Tag: <span>Child Custody</span>

Adultery Laws in California

July 31, 2020August 1, 2020
by Anna Maples

With adultery clocking in as one of the leading causes of divorce, it’s no wonder people are interested in how it might affect their split. Specifically, the question many divorce lawyers get asked, is whether or not adultery is illegal.

It’s a fair question. Especially considering that over twenty states actually do attach criminal punishments for infidelity. Consequences that can range anywhere from a slap on the wrist, to a misdemeanor, and in some states, even a felony. In Idaho, for example, adulterers could face up to three years’ jail time, while in Wisconsin, cheaters might just find themselves with a hefty, $10,000 fine.

Unfortunately, as satisfying as it would be to bring a cheating spouse to court on criminal charges, if you live in California, it’s not an option. While adultery is, undoubtedly, a morally questionable decision, it’s not actually a crime in the state of California.

However, just because California doesn’t make adultery illegal, doesn’t mean there aren’t consequences for cheating. Here’s what you need to know about adultery laws in California.

No-Fault Divorce and Adultery

First off, California is a no-fault divorce state, which means that couples do not have to state a reason for the dissolution. In fact, there are only really two grounds available for getting divorced in California: 1) irreconcilable differences; and 2) incurable insanity. So even if an individual wanted to make adultery their grounds for divorce, it’s just not an option.

Things weren’t always this simple. In the state’s early days, if a couple wanted to split, the law basically required a showing of fault (usually adultery). Which—far from actually deterring people from divorce—ended up spawning an environment that encouraged lawbreaking. Because what’s a little perjury when faced with an eternity of marital hell, right?

This blatant flaunting of the law is what eventually drove lawyers and judges to advocate for a simple, straightforward process of securing a divorce. And not long after, the modern-day, no-fault system was born. The upside of this being that divorce is now simple and does not require one to commit perjury to secure a split. The downside, however, is that a slighted individual hoping to benefit from their spouse’s wandering ways will find themselves out of luck, as cheating does not directly affect how courts split marital property.

Still, that doesn’t mean adultery doesn’t matter at all in California, and here’s why.

Adultery Laws and Marital Property in California

Marriage is, at its most basic function, a contract. An agreement, in which two people decide to join their lives—and belongings—under a single umbrella. So, from that point forward, all assets acquired are considered community property. In layman’s terms, this means that everything belongs to both individuals—regardless of which spouse earned the paycheck. And this is where an adulterer might get dinged.

Since all the money in the pot belongs to the spouses equally, an adulterer who spends marital property on an affair is essentially spending cash that doesn’t belong to him—or, at least not just to him. Which means payback will be in order. Sometimes, this means replacing the money into the account before the assets are divided. Other times, the cheater might end up with a smaller piece of property pie, in order to compensate for erroneously spending marital property on an affair.

The catch is, that it can sometimes be difficult to prove how much money was wasted outside the marriage, as the savvy adulterer might not leave a paper trail. Gathering as much information as possible will help your divorce attorney give you the best chance at being fairly compensated for these losses.

Adultery Laws and Custody

In California, adultery does not affect child custody, which is always decided under the Best Interest of the Child standard. This precedent operates under the assumption that a child’s best interest is to have a loving relationship with both parents whenever possible. And, regardless of an individual’s personal feelings toward their cheating other half, infidelity does not actually mean someone is a bad parent.

The only way adultery would affect custody in California, is if the affair had an adverse effect on the individual’s parenting. For instance, leaving a child home alone to meet up with a lover, having sex in front of the child, or exposing the child to drugs or abuse. Short of putting the child’s mental and physical well-being at risk, though, adultery does not come into play for these decisions.

Adultery Laws and the Third Wheel

In contrast to adultery laws, Alienation of Affection suits, are charges which assign damages to the home breaker in the adulterous duo. This is done on the assumption that, without the individual’s interference, the marriage would not have failed.

However, just as adultery is not against the law in California, Alienation of Affection suits have similarly been done away with. In this state, you cannot sue your spouse’s lover for damages, though, that’s not the case for every jurisdiction. For example, in 2019, a North Carolina man won a $750,000 suit against his spouse’s lover. These antiquated laws—which hail back to the day when women were considered property—are understandably controversial, and it’s questionable how much longer they’ll remain in the books. For now, though, Alienation of Affection suits are not something couples in California have to worry about.

Adultery Laws and the Military

Finally, while there are no specific adultery laws in California, those in the military might still want to be careful. Under the Uniform Code of Military Justice (UCMJ), adultery is, in fact, a criminal offense, based on the premise that the act undermines order and discipline. Thus, military personal caught committing adultery could earn themselves a dishonorable discharge, not to mention the forfeiture of any future payments, and up to one year’s confinement—regardless of whether or not their specific state criminalizes the act.

Furthermore, even couples who are legally separated might want to avoid romantic relationships until their divorce is final, as the military does not recognize legal separation as a defense to adultery.

Divorce Attorneys in California

Even though there are no specific laws prohibiting adultery in California, infidelity still can still muddy the divorce waters. If you or a loved one have more questions about how adultery might affect your California divorce, we may be able to help. Call us at (209) 989-4425, or get in touch online to schedule your consultation, and let our skilled team of California divorce attorneys help secure the best outcome for your unique circumstances.

