Important Terms in Child Custody Proceedings

Posted by: Gerald A. Maggio, Esq.

Orange County divorce lawyer; The Maggio Law FirmIf you are going through a divorce, issues of child custody are sure to come up. Child custody issues tend to be complex as well, not just emotionally but also legally. During the proceedings, you may encounter some words that you might not understand or are unfamiliar with. To make sure you are well prepared for your Orange County child custody case, here is a list of few important words used in child custody proceedings.

·         Joint Physical Custody

This word is used to refer to the custody where both the parents will have considerable amount of physical custody. This custody by no means requires that the share of custody between the two must be equal. An example can be one of the spouses getting the child for the weekends and the other keeping him for the rest of the five days in the week.

·         Joint Legal Custody

Joint legal custody is little different a concept than joint physical custody. Joint legal custody allows both the parents the authority to make the decisions related to the child such as education, health, etc. In some Orange County divorces though, the judge can grant the parents joint legal custody but not joint physical custody.

·         Sole Physical Custody

Only one of the two parents of the child is allowed to spend the largest amount of time with the child and to be able to completely be in charge of all the child’s day to day affairs.

·         Sole Legal Custody

Only one of the two parents of the child is allowed to make the decision with respect to the important issues in the child’s life, such as education, welfare, health, religion, etc.

·         Primary Custody

More often than not, Orange County divorce family lawyers use the term “primary custody” in describing physical custody instead of only using the words joint custody and sole custody, to distinguish the parent who has control of the day to day affairs of the child. Despite the widespread use of the word, under California law, there is no such recognized term.

·         Visitation

If one of the parent has the custody of the child instead of both, the other parent will be allowed to meet the child at agreed times. This is referred to as visitation.  However, a preferred alternative is describing the other party’s time as their custodial timeshare without labeling it “visitation” per se.

Divorce Advice for High Net Worth Individuals

Posted by: Gerald A. Maggio, Esq.

divorce attorneys in Orange County; The Maggio Law FirmThey say the people who have more to lose need the best adviser. This is particularly true in the case of high net worth individuals going through divorce. There are a wide variety of steps that high net worth individuals should take to make sure they are able to make the most of their Orange County divorce case.

Child Custody & Visitation

There are three major ways that child custody cases can go:

  • Smoothly with both the parents agreeing on a single parenting plan
  • A little resistance in between both the parties at the start eventually leading to a parenting plan without a court hearing
  • Litigation proceedings with the final decision being in the hands of the family law judge.

Here are few tips in this regard to help the high net worth individuals in this regard:

  • Court proceedings and child custody cases require the availability of the individuals to hearings and for their child’s care. Keeping that in mind, high net worth individuals need to be realistic in front of the judge about their timings of work and work schedules. Honesty is an important trait in Orange county divorce litigation.
  • Take care when you are deciding on moving out. Most high earning individuals are likely to move out of the houses in case of an Orange County divorce simply because they can. This however is likely to be a bad strategy unless you do it to avoid false accusations of domestic violence. Moving out of the house allows the other spouse to establish a stronger case over time against granting you equal custody.

Child Support and Spousal Support (Alimony) Support

Calculation of child support is an easy task since it is done in California through a computer program. While this is the general perception, it is unlikely to be the case for high net worth individuals. Simply put, whether they are alimony or child support payments, there is a wide variety of issues that high net worth individuals are likely to face.

Income Sources for Support Purposes

There is a wide range of sources that your income can fall into and it is important you are able to identify which category you fall under:

  • Base Income for salaried individuals
  • Profit distribution versus bonuses method for additional income of self employed individuals
  • Interest income is the income that comes from investment accounts, bonds and stocks

Child support and alimony payments depend on the category of income that you fall under. More often than not, if your income is too high for the computer system to distribute, the courts are likely to make an exemplary support order. This order is likely to be more than the usual alimony payments and is likely to base on the concept of maintaining a status quo.

How to Win a Complex Divorce Case

Posted by: Gerald A. Maggio, Esq.

Orange County divorce lawyer; The Maggio Law FirmOne of the largest numbers of cases that come into the Orange County family law courts are cases of divorce. Divorce in itself is a complex process that involves a wide variety of aspects for the spouses and their lawyers to cover. Orange County divorce proceedings can focus on one or all of the aspects such as child custody, child support, spousal support and property distribution. Cases that involve all these above aspects are likely to be of complex nature.

When it comes to a divorce in family court, both of the spouses are hell-bent on trying to outfox the other and win the divorce case. In this article, we give you a lowdown on a few tips and tricks to make sure you are able to win such complex cases:

How to Win a Case that is about Child Custody

Child custody cases are one of the most fiercely contested aspects of a divorce case since parents regard their children as the most valuable asset that they each have. The best way for two parents who care for their children and want to give their child the best is to talk their differences outside of the court and propose a parenting plan in front of the court to get the court’s seal of approval. This is likely to be the best option since it will save you on your litigation costs and save the court’s precious time.

There are, however, other types of child custody cases that involve two parents where one of them has been accused of physical, emotional, and mental abuse to the child. In such cases, you are going to win a case by making sure that your facts are in order and that you are clear as to the evidence’s strength to prove the other parent’s guilt. Once their guilt has been proven, the other parent is unlikely to have