Farzad Family Law http://farzadlaw.com Orange County Divorce Attorneys Sun, 17 Dec 2017 06:21:39 +0000 en-US hourly 1 https://wordpress.org/?v=4.9.1 How Do I Prepare for Custody Mediation? http://farzadlaw.com/california-child-custody/how-do-i-prepare-for-custody-mediation/ http://farzadlaw.com/california-child-custody/how-do-i-prepare-for-custody-mediation/#respond Wed, 06 Dec 2017 15:00:19 +0000 http://farzadlaw.com/?p=11641 How do I prepare for custody mediation? What should I review, what should I say and what really happens? These are all questions parents with a California child custody case ask before they walk into a custody mediation. What is a child custody mediation? The child custody mediation to which we refer is the mandatory […]

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How do I prepare for custody mediation? What should I review, what should I say and what really happens? These are all questions parents with a California child custody case ask before they walk into a custody mediation.

What is a child custody mediation?

How do I prepare for custody mediation?

How do I prepare for custody mediation? Child custody mediation is a mandatory process before the family court will hear your custody case. Learn more about how to prepare for it.

The child custody mediation to which we refer is the mandatory mediation at court. The court sets this mediation date when a parent files a request for child custody order. This is not a private mediation with a privately paid mediator, where the parents get to choose a retired judge or lawyer to be the mediator. This is the mediation to which Family Code 3170 refers and which states:

“(a) If it appears on the face of a petition, application, or other pleading to obtain or modify a temporary or permanent custody or visitation order that custody, visitation, or both are contested, the court shall set the contested issues for mediation.

(b) Domestic violence cases shall be handled by Family Court Services in accordance with a separate written protocol approved by the Judicial Council. The Judicial Council shall adopt guidelines for services, other than services provided under this chapter, that courts or counties may offer to parents who have been unable to resolve their disputes. These services may include, but are not limited to, parent education programs, booklets, video recordings, or referrals to additional community resources.”

How do I prepare for custody mediation when the other parent is so unreasonable?

This is probably the most common question we get. We hear the following:

  • “The other parent is a nightmare to deal with…”
  • “I just cannot imagine being able to come to an agreement with someone like that.”
  • “How can I possibly prepare for custody mediation with a parent like that?”

Do not pressure yourself to agree

First, you are under no obligation to come to an agreement at a custody mediation. You should only come to an agreement you believe is in the children’s best interest. Nobody can pressure you into agreeing to a custody plan that you believe will not work or will otherwise harm the children. Do not put that kind of pressure on yourself.

Be reasonable

Second, your obligation is to engage in good faith negotiations and to actively participate in the mediation. That means you:

  • Walk in with an open mind,
  • Remain willing to listen, and
  • You will be reasonable throughout the entire mediation process.

But being reasonable does not mean you have to agree to something you do not want for the children.

Focus on what you believe is in the children’s best interest

Let’s now answer the core question.

The other parent is unreasonable. He or she is difficult, extremely stubborn and narcissistic. Maybe the other parent just wants to use the children as leverage and really doesn’t care about parenting time. Perhaps the other parent just cares more about child support. Or the other parent just wants to make this as difficult as possible on you.

No matter what the reason, the most effective way to prepare for a custody mediation when you have a parent like that is to make the other parent irrelevant in your decision making process. What do we mean by that?

Have you ever seen and heard a barking dog that barks for no reason? What do you do? Go up to the dog and try to negotiate with it? No, you leave it alone. Don’t let the other parent’s barking, attempts at intimidation or other tactics stress you out. Don’t let emotions make your decisions for you.

You don’t have to worry about what the other parent thinks or feels to prepare for custody mediation. You just have to be clear about what you believe to be in the children’s best interest and why. The “why” part is important because you also do not want to be unreasonable. It is not enough to say, “I want this custody plan because I want it,” without being able to articulate a logical, child-centered reason for it.

How do I prepare for custody mediation when I do not know what parenting plan makes sense for the children?

You want to prepare for custody mediation but you feel overwhelmed. You don’t know what parenting plan schedule actually makes sense for the kids. What do you do? Do not worry.

There are parenting plans out there you can read. For example, here in Orange County, we have the Orange County parenting guidelines that set forth specific parenting schedules based on the children’s ages and needs. These parenting plans are specific and it is rare that a parent cannot find a plan in the guidelines that work well for their situation.

No matter where your case is in California, the Orange County parenting guidelines are usually a good educational start. If your county has its own parenting guidelines, I encourage you read those as well.

What documents should you read to prepare for custody mediation?

Chances are pretty good that you or the other parent filed a request for order and that set the mediation. Hopefully, if the other parent filed the request for order, you timely filed and served your responsive declaration to the request for order.

These two sets of documents are the starting point to prepare for a custody mediation. The request for order that initiated the process and the responsive declaration should tell the factual story of what the moving and opposing parties want. But it is not an ending point.

Review court orders for modification cases

If there are active court orders on custody, you should definitely re-review those to make yourself familiar with it. For example, if the custody mediation is actually about a modification request either you or the other parent seeks, be very familiar with the current order you or the other parent seeks to modify. In addition, if there are exhibits, review and become familiar with those.

The more complex the case, the more prepared you should be

What you review depends on what is at issue in front of the court. If it is a simple modification and there are no separate exhibits, then there is probably not much to review beyond the documents filed and served. What if the custody hearing is over complex issues that involve domestic violence, neglect, substance abuse, or any other complex issue? In such a situation, you may have a lot more documents to review to prepare for mediation.

Prepare to be confident and organized

You may wonder why it is necessary to review documents. You review documents to prepare for an intelligent dialogue with the mediator about the case. Sitting there in mediation fumbling through paperwork and not knowing your own position is not going to make a favorable impression on the mediator. It may end up wasting an opportunity for you and the other parent to resolve issues.

In addition, the other parent may rethink his or her position due to your preparation. Think about it this way. The other parent sees you confident, organized and ready to discuss all of the issues. The other parent realizes facts support your position. Don’t you think that may cause him or her to perhaps think twice about his or her own position?

How do I prepare to speak with the custody mediator?

The custody mediator should have two objectives:

To understand each parent’s position on custody issues and the facts that support that position.

To help the parents reach a reasonable compromise.

Here is a list of the do and do not’s with the custody mediator

  • Have a candid discussion with the mediator regarding the facts.
    • Do not argue with the mediator. You can present your position factually and logically without raising your voice or getting into an emotional argument.
  • Be clear with the mediator if what the other parent stated is false and provide the facts that support your contention.
    • Do not disparage the other parent or make personal attacks against him or her.
  • Listen to the mediator and his or her perspective on the custody issues so you can determine whether the mediator gives you a perspective you perhaps did not think about before.
    • Do not be intimidated or pressured into coming to an agreement just because the custody mediator really thinks you should.
  • Listen carefully to what the other parent states and take notes so you are clear on his or her position.
    • Do not interrupt the other parent while he or she speaks. Be polite in your dialogue when you speak. If the mediator sees you as being polite and professional while still a concerned and loving parent, you are more likely to make a positive impression on the mediator.

How do I prepare for custody mediation if my county is a reporting county?

A reporting county is a county where the mediator actually makes recommendations to the family law judge after the mediation. In Riverside County, they are called Child Custody Recommending Counselor. I am personally not a fan of this process at all but certain counties in California are reporting counties and the judges actually get to read the mediator’s recommendations. Preparation in counties like this is even more important than non-reporting counties. What we wrote above about knowing the case and the facts are critical in reporting counties because of the mediator’s reporting power.

Do not confuse “reporting” mediators with the powers to make decisions. Just because the mediator made a recommendation does not mean the judge will agree with it.

How do I prepare for custody mediation when I have a lawyer?

Your attorney should be the one who prepares you for mediation. If there is a mediation on your case and your attorney has not set a time to speak with you before the mediation, that is in our opinion unusual. You should contact your attorney and set that appointment to speak with him or her about the mediation process. At our firm, we set these appointments and we prepare our clients thoroughly before they walk into the custody mediation.

Contact us if you need help with your child custody case

If your family law matter is in Orange County, Los Angeles County or Riverside’s central court on Main Street, please contact us for an affordable strategy session to discuss your specific situation. Our family law firm is highly experienced in handling pending and post-judgment divorce and parentage matters.

Nothing contained on this page or on our website is legal advice nor should it be construed as such. It is not intended to apply to your specific situation or answer your specific questions.

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How Long Do You Have to Pay Alimony After a Divorce? http://farzadlaw.com/california-spousal-support/how-long-you-pay-alimony-after-divorce/ http://farzadlaw.com/california-spousal-support/how-long-you-pay-alimony-after-divorce/#respond Mon, 27 Nov 2017 15:00:48 +0000 http://farzadlaw.com/?p=11603 How long do you have to pay alimony after a divorce? And where do you start to find out? Thank you visiting our law firm’s website. We hope you find this article helpful. Let us dive right into the question. Everything we write here is about California family law. How long do you have to […]

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How long do you have to pay alimony after a divorce?

