Establishing Parentage in the Separation of Unmarried Parents

Posted by: Gerald A. Maggio, Esq.

orange county child custody attorneys; The Maggio Law FirmIn custody cases involving married parties, wherein a couple was married when their child was born, the court of law automatically assumes that the wife is the child’s mother and the husband his father. However, in the event that a child was born without his or her parents being legally wedded, the court of law needs to establish the parentage of the unmarried couple. A relatively recent law in California states that if the parents of a child are legally registered as domestic partners, then they will be considered as the child’s legal parents too. However, owing to the fact that the law is still rarely used and quite unsettled, it is advisable for same sex parents to obtain legal consultation from a professional attorney in order to establish their parentage over the child.

What is the legal implication of establishing parentage? 

The state law of California stipulates that an unmarried couple is required to obtain a court order to establish their legal parentage over their children. The parentage can also be established by signing a legal ‘Declaration of Paternity’ which states that the couple is the legal parent of the child in question and is obligated to contribute for his care and support. To cite an example, if a child is born to the female spouse before she was married, the parentage of the father needs to be established in order to provide him the legal right to the child. This implies that even if the male spouse was the biological father of the child, he cannot exercise his rights unless he receives a court order that states his parentage as legal. 

Why is it important to establish the parentage? 

It is essential for an unmarried couple to get its parentage established by the court of law, in order to be eligible for requesting custody, visitation or support of the child in the event of a divorce or a legal separation. The request for the custody or visitation may be applied in conjunction with the paternity case in the court of law. However, once the parentage has been established, the individual or couple needs to adhere to both their rights as well as their responsibilities as the parent of the child.

The individual will then be eligible for requesting the custody or visitation of the child. In addition to this, he or she will also be obligated to make adequate contribution towards the support and healthcare insurance costs for the child.

Getting divorced in California can be complicated.  Download our free eBook, 18 Important Things to Know About California Divorce to educate yourself on the process.  

Using A Minor’s Counsel In a California Custody Case

Posted by: Gerald A. Maggio, Esq.

Orange County divorce lawyer; The Maggio Law FirmIn many divorce cases in California, the minor children are usually not allowed to speak up or testify for their concerns in the court of law. Or to put it more clearly, minors involved in a parental divorce are not allowed to voice their opinions directly in front of a judge. However, for this reason, the court has a provision of facilitating a ‘minor counsel’ to represent the child in the trial proceedings.

Who is a Minor’s Counsel? 

In simple words, the court appoints a neutral third party as a minor’s counsel who is supposed to interact with the child and determine his or her preferences and concerns regarding the custody and visitation arrangements. The minor counsel is obligated to represent the child in the court of law and voice his opinions, without compromising on the latter’s emotional well being and right to expression. Minor’s Counsel is expected to stay neutral and represent the best interests of the child without trying to influence him or her to take sides with either parent. He also needs to establish the best interests of the child without being affected by his negative emotions in abuse, domestic violence or neglect related divorce cases.

More often than not, the court specifies that separate minor counsels should be allotted for each of the children involved in a divorce. Typically, the parents are required to pay off the charges for appointing a minor counsel. However, if the parents cannot afford to do so, the county may offer to pay for the representation. The attorney who has been appointed as the Counsel will continue to exercise his representative duties until the child turns 18 years of age. 

What is the function of Minor’s Counsel? 

Since the Minor’s Counsel is expected to be the voice of a child in the court of law, he should be well acquainted with the facts and figures related to the latter. He needs to research the general information regarding the child from his therapists, teachers and parents and establish as to what will be best for his safety and well being.  Minor’s Counsel will also be required to browse through the medical history and school records of the child and determine whether there was any existing or past psychological condition that might aggravate in the current times of distress. Through an all round research of the child’s personality, a Minor’s Counsel can best evaluate his needs and make suggestions to the judge accordingly.

A minor counsel also has the right to express and should express the child’s wishes in the court of law. However, it is up to the judge’s discretion to follow through with the requests or not.

Getting divorced in California can be complicated.  Download our free eBook, 18 Important Things to Know About California Divorce to educate yourself on the process.  