Divorce

How Infidelity Affects Alimony in California

July 27, 2020
by Anna Maples

Most people are probably already familiar with the term, but to kick things off right, let’s start with the legal definition of adultery, which is: any consenting sexual relationship where at least one of the parties is married to someone else.

Historically, punishments for this behavior were swift and harsh, ranging anywhere from torture to mutilation, and in some cases, even death. Not to mention a hefty dose of social isolation and religious shunning for many. The brunt of all which was—unsurprisingly—borne by women. While men occasionally faced fines or punishments, as a whole, their consequences were relatively minor.

Luckily, over the past century or so, most countries have done away with such extreme measures. However, while relationships and sexuality are seen much differently than they were in the past, it may be surprising to hear that adultery is still a criminal offense in some states, including Idaho, Mississippi, Virginia, Oklahoma, North Carolina, and others. And while these laws aren’t often enforced, it still makes adultery a pretty valid concern for those individuals dealing with divorce.

Here’s what you need to know about how the law handles adultery in California.

What is the Law on Adultery in California?

Adultery is not against the law in California, neither is it technically “illegal,” since divorce is a civil proceeding, not a criminal one.

As to how it affects divorce, California is a no-fault state. This means, that a couple doesn’t have to do anything more than cite “irreconcilable differences” for a dissolution. Being a no-fault state also means that courts can’t consider fault when making major decisions about property and child custody.

The only way adultery might affect the financial outcome of a divorce proceeding, is if the injured party can prove that the cheating spouse blew through shared income or marital property on the affair. If they can, a judge would probably order that money to be reimbursed to the family pot before divvying it out. Proving this can sometimes be tricky, though, especially if the cheating spouse didn’t leave a paper trail.

Can I Sue My Spouse for Cheating in California?

As satisfying as that would be, the short answer is: no.

In days gone by, there used to be ways for an injured party to bring a suit against the homewrecker in the adulterous duo. These were usually filed by the husband against the wife’s lover for compensation of lost affection. While there are some exceptions, most states have done away with these “alienation of affection” or “heart balm” suits, and the closest you can get to suing a lover in California is if the situation was so bad, that there was actual harm. (Say, if Handsome Homewrecker was stalking or threatening you.) But even then, those wouldn’t so much be “adulterous homewrecker” charges, as they would be a case of simple battery and assault.

Who Pays for Divorce if There’s Adultery?

For this question, we again refer back to California’s status as a no-fault divorce state. Remember, in these jurisdictions, cheating isn’t grounds for divorce, and neither can it be used to determine the split of assets. So, as you might guess—regardless of who was unfaithful—both parties are required to fit the bill for their own attorney’s fees.

Can a Cheating Spouse Get Alimony?

Absolutely.

Alimony, or “spousal support,” is basically financial aid given by a “supporting spouse” to a “dependent spouse” after a divorce, upholding the idea that financial reasons shouldn’t be the reason people stay in an unhappy marriage. Ergo, cheating doesn’t really come into play here. This situation most often arises with women, who frequently put careers and personal pursuits on hold in order to support a family, which of course, then hinders her marketability for jobs post-divorce.

The only way adultery might come into play in regards to alimony, is if the cheating spouse is living with his or her lover, or getting other financial help from the new relationship. In that situation, the savvy attorney might argue there’s less need for financial support, thus possibly reducing the price tag of alimony.

How Long Do You Have to Pay Spousal Support in California?

Since spousal support is based entirely on a couple’s individual situation, it’s difficult to say exactly how long alimony payouts will last. When deciding amount and length, courts will look at a few factors, including:

Duration of the marriage;
Standard of living during the marriage;
The supporting spouse’s ability to pay;
Age and health of the respective parties; and
What marketable education and job skills the dependent spouse has.

Obviously, these factors rely heavily on personal circumstances, and as a result, the verdicts will vary. While they are being determined, a judge will often order temporary support payments, which are made to the dependent spouse while the case is pending.

Does Infidelity Affect Child Custody in California?

As a no-fault divorce state, California does not consider adultery when determining the best interest of a child. This is because courts recognize the importance of children having healthy relationships with both parents, and want to facilitate that whenever possible. Hence, the only way an affair might hurt a custody arrangement is if the cheating spouse’s actions are somehow detrimental to their parenting. (Say, if they were neglectful, or the new relationship was causing harm to the child in some way.) Otherwise—however unsavory—adultery doesn’t mean you’re a bad parent.

In short, while being an at-fault state does make some things simpler, divorce is almost always messy and complicated. If you have more questions about how infidelity affects alimony in California, or want to talk about your specific situation, please reach out to us at (209) 989-4425, or get in touch online to schedule a consultation. Divorce is emotional, especially when infidelity is involved, but together, we can help give you the best shot at rebuilding a bright future.

Child Custody

California Infant Custody Laws

February 22, 2020August 10, 2020
by Angie

California values a child’s right to spend time – and have good relationships with – each parent. But are there California infant custody laws that apply to babies and toddlers?

Here’s what you need to know.

