Issues that touch on the family unit usually attract a lot of emotions and intense feelings. Families facing the complex processes of separation, divorce, adoption, child custody and visitation, child support or those interested in developing a prenuptial or postnuptial agreement usually find it difficult to balance the legal requirements of the processes and personal aspects of life. If your family is going through a legal situation of any kind, consider retaining a compassionate and experienced family law attorney who will handle the matter with discretion and dedication with utmost consideration of your interest and those of your children.
At San Diego Family Law Attorney, our lawyers have a finely-tuned knowledge of California and have a better understanding of how the family institution works and the potential effects of legal processes and their outcomes. Our attorneys are dedicated to seeking a balance of the financial, psychological and emotional aspects of the issues you are faced with in order to find a solution that works for your family’s unique situation.
Understanding the Different Areas of Family Law
Child Custody and Visitation
Legal custody and physical custody are the two types of custody in California. Custody can be awarded jointly to both parents or solely to one parent. Courts will look at different factors when determining which type of custody to award. The most important factor considered by the court in granting custody is the child’s best interests. This means that custody will not be awarded if it there’s likelihood of the child facing harm. The child’s health, age, connections to school, emotional ties, and any history of family abuse or neglect are other factors considered.
Generally, child custody proceedings are all about creating a parenting plan that will ensure that the wellbeing and safety of the child. Child custody orders apply to both parents and this means that failing to observe even one of the orders is unlawful. In most cases, when one parent is given the physical custody of the child, the other parent will have visitation rights. Types of visitation orders in California include scheduled visitation, reasonable visitation, and supervised visitation. A visitation plan is also decided in the best interest of the child and if the courts determine that it will be detrimental to the child, then the non-custodial parent will not be allowed to go anywhere near the child.
Over time, there might be a change in your personal situation or your child’s needs. If this is the case, you may want to consider a change in the orders. You’ll be required to file a Request for Order to modify the existing child custody and visitation orders. Modification will be considered if it is in the best interest of the child.
Each parent has a legal obligation to cater for the financial needs of a child. When a court orders child support, it creates a system of protecting the basic rights and needs that a child has until he or she is of majority age. Legal separations, annulments, and divorce are some of the most common instances that create a need for court-ordered child support. A judge also has the authority to order child support in cases involving unmarried parents and in cases of domestic violence.
Child support arrangements are not always arrived at through the application of statewide formulation; parents can be given a chance to come up with their own arrangement. Child support arrangements can also be created by the court if it’s determined that the parents are not meeting the child’s needs. The ultimate objective of the court deciding on the issue of child support is to ensure that the child grows in the same financial circumstances as depicted in a normal family. Hence parents cannot defy a court order on child support ruling.
If one parent or the other experiences significant financial changes, he or she can request a modification of the support payments. The means asking the court to make a new decision by looking at the new estimates. But before a new order can be issued, parents will be expected to abide by the provisions of the existing orders.
California allows for the transfer of parental rights from one set of parents to another in an adoption arrangement. Individuals who want to adopt a child are supposed to be at least ten years older than the child being adopted (adoptee). Children who are twelve years and older must consent to the adoption process. Basically, married couples or single adults are eligible to adopt a child in California. The law also allows a stepparent to adopt the biological child of his or her spouse.
In the adoption process, the adopting parents take over the legal rights and obligations that the biological parents have. This means that the rights of the birth parents cease to exist once the adoption process is finalized.
Paternity can be defined as the process of ascertaining the biological father of a child. In most cases, the identity of the mother is known but it may not always be as certain when it comes to father’s identity. Issues related to paternity often arise in cases involving child support, adoption, health care, custody and visitation, inheritance, and more.
A major breakthrough in paternity testing is DNA profiling, which is mainly done when an “alleged father” contests. For example, if the paternity action is being sought for child support purposes, the alleged father may require proof that he is the biological father before he can be subjected to the payment of support. If a child is born during or after a marriage, the married man is presumed to be the father. However, a father cannot be awarded custody if he is not married to the mother of the child.
Laws governing the validity of marriages in California is can be found in Family Code Sections 300-310. For a marriage to be considered legal in California, a marriage license must be issued, followed by a solemnization and authentication, and finally a recordation in the county where the verification and formalization occurred. The elements must be followed in this order. The couple seeking to get married must appear together before a county clerk’s office representative for the issuance of the marriage license. No other person can receive the license on behalf of the couple.
