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What Makes a Parent? More on Paternity and Parental Rights

Once upon a time life was simple, people got married, had children and raised the children together until the kids went away to school.  Now the average American family looks much different. There are families which have one parent (either a father or mother), families with two mothers, and families with two fathers.  There are changes to modern medicine and to the way that a child is conceived or even as to who carries the child prior to birth.  So this question arises: What makes someone a parent?

Biology

In California, the least effective means of establishing a parental relationship with a child is through biology.  There are numerous presumptions in California which will override biology as a determining factor in a parental relationship.  The presumptions will be discussed below.  Barring any of the presumptions however, a parent may seek to establish paternity based on a biological relationship with the child.  In cases where the parents are unmarried, the courts may order a DNA test to establish a relationship between a father and his child.

Marriage

In California there is a conclusive presumption that a child born into a marital relationship is a child of the marriage. The marital presumption may only be rebutted in the first two years of the child’s life and may only be rebutted by the married couple. For more information on the marital presumption, please read my post: “Who’s Your Daddy?”

Surrogacy/Sperm Donation

As modern medicine makes advances, many children are carried by women who are surrogates. This enables men that are in a same sex relationship to be the genetic fathers of their children. Surrogate mothers are also an aid to a couple that is for whatever reason unable to conceive or carry their own child. There have been many cases which have made rulings concerning what makes a person a natural parent of a child. The courts will look at the intent of the parties at the time of conception as well as whether or not there is a valid surrogacy or sperm donor agreement.

Johnson v. Calvert (1993) 5 Cal.4th 84, The parties wanted to have a child. The wife had viable eggs, but was unable to carry a child. The parties, through invitro-fertilization, planted their embryo in the womb of a surrogate mother. The surrogate decided she wanted to keep the baby. The court ruled that both women were the “natural” mothers of the child. The court also said that where two women have equally valid claims to maternity, the court will consider the intent at the time of conception. Since the wife intended to be a mother at conception and the surrogate did not, the Court  found that the wife was the baby’s legal mother.

Courts have now held that a child can have more than two natural parents.

In cases of same-sex couples, the law offers protection to parents when they have taken the child into their homes and have raised them as their own child. Prior to the year 2005, the courts did not provide same sex couples with the same rights as opposite sex couples or married persons.  Prior to that date the intent and conduct of the parents did not provide protection or a means to a legal determination of parentage, rather than reliance on genetics, for same-sex couples with children. Courts now recognize parental relationships where there are same sex couples.

K.M. v. E.G. (2005) 37 Cal.4th 130 was a case there two women who entered into a committed relationship in 1993. They registered as domestic partners in San Francisco in 1994. In 1995, E.G. became pregnant through an in vitro fertilization procedure using embryos created from eggs provided by K.M. and sperm from an anonymous sperm donor. The couple separated in 2001, and E.G. filed a notice of termination of the domestic partnership. K.M. filed a petition to establish her parental relationship with the twins, based both the fact that she was their genetic mother and that she had welcomed them into her home and parented them for five years. The court ruled that K.M. and E.G. are legal mothers. The court ruled that this was neither an egg donation nor a surrogacy situation, by virtue of the parties remaining in the home together and raising the children.

Voluntary Declarations of Paternity

In 1997, California courts created a procedure to eliminate some of the confusion with paternity disputes. Where two persons are the unmarried parents of an infant, they may enter into a voluntary declaration of paternity which is signed at the birth of the child or shortly thereafter allowing the unmarried father’s name to be placed on the birth certificate. The Voluntary Declaration of Paternity is valid as Judgment in most cases, but there have been exceptions.

H.S. v. Superior Court (2010) 183 Cal.App.4th 1502: The Mother was living with her husband on weekends, but was apart from him during the week. She had an affair and became pregnant, and separated from husband. When the baby was born, she entered into a Voluntary Declaration of Paternity with the biological father. The mother reconciled with husband shortly after the child’s birth; and mother, husband and child lived together as a family. The biological father then attempted to establish paternity and requested genetic testing. The court ruled that a Voluntary Declaration of Paternity was not effective for use by married women to defeat the marital presumption of paternity in a husband and is voidable as a matter of law. The court also ruled that biological father lacked standing to challenge the legal paternity of the husband.