California Infant Custody Laws

California’s child custody laws don’t differentiate by age (except when a child is old enough to express a preference on which parent he or she would rather live with). However, all of our state’s laws are based on one thing: the best interest of the child.

What is the “Best Interest of the Child”?

When courts are determining child custody in California, judges base their decisions on what’s best for the child. Judges can look at several factors, including:

The child’s age
The child’s health
The emotional ties that each parent shares with the child
Each parent’s ability to care for the child emotionally, physically or financially
Whether there’s a history of family violence or substance abuse
The child’s ties to home, school and community
Other factors that are relevant to the case

How California Custody Laws Apply to Infants

The courts recognize that kids’ health, safety and welfare are the most important things in a child custody agreement. That means different factors might come into play when you’re divorcing with a baby. For example, the court might consider:

Whether your child is breastfed or bottle-fed
What kind of childcare is necessary so a parent can work or attend school
Whether both parents are capable of providing for an infant’s needs at home
What kind of attachments your child has developed with each parent

For example, let’s say there’s a mother who’s breastfeeding her baby. The baby’s other parent hasn’t been around; in fact, the other parent has only seen the child a few times over the past several months. In a case like that, the court may award the mother more time with the child and limit the child’s visitation with the father. (Remember, though, there’s no way to predict how a judge will rule. Judges take several factors into account, so no attorney can guarantee any type of custody arrangement.)

Legal Infant Custody vs. Physical Infant Custody

There are two main types of custody in California: legal and physical.

Legal custody refers to a parent’s authority to participate in major decisions about a child’s health, welfare and education. Many parents share legal custody.

Physical custody refers to a child’s physical presence with a parent. Many parents also share physical custody, and the child primarily lives with one parent while visiting the other.

Related: Child custody in California

In the Absence of California Infant Custody Laws…

You can avoid asking the court to make a determination on child custody whether you have an infant or an older child. The best way to do that is to reach an agreement with your child’s other parent – whether or not you were ever married.

Reaching agreements on child custody can be incredibly difficult. As parents, you both want what’s best for your child – but you may not see eye-to-eye on the details. Sometimes, attorneys recommend working with a mediator to reach agreements about custody (and other issues, too).

A mediator is an impartial third party who can dig deep into a conflict and find reasonable solutions. If you choose to work with a mediator, he or she will go back and forth between you and your child’s other parent until you’ve reached an agreement you can both live with. Then, you’ll take that agreement to the judge in your case. As long as the agreement is in the child’s best interests, there’s a good chance that the judge will sign off on it. When the judge agrees, it’ll become part of your divorce settlement (or, if you weren’t married, your official child custody order).

Do You Need to Talk to a Lawyer About Custody?

If you have an infant and you’re thinking about divorce, or if you need help sorting out child custody with someone you were never married to, we may be able to help.

Call us at 209-395-1605 for a consultation now. We’ll answer your questions and start building a strategy that gets you the best possible outcome.

Guardianship

Temporary Guardianship in California: The Basics

January 27, 2020June 8, 2020
by Angie

Temporary guardianship in California means that an adult – someone over the age of 18 – is responsible for a child for a set period of time. The guardian can make decisions related to finances, education, medical care and other important issues, and he or she is responsible for the child’s care, as well.

Temporary Guardianship in California: The Basics

There are several reasons the courts award temporary guardianship to an adult other than a child’s parent. For example, the courts could intervene when a child:

Is not receiving necessary medical treatment
Does not have suitable adults in his or her life (such as when the child’s parent is also a minor)
Has been prevented from going to school
Cannot be with his or her parents for a variety of reasons, such as incarceration, military service or death

If you want to become a child’s temporary guardian, be prepared to prove that guardianship is necessary for the child’s well-being. Some of the reasons courts will grant a person temporary guardianship involve a parent’s drug addiction or alcoholism, domestic violence situations, deportation or serious illness.

Any adult can ask to become a child’s temporary guardian, provided that he or she is at least 18 years old and has never been convicted of a crime. The courts can take the child’s wishes into account, as well. Grandparents, aunts or uncles, siblings and other relatives may petition to be a guardian, as can family friends and people who know and love the child.

How Do You Get Temporary Guardianship in California?

A child’s biological parents can give you temporary guardianship – but sometimes the courts step in and award someone temporary guardianship of a child without the parents’ consent. For most people, the best course of action is to talk to an attorney about this type of guardianship (even with the parents’ consent), because it’s a very serious matter and affects parental rights.

In order for the court to appoint someone as a child’s legal guardian, the judge presiding over the case must be satisfied that it’s in the child’s best interests.

How Long Does Temporary Guardianship Last in California?

Temporary guardianship only lasts for a certain period of time – usually not longer than 6 months. If the child still needs a guardian after the temporary order expires, you can start the temporary guardianship process again or file for permanent guardianship through the court.

Custody and Temporary Guardianship

When you’re granted temporary guardianship of a child, you assume all the legal rights and responsibilities of being a parent. The biological parents’ rights are suspended while the guardianship order is in place – they cannot make decisions for the child. (It’s important to know that parental rights are not terminated, as in permanently taken away, with a temporary guardianship order. They’re only suspended for as long as the order lasts.)

