Family law attorneys,child support,custody issues,seperation and divorce

Practice Areas

Criminal Defense | Personal Injury | Family Law | Miscellaneous

Family Law

Divorce - How Does The Process Work?

Domestic Violence

Spousal Support

ISSUES RELATED TO CUSTODY AND SUPPPORT OF MINOR CHILDREN

Whether as a part of divorce proceedings, or in a separate action between non-married couples, issues related to child custody could be amongst the most heart breaking and painful matters which attorneys and the judicial system has to deal with. Following is a brief description of the current state of California law with regards to custody of minor children.

CUSTODY OF CHILDREN

Physical Custody:
Physical custody refers to that parent or parents who has the physical responsibility for the care of the child. Joint physical custody" means that each of the parents shall have significant periods of physical custody, although parents can share joint custody even if the timeshares are disproportionate, such as an alternate weekend schedule for one parent and the other parent having the rest of the time. Sole legal custody means that one parent clearly has the lions share of time, as well as usually responsibility. Oftentimes attorneys avoid the use of either sole or joint custody and use the term "primary physical custody" to designate the parent who has day-to day care of the child. California law does not have any designation known as primary physical custody, and this may cause problems under certain circumstances, such as in a move-away case.

Legal Custody:
Legal Custody refers to the parent/s who will have the decision-making authority relating to the health, education, and welfare of a child. Joint legal custody means that both parents have the authority to make decisions regarding the child's health, education, welfare, religion, drivers license, etc. Sole legal custody means that one parent may make all of these decisions.

CHILD SUPPORT

The court based on a formula accessible by most competent attorneys and after considering the finance of each parent will issue an order for the amount of child support, which should be paid by the non-custodial parent. This order will take into account the amount of time children spend with the non-custodial parent, the day care arrangement in place for the custodial parent and the non-custodial parents other support obligation. It is very important that at this crucial stage of the proceedings an attorney familiar with the court rules and procedures represents both he custodial and non-custodial parent. The Superior Court provides a mandatory mediation service, which assists all parents who have a dispute regarding custody and visitation. Attorneys are generally not allowed to be present during the custody and visitation mediation when conducted through the auspicious of the Superior Court. An attorney's involvement in the process is to assist the parent in becoming ready for the mediation appointment and focused on the best interest of the child or children.

An experienced attorney can be of great assistance in the preparation for the mediation conference. Yet, the attorney's true contribution will be in formalizing any agreements reached and/or litigating any dispute unresolved through the mediation process.

Child Support Security Account/Electronic Funds Transfer:
The court can require the paying spouse to deposit up to one year's payments to fund an interest-bearing trust account for the supported child. The account acts as a continuing guarantee for monthly child support payments; disbursements to satisfy support arrears will be ordered if payments become 10 or more days overdue. This method of enforcement is often used where the obligor spouse is self-employed or frequently changing jobs. [California Family Code Sections 4560, 4561, 4570]

WHAT HAPPENS IF CIRCUMSTANCES CHANGE?

Under California Law, certain orders may be modified after a final judgment has been made. There are three areas in which post-judgment modifications are commonplace-- Child Custody/Visitation Orders, Child Support orders, and Spousal Support orders. The court will not Modify the Property Division that has been

Adjudicated by a Final Judgment, however, there is a possibility that even such judgments may be rescinded if a timely set-aside motion under Ca Civ Pro § 473(b) or Ca Fam § 2120 et seq. set-aside proceeding on statutorily-prescribed grounds and within statutorily-prescribed time limits is brought.

Modification of Child Custody/Visitation Orders:
Child custody and visitation orders are generally modifiable whenever the court finds a modification is "necessary or proper" and in the child's best interests. [Ca Fam § 3022]. Typically, the parent seeking a modification must show a "significant change of circumstances" that would support such a modification.

Modification of Child Support Orders:
Child support orders are modifiable "at any time as the court deems necessary." Even if the parties have agreed that support may not be modified, child support may be modified at any time to the mandatory statewide child support guidelines.