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Kathy Minella

10 Factors Used to Determine if a Parent is Unfit for Custody in 2019

By | Child Custody & Visitation | No Comments
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Determining an Unfit Parent in 2019


Custody disputes can be the most challenging part of a divorce or breakup.  Both parents will want as much time as possible with their child or children. When determining custody the court will always make a decision on what is in the child’s best interest.  No parent is perfect so little imperfections will not strip a parent of their rights, however, being an unfit parent will cause the court to reduce or limit the interaction between that parent and the child or children.

What exactly is an unfit parent? The legal definition of an unfit parent is when the parent through their conduct fails to provide proper guidance, care, or support. Also, if there is abuse, neglect, or substance abuse issues, that parent will be deemed unfit. Most cases where a parent is deemed unfit, Child Welfare Services has been involved and there may be a safety plan or an open active investigation against the parent.

During a divorce, parents might not agree on custody issues, or one parent might not trust the other with the children. On the order of a judge or at the request of a parent, a child custody evaluation may be held. The purpose is to determine if allowing one or both parents custody is in the child’s best interest, or if the child’s health, safety, and welfare are at risk. The evaluator will consider the following ten factors when making a determination.

1. Setting Age-Appropriate Limits

  • Is a 5 year old child allowed to watch R-rated movies on a regular basis?
  • What kind of curfew does the parent set for a teenager?

Parents will not always agree about what is age appropriate limitations, but when you have one parent who is allowing extreme situations, this may be a red flag.  When parents share joint legal custody, they should jointly make decisions about what is age appropriate but this does not include little things such as bed time.  This is when co-parenting comes into play and you have to trust your co-parent is making appropriate decisions in their household.

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I Can’t Afford a Legal Retainer, Can I Still Get Divorced?

By | Divorce | No Comments

Many people going through a divorce feel helpless, their first instinct is to reach out to an attorney. Family Law attorneys however, can be expensive and not everyone can afford to hire a divorce attorney.

San Diego has plenty of resources at everyone’s disposal to help in these instances.

Low or No Cost Divorce Options

All of the courthouses in San Diego have Family Law Facilitators. They cannot give you legal advice, but they will walk you through filing all of the paperwork you need, based on your situation. They provide assistance on a first come, first served basis, so it’s always beneficial to get there early.  

If you are looking for an attorney but cannot afford the sometimes $5,000+ for a retainer, there are attorneys who work on a volunteer basis. You can find those individuals here.

There are also pro bono attorneys, who work for no cost, in addition to legal aid. Both of these resources will have attorneys who can assist you, if you cannot afford one.

The Modest Means Program is designed to assist clients who are having a family law dispute and are able to pay for legal services but have limited financial resources available.

If none of these programs interest you or are the right fit, the San Diego court website has a full list of resources to assist in your Family Law matter.

 

social-media

Can Social Media Prove an Unfit Parent?

By | Divorce | No Comments

Beware of what you post on social media during divorce and child custody proceedings. That may sound like a dire warning, but as reported by the American Academy of Matrimonial Lawyers, 75% of family law attorneys are using social media evidence in divorce and child custody cases. That means if one or both parents fail to exercise restraint when posting on their Facebook page, Twitter feed, or any other online social media platforms, it could be used against them in a child custody matter. Just one wrong post can cause more trouble than it’s worth.

Social Media is Not the Problem

It’s not uncommon for a parent’s fitness to raise a child to be called into question during a custody dispute. Social media has added fuel to the fire for proving unfitness, but social media itself is not the problem.

It’s the behaviors and comments of the poster that can influence the court. Even seemingly innocent posts can be misinterpreted or misrepresented to paint a parent in an unflattering light. Long gone are the days of charts, letters, and documents being the sole source of evidence. Today’s courts also accept text messages, emails, and screen shots of social media content in child support and custody dispute hearings.

Family Court and Social Media

In many cases, the information obtained from social media accounts is not as inflammatory as one parent may think. But posts about spending habits, irresponsible behavior, and personal relationships can be used to call into question a parent’s character. California family law courts focus on what is best for a child. They look to establish whether the child is safe, and if a parent’s lifestyle is in any way negatively affecting the child’s well-being. Posts about excessive partying or illegal activity (such as drug use) will most certainly be taken seriously by the court. Even what friends post about the other parent could be used as evidence.

What Can I Use Against My Spouse?

