody; so much so, that you can’t really talk about one without discussing the other.

But what is child custody, exactly?

In California, “custody” encompasses all the rights, powers, and responsibilities that come with being a parent. Technically, someone could have custody over an incapacitated, ill, or aging adult, too; however, this concept is most commonly associated with children and divorce.

As a matter of law, only a child’s parents—whether biological, or adopted—have an inherent right to custody over their child. However, in some limited circumstances, the court might grant the child’s grandparents visitation.

When deciding custody for divorcing or unmarried parents, California will divide these powers into two major groups: legal custody, and physical custody. Here’s a closer look.

Legal Custody

First, there’s legal custody. This aspect of custody deals with a parent’s decision making and legal authority, and enables a parent to make choices about their child’s:

Schooling and education;
Childcare;
Mental health treatment;
Medical care (including doctors, dentists, and emergency surgery);
Extracurricular activities; and even,
Religious and cultural exposures.

Legal custody packs a lot of important rights under one umbrella. From large-scale decisions, all the way down to signing that field trip permission slip, legal custody puts you at the forefront of how your child will be raised.

Physical Custody

On the other hand, is physical custody. And, like its name implies, this category of rights protects a parent’s right to have physical, in-person time with their child.

In legal speak, this time is called “access,” and it encompasses much more than just the occasional fly by.

Parents have a right to see their child—and not just briefly and sporadically—but long-term and extended. They have the right to live under the same roof as their child, where they can regularly interact, care for, and build the kind of a relationship that only an intimate home environment can really provide.

This is where visitation comes into play.

Because it can be so difficult to divide a child’s time exactly equally between parents, California courts will usually assign one parent to be the child’s primary residence, while awarding the other visitation. But how to decide who gets what?

The court makes these assignments by considering what is in the best interest of the child.

Best Interest of the Child

“Best interest of the child” is a legal standard that is applied for all decisions involving minors, and strives to choose an outcome that will serve a child’s long-term health and happiness the best.

Hence, when deciding who will be a child’s primary custodian, and who will receive visitation, some of the things your judge might consider will include:

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

As you can see, gender does not appear on our list of considerations. That’s because in California, custody decisions are completely gender neutral, meaning that the type of visitation order you receive will depend entirely on your merit as a parent, alone; not your sex (or sexual orientation, for that matter).

Visitation Orders

Visitation orders aren’t a “one-size-fits-all” kind of thing. Instead, these assignments will vary between cases, and are designed to work within your family’s unique circumstances.

To this end, there are four main ways California courts can assign visitation in California. These include:

Scheduled Visitation. In this situation, parents have an order that specifies all the details of their division of time, including dates, times, drop offs, pickups, holidays, and other special occasions. This type of visitation is typically the result of contested divorce litigation.
Reasonable Visitation. Here, a couple’s order is more open ended, leaving the parents to work out specific details, as needed. This type or visitation typically works best for parents who have a good working relationship.
Supervised Visitation. When a child’s safety and/or well-being cannot be trusted to the noncustodial parent, the court might assign supervised visitation. In these scenarios, visits must be chaperoned by either another adult, or professional agency (depending on the circumstances).
No Visitation. Finally, there’s always the option of no visitation. Here, the risks of harm to a child’s physical or mental wellbeing are so great, that the court is not comfortable awarding any type of in person time. In this scenario, the custodial parent would have “sole physical custody.”

In California, parents are always free to come up with their own custody arrangements, either on their own, or through mediation.

However, keep in mind that your parenting plan—including all decisions about custody, visitation, and child support—will still need judicial approval, whether agreed upon or not.

Tips for Reducing Custody Conflicts

Once finalized, your custody agreement will be enforceable, and you will be expected to carry out your obligations, as outlined.

In practice, this isn’t always easy (no one said dealing with your ex would be…) But sharing custody doesn’t have to be as hard as you might be thinking, either.

To help your custody arrangement operate more smoothly, try to use some of these tips when interacting with your ex:

Be polite and respectful.
Be clear and specific.
Stay on topic.
Write down what you discussed, and share a copy with your child’s other parent.
Keep a record of your visitation times, drop offs, and exchanges.
Avoid talking about custody problems while under the influence.
Avoid talking about custody problems while your child is around.
Avoid casual small talk, text messaging, or other non-essential communication.
Make sure you’re both present when discussing important matters with doctors, teachers, and other professionals.
Do not talk badly about your child’s other parent to that child.
Focus on what’s best for your child (not what you want).

If it helps, treat your child’s other parent the same way you’d handle a business colleague. This mentality will ensure that all your encounters stay short, sweet, and professional at all times.

In California, your attitude towards sharing custody can actually influence the division of custody. In some cases, a systematic failure to cooperate with your child’s other parent could actually result in the court awarding primary residence to the child’s other parent. So it’s best to keep things as civil as possible, at all times.

