Thursday, June 14, 2007
Grandparent rights is one of the most confusing and emotional areas in family law. Parents rightly feel they should be able to raise their children as they deem appropriate. Grandparents feel that when they have invested significant time and love into their grandchildren, the custody should not be ripped away. These two central and opposing philosophies form the basis for the California law on grandparents' rights.
There are three different ways that a grandparent can acquire legal rights of his or her grandchild. The first, and most common, is through a guardianship action. A guardianship replaces the parental role. When the family court establishes a guardian in a child's life, it takes away all custody rights from the child's mother and father and gives those same powers to a third person, called a guardian. A guardianship gives all custody rights and responsibilities to the guardian, and the parent is given the custody rights of a stranger.
A guardianship action is an extreme measure. California courts will only establish a guardianship as a last resort. The court must find that awarding custody of a child to either parent is detrimental to the child. Normally, the guardian must prove satisfactory evidence that the child is abused or neglected in some way. In addition, if the child is over the age of 12 years, that child must approve the guardianship. The older the child is, the more voice that child has in who will care for him or her. Although the courts must always find that placing the child in the custody of a parents will be detrimental to the child, sometimes this can be established simply by showing to grant custody to a parent will cause a traumatic disruption in the child's life.
For instance, a few years back, we had a case where the child was 14 years old. She had lived here entire life with her step father. The mother was in and out of the child's life and the biological father had no relationship with the child. When the child entered high school, the mother decided the step father was no longer a positive influence on the child. Mother removed the child from the step-father's custody, who provided the only home the child ever knew. Mother assumed sole custody and cut off all contact between the child and her step-father. The child nominated the step-father for a guardianship. The step-father received guardianship based upon the child's strong desire to live with him. The court found that is was psychologically detrimental for the child to remain in the custody of her mother.
In addition to obtaining custodial rights through a guardianship, a grandparent can obtain visitation rights through a family law court action. While a guardianship is litigated in probate court, a grandparent visitation action is litigated in family, sometimes called divorce court. However, in family court, a grandparent can only obtain visitation rights, and cannot obtain full-time custody of his or her grandchild.
There are two different ways that a grandparent can establish a visitation schedule in a family law action. The first is by filing his or her own independent lawsuit, and the second is by obtaining visitation rights while a divorce or paternity action is being litigated between the parents. Although the legal procedures are different in establish grandparents' rights in each action, the basic requirements are the same.
First, the grandparents must show that they previously played a significant role in the grandchild's life. This can be easily shown where the grandchild lived in the home of the grandparents for a significant period of time. It can also be done where the grandparents provided significant emotional support to the grandchild by taking on some of the parenting duties for the child. Essentially, the grandparents must show that an emotional bond between the child and the grandparents has been established.
Secondly, the grandparents must show that a continued relationship between the child and the grandparents is in the best interests of the child. However, if the parents have joint legal custody of the child and object to the grandparent visitation, it is presumed that visitation is not in the best interests of the child. Where one parent has sole legal custody of the child and that parent objects to the grandparent visitation, it is again presumed that visitation is not in the best interests of the child.
Thirdly, there has to be some reason that the grandparents cannot visit with the child while the child is in the physical custody of the grandparents' natural child. For instance, one parent is deceased, one parent is incarcerated, or one parent has no contact with the child, or one parent is otherwise prevented from having a relationship with the child.
Finally, if grandparent visitation is established, it cannot be a basis to prevent the parents from relocating his or her residence in a move away case.
This is a very simplified version of the rights of a grandparent when it comes to custody and visitation of a grandchild. The bottom line is that if a grandparent wishes to obtain custody or visitation rights of his or her grandchild, it may be possible under California law. However, the grandparent should first consult with an experienced family law or divorce attorney before proceeding. The custody laws in this area is complicated and confusing, and is filled with many pitfalls.
If you live in the Temecula, Murrieta, Hemet or Riverside areas of Riverside County, California and have any questions about obtaining either custody rights or visitation rights through a grandparent rights case, please feel free to contact our office to set up an appointment with a family law lawyer at: (951) 816-9543.
