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Child Custody & Visitation

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What California Law Says About Moving a Child After Divorce

By | Child Custody & Visitation | No Comments

A common issue in child custody matters is when one parent wants to move out-of-state, or a good distance away, usually for a new job or to get remarried. Under California law, if that parent wants to move and take a minor child out of the area, they usually need the consent of the other parent or a court order granting the move-away request.

There are always complex legal issues that come up if you are co-parenting, but live separately from the other parent. Moving out of state is one that requires the court to consider a number of factors before it can issue a modification of custody decision or previously issued move-away order. 

Some of those factors include:

  • What, if any, changes in circumstances have taken place since the original custody and visitation order was issued?
  • What impact will the move have on the child? Will it be beneficial or detrimental?
  • What is the moving parent hoping to accomplish with the move? Is the purpose for moving to prevent the other parent from having contact with the child?
  • What is the current custody arrangement? How much time does the child spend with each parent?

What California Law Says

In California, you typically cannot take your children out of the state when a divorce is pending. The lead ruling that applies to move-away situations if you are the sole custodian of your child is the California Supreme Court case In re Marriage of Burgess (1996) 13 Cal.4th 25. It states:

Where “one parent has been awarded sole legal and sole physical custody of a child and the noncustodial opposes the custodial parent’s decision to relocate with the child, a court may deny the noncustodial parent’s requests to modify custody based on the relocation without holding an evidentiary hearing to take oral evidence if the noncustodial parent’s allegation or showing of detriment to the child is insubstantial in light of all the circumstances presented in the case, or is otherwise legally insufficient to warrant relief.”

In cases where custody is jointly shared, the case of In re Marriage of LaMusga (2004) 32 Cal App 4th, 1072, is most frequently cited. If the other parent has frequent and continuing contact with your child, the court starts with the presumption the move will be detrimental.

The court will then seek to determine what is in the child’s best interests by:

  • Holding an evidentiary hearing; and/or
  • Ordering a custody evaluation; and/or
  • Appointing minors counsel.

If you are the parent who wants to move, and you share joint physical custody, you must show the court that the move is in your child’s best interest. Unless there are extenuating circumstances, such as abuse, your request to move being approved by the court may be helped if you can show the court how you plan to make it possible for your child to maintain a good relationship with the other parent.

Today, there are more ways than ever to do that. In addition to frequent physical visits, a parent can stay close to their child through email, or what the court calls “virtual visitation” such as Skype or Facetime. You need to show the court you are going to foster the relationship with the other parent.

The Best First Step, Great Legal Counsel

Regardless of which approach you take, you’ll need to show the court that moving your child is in his or her best interests. The rules in California family law are always changing. If you want to move away with your child – or you’re worried that the other parent wants to – talk to a lawyer. A family law attorney can help you understand how the law applies to your specific situation.

Minella Law Group is swift and professional on handling all adoption legalities.  For more information or to schedule an appointment, call us at (619) 289-7948. We look forward to helping you.

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FAQ: Can I Request Termination of Parental Rights?

By | Adoptions, Child Custody & Visitation | No Comments

It is possible to request termination of parental rights in California, but it’s often not granted. Termination of parental rights can only happen by court order and there are strict guidelines for doing so.

Termination of parental rights ends the legal parent-child relationship and terminates rights such as:

• Inheritance

• Custody

• Visitation

• Child support

• Liability for a child’s misconduct

Parental rights can also be terminated for an adoption or when the court finds either or both of the parents to be unfit. The court will only order termination of parental rights if there is someone else prepared to take on the care of the child.

How Termination of Parental Rights Happens in California

There are several ways termination of parental rights occur:

  • In Juvenile Dependency Court where the child, usually due to mistreatment, becomes a ward of the court. If the court finds one or both of the parents has abused, neglected, or abandoned a child, or if one or both parents are physically or mentally incapacitated,  termination of parental rights occurs to allow for adoption.
  • In Family Court Adoption proceedings where both birth parents voluntarily agree to termination of parental rights.
  • In Family Court Stepparent or Domestic Partner Adoption proceedings, where termination of parental rights is consented to by the non-custodial parent or where the court finds a parent has willfully abandoned a child.

Can Termination of Parental Rights be by Agreement?

California courts have ruled the parent-child relationship is the most fundamental right a child possesses. Parents are not entitled to stipulate away their duties and obligations to their child, and the courts have repeatedly found agreements to terminate parental rights are void and non-enforceable.