It’s a good idea to check your spouse’s profiles during a child custody dispute. If you believe your spouse is posting things that could have a negative effect on – or be downright harmful to – your child, take a screen shot of the content and share it with your family law attorney. Don’t stalk your former partner on social media; monitor him or her without obsessing.

Things that might be considered by the court include:

  • Tweets or Facebook posts about a wild night out on the town when the parent is supposed to be home caring for your child.
  • Posts that cast you and/or your parenting skills in a negative light.
  • Posts that could be construed as harassment or threats.
  • Posts about any litigation, the custody proceedings, or the judge.

Be Social Media Savvy Yourself

Many people have a false sense of anonymity when they’re surfing and posting on the net. But rest assured, if you’re checking out your former spouse on social media, they’re also looking at your accounts and printing out posts for their attorney. Be careful about what you post and take the time to think about whether it could come back to haunt or harm you. When in doubt, don’t post at all. It will help you avoid additional emotional turmoil during your child custody dispute.

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Why is Jurisdiction So Important?

By | Family Law Blog | No Comments

We should start with what is jurisdiction exactly, jurisdiction is the legal authority for the court to hear a case.  If the court does not have jurisdiction, it simply cannot hear the case and you will have to take the case to the appropriate jurisdiction.

How do you know if San Diego court has jurisdiction?

Sometimes it is very obvious to determine where jurisdiction is.  For example, if your divorce was processed in San Diego and never registered anywhere else, jurisdiction will remain in San Diego.  Another example would be if your child custody order was made in San Diego and the child still remains in San Diego, of course San Diego would be the appropriate place to litigate custody.  

There will always be times where it is not obvious but as a rule of thumb if the child is not in San Diego and neither party is in San Diego, it is highly likely jurisdiction resides somewhere else.  

CHILD CUSTODY JURISDICTION

Any issues concerning child custody are governed by the Uniform Child Custody Jurisdiction and Enforcement Act also referred to as the UCCJEA.  The UCCJEA requires the action involving the child to be filed in its home state. This is either where the child has lived for at least 6 consecutive months prior to the case being filed, or if the child is no longer in the state, where the child lived within the six months before commencement of the proceedings.   

If an action has already commenced and a parent is seeking modification, another state can modify the original order only if the new state has jurisdiction as the home state and the original court declines to exercise continuing jurisdiction, or the proposed state is a more convenient forum, or no one including the child lives in the original state.  

It is important to contact an attorney in the proper jurisdiction to hear your case, as if you file a case in the wrong jurisdiction you will have to start all over again in the proper jurisdiction.

CHILD SUPPORT JURISDICTION

Any issues concerning child support are governed by the Uniform Interstate Family Support Act or UIFSA.  This gives continuing jurisdiction to one state to avoid conflicting orders. Just as with custody, the originating state will always have jurisdiction over support so long as one of the parents remains in the state.  This is important as the guidelines applied will be based on the originating state. As an example, say the child support order was created in San Diego and parent and child move to Nebraska, the child support order will remain at California guidelines so long as the payor lives in California even though parent and child have a lower cost of living in Nebraska.  Reverse that if the originating order is in Nebraska and parent and child move to California, they will receive child support based on Nebraska standards so long as the payor remains in Nebraska despite the higher cost of living in San Diego.

If you believe San Diego court has the ability to hear your case contact our office.  If you need to find an attorney where your case should be hear you can always contact the bar association in that jurisdiction to find an attorney who specializes in family law to assist you.  

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How Can I Impute Income To The Other Parent?

By | Child Support | No Comments

Under California law, both parents are equally responsible for the financial support of their children. When computing how much child support is owed or received, the court considers each parent’s income to be a key factor. Some parents choose to deliberately reduce their income to avoid the responsibility of paying support, or to increase the amount of support the other parent is ordered to pay.

Unfortunately, the children become the victims of this behavior. The court is invested in doing what is in the best interests of a child, so often it will attribute – or impute – income to one or both parents before ordering support.

Imputed Income Defined

If the court imputes income to one or both parents it is, in effect, saying that is the amount the parent could be earning. The court then bases its award of child support on that income, not what the parent claims to be earning. Judges do this to make sure children are receiving an amount that ensures their needs are met – and to prevent a parent avoiding child support altogether. For example, if a parent up until the divorce has been earning $75,000 per year and then suddenly claims they’re earning minimum wage, the court will ask for information to determine if the decrease was due to a parent trying to minimize his or her child support obligation.