Otherwise, for more information, please visit our websites at: Temecula Lawyer, Family Law in Temecula, and Riverside County Family Lawyer
Tuesday, June 12, 2007
Dear Famularo & Associates:
The father of my child got out of prison about a year ago and he was in school for a while. He lives in Washington State and that's where my support order is. He is supposed to pay me $50 a month. I don't even get that. I know he is working for his uncle and living with his parents and that he can pay more. I am a single mother. I go to school and I don't make much money. I need to get my child support order modified and I need to get it enforced. I only want what is fair. Is there anything someone with limited resources like me can do to get this done? I can't afford a child support attorney and the county agency I went to for help was able to get arrears owed to them enforced, but they aren't going to pursue my portion of it because he told them he doesn't work and they took his word for it.
KG in Temecula
Unfortunately, you have a number of problems with your case. You really need to consult with an experienced divorce or family law attorney to sort things out for you. The first issue is that your child support order is in Washington and you live in the state of California. You need an attorney to review your child support orders and to help determine whether a new child support order can be established in California, or whether you have to return to the state of Washington to attempt to increase your child support.
The second issue is that it sounds like your ex is working under the table. If this is the case, and your ex is receiving payments in cash, it is virtually impossible to prove what he is actually earning. I do not know the child support laws in the state of Washington, however, in California the family court would impute income to your ex. This simply means that the family law court would base your child support, not on what your ex is actually making, but on his ability to hold a full-time job at minimum wage. Thus, the court would order him to pay you at least some child support (guideline child support in California would only be about $270.00 per month in a situation similar to yours).
The third issue is that the local child support agency does not seem willing to help you. Normally, in a case where the custodial parent (i.e. the parent who has custody of the child) has limited financial resources, that parent would look to the local child support department to help obtain a fair court order. For whatever reason, the local child support agency does not seem willing or able to help.
Finally, you have limited financial resources. You do not have the funds to hire a family law attorney in Washington, and you probably don't have the ability to travel to Washington to file the court documents yourself and then attend court on your own. The question you need to answer is whether you will be able to collect child support over time to make it worth your while to pursue an increased child support order?
In the state of California, there is a free office at the courthouse, called the court facilitator, who can help you fill out any court paperwork associated with obtaining a child support order. I do not know what resources are available to you in the state of Washington, and even if you were able to get help filling out and filing Washington child support paperwork, it would still require you to travel to the state of Washington for the court appearance.
It seems to me that you need to see if there is some basis to file a new lawsuit in the state of California which will allow California to establish a new child support order. It sounds like you and your ex were never married. If that is the case, you should be able to file a new paternity suit here. If so, you could have the court facilitator in Riverside County help you fill out the paperwork to start a new paternity suit, you could then serve your ex by certified mail, return receipt requested in the state of Washington, and go to court here in either Hemet or Murrieta to obtain a new child support order. Once you get a new child support order, though, you have to enforce it. If your ex is working under the table, this will be difficult to do, and will require the cooperation of the state of Washington Department of Child Support Services.
Famularo & Associates
If you live in the Temecula, Murrieta, Hemet or Riverside areas and have any family law related issue, including any questions concerning divorce, child support, child custody, visitation, paternity, annulment, legal separation, division of property, domestic violence or spousal support, please call our office to set up a free consultation at: (951) 816-9543.
Otherwise, please visit our websites at Temecula Divorce, Riverside Divorce, or Temecula Family Law
Saturday, June 9, 2007
Custody information provided by a family law and divorce attorney serving the Temecula, Murrieta, and Hemet areas of Riverside County, California.
Custody battles are difficult. Whether custody includes a divorce or a paternity matter, the process and choices are same. This blog is written to help parents understand the court process in child custody cases. Set forth below is the general information about a California custody battle:
- Get a Good Family law Attorney: Not every case requires an attorney. However, if you know you are going to be involved in a custody battle, it is necessary to get a competent, experienced child custody attorney. An attorney will file your custody paperwork quickly and help you avoid the pitfalls of the custody process. Since custody battles are time-sensitive issues, it is important to get your case to court quickly. Lost time often means lost custody.