Disputing Parentage and Genetic Testing

Posted by: Gerald A. Maggio, Esq.

Orange County divorce attorneys; The Maggio Law FirmAs per the statutes of the California law, a male partner who is being established as the legal father of a child, has the right to dispute his parentage and request to undergo a DNA analysis or genetic testing to establish the authenticity of his biological relationship with the child. Since the DNA of every individual is unique and usually a child inherits several sets of DNA from both his father and mother, an analysis of the DNA coding can be a sure shot way of determining the biological relationship between the parents and the child. The parentage laws in California are quite complex. There are several cases, wherein an individual is declared by the court of law as the legal father of the child, even though the genetic tests prove otherwise.

When can you request a paternity test?

More often than not, it is advisable to go for a paternity test at the very beginning of a case. If an individual receives a Summons and Complaint Regarding Parental Obligation by an individual or Local child support agency, he has a period of 30 days from the date of being served with the legal documents, within which he can file for a response and request a paternity test to establish the parentage. In the event that the individual fails to respond to the complaint within 30 days of being served, the court of law has the right to attribute him with the legal parentage even without a paternity test. 

How to proceed after the results of the paternity tests are out?

Once the results for the genetic testing are determined, you can consult your lawyer to assist you in deciding upon the most favorable option for you to proceed with. For example, if the test result reveals a high probability of you being the biological father of the child, you have the option of either accepting the parentage or going to the court for contesting the paternity case. If however, the test results reveal that there are extremely low chances of you being the father of the child, the parentage case filed against you will be automatically dismissed by the court. In addition to this, if an individual does not approve of the test results, he has the right to request a re-analysis of his DNA at extra charges.

Generally, if a court has already issued an order establishing your paternity with the child, it is nearly impossible to dispute the verdict and request for a genetic test.

Getting divorced in California can be complicated.  Download our free eBook, 18 Important Things to Know About California Divorce to educate yourself on the process.  

California Child Custody Myths

Posted by: Gerald A. Maggio, Esq.

orange county child custody attorneys; The Maggio Law FirmCalifornia statutes which deal with child custody settlements have been often subjected to a lot of falsehoods and myths. However, as aforementioned, these are only myths that have no grounds to prove their authenticity. The actual law is quite different from what the popular opinion has become. We are going to bust several of such child custody related myths that have been doing rounds in the State of California for quite some time now.

Myth #1: Gender is relevant in deciding child custody cases

One of the most common myths about California law is the fact that the law favors one gender over the other in determining the child custody settlements. Many a times, we have witnessed that the fathers often tend to be on the losing side when it comes to obtaining full child custody. However, the reason for such occurrences can be attributed not to a gender bias, but to the simple fact the father often fails to state his merit in handling the kid, above the mother. California Family Code 3040 implies that the court shall not prefer a specific parent as the custodian on the grounds of his individual sex. 

Myth #2: A teenager gets the liberty of deciding his child custody

Notwithstanding California Family Code 3042, which states that teenage children get to state their preferences regarding their choice of living arrangements with a parent, it doesn’t imply that they have the liberty to simply pick where they live. The law states that the court is obliged to listen to the requests of children above 14 years of age. However, it does not mandate the court’s obligation to decide the verdict in sync with the child’s wishes. 

Myth #3: The parent who has temporary custody before a formal court order gets to keep it permanently

There is a widely prevalent myth that the parent who has the custody of the child prior to a formal court order, gets to hold the custody after as well. However, this is absolutely in contradiction with the actual statutes of the California Family Code section 3046 that states that the absence of either parent due to relocation or other circumstances will not be considered while making child custody and visitation arrangements.

Getting divorced in California can be complicated.  Download our free eBook, 18 Important Things to Know About California Divorce to educate yourself on the process.  

Is Your Ex-Spouse Curbing Your Child’s Technology Addiction?