At the end of the day, if there is a legitimate reason why your custody arrangement is no longer working, then it may be time to talk to your attorney about modifying visitation.

Do You Need Help with Visitation in California?

As a parent, you want what’s best for your child, and turning them over to someone you no longer trust can be incredibly difficult. That’s why it’s so important to have a family law attorney you can trust. One who will fight tirelessly for an arrangement that’s in your child’s best interest.

If you have more questions about visitation in California, we want to hear from you. Call Maples Family Law at (209) 989-4425, or get in touch online, and together, we can find the custody order that’s right for your family.

Child Custody

Enforcing a Visitation Order

December 13, 2021December 13, 2021
by Briana White

In California, all custody decisions are made according to a child’s best interest. This includes being able to have a loving, healthy relationship with both of their parents, whenever possible. However, these relationships can’t blossom without quality time.

That’s why when parents don’t live together, the court will often issue a visitation order. These edicts ensure that the rights of both parents are being upheld, and that each has the chance to foster a meaningful relationship with their child.

California courts don’t make these orders lightly, and failure to uphold them can trigger serious legal consequences.

If your child’s other parent isn’t cooperating with your custody arrangements, here’s what you need to know about enforcing a visitation order in California, and how the Maples team can help protect your rights and your child’s best interests.

What is a Visitation Order?

Visitation orders dictate how a child’s time will be spent, including where the child will live, and how they will spend holidays. They are a key part of upholding parental rights—in particular, a parent’s right to have access to their child.

In terms of child custody, this access is often referred to as “physical custody.”

Both parents have the right to physical custody with their child. However, if they aren’t living under the same roof, this time must be shared. To this end, California courts will assign one parent to be the custodial parent (or, primary residence parent), while granting the other ample parenting time in the form of visitation.

Visitation orders are generally just one component of child custody. Along with visitation, your child custody orders will also address legal custody, and outline child support.

How to Enforce a Visitation Order When My Ex Has Primary Custody?

It’s hard being a non-custodial parent. You don’t get enough time with your child as it is, and when your ex stops complying with visitation, this puts you in a tough spot. Because now you have to decide if the stress of enforcing visitation is worth the strain on your already limited time together.

If this situation sounds familiar, start by asking yourself these four questions:

Is my order enforceable?
Does my order need to be updated?
Have we tried making things easier?
Is contempt really worth it?

Here’s a closer look.

1. Enforceability

Visitation orders are kind of like personalized laws made just for you. These edicts are backed by the full weight of the law, and breaking them warrants the same legal consequences as breaking any other law.

That being said, the police can’t enforce a law that’s too vague.

Before jumping through legal hoops, make sure that the terms of your visitation order are clear. In some cases, headaches can be cleared up by shoring up details like specific dates and times—something you may be able to coordinate together, without the court.

2. Updates

If your visitation order is sufficiently clear, then maybe the problem is that your order is dated.

As all parents know, a child’s needs change just about as fast as they grow. Hence, a visitation arrangement that worked well for your family five years ago might not be the best fit here, in the present. Indeed, some agencies won’t even help enforce orders that are too old.

If your order is no longer a good fit, then it might be time to consider a custody modification.

3. Alternatives

You don’t need to go back to court to resolve everything. Before drafting up a motion, try talking to your ex to see if there are tweaks you can make. Sometimes a simple change in drop-off location or an alternative pick up time is all it takes to keep things running smoothly.

If it helps, there are even exchange agencies, which can help supervise the transfer of children between parents. These professionals can be really helpful at both keeping parents honest, and tracking violations. And while they do charge a fee, it’s definitely cheaper than the cost of an attorney.

4. Contempt

If all else fails, the last step you should consider is contempt of court.

Contempt is a criminal action, which can be taken against someone who intentionally and willfully violates a court order. This is a serious charge, and one that comes with a very high burden of proof, meaning they’re tough to litigate—especially for visitation violations.

In terms of custody agreements, contempt is most often used as a means to enforce child support.

If you are thinking about pursuing contempt, it’s a good idea to consult your family law attorney, first. In many cases, the potential benefits aren’t worth the effort of pursuing in terms of visitation.

Visitation Order Modification

Judges don’t want to see you back right after delivering your original visitation order. However, under the right circumstances they are willing to consider a custody order modification.

Some of these circumstances might include:

A repeated, long standing pattern of custody order violations.
The child’s education needs have changed.
The custodial parent’s home environment has changed.
The child is being subjected to harm under the current order.
One parent is no longer fit to carry out parental responsibilities.
There has been a change of employment.
The custodial parent needs to relocate.

As always, California parents are free to draft their own parenting plan—and modifications. This can be done between the individual parents, or in a more structured environment, such as mediation.

Remember, however, that the changes will not be enforceable until they are approved by a judge—even if both of you agree. Until then, be sure to follow your original order, or else you could risk being held in contempt.

Enforcing a Visitation Order in California

Failure to comply with visitation isn’t just a violation of your parental rights. It’s also an affront to your child, who is being robbed of the opportunity to foster a loving, healthy relationship with their other parent.