When Courts Impute Income

If the court finds that the parent ordered to pay child support voluntarily quit work or deliberately lowered their income, the court may decide to ignore that change and use the most recent amount ($75,000 in our example) they were earning. The order for child support would then be based on that figure. California family courts look at three main factors when determining if income imputation is called for:

  • The ability of the unemployed or underemployed parent to earn income.
  • The opportunity for the unemployed or underemployed parent to earn income.
  • The willingness of the unemployed or underemployed parent to earn income.

If the court finds the parent has a legitimate case of job loss or pay reduction, it will not necessarily or immediately impute income to him or her.

How Do Courts Arrive at an Imputed Income Amount?

Courts look to a parent’s “earning capacity” when deciding how much income to impute:

  • Willingness to work is decided by looking at whether the parent is looking for a job, sending out his or her resume, or going for job interviews.
  • Opportunity to work looks at what, if any, appropriate jobs are available in the area.
  • Ability is usually determined by looking at a parent’s educational level, works skills, and employment history.

As evidence of a parent’s ability and opportunity to work, the court will look at various evidence.For example, it may use a vocational expert’s report or testimony and/or the most recent salary the parent was earning. If the court cannot arrive at an amount using these methods, it may impute minimum wage.

If you’re divorcing and believe your spouse should be imputed income for the purposes of child support, you may want to consult with an experienced and qualified California family law attorney to help you better understand your options.

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Is All My Income Considered In Child Support Calculation?

By | Child Support | No Comments

In California, child support is mandated by law, and every child is entitled to financial support from both parents. If the parents divorce, child support is generally required. Once the court orders child support, it must be paid or there are serious consequences, including possible jail time. Child support can also be required in cases where the paying parent has no visitation rights with the child or children.

Determining Income for Child Support in California

The court cannot enforce child support payments until it makes an order for support. When parents separate, one of them must ask the court to make both an order establishing paternity and an order for child support. Once granted, the court can also award retroactive child support to the date the petition was filed.

For the purposes of determining child support, California law defines income as:

  1. Salaries, wages, commissions, and bonuses.
  2. Rents, typically from rental properties.
  3. Dividends and interest income.
  4. Pensions.
  5. Income from a trust or annuity (unless the annuity is connected to a non-income source such as personal injury proceeds).
  6. Monies received as the result of a worker’s compensation case.
  7. Unemployment and/or disability insurance benefits.
  8. Social security benefits.
  9. Spousal support received from an unrelated case.

There may be exceptions that apply to your situation. A qualified California family law attorney can tell you more.

The Statewide Child Support Guideline

 

California Family Code Section 4050 sets forth the guidelines the court must follow in applying child support rules. They include:

  • Each parent’s primary obligation is to support his or her minor children according to her or his situation and financial station in life.
  • Both parents are equally responsible for supporting their children.
  • It’s assumed the guideline is correct in all cases. Only in special instances should child support orders fall below the amount mandated by the guideline formula.
  • Child support orders must provide children with fair, timely, and sufficient support. The ordered support should also reflect California’s high standard of living and high costs of raising children compared to other states.

The Statewide Child Support Guideline is a complex algebraic formula that uses both parents’ incomes, deductions, and time spent with each child to determine a dollar amount for support (CS = K (HN – (H%) (TN)). What this means in simpler terms is that the greater the gap between income, and the less time the higher earning parent spends with the children, the more child support that parent will owe. Again, under California law, the amount of child support determined by the formula is presumed to be the correct amount owed. Unless there is a good reason why a different amount should be paid, the court is required to order the guideline figure

Learn More

Child support is a serious matter, and determining what is and is not income can be complicated. Whether you are the parent paying or the one receiving the child support payments, an experienced family law attorney who is knowledgeable on such issues can be very helpful. Remember, the goal is to guarantee that your children are well taken care of and that they receive everything they need to lead happy and healthy lives

Schedule a Free Confidential Consultation
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FAQ: How Does Social Media Affect My Divorce

By | Divorce | No Comments

Facebook, Twitter, Instagram, and Pinterest. Social media accounts offer others a fun and interesting window into your world. But if you’re going through a divorce, social media posts can have serious implications and consequences, doing more harm than good. They can adversely affect a wide range of issues: custody disputes, division of property, and spousal or child support decisions. Suddenly, what was once an enjoyable way to pass the time becomes a challenge to be overcome in court.

