Archive for the ‘ Child Custody ’ Category

When Domestic Violence Affects Custody In California

Posted on: August 19, 2019 by in Child Custody, Divorce, Domestic Violence, Family Law
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If you have a domestic violence case, you might be wondering how it will affect your child custody right if you live in California. Is there a possibility you could receive less child custody because of the charge? That is why you should consult with a Cerritos divorce attorney so that you’re not leaving anything to chance.

It’s The Judge’s discretion 

According to California Courts, it is up to the judge to decide if domestic violence is an issue with the ongoing family case. If it is an issue, there are some rules that the judge must abide by when determining the custody of the child. There are two instances where the judge could treat the case as a domestic violence charge.

The first instance is when you’ve been convicted of a domestic violence charge in the last five years. The second instance is when the court determined that you committed domestic violence against the other parent or the child.

In case the judge determines that it is a domestic violence case, it will be impossible for you to be legally granted joint custody. You might get visitation rights depending on the circumstances of the case. You could be granted custodian rights by the judge if you’re able to prove:

  • That having joint or full custody is in your child’s best interest
  • You’ve successfully completed a 52-week batterer intervention program
  • Comply with the terms of the probation or parole
  • Comply with the rules of the restraining order
  • Successfully completed a court-ordered parenting program
  • Successfully completed a court-ordered substance abuse program

In addition to meeting the above mentioned requirements, you’re expected to refrain from committing future acts of domestic violence.

Your state might not have the presumption of domestic violence built in the statute. This because domestic violence could impact the decision of child custody based on moral presumptions. There are not a lot of judges who will be willing to give custody to a parent who has been violent to the partner or child.

Domestic Violence Offenders Will NOT Get Primary Custody

If there is a history of domestic violence, there will be a “moral presumption” that the abuser should not be given the right to be the primary caregiver of the child. This could also be the case if the violence is not directed towards the child but occurs when the child is present. The court will still be reluctant because of the violence the child is exposed to and might grow up with issues as well.

The domestic violence charge could also have an impact on determining the child custody of victims. A good example is when you’ve been divorced with your spouse for more than two years and you’ve found a new lover. You start living together. Your spouse temper flares and you start getting abused in front of the children. In such a situation, you’re not only a victim but also a parent. Your ex could file a petition to obtain custody of the children if they come to learn of such a predicament. This will be filed on the basis that you’re unable to protect the children from third parties.

Even though domestic violence should never be taken lightly, there are some parents that can fabricate details in order to have an advantage on the child custody hearings. In such a situation, the parent will seek a restraining order because of the domestic violence accusation.

A temporary restraining order will require a much shorter notice given the urgency of the case. The accused might have time to appear in court in order to defend himself or herself. A default order will then be awarded to the parent because the accused party will have failed to respond to the allegations in time.

It doesn’t matter if the state you live in has already adopted the domestic violence presumption, a domestic violence case will definitely affect the child custody dispute. There is a possibility that strong bonds could be formed by the child to the abusive parent as a survival technique. This kind of bond is usually referred to as Stockholm Syndrome which is described as a powerful connection that the oppressed develops for the oppressor.

The negative effects of children witnessing domestic violence are not likely to disappear quickly especially if they’re constantly exposed. According to statistics, children who come from homes where there is domestic abuse are more at risk of health problems when they become adults.

There is a common myth that non-abusive parents can’t lose custody. This is not always true, especially if the accused has a compelling case. The victim might be suffering from post-traumatic stress and might not present themselves well in court. The problem could be compounded when there is no proper legal counsel. This could lead to loss of custody to the abusive parent.

Definition of Domestic Violence in California

According to the laws of California, a person could be accused of domestic violence if he or she acted recklessly or intentionally caused bodily or sexually assaulted the partner. It could also apply in situations where the victim feels that physical harm is imminent. Domestic violence may include:

  • Hitting or striking
  • Threatening
  • Disturbing the peace
  • Destruction of personal property

According to California law, it is presumed that the abuser should not have custody of the children if there is enough evidence to show domestic abuse. Even though it might not interfere with visitation, getting custody is a different ballgame. The accused should take classes on what is presumed to be the root of the problem before thinking about filing for custody. There is no guarantee that the custody will go in their favor even after taking the recommended classes.

False accusations are rare but that doesn’t mean it can’t happen. If you ever find yourself in a predicament, you will need an experienced family attorney to help with your case. You can reach out to the Law Offices of Paul J. Duron if you’re looking for experienced attorneys to help out with your case. Call us today to book an appointment.