As a child’s guardian, you have full legal and physical custody of the child. You make decisions about:

You decide where the child should attend school, and you’re entitled to all the child’s school records.
Living situation. You determine where the child lives, although you can’t change the child’s residence to a place outside of California unless the court gives you permission.
Medical treatment. You’re responsible for meeting the child’s medical needs, and generally, you have the authority to give your consent to his or her medical treatment. However, if the child is 14 or older, you can only consent to surgery on the child if the child agrees or you have a court order for it – except, of course, in emergencies.

You’ll have other responsibilities, too, such as providing for the child financially and taking responsibility for a child’s misconduct. As a guardian, the court might require you to complete counseling or parenting classes, or to get specific services for the child; every case is different, but your attorney can help you understand what needs to happen in your situation.

What About Joint Guardianship?

Joint guardianship is an option when one parent has a serious medical condition and needs another adult to care for his or her child. The guardian still gets to make the same decisions as he or she would under any other circumstances – just in partnership with the child’s biological parent. If the child’s biological parent passes away, the guardian automatically becomes the sole legal guardian of the child.

Do You Need to Talk to a Lawyer About Temporary Guardianship in California?

If you need to talk to an attorney about temporary guardianship, we can help you. Call us at 209-546-6246 to schedule a consultation today.

Child Custody

How to Move Out of State with a Child

November 22, 2019April 22, 2021
by Angie

Moving to another state is a complicated and stressful endeavor, even in the best of circumstances. For divorced parents, however, this already intense process becomes another beast, altogether.

While California doesn’t strictly prohibit parents from moving out of state, there are several extra steps you’ll need to take if you want your child to move with you.

Here’s a closer look at how California courts handle parental relocation requests, and some of the extra boxes you’ll need to check, if you want to move out of state with your child.

Step 1: Determine the Distance

First off, so long as your move is within a certain radius (and, presumably, you’re still in California), you’re probably okay to move around without having to worry about violating a custody order.

For a lot of parents, this geographic restriction is fifty miles from the child’s home county. The boundaries can differ between cases, though, so it’s best to be certain before testing them out.

If your move is within the range specified in your divorce order, you do not need permission to change the child’s residence. Updating your address with both the court and your ex is essential, though, to make sure you don’t violate your visitation schedule, or miss important notices.

If your proposed move is outside the radius, then prepare yourself for extra paperwork, and read on to step two…

Step 2: Talk to Your Ex

For moves that break the geographic boundary, the next step to take is to have a chat with your child’s other parent—and yes, we understand that this is sometimes easier said than done.

Still, parents can save a lot of time and money by working things out between themselves, instead of rushing back to court. You may not be able to solve everything with one phone call, but even a quick game of mediation is better than a full court battle, especially since judges are almost always willing to sign off on an agreement that you reach together.

Keep in mind, that even if you agree, your changes still need judicial authorization, before the new arrangement is enforceable.

Step 3: Consider Your Custody Order

Assuming you and your ex can’t agree (and you still want to move), step three is to evaluate your current custody order.

In California, judges assign custody by giving rights to one parent, alone (sole custody), or as shared power to both (joint custody). While you’re reviewing which type applies to your situation, be sure to double check which parent is the primary custodian (or, in other words: who your child lives with most of the time).

More likely than not you’re already intimately familiar with this information (after all, it’s kind of hard to miss a child jumping up and down on your couch every day). Still, it’s a good idea to review, since custody arrangements directly determine which step you take next.

Step 4: Sole Custodians File Written Notice

A parent with sole custody has what courts call a “presumptive right” to move their child out of state. This is basically just a fancy way of saying “the benefit of the doubt to make all decisions.”

Despite this generous presumption, parents with sole custody still need to file written notice of their intentions, before they move. This notice must be given at least forty-five days before relocation, to give the child’s other parent a chance to voice objections, and to revise visitation schedules, if necessary.

A Non-Custodial Parent Can Challenge Custody

If you are a non-custodial parent—and are adamantly opposed to the move—you can do more than just object. Instead, you may request the court reevaluate your custody agreement. This is called custody modification.

In a custody modification case, the non-custodial parent challenger carries the burden of proof. This means that it’s your responsibility to show adequate proof that the arrangement isn’t in your child’s best interest, and that the court should reassign custody to you.

However, considering that a prior court already awarded your ex sole custody, this is a difficult standard to meet. Most custody challenges are not granted, and non-custodial parents should discuss legal strategies with an attorney before pursuing this expensive endeavor.

Step 4: Joint Custodians File for a “Move-Away” Order

California courts typically consider co-parenting arrangements to be “joint” whenever the non-custodial parent spends at least 45% of the time or more with their child. Where it’s less than 30%, the primary custodian is presumed to have sole custody.

If you and your spouse share joint custody, you will need to do more than just submit written notice. Instead, you will need to request a formal “move-away” order with the court—and this is true, even if you are the child’s primary residence.

But how does a move-away order differ from written notice? We’re glad you asked.

The Custody Reset Button

The best way to think about a “move-away” order, is to view it as a reset button.