Posted by: Gerald A. Maggio, Esq.

orange county divorce lawyers; The Maggio Law FirmWhen your ex-spouse and you share the physical and legal custody of your child, it is better to agree on a schedule for your child’s activities. For instance, you both can decide at what time your child should go to bed, how much playtime your child should have, how much time your child may watch TV, and so on. This will make it easier for your child to move between his/her two homes. This consistency will also help to promote family unity. However, while most of the time your ex-spouse and you may agree on the rules for your child, sometimes you both may disagree on something. For instance, your ex-spouse may think that providing unlimited screen time to the child may help him/her in the future in terms of getting a job, and you may think that excessive screen time would cause the child to develop digital dementia. Trying to resolve this by putting your foot down may not be the best approach. For one, your ex-spouse may not be willing to listen to you and there is nothing you can do about that. Second, you may just alienate your child by trying to curb his/her screen time.

The calm approach

The best approach to tackle this situation is the calm approach. Just sit with your ex-spouse and discuss the issue. Make him/her understand that the child is getting addicted to the technologies, he/she is spending way too much time on their iPad, smartphone, laptop, and so on. The child may be getting addicted to the Pokemon Go game, and it is putting his/her safety on the line. The video games he/she is playing may be too violent. The child may be much too involved in social media. By having a practical discussion, you both may decide on the best course for your child.

Seek court intervention

If your ex-spouse is not willing to discuss the issue of technology addiction with you, you may seek the intervention of the family court. However, before you take this approach, you have to be absolutely sure that your child is addicted to technology, and it is affecting his/her overall well-being. You may have to prove in the court that your child’s technology addiction is causing him/her to perform poorly in the school or the violent video games are affecting the child’s mental well-being or the Pokemon Go game is putting your child’s safety at risk. Your ex-spouse, of course, would counter all this, he/she would argue that the technology is actually making the child smarter, the video games are helping him/her to bond with the child, and so on. So, unless you have solid proof, do not seek court intervention.

At the end of the day, all you can do is encourage healthy behaviors in your child. Be innovative. Instead of just taking away his/her iPad, let him/her bring it along while going fishing. Slowly, your child may see things your way, and make the best decision for himself/herself.

Getting divorced in California can be complicated.  Download our free eBook, 18 Important Things to Know About California Divorce to educate yourself on the process.  

Determining A Child’s Preference In California Custody Cases

Posted by: Gerald A. Maggio, Esq.

Orange County divorce lawyer; The Maggio Law FirmWhile deciding upon the final verdict in child custody related divorce cases, the court of law has the obligation to keep the best interests of the child in mind. The history of child custody settlement methods has been quite prolific and frequently changing in the state of California. Quite a few years back, the concept of acknowledging the child’s preference in deciding upon his custody and visitation related settlement was shunned as an unnecessary ordeal. At that time, the preference of a child was considered meekly only if he had reached his teenage years.

However, with the recent transformation of the family law in California, the statutes have become more progressive and accepting of the child’s right in voicing his opinion regarding his custody and visitation related preferences.

Understanding California Family Code section 3042 

California Family Code section states a few guidelines for the court of law while dealing with child custody related cases.

  • A child who is of adequate age and reasoning capacity to make a sensible decision regarding his custody and visitation preferences, will be given due consideration by the court of law in deciding upon the final verdict.
  • Apart from the statutes of the Evidence code section 765 subdivision b, the court has the obligation to limit the cross examination of a child witness in order to protect his best interests.
  • A child who is 14 years of age or older, has the right to state his or her preferences regarding his custody and visitation, unless the court identifies it as a threat to his best interests and well being. In such cases, the court has the obligation of stating the specific reasons for avoiding the same.

Preference of children of age 14 and above 

As per the aforementioned California Family Code 3042, a child who is 14 years of age or older has the right to state their preference regarding custody and visitation to the court regarding his or her custody and visitation related orders. The court has the duty to listen to his wishes and determine whether taking a decision in his favor will ensure his best interests or not. The specific age limit has been identified by the Californian court of law as a time when a child has developed sound emotional maturity and a sensible rationale, and is capable of articulating the reasons behind his preferred choices.

However, the child’s preference is not considered as the ultimate decider of the final verdict. It is left to the court’s discretion to decide the settlement as per its own evaluation of the specific circumstances.