A parent cannot voluntarily relinquish their rights to avoid paying child support, even if the other parent agrees.

Abandonment and Willful Failure to Support

Even if you’re worried an absent parent will suddenly return and attempt to gain custody of your child, the courts do not consider this a reason to terminate parental rights. The exceptions are when there is a stepparent or domestic partner adoption, in which case the court may consider the absent parent’s abandonment and terminate parental rights without consent.

Consult an Attorney

Termination of parental rights is a serious issue, and a petition to terminate is not always granted by the court. You cannot have terminated because you’re upset with the other parent or don’t want them in your child’s life. This is a complex area of family law and you should consider speaking with an experienced California family law attorney about any questions you have regarding terminating parental rights.

Minella Law Group is swift and professional on handling all adoption legalities.  For more information or to schedule an appointment, call us at (619) 289-7948. We look forward to helping you.

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How To Handle Co-Parenting Issues

By | Child Custody & Visitation | No Comments

Parenting is challenging under any circumstances, but if you’re co-parenting with an uncooperative former spouse, conflicts that were molehills during your marriage suddenly become mountains. In an ideal world, divorced parents develop a direct line of communication with each other on childcare issues, but sometimes lingering resentments or a plain old inability to get along can bring cooperation to a screeching halt. Co-parenting is difficult, here are some suggestions on handling co-parenting complications.

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From Primary to Full Custody: Advice to Maintain Full Child Custody

By | Child Custody & Visitation, Family Law Blog | No Comments

If divorces weren’t already one of the most stressful things a person can ever go through in their life, the addition of custody battles over children brings a new painful and complex element to the mix. How to maintain full custody of your child can break down to several steps, most of which involve keeping track of every record, piece of paper, and signed document the court gives you during the duration of your divorce proceedings. And secondly, with your focus and enthusiasm, it will be clear your child should belong in your custody. While there is no sure fire way to maintain custody, there are 5 tips you can focus on to make the best case possible to maintain full custody of your children.

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FAQ: Does California Favor Mothers in Custody Disputes?

By | Child Custody & Visitation, Family Law Blog

Parenting is a tough job under any circumstances, but when divorce enters the picture worries arise over custody disputes, and for good reason. Little or no knowledge of the law in this area can lead to doubts and popular misconceptions taking over. One of the most common misconceptions, and most frequently asked questions, when it comes to California family court is California favors mothers in custody disputes. Is it true? The short answer is no, but let’s discuss why.

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5 Steps To A Successful Co-Parenting Relationship

By | Child Custody & Visitation, Family Law Blog

If you and your soon to be ex-spouse have minor children, you will need to find a way to have a successful co-parenting relationship. With any successful co-parenting relationship,  the interests of your children need to be put above your own. Though there are some situations which make it difficult or impossible to do so, for the majority of divorcing parents it will be necessary to form and maintain an amicable relationship. Children should not be put in the position of having to choose sides or suffer the fallout from emotional crossfire.

Here are some key practices that will help you graciously co-parent, giving your children the stability and close relationship they desire with both parents.

1. CREATE A PLAN

Set aside a time to sit down together to work out the routines and rules of your successful co-parenting relationship and, if you need to, include a mediator or parenting coordinator to assist you in the process. How detailed the plan should be depends on a number of factors, but if you’re dealing with an acrimonious divorce, you’ll most likely need to make it more comprehensive. Things to decide upon can include where and when the children will be picked up on transition days; how will holidays and birthdays be celebrated; and how long you’ll wait before introducing a significant other to them. As the children age, you should revisit the plan and make changes and adjustments accordingly.

2. EFFECTIVELY COMMUNICATE

If communication broke during the marriage, you’ll need some help in learning to interact with each other in a way that ensures you’re both understood by the other. Consider joint or separate counselling or attend a seminar that assists in re-establishing effective communication. If it is difficult to discuss issues face to face or by phone, try using electronic means, but remember wars of words can quickly escalate in emails. A good rule to follow is to write the email then walk away for some time, returning to objectively re-read what you’ve written. Only hit send when the tone is right and the issue you are addressing is clearly stated. Never communicate about crucial matters through your children.

3. TEAM WORK

Your children’s needs are your number one priority and the decisions you make should be based on their best interests. Don’t withhold important information from each other and be sure to make decisions as a parent team. Don’t play the children against the other parent by involving them first. Play fair. Finally, keep each other supplied with current contact information such as phone numbers, addresses, etc.