That’s why if you have more questions about enforcing a visitation order in California, 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 ensure your child’s best interests are being met.

Domestic Violence

October 9, 2021
by Briana White

Divorce is never easy, but for families struggling with domestic violence, the transition can be even more complicated—especially for those who have children, need to file a restraining order, or are worried about retaliation.

Each state has different laws for handling domestic violence during divorce. In some jurisdictions, these offenses can warrant the filing of a fault-based divorce, and end up affecting the division of marital property in favor of the abused spouse. They can also impact child custody, alimony, and even result in criminal charges.

Here’s what you need to know about how domestic violence can impact your divorce in California, and what the Maples Family Law team can do to help you navigate this rocky transition.

Overview of Domestic Violence

In California, domestic violence is defined as any abuse—or threat of abuse—that comes from a romantic partner.

Naturally, this definition includes a spouse, but it actually goes further, encompassing any type of romantic relationship, such as someone you’re living with, a domestic partner, a co-parent you share a child with, and even just someone you’re dating (or used to date).

Under this definition, abuse can come in many different forms, and—according to the domestic violence guidelines on the California.gov website—can include things such as:

The act of physically hurting (or trying to hurt) someone, either intentionally or unintentionally;
Making someone think that they (or someone they love) is going to be hurt;
Sexual assault;
Harassment, stalking, threats, and disturbing the peace; and even,
The destruction of personal property.

As you can see, this type of abuse does not require physical contact with another person—or even their property—in order to be considered domestic violence. It can be as subtle as emotional abuse and threats levied against someone you love, and can even include unintentional physical harm.

But, what does this mean when filing for divorce?

Here are some of the ways that domestic violence can impact your divorce, including the division of marital property, child custody, and alimony.

Domestic Violence and Marital Property

At its most basic form, marriage is just a contract; a commitment between two people, who want to be seen as a single entity in the eyes of the law. That’s why several states allow individuals to file for divorce under fault-based grounds.

In a fault-based divorce, the court can assign blame, and hold one spouse financially accountable for their part in the marriage breakup. This is typically done by awarding the victim a larger share of the marital property.

Along with things like infidelity and drug abuse, domestic violence is one of the primary grounds used in these jurisdictions for filing under fault. That being said, California is not one of those states.

As a strictly, no-fault divorce jurisdiction, you cannot file for divorce in California using domestic violence as your grounds. In addition—because judges cannot consider guilt or blame when dividing marital property—you also cannot use domestic violence to receive a greater share of your community pot.

However, that doesn’t mean domestic violence can’t impact your divorce at all…

Domestic Violence and Child Custody

One of the biggest ways domestic violence can shape a California divorce, is in the area of child custody.

In California, custody decisions are made based on what is in a child’s best interest. This legal standard is driven—not by what parents want—but by what will serve a child’s long-term health and welfare the best.

Under these guidelines, sole versus joint custody decisions are determined by weighing factors such as:

A child’s health, safety, and welfare.
A child’s preference (if over twelve).
Each parent’s past role in their child’s life.
Each parent’s ability to care for their child, post-divorce.
Any history or threat of domestic violence.
Any history of drug abuse.

When considering domestic violence, it is not even necessary that the child has experienced the abuse themselves. In California, domestic violence is still a consideration, even if the harm was only ever carried out on the child’s other parent.

Domestic Violence and Alimony

According to the California Family Code, courts are also required to consider domestic violence when making decisions about alimony.

Alimony (or “spousal support”) are regular payments that a judge orders one spouse to pay the other, in order to help support their care after the breakup. This money is often awarded to a homemaking spouse, to help get them back on their feet after so many years out of the workforce.

In California, judges cannot require victims of domestic abuse to pay their spouse alimony, however, this is somewhat contingent on what evidence is available at the time of divorce.

A conviction of domestic violence within the past five years is the strongest type of evidence. If available, this creates a “rebuttable presumption,” which essentially means that the court has to operate as if the abuse exists/existed. As a result, a victim of this violence cannot require to:

Pay temporary or permanent spousal support; or,
Pay their spouse’s attorney’s fees from separate property.

If you don’t have a conviction, you may still be able to get an exemption from alimony. Talk to your attorney about what evidence you may need, and be sure to document any further abuse in as much detail as possible, since the state may want to file criminal charges, as well.

Domestic Violence and Criminal Charges

Domestic violence might have been the reason you decided to file for divorce, but it’s also a crime, and—depending on the severity of the offenses and the available evidence—these actions could be enough to land your spouse with criminal charges.

But what, exactly, does that mean? And how does a criminal charge differ from what you’re doing in divorce court?

Civil vs. Criminal Court

In the United States, there are two main branches of the court system:

Civil court
Criminal court

Criminal court deals with offenses like rape, theft, battery, assault, and so forth. These are harmful crimes committed by one person against another, and can result in fines and even jail time. In a criminal case, the state acts as the prosecutor against the accused.

