The Myths and Facts of California Child Custody Cases

Posted by: Gerald A. Maggio, Esq.

Orange County divorce lawyer; The Maggio Law FirmCalifornia child custody cases are the subject of myths and untrue statements.  These myths and false facts are so widespread that they have started to become more of a fact in the minds of the people as opposed to the myths that they actually are. As a result,  parents make errors in parenting and other decisions related to the child, trying to keep in line with these myths.

Here, we will try and dispel these rumors once and for all.

Myth 1: Gender is an important consideration for the family law judge

The fact of the matter is that there is no such thing in the family law courts. Gender is irrelevant in the child custody decision making of a family law judge. This myth was actually made to act as an excuse for those parents, more specifically, fathers who, along with their attorneys, were unable to present their case properly and win. The fact that some parents are unable to prove the facts and make a real case out of the trial lose is due to the lack of preparation as opposed to the difference in gender.

Myth 2:  Once a child reaches the teenage years, the decision which parents he/she wants to live with is taken by them

This is not entirely a myth, but isn’t completely true either. In child custody cases, most of which are complex in nature, the child does have a role in deciding which parent to live with, but the decision does not solely lie with them. When a child is judged to be mature enough to know the ins and outs of decision, he or she will be asked by the court about their preference regarding which parent they want to live with. This preference though, is only a means to aid the judge in their decision regarding child custody and is in no way binding. The judges can refuse to acknowledge or even take it into account if they believe it is against the interest of the child themselves.

Myth 3: As long as there is no court order, the parent that has custody of the child before the trial will continue custody during the trial

In reality, while the status quo, i.e. what has been happening before the trial, is an important consideration when it comes to deciding on temporary custody, it is by no means the final word. Courts will look at the facts objectively to decide which parent gets the temporary custody for as long as the trial goes on. The most important consideration in child custody cases is the best interests of the child.

A Low Down On “Parental Gate-keeping”

Posted by: Gerald A. Maggio, Esq.

Top Orange County child custody attorney; The Maggio Law FirmParental gate-keeping can be broken down into paternal and maternal gate-keeping. Maternal gate-keeping has a far greater dominance over the paternal gate-keeping, yet the creation of barriers with respect to parent and child quality time, co-parenting and communication can be attributed to both in equal regard. This blog will set out to give you a brief low down on what parental gate-keeping exactly is.

What is Parental Gate-keeping?

In the context of family law, parental gate-keeping can be defined as an action or series of actions taken by a parent to protect the child from harm that is actual, perceived, or manufactured.

The 3 Categories of Parental Gate-Keeping

·         Parental Gate-Keeping Due To Actual Harm

This type of parental gate-keeping is sometimes referred to as protective gate-keeping. This type of gatekeeping is an action or series of actions taken by parent in an attempt to ward off the actual harm from the child. The most common example of such parental gate-keeping is parent protecting their child from emotional and/or physical abuse as well as emotional neglect. It is assumed that parents who use protective gate-keeping simply intend to do it in the best interest of their child and don’t intend on damaging the child-parent relationship.

·         Parental Gate-Keeping Because Of Perceived Harm

“Perception is stronger than reality.” This quote holds true in all aspects of life including family law proceedings and child custody issues. It is clear that in terms of divorce cases, the emotions can run high leading to concerns becoming fears in child custody proceedings of a divorce case.

This is often the case as observed with parents that have had sole authority of caring and nurturing of the child for most of the child’s life. In such instances, the notion of having their child taken away from them and placed in someone else’s custody for some periods of time due to the child custody settlements can lead to hypersensitive protective actions by the parents.

·         Parental Gate-Keeping Because Of A Manufactured Harm

Orange County family lawyers are likely to tell you, child custody proceedings are home to some of the most serious and heinous nature of false accusations leveled against one another. This type of gate-keeping is also known as restrictive gate-keeping and the use of false accusations makes up the core of this approach. This type of parental gate-keeping is reckless, malicious, and against the notion of genuine concern for the child and has more to do with the hate and sense of revenge towards the other spouse.

Tips for Dads to Avoid Spoiling the Kids Out of Guilt after a Divorce

Posted by: Gerald A. Maggio, Esq.