- File a Lawsuit: Before the court has the ability to make any orders which are binding on the parties, one person must file a court action. The court action can a paternity suit , a legal separation (if the parties are married and are not intending to divorce), or a divorce action.
- Get a Court Date: After the paperwork is prepared, it is filed with the court and a court date is issued. Generally, it takes eight weeks to obtain a court date in Riverside County.
- Get a Mediation Date: At the same time the OSC is filed, the parent must obtain a mediation date. Mediation is a court-ordered process which is required before judge has the power to grant custody or visitation orders in any paternity, divorce or legal separation action. Mediation occurs in the courthouse by a court employee and is free. No lawyers or third parties are allowed in mediation. Mediation tries to resolve and custody and visitation disputes without the need for lawyers and judges. The parents are not allowed to bring up child support or spousal support issues, or anything other than where the child will live, and when the child will see the other parent. the role of mediation is to help the parties' establish a workable custody and visitation agreement.
- Attend the Court Hearing: Regardless whether you and the other parent have reached a custody and visitatation agreement, you must attend the court hearing. If the parties cannot reach a custody agreement, then the judge will read the mediation recommendation and then make orders for custody and visitation.
- Evidentiary Hearing: If one party does not like the court's custody and visitation orders, he or she can have a full hearing and put on evidence in an effort to change the court's mind.
- 730 Evaluation: Another way to change the court's custody order is by participactin in a 730 evaluation (custody evaluation). This is a home study of both parents conducted by a psychologist who makes a detailed report, including custody recommendation to the judge. Although the custody recommendation does not have to be followed by the court, it will carry great weight in helping the court make a decision.
- Minor's Counsel: If the children are older, minor's counsel can be appointed. Minor's counsel is a lawyer who is appointed to represent the children in court. This attorney must express the children's custody wishes to the judge.
- 3111 Investigation: A 3111 investigation is similar to a 730 evaluation, except that it is conducted by a court employee, who will typically only investigate one issue.
- Attend the custody trial: Eventually the case will go to trial. At trial, the parties has one last time to present evidence to try to convince the court that a particular custody order is best for the children. The court will then issue a final court order for custody.
- Follow the Court Order: After the custody order is issued, there will be some things about the custody and visitation order that both parents do not like. Follow the court order any way. If both parents agree later on that the court's orders for custody and visitation should be permanently changed, put those changes in writing.
If you live in the Temecula Valley, including the Temecula, Murrieta, Menifee, Lake Elsinore, Hemet and Riverside areas of Riverside county, California, and you have any questions about child custody and visitation, child support or other questions relating to divorce, paternity, legal separation, annulment, or any other family law issues, please call our office for a free consultation at (951) 816-9543.
Otherwise, if you would like more information, please visit one of our web sites at: http://www.temeculadivorce.com/ or http://www.familylaw-riversidecounty.com/ or http://www.familylawyerintemecula.com/
Friday, June 8, 2007
I pride myself on being a good divorce and family law attorney. This blog is to give my clients an idea of how very difficult this job is, and to what lengths our office will go to help our clients.
Thursday evening. I worked until 5:30pm, and had just gotten home. I was preparing to go to a family function when my cellular phone rang. I publish my cell phone number on the internet and all my current and prospective clients have my number.
Anyway, the telephone call was from a stranger with an emergency. She lives in Pennsylvania, and her husband lives in California. Her husband had just called her and told her that he had filed for divorce and he would be in court at 8:30am the next morning to ask for custody of their two-year-old son. The couple had been living apart for a year, and the husband had only seen the child once in all that time. Naturally, the mother was distraught, and begged me to help her. I got in my car and drove back to the office. I prepared the court paperwork for the mother, and finished up about 7:30pm that evening. I missed most of my family event. The next morning I was in court bright and early with opposition to the custody request. The lawyer on the other side wanted to know how I was able to act so quickly. Hard work, and persistence, I guess. The father lost, the mother won, and she was very grateful.
On my way out of the courtroom, I received a phone call from a man who needed a divorce. I set up an appointment for him to come in and see me for a free consultation the next Friday morning.