On the other hand, a civil case is filed by an individual (or business) against another individual (or business). This branch handles pretty much everything that criminal court does not, including real estate transactions, business, contracts, probate, economics, family law, and so forth.

Divorce—like adoption and child custody—is a subset of family law, which means that these cases are generally held in civil court. However, when domestic violence is involved, civil and criminal courts often intersect.

Depending on your situation, the state of California might decide to file criminal charges against your spouse for domestic violence. If they do, these charges will be filed as a separate case, held in criminal court, and handled by a criminal court judge.

Unfortunately, while domestic violence is always a crime, it’s also often a secret crime—one whose harm doesn’t always leave a mark. Hence, in many situations, the state lacks the necessary evidence to prosecute.

California Domestic Violence Resources

It’s important to understand that—even without a bruise or scar—domestic violence is never okay. California courts take these crimes very seriously, and if you or a loved one are currently experiencing abuse, it’s critical that you talk to law enforcement (as well as your family law attorney), to figure out the best course of action in your situation.

If you don’t know where to start, or simply need help, these online resources can assist you with the process:

These sites can help you find a shelter, retain a free or low-cost attorney, and walk you through the steps for things like filing for a restraining order.

In the meantime, if the danger is immediate, don’t wait, and call the police right away.

Domestic Violence Divorce Attorneys in California

If you are dealing with domestic violence in your marriage, the most important thing to do is to keep yourself—and your children—safe. The next step is to get out of the situation as quickly as that safety will allow.

If you have more questions about domestic violence in California, and how this might affect your divorce, we want to help. Call the Maples Family Law team at (209) 989-4425, or get in touch online, and together, we can figure out the next best step for you.

Child Custody

Same Sex Custody in California

July 29, 2021
by Briana White

In 2015, the Supreme Court of the United States made same sex marriage legal, meaning that LGTBQ couples now enjoy the same, basic rights to marry and divorce as hetero couples—no matter which state they live in.

Theoretically, these considerations also apply to parental rights, too, including custody. (After all, children are a pretty big part of family relationships.) However, same sex custody isn’t always as cut and dry, and same sex couples often face unique challenges in custody disputes.

Here’s what you need to know about same sex custody in California, and how the Maples Family Law team can help you resolve these important matters during a divorce.

Same Sex Custody: The Basics

Child custody is a legal term that encompasses the wide range of rights and responsibilities that a parent has, in relation to their child. Specifically, it refers to a parent’s right to make decisions for that child, and to have contact with them, while young.

In a custody dispute, a judge will grant legal and physical custody to parents either together (as “joint custodians”), or to one parent, alone (called “sole custody”). Based on these decisions, visitation and child support obligations will then be assigned, accordingly.

Theoretically, this child custody process should apply to parents the same, regardless of sexual orientation. The reality is, though, that many states fall short in recognizing that—even when applied “equally”—child custody laws are inherently discriminatory against same sex parents. (Largely due to the fact that, in a same sex partnership, only one parent can be a child’s biological parent.)

California legislatures have attempted to remedy these inherent discriminations, by creating child custody laws that are gender neutral and inclusive to all parents, regardless of sexual orientation.

That being said, same sex parents are still more likely to face challenges during a custody dispute—the range and extent of such problems generally revolving around the legal status of both parents, at the time of divorce.

Same Sex Child Custody Scenarios

The legal status of a child’s parents will be the best indicator of how easy it will be to settle custody.

If both parents are legally registered, then the question of who has a claim to rights becomes relatively straightforward. If one parent isn’t legally recognized, however, things get more complicated.

In a same sex partnership, this legal status generally presents as one of three main scenarios:

The child is adopted by both parents, and both are registered as legal guardians.
The child is born into a marriage, registered partnership, or civil union.
Same sex partners are unmarried, and only one of them is the child’s legal parent.

Here’s a closer look at each of these scenarios.

1. Child is Adopted by Both Parents

In the first scenario, child custody is a relatively simple matter (well, as simple as custody ever gets, that is). Once complete, adoption confers the same rights and responsibilities to adopted parents as biological ones—regardless of gender.

Hence, same sex partners who have both legally adopted their child will each have an undisputed right to claim all the powers and responsibilities associated with parenthood, upon divorce.

2. Child is Born into Marriage

In California, it doesn’t matter if you are in a same sex partnership, or a hetero one, if a child is born into your union, you are treated as the child’s legal parents, under the presumption of parenthood.

California is one of very few states that have granted same sex parents this presumption. By allowing it, however, they’ve taken a huge step in helping to eliminate discrimination towards same sex parents.

We should also note that this allowance doesn’t eliminate the rights of either of a child’s biological parents, either. As of 2014, as many as three parents can now be listed on a child’s birth certificate, thereby giving all parties involved the peace of mind in knowing their parental rights are protected.