                A parent can be made through numerous ways in California, each of them with various protections. Public policy dictates that a child have two parents therefore a court will use any of the above means to establish parentage of the children.

My Business is None of Your Business! The Truth about Businesses and Marriage

Many of my clients come to me and they want to know what is going to happen to their business when they get divorced.   There are many ways that the court will resolve how to deal with a business depending on (1) the time that the business was established, (2) the source of the initial investment, (3) the type of business and of course any other relevant factors.

Where a business was owned by one spouse prior to the marriage, the business would under general community property rules be a separate property business.  However since earnings during the marriage are community property, the community may be entitled to a share of the business based on the reinvestment of community earnings.

Additionally, where a spouse receives an inheritance or sells a separate property asset to form a business, it may be considered that the source of the funding was separate property and therefore the business should be a separate property business. While the business may still be separate property, the community again may hold an interest in the business.

There are numerous cases in California which discuss the policy behind awarding the community a portion of a spouse’s separate property business.

In Beam vs. Bank of America (1971) 6 Cal.3d 12, the California Supreme Court stated: “[L]ong ago our court recognized that, since income arising from the husband’s skill, efforts and industry is community property, the community should receive a fair share of the profits which derived from the husband’s devotion of more than minimal time and effort to the handling of his separate property.”

The court in In re Marriage of Dekker (1993) 17 Cal.App.4th 842 stated  “Where community efforts increase the value of the separate property business, it becomes necessary to quantify the contributions of the separate capital and the community effort to the increase.”

In Pereira vs. Pereira (1909) 156 Cal.1 the court stated: “It is true that it is very clearly shown that the principal part of the large income was due to the personal character, energy, ability and capacity of the husband. This share of the earnings was of course community property.”

What does that mean for me and for my business?

The business itself would continue to belong to the operating spouse, however, the community would be allowed a portion of that business.  If the operating spouse is using income from the business towards the community expenses, the income contributed during the marriage would be deducted from any interest held by the community.

What if my business is a real estate investment or a company in which the operating spouse contributes minimal time and efforts?

There are cases which attorneys use in arguing that a business increased in value due to the nature of the company rather than the efforts of the operating spouse.  In those cases, the community is provided reasonable compensation for the services of the operating spouse where the majority of the business remains the separate property of the operating spouse.

In Van Camp v. Van Camp (1921) 53 Cal.App. 17 the court concluded that the salary and expense reimbursement paid to the separate property owner (husband) was reasonable compensation and that compensation was the proper measure of the income that should have been attributed to the community for the efforts of husband applied to his separate property business during the marriage. No guidance is given in the decision as to how to determine reasonable compensation.”

In Tassi v. Tassi (1958) 160 Cal.App.2d 680, the court stated that the test for reasonable value of services is what an independent employer would pay others to perform similar services. The court stated: “The salary allowed by such owners to themselves lies entirely in their own discretion and the surest standard would not be what such owners were accustomed to allow to themselves but rather what independent employers were in the habit of paying others for similar services in the free give and take of an open market.”

The bottom line:

The ownership of a business is a complicated matter for couples in a divorce.  Since there are many approaches to the division of a business as well as the characterization of a business, it is important to retain a family law attorney who works well with a business valuation expert. This will ensure that your interest is maximized and that the community as well as the operating spouse receives their fair share.

Alimony

What is the difference between Alimony and Spousal Support?

There is no difference between alimony and spousal support.  Alimony, or spousal support as it is called in California, is a payment made by one spouse to the other in order to support them at the end of the marriage.  Spousal Support is not child support; it is intended to enable the non-working or the lower earning spousal to maintain a similar lifestyle as when they were married. Years ago alimony was awarded to the wife as it was generally accepted that the woman was home with the children while the man worked to support the family.  Now there are many more women in the workplace and there are cases where the stay-at-home parent is the father.  There are households where the high earner is the wife. In these circumstances, the wife is the payor of support to the husband.

Am I entitled to spousal support when I get divorced?

Many of my clients want to know whether they will be entitled to spousal support when they divorce.  There are many factors involved which will determine whether or not a spouse is entitled to support. A lower earning spouse may be entitled to support regardless of who decided to end the marriage and without consideration to any factors such as infidelity of either spouse.