That same morning I had two other hearings. The second hearing involved a mother with a husband who is an alcoholic. They have a child together, and he gets so drunk he is unable to stand up on some days during his visitation time when the child is in his custody. She was requesting child and spousal support. The parties own a multimillion-dollar business and he is attempting to starve her out by not paying my client any child support or spousal support. The judge ordered that a forensic accountant review the corporation's books and records, and the judge ordered he pay her some child support and spousal support until the audit is completed. That client was also very happy with the outcome.
Walking out of the second case to the third case, I received a call from a very nice client who is a staty-at-home mom with three kids. She told me her husband, who make $8,000.00 per month, had cancelled all her insurances. I must file emergency court papers (also called an ex parte) on Monday to have the insurances reinstated.
The third case involved a husband whose wife had left him for another man (my second client thought he was cute, by the way, and wanted to meet him). The parties had agreed they would share joint physical custody and now the wife wanted to move more than 50 miles away so that she could move herself and the children in with this new man. Mom's lawyer was also asking that Dad pay one-half of the children's private school tuition. By this time it was 12 noon, and since we could not reach a custody agreement on our own, the court told us to come back at 1:30pm for a hearing.
Since I had not eaten breakfast and had a little free time, I decided to get a quick bite to eat. As soon as I got in my car I realized that I left my wallet at the office the night before, and had no money and no credit cards. I did not even have enough change in my car for a bottle of water, so I went back into the courthouse and waited for my next hearing. As I was walking back into the courthouse, I got a call from a close friend, wondering I why I had stood her up for our lunch date. This reminded me: I was supposed to take my 86-year-old dad to a follow-up appointment with his eye surgeon at 2:00pm. I called my father and told him we would have to reschedule.
While waiting for the family law courtroom to open up again, I got a call on my cell phone from the girlfriend of a man who agreed that he was the father of a child in a paternity case who is not biologically his. The family law judge gave him 5% visitation and ordered him to pay 25% of his paycheck to the mother. "Dad" fell behind on his child support and is now facing a contempt charge, meaning that he could be sentenced to five days in jail for each month he fell behind in child support payments (three months). "Dad" is now re-thinking his decision to step up to the plate, and now wants a DNA test. The contempt trial is Monday, so if they want me to help, they will have to come in to see me on Saturday. I had plans to take my daughter shopping for a new outfit as a high school graduation present, but that may just have to be postponed...
At the third hearing, the judge denied both of the adulterous wife's requests. So, Dad will keep joint custody and will not get totally soaked financially. I think he, too, was happy with the outcome.
I had a fourth case, actually, in Orange County for an old client. She is trying to get her divorce recognized in Peru and needs the court to sign off on a document indicating the divorce in California has not been appealed. My law partner and husband went on that matter. Not only would the court not sign the paper, but he was absolutely EVIL about it and was quite abusive. Unfortunately, first thing Monday morning I will have to figure out a new way to get this poor lady the divorce paperwork she needs because I make a promise to myself each time I take a client's money that I will do everything in my power to help, and I take that commitment very seriously. I am very tired today, so I will get the family law document signed, sealed and delivered somehow on Monday.
After court that Friday afternoon, I asked my husband to go shopping with me because I was in need of some suits for court. It was about 4:00pm by this time, and I knew if I was needed that clients or attorneys would call us on my cell phone. While I am in the dressing room trying on clothes, my cell phone rings. By this time, it is almost exactly 5:00pm. I learn that one of my clients, who is a cop, discovered his ex-wife has a warrant for her arrest, and is refusing to return custody of his kids to her. After several phone calls back and forth between myself and Mom's family law attorney, we negotiate a visitation deal. My client will take the kids to the house, call the police, and allow them to have visitation with Mom as long as the police confirm there is no warrant outstanding for her arrest (there was not).
We arrive back at the house about 6:30pm. More divorce business is awaiting. I have an e-mail from a client who paid $8,500.00 to another attorney in a divorce, but did absolutely NOTHING for him. He is afraid to continue on with the divorce case because he has run out of money, and does not know what to do. We set up an appointment for Monday.
A client calls about 7:00pm. She had just been served with child support papers after a lengthy custody battle with her ex-boyfriend, which she won. She wanted to know what to do about the child support hearing. I told her to come in on Monday.