3. Unmarried, Same Sex Parents

Finally, we have unmarried, same sex parents—a situation where either the biological parent is the child’s only registered parent, or else a non-biological, adopted parent is the only legally registered parent.

Out of all our scenarios, this is the most precarious place for same sex couples to be, because here, only one half of the duo is recognized as the child’s legal parent. These are co-parents who never had a chance to assert parental rights at a child’s birth (or adoption), but who—nonetheless—played a pivotal role in the child’s upbringing and development.

To answer these questions, California courts turn to the doctrine of psychological parenting.

The Doctrine of Psychological Parenting

This doctrine recognizes that a co-parent doesn’t necessarily have to have legally adopted a child for them to have fulfilled that role in a child’s life. This principle places the best interest of the child above the need for strict, legal formalities, and—in some situations—will grant a non-biological/non-legal co-parent parental rights, without requiring a formal adoption.

In California, a parent who qualifies under the doctrine of psychological parenting is called a “de facto parent.”

De Facto Parents

Not everyone in this situation will qualify as a de facto parent (in fact, more likely than not, the cards will be stacked against you). Instead, the court will seriously evaluate a number of different things, including whether:

Whether the non-parent lived in the same house as the child.
Whether the child’s legal parent was aware of—and consented to—the formation of a parent/child bond.
Whether the non-parent took responsibility for the child’s development, care, education, and financial needs.
Whether the relationship lasted long enough for the child to form a parent/child bond with the non-parent adult.

As you can see, becoming a de facto parent isn’t a foregone conclusion, and requires more than just a romantic relationship between partners—one of whom just so happens to have a child.

Still, why would the court uphold de facto rights at all? Isn’t that kind of strange? (We’ll give you a hint: it has nothing to do with you…)

Best Interest of the Child

If you answered with, “Because it’s in the child’s best interest,” then you’d be correct.

In all cases of child custody—not just those involving de facto parents—the court’s driving motivation is to find the arrangement that will best serve a child’s long-term happiness, health, and wellbeing. And if that child has formed a bond with someone who has acted like a parent, looks like a parent, and smells like a parent, then the court figures it’d be pretty damaging to separate that child from that person, even if the relationship was never formally recognized through adoption.

That being said, LGTBQ parents in this situation still face an uphill battle—especially if paired with a judge who has strong prejudices against same sex relationships. That’s why, when dealing with same sex custody, it’s so important to hire a family law attorney you can trust.

Same Sex Custody Attorneys in California

In theory, same sex couples have the same rights to marry, divorce, and parent as their hetero counterparts. However, despite lawmakers’ best efforts, the practical execution of these laws doesn’t always pan out the way they’re meant to, which is why you need an experienced family law attorney to help fight for your rights.

If you have more questions about same sex custody in California, we want to hear from you. Call the Maples Family team at (209) 989-4425, or get in touch online, and let us help ensure the best interest of your child is met.

Divorce

How to Start Your Divorce

March 5, 2021February 10, 2021
by Briana White

In the beginning, you weren’t thinking about the end. Beyond the blur of wedding bells, rings, and gifts, the future was bright; full of hope and possibility. Sure, the details weren’t filled in, yet, but the important parts were: the picture of both of you, together, taking on the world.

Now you’re sitting here staring at the ruins of your relationship, wondering what went wrong, and what you’re even supposed to do to prepare for divorce.

The good news is, that—while dealing with divorce might feel impossible in the moment—the future is still bright. Beyond this dark tunnel, the rest of your life waits, and the Maples Family Law team is here to help you get there.

Start Your Divorce: First Steps

Divorce is stressful, there’s no doubt, but it is manageable. And before you allow yourself to get too overwhelmed, take a step back to relax, breathe deep, and keep reading for five simple steps you can take to start your divorce in California.

1. Talk to an Attorney

If you’re ready to divorce, one of the first things you should do, is talk to an attorney about your situation.

In California, there are many different types of divorce. From uncontested to mediation, all the way up to collaborative, and a contested divorce trial, an experienced family attorney will be able to help you decide which one will work best for you.

2. Get Organized

Regardless what type of divorce you decide to try, all of them are going to need the same personal information from you. So, while you’re deciding which attorney to hire, or whether or not legal separation is the preferable alternative, simplify your divorce, by gathering the needed documents right now.

Some of the items you will need include:

Your marriage date and certificate;
Date of separation (if applicable);
All financial documents (such as bank records, credit cards, personal loans, and taxes);
Business shares or interest;
Property records, including mortgage agreements;
Retirement account information;
A copy of your prenuptial agreement (if applicable); as well as,
The names and birthdays of any children you share.

As part of your split, the court will be dividing all marital property between the two of you. Hence, if there’s anything that belongs to you as separate property, you should also make sure you have the necessary proof to support your claims.

Keep in mind that—in addition to being illegal—it’s also extremely difficult to hide assets during divorce. Courts don’t look kindly on this, so it’s best not to try.