Who Gets Custody If the Parents Are Unmarried?

Posted on: July 20, 2019 by in Child Custody, Divorce, Family Law
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Not all parents will be married when they have a child. There are occasions when getting pregnant is not enough motivation to walk down the aisle. The discussions about child custody can get very complicated when the parents are unmarried. That is why it is important that you look for a Norwalk divorce lawyer if you ever find yourself in such a situation. Have you ever wondered what would happen to your kids if you split up with your spouse when you’re not married?

There are legal implications to such a scenario and who gets the children will depend on a couple of factors. Is there a possibility that both parents could have an equal chance of having custody over the children? There is no clear answer to this question as it will depend on the circumstances of the case.

Fathers Establishing Paternity

As a father, you might be required to establish paternity of the children. From a general perspective, a father and a mother will share equal rights when it comes to child custody unless there is an issue with domestic violence. A father will have to go through a few extra steps in order to get full parental rights. The process of identifying a child’s legal mother is straightforward with no complications.

Fathers don’t give birth and there is a chance that the woman might have been intimate with someone else while still cohabiting with the alleged father of the children. As a result, there could be questions raised if the man is truly the biological father of the children.

Why Establishing Paternity is Necessary

A mother could make it harder for the man to gain child custody if the paternity is in question. The man might not be granted custody if he is not the biological father of the children. A man could also use it as an excuse to avoid paying child support if the paternity is unclear.

Establishing Paternity in California

There are two distinct ways of establishing paternity in California and this through court order or the declaration of paternity.

Declaration of Paternity

In order to establish paternity, it doesn’t necessarily mean that there is an argument or a fight. If both the parents are sure that the man is the father, they can sign a Voluntary Declaration. The form is usually signed at the hospital when the child is born. The father will be presumed to be the biological father of the child if both parties agree on the fact.

Genetic Testing

A genetic test might be ordered by the court if there are disagreements between the two parents. The court might require that the father go through a genetic test if:

He doesn’t have a Declaration of Paternity

Either of the parents has requested a visitation order, child custody, and child support.

A man can also decide to take a DNA test just to confirm he is the biological father of the child.

Same-Sex Couples

Same-sex couples are also not obliged to be married in order to have children together. It will be necessary for one of the parents to petition the court in establishing that they are the lawful parents of the child. This will mean that the couple has to establish they intend to be the child’s parents and also act in a manner to suggest so. It is only after the court legally recognizes the parents will they be able to enjoy the full benefits of having children.

Equal Rights to Custody

If all factors are held constant, both parents will have equal rights to custody over the child. This will happen when there is no question with the paternity of the father. The parents will have to agree on a custody arrangement that works for them. The court is usually involved when both parents can’t seem to agree on the details of the custody. The court will act as a mediator if the unmarried parents can’t seem to agree. If the mediation is not successful, the court will make a decision with the child’s best interest at heart. The custody could be taken away if one of the parents is abusing drugs or is involved in a domestic violence case.

Factors that Determine Custody and Visitation

In case of a contest, the court will be forced to look at a couple of factors before making a determination. The time spent with the child and the level of being involved in the child’s upbringing will significantly impact the custody and visitation rights. A court will not want to deprive someone of their rights unless it is completely necessary. Other factors that could be used in the determination of the case include:

Residence of the Parent: A child needs to be as comfortable as possible with the place residence. Will also include the surrounding community and school.

Moral Character: The moral character of each parent is analyzed when looking at who should get custody over the children. The parent needs to treat the child with respect and provide a safe environment that is nurturing and supportive.

Financial Status: The financial status of each parent is called into question when looking at who gets custody of the child. A parent needs to prove that he or she can properly take care of a child from a financial perspective.

In case the parents are not married, it will be in the best interest of the child that the parents remain friendly and amicable when deciding the custody. If there are no issues, both the parents have equal rights and it is something that can be worked out without involving the family court. It is good that you put your ego aside for the wellbeing of the children. Sometimes one parent could be difficult to reason with and there will be no other option but to involve in the court. You should also make sure you’re getting a good family lawyer to represent you.

What Should be Included In Your Parenting Plan

Posted on: June 26, 2019 by in Child Custody, Child Support, Divorce, Family Law
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Divorce is never going to be easy and it gets complicated when kids are involved. You might be amicable with your ex but it will be challenging to agree on the details of the child custody rights. That is why it is important that you look for a good family law attorney in Anaheim so that your interests are well represented in a court of law. 