At 9:00pm, I send some instructions to our assistant by e-mail regarding some of my other family law cases so that they are waiting for her first thing Monday morning. Most importantly, we need to address the insurance issue of our divorce client by getting her insurances reinstated; we need to get those divorce papers filed in Peru; we need to finish a legal brief for a mom who got her 5-year-old son back after 1-1/2 years and is now fighting for custody with her son's grandmother to keep the boy (our argument is that the grandmother needs to file for guardianship); we need to finalize an appeal that must be filed on Thursday morning for a client in Texas whose wife is trying to sue him for divorce in California; and we need to get the paternity file and get some trust money returned for a new client whose attorney illegally used the trust money to pay his own attorney fees while doing absolutely nothing for her (he may end up being disbarred over the whole incident). No wonder family law attorneys have such a bad reputation.
Afterwards, I start on this blog, which is finished at 11:00pm on a Friday evening.
Bottom line: sometimes being a divorce and family law attorney is stressful. Many times the job just outright sucks. We are punching bags. Sometimes I feel blessed to have this job; most of the time I feel stressed out. I keep on going because this job is usually extremely rewarding, and sometimes I am actually able to change people's lives. That is a humbling feeling.
So, if you have any divorce or family law matters, including any matters concerning paternity, child support, spousal support or child custody and visitation, and if you live in the Temecula, Murrieta, Hemet and Riverside areas of Riverside County, California, I hope you will consider giving us a call. We offer free consultations, and I promise we will do our best to help. Our phone number is (951) 816-9543.
Otherwise, you are welcome to obtain more information by visiting our web sites at: http://www.temeculadivorce.com/ or http://www.familylaw-riversidecounty.com/ or http://www.familylawyerintemecula.com/
Thursday, June 7, 2007
A default judgment is an order which was obtained without one person being present at a court hearing. This can occur in a number of ways. The most common reason a default is taken against a person is because that person fails to file the divorce paperwork with the court after he or she is served. Often times, a party receives paperwork and does not understand the significance of it. Rather than consult an attorney right away or file family law paperwork with the court, that person fails to take any action through the family law court.
In either case, if a default judgment in a family law case results in a court order that is unfair, the party who was default can set aside the order. The law in the state of California is that a party may set aside a default if he or she did not participate in the family law case through his or her own inadvertance, mistake or surprise. He or she normally has six months to set aside the divorce or paternity judgment or order.
Once a lawsuit is filed and the person is served (the person who is served is called the Respondent), the Respondent has 30 days to file an answer. This is a document filed with the family law court which tells the court that the Respondent intends to participate in the case and wants to be present in court any time the judge is going to make a court order. If the Respondent fails to file the answer to the paternity or divorce matter for whatever reason, the Respondent's default is taken and the case proceeds without the Respondent's participation.
It is relatively easy to set aside any orders made in a family law or paternity matter by a court while a Respondent is in default so long as the Respondent has a good excuse for not filing. Examples of what the family law court would consider a good excuse include the Respondent believing the parties had a prior agreement, the Respondent not understanding the paperwork, the Respondent not receiving the paperwork, the Respondent being out of town and unable to file a response, or the Respondent paying someone to prepare the divorce or paternity paperwork, but the paperwork wasn't completed in time.
Not every divorce or paternity judgment or order needs to be set aside. Only those that are unfair.
The procedure for setting aside a family law default is to file a motion with the court, commonly called a 473 Motion (named after Civil Code Section 473). This motion explains to the court why the Respondent did not file a paternity or divorce answer when he or she was supposed to, contains a copy of the answer, and includes a copy of the law which tells the judge on what basis the Respondent is seeking to set aside the order. If the court grants the motion to set aside the default and/or any subsequent orders, it is as though the hearing never took place. Any orders made at the hearing are vacated, or wiped away, and a new hearing takes place at which the Respondent is allowed to participate.
California courts have a strong public policy to hear cases based upon the merits. Default divorce and other family law judgments and orders are disfavored. So long as a party acts as soon as he or she learns of the situation, it is highly likely the family law court will grant the Respondent's 473 Motion and allow the Respondent to participate in the proceedings.