Top Orange County divorce lawyers; The Maggio Law FirmWhen it comes to the toxic effects of a divorce, one of the hardest things to be effected by such a situation are the children involved in the marriage, and at times, parents tend to overcompensate for their sufferings through an extra shower of care, love, and affection. While care can be fine, at times, dads have been labeled for being too over enthusiastic in trying to make up for the child’s sufferings because of the divorce. Through their actions, they try to rid themselves of the guilt that they feel of having been responsible for the mental and emotional torment that was suffered by their child.

Here are some tips to avoid spoiling your kids out of guilt after divorce:

·        Talk To Them As Much As They Want

Talking to your kids whenever they want to talk is a sign from your side that you are always there for them.

·        Be Consistent

If you make lofty promises, try and fulfill them. However, it is better if you don’t make promises that are hard to keep. Parenting needs to consistent and if you continue to pamper the child and make fairytale promises, there will be a time when it’ll become hard for you to fulfill your commitments and that might leave your kid disappointed.

·        Small Surprises Are Also Worth A Lot

Most of the times, there are instances when you try and go overboard with the surprises and gifts and that can be acceptable on big occasions like birthdays and other achievements. Yet, what you have to understand is that your kids don’t always want the best of the world from you, sometimes it’s those little notes of appreciation that can show them you love them and care for them.

·        Make Sure Discipline Isn’t Compromised

It is one thing loving and caring for your child and quite another to turn a blind eye to all that he/she does. When it comes to children, even those who have suffered through a divorce need to be disciplined from time to time. Always be firm on matters of discipline and let the child know that you will not tolerate ill discipline and given any concessions on that.

·        Let the Kids be Kids

Your kids are kids and should be treated as such. You are the parent and neither they nor you can reverse the roles. Irrespective of the feelings you have about the other spouse, always make sure that you keep them to yourself in front of the kids. Treating the kids like kids also means making sure they stay in their limit. If you don’t care about their limits, gradually, they won’t care about their limits at all.

High Conflict Child Custody Cases and Parallel Parenting Plans

Posted by: Gerald A. Maggio, Esq.

Top Orange County divorce lawyers; The Maggio Law FirmCases that involve child custody in the Orange County family law courts tend to be one of the most hotly contested cases, where the emotions can sometimes take the better of both parties since the case involves their children. In child custody cases in California, the words parallel parenting plan are being used increasingly. When cases are hotly contested and have emotions running high, in such high conflict cases there is effectively little or no communication between the parents which means being able to formulate a single parenting plan is almost impossible.

Often after a divorce, the level of bitterness in the parents can increase which is usually carried on to and taken to another level in child custody cases. In such cases, where the conflict and hostility between the parents makes co-parenting impossible, parenting plans need to be used.

Situations where Co-parenting is Impossible

Here are a few instances where co-parenting can be almost impossible for parents to agree on:

  • Both the parents are at logger heads with each other and lack respect for each other
  • The emotional distress that comes with divorce has overcome them and bars them from having effective communication with each other
  • One of the parents has a level of bitterness about the other parent which makes co-parenting impossible. Bitterness can be due to a number of factors that may include the Orange County divorce, distribution of assets, or the behavior of the other spouse.

Definition of Parallel Parenting

Just like its name, parallel parenting is parenting by both parents simultaneous to each other with little or no need for either to communicate or have discussions with the other. In a parenting plan, parents are made autonomous for parenting and custodial decisions when the child is under their custody.

How a Parallel Parenting Plan Should Be?

The major difference between co-parenting and parallel parenting plans is the aspect of communication. Therefore, to eliminate the need for communication between the divorced parents, the parallel parenting plans need to be detailed.

Here are few things that a typical parallel parenting plan should clearly have outlined in it:

  • Dates that specify the starting and ending date of each custodial period for the child
  • How and where will the child be handed over to the other spouse
  • Other issues which may give rise to an undue conflict in such a case

While parallel parenting can be deemed as something that relieves the parents of communicating for the benefit of their child, it is also worth recognizing that it saves the child from witnessing constant bickering about his or her life between the parents.  However, it is always better and preferable when at all possible to co-parent than having to parallel parent.