If the court grants your request, this decision ripples down, affecting all aspects of your custody agreement. Hence, in a move-away situation you can’t simply redraw geographic boundaries. You have to reset the terms of your entire custody order.

This clean slate situation is riskier than you might think, because it essentially starts your custody negotiations over from scratch. It allows a judge to reevaluate your parenting abilities, and redistribute parental powers.

In other words: it might not go the way you want it to.

After evaluating the facts, a judge can just as easily decide to give the child’s other parent primary custody, as they can grant your move-away request. So it’s important to have strong, compelling arguments before bringing this type of petition to the court.

Step 5: Attend Your Hearing

The final step to moving out of state with your child is to attend a hearing, where your judge will evaluate all the evidence.

Unfortunately, there isn’t a formula for how courts deny and grant relocation requests. Instead, your judge will make the decision by weighing factors in your unique situation, which will likely include:

The reason for your move;
How far it is to the new location;
Your child’s relationship with both parents;
The parents’ relationship with each other;
What kind of burden the move would place on visitation rights;
The child’s need for stability;
The child’s emotional, educational, and medical needs;
If there’s a support system in the new location;
Whether there’s extended family in the new location; and,
Any other benefits the child would receive by moving (such as the security of a parent’s increased income).

This list isn’t exhaustive, and judges are free to include any relevant factors when deciding which course of action is in your child’s best interest.

At the end of your hearing, your judge will either accept or deny your request. If denied, you can probably still move, however, you’ll likely have to do it without your child (thereby giving up primary custody). If approved, the terms of your new custody agreement will be finalized into order, which you will file with your county clerk.

Parental Relocation Attorneys in California

If you have more questions about how you can move out of state with your child, we want to hear from you. Call the Maples Family Law team at (209) 989-4425, or get in touch online, and let help you move out of state with your child.

Divorce

Divorcing an Addict: What You Need to Know

October 12, 2019August 13, 2020
by Angie

Divorcing an addict is incredibly difficult. You may be struggling with guilt, confusion or even remorse after you make the decision to leave – but it’s your decision alone, and hopefully, you trust yourself enough to know that you made the right choice.

When you divorce an addict, you have to plan, prepare and muster your courage. It’s not an easy road, but in many cases, it’s an easier path to take than staying with an addict would be.

Divorcing an Addict: What You Need to Know

While many professionals can explain that there’s a spectrum of addiction, with some people being on both ends (functional and dysfunctional, but not in the way you’re probably thinking), you have to make the right decisions for yourself – and your kids, if you have them.

The ends of the addiction spectrum – functional and dysfunctional – are simply ways to measure how much harm the addict is doing to your family, other than just to him- or her-self.

Functional Addicts

Functional addicts can typically hold down a job, make a decent wage, and usually present themselves as normal, functioning members of society. Sometimes functional addicts binge-use drugs or alcohol, and often, they build up a tolerance so it’s tough to tell if they’re under the influence.

Dysfunctional Addicts

Dysfunctional addicts are generally the opposite of functional addicts. They may struggle to hold a job, have criminal records related to drugs or alcohol, or have a history of going to (and dropping out of) rehab programs. Some dysfunctional addicts are so caught up in drug or alcohol use that they’re at risk of dying every day; usually, their addiction is long-term. These addicts can be a danger to everyone around them, as well.

Divorcing an Addict: You Need Legal Counsel

For most people who are divorcing an addict, talking to a lawyer is an essential first step. Your attorney can help you determine how to proceed with a divorce, and she can tell you what kind of evidence you’ll need to gather in order to keep your children safe when it comes to child custody.

Divorcing an Addict: Be Ready to Follow Through

You should never threaten divorce unless you mean to follow through with it. That’s true in any situation – not just when you’re leaving a drug addict or alcoholic.

Unfortunately, many people threaten divorce thinking that it will make their spouse “come around” and quit using drugs or alcohol. Usually, it doesn’t work. An alcoholic or drug addict is suffering from a disease, so his or her refusal to get help and turn things around isn’t an indicator of how much they love their spouse – it’s just the way addiction works.

Divorcing an Addict: You May Feel Guilty

You, like many people, may feel like you’re abandoning your spouse in his or her worst moments. But the reality is that there is only so much you can do – and you have to keep yourself and your children safe. You cannot force an addict to get help or get clean. However, you can protect your family by leaving a toxic situation. Remember, too, that kids learn how to behave from their parents – and you don’t want your children to learn these behaviors or be even more at-risk for addiction.

Divorcing an Addict: Protect Your Assets

Unfortunately, it’s fairly common for an addict to spend all of his or her family’s money on the addiction. While you should never drain a joint bank account (doing so could get you into legal trouble), you should talk to your attorney about how you can protect your assets. If you don’t already have a separate bank account and your own credit cards, now is the time to establish them. You may need to remove your spouse as an authorized user on your credit cards, as well.

Are You Considering Divorcing an Addict?

If you’re thinking about divorce, or if your spouse has already filed, we may be able to help you.

Call us right away at (209) 546-6870 or get in touch with a Stockton divorce attorney online to schedule a consultation today.

Child Custody

What is Parentage by Estoppel in California?

July 27, 2019August 1, 2019
by Angie

If you’re like many people, you’ve heard the term parentage by estoppel – but what does it mean in California, and how does it affect your child custody case?