The goal of the California Courts is that each party shall be self-supporting within a reasonable time and to the best of their ability.  Support may be increased or decreased over a certain amount of time as well.

The amount and length of time for support is determined by the amount of time the parties have been married as well as the respective incomes of the spouses. A long term marriage is considered to be a marriage of over ten years. Any marriage that lasted under 10 years is considered a short term marriage. Where there is a short term marriage a court will generally make orders that spousal support be paid for one half the time of the marriage.  Where there is a marriage that is considered to be a long term marriage some amount of support is generally paid until death of one of the parties, the remarriage or cohabitation of the supported party, retirement of the supporting spouse, or various other factors considered by the court, such as the age and health of the parties at the time of divorce as well as the marital standard of living.

The court will look at the respective incomes of the parties and will also look at whether the earning capacity of each party is sufficient to maintain the marital standard of living.  In determining the earning capacity of the spouse to be supported the court will look at their marketable skills of the supported party; the job market; the time and expenses required to acquire the appropriate education or training to develop job skills; and the possible need for retraining or education to acquire marketable skills or employment.

The courts will also look at whether the spouse seeking support was unemployed during the marriage to care for the children or for the benefit of the other spouse.  Where there is a stay-at-home parent who has been out of the workforce for several years a court will often make orders for support to enable the stay-at-home spouse to be able to become employable. The courts will determine the ability of the supported party to find work without disrupting the lives of the minor children in the custody of the party. When the parties have young children, it is likely that spousal support will be ordered in addition to any child support to enable the stay-at-home parent to care for the children until they are able to enter school.

Where a spouse contributed to the attainment of an education, training, a career position, or a license by the supporting party, the court may consider that as a factor in awarding support.  Many times one spouse may work while the other party attends graduate school, such as law school or medical school.  The degree obtained by the graduating spouse cannot be considered to be community property, however the graduating spouse may be required to pay spousal support based on their income.

The court will consider the ability of the supporting party to pay spousal support and will also take into account the supporting party’s earning capacity, earned and unearned income, assets, and standard of living. There are instances where a high earning spouse will quit their job or take a lower paying job in order to avoid a support obligation.  The court will then be required to look at the income of the spouse during the marriage as well as any assets they have.  They can then make orders based on earning capacity and assets.

The needs of each party shall be considered and the court will take into account the standard of living established during the marriage.  A person who is accustomed to an extravagant lifestyle may be awarded an amount sufficient to continue in that lifestyle.  A court must also consider the obligations and assets, including the separate property, of each party.  Where the spouse seeking to be supported has a significant property settlement or separate property assets, the court may see that as being a factor which would lower the amount of support required to maintain the lifestyle.

A court will not award spousal support to a party where there is documented evidence of any history of domestic violence towards their spouse. They will also consider documented evidence of domestic violence against the supported spouse, including, but not limited to, consideration of emotional distress resulting from domestic violence. The criminal conviction of an abusive spouse shall be considered in making a reduction or elimination of a spousal support award.

While a divorce will obviously require adjustments in the lifestyles of both parties, the goal of the family law courts is to be fair to each spouse and to enable each spouse to move on with their lives with as minimal a financial impact as possible.  Awarding alimony is one of the methods the courts use to ensure that this is possible. It is not used as a punishment, but rather as a way to make sure each party can continue to live the same lifestyle that they lived while they were married.

I’ll Show You Mine if You Show Me Yours: Financial Disclosures

Why File Disclosures?

Many of my clients are reluctant about sharing their financial information with their soon to be former spouse.   I often encounter resistance from clients when it is time to prepare the required disclosure forms.  Here are some samples of questions that I have been asked.

We agree that each of us gets to keep everything in our own name, why do I need to list everything?

There are many cases where a couple keeps their finances separate during a marriage or where they have come to an agreement as to who gets what property in a dissolution. Although the parties have an agreement as to how the accounts should be divided, all the accounts must be disclosed to the other party.  The reasoning behind this is that a person cannot waive rights to any assets that they are not aware of.

I have been setting aside money for myself so that I can start a new life, do I really need to show my ex that?