3. File a Petition

A divorce doesn’t officially kick off until you file a petition. This document essentially notifies the court of your intent to break your marriage contract, and requests they submit a final ruling.

You or your attorney will need to pick up the divorce petition form at your local courthouse. To fill it out, you will need a lot of the information you gathered in the previous step. Once complete, your or your attorney can return it (and all supporting documents) to your clerk.

While some people abhor the idea of being the first one to ask for divorce, there are actually some benefits to being the first one to file.

4. Notify Your Spouse

Once you’ve filed your petition, the next step is to notify your spouse that you’ve initiated a divorce. While you might be tempted to just send a simple text, California law requires proper service. This involves having an outside party hand-deliver divorce papers.

After receiving papers, your spouse will have thirty days to respond to your petition, giving you a short respite. However, even if they respond sooner, you still won’t be able to get a quick divorce.

5. Prepare to Wait

You and your spouse might be certain about your split, but California courts need a little more convincing.

Humans beings are emotional, rash creatures, and we aren’t always at our best in the heat of an argument. Because of that, all divorcing couples must endure a mandatory, six-month waiting period, before the court will hear their case.

Try not to think of this as a punishment, but as a way to be absolutely sure that divorce is right for you. You can also utilize the time to engage in any discovery needed for your hearing, and to help the rest of your family prepare for the upcoming changes.

Start Your Divorce: Helping a Child Cope

Of course, knowing the technical steps of how to start your divorce is one thing, but dealing with emotions is an entirely different matter. Especially when it comes to parents and young children.

At Maples Family Law, we understand the concerns parents face—how you worry about custody, child support, and the negative impact a hypothetical divorce might have on your child. You carry the heavy burden of trying not to project your emotions onto your child, all the while it feels like a bomb just went off inside your chest.

It’s no wonder you’re stressed.

However, when it comes to your kids, it’s probably not as bad as you might think. Here are a few things for worried parents to keep in mind, when starting a divorce.

Your Child’s Interests Are Guiding the Decisions

The state of California is worried about your family, too, and easing the impact of divorce on your child is one of their top priorities.

When making decisions that affect minors, your judge will put the best interest of your child above all other considerations.

The Right Team Matters

There is no “I” in “Team,” and when it comes to divorce, it can be hard to see the playing field without the right perspective. This is why hiring the right child custody attorney is so important.

A trusted lawyer can help you and your spouse:

Avoid common custody pitfalls;
Mediate custody matters outside of court;
Reach a dynamic parenting plan that meets your family’s unique needs; and,
Develop an effective co-parenting strategy, that will help your child adjust your family’s new normal as smoothly as possible.

Help is Available

Children are amazingly resilient. Most of the time they bounce back from these emotional heartbreaks much better than even the adults do.

That being said, it doesn’t hurt to give them an outlet to work through emotions, or let them talk to a therapist. Extra help is always available, and you don’t have to do this alone.

Divorce Attorneys in California

For more questions about how to start your divorce, call the team at Maples Family Law at (209) 989-4425, or get in touch online. While divorce might be an end, it’s also a beginning—the start of the rest of your life—and it’s one we want to help you reach.

family-law

FAQs About Child Custody Lawyers

March 1, 2021February 10, 2021
by Briana White

For worried parents, one of the most stressful aspects of divorce is how it will affect your child—especially in terms of custody. With your child’s well-being on the line, you want to be certain that the lawyer handling your case will fight for their best interest as passionately as you would.

At Maples Family law, we understand these concerns, and want to do everything possible to help you feel comfortable with the child custody process.

Here are some of the most commonly asked questions about child custody lawyers in California, and how our team can help you.

What is Custody?

First off, child custody is a broad label that refers to the rights and responsibilities associated with parenthood. In California, these custodial powers are divided into two main groups:

Legal Custody—the right to make decisions on behalf of a child and to choose how they will be raised; and,
Physical Custody—the right and responsibility to have a child physically present, and to care for their needs.

When parents get a divorce, these powers and duties must be shared and/or divided between spouses. To this end, judges can order the couple either to share responsibilities in joint custody, or, give only one parent this authority in sole custody.

How these parental rights are divided in your case will depend on an analysis of a number of individualized factors.

Can I Sue for Custody?

The answer to this question depends largely on what your relationship is to the child, and where you’re at in the family law process.

Parents, for example, inherently have rights to access, possession, and control over their child. However, if a parent has to ask about suing for custody, this probably means they’ve had their rights revoked or limited at some point. If this is the case, that parent would need to petition the court to have their current order amended, before custody could be reinstated.

If you are a parent getting divorced, custody will automatically be decided as a part of your parenting plan, and incorporated into your final order. There is no need to file a separate suit.

In California, grandparents do not have the same inherent rights to custody as a child’s parents. However, there are some situations where grandparents can sue for visitation, custody, or even adoption. Usually these cases arise due to parental neglect or abuse.