How long do you have to pay alimony after a divorce? Read our instructive article to learn more

How long do you have to pay alimony after a divorce? And where do you start to find out?

Thank you visiting our law firm’s website. We hope you find this article helpful. Let us dive right into the question. Everything we write here is about California family law.

How long do you have to pay alimony after a divorce judgment?

If your divorce is truly final, then you have a divorce judgment which sets forth specific orders regarding alimony. That divorce judgment may be after a contested divorce where the judge made the decision on alimony. That divorce judgment may be after an uncontested divorce where you and your ex-spouse resolved the issues. Regardless, how long you have to pay alimony after a divorce may depend in large part on the judgment language.

Is the language in your judgment the typical alimony language?

For example, the typical alimony order states one person pays the other person alimony at a set amount each month until:

  1. death of either party,
  2. remarriage of the person who receives alimony, or
  3. further order of the court.

In short term marriages, as we discuss below, there is usually an end date for alimony. In long-term marriages, it can be left open ended or there can also be an end date.  There are numerous different ways a judgment may recite alimony terms. Therefore, those terms can significantly impact how long a person has to pay alimony after a divorce.

So what is the lesson here? An experienced family law attorney should carefully review your divorce judgment. That attorney can then tell you what impact it may have on how long you have to pay alimony.

Let’s talk about short and long term marriages

You may wonder what we mean by a short-term marriage. Typically, California law calls a short-term marriage a marriage of under 10 years. If a marriage is for example only five years in length, it is a short-term marriage. But what about a marriage that is nine years 11 months? Is that a short-term marriage even though it got very close to the 10 year mark?

Short answer is, “it depends.” The court has the power to treat a short-term marriage as a long-term marriage. It also has the power to sometimes treat a long-term marriage like a short one. There is no black-and-white rule on the 10 year topic. Our experience is unless there are unusual circumstances involved, if the marriage is nine years or less, it will be treated as a short-term marriage. A marriage that is between 9 to 10 years can sometimes be in that gray area.

A long-term marriage is a marriage that is 10 years or longer. Typically, per California Family Code 4336, the court continues to reserve its jurisdiction to order alimony in a long-term marriage without a termination date unless the parties agree otherwise or the court orders otherwise. But, as you will read below, just because spouses hit a 10 year marriage does not mean the court will not terminate alimony.

How long do you have to pay alimony after a divorce in a short-term marriage?

We will assume there are no unusual terms in the divorce judgment regarding the alimony. We will also assume the divorce judgment does not have its own termination date for alimony.

In such a scenario, a person who had a short term marriage usually pays alimony after the divorce judgment until approximately half the duration of the marriage. And if the judgment does not contain an express termination date, that person must go to court and ask the court to terminate alimony.

Don’t make the mistake of making assumptions alimony will terminate on its own

The mistake some people make is to assume just because they have paid alimony for half the duration of a short-term marriage, they can simply stop paying it. But unless the actual divorce judgment terminates alimony at the half-way mark, the alimony may continue after that time. That is why an attorney must review your judgment to give you advice. So how long you have to pay alimony after a divorce judgment in a short-term marriage is not something you can assume. Just because you hit the one half way duration of the marriage mark does not mean alimony automatically ends. Instead, you should seek a family law attorney’s advice to tell you when the appropriate time is to proceed to court and end alimony.

How long do you have to pay alimony after a divorce in a long-term marriage?

Let’s assume the judgment does not have its own termination date, the judgment simply states alimony is paid until the death of either party, the remarriage of the person who receives alimony or further order of the court. The length of time will depend on whether there is a material change of circumstances that justifies the paying person to go to court and seek a modification. We discuss this further below.

While death and remarriage automatically cut off alimony, unless the parties agreed otherwise in their divorce judgment, alimony in a long-term marriage can go on for more than the one-half the duration of the marriage. For example, in a 12 year marriage, alimony can certainly exceed the six year mark. But alimony can also be terminated under the six year mark if there are proper material change of circumstances.

How long do you have to pay alimony after a divorce in a very long-term marriage?

California law does not define a very long-term marriage. For practical purposes, we consider marriages of 20 or more years to be very long-term. And practically speaking, it is probably easier to terminate alimony in a marriage that is 10 years and one month that it is in a marriage that is 30 years and one month. How much easier of course depends on the facts of each case.

So let us now talk about the very important material change of circumstances that can greatly impact how long a person can pay alimony after a divorce.

Material change of circumstances that affects the paying person’s ability to pay

A common basis to modify alimony is a material change of circumstances that affects the paying person’s ability to pay. Ability to pay is a significant component of any alimony order.  Typical material change of circumstances that affect ability to pay include:

The above are not the only grounds. Each of these may be grounds for a downward modification or termination of alimony.

What is termination?

When we refer to the word termination, there are two types. Termination of alimony may simply mean alimony is set at zero. Termination of jurisdiction, which is the court’s power, is something different. Terminating the court’s power based on a material change of circumstances in ability to pay is harder to obtain in a long term marriage.

In short term marriages, a reduction in ability to pay may terminate the court’s power to order alimony depending on how long the person has already paid alimony. For example, if the person who seeks the modification and reduction or termination is close to the one-half duration of the marriage mark, the court may set alimony at zero and then also order it terminated at the one-half duration. These types of proactive orders help the parties not have to come back to court unless there are further material change of circumstances before then.

We encourage you to also read our article on how to avoid paying alimony that is too much and for too long.

Material change of circumstances that affects the receiving person’s “need” for alimony

Just as ability to pay can impact alimony, so can “need.” Need refers to the person who receives support and their need for ongoing support. The following are a few common examples of events that can impact need:

  • The receiving spouse’s increase in income,
  • The receiving spouse’s cohabitation with a non-marital partner,
  • The receiving spouse’s reduced living expenses, or
  • The receiving spouse’s acquisition of assets which reduce or eliminate a need for ongoing alimony. We sometimes see this in situations where the receiving spouse receives an inheritance.

The above are not the only events that can impact “need.”

All of these can have an impact on how long a person has to pay alimony after a divorce. If a receiving spouse’s need decreases or is eliminated, the spouse who pays alimony may proceed to court and seek a modification. Again, that modification may be a reduction in alimony, placing alimony at zero or even terminating the court’s power to order further alimony. And once again, whether the marriage was of a short-term or long-term duration can have an impact in what direction the court goes.

What impact does the failure to make reasonable efforts to become self-supporting have on how long a person has to pay alimony after a divorce?

We wrote an article on this topic of Gavron warnings in California. We encourage you to read it. A spouse who receives alimony and who has been given an admonition to become self-supporting plays a dangerous game if he or she fails to make reasonable efforts to become self-supporting. In such a circumstance, the court has the power to reduce alimony or eliminate it altogether.

Was this article helpful?

We hope you enjoyed this article on how long you have to pay alimony after a divorce. If your family law matter is in Orange County, Los Angeles or Riverside’s Central Court, please contact us for a strategy session and we can discuss your specific situation and determine whether you have proper grounds to modify alimony after your divorce or, if you are the spouse who receives alimony, whether you have proper grounds to oppose such a request.

We also encourage you to check out our comprehensive guide on California alimony laws.

Nothing contained on this page or on our website is legal advice nor should it be construed as such. It is not intended to apply to your specific situation or answer your specific questions.

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Marriage of Furie Appellate Decision http://farzadlaw.com/family-law-appellate-decisions/marriage-furie-appeal/ http://farzadlaw.com/family-law-appellate-decisions/marriage-furie-appeal/#respond Fri, 24 Nov 2017 15:00:26 +0000 http://farzadlaw.com/?p=11595 Marriage of Furie is an appellate decision from October 30, 2017. The 2nd District, Division 1, in Los Angeles handled the appeal. The parties were Russell Furie and Kelly Furie. The following is a brief summary that explains what we consider to be the more important issues on appeal and the appellate court’s ruling. Marriage […]

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Marriage of Furie is an appellate decision from October 30, 2017. The 2nd District, Division 1, in Los Angeles handled the appeal. The parties were Russell Furie and Kelly Furie. The following is a brief summary that explains what we consider to be the more important issues on appeal and the appellate court’s ruling.

Marriage of Furie’s brief summary of facts

The parties entered into a stipulated judgment with the following provisions:

  • Joint legal custody,
  • Russell Furie to maintain health insurance of the minor children,
  • Russell Furie to pay $1,454 per month in child support,
  • Russell Furie to pay half of uninsured medical cost,
  • Russell Furie was awarded the family home and was to continue paying the mortgage allowing Kelly Furie and children to continue living there until the youngest child was eighteen.