4. KEEP IT RESPECTFUL

When speaking about your ex, use positive or neutral comments and work hard to support a good relationship between your former spouse and your children. Remember the golden rule and treat your former spouse as you would like to be treated. Never, ever ask your children to act as spies or question them about their other parent.

5. CREATE HARMONY

Decide together which values you want your children to learn and make sure your parenting styles back up those values. Be consistent in both homes when it comes to routines, rules, school expectations, bedtimes and discipline. Make certain your children have everything they need at both homes and cheerfully fix problems that will inevitably occur in a two-household family.

Summary

Successful co-parenting requires a lot of patience, open communication and empathy. Keep the focus on the children and parents can make their experience a positive one.  Trying to navigate a successful co-parenting relationship can be difficult. It is important to hire an experienced family law attorney such as Minella Law Group with expert knowledge of the legal standards involved to successfully modify your current child custody visitation order. For more information or to schedule an appointment, click the button below, or call us at (619) 289-7948. We look forward to helping you!

Divorce Involving Children: 5 Steps to Immediately Protect Your Children

By | Child Custody & Visitation, Divorce, Family Law Blog

Divorces involving children can get very complicated. Each parent has ideas of what is best for your child. There are so many factors that will need to be considered for your children. In the best of situations parents work together to decide a parenting plan that is in the best interest of the child or children. Most parents truly only want what is best but often the pain of divorce can blind parents, causing strife and disagreement.  If this happens, the children can get dragged in and will be affected by the divorce.  Divorce and Children

My Spouse Brought the Children Into the Divorce Proceeding

There are times one or both spouses will attempt to use the children as leverage in the divorce. Maybe one spouse is so angry or hurt that the children are pulled into the divorce process as a way to hurt the other spouse and get the children on their particular side. This is extremely unfair to the children. There are steps you can take when this happens to protect your child. First and foremost you want your child to be safe.  In divorce involving children where a child has been dragged into the middle you will need to take steps to help yourself and your children.

5 Steps to Take to Protect Your Children While a Divorce Involving Children is Proceeding

  1. First all parents will be required attend a meeting with a with a court appointed counselor who has been trained to help establish a parenting plan and custody arrangements.
  2. Second if there are any concerns about the health and safety of your child you will need to ask for help to protect your child and take steps do so.
  3. Third reassure your children that you love them, that both and your spouse love them. Let your children know that you are not asking them to choose sides and that this is not their fault.
  4. Fourth if your spouse is causing psychological damage by dragging your children into the divorce, alert your lawyer so that she/he can help take steps to minimize the damage and seek legal protections for your children.
  5. Fifth it may be necessary to have your child go to therapy with a qualified specialist to help them understand that the divorce is not their fault and they are in no way to blame. Continue to reassure your child that both spouses love them and do not pressure your child to feel any certain way about the divorce

Children and the Divorce Process

Parents who attend parenting sessions with the court appointed counselor will be working towards setting up the future care and support of your children. It is important to attempt to let go of personal feelings about your spouse and focus on what is best for your children. If parents are unable to agree or if there are factors that could be endangering your child the legal system can step in. There are times that a judge will have either your whole family or your children go through a psychological exam to help determine the best custody arrangement.

Ultimately the judge is going to decide the custody arrangement for the divorce when parents can not agree. The judge can use a number of factors in making the determination. Overall if a spouse brings your children into the divorce it is up to you to protect them. This is why divorces involving children benefit from the help of a good lawyer. The lawyer knows the law and will work to make sure your children are protected as you go through the divorce process and even afterwards if needed. Your children should be your first priority during your divorce!

Summary

If you feel your children are being harmed by the divorce process or if you feel an agreement cannot be reached on custody, consider hiring an experienced family law attorney. They will work with you to find a solution that is in the best interest of your children.

Minella Law Group can help you with your divorce and child custody case. For more information or to schedule an appointment, click the button below, or call us at (619) 289-7948. We look forward to helping you.

Fathers Visitation Rights in San Diego

By | Child Custody & Visitation, Family Law Blog, Military Divorce

Fathers Visitation Rights in San Diego

Maintaining fathers visitation rights after a particularly heated divorce or during a separation procedure can be complicated.  It really helps to understand what fathers visitation rights you have as a father under California state law. If you and your ex have recently filed for divorce, the chances are high that you are going to be going through an emotionally fragile situation.  It is very likely that making strategic and sensible decisions may be more difficult, having emotional support through this process is important.