Should I Hire a Lawyer for Child Custody?

Yes. Whether you are getting divorced, or suing for custody in another capacity, it is always better to have an attorney, then not.

Family law is complicated and nuanced, and child custody is no exception. Without an attorney, you have a much greater chance of making expensive and irreversible mistakes—some of which could end up costing you your relationship with your child.

In the end, hiring an attorney is well worth the added expense to make sure your interests are being properly represented.

What if I Can’t Afford an Attorney for Child Custody?

If finances are tight, check with your local legal aid office, andexplore what resources are available to you there. The State Bar Association strongly encourages California attorneys to devote a portion of their time to pro bono services each year, so you may be able to find a quality attorney, at no cost.

Also, consider whether or not you even need an attorney. While it’s always better to have one, you might be able to forego representation under certain circumstances, especially if your spouse is not using representation, either.

If this is the case, consider trying to solve your differences out of court. Mediation, for example, does not require parties to have a lawyer present in order to reach a settlement agreement.

What Do Judges Look at When Deciding Custody?

The governing standard for any case involving children is the best interest of the child. Under this presumption, all outcomes are evaluated based on what will satisfy the child’s long-term health and happiness the best.

That being said, California courts strongly assume that a child’s best interest is served when allowed to cultivate a loving relationship with both parents. Hence—baring extreme circumstances, such as abuse or neglect—judges are likely to grant parents joint custody in most cases.

Factors your judge might consider when making this decision include:

The emotional and mental stability of both parents;
Home life in each household;
A parent’s ability to care for the child;
Any criminal behavior;
Potential harm that could befall a child; and even,
The child’s preference (especially if the child is over twelve).

Ultimately, however, every decision will come down to what is in the child’s best interest.

Who is Most Likely to Win a Custody Battle?

In California, it’s common for courts to split legal custody fifty-fifty between spouses. In these situations, both parents would have an equal say in how their child was raised, as well as the right to make decisions on behalf of their child (such education, medical procedures, and religious exposure). Physical custody, however, is another matter.

Since it’s so difficult to split a child’s physical time exactly equal, judges will often appoint one parent to be the child’s primary residence, while the other gets ample visitation. Statically speaking, mothers are more likely to be appointed the custodial parent, however this is not always the case.

With same sex marriage now legal, as well as a greater overall emphasis on protecting paternal rights, the role of custodial parent is no longer assumed. In the modern California courtroom, there is no room for gender roles, and every custodial decision is made based on the child’s best interest, alone.

How Can a Father Win a Custody Battle?

A father becomes their child’s custodial parent the same way a mother does: by being in the child’s best interest.

This analysis does not include gender stereotypes. Instead, the court simply wants to know which parent is most likely to:

Provide the best home environment;
Devote time and attention to their child;
Offer continuity and stability;
Meet the child’s physical, mental, and emotional needs; and,
Cultivate a relationship between the child and the child’s other parent.

If you are a father who is interested in becoming your child’s primary custodian, you should discuss it with your attorney, who can help you develop the rights strategy, moving forward.

Can You Lose Custody Because of Mental Illness?

The short answer is: no. The reality is: maybe.

While the presence of a mental illness, itself, does not affect custody, sometimes the type and severity of the illness can. For example, if symptoms are so severe that they inhibit a parent’s ability to address basic needs, or to provide a safe home environment, these things would certainly impact a judge’s decision. However, on its own, the diagnosis is not a deterrent.

California Child Custody Lawyers

If you have more questions about child custody lawyers in California, and how the team at Maples Family Law can help you, call us at (209) 989-4425, or get in touch online, and together, we can ensure that your child’s best interests are being met.

Guardianship

Legal Guardianship in California

February 19, 2021February 1, 2021
by Briana White

In California, legal guardianship is a court order that gives an adult the responsibility of taking care of a child who isn’t biologically theirs. Once appointed, a legal guardian has many of the same rights, responsibilities, and decision-making power as an actual parent, including the ability to make medical and education decisions on behalf of the child. Because these duties are so similar to what actual parents do, legal guardianship is often confused with adoption, however the two are not the same thing.

Here are a few things to know about legal guardianship in California, why you might want to consider appointing one, and how these scenarios differ from adoption.

Legal Guardianship in California

There are two major categories of legal guardianship in California: Juvenile Court Guardianship, and Probate Guardianship.

Juvenile Court Guardianship

Juvenile Court Guardianship requests come to a judge from either Family Court or a Juvenile Court action. These are the children removed from their home by child protective services due to neglect, abuse, or other dangers. Unification with biological parents is always the main goal in these cases, however if that’s not possible, a legal guardianship appointment will be made.

If a parent does not agree with the decision to elect a guardian, they are free to file an objection with the court, and to make statements at the hearing. However, in the end, all decisions will be made by the judge according to the best interest of the child. If the parent’s objections are overruled, it’s possible the court will still grant visitation rights while the child is under the care of his or her legal guardian.