There were two businesses both awarded to Russell Furie. Russell Furie transferred one of the businesses to a trust prior to filing for bankruptcy. The Trust had a spendthrift clause. While the business was in a Trust, the trial court ordered child support to be paid out of the Trust. Russell Furie then sold the business that was in the trust to his Russell Furie via a promissory note.

Marriage of Furie’s trial court ruling

The trial court filed a statement of decision on March 18, 2013, ordering Russell Furie to immediately turn over a promissory note for the sale of a business to Kelly Furie and to contribute an additional $1,000 to Kelly Furie’s attorney’s fees.

Trial court granted Kelly Furie sole authority over the children’s orthodontic care and Russell Furie to pay half of uninsured medical expenses.

The trial court determined Russell Furie controlled the trust and allow payment of child support from the trust.

Marriage of Furie’s issue on appeal

  • Russell Furie’s renewed request to reduce support or vacate or reconsider March 18, 2013, turnover order which ordered him to turn over a promissory note to Kelly Furie.
  • Kelly Furie’s request for sole legal custody. Kelly Furie filed a request for the trial court to modify the child custody and visitation orders based on Russell Furie’s refusal to co-parent on orthodontic issues and for reimbursement of uninsured orthodontic expenses.
  • Whether the trial court have the authority to determine Russell Furie controlled the Trust.

Marriage of Furie’s appellate holding

The trial court correctly denied the request to reconsider or vacate the March 18, 2013, order because the request was untimely.

The trial court did not abuse its discretion when it found Russell Furie owes Kelly Furie half of the amount of orthodontic expense which were uninsured medical expense. Further, the trial court properly awarded Kelly Furie sole authority regarding orthodontic issues.

Trial court had jurisdiction to determine Russell Furie controlled the trust at his hearing to reduce his child support obligations.

Reason for appellate holding

Untimely request pursuant to Code of Civil Procedure 663a an 1008(a)

The request to reconsider or vacate the 2013 order, was brought before the court on August 24, 2015. Under Code of Civil Procedure 663a or 1008(a) the trial court was without jurisdiction to consider either motion because the request was untimely.

The uninsured medical expenses

The stipulated judgment stated Russell Furie would pay half of uninsured medical expenses. The stipulated judgment did not invoke section 4062 or 4063, so the trial court was not required to consult those sections to determine if particular cost falls within their scope. The trial court was only required to answer the question if the cost was an uninsured medical expense. There was substantial evidence presented that the cost were uninsured.

Sole legal authority over orthodontic care

There was no abuse of discretion awarding Kelly Furie sole authority over the minor children’s orthodontic care because a request to change parenting or visitation arrangements is viewed under the best interest of the child standard not significant change of circumstance. Orthodontic care falls within the best interest of the child standard.

Failure to object at the trial court means a waiver of the right to claim a statement was deficient

However, the trial court did not find the modification was in the best interest of the children, and Russell Furie did not object or note the omission of the trial court. After a trial court issues a statement of decision, Code of Civil Procedure section 634 requires a party to state any objection to the statement in order to avoid an implied finding on appeal in favor of the prevailing party. CCP §634 states if an omission or an ambiguity are timely brought to the trial court’s attention, the appellate court will not imply findings in favor of the prevailing party. If a party does not bring deficiencies to the trial court’s attention, he waives his right to claim on appeal that the statement was deficient, and the appellate court will imply the findings to support the judgment.

Russell Furie did not object or note the omission of the trial court and therefore Russell Furie waived his rights. It was proper the trial court granted Kelly Furie authority over the children’s orthodontic care and Russell Furie was to pay half of uninsured orthodontic expenses.

Modification of child support

Russell Furie requested a modification to his child support stating a change in circumstance. The trial court was then required to determine what resources were available to Russell Furie to satisfy his child support obligations. (Family code §§ 4005, 4008, 4011, 4058). “The trial court has discretion to enter “any… order as the court in its discretion determines from time to time to be necessary” to enforce child support obligations.” (Family code §290).

The Russell Furie had a Trust that the trial court ordered child support payments to be paid from. Probate Code §15304 and 15305 allows a court to reach a trust to satisfy child support obligations, arrears, and attorney fee awards. Probate Code § 15304, subdivision (a) states if the trust settlor is also the trust beneficiary and if the settlor’s interest is subject to a spendthrift clause, that clause is invalid against transferee and creditors. Subdivision (b) allows any transferee or creditor to reach the maximum amount the trustee could pay for education and support expense as long as the amount does not exceed the settlor’s proportionate contribution to the trust.

Russell Furie is the Trust settlor, sole beneficiary and he contributed all the Trust’s assets and therefore the Russell Furie’s interest in the Trust is not subject to the spendthrift clause. The trial court did not abuse its discretion when Kelly Furie was allowed to reach the Trust assets to satisfy Russell Furie’s child support obligations.

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How to Get Custody as a Father? The Answer May Surprise You http://farzadlaw.com/divorce-in-california/how-to-get-custody-as-a-father/ http://farzadlaw.com/divorce-in-california/how-to-get-custody-as-a-father/#comments Mon, 09 Oct 2017 02:41:45 +0000 http://farzadlaw.com/?p=1537 How to get custody as a father? Whether that is full custody from the mother or joint custody with the mother, a father must plan and prepare carefully to obtain custody. We should know. We have represented many fathers who found themselves in custody battles, sometimes with an unrelenting mother, and we still helped those […]

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How to get custody as a father

Wondering how to get custody as a father?
Read this informative article.

How to get custody as a father? Whether that is full custody from the mother or joint custody with the mother, a father must plan and prepare carefully to obtain custody. We should know. We have represented many fathers who found themselves in custody battles, sometimes with an unrelenting mother, and we still helped those dads prevail.

What you read here is not a magical formula on getting custody. There is no such thing. Instead, this article will focus on the much needed dose of common sense and California law. Why? So that you do not allow yourself to get suckered in by those who oversell themselves as “fathers rights attorneys” as if they somehow have a special knowledge of the law or some secrets on how to get custody as a father.

Getting custody as a father focuses primarily on one thing – the children’s best interest. That best interest standard means the child or children become the court’s focus, not you and not the mother. And if the family law judge will focus on the children’s best interest, then you must too. How? Keep reading.

Get whatever bias you think exists in family court out of your head now.

If we are going to get anywhere, you need to do one thing first – if you really believe there is a bias against fathers in California family court, please get it out of your head. Of course, I refer to our family courts here in Southern California, where we handle cases. I cannot speak for every court in the State. And if there really was a bias, there is no way we would get the results we get for dads. My experience is fathers who claim a bias did not prevail in family court and one of two things usually happened. They either did not have the facts to prevail or they did a poor job in presenting their case.

Family Code 3040.

The first part of Family Code 3040 reads:

(a) Custody should be granted in the following order of preference according to the best interest of the child as provided in Sections 3011 and 3020:

(1) To both parents jointly pursuant to Chapter 4 (commencing with Section 3080) or to either parent. In making an order granting custody to either parent, the court shall consider, among other factors, which parent is more likely to allow the child frequent and continuing contact with the noncustodial parent, consistent with Sections 3011 and 3020, and shall not prefer a parent as custodian because of that parent’s sex. The court, in its discretion, may require the parents to submit to the court a plan for the implementation of the custody order…”

The law specifically forbids bias. The reason a father who wants to get custody needs to let this issue go is it does nothing to help him with the ultimate goal. It either becomes a built-in excuse, a distraction or both. None of those help a dad who wants to get custody of his child or children put on a persuasive case consistent with the facts and law.

How to get custody as a father requires a dad to first decide on full versus joint custody.

There is a big difference between joint and sole custody (also called full custody). Joint custody can be shy of equal parenting time (although not by much) or equal parenting time. Sole or full custody means the father wants the much larger parenting time (typically 65% or more).

The strategy changes between joint versus full custody because, with full custody requests, family law judges will want to know why the father believes he is better suited to primarily care for the child. In other words, the judge will want to know why full custody to the father is in the child or children’s best interest. With joint custody requests, the focus is more on why it is in that best interest to share parenting time.

Is one much harder to get? That depends on the facts. If the mother and father are both good parents, neither is a danger to the child and both have the reasonable time to dedicate to their parenting, joint custody makes more sense. But if the mother refuses to co-parent, disparages the father to the child or children, makes false allegations of abuse or neglect or is alienating the children? Then the father should seek full custody.

What we do at our family law firm is evaluate the facts with the law and, in collaboration with the father we represent, decide together whether it makes sense to ask for joint or full custody.

Now, let us look at some specific considerations.

When evaluating how to get custody as a father, we need to look at the “time” you have for parenting.

The traditional American marriage still has a husband and father who works full-time and a wife and mother who either works less hours, earns less pay and/or does not work at all. While this is less common today compared to decades ago, it still pervades the majority of divorce cases we see.

For fathers who have full-time jobs and young children who are not yet in school, the practical problem and fear of not getting quality time with the children is an issue near and dear to the dad’s heart. Thus, it is important that fathers with full-time or heavy work schedules obtain a custody and visitation schedule that maximizes the quality time with their children.