What is Parentage by Estoppel in California?

Paternity is often assumed in California. That means the courts assume that the person involved in the child’s life is his or her father. Cases in which the court assumes paternity include:

When the father was married to the child’s mother when the child was conceived or born.
When the father attempted to marry the child’s mother when the child was conceived or born, but something made the marriage invalid.
After the child was born, the father married the child’s mother and agreed to have his name put on the child’s birth certificate, or he agreed to support the child.
After the child was born, the father openly treated the child as his own.

That last one – where the father openly treats a child as his own – is called parentage by estoppel.

Parentage by estoppel doesn’t require a biological relationship. A father doesn’t have to be related by blood.

This is important to know if you’re working out a child custody agreement. Fathers who aren’t biologically related to a child may have rights when it comes to custody – and responsibilities when it comes to child support.

It’s called parentage by estoppel because once it’s established that the father held the child out to be his own, he can be held liable for child support.

What Does “Treating a Child as His Own” Mean?

A father who spends time with a child, or whose child calls him “Dad,” can be legally considered the child’s father. The adults in the situation hold out the child as theirs, and the father supports and fosters the relationship with that child.

The main idea behind parentage by estoppel is the child’s best interest. If a child has gone his or her entire life treating someone as a father – even if the person is not biologically related to the child – it’s typically best for the child to continue having that person as a father.

Related: Parentage in California

What About Establishing Parentage?

In California, a party can ask the court to establish parentage or sign a declaration of paternity form. This isn’t necessary when parentage is assumed (like in one of the situations listed above, such as when the father and mother are married when the child is conceived or born). However, it is necessary when the parents aren’t married – especially if the mother doesn’t want the father involved in the child’s life after a split.

Here’s an example:

Carrie and Bob aren’t married, and they break up before their child, Sarah, is born. Bob has to establish parentage if he wants to get child custody or visitation with Sarah. Otherwise, he has no claim to her.

If Bob doesn’t want to get custody or pay child support and denies that he’s Sarah’s father, Carrie has the right to ask the court to order him to submit to genetic testing.

Rights and Responsibilities After Establishing Parentage

When parents have been established legally, they have the following rights and responsibilities:

The right to request parenting time
The right to request custody orders
The responsibility of paying child support
The responsibility of paying healthcare costs (in some cases)
The responsibility of paying child care costs (in some cases)

Parentage by Estoppel in California

Even if a father has openly treated the child as his own, it’s often still a good idea to establish parentage. (Again, though, it’s not necessary if the parents were married or parentage is otherwise assumed.)

Do You Need to Talk to a Lawyer About Parentage by Estoppel in California?

If you’re going through a divorce, or if you need to talk to a lawyer about parentage by estoppel in California, we may be able to help you. Call us right away at (209) 546-6870 or get in touch with a Stockton divorce attorney online to schedule a consultation today.

Child Custody

Does Adultery Affect Child Custody in California?

July 22, 2019March 23, 2020
by Angie

If you’re like many people going through divorce, you have a lot of questions – and one of them is Does adultery affect child custody in California?

Adultery – what it’s called when one person “steps out” of a marriage by being unfaithful – isn’t supposed to affect your divorce. In fact, California is a no-fault divorce state. That means you don’t have to have a reason for divorcing, and the courts can’t use fault to determine things like child custody in most cases. (We’ll get to those exceptions later.)

Here’s what you need to know.

Does Adultery Affect Child Custody in California?

The state of California recognizes that it’s in kids’ best interests to have healthy relationships with both parents. (That’s true even if you have a low opinion of your spouse because he or she cheated on you.) The courts won’t say, “Well, you cheated, so you can only see your kids every other weekend.”

Here’s the deal, though. If one spouse’s infidelity during the marriage changed his or her fitness as a parent, the courts can use it to rule on child custody. But being an “unfit” parent is a big deal, and courts don’t throw that around lightly. The fact that he or she cheated – while it did destroy your marriage – doesn’t mean that the courts will see your spouse as an unfit parent.

Related: Is adultery illegal in California?

Your spouse would have to do something that seriously changed his or her ability to parent, like engage in sexual acts with the other party in front of the kids. The adultery could also affect custody if the new partner abuses the children, for example. If the affair changes your spouse’s living arrangements in a way that wouldn’t be good for the kids (like if he or she moved into a studio apartment with the paramour, and there aren’t any beds or sofas for the children to sleep on), the courts would rule based on what’s best for the kids.

Your Kids’ Best Interests

It’s important to remember that the courts will always put the kids’ best interests first. In cases like those, there’s no way to predict how a judge will rule – but the courts definitely have options. A judge might:

Restrict one parent from seeing the kids except when he or she is supervised
Say that the kids can’t have overnight visits with one parent
Come up with any remedy that puts the kids’ needs first

The bottom line is that even though adultery may have destroyed your marriage, it won’t affect child custody unless it has changed your soon-to-be ex-spouse’s fitness as a parent.

It can, however, affect other aspects of your divorce.

Adultery and Divorce: What Does it Affect?