Knowing what fathers visitation rights in San Diego are in comparison to other custody orders, may help to ensure that you are well informed.  This is important so you do not lose any of your entitlements as a Father that you so desperately need in order to be able to continue to provide the care and attention to your child.  It is important to understand fathers visitation rights in San Diego.

What’s the difference between Legal Custody and Physical Custody?

Physical custody refers to the place in which the child will live, whereas legal custody refers to the individual rights of the parent to make decisions in the best interest of the child. This may include a parent deciding which school the child will attend, or whether they will seek certain forms of medical attention. As a father, you have the right to make decisions about your child with the other parent jointly.  Fathers visitation rights includes having joint legal custody to be able to make decisions about your child with the other parent.

The Role of Mediation in Visitation and Custody

Most of the time, when a couple is going through a divorce, the judge in question may order them into mediation in an attempt to resolve the dispute with as little conflict as possible. The idea is that the parents, by working together with an objective individual, will have the best opportunity to create a plan that protects the child’s best interests, and gives them both the results they need. The only threat that a mediator can present to a divorce case takes place if the couple going through the divorce cannot come to a reasonable agreement during their mediation sessions. Fathers visitation rights are addressed in this process, in San Diego mediation is a mandatory part of a custody case.

If an agreement cannot be formed, then the mediator will construct his or her own recommendation for the best options in visitation schedules and custody options. Since mediation is mandatory in San Diego, most judges will automatically give the recommendations of a mediator automatic approval, however if you do not agree with the mediator’s suggestion, you do have the right to contest the decision at court with an evidentiary hearing.

The mediator will take into consideration who has been the primary caregiver, where the parties live, how often the parties work, and the desires of the child.  It is important to fathers visitation rights, that these factors be presented accurately as it can mean the difference between joint physical custody or seeing your child on alternate weekends.

Rights to React Against Slander and Insults

When in the process of a divorce, insults usually go back and forth between the former wife and husband when they are alone and out of earshot, turning the children involved into prisoners that are caught between two important people in their lives. The result of this could be that your ex-wife starts to bad-mouth you in front of your children, which can be highly upsetting for you.

As a father, you have the right to keep the other parent from alienating you from your children through insults, by requesting a hearing that allows you to seek sanctions against your ex-wife. The rights of father’s in custody and visitation cases are more expansive in certain states than others. In California, for example, this may not be case and this is why you need to have a hard working and committed attorney who is walking you through this process so you know what the law is and how this affects you. Every case has different orders, as part of your fathers visitation rights you can make sure the orders include restrictions on communications with any minor children.

Minella Law Group can Help!

The dedicated attorneys as Minella Law Group can help guide you through the difficult and emotional process of seeking custody orders as a father in San Diego.  Minella Law Group is experienced in child custody cases and can give you immediate hands on representation that you need.  For more information or to schedule a no cost consultation, click the button below or call us at (619) 289-2748.  We look forward to helping you!

Preparation Tips – Sole Child Custody

By | Child Custody & Visitation

Preparation Tips – Sole Child Custody

Achieving sole child custody of a child or children, is for some parents, the most important battle of their lives. Full child custody, or sole child custody, implies that all parental rights will be given to one single parent. Most judges will be content to grant joint custody to both parents, but if one parent is unfit to care for a child, because they are abusive, unfit, or suffer with an addiction, then the court may be asked to consider giving sole child custody rights to one parent. However, filing for sole child custody is a difficult process, and it is certainly not something you should attempt to handle alone.

You will need to hire a professional who is familiar with the laws of your state and can help you fill out the correct paperwork to make a great case for sole child custody. Remember, leaving out important information or incorrectly completing forms could lead to a custody agreement which does not meet the needs of you, or your child. Most of the time, the best thing that you can possibly do to strengthen your case, is to make sure that you are adequately prepared. Getting sole child custody is not an easy task so it is important that you are prepared to meet your burden.