The Most Appropriate Time to Get Divorced

Posted by: Gerald A. Maggio, Esq.

Top family lawyers Orange County; The Maggio Law FirmThe decision to get divorced is one of the hardest for couples to take. Most divorces are known to leave a bitter mark on each of the spouses that are involved in the process. While the decision to get divorced is difficult enough, another decision that is equally important is the timing of the divorce. The timing of a divorce is important because of a number of factors. In this blog, we’ll look at different aspects to judge what the best time to get a divorce is.

The Timing of Divorce and the Age of the Child

When the children tend to grow up in each phase of their life, they react to different things differently. A child that is 6 years old is likely to react differently to their parents’ divorce compared to the reaction of a 16 year old. A child at a younger age may find it difficult to cope with the sudden changes in his/her life and the constant conflicts between his/her parents. Therefore, considering the timing of divorce with respect to the child’s age is important because your children are the ones who will be the most affected by any decision you take.

The Best Time To Divorce When The Children And Spouse Need Financial Protection

Financial decisions affect nearly all decisions in one’s everyday life and it is a no-brainer that when the time comes for making one of the biggest decisions of their lives, spouses tend to look at the financial aspect before deciding when to get a divorce.

If you are the parent that supports the family financially, the issue of the timing of the divorce becomes a little less complicated. This is because when you are the earner in the family, it is assumed that you are financially stable and your soon-to-be ex is not. Here is a list of questions that you should consider before your decision:

  • Have you considered the amount of time in child custody or visitation you’d want with your child?
  • Do you have an idea of how much child support you’ll need to pay?
  • Have you considered the division of the family’s assets and the fate of your house and subsequently your residence?

For stay-at-home parents, however, this decision can be a little tricky. In such situation you need to carefully consider your and your children’s financial future. Moving out wouldn’t be the wisest option for such parents because that may mean that the state of their finances will be almost impossible to control. In most cases, the parent can consider the timing of the divorce to decide to file for divorce and yet stay in the same residence as the other parent. This is legally an option in Orange County family law.

Remember, there is no “correct” time for filling a divorce. The timing of the divorce depends on a number of circumstances and factors in your  life and the lives of your children.

Divorce Mediation for Couples with a Special Needs Child

Posted by: Gerald A. Maggio, Esq.

Divorce-mediation-attorney-Orange County; The Maggio Law FirmDivorce mediation is beneficial to almost all couples, but it is perhaps most beneficial to families with a special needs child.  Emotions in these situations run especially high: one or both parents may be particularly concerned about how the financial and logistical changes of divorce can have serious consequences for a special needs child.

In addition, parents may not agree on what the child needs.  But almost certainly, the financial and emotional strain of a protracted legal battle is not the answer.  The truth is that mediated divorce is the best way to ensure a healthy and happy future for a special needs child.  When divorcing parents agree to use a child-focused divorce mediation process, real progress and tenable agreements can be made.

Focusing on the short- and medium-term

A divorce mediator with special needs experience will ensure that the mediation process includes significant focus on the medical, educational, social and emotional well-being of the child.  This includes both short- and long-term living arrangements as well as financial planning to ensure future care.  When appropriate, the mediator will place particular focus on creating an agreement as to how different types of medical decisions will be made.

Making plans for the long-term

Some special needs children will need care and support throughout adulthood, and the mediation process can lay the foundation for that.  Divorcing parents of children with severe disabilities may need to plan for their child to have housing, social security benefits, and ongoing care, even beyond the lifetime of the parents.  While traditional divorce agreements frequently do not address these issues, a mediated divorce agreement can create a framework plan to ensure that both parents are working towards these important goals.

What To Do If You Have Been Falsely Accused Of Child Abuse In Your Divorce

Posted by: Gerald A. Maggio, Esq.

Top Orange County divorce lawyers; The Maggio Law FirmDivorce proceedings can sometimes turn out to be full blown affairs of emotions and accusations. One such accusation that should be used with care but is used rather sparingly is that of child abuse. Child Abuse is a serious accusation and can shatter even the strongest reputation to pieces. Making an allegation of such sorts is supposedly easy and yet its affects can be far reaching on the spouse and Orange County divorce proceedings.