All community property accounts which are in existence as of the date of separation must be divided equally between the parties; therefore you must disclose all accounts. While it is acceptable to have accounts in your own name during a marriage and prior to the filing of a dissolution, the courts require that all community assets be divided at the time of dissolution.

What is the worst thing that can happen if I refuse to disclose something?

If you conceal assets from your spouse in a divorce proceeding, a judge may decide to award the other party all of the concealed assets. There is a court case in California called In re Marriage of Rossi, 90 Cal.App.4th 34 (Cal.App. 2nd Dist. 2001) where the wife won the lottery and then decided to file for dissolution.  She did not disclose the lottery winnings in the divorce case and when it was discovered, the court awarded 100% of the winnings to the husband.  If the wife had disclosed the winnings, the husband would have only received his 50% community property interest.

What about my separate property – do I need to disclose that?

You must disclose all property.  If you have property which would be considered separate property, property which was acquired before the marriage, after separation or through a gift or inheritance, you may indicate that the asset is your separate property.  You will likely be required to provide evidence to the courts that the asset solely belongs to you.

While it may not be appealing to share all of your financial information with your ex spouse, it is much better than having everything you own being taken away from you. California is a community property state, which means that all assets acquired during the marriage are the property of both parties. The courts do their best to make sure each party has their fair share. Don’t make the mistake of trying to hide your assets. When asked for a disclosure, it is always best to file one.

Prenuptial Agreements: Are they really enforceable? Why should I get one?

One major aspect of family law is prenuptial agreements. I have handled divorces where a premarital agreement was involved but for one reason or another it was deemed invalid according to the courts. I have also helped clients prepare their own prenuptial agreement. Clients usually have several questions about premarital agreements, so I’ve decided to list the most asked of these questions with the answers I usually give my clients.

My fiancée wants me to sign a premarital agreement, does that mean he doesn’t love me?

There are many reasons why a person wants a premarital or prenuptial agreement.  A prenuptial agreement protects the interest of both parties and makes the distribution of property easier during a divorce or upon the death of one of the parties.  There are cases where a spouse may own a business or may have accumulated property which they wish to remain their property in case something happens to them or the parties decides to part ways.

Does the agreement need to last forever?

There are many couples that enter into agreements which remain valid for a maximum number of years.  There are other agreements which provide for various distributions after various lengths of marriage.  A couple may also wish to dissolve the agreement after they have been married for a certain amount of time. They would sign a separate agreement which would modify or revoke the previous agreement.

What can be in the agreement?

Parties can agree on issues such as the characterization of property, how community property should be handled, ownerships of businesses and all other issues pertaining to either the separate property or community property of the spouses.  Parties may also agree to spousal support payments, minimum or maximum payments, waivers of spousal support and duration of spousal support.  Agreements which contain provisions for child support or child custody are unenforceable.

Is a prenuptial agreement really enforceable.

In California, premarital agreements must conform to California Family Code § 1615.   In order for an agreement to be valid ALL of the following factors must be met:

The parties must execute/sign the agreement voluntarily. If a party is coerced into signing the agreement, then it would not be voluntary.  The agreement must not be unreasonably unfair to either party.

Both parties must be provided a fair, reasonable, and full disclosure of the property or financial obligations of the other party. If it is found that a party did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party, the party may seek to invalidate the agreement based on the non-disclosure of the other spouse.

Both parties must voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided.

Both parties must be represented by independent legal counsel at the time of signing the agreement or, after being advised to seek independent legal counsel, expressly waived, in a separate writing, representation by independent legal counsel.  This means that each person should have their own attorney review the agreement prior to the time that they sign the agreement. If they choose not to have an attorney review the agreement, they must state in writing that they do not wish to have their own attorney.

Both parties must have at least seven calendar days between the time they are shown the agreement and advised to seek independent legal counsel and the date that they sign the agreement.  If you attempt to present your future spouse with the agreement the night before your wedding, then it will likely be deemed to be invalid.

The parties must be fully informed of the terms and basic effect of the agreement as well as the rights and obligations he or she was giving up by signing the agreement, and was proficient in the language in which the explanation of the party’s rights was conducted and in which the agreement was written. If one spouse does not read or write English, the agreement must be provided in their native language.

