Sunday, February 10, 2008

Visitation in Califorina

The following is a real question concerning child visitation published in the Temecula Valley Newspaper, and answered by the family law and divorce attorneys of Famularo & Associates:

Dear Famularo & Associates:
My husband and I separated about 2 weeks ago, and he has since moved to Tennessee. We have two small children ages 3 and 4 years. There is no dispute about child custody. We both agree the children should continue to live with me in California. Although we haven't filed for divorce yet, we have agreed on the amount of child support and spousal support he will be paying me. My husband wants visitation with the children in Tennessee for two weeks. I don't know if I should send them. He is a great father, but what if he doesn't give them back to me after two weeks?

--GH in Murrieta

Dear GH-

Your fear about your husband not returning custody of your children to you after two weeks is a valid one. While it is likely the court would order your husband to return the children if he failed to do so, the outcome of any court hearing is always unpredictable. There is simply no guarantee the court would order your husband to return custody to you if you to allowed visitation in the state of Tennessee without first obtaining a court order. In theory, you could write up a visitation agreement on a piece of paper and insist you both sign it before sending the children to Tennessee. However, this, too, is risky. Quite frankly, if you send your children to Tennessee without an actual court order, you risk losing custody of your children forever.

You should not send the children to visit their father until after a divorce has been filed and custody and visitation orders have been made. Until you file for divorce, the court does not have power over custody of your children. Until the court makes custody and visitation orders, you have no guarantee you will get your children back from Tennessee. You need a court order for custody and visitation in your hand before you put your children on an airplane. Once a divorce is filed, you can either type up a custody and visitation agreement, sign it, and then have the court sign and file it; or attend a court hearing and have the judge make orders in open court. Either way, until you obtain a court order for visitation, you should not send your children to Tennessee.

Once a divorce is filed, the court must decide visitation for your husband. In deciding visitation, the court will try to establish a court order that ensures frequent and continuing contact with both parents. The court will likely order you to send your children to visit their father in Tennessee at some point in the divorce proceeding. A two week visit for your children is reasonable. Unfortunately, your children are not old enough to travel on their own, so someone will have to escort them on the airplane. Since your husband is the one who moved away, he may have to pay the children's airfare to and from the visit (but not always). As for who pays for the airfare of the escort, and which parent will be ordered to escort the children on the airplane, this will depend upon you and your husband's relative circumstances. For instance, if you are a stay-at-home mom, and your husband is working full time, the court might order you to escort the children (because you have the time), and your husband to pay for your airfare (because he has the money). If your husband's mom lives in Tennessee and frequently visits California, perhaps the visits can be timed so Grandmother escorts the children on the plane. In short, when making visitation orders, the court will do what it thinks is fair. In addition to periodic visits in Tennessee, your husband will have liberal visitation whenever he visits California.
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If you have any questions about custody or visitation, or any other divorce or family law related issue, please do not hesitate to contact the family law lawyers at Famularo & Associates to set up a free consultation. Famularo & Associates serves the geographical areas surrounding Hemet, Temecula, Murrieta and other parts of Riverside County, California.

You may also visit one of our web sites for additional information: http://www.temeculadivorce.com/index.html or http://www.familylawyerintemecula.com/

Saturday, February 9, 2008

Child Support and Spousal Support in California

The following excerpt is a real family law question and answer which was recently published in the local paper, the Temecula Valley News:

Dear Famularo & Associates:
I have a question about child support. My husband quit his high-paying job to take a DJ job at some radio station where they pay him nothing. It's his life dream, I know, but we have four kids and now he wants a divorce. I have always been a stay at home mom and now I have to go to work. I still think he should pay child support, even though he makes next to nothing. We own our own home and it's almost paid off after 28 years of mortgage payments. I don't want to lose the house, too! He wants to sell it and divide the proceeds. I want him to give me the house because he is the one who chose to quit his job and the children and I shouldn't have to pay him any money when we divide our property. What do you think?
NM in Lake Elsinore

Dear NM:
The court in a divorce proceeding has the ability to "impute income." This means that the court can base a support order (either for spousal support or child support) on your husband's earning ability, rather than on his current salary of zero. The law is that a person cannot voluntarily quit his or her job for a lower-paying job. A spouse's first obligation is to pay child support and spousal suport for the benefit of his or her family. If you husband quit his job very within the past month or two, this would probably anger the court, and the judge would calculate your child and spousal support as though your husband continued to earn his high income.If you husband quit his job in the more distant past, the situation becomes more complicated. You would then have to prove to the court that there are still high-paying jobs available in your husband's field that he is qualified to take. This is done by hiring a vocational examiner. This is a job counselor who would examine your husband's education and experience and tell the court what he or she believes your husband's current earning ability is.

The issue of the house is trickier. In deciding the division of property, the court must ensure that all assets must be divided fairly and equally, but you could trade another asset for your husband's one-half equity in the house, such as your interest in a stock or pension plan. If your husband had no way to pay you either spousal support or child support, you could also establish a child support account for security of up to one year's worth of child support. Rather than an actual bank account, you could ask the court to deduct his equity in the home from the money he owes you for child support and spousal support.
-- Famularo & Associates

If you live in the Temecula, Murrieta, Hemet or Riverside areas of Riverside County, California and have any questions about obtaining a child support order, spousal support order, or if you need additional divorce information, please feel free to contact our office to set up an appointment with a divorce lawyer at Famularo & Associates by calling: (951) 816-9543, or e-mail us at info@temeculadivorce.com.

You may also visit one of our web sites: http://www.familylawyerintemecula.com/ or http://www.temeculadivorce.com/ or http://www.familylawyerintemecula.com/