Most of these accusations are used when the child is an infant or unable to understand the situation and comprehend his or her viewpoint. The Orange County family law court has always encouraged both the parents to stay in contact with the child but have one exception to that rule. If the parent is accused of abusing or neglecting his child voluntarily, he or she can be preventing from contact with the child for an extended period of time and often supervised.

This is what you get if you actually abused your child, but what if the claims were false? What happens to the parent that makes false accusations regarding child abuse in courts?

Curtailed or Supervised Visitation

In case of the court finding one spouse to have lied in the accusation, the court can order a punishment that can affect the falsely accusing parent’s visitation rights. They can be ordered to only have supervised and monitored visitations, or the courts can even curtail the amount of visitation time and number of visits to make sure they are brought to justice for tarnishing someone’s reputation.

Monetary Sanctions

False accusations of child abuse in Orange County divorce cases lead not only to punishments by the courts on visitation rights but it can also involve financial fines. The court can order and impose financial sanction on the accusing parent to pay a lump sum amount to the other parent. This lump sum amount’s sanction; however, cannot exceed the amount of money the accused spent on his/her family lawyer’s fees and other procedural costs to defend him/her against the false accusations.

To claim these sanctions under California Family Code 3027.1, there is no need to show the falsity of the claim in court. The falsely accused parent only has to show that he/she prevailed in the court where this claim was originally made.

What Is The Concept Of Joint Legal Custody And How Is It Defined Under California Law? (PODCAST)

Posted by: Gerald A. Maggio, Esq.

Best Orange County divorce attorneys; The Maggio Law Firm

Welcome to The Maggio Law Firm’s PODCAST concerning the concept of Joint Legal Custody and how it is defined under California law.

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What Is The Purpose Of Court-Ordered Mediation Before A Request For Order Hearing For Custody & Visitation? (PODCAST)

Posted by: Gerald A. Maggio, Esq.

Top Orange County divorce attorneys; The Maggio Law Firm

Welcome to The Maggio Law Firm’s PODCAST answering the question of “What is the purpose of court-ordered mediation before a Request For Order hearing for custody and visitation in California?”

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The Process of Seeking Full Custody Of Your Child

Posted by: Gerald A. Maggio, Esq.

best divorce lawyers in Orange County; The Maggio Law FirmWhat does Full Custody Mean?

Full custody is also known as sole custody in the legal arena. While both these things mean the same, it is misleading to go with the literal meanings of the words. Full custody basically means that a large amount of control and care of the child is the prerogative of one parent.

In Orange County divorce and child custody cases, full custody does not mean that the other parent is barred from meeting the child. It simply means that the other parent’s visitations and other meetings with the child will be considerably less than the time the full custody parent gets to spend. When a parent wants full custody, they are usually talking about both physical and legal custody, as opposed to just asking for a greater share in the time spent with the child.

Full Custody before Judgment

If you want to get full custody of your child before the final decision, this will require a best interest analysis of the child. All child custody cases are based on the rule of deciding the cases on the best interest of the child. The best interest analysis looks at aspects such as the child’s safety, education, health and wellbeing.

To get full custody before the court’s proper judgment, a parent has to submit a request for order. The order is basically used to put the issue of child custody and visitation before the court. This is an order before judgment and hence any order passed by the judge now is deemed as temporary and not permanent.

Full custody order in favor of a particular parent requires a showing to the court that the other parent is not capable of caring for the child on regular basis, and therefore she is the only one who is capable enough to look after the well-being of the child.

The reasons to convince the court of the other parent’s inability can be a recent case of domestic violence. A recent criminal activity record of the other parent will also have an adverse effect on child custody issues.

Full Custody after Judgment

The process of getting custody after judgment is similar to the method of getting it before the judgment. The only difference being that for the courts to change the custody order, there has to be a substantial change of circumstances that are material. If you do have custody and you are only asking for an increase in custody time, in such a case, showing material change in circumstances may not be required per se.

This blog was written to cater to the frequent questions that people having child custody issues tend to ask.  If you are a mother or a father wanting full custody, we hope this article at least gave you an idea of the procedure that you’ll need to follow to obtain child custody.