The explanation of the rights and obligations MUST be in writing and the writing must be delivered to the party prior to the time that they sign the agreement. The  party shall, on or before the signing of the premarital agreement, execute a document declaring that he or she received the information required by this paragraph and that document must clearly state who provided that information.

The agreement and the writings executed pursuant must not be signed under duress, fraud, or undue influence, and the parties did not lack capacity to enter into the agreement (meaning they were of the proper age and mental capacity to sign the agreement.

In my practice, I have seen many prenuptial agreements be deemed invalid because one or more requirement was not satisfied.  There was a case which I handled where the wife could not read or write English and no Spanish translation was provided to her.  Since she could not fully understand what she was signing the court deemed that the document was not valid.  In another case the wife was given the agreement to sign shortly before her wedding.  There were numerous guests invited and the agreement was presented as a “take it or leave it” document.  She reluctantly agreed to sign the document just moments before the wedding.  Ultimately the couple divorced and the premarital agreement was deemed to be invalid.

Where one spouse wishes to have a premarital agreement, it is best to start the conversation before the wedding plans start.  When a premarital agreement has been properly prepared and signed, it can save parties a lot of time an expense in the event of a death or divorce.  It can also set forth each party’s expectations prior to the time of the marriage. The agreement may also open discussions which the couple should have before deciding to marry.

Many people think that prenuptial agreements are unromantic and falsely believe that if their fiance wants to sign one they aren’t really committed to them, but if done correctly a prenuptial agreement can protect the interests of both parties involved.

Where Should my Children go to School?

Now summer is coming to an end and many families are getting ready to send the children back to school.  For most families the decision about where to send a child to school is fairly simple decision.  There are the normal questions of public school as opposed to private school and parents are free to choose the school that fits the needs of the child and family. Unfortunately in cases where parents are divorced, the decision is not always so easy.

Generally the child will go to the school which is closest to the home of the parent who has primary custody of the children. However there may be instances where this is not practical or in the best interests of the child.  For example if the non-custodial parent lives closer to the school where the children attended prior to the divorce or separation, the Court may deem that it is in the best interests of the children to remain at their previous school.

In joint custody matters, there is an additional complication.  Where the parents each have equal custody it can be difficult for a Court to determine which school the child should attend.  If the children were in school at the time of the divorce and there is a possibility that the child can remain in their previous school, a court will generally order that the Status Quo be maintained.  In cases where both parents have moved away from the children’s school or where the child is going to start kindergarten, the court will consider several factors prior to making the determination as to where the child will go.  One factor will be the location of the school in proximity to each of the parent’s places of employment.  If one parent is required to drive in the opposite direction of their work to get the child to one school and the other parent would be passing the proposed school on their way to work, the court will take that into consideration. Another factor that is considered is the quality of education, after school care and extracurricular activities.

There may be circumstances where one parent moves too far from the other to make joint custody possible during the school year.  In those cases, the Court may need to modify the custody orders so that one parent has primary custody of the children during the school year, with the other parent having additional time in the summer and holidays. My oldest daughter had a friend growing up that lived in New York with her mother during the school year and visited her father in California for all winter, spring, and summer breaks.

In some cases where the parents have a high conflict as to where the child will go to school, a court will appoint an evaluator or an attorney for the children to assist the parties in determining the best school to go to. The evaluator or minor’s counsel will meet with the children, parents and will consider any evidence relative to the proposed schools.

Of course, the best way to determine where the children go to school is for the parents to work together to decide which school will meet the needs of the children.

Who’s At Fault? It Doesn’t Matter!! No Fault Divorce.

What grounds are needed to get a divorce? 

Many of my clients want to know if they need to have a reason to get a divorce or if they will be impacted if they are the first to leave.  California is a no fault state which means that the only grounds required for a divorce are irreconcilable differences.  Prior to 1970 couples were required to have grounds for a divorce. Those grounds included adultery, mental cruelty, etc.  Courts were heavily burdened with couples trying to prove allegations again the other. Further if there was a couple that just “fell out of love” with each other there was no remedy to allow for a simple divorce.

My Spouse told me that they won’t “give” me a divorce

In California, only one party needs to state that the marriage is over.  If one spouse wants to leave and the other refuses to cooperate with the divorce process, a court can grant a default judgment against the uncooperative spouse.  It is to each spouses best interests to cooperate with the process in order to save time and money, however one spouse cannot prevent the other from ultimately obtaining their divorce.