At the Law Offices of Paul J. Duron, we understand that you want what is best for your child without compromising on the legal situation. We help you in creating a parenting plan that will cover all aspects of the present and the future.

In order to prevent anything bad from happening with the plan, you need to be fully prepared. We’re going to highlight what a good parenting plan should cover so that you’re well aware when trying to get custody of your child.

Living Arrangement

This perhaps the most important part of the parenting plan. The child needs to be as comfortable as possible with the living environment. Will the child live with one parent or will have to be shifting between two homes because of the separation? When looking at this scenario, the geographical considerations will come into play. You will have to consider the movement of the child between homes and the effect it might have. A parent might decide to move away to another city. Both the parents will have to iron out who gets to stay with the child. In case of a disagreement, the court might have to be involved.

The parenting schedule could also have an effect on the living arrangement. One parent might not be readily available because of work commitments.

Vacations, Holidays, and Special Occasions

Arrangements for holidays and special days will have to be put into consideration when coming up with the parenting plan. Both parents have to be on the same page as this could get tricky because each one wants to spend time with the child. It will be better if such days are spent together as a family so that the child is not faced with the dilemma of having to make a decision.

No Bad Mouthing

This is something that often gets overlooked yet it should be talked about for the sake of the child. A marriage doesn’t always have to end when both parties are not in talking terms. Even if you’re not in talking terms with your ex, the children have the right to have a relationship with them. There should be a provision in the parental arrangement that gives the children exclusive rights to have the affection of both parents without being influenced. The parties have to make an agreement that neither of them will take an action that will estrange or discredit the parent in the eyes of the child.

Haircuts

One of the biggest challenges with child custody is that you will only be with your children for some time and not all the time even if you wish to do so. This means that you will sometimes miss some important milestones in their lives. This does not mean that your ex has all the rights of raising the children. There should be a clause in the parental agreement that limits one spouse from making all the major decisions on behalf of the child. This could affect things like a haircut for example. Neither the parent has the legal right of substantially altering the appearance of the child without a legal consent form the other party. The idea behind the arrangement is to ensure that neither the parent is making an extreme decision that involves the child.

No Time Stealing

It is not uncommon to have negative feelings and thoughts even after the divorce has been long concluded. There are occasions where a parent might try to hurt the other using emotional manipulation and involving the child in the process.

One of the tactics that are used is a parent could try and schedule for activities with the child when it is the other parent’s turn to be with the child. This could lead to conflicting scenarios for the child because he or she will be faced with the dilemma of choosing between two parents. The parental agreement will be clear on what a parent can and can’t do when it comes to spending time with the child.

Itemize Some Expenses

There should be a detailed breakdown of how the child support is going to be spent in the parental plan. One thing a good and responsible parent can do is separating health care insurance form the child support payment. There are some states where the two are individual costs are addressed separately in the child parenting plan. Make sure you’re having a good attorney because some expenses can overlap and you might not be sure is to be included in the parenting plan.

Handling Technology

Children are spending a lot of time in front of their phones. As parents, you need to decide on the details and restrictions. There should be a provision in the plan that outlines the use of electronic devices by the children. It is not really a common provision that most parents will remember to include but doing so will help in preventing disagreements in the future.

Avoid Court

As parents, it will be in the best interest of the child to avoid court if it is possible. When you go to court, it means there is a disagreement that can’t be settled amicably between the two of you. There should be a provision in the parenting plan that advocates the use of a third party for mediation before the matter can be taken to court. Parents who use coordinators will avoid the courts. If you can’t seem to agree on the details, the court will have to be involved. This means that you to look for a good family lawyer to help you will the case.

Child Custody In Same-Sex Divorces

Posted on: January 17, 2019 by in Child Custody
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holding hands

As Cerritos child custody lawyers, we know the rules for a divorce are the same whether you are in a same-sex marriage or a male-female marriage. Child custody battles, however, can be quite difficult – and quite emotionally wrenching – when a same-sex couple seeks to divorce.

Speaking frankly, if you are divorcing a same-sex partner in this state, and if you are a parent of one or more children, you will probably face some tough challenges. The law in California – both on paper and in practice – can sometimes be quite unfair to same-sex spouses.

If you are divorcing or anticipating the dissolution of your same-sex marriage, and you expect a dispute regarding child custody, keep reading. This is a brief introduction to the rights of both parental and non-parental same-sex spouses in a California child custody dispute.