What is quality time for fathers who want custody?

Quality time includes days that the father does not work such as weekends as well as evenings during the week. Vacation and holiday time is a critical part of a working father’s schedule. Depending on the children’s ages, frequent and regular contact (even in short bursts of time) may be a must to continue the bonding process and ensure the child does not become distant from the father. This is where the Orange County Parenting Guidelines which we reference and explain on this website, come in handy. We encourage you to read them. Even if your case is not in Orange County, we believe these guidelines will help you understand the different types of common parenting plans available.

What about custody for fathers when children are bonded with both parents?

In situations where both the father and mother work full-time and the children are equally bonded with both parents, no special preference should be given to the mother in the custody schedule. If two parents have very similar work schedules and it is otherwise in the children’s best interest to spend equal time with the parents, any day care or other childcare arrangements should be equally made between the parents so that both parents enjoy equal time with their children when they’re not working.

What about custody for fathers with heavy travel schedules?

For fathers who travel extensively due to their work schedules, flexibility and make up time is an important part of any custody and visitation schedule. If a father is going to miss one or more weeks of time with their children, a custody and visitation order can layout how the time will be made up after the father returns from the business trip.

Bonding with your children is a big part of getting custody for fathers.

A custody order with frequent and regular contact does not just happen because you want it. If, during your marriage, you have not spent very much time with your children and are not bonded with them, you face an uphill climb if you intend to suddenly, after separation, get 50/50 custody.

That however does not mean you should give up on your children and take whatever custody and visitation schedule is offered to you.

Fathers need to make their children a priority in their lives if they want custody.

For fathers in such a situation, it is time you make the choice. Are your children a priority in your life or not? If you answered yes to this question, you must start to act consistent with your answer.

How do you do this? You start by spending your actual visitation time with the children. That means you do not pawn off the children to your parents, daycare facilities or babysitters. That means you keep the children’s routines or add to them so that the children not only feel comfortable at your home but also look forward to coming there.

Fathers who want custody but do nothing when the mother refuses to co-parent and cooperate make a serious mistake.

In addition, so long as you intend to follow through, you must ask the children’s mother for additional time through a cooperative and reasonable tone. If the children’s mother refuses to agree to additional time, one of the worst things you can do is to do nothing. In such a situation, once you are able to establish that you spend time with your children and can handle the additional time, hiring an experienced Orange County child custody lawyer is a good idea so that you can bring to the courts attention all of these facts as well as the mother’s refusal to co-parent and act in the children’s best interest.

Remember that California Family Code 3020(b) specifically states that it is the public policy of this state:

The Legislature finds and declares that it is the public policy of this state to assure that children have frequent and continuing contact with both parents after the parents have separated or dissolved their marriage, or ended their relationship, and to encourage parents to share the rights and responsibilities of child rearing in order to effect this policy, except where the contact would not be in the best interest of the child, as provided in Section 3011.

Take those words seriously. It is the law.

How to get custody as a father when faced with the alienating or uncooperative mother?

This is the hardest thing a father who wants to get custody can go through. Unfortunately, although it is not necessarily gender specific, certain parents refuse to reasonably communicate, co-parent and even go as far as alienating the children from the other parent.

In such situations, your strategy may have to change if you intend to act with your children’s best interests in mind. Any parent, including a mother, who refuses to co-parent and alienates the children (which can come in many forms including false allegations of abuse as well as psychological abuse), should not have joint custody of the children.

These types of cases require discipline, diligence and a father with the courage to ask for full custody.

We believe parents who engage in such conduct are a danger to the children and, if the conduct does not stop, it may escalate as a child gets older, thereby causing a greater division between the non-alienating parent and child relationship.

For fathers who seek custody, there is good news. You have numerous options available to you including but not limited to:

  • Using the family law discovery process to flesh out the mother’s allegations,
  • Requesting and having the court order a forensic psychological evaluation (often called a child custody 730 evaluation),
  • Having the court order a formal child custody investigation (called a CCI in Orange County Family Court), and
  • The appointment of a lawyer for the children.

There are other options in addition to the above. Our family law firm employs these and other strategies for fathers who want to get full custody from mothers.

It is important for you to know, as a father, that if you do nothing, the chances of you being able to ever get joint or primary custody of your children may reduce significantly. That is because children who are consistently alienated from one parent overtime may, as they get older, not want to spend time with that parent and, once the child reaches a certain age, California law does allow the child to have a voice in the family law process and allows the child to state a preference in custody cases.

How to get custody as a father? What is your next best step?

Contacting our family law lawyers a good start to get your child custody case on the right track. Even if your case has already started and you believe is not going well, our attorneys can sit down with you, evaluate where you have been and help get your case in the right direction.

Call us today for an initial, affordable strategy session. We have three Orange County offices – Newport Beach, Mission Viejo and Santa Ana. We handle family law matters in Orange County, select Los Angeles County courts and Riverside’s central court.

Related Child Custody Articles…

We have some related articles we think you will enjoy.

Are you falsely accused of child abuse in a divorce case? Then read this article immediately to know your rights. False allegations of child abuse can permeate every aspect of your divorce case. Don’t let it poison yours.

Before you go and search for someone who calls themselves a father’s rights attorney, read the linked article. You may be surprised what you learn.

This article was first published on February 3, 2013 and was updated in October of 2017.

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http://farzadlaw.com/divorce-in-california/how-to-get-custody-as-a-father/feed/ 291 Divorcing a Narcissist Spouse How does a higher earner spouse get justice in family client when faced with a narcissist? Read this article to find out
Contested Divorce in California – Meaning, Procedure and Cost http://farzadlaw.com/california-divorce/contested-divorce-california-meaning-procedure-cost/ http://farzadlaw.com/california-divorce/contested-divorce-california-meaning-procedure-cost/#comments Thu, 07 Sep 2017 01:56:09 +0000 http://farzadlaw.com/?p=11505 What is a contested divorce in California? What is its procedure? How long does a contested divorce in California take? These are all great questions so let’s get started and go through each and more. Contested divorce in California – what does it mean? A contested divorce in California means the husband and wife do […]

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What is a contested divorce in California? What is its procedure? How long does a contested divorce in California take? These are all great questions so let’s get started and go through each and more.

Contested divorce in California – what does it mean?

Contested divorce in California

What is a contested divorce in California? Learn more from this informative article.

A contested divorce in California means the husband and wife do not agree on resolution of some or all issues. For example, if the husband and wife have children from the marriage and cannot agree on child custody and parenting time, they have a contested California divorce on child custody issues. If they cannot agree on whether an asset is community or separate property, they have a contested issue regarding that asset.

Why would a divorce in California ever be contested?

A California divorce becomes contested for three reasons. First, there is a factual disagreement. Second, there is a legal disagreement. Third, one or both spouses are unreasonable and refuse to settle the issues. The latter issue brings Family Code 271 and its attorney fee sanctions provision into focus. Sometimes, it is a combination of the three.

California contested divorce procedure

Filing for a contested divorce in California

Filing for a contested divorce in California is the same procedure as filing for any other standard divorce. The spouse who starts the divorce files a petition for dissolution of marriage. The filing spouse then serves the other spouse through the proper procedure. The other spouse then files a response to the petition. From that point, either spouse may file request for order with the court, conduct discovery and bring the case to a hearing or hearings until it concludes.

Check out our guide on the California Divorce Process to learn more about the divorce process from A to Z.

What is the discovery process in a contested divorce in California?

Discovery is the formal request for information from the other spouse. Discovery includes form interrogatories, special interrogatories, request for production of documents, request for admissions, oral depositions and more.

Family Law Form Interrogatories are pre-prepared questions. The California Judicial Council created such forms. Special interrogatories are specially drafted and customized questions. Request for production of documents is exactly what it sounds like – a request for the other spouse to produce certain documents. Request for admissions are either a request for the other spouse to admit certain facts as true or a request for the other spouse to admit to the genuineness of certain documents. An oral deposition is a live question and answer sessions under oath, typically in an attorney’s conference room and with a court reporter present.

Learn more about divorce depositions.

What is the disclosure process in a contested divorce in California?

Contested and uncontested divorces have the same preliminary and final disclosure process, with one potential difference. Sometimes, in an uncontested divorce, the spouses may decide to waive the final declaration of disclosure. But in a contested divorce where property issues go to a trial, both spouses typically complete final declarations of disclosure.

Preliminary and final declarations of disclosure are an exchange of information. The information includes a schedule of assets and debts, a declaration of income and expenses, and much more. Mishandled disclosures may lead to a host of problems both during the divorce and potentially even after final judgment.

How long does it take to get a court date for a contested divorce?

There are three types of requests for court dates. There is the emergency request, the nonemergency request and ultimately a trial request. The procedures vary slightly from California county to county. Emergency requests typically see a court date within 48 hours. Most emergency requests are denied because they are not true emergencies. A judge’s calendar or the court’s calendaring system may set a non-emergency request for order weeks or months away.