Finally, a 473 Motion is complicated. A party has only one chance to request this relief. It is highly recommended that if you are in default or an order was made without your presence that you seek immediate legal advice from a competent divorce and family law attorney.
If you reside in the areas of Temecula, Murrieta, Hemet, or Riverside, and you have a family law matter, please telephone our office for a free consultation with one of our lawyers at (951) 816-9543.
Otherwise, please visit one of our websites for more information: http://www.temeculadivorce.com/ or http://www.familylaw-riversidecountyc.om/ or http://www.familylawyerintemecula.com/
Normally, when a couple gets a divorce, they live in the same county and same state as one another. Deciding where the divorce matter should be filed in just a matter of determining where the local courthouse is located. In the Temecula Valley, the family law courthouse is located in Hemet, California. In Riverside, it is located at the family law court in Riverside, Cal.
For a party to file a divorce in a particular county, one of the parties must have lived in that county for at least three months. This is called venue.
For instance, a couple separates. While living together, they both lived in Riverside County for three months before the separation. The wife then moves to Los Angeles County. If wife lives in Los Angeles County for less than three months before the divorce case if filed, the divorce must be filed in Riverside County. If wife lives in Los Angeles County for more than three months before the divorce is filed, the divorce can be filed in either Los Angeles or Riverside County. Either county would be proper, and the person who filed the divorce first would be able to choose which county the divorce was filed in.
Things become even more complicated when the parties live in different states. In order for a case to be filed in California, one of the parties must have lived in the state for at least six months before filing the divorce. This is called residency.
For instance, a couple separates. Before they separate, both parties lived in the state of California for at least six months. Upon separation, wife moves out of California. As long as the parties file the divorce action within six months of separation, California is the proper place to hear the matter, and the divorce should be filed in California.
Another common scenario is when the couple previously lived in another state, moves to California, and then separates in California shortly after the move. For instance, the parties had lived in Texas for six months before moving to California. They live in Calif for three months before separating. Both parties remain in Cal. Technically, Texas is the correct state to decide the divorce. However, there are ways to allow Ca to hear the case, and the parties in this type of situation should seek the help of a competent divorce and family law lawyer.
Yet another situation is where the parties live in the state of Calif for six months before separating. Upon separation, wife moves out of California. The parties do not file for a divorce for more than six months. Wife has established legal residency in another state. The proper place to hear this divorce would be in the state of Cal.
Finally, the parties both live in California for more than six months. The parties separate. Wife moves to Texas. Husband moves to Oklahoma. Neither party files for divorce within six months. The parties either have to agree where the divorce will be heard, or the court needs to decided which state should have power over the divorce.
The above rules only apply to situations where the divorce includes the division of property, the award of attorney fees, spousal support, or child support, or involves child custody or visitation. In those rare situations where the only issue before the divorce court is a request to dissolve the marriage and make both parties single again, the state either party lives in can make that order without regard to where the other party lives.
Obviously, when two parties live in different states and are seeking a divorce, the legal issues surrounding where, or even how to file a divorce action are complicated. Please be sure to consult with a competent divorce and family law attorney before taking any action.
If you reside in the Temecula, Murrieta, Hemet or Riverside areas of Riverside County, California, and have questions about this, or any other family law or divorce related issue, please contact our office for a free consultation with one of our lawyers at (951) 816-9543.
Otherwise, please visit our websites for more information: http://www.temeculadivorce.com/ or http://www.familylaw-riversidecounty.com/ or http://www.familylawyerintemecula.com/
Wednesday, June 6, 2007
If a parent cannot prove the support was paid when due, the court will order that parent to repay the child support, with interest. Sometimes there is a mistake in the amount alleged as arrearages.
Child support can discharged by satisfying the obligation in other ways. For instance, if the parent had custody during a period when support was ordered, the obligation will be satisfied for that time period. Sometimes expenses paid for the children can be used to offset arrearages. Normally, monies given directly to the child are not support, but, rather, they are a gift.
Finally, support can be discharged if the parties agree reach some sort of agreement. However, no monies can be owed for welfare arrears, and the agreement must be placed in a court order and signed by the court.