Adultery can have a minimal impact on other aspects of your divorce, but only in limited circumstances. For example, it may affect property distribution and alimony.

How Adultery Can Affect Property Division

When one spouse spends marital money – which is community property – on an affair partner, and when the other spouse can prove it, the courts may order the big spender to repay half of what he or she spent. This can be very difficult to prove, so without a paper trail, you may not be able to show the court how much your spouse spent on the affair partner. Even if you just suspect that your spouse spent money on the affair partner, though, you should let your Stockton divorce attorney know. Your spouse could be hiding money or accounts, which he or she is legally required to disclose during divorce.

How Adultery Can Affect Alimony

In some cases, the courts order one spouse to pay the other alimony. Known as spousal support, this money is supposed to help a lower-earning spouse get back on his or her feet. Several factors go into a judge’s alimony decision, and one of them is the lower-earning spouse’s living arrangements. If your spouse cheated on you and is now living with the affair partner, you may not owe him or her as much alimony as you ordinarily would – after all, there’s someone else living there that can help pay the bills and provide support.

Who Pays for Divorce if Adultery is the Cause?

You can ask the court to order your spouse to pay your legal fees related to divorce, but not because he or she cheated on you. Section 271 of the California Family Code allows the court to order one person to pay another person’s legal fees if that person doesn’t have enough money to pay his or her own legal fees. Sometimes judges can order one spouse to pay the other’s legal fees without need, too, such as when one party keeps trying to drag the other back to court needlessly.

How Do You Prove Infidelity During Divorce?

In California, there’s typically no need to prove infidelity. It won’t impact the outcome of your case (unless your spouse spent all your family’s savings on his or her affair partner, or your spouse engaged in lewd behavior with a paramour in front of your children, that is).

If you believe that your spouse’s cheating will have an impact on your divorce, you’ll need to provide the court with evidence. That could include credit card statements or bank statements that show how much money your spouse spent on the other party, or proof that your spouse (or the affair partner) behaved improperly in front of your children. The behavior has to be extreme, though – as upset as you may be that your children stayed the night with your ex at the same time his or her affair partner did, that alone probably isn’t enough for the adultery to affect your divorce.

Is Adultery Punishable by Law in California?

While adultery is against the law in some states , it’s not illegal in California. As a result, someone can’t go to jail for cheating on a spouse. However, there are other ways that adultery can affect a person going through a divorce, such as property division and spousal support (both of which are discussed above). But remember: California is a no-fault divorce state, which means that a judge is unlikely to consider a person’s infidelity unless he or she spent family money on a paramour (and the jilted spouse can prove it) or if it directly affected the children in a negative way.

So is cheating a crime in California? No, it’s not. However, it can affect divorce in multiple ways.

In What States Can You Sue Your Spouse for Cheating?

Alienation of affection is recognized in a handful of states:

Hawaii
Mississippi
New Mexico
North Carolina
South Dakota
Utah

How Do You Salvage a Relationship After Cheating?

There are many people who believe you can’t salvage a relationship after cheating – but on the other side of the coin, there are people who believe you can. If you’re interested in saving your marriage, you may want to talk to a divorce therapist near you about what to do next. Unfortunately, there’s no one-size-fits-all solution for everyone. Even more, both of you must be willing to salvage your relationship and commit to the idea that you need to create a “new normal.”

Can I Sue My Wife’s Lover in California? (Or My Husband’s Lover?)

Some states do allow you to sue your spouse’s paramour for alienation of affection… but California isn’t one of them. There aren’t any “homewrecker” laws in our state. Although you’re heartbroken over what happened, you’re not going to find justice for your spouse’s moral issue in the court system.

This might really work out in your favor, though. To sue your wife’s lover (or your husband’s lover), you’d have to have concrete proof that he or she cheated on you. Finding that proof can cause more heartbreak than it’s worth.

Remember: You don’t need to prove that someone is at-fault for your divorce in California. You just need to let the court know that your marriage cannot continue because you have irreconcilable differences.

Do You Need to Talk to an Attorney About How Adultery Affects Child Custody in California?

If you’re going through a divorce, or if you need to talk to a lawyer about how adultery affects child custody in California, we may be able to help you. Call us right away at (209) 546-6870 or get in touch with a Stockton divorce attorney online to schedule a consultation today.

Child Custody

What is the Best Interest of the Child in…

July 17, 2019July 17, 2019
by Angie

What is the best interest of the child in California? If you’re like many people, you’ve heard that phrase before – but what does it mean, and how does it apply?

Here’s what you need to know.

What is the Best Interest of the Child in California?

When you hear the term the best interest of the child, it’s generally about child custody. When the courts have to make a determination on custody, such as where a child will live and which parent will make important decisions about the child’s life, the judge has to look at what’s best for the child.

The courts recognize that children’s health, safety and welfare are the most important things. The courts also recognize that kids benefit from frequent and continuing contact with both parents.

Some of the factors the courts will look at when determining the best interest of the child in California include:

The child’s age
The child’s health
The emotional ties that each parent shares with the child
Each parent’s ability to care for the child emotionally, physically or financially
Whether there’s a history of family violence or substance abuse
The child’s ties to home, school and community

Ultimately, what’s best for the child will win the day in court.