A request for a trial date also varies from county to county. For example, Orange County usually requires one of the attorneys to file an “at issue memorandum” which then sets a trial setting conference. At the trial setting conference, the family law judge may set a trial date.

Learn more about California divorce trials.

How long does a contested divorce in California take?

A contested divorce can take as little or as long as the spouses allow. For example, if the issues are simple, even though contested, the spouses may wrap up the discovery process quickly and ask the court for a trial date. The challenge is the court’s calendar. Even under the best of circumstances when both spouses want to push the case to trial, the court’s availability may simply not allow it. Some spouses, especially on complex cases, opt for a trial in front of a private judge (a judge for hire) because the process may be faster and potentially even less expensive, even though the spouses pay the judge for his or her time.

Cost of contested divorce in California

Unless your lawyer is handling your contested divorce on a flat fee, there is pretty much no way to predict what a contested divorce in California may cost. Of course, some of it depends on the attorney’s hourly rate. Much of it depends on how contested the divorce gets. If one or both spouses continue to take unreasonable positions, the contested divorce cost may be significantly higher than if the spouses resolve most issues but have reasonable disagreements on some issues.

The attorney may also impact the contested divorce’s cost. Reasonable lawyers who are knowledgeable and experienced usually find a way to mitigate costs.

To learn more about the cost of the divorce, check out our article called How Much Does a Divorce Cost? The Answer is Less Scary Than You Think.

How are contested divorce hearings handled in California?

Contested divorce hearings, like other civil hearings, should be handled the same. The California Evidence Code controls. The rules of procedure including but not limited to those of the California Family Code and the Code of Civil Procedure should control. The spouses provide testimony. Witnesses provide testimony, including potentially expert witnesses if one or both spouses hired them. The spouses, through their lawyers, submit exhibits for the court’s consideration. Whether the exhibits become admitted into evidence depends on whether the spouses laid the proper foundation and properly authenticated the exhibits. There are opening statements and closing arguments.

While this is the way it is supposed to work, it does not always work this way, especially on hearings for temporary orders. Trials generally do although we have seen some judges take liberties with the evidence rules and the Rules of Civil Procedure. There are style differences from county to county and judge to judge in California.

Have questions about your specific contested California divorce?

We hope you enjoyed this article on contested divorces in California. Our family law firm has three offices in Orange County, specifically in Newport Beach, Mission Viejo and Santa Ana. We currently take on cases in Orange County, select Los Angeles County courts and Riverside County’s central court on Main Street.

Do you want an affordable strategy session to talk about your contested divorce in California? If your case is in one of the venues we handle, contact us for an affordable strategy session. We will discuss your specific facts and provide you with legal advice.

This article is not legal advice. Do not construe this article as legal advice. Legal advice only comes from a one-on-one discussion with an attorney about your specific situation.

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Family Code 271 Attorney’s Fees and Costs http://farzadlaw.com/california-family-law/family-code-271/ http://farzadlaw.com/california-family-law/family-code-271/#comments Sat, 12 Aug 2017 20:55:21 +0000 http://farzadlaw.com/?p=11464 Family Code 271 is one of the most powerful code sections in California family law. Family Code 271 allows for sanctions in the form of attorney’s fees and costs when a family law litigant violates its policy. What does Family Code 271 state? How does section 271 do what it states? How is it applied? […]

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Family Code 271

Family Code 271 is a complex and powerful statute. Learn more about it in this informative guide.

Family Code 271 is one of the most powerful code sections in California family law. Family Code 271 allows for sanctions in the form of attorney’s fees and costs when a family law litigant violates its policy. What does Family Code 271 state? How does section 271 do what it states? How is it applied? We wrote this informative guide to answer these questions. Nothing in this guide is legal advice about your specific situation.

Family Code 271’s full text

As of the date we write this guide, Family Code 271 states:

“(a) Notwithstanding any other provision of this code, the court may base an award of attorney’s fees and costs on the extent to which the conduct of each party or attorney furthers or frustrates the policy of the law to promote settlement of litigation and, where possible, to reduce the cost of litigation by encouraging cooperation between the parties and attorneys. An award of attorney’s fees and costs pursuant to this section is in the nature of a sanction. In making an award pursuant to this section, the court shall take into consideration all evidence concerning the parties’ incomes, assets, and liabilities. The court shall not impose a sanction pursuant to this section that imposes an unreasonable financial burden on the party against whom the sanction is imposed. In order to obtain an award under this section, the party requesting an award of attorney’s fees and costs is not required to demonstrate any financial need for the award.

(b) An award of attorney’s fees and costs as a sanction pursuant to this section shall be imposed only after notice to the party against whom the sanction is proposed to be imposed and opportunity for that party to be heard.

(c) An award of attorney’s fees and costs as a sanction pursuant to this section is payable only from the property or income of the party against whom the sanction is imposed, except that the award may be against the sanctioned party’s share of the community property.”

The policy behind Family Code 271

The policy behind Family Code 271 is simple. Family Code 271 allows attorney’s fees and costs against a party in a divorce, legal separation, annulment or parentage case when that party’s conduct “frustrates the policy of the law to promote settlement of litigation and, where possible, to reduce the cost of litigation by encouraging cooperation between the parties and attorneys.”

It is designed to punish bad behavior. In that respect, Family Code 271 also exists to promote settlement and reasonable compromise.

Notice duration pursuant to Family Code 271

Family Code 271’s notice section states: “An award of attorney’s fees and costs as a sanction pursuant to this section shall be imposed only after notice to the party against whom the sanction is proposed to be imposed and opportunity for that party to be heard.”

The code does not specifically give a minimum mandatory notice requirement. So what is proper notice? It varies from case to case and is a case specific question although some California appellate cases have provided general guidelines on what is proper notice. The more notice, the better.

Notice by request for order

Notice is sometimes by a formal request for order, filed with the court and served on the other party. This request for order sets a hearing date where both parties must appear, put on evidence and argue Family Code 271’s merits.

Often, an attorney will group this section 271 request for order with other requests such as a Family Code 2030 and 2032 attorney fee request or even with a support request, if that is also at issue.

Notice without a request for order

Other times, a Family Code 271 notice is a detailed notice filed with the court and served on the other party and gives the other party specific notice the noticing party intends to seek sanctions at a future hearing date already set, such as, for example, a trial. Learn more about California divorce trials

What is the sanction to which Family Code 271 refers?

Family Code 271 allows sanctions in the form of attorney’s fees and costs. So, if a party to a family law case incurred $10,000 in attorney’s fees and $5,000 in cost because the other party violated Family Code 271’s policy, the party who seeks fees and costs may ask the court for an order against the other.

From what source can Family Code 271 sanctions be paid?

The code specifically states: “An award of attorney’s fees and costs as a sanction pursuant to this section is payable only from the property or income of the party against whom the sanction is imposed, except that the award may be against the sanctioned party’s share of the community property. ”

Pretty self explanatory, right?

Family Code 271’s notice content

Family Code 271 notice, whether by request for order that sets a hearing date or by other notice, must be specific. California appellate cases have stated the noticing party should identify the specific grounds and specific conduct that party claims violated Family Code 271. The notice should be directed to the specific party against whom Family Code 271 sanctions are sought.

The notice’s detail can be a complicated legal issue and like other aspects of section 271, seek legal advice about your specific situation to determine how specific your notice should be.

Need is not relevant to a Family Code 271 request

Family Code 271 differs from Family Code 2030 and 2032. Since section 271 is a sanction based request and punishes bad behavior, the code makes a requesting party’s “need” for the fees and costs irrelevant.

Therefore, the person who seeks Family Code 271 sanctions does not have to show he or she has a need for the fees and costs requested. This allows a higher income earner or the person who has a greater access to money to seek Family Code 271 sanctions against the other party.

Is this fair?

At first, some people may think this is unfair. But think about it logically. If a person were allowed to get away with unreasonable conduct during a family law case and there was no recourse to seek fees and costs against that person even though their unreasonable, reckless or even malicious behavior caused the fees and costs to skyrocket, is that reasonable? Of course not.

California Family Code’s public policy requires all parties, regardless of financial status, to behave reasonably throughout a family law case.

“But my lawyer did it” is generally not a defense

Family Code 271 generally does not allow a party to hide behind the lawyer’s misconduct and escape the sanction because his or her lawyer engaged in the misconduct.

What does Family Code 271’s “unreasonable financial burden” standard mean and is it the same as ability to pay?

Section 271 states “In making an award pursuant to this section, the court shall take into consideration all evidence concerning the parties’ incomes, assets, and liabilities. The court shall not impose a sanction pursuant to this section that imposes an unreasonable financial burden on the party against whom the sanction is imposed. In order to obtain an award under this section, the party requesting an award of attorney’s fees and costs is not required to demonstrate any financial need for the award.”