Who Pays for attorney fees if I didn’t want the divorce?

Many parties think that because they didn’t want the divorce or they were not the ones who left the marriage, then they should not have to pay for the attorney fees. California Courts do not agree with this theory.  Attorney fees are awarded to a spouse against another spouse under two grounds.  One is the ability to pay attorney fees and the other is the manner in which a spouse conducts themselves in a divorce.  Where there is a great disparity of income or in cases where there is a stay at home mother and a working father, the court may order that the high earner pay the attorney fees for the low earner.  The reasoning in awarding attorney fees is to allow each party an equal playing field in a divorce action.  However, where one party wants to litigate a divorce case and does not cooperate in divorce proceedings, they may be ordered to pay the attorney fees of the other party as a punishment.

Will my husband still have to pay me spousal support if I was the one who filed for divorce?

Spousal support is based on many factors, however the primary factor which is considered is the disparity in income between the parties.  The courts do not look at which spouse left the marriage or why they left the marriage in making an award for spousal support. Where there is a high earning souse, the courts will order support for a time which is appropriate considering the length of time of the marriage.  If however, the leaving spouse is cohabiting with someone else, the courts would consider that to be a relevant factor in determining spousal support.  Many courts view cohabitation with a person of the opposite sex as being tantamount to a remarriage and would therefore terminate the right to receive spousal support from the other party.

What does this mean for you?

In some states, parties spend thousands of dollars fighting about why they should be able to be granted a divorce.  This also prolongs the time that it takes to get a divorce.  California eliminates a parties ability to point fingers and enables parties who wish to have an amicable divorce to do so.   You are free to focus  on protecting your rights rather than justifying your reasons for ending the marriage.

Child Custody: Part 3/3 – Put Down That Crack Pipe

While ideally every parent would be fit to raise their children, sometimes this is not the case.  When the courts deal with child custody, they look into several factors to decide what would be in the best interest of the child.  The courts believe that if possible, it is in the best interest to have a healthy relationship with both of the parents. However, there are several factors that can prevent this from happening, which will ultimately affect child custody.

Drug and Alcohol Abuse

In determining what is in the best interest of the child, the courts will consider the habitual or continual illegal use of controlled substances and/or alcohol by either parent. Where there is a parent who is addicted to drugs or alcohol, the judge may order that the parent has monitored visitation until they are able to maintain a significant amount of time without drugs or alcohol. If you have a concern about the other parent, you may request that the court make orders for drug and alcohol testing prior to setting up unmonitored visitations.

I have had several cases where a parent is unable to refrain from active drug and alcohol use or where the parent refuses to comply with orders for drug and alcohol testing. In those circumstances, the court may suspend visitations until the parent complies with drug and alcohol testing.

If you are a parent that has a history of alcoholism and drug addiction, this does not mean that you will not be able to have a relationship with your children. The Courts agree that it is in the best interests of children to have a loving relationship with both parents.  If you can show the court that you are serious about maintaining sobriety, they will work with you to increase your time with the children. The worst thing that you can do for your children is to refuse to comply with orders for drug testing or orders pertaining to your treatment program.  The court will want to see that you are serious about your sobriety prior to allowing you to have increased time with your children. I have seen many parents gain joint or even primary custody of their children after obtaining years of continuous sobriety.

The role of a family law court is to act in the best interests of a child and to have safeguards in place in order to protect children from harm. The goal is not to deprive one parent of a relationship of the children. The best possible outcome for cases where a parent has a problem with drugs or alcohol is that the parent receive treatment for their addiction and becomes capable of having a loving relationship with their children.

Child Custody: Part 2/3 – Watch Your Words

While many women believe that simply because they are the mothers, they will get child custody, the courts no longer take the sex of the parent into account when choosing who a child should live with. The courts believe that it is in the best interest of the child to have a healthy and continuous relationship with both parents. There are, of course, several factors that can affect child custody.