The Best Interest of the Child in California: Full vs. Joint Custody

California custody laws provide parents with the opportunity to work out their own custody agreements. As long as the agreement the parents reach is fair to everyone involved – and especially to the children – the judge is likely to sign off on it. However, sometimes the courts have to intervene and make a determination on custody on their own. This can happen when the parents simply cannot agree, even with mediation, or when the court has information that shows a certain arrangement would be better for the kids involved.

There are two main types of custody: legal and physical.

Legal custody refers to a parent’s authority to participate in major decisions about the child’s health, education and welfare.

Physical custody refers to the child’s physical presence with a parent.

Most parents share legal and physical custody – that’s called joint custody. However, in some cases, only one parent has legal custody. Sometimes only one parent has legal and physical custody, too. Usually, that happens when:

It’s in the child’s best interest for only one parent to have those rights and responsibilities
The parents have proven to the court that they are unable to make decisions together
One parent is unfit
One parent is incapable of making decisions or of caring for the child

Modifying Custody Because it’s in the Child’s Best Interest

Sometimes the court will enter an order when parents split up, but later, the order stops working as it should. For example, if the parents are supposed to share physical custody of the child, but one parent moves across the country, the custody order will need to be modified. Another example might be if one parent is putting the child in a dangerous environment, or if he or she is failing to properly care for the child.

Custody orders can be modified, but you’ll have to ask the court to agree to a new plan. Your attorney can file the appropriate petitions and walk you through the process.

Do You Need to Talk to an Attorney About Custody and the Best Interest of the Child in California?

If you’re going through a divorce, or if you need to change your custody agreement, we may be able to help you. Call us right away at (209) 546-6870 or get in touch with a Stockton divorce attorney online to schedule a consultation today.

Divorce

Is Adultery Illegal in California?

July 12, 2019August 4, 2020
by Angie

Is adultery illegal in California? Many people whose spouses have cheated ask us that question – and the short answer is no. Adultery isn’t illegal in California, but it can affect some aspects of your divorce.

Here’s what you need to know.

Is Adultery Illegal in California When it Comes to Divorce?

Divorce is a civil proceeding, not a criminal one – which means you can’t say that adultery is “illegal.” However, it can make an impact when you divorce a cheating spouse.

Where is Adultery Illegal?

Most laws prohibiting adultery are gone, but in a few states, there are still laws on the books. They’re generally unenforced because they’re archaic, and many include language like “criminal conversation.” (They used that term because it was too risqué to say “sex.”)

States with laws against adultery, as of this writing, include:

Alabama	Arizona	Florida	Georgia
Idaho	Illinois	Kansas	Maryland
Massachusetts	Michigan	Minnesota	Mississippi
New York	North Carolina	Oklahoma	South Carolina
Utah	Virginia	Wisconsin

In most of these places, the laws are unenforced and haven’t been updated in years. For example, if you’re actually prosecuted for cheating on your spouse in Maryland, the fine is a whopping $10. However, in other states, such as Massachusetts, Idaho and Michigan, adultery is a felony.

If Adultery Isn’t Illegal in California, What Impact Does it Have on Divorce?

While California is a no-fault divorce state – meaning that you don’t have to give the courts a reason (like adultery) in order to get a divorce – it can have a small effect on your divorce. However, that only applies in very specific situations.

A judge cannot make your spouse pay you extra alimony, for example, because he or she cheated during your marriage.

The only time it matters to the court that you were married to someone who was unfaithful is if your soon-to-be ex-spouse spends money on a paramour or the affair directly affected your children (other than by causing your divorce, that is).

Money and Affairs: Adultery Isn’t Illegal, but it Can Be Costly

If your spouse blows your family savings account on a girlfriend or boyfriend while you’re married, you have every right to be angry – and you may have legal recourse, because there’s a good chance that some of that money belonged to you. You and your spouse equally own the money that came into your marriage while you were together (with the exception of gifts and inheritances intended only for your spouse).

Although the judge can’t order your spouse to pay you extra alimony or give you more property, he or she can make your spouse reimburse your marital estate. However, you’ll have to prove what your spouse spent and that he or she spent it on an affair partner. That might be easy to do if you have credit card bills and other ways to build a paper trail, but it can be nearly impossible if you don’t.

If your spouse did spend your money on his or her affair partner, make sure you let your attorney know.

What About When Legal Adultery Affects Your Kids?

It’s extremely unfortunate that your spouse’s cheating ended your marriage, but it won’t have any effect on child custody.

Unless, of course, the affair changed the cheater’s fitness as a parent. For example, if your spouse engaged in sexual acts in front of your kids, or if he or she worked with the affair partner to disrupt your relationship with them, you could have legal recourse.

Is Adultery Legal in California? No, But You Don’t Have to Stay With a Cheater

While adultery isn’t illegal in California, it’s the cause of many marital break-ups. If your spouse cheated on you and you want to explore your options, we can help you.

Call us at (209) 989-4425 or get in touch with us online to talk to a lawyer who can help today. We’ll help you with every aspect of your divorce, from child custody and child support to alimony and property division. We can also refer you to a divorce therapist who can help you work through the emotions you’re experiencing.