Getting divorced in California and dealing with custody issues can be complicated.  Download our free eBook, 18 Important Things to Know About California Divorce to educate yourself on the process.  

What To Know About Visitation Orders

Posted by: Gerald A. Maggio, Esq.

child custody attorneys Orange County; The Maggio Law FirmChild visitation, increasingly referred to as a parent’s parenting schedule so as to not minimalize the parenting of the party who has less custodial time than the other, is a plan incorporated within a court order which stipulates the time and duration of visits a separating parent can see his or her children. A parent who gets to spend less than half of the time with his or her children can be termed as having visitation with them. Just like child custody settlements, depending upon several factors such as specific circumstances of the case and best interests of the child, the court may order various kinds of visitations for the separating parent.

Visitation as per a specified schedule

More often than not, a visitation order might become a topic for constant conflict and disputes between the separating parents. In order to avoid the confusion stemming out of a visitation order, the court of law designs a comprehensive visitation schedule which specifies the dates and times of each parent’s visit. The visitation schedule will also include special occasions such as birthdays, vacations and Thanksgiving. 

Reasonable visitation

A reasonable visitation can be touted as an open ended court order which allows room for mutual agreements on the schedule by the couple itself. Since this type of visitation order does not typically lay down the schedule timings, it can be effective only in the cases wherein the parents are able to get along well and communicate peacefully with each other. A disagreement or misunderstanding between the parents over a reasonable visitation can be highly detrimental to the mental and emotional well being of the child. 

Supervised visitation

There are certain specific divorce cases, wherein it is decided by the court of law that the visitation is carried out under the supervision of a third party. If a court sees a level of threat to the safety and well being of a child, it may order for supervised visitation which will be carried out in the presence of the other parent, another adult or a law professional. Supervised visitation is also ordered in cases where a parent has not been in touch with the child for long and needs to get more familiar with the latter by means of visits. 

No visitation

The court of law has the right to entirely deny any visitation to a parent, which even under supervision poses a significant threat to the physical or mental well being of the child. In such cases, it is deemed against the best interest of the child to have any sort of contact with the abusive parent.

Getting divorced in California can be complicated.  Download our free eBook, 18 Important Things to Know About California Divorce to educate yourself on the process.  

How To Deal With Parental Alienation In Custody Cases

Posted by: Gerald A. Maggio, Esq.

Top Orange County divorce lawyers; The Maggio Law FirmIn order to act against parental alienation, you first need to educate yourself about what parental alienation actually is. Once you are fully aware of what parental alienation is and how it is affecting you, your child, and your relationship with each other; you will be able to tackle it in a better way.

Many experts have suggested a number of ways of acting against parental alienation. But you will have to decide what is best suited for you.

Tackling it head on

Have a talk with the child directly. They should be made to realize that their opinion about you is wrong, that they are being manipulated, and that their behavior towards you is baseless and inappropriate. You could directly talk to the other parent also. But there is every possible chance that the other parent will outright refuse any sort of manipulative behavior. Arrange a family meeting if possible.

Enroll in a parenting program

You could attend parenting programs and seek the help of a parenting consultant. Any consultant with experience and expertise in parental alienation will be able to guide you. You will become aware of the steps and strategies that you can take to prevent your child from feeling alienated from you.

Consult with a lawyer

If everything else fails, you should consider enlisting the help of a lawyer with good experience of practicing family law. Sometimes the threat of a legal action may get the other parent to tone down a bit and correct themselves. But before you can consult with a lawyer you need to document the alienation you are experiencing. You should have proof of the verbal accusations the child has said the other parent has made against you.

The lawyer will be able to send a legal notice to the other parent asking for an explanation of their unacceptable behavior. The lawyer will also explain the laws regarding parental alienation to the other parent and state the consequences they may have to face if they continued with their manipulative behavior. It may include court action. In serious cases of alienation, where the other parent has falsely accused you of something, your lawyer can take court action immediately.  You should not sit back and accept parental alienation, but you need to have an understanding that undoing parental alienation can be a long, difficult process even if you have legal representation and reunification therapy ordered to be implemented.