Social Media’s Impact on Divorce Issues

Keeping secrets in the information age is no easy task. California law allows for the discovery of information that is “not privileged” and is “reasonably calculated” to lead to discoverable evidence. What that means is that, even if you have restricted the privacy settings on your social media accounts, the court may still allow certain posts to be used for or against you. Here’s how you can be affected:

  • Child Custody and Support Proceedings. If your divorce involves issues of child custody and support, you should take extreme care in what you post. Even if they are otherwise innocent, posts referencing alcohol or drug use, brand new cars or homes, trips, dating stories, and new relationships can all affect custodial and support awards. Think twice or thrice before you post to a social media site. If there’s a chance a post could have a negative impact, it’s probably best to not post.
  • Divorce Proceedings. More than 80% of divorce attorneys nationwide have used social media as a valuable tool for collecting evidence to present to the court. And as long as requests can be argued to appear reasonably calculated to lead to the discovery of admissible evidence, courts have allowed them. What can you do? Act as if every social media post – or any other electronic communication like email – can and will be used against you in court. And keep in mind that friends you and your former spouse shared during the marriage may be alerting him or her to posts (or even private messages) you make or send.
  • Restraining and Protective Orders. If you have a restraining or protective order in place, commenting on, liking, or tagging your former spouse may be enough to violate the order. Courts are more frequently viewing social media speech the same way they do “live” conversations. Be incredibly careful in what you post.

Visitation Rights.

Social media and technology is not all bad news for your divorce. For divorced parents living a distance from each other, it can allow children to engage in ordered visitation schedules. Webcams and video chats allow for virtual visits and some states have passed specific laws that allow electronic communication to supplement face-to-face visitations.

Learn More

Many spouses going through a divorce freely text, email and update their status without considering the strategic risks and dangers that come along with these types of electronic communications. Before you post your next social media update or hit that send button, stop and think about the effect it might have on your divorce proceedings. An experienced California family law attorney can explain more about the implications of using social media during your divorce. While it may be an important part of your life, you may ultimately decide it’s best to stay off social media while your case is pending.

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Must Ask Questions Before Filing a Restraining Order

By | Domestic Violence Restraining Orders | No Comments

Divorce often brings to light significant difficulties that may be happening in a marriage, especially abuse. If you find yourself in an abusive situation, a divorce restraining order can literally save your life. The State of California takes requests for domestic violence restraining orders very seriously, as they can be used to:

• Prevent individuals from keeping a gun or ammunition.
• Prevent an abusive partner from going near you and/or others.
• Require the restrained party to obey child support and custody instructions.
• Order the restrained party to move out of a residence.

Should You Obtain a Divorce Restraining Order?

California law defines abuse as any act that puts you, your children, or another person in immediate fear of injury, as well as any act that causes harm to you or your property. If such harm exists, you can file a request for an order to keep the abuser away. Divorce-related restraining orders work differently than those in other situations, as you may file the request through your existing family law case.

A qualified family law attorney can help you fill out and file your restraining order paperwork. The forms are also available on the California Courts website. Depending on your circumstances, you may need to fill out several different forms. Here are the questions you need to consider before filing for a restraining order.

Are you asking for protection for other family or household members?

Has the person made threats against people other than you? The court may grant a restraining order that includes other “protected persons.” If you believe the person you are asking to be restrained could harm someone else related to or living with you, that information should be included in your request.

What is your relationship to the person you’re seeking protection from?

To qualify for a domestic violence restraining order, you and the person you want to restrain must be at least one of the following: 

  • Married or registered domestic partners.
  • Divorced or separated.
  • Dating or previously dated.
  • Currently or previously living together.
  • Parents together of a child.
  • Closely related, such as a parent, child, sister, brother, grandfather, grandmother, or in-law through a current marriage.

What type of order(s) are you asking for?

There are several requests you can make of the court, including personal conduct orders, stay-away orders or move-out orders. You may also ask the court to grant you the right to record communications between you and the other person, ask for sole possession of a pet, and request that the person be ordered to sell, or otherwise give up any guns or firearms in his or her possession.

Speak with an Attorney

An experienced family law attorney can help you file your request for restraining order. The court takes one day to determine if you should be granted a temporary restraining order, which is valid for up to three weeks. It then sets a date within those three weeks for a hearing on your permanent restraining order. An attorney can also help you compile evidence for that hearing, including police reports, medical records, photographs, and emails. Witnesses may also be called.