Probate Guardianship

The second category of legal guardianship in California, is when a child enters the system through probate court. Probate court is the part of our judicial system that handles death matters, such as wills, estates, trusts, and other practical issues that need to be resolved when a person dies. When a legal guardianship application is initiated on behalf of an orphaned child, this is referred to as a “Probate Guardianship.”

Usually Probate Guardianships only apply to children who are under eighteen. For some cases, though, it’s possible to request an extension for youth who are over eighteen, but not yet twenty-one.

Scope of Legal Guardianship Powers in California

The decision to grant an outside adult legal authority over a non-biological child is not something California courts consider lightly. Circumstances that require a guardian will vary from case to case, and sometimes the full spectrum of rights is neither appropriate or needed. Therefore, when granting a legal guardianship, California courts authorize this power in one of three ways:

Guardianship of the person;
Guardianship of the estate; or
Both personal and estate guardianship.

Legal Guardianship of the Person

An adult who is granted physical guardianship over a child has the duty of meeting all the child’s basic, daily needs. This includes food, shelter, safety, and emotional support, but also extends to things like medical care, health needs, and education. When you’re appointed to be a legal guardian over a child’s physical needs, you have all the same responsibilities of caring for that child as a biological parent, plus the legal authority to make necessary decisions to that effect.

Legal Guardianship of the Estate

On the other hand, estate guardianship extends only so far as that child’s property is concerned. Usually this kind of guardian is arranged when a child inherits money or real property, and needs an adult to oversee fiscal matters until he or she turns eighteen. In most cases, the surviving parent is appointed to this position, unless both parents are deceased.

If the child is orphaned, the court might grant both physical custody and estate management to a single guardian. Or, these powers might be split between two people, in order to make it harder for a guardian to take advantage of a child’s wealth and age to benefit themselves.

Who Can Be a Legal Guardian

Anyone can apply to be a child’s legal guardian, and they do not actually have to be related. Guardians may include:

Grandparents;
Adult siblings;
Aunts, uncles, and other relatives;
Foster parents;
Close friends; or,
A teacher, counselor, or any other adult who has a relationship with the child.

Regardless of who applies, all guardianship appointments will be made in accordance with a child’s best interests.

Applying for Legal Guardianship in California

Whether the child’s parents are deceased, or are simply unable to properly care for their children, the application for legal guardianship follows the same basic process: paperwork, court investigation, and hearing.

Paperwork

To initiate a guardianship application, there are several forms that you need to complete, including a petition for guardianship. Many of these forms require supporting documents, so it’s a good idea to have your family law attorney on hand to help you avoid making common mistakes that will delay your process.

Court Investigation

Once all the forms have been filed, the court will assign an investigator to visit your home. This person will conduct interviews, look for signs of neglect or abuse, and conduct criminal background checks on everyone involved. This might sound a little invasive, but it is a necessary step to ensure that guardianship decisions are made according to the best interest of the child.

After these independent inquiries are through, the investigator will file their findings with the court, and copies of this report will be given to your attorney, as well as to any other relatives involved. If there is anything in the account you believe was made in error, your attorney can help you file an objection.

Hearing

The last step to becoming a legal guardian, is to attend the hearing. At this meeting, the judge will listen to all interested parties involved—including the child’s parents, if they are alive and object to the appointment. If there are too many competing interests involved, a judge may even assign an attorney to specifically represent the child’s interest. If the judge approves your application at the hearing, he or she will issue an order to make your position official.

As a legal guardian, you will be expected to file an annual status report. So long as there aren’t any problems, your appointment will continue as outlined in the guardianship order. Usually until the child turns eighteen.

Legal Guardianship vs. Adoption in California

While legal guardianship and adoption function to provide the same, basic care for children in need, they are not the same thing. The primary difference being, that in a legal guardianship, parents retain their parental rights, whereas in adoption, these rights are transferred, and cannot be reacquired. For this reason, the process is generally more rigorous than that of a legal guardianship.

Once finalized, adoption displaces the line of inheritance, halts any child support duties the biological parents might have had, and relieves adoptive parents from the obligation of fostering a relationship between the child and its biological parents—including visitation. Legal guardians, on the other hand, are subject to visitation schedules (as laid down by the court), and unlike adoptive parents, legal guardians must provide special provisions in their will, if they wish their wards to inherit.

In short, once a child is adopted, their new parents have all the same rights, responsibilities, obligations, and authoritative power as biological parents. In the eyes of the law, there is no distinction.

Legal Guardianship Attorneys in California

Whether it’s the permeance of adoption, or merely a legal guardianship, taking on the responsibility of someone else’s child is a huge endeavor, and one that should be thoughtfully considered with your family law attorney. If you have further questions about the legal guardianship process in California, or other adoption-related questions, we are here for you. Call us at (209) 989-4425, or get in touch online to schedule your consultation, and let us help you pursue the arrangement that will work best for you and the child you care about.