Getting divorced in California can be complicated.  Download our free eBook, 18 Important Things to Know About California Divorce to educate yourself on the process.  

Understanding Supervised Visitation

Posted by: Gerald A. Maggio, Esq.

child custody attorneys in Orange CountyThe State of California stipulates that all child custody related arrangements with reference to parental divorce cases would incorporate the best interest of the child. As per the specific situation, the court of law will decide a settlement which would imply that either both or one of the parents will be granted the shared or single custody of the child respectively. In addition to the child custody, the judge may decide the visitation arrangements for the child which would order the child to have contact with one parent only in the presence of neutral third party. The aforementioned arrangement is termed as supervised visitation. In such a settlement, the court has the right to specify the duration and time of visitation. In some cases, the judge might further allot the third party supervision to specific persons and list out the places where the visitation can take place.

When does a court grant supervised visitation?

There are several cases wherein a court will require the parent to carry out supervised visitation with their child, such as:

  • In cases where a parent would like to address some specific issues with the child
  • In order to recreate a bonding with a long absent parent
  • To facilitate an introduction between the parent and child in cases wherein there was a nonexistent relationship between the two.
  • In cases wherein there is a history of domestic violence or physical abuse
  • In cases where there is a threat of parental abduction

Who is a supervised visitation provider?

A supervised visitation provider can be anyone ranging from a neutral family member, a friend or even a professional. It is the provider’s duty to oversee all the visitations cautiously and ensure that all the separate parties involved in the process are kept safe and free of any harm. The provider is obliged to stay around during all the visits and also keep a close track of what is being discussed and how the child is responding to it. Since it is his job to ensure everything goes on smoothly for the child, the provider is supposed to report the parent’s misbehavior or child abuse to the court. He further has the right to interrupt or even put an end to the visit if required.

The supervised visitation providers may be broadly classified into two categories, namely non-professional and professional providers. While non-professional providers are somewhat related to your family or friend circle and are not paid, the professional providers charge a fee for their services.

Getting divorced in California can be complicated.  Download our free eBook, 18 Important Things to Know About California Divorce to educate yourself on the process.  

The Impact Of Domestic Violence On Child Custody Cases

Posted by: Gerald A. Maggio, Esq.

Domestic violence Orange County attorneys; The Maggio Law FirmThe child custody and visitation laws are separately dealt with in divorce lawsuits involving child abuse or domestic violence. It is the duty of the judge to establish whether there is a genuine case of any kind of physical or mental abuse or not. If yes, the court of law must follow specific rules and guidelines to reach a final verdict in terms of custody and visitation rights of the parents involved.

What is regarded as domestic violence by the State of California? 

Many times, the victims of domestic abuse end up thinking that they have not been subjected to any violence unless it is causing any physical harm to them. However, the State of California defines the conditions wherein an act would be considered domestic violence by the court of law such as:

  • Subjecting the victim to intentional bodily harm or injury
  • Sexual assault
  • Scaring the victim to have a constant fear of being physically harmed by the perpetrator
  • Other actions that might drive a court to issue a restraining order against the acting individual such as physical assault, harassment, stalking or unwanted phone calls

How the court of law decides custody and visitation in cases of domestic violence?

While deciding upon the child custody and visitation rights of a parent, the court is obliged to ensure the best interests of the child at all costs. In the event of a domestic violence being involved in a divorce lawsuit, the judge has the right to limit or block contacts of the child with the abusive parent. Evidence of domestic violence reported by law enforcement, social welfare agencies, child protective services and medical facilities would be acceptable as substantial proof of abuse and will be held against the defendant.

Since the court is obliged to ensure the child’s best interests at all times, exposing him to any kind of domestic violence will be against the policy of his protection. In such cases, the judge might either order supervised visitation for the abusive parent or completely bar overnight visits. In case a protective order has been issued, the judge might stipulate pre determined conditions for the visitation or even entirely deny it.  In cases involving extreme abuse, the court may go to the lengths of ordering a permanent and complete termination of the parental rights of the abusive individual.

Getting divorced in California can be complicated.  Download our free eBook, 18 Important Things to Know About California Divorce to educate yourself on the process.  

 
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