Family Code 271 is very different from Family Codes 2030 and 2032 in this respect

The above differs from the ability to pay standard often associated with Family Code 2030 and 2032.

If Party A seeks Family Code 271 sanctions against Party B, it is not enough for Party B to argue he or she does not have the ability to pay sanctions. Party B must show the sanction would impose an “unreasonable financial burden” on him or her.

There is no clear, black or white “unreasonable financial burden” definition so, like most things in the Family Code, its interpretation may vary from case to case.

Must the person who seeks sanctions show there is no such burden? Or is the person who opposes sanctions required to show it? We believe the person who opposes the sanctions must show unreasonable financial burden because we believe it is akin to a defense to the Family Code 271 request, but other lawyers may disagree.

The role settlement offers play in Family Code 271

The general rule is settlement offers are not admissible in civil cases. However, in family law, settlement offers may be evidence of attempts to reach a reasonable compromise or evidence of a failure to do so. In that respect, settlement offers may become relevant and admissible evidence in bringing or defending a Family Code 271 sanctions request.

The settlement offers to which we refer are outside the family law mediation process. Whether settlement offers made during mediation are admissible for the above purpose may be a disputed issue and the mediation confidentiality may not allow using settlement offers made in mediation in a subsequent section 271 request. There may be ways to get around this issue. An experienced family law attorney you hire can explain to you whether that is an option in your case.

The Family Code 271 request before judgment

Before judgment, a Family Code 271 request usually becomes part of a formal request for order, as we explained above. That means either party may file a request for order and have the issue heard before a trial.

Some judges hesitate to award Family Code 271 attorney’s fees before trial. This has never made sense to us. If a judge allows a party to engage in unreasonable conduct and significantly increase the other party’s attorney’s fees during the process without consequence, what is the point of Family Code 271? A family law judge should be willing and open-minded to awarding Family Code 271 attorney’s fees against the party at any time during the case. That is what the code allows and there is no limitation within the code or California case law that permits a judge to arbitrarily punt this issue to a trial.

The Family Code 271 request at trial

The Family Code 271 request may also be heard at trial. Sometimes this can be while other issues are heard. Sometimes this can be after every issue is heard. The reason the second scenario occurs is the judge may want to hear all the evidence and make his or her rulings before deciding who was unreasonable. The end result can help the judge understand who took reasonable versus unreasonable positions.

The Family Code 271 request, post judgment

California Family Code 271 is fair game after judgment including, for example, during modification requests. Child custody, parenting time, child support and alimony are just some of the issues that may be modified post judgment. If a party takes unreasonable positions and causes litigation that should have been avoided, Family Code 271 may be used as a sanction against him or her.

The amount of notice, the notice content, whether you should seek Family Code 271 sanctions or how to defend such a request against you are too complex to handle on your own. This article is not legal advice and you should not rely on it for your specific case. Instead, consult with an experienced family law attorney who handles matters in your California County and has experience in bringing and defending Family Code 271 sanctions requests. If your matter is in Orange County, Los Angeles County or Riverside County’s central court, you may contact us for an affordable strategy session.

We hope you enjoyed this guide.

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Child Born Out of Wedlock and a Father’s Rights http://farzadlaw.com/california-child-custody/child-born-out-of-wedlock-fathers-rights/ Mon, 24 Jul 2017 14:00:21 +0000 http://farzadlaw.com/?p=11428 This article will discuss a child born out of wedlock and a father’s rights in such a situation. A child born out of wedlock can be a joyous occasion as well as a stressful one. Depending on the nature and extent of the relationship between the mother and father, a child born out of wedlock […]

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Child born out of wedlock father's right

A father’s child is born out of wedlock. He is concerned the mother will interfere with the bonding and relationship with the child. The father wants to know his rights. That is why we wrote this article.

This article will discuss a child born out of wedlock and a father’s rights in such a situation. A child born out of wedlock can be a joyous occasion as well as a stressful one. Depending on the nature and extent of the relationship between the mother and father, a child born out of wedlock followed by the relationship breakup can lead to conflict. Fathers naturally concern themselves regarding their rights on both child custody and child support when their child is born out of wedlock. In our experience, the relationship’s nature between the father and mother can impact the conflict level after the child is born.

This article only applies to California family law matters. It does not apply to any other state. We are experienced family law attorneys with three offices in Orange County. Our firm handles matters in Orange County family court and select Los Angeles, and Riverside courts

The fact a child is born out of wedlock is irrelevant to the father’s legal rights.

Child births out of wedlock are common.

California law does not permit the Family Court to base custody decisions on gender. Therefore, a father need not worry the mother has greater rights because she is the mother. Fathers sometimes perceive a bias exists. That perception may be true with certain family law judges in the state but we have found it to be the rare exception.

The fact the father’s child is born out of wedlock also does not impact a family law judge’s decision. Family law judges are required to base child custody decisions on a child’s best interest. Being born out of wedlock is not a best interest factor.

To learn more about child custody, check out our guide on California child custody laws.

Father’s rights with a child born out of wedlock.

A father’s rights with a child born out of wedlock is therefore the same as a father’s rights with a child born within a marriage. The court evaluates the child’s best interest including health, education, safety and general welfare. A court is required to take the child’s best interest into consideration in any child custody determination.

Child born out of wedlock when the father does not have a relationship with the mother.

If a child is born out of wedlock and the father does not have a relationship with the mother, a father should be careful not to fall into certain traps.

We often see the mother in such a situation become unreasonably possessive over the child and refuse to let the father bond with the child. This is most common in a “one night stand” situation or very short relationships. The reason this exists varies depending on the situation. In our experience, they include:

  • Mother who does not trust the father with the child,
  • Mother who is angry at the father for what she perceives to be his improper behavior before the child was born, and/or
  • Mother who is simply immature.

Sometimes young mothers also fall under their own parents’ control, would then become a second layer to interfere with the father’s rights.

A newborn must also bond with the father

Too many fathers allow the above to either interfere or eliminate their parenting time and bonding with the child. A newborn must bond with both parents to develop a comfort level with the parents. If the father allows himself to have very limited contact or no contact with a newborn, he harms that necessary bonding. This can delay a child’s comfort level with the father as the child grows older.

Commence a parentage action

The father must be diligent and vigilant in exercising his parenting time but creating conflict and hostility with the mother or the mother’s family is not the way to go. If the mother simply refuses to allow the father reasonable parenting time, the father should hire a family law attorney immediately and commence the parentage action. A parentage action is a family law action for unmarried parents on child custody and child support.

A father in a parentage action can immediately seek temporary custody and visitation orders for a newborn or a child of any age. There’s no reason to wait until the child reaches a certain number of months or give the mother weeks or months to become comfortable with the situation. Every week that passes where the father does not see his child harms the bond that should be built from the outset.

Child born out of wedlock after a courtship.

A child born out of wedlock after a courtship once again does not have an impact on a father’s rights but may change the father’s choices.

Older children who are born out of wedlock

In a courtship that was long enough to build a bond and trust between the father and mother, the child custody issues should go smoother. That is because the child or children are usually older. Even with a newborn child, the father and mother hopefully built a mutual respect or trust. This would ideally, even after a breakup, allow the parents to come to reasonable agreements on child custody and visitation.

Newborn children born out of wedlock during a lengthy courtship

With a newborn child, the father should once again be vigilant in exercising time with the child. If the mother is unreasonable and interferes, the father should consider immediate court action. If a child is older and built a relationship with both parents before the breakup, the first question we ask is what has been the status quo to which the child became accustomed? For example, if both the father and mother work standard 40 hour weeks, use childcare to some extent and are both actively involved in the child’s upbringing, that child is likely accustomed to spending equal time with both parents. In such a situation, the parents should consider whether an equal parenting time makes sense now that they will separate.

The situation is different if one parent is historically up to the present date the primary parent and therefore the primary attachment figure to the child.

Coming to an agreement or proceeding to court

What we like to see for fathers with a child born out of wedlock during or after a lengthy relationship is to come to an agreement quickly on legal custody, physical custody and parenting time. This agreement is memorialized in a stipulation and order if a case is pending or a written agreement if a case is not yet pending. We discourage a written agreement to control these issues without it becoming a court order. Our family law attorneys believe parents are more likely to comply with an agreement if the agreement actually becomes a court order. In addition, a court order is far more protective on these issues than simply a contract as both law enforcement and the courts can enforce a court order.

If the parents are unable to come to an agreement within a short and reasonable time, the father should consider immediately commencing a parentage action and seek immediate child custody and visitation orders. Once again, a father must be diligent and vigilant and not allow months to pass while the mother limits his time with the child. Courts will place some emphasis on the status quo and to what schedule the child became accustomed.