After the evidence is presented, the court will decide whether to issue a permanent restraining order. If issued, a permanent restraining order can be in effect for up to five years, at which time you may request the court to renew it. A restraining order has huge legal, financial, and emotional ramifications for the party it is issued against. It should not be taken lightly and should only be considered if the circumstances absolutely warrant it.

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FAQ: Are There Ways To Reduce Alimony?

By | Divorce | No Comments

California family law courts order spousal support to ensure that the standard of living experienced during the marriage is maintained to a reasonable extent after the divorce. Regardless of what you may have heard, that doesn’t mean that spousal support is fixed for life. In fact, California law does not favor indefinite spousal support, or alimony. If you or your spouse were awarded spousal support in your divorce, it is possible to have that support reduced.

Ways to Reduce Spousal Support After Divorce

Unless the conditions under which spousal support can be reduced or terminated are specifically addressed in your divorce agreement or court order, the paying spouse can request the court to order a reduction. There are three main steps in determining whether you’re entitled to a reduction.

1. Analyze the Spousal Support Order. There are no shortcuts to winning a spousal support reduction, and it isn’t enough to ask the court for one because you think it’s called for. Make sure you fully understand what the original order calls for. Check what, if any, provisions for modification or non-modifiability are outlined in it.

2. Analyze Your Former Spouse’s Change of Circumstances. One of the top reasons for a reduction in spousal support is the changing circumstances of one or both parties. What does that mean? Simply put, it’s the reason you believe a reduction is justified. Common changes in circumstances include:

• The paying spouse’s income has decreased since the spousal support was ordered.

• The receiving spouse’s income has significantly increased since support was ordered.

• The receiving spouse is now living with another partner. Sharing a home with a roommate, no matter what gender, does not qualify.

3. Prove Your Claim Through Evidence. Once you understand your original spousal support order, and you’ve identified any changing circumstances, you’ll need to produce evidence to the court that backs up your request for reduction. This can be in the form of financial documents, written declarations, oral testimony, or a combination of all three.

What the Court Considers

The court contemplates several factors when deciding whether a reduction is justified. Illness, unemployment, and remarriage are all causes for consideration. So, too, are a party’s age and physical and emotional condition. Keep in mind that the courts do not look kindly on those who voluntarily leave a job or seek a lower paying one simply to avoid paying the ordered support.

A reduction in spousal support can often be more difficult and complicated than obtaining the original order. That’s because in post-judgment divorce orders, the family court has certain conditions for modification and must use a complex evaluation, not a computer program, for determining if a change is warranted

An experienced California family law attorney can help you evaluate your current order and advise whether a request for reduction is proper. If you’re facing a spousal support modification request and want to oppose it, an attorney can tell you whether the request for modification is justified and help you oppose it if necessary.

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Do I Qualify For Summary Dissolution

By | Divorce | No Comments

Dissolution is the official term for divorce in California. There are two ways you can obtain a dissolution in California: standard, which is the most common form of divorce, and summary, which is a shortened version of the divorce process. Not everyone can use summary dissolution to end their marriage as there are very specific requirements that must be met for the court to approve your divorce.

Who Qualifies for a Summary Dissolution?

There are strict eligibility guidelines for a California summary dissolution and all of them must be met to proceed. In addition to those listed above, it is required that:

  • At least one of you has lived in California for at least 6 months, and in your county for at least 3 months before filing the petition.
  • Both of you must agree to summary dissolution and the grounds of irreconcilable differences.
  • Neither of you may own real estate or hold a lease with an option to purchase.
  • Neither of you has more than $40,000 in separate, or non-community, property.
  • Neither of you has incurred more than $6,000 in debt, excluding car loans, since the date of marriage.

Both of you must also read and sign a summary dissolution booklet that is provided by the state. The booklet explains the entire process and contains helpful worksheets for dividing assets.

How to Obtain a Summary Dissolution

There is less paperwork required for a summary dissolution than there is for a regular one, but you must file with the superior court clerk a Joint Petition for Summary Dissolution that includes a property settlement agreement. A Judgment of Dissolution and Notice of Entry of Judgment must also be prepared. Six months after filing, your divorce will be final. You do not have to appear in court and afterwards you are free to remarry. At any time during those six months either you or your spouse can stop the summary dissolution process.

If you are looking for a fast resolution to your marriage, summary dissolutions can be the right option for you as long as you meet the necessary requirements. To learn more about whether you may qualify, or for help in starting the process, talk to a qualified California family law attorney.