The process of solemnization or authentication can be directed by a court commissioner or retired court commissioner of civil marriages, a judge or retired judge, a duly-elected city mayor, a county supervisor, or an authorized religious person of any religious denomination. An official marriage ceremony is not mandatory. What’s important is a declaration by both parties that they take the other party as his or her spouse in the presence of at least two witnesses. The individual formalizing the marriage has a duty to return the completely filled out license within ten days to the county where the license was issued.
Because common law marriages do not involve the issuance of a license and are not registered as required by the law, they are not considered to be valid in California. However, there is one exemption; If a couple entered into a marriage in another state or country that recognizes common law marriage as being valid, before moving to California, their union will be recognized.
Prenuptial and Postnuptial Agreements
Prenuptial and postnuptial agreements are meant to protect couples if their marriage fails. They also help couples to sidestep any ugly confrontations that may arise during divorce proceedings. However, they can’t solve all legal battles that may ensue thereafter. Prenuptial agreements are created before marriage while postnuptial agreements are created in the course of the marriage.
Principles for making prenuptial and postnuptial agreements in California include:
- Inclusion of specifics of income, financial holdings, property, and assets
- Should be drafted and signed by both parties, each having their own legal counsel
- Should include a termination date when certain provisions in the agreement become null
- The agreement should be created and signed out of free will
- Should have detailed language for both parties
- Other provisions that may apply to the couple’s situation may apply
A domestic partnership is a union that allows two people to show mutual care in a committed and intimate relationship. The requirements that must be met for a domestic partnership to be registered include:
- Both parties must share a common residence
- Both are at least 18 years of age
- Both parties must file a “Declaration of Domestic Partnership”
- There are no blood relations between the two people
- Neither party is married or in another registered domestic partnership that is still legally recognized and has not been terminated
- Both parties must consent to the union
- The two people are of the same sex or one of them is over 62 years of age
In California, domestic partnerships are accorded the same status as a marriage, and domestic partners enjoy the same rights and privileges that married people have.
If you consider spousal support in your forthcoming legal separation or divorce settlement, retain a zealous attorney who can fight for a fair settlement that will cater for your financial and lifestyle needs. There are two types of alimony that can be awarded in California:
- Permanent support- involves support to be received after the finalization of a divorce case going forward.
- Temporary support- this type is meant to maintain the status quo of the spouse while the divorce proceedings are ongoing.
Both types of alimony are crucial and should be given much thought in their decision as they all affect the ability of the parties involved. Before an alimony case is decided, the following factors are considered by the deciding judge;
- Both parties’ earning capacity
- Marketable skills possessed by the spouse seeking alimony
- Periods of unemployment and future earning capacity
- Educational contribution made by the supporting party
- Debts and assets of the parties involved
- The standards of living that both parties are accustomed to
Enforcing alimony can prove to be difficult. In a child support arrangement, failure to pay can result in liens and wage garnishment, but spousal support can only be enforced if the receiving spouse spouse files a case for contempt of court orders. Alimony payments will be terminated if the recipient spouse remarries or dies. Spousal support can also be modified if the payor’s life or income has changed.
California divorce laws are highly dependent on the period of state and county residency. Either the spouse filing for divorce or the one responding to the divorce paperwork must have been a California resident 6 months and a resident of the county where the divorce action is filed for 3 months. However, if you don’t meet the residency requirements, you can opt to file for a legal separation. California is a no-fault state and this implies that spouses are not required to prove reasons for divorce. Divorce can be filed on grounds of incurable insanity or irreconcilable differences, without stating those differences.
California is a community property state, and this alludes that the objective of the divorce settlement is to ensure that property shared between the parties is divided equally. Debts, property, and assets acquired during marriage belong equally to both spouses and must be distributed equally in the event of a divorce.
There are three important steps that are considered in property division:
- Determination of whether the property/debt is separate or community
- Agreeing on the value of each item
- Deciding on how the property should be divided
If the spouses cannot settle the issue on their own or through mediation, the matter will then proceed to court.
Contact Us for Assistance
Family law occupies a unique place in the legal world as they deal with the people we love. When your family faces a legal crisis, it can be confusing and overwhelming as you may feel intimidated by the legal system. At San Diego Family Law Attorney, you’ll find a family law attorney who will provide legal counsel and guide you through all of your legal options. Our attorneys will answer all the questions you may have in addition to helping you understand how various decisions could impact your future and that of your family. Whether you need a divorce lawyer, a child custody attorney, an adoption attorney, or you are trying to collect child support, prove paternity, or you don’t know how to file the necessary paperwork, a San Diego Family Law Attorney can help you pursue what is right, protect your rights, and serve your best interests. Call 619-610-7425 for a free consultation.