Family Code section 3046

Family Code section 3046 states:

“If a party is absent or relocates from the family residence, the court shall not consider the absence or relocation as a factor in determining custody or visitation in either of the following circumstances:

(1) The absence or relocation is of short duration and the court finds that, during the period of absence or relocation, the party has demonstrated an interest in maintaining custody or visitation, the party maintains, or makes reasonable efforts to maintain, regular contact with the child, and the party’s behavior demonstrates no intent to abandon the child.

(2) The party is absent or relocates because of an act or acts of actual or threatened domestic or family violence by the other party.

(b) The court may consider attempts by one party to interfere with the other party’s regular contact with the child in determining if the party has satisfied the requirements of subdivision (a).

(c) This section does not apply to either of the following:

(1) A party against whom a protective or restraining order has been issued excluding the party from the dwelling of the other party or the child, or otherwise enjoining the party from assault or harassment against the other party or the child, including, but not limited to, orders issued under Part 4 (commencing with Section 6300) of Division 10, orders preventing civil harassment or workplace violence issued pursuant to Section 527.6 or 527.8 of the Code of Civil Procedure, and criminal protective orders issued pursuant to Section 136.2 of the Penal Code.

(2) A party who abandons a child as provided in Section 7822.”

A father should be vigilant despite what Family Code section 3046 states

A father should not assume the court will disregard his limited parenting time before he goes to court. It is best to be safe and proceed immediately if the parents cannot come to a reasonable agreement.

What about child support and a father’s rights with a child born out of wedlock?

We encourage you to read our informative guide on California child support laws. It comprehensively covers child support and its establishment, modification and termination.

Was this article helpful?

We hope you enjoyed this article on a father’s rights with a child born out of wedlock. If you are a father who has a case or may need to commence the case in the Southern California courts we handle, please contact us for an affordable strategy session. We have offices in Newport Beach, Mission Viejo and Santa Ana, in Orange County, California.

This article is not legal advice and is not intended to apply to your specific situation. Please have a private consultation with an attorney if you have questions about your specific case.

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Child born out of wedlock father’s right A father's child is born out of wedlock. He is concerned the mother will interfere with the bonding and relationship with the child. The father wants to know his rights. That is why we wrote this article.
What is IndieGoGo? That is Exactly What I Asked When I Heard About It. http://farzadlaw.com/divorce-news/indiegogo/ Wed, 19 Jul 2017 23:16:56 +0000 http://farzadlaw.com/?p=11441 It is not often I promote news related to new social media outlets on the firm’s website. But every once in a while an idea comes along that merits promotion. That idea is The Good Men Project’s IndieGoGo campaign. What is IndieGoGo? Their website says it best: We are re-inventing media. Media has historically been […]

The post What is IndieGoGo? That is Exactly What I Asked When I Heard About It. appeared first on Farzad Family Law.

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It is not often I promote news related to new social media outlets on the firm’s website. But every once in a while an idea comes along that merits promotion. That idea is The Good Men Project’s IndieGoGo campaign.

What is IndieGoGo? Their website says it best:

We are re-inventing media.

Media has historically been passive. It started with things you read—books, newspapers, magazines. Then radio and television brought media you consumed. Blogs and podcasts were re-configurations of…you guessed it, things you read or media you listened to. Social media gave us media you shared. But social media—as we soon found out—isn’t always social. There are trolls. Polarization. Misunderstandings.

IndieGoGo allows real people to discuss real life issues in an internet camp fire setting. What issues?

Conversations about Politics. Parenting. News. Gender & Sexuality. Racism. Ethics. Sexism. Wellness. Relationships. And more.

It seems to be about an honest collaboration of ideas and perhaps finding solutions to real life problems. Our interest in this is how husbands, wives, fathers and mother can have an outlet to discuss issues related to parenting, marriage and perhaps the stress and emotions that can come with divorce.

Is IndieGoGo for you? One way to find out – check out their website and find out for yourself.

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How to Avoid Paying Alimony That Is Too Much and For Too Long http://farzadlaw.com/california-spousal-support/how-to-avoid-paying-alimony/ Mon, 17 Jul 2017 15:00:19 +0000 http://farzadlaw.com/?p=11368 How to avoid paying alimony that is too much and for too long depends greatly on diligence before there is a court order. This article is for the higher earning spouse during the marriage who has a potential exposure to alimony. This article is not for the spouse who wants to violate a court order […]

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How to avoid paying alimony

How to avoid paying alimony that is too much and for too long requires knowledge and diligence.

How to avoid paying alimony that is too much and for too long depends greatly on diligence before there is a court order. This article is for the higher earning spouse during the marriage who has a potential exposure to alimony. This article is not for the spouse who wants to violate a court order or lie to the court about his or her income. Our firm does not represent such spouses. This article on how to avoid paying alimony is all about smart, preventive measures that are consistent with the law.

For a comprehensive look at alimony, check out our excellent guide on California alimony laws.

Ready? Let’s dive into this interesting topic. Everything we write here applies only to California divorces.

How to avoid paying alimony in an unreasonable amount or duration through settlement negotiations.

How to avoid paying alimony for an amount more than a spouse should or longer than a spouse should in a settlement agreement requires diligence in negotiations.

Experienced representation is a must.

First, an experienced family law attorney is a must. That means the attorney must be knowledgeable in family law and ideally limit his or her practice to family law. Inexperienced attorneys or those who lack expertise in family law sometimes use a cookie-cutter approach to settlement agreements that may not fit a spouse’s situation. These same types of attorneys may also lack family law knowledge and how it may help that spouse in the specific situation.

Negotiate intelligently.

In addition, the spouse should exercise diligence to ensure the alimony number to which he or she intends to agree is an amount the spouse can afford in light of other agreement terms. Here is one example – If a spouse takes on a high level of debt that is community property and which the other spouse should pay half of but does not, is it really reasonable to agree to pay alimony on top of taking all that debt? The short answer is usually no. If one spouse takes on 100% responsibility for community debt and alimony without taking that extra debt into consideration, that paying spouse gets hit hard financially. There is only so much disposable income to go around.

The above example underscores an important point – settlement agreements that include alimony should take into consideration other terms when determining alimony amounts. Cookie-cutter settlements where assets are divided equally, debts are divided equally and one spouse should clearly pay an alimony amount consistent with the marital standard of living are one thing. But if one spouse takes on more debt than the other or other terms exist that impact the higher earning spouse’s net disposable income, negotiations should take these into consideration when spouses negotiate alimony.

End spousal support when it is reasonable to do so

Regarding duration, if the marriage is of a short duration, consider whether it makes sense to have a termination date for alimony written into the agreement. This is usually half the marriage’s duration. If left open ended, the spouse risks the time and expense it will take to end alimony once the alimony reaches the one half duration. The spouse who pays alimony should not assume the other spouse will just agree to be reasonable in the future.

In long-term marriages, it is also possible to reach such agreements and the family law attorney you hire can give you advice on what makes sense for you.

These are just a few examples of how to avoid paying alimony that is too much and for too long as part of a settlement agreement. An experienced family law lawyer will provide you with much more information for your specific case.

For the self employed spouse – how to avoid paying alimony in an unreasonable amount when income fluctuates.

What we wrote above applies to self employed spouses. But there is also more to consider. As one example, how to avoid paying alimony in an amount more than the self employed spouse should starts with ensuring he or she knows what income available for support actually is. Some self employed spouses do not actually understand their own income. They rely on bookkeepers or certifies public accountants who prepare their tax returns to figure it out. They then rely exclusively on those tax returns when determining alimony.

Unless the self employed spouse is in an unusual industry, self-employment income can vary from month to month, quarter to quarter or year to year. This is especially true for small businesses. Because of that fluctuation, basing alimony on the income after payment of business expenses may cause the self employed spouse to agree to a monthly base alimony higher than what he or she can reasonably afford. By the way, we wrote a nice guide for self employed spouses on divorce strategies you should check out.

Instead, with the aid of a respected and experienced forensic accountant, that accountant and family law attorney can estimate what income available for support actually is on a predictable month to month basis. The forensic accountant can also advise what the self employed spouse may receive in additional bonuses or distributions. The factors may include income history, the particular industry and more. Nobody can predict such numbers but at least history may give the spouse, attorney and forensic accountant indicators to come up with reasonable amounts. This will allow the self employed spouse to figure out a base alimony number and then a reasonable percentage of the bonus or distribution if and when it is received, as additional alimony.

But the analysis does not stop there. Keep reading.

How to avoid paying alimony in an amount beyond the marital standard of living.

With experienced representation, the spouse with the alimony exposure should calculate alimony consistent with the marital standard of living.

A mistake we sometimes see the higher earner spouse make is to base alimony on his or her higher, current income when that income is not consistent with the marital standard of living.