Find out Which Forms You should be Filing

Each state will handle child custody cases differently, but there will always be specific paperwork for you to complete, and this means finding the correct forms. The type of forms that you file will be determined according to your individual circumstances, and it may be useful to visit your local clerk if you need further information on starting the procedure. Your attorney should be able to help you here, but making sure that you are properly educated can be useful too. Some forms that may apply to your case include:

  • Request for orders on child custody and visitation.
  • Petition to establish a parental relationship
  • Petition for custody visitation
  • Petition for dissolution

These are all proper forms used to have a hearing on sole child custody in California, what you will use will depend on the exact circumstances of your case.  Your attorney can assist you in determining the specific needs in your case.

Gather the Evidence to Support your Case for Sole Child Custody

Once you’ve figured out your first steps, it will be time to gather the appropriate evidence to support your case. Although most judges will rarely offer sole custody to a parent, there are factors which can have a significant impact on their decision, and may even sway a judge towards your favor. For example, if you can prove that the other parent is unfit to care for your child, then you may have a stronger case. Collect police reports, witnesses, correspondence, and medical bills that may show that the other parent is a dangerous influence on your child.

Here are some of the factors a judge may consider when establishing a decision:

  • The employment history of the other parent, and whether they are capable of providing financially for a child.
  • The housing situation of the other parent, and whether they can provide a safe home or living arrangement for the child.
  • Any history of physical, emotional, or sexual abuse is seriously considered by family courts, and is typically one of the most important factors in coming to a decision.
  • Whether one of the parents is emotionally and physically capable of caring for the child in question.

Minella Law Group can Help!

If you are facing a custody case and are requesting sole child custody of your child, it is important to have an experienced attorney by your side.  Minella Law Group is experienced in child custody cases and can give you immediate hands on representation that you need.  For more information or to schedule a no cost consultation, click the button below or call us at (619) 289-2748.  We look forward to helping you!

Move Away Requests in San Diego

By | Child Custody & Visitation

The Facts About Move-Away Requests in San Diego

If someone were to ask a family law judge about the most difficult type of case they have to preside over, most of the time, the answer would be a move-away request.  A move away is where one party seeks to relocate themselves, and their child, to another geographic area. The destination could be 50 miles away, or 2,000 miles, making it difficult for the other parent to maintain a relationship with their child.

If the court does grant the move away request, the non-custodial party will no longer be a significant part of their child’s day-to-day life. However, if the court denies the move away request, and the custodial parent has no choice but to move away, then the child will be separated from the parent they may have the closest bond with. Either way, the circumstances are tough on the child.

What the Court will Consider

In move away requests, the court will consider various different factors, including:

  • The distance of the move away, if a move away is only a couple of hours away, it may be considered as less disruptive to the life of the child, and that child’s relationship with the non-custodial parent. However, a move away that takes the child across country, or to a different part of the globe, could require greater scrutiny. Usually, in international cases, the court will need to consider cultural differences, including potential, language, and dangers within the country where the child will be raised by the custodial parent.
  • The age of the child. Sometimes, a  move away that is far away from the other parent can be seen as more detrimental to a younger child who has a strong attachment to both parties.
  • The reason for the move away. In California, the parent does not have to justify their reasons for moving, but if there is evidence that the purpose of the move away is in bad faith, for example to interfere with the relationship between the child and non-custodial parent, the court will consider this in their decision.
  • The child’s relationship with each parent. The court will examine the relationship of the child with each parent and consider the attachment that may be present. If there is conflict between a parent and child, the court may appoint a child custody evaluator to make a decision.
  • The relationship between the parties. Do the parties engage in a healthy co-parenting relationship or is one parent undermining the other? If there is a significant distance between the parties there needs to exist a healthy co-parenting relationship or the noncustodial parents relationship with the child will suffer.
  • Where the child wants to live. In some cases, the child may be able to make a statement about where he or she wishes to live. In California, the law requires that children over the age of fourteen must be allowed to testify unless the court believes it will be harmful for the child.

Critical Decisions to Make

Whether you are the parent seeking a move-away request, or the non-custodial parent, you should seek the assistance of an experienced move-away request attorney when it comes to dealing with an issue that can determine how much time you spend with your child. Your lawyer should be able to give you advice on the factors within your case that may influence the court, as well as what you could do to strengthen your position and effectively present your case.

Minella Law Group can Help!

If you are facing a move-away request it is important to have an experienced move-away request attorney by your side.  Minella Law Group is experienced in move-away requests and can give you immediate hands on representation that you need.  For more information or to schedule a no cost consultation, click the button below or call us at (619) 289-2748.  We look forward to helping you!