False Allegations of Abuse and Badmouthing the Other Parent

The courts presume that the best interests of the children will be served when primary physical custody is with the parent who will make the child more accessible to the other parent. Some parents are so determined to keep the child from the other parent that they will make up allegations of abuse. I have had more than one case where a parent made false allegations against their former spouse alleging various forms of child abuse.  After the investigations were conducted and the abuse allegations were determined to be unfounded, the parent making the allegations lost time with the children.  If the parent cannot refrain from making the false allegations and there is more than one false report filed, the end result can be that the other spouse receives sole custody of the children with monitored visitations to the accusing parent.

Another mistake that a parent will sometimes make is trying to brainwash the children against the other parent or they continuously say negative things to the child about the other parent. It is natural to have bad feelings about the other parent while going through a divorce, but these are feelings that you should share with your friends, not your children. I have a good friend who shared with me that her mother kept her father’s phone number listed under “A” in the phone book under “A******e” so each time that she called her dad, she would need to be reminded that her mother thought that her father was an “A*****e.” Children need to be free to love both of their parents. When one parent speaks negatively about the other parent, it has a negative impact on the child.  Sometimes a child will become angry at you or at their other parent.  If your child complains to about the other parent, your role is to listen, emphasize and remind your child that both you and the other parent love them very much.

I understand that this can be challenging at times, especially if you see that your children are hurt by the actions of the other parent.  Growing up, my oldest daughter wanted nothing more than a relationship with her father, but he was inconsistent in his phone calls and never executed his visitation rights. She would often cry to me about how she felt like he never loved or cared about her, and I would try to remind her that he truly did love her to the best of his ability. This caused several disagreements between me and my daughter, as she thought that I was defending him.  I hated to see her hurt, but at the end of the day, I knew that it was in her best interest that I didn’t add fuel to the fire.

The courts have a term for parents who attempt to undermine the relationship between children and the other parent.  Where there is a parent who continually frustrates the relationship with the other child, that is considered to be “Parental Alienation.” In the most severe cases, the children are removed from the alienating parent entirely. The courts deem that the children’s interests are best served when they are living with the parent who will encourage a relationship with the non-custodial parent.

In order to raise happy, healthy children, set aside all feelings of hostility and anger towards your ex while in front of your children and give your children the gift of a loving relationship with both of their parents.


Child Custody: Part 1/3 – Keep Your Hands to Yourself.

For this next week, my blog’s theme will be child custody.  Many moms assume that just because they are the mother, they will automatically have custody of their child.  While that may have been the case long ago, courts no longer look to the sex of the parent to determine who should have custody of the child. The courts deem that it is in the best interest of the children to have frequent and continuing contact with both parents.

There are of course many issues which may interfere with a parent’s ability to have custody or even visitation with their children.

Physical Abuse of the other parent of Child:

In determining what is in the best interests of a child, they will look to see whether one parent has perpetrated domestic violence against the other parent or a child. There is a presumption that it is not in the best interests of the child where one parent abuses the other parent. Naturally, it is not in the best interests of the children to have them with a parent who abuses them.  If you have been abused, you should bring that to the attention of your attorney or the family law courts. This does not mean that the other parent will not have any visitations with the other parent, but the court may limit or monitor those visitations.

If you are in a situation where you or your child is being abused, you should immediately seek the assistance of the police and you should document each instance of abuse going as far back as you can.  Eventually you may need to present this evidence to the court.  Many abused women fear leaving their abusive husbands because the husbands threaten that they will take the children from them.  They may fear that they will be left with no money.  The key is to be prepared, contact and retain an attorney before you leave your home. Document the abuse with the local police department.  If the police do come to your home to arrest your spouse, have your attorney file the Temporary Restraining Orders, Divorce and/or Custody paperwork before your spouse has been released from jail.

In my career, I have represented many women (and a couple men) who have been the victims of domestic violence.  In one of my cases, I assisted the wife in obtaining a Domestic Violence Restraining Order and she was able to have the sole use of the home. She was granted sole custody of their young children and her husband was ordered to attend a 52 week batter’s intervention class and parenting classes prior to having unmonitored time with the children. In another circumstance, the abuser was unable to abide by the restraining order and eventually had to spend some time in jail.

There have been a few cases that I have had where the abuser was able to learn to become a good parent and able to have more time with the children as a result of court ordered counseling and parenting classes, however there is no guarantee that will happen.  What is imperative is that you take actions to protect yourself and your children.

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