An alimony expecting spouse is generally not entitled to alimony based on increases in income after separation. For example, if the most amount of money the spouse who pays alimony received during the marriage per year was $150,000 and now he or she earns $250,000, is it reasonable for the other spouse to receive alimony on that additional amount? The answer in most instances is no. But the paying spouse should be diligent ahead of time and before he or she agrees to a court order or goes to trial to properly present or consider these issues in the agreement or to the court. That way, whether by settlement or through a formal hearing, alimony has a reasonable cap or ceiling.

How the marital standard living may apply to your situation is not black or white. Once again, to get answers for your specific situation requires a private consultation with an experienced family law attorney and representation.

How to avoid paying alimony that is too much and for too long when the receiving spouse refuses to work.

If the spouse who wants alimony has the ability, capacity and opportunity to be gainfully employed but refuses to work or is willfully underemployed, one option is a vocational examination. A vocational examiner, once ordered, can evaluate the spouse’s earning ability, capacity and opportunity and let the court know if the spouse should and can earn an income. If the examiner sets that number (usually a range if one is set) and if the court agrees with the vocational examiner’s assessment, the court may even impute income to the spouse if the spouse refuses to work. It is of course much more complicated than what we wrote here. Family Code section 4331 controls vocational examinations.

Vocational examinations do cost money. Typically, the spouse who requests the examination pays for the examiner. To learn more about vocational examinations, please read our article on vocational examinations in California.

How to avoid paying alimony when the spouse who wants it does not have a need for alimony.

You may be wondering, what do you mean does not have a need? How does a spouse prove that?

There are many scenarios this can come up but one common one deals with independent wealth separate from marital funds. If the alimony seeking spouse has an inheritance as one example or otherwise has access to money he or she can use to pay for his or her expenses, that spouse may have a lesser need for alimony. This may be true even though the other spouse was the breadwinner during the marriage and has the ability to pay alimony.

In addition, third parties, such as parents as one example, may pay the alimony seeking spouse’s expenses. This payment, when recurring, triggers the question whether that spouse has a reduced need for alimony, even if that spouse is not employed.

Family Code section 4320 requires the court to take many relevant circumstances into consideration. The court must do this when it evaluates alimony amount and duration. A spouse should not assume that analysis begins and ends with income.

We have another California Family Code section that partially addresses this issue. Family Code section 4321(a) states:

In a judgment of dissolution of marriage or legal separation of the parties, the court may deny support to a party out of the separate property of the other party in any of the following circumstances:

(a) The party has separate property, or is earning the party’s own livelihood, or there is community property or quasi-community property sufficient to give the party proper support…

This is section (a). We discuss section (b), below.

How to avoid paying alimony when the spouse with the exposure has sole child custody.

Family Code section 4321(b) states:

“In a judgment of dissolution of marriage or legal separation of the parties, the court may deny support to a party out of the separate property of the other party in any of the following circumstances: …

(b) The custody of the children has been awarded to the other party, who is supporting them.”

Remember we discussed Family Code 4321(a), above? Well, now you have section (b). The reasoning behind this code section should be obvious. If a spouse and parent has sole custody of the child or children, he or she has significant responsibility for their day-to-day care and payment of expenses. This may significantly impact that spouse’s ability to pay alimony.

How to avoid paying alimony when the alimony seeking spouse is cohabiting.

Family Code section 4323 states:

(a)(1) Except as otherwise agreed to by the parties in writing, there is a rebuttable presumption, affecting the burden of proof, of decreased need for alimony if the supported party is cohabiting with a nonmarital partner.  Upon a determination that circumstances have changed, the court may modify or terminate the alimony as provided for in Chapter 6 (commencing with Section 3650) of Part 1.

(2) Holding oneself out to be the spouse of the person with whom one is cohabiting is not necessary to constitute cohabitation as the term is used in this subdivision.

(b) The income of a supporting spouse’s subsequent spouse or nonmarital partner shall not be considered when determining or modifying alimony.

(c) Nothing in this section precludes later modification or termination of alimony on proof of change of circumstances.

This is important. Pay attention to it. If your spouse is cohabiting with a non-marital partner, he or she is presumed to have a reduced need. Ignore this at your own risk.

We hope this article on how to avoid paying alimony was helpful.

Was this article helpful? It is all about knowing the facts and the law before agreeing to alimony or taking the issue to court. What we wrote here are only a few important considerations on this topic. It is not practical to cover every scenario here. An experienced family law attorney in a private consultation can advise you of your options specific to your case.

If you have a looming or pending divorce or want to modify alimony in the California counties we serve, please contact our family law firm for an affordable strategy session. You can learn more about the counties in which we handle cases and our fees and services by checking out our firm’s FAQ page. We have three Orange County offices in Newport Beach, Mission Viejo and Santa Ana.

Note: Nothing in this article is legal advice nor should it be construed as legal advice. 

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How to avoid paying alimony How to avoid paying alimony that is too much and for too long requires knowledge and diligence
How Long Do You Have To Be Married To Get Alimony? http://farzadlaw.com/california-spousal-support/how-long-do-you-have-to-be-married-to-get-alimony/ Mon, 10 Jul 2017 14:00:51 +0000 http://farzadlaw.com/?p=11359 How long do you have to be married to get alimony? This is a question often raised by a spouse in a short-term marriage. Spouses ask this question because they are unsure whether a court would order alimony given the short duration of their marriage. This question impacts both the spouse who is concerned about […]

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how long do you have to be married to get alimony

How long do you have to be married to get alimony? Let’s look at this question from a legal and practical perspective.

How long do you have to be married to get alimony? This is a question often raised by a spouse in a short-term marriage. Spouses ask this question because they are unsure whether a court would order alimony given the short duration of their marriage. This question impacts both the spouse who is concerned about paying alimony and the spouse concerned about receiving alimony.

Let’s look at this question closer for some answers. Everything we write here only applies to California divorces and no other State.

How long do you have to be married to get alimony in California?

The good news is there is no specific minimum duration before a spouse may receive alimony. A California family court bases its decision to order alimony on a variety of factors, the most important of which is the marital standard of living.

But beyond that, there is also a difference between temporary alimony and the final alimony number. The rules are different from a practical perspective.

How long do you have to be married to get alimony on a temporary basis?

In our experience, in Southern California courts, judges will award temporary alimony while the divorce is pending on marriages that are six months or longer. There is no black and white rule here. Shorter marriages can result in alimony orders. Longer marriages can have alimony denied. But we have found as long as you can show the court you have a need for alimony based on the marital standard of living and the other spouse has the ability to pay it, you stand a reasonable chance of getting temporary alimony. Temporary alimony is often based on a computer program.

Temporary alimony usually lasts while the divorce is pending although if the halfway duration of the marriage in a very short marriage will be less time than the number of months the divorce is pending, the family court may order alimony for only half the duration of the marriage.

For example, in a six month marriage, the court may order temporary alimony for three months and have a cut off date as opposed to keeping it going for the entire length of the divorce case and until it ends.

How long do you have to be married to get alimony at a trial?

This also depends on the length of the marriage and whether one spouse received temporary alimony. To give you a couple of hypotheticals, keep reading.

Hypothetical number one, let us assume the following:

  • The marriage was only for six months from the marriage date to the separation date.
  • The husband earned much more money than the wife during the marriage and that is still true today.
  • The wife never asked for temporary alimony.
  • One year later the divorce case is actually going to trial.

Will the wife get alimony on the six-month marriage one year later? While it is possible, we do not believe it is probable. When a year has already passed on a six month marriage, it will be difficult to justify alimony. The logic is how would alimony at that point maintain any marital standard of living or any status quo?

Hypothetical number two: Let us now assume it is the same hypothetical as the first one but the marriage is 5 years from the marriage date to the date of separation.

In that hypothetical, the wife has a better chance of getting alimony at trial even though she did not seek it on a temporary basis. That is because the duration of the marriage is longer and she may need the money to maintain the marital standard living for half the duration of the marriage, which would be 2 1/2 years.

However, even in this second hypothetical, the wife did not do herself any favors by not asking for temporary alimony. That could impact the court’s decision and question whether the wife actually needs alimony at trial and going forward.

The most important take away from all this is there is no way to predict a one-size-fits-all scenario for every case. The facts of the case, the Court at which the case is pending and a particular judge’s discretion could impact the case.

What has our experience shown on how long you have to be married to get alimony?

In our experience within Southern California courts, judges are more reluctant to award spousal support for marriages that are under one year. They are more willing to award alimony on such very short marriages if there is a significant income disparity between the spouses or one spouse would truly be placed in a very difficult financial situation if alimony is not awarded.

On marriages that are longer than one year, the results can vary significantly. So much again depends on the marital standard of living and the Family Code section 4320 factors.

To gain a much deeper understanding of alimony in California please check out our guide called California Alimony Laws, Rules and Calculation. It is comprehensive and well worth reading.

Nothing contained in this article is legal advice nor should it be construed as legal advice. Please have a private consultation with an attorney to obtain answers to questions about your specific case.

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How long married to get alimony How long do you have to be married to get alimony? Let's look at this question from a legal and practical perspective.