You will also learn where to find the trustworthy legal advice and representation that you are very much going to need in a California same-sex divorce, a child custody battle, or any other matter of family law in this state.

SHOULD YOU TRY TO COMPROMISE WITH YOUR SPOUSE?

If you are fighting for a child’s custody, it is imperative to do everything possible to find common ground. If you and the spouse you are divorcing can agree to compromise, you can avoid a contentious courtroom battle, you’ll save some money, and it will be better for the child.

parent and kid holding hand

First, you should try to settle a child custody disagreement by talking together, perhaps with a counselor, or by seeking mediation. Family courts in this state order mediation in child custody cases anyway, and a child custody case becomes a trial in this state only if mediation fails.

WHAT QUESTIONS MUST BE ANSWERED IN A CHILD CUSTODY CASE?

If there is any way for you to avoid a courtroom child custody battle, avoid it.

Try to work with your spouse to resolve these questions:

  • Who will have legal custody of the child and make decisions about the child’s education, healthcare, and religious teaching?
  • Who will have physical custody of the child and provide the child’s residence?
  • What will be the terms and conditions of visitation for the parent who does not have physical custody?
  • How much child support will be paid by the non-custodial parent?

ARE BOTH SPOUSES LEGAL PARENTS?

In a same-sex marriage here in California, both partners may be the legal parents of a child for any of these reasons:

  • The child was born into a marriage, civil union, or domestic partnership in a state where that relationship gives parental rights to nonbiological parents.
  • The nonbiological parent adopted the child.
  • You both adopted the child.

WHAT DO THE COURTS CONSIDER IN CHILD CUSTODY CASES?

In California divorces where both same-sex parents have equal parental rights under the law, child custody disputes are (or should be) handled no differently than these disputes are handled in any other divorce.

When a child custody dispute comes before a California family court, the judge will take into account a number of factors, but the final determination must be based on what is in the best interests of the child.

law books and gavel

When both spouses are a child’s legal parents, California courts prefer joint custody – whether by mutual agreement of the spouses or by a court order. Sole custody is ordered only if a family court judge is convinced that sole custody is in the best interests of the child.

In any case that involves a child, the court’s highest priority is that child’s best interests, and all other considerations will be considered secondary.

WHAT IF ONLY ONE SPOUSE IS A LEGAL AND BIOLOGICAL PARENT?

If only one of the spouses in a same-sex marriage is a child’s legal and biological parent, the case is handled differently. In some states, the non-parent in a same-sex divorce has no rights and may not seek custody or visitation.

But in California same-sex divorce cases, family courts have recognized the parental rights of a non-parent on the basis of that spouse’s intentions or that spouse’s established an ongoing relationship with a child.

The courts in California will not block a non-parent spouse in a same-sex marriage from seeking a child’s custody or seeking visitation privileges. As mentioned previously, all custody disputes that come before a court will be decided by what is in the child’s best interests.

WHY IS A FAMILY LAW FIRM’S HELP SO IMPERATIVE?

The facts and details of a child custody dispute will be closely scrutinized by the court. In some circumstances, a same-sex spouse may even seek sole legal and/or physical custody of the child. Every case is decided on the basis of its particular details and the best interests of the child.

dad and kid together

In Southern California, before you make a final decision or take any irrevocable action regarding your child or children, you must be advised by a family law attorney. Do not wait. Make the call as soon as you know that a divorce or a custody battle is unavoidable.

Divorce is never easy under any circumstances. A same-sex divorce is no easier than any other, but if you can find common ground and areas of agreement, a divorce will be somewhat less difficult and emotionally draining.

WHAT ELSE DO SAME-SEX SPOUSES NEED TO CONSIDER?

If you are the only legal parent in a divorce, and if you genuinely believe that visits with your ex-spouse are not in your child’s best interests, you have a right to try to prevent those visitations, but you may need some evidence and testimony that will demonstrate your belief to the court.

Even if both legal parents are named on a child’s birth certificate, a same-sex spouse who is not biologically related to a child should consider a legal adoption. If any child custody dispute emerges, adoption establishes legal parenthood – while a birth certificate can be disputed.

child custody

Even if a spouse has not established legal parenthood, if that spouse has in fact acted as a parent, he or she may have custody rights. As mentioned previously, the details of each case will be considered, so you’ll need a reliable family lawyer’s personalized legal advice.

An experienced Cerritos family law attorney can make all of the difference – and can make a family law dispute just a bit easier to deal with – but you must have your attorney’s advise and representation from the very beginning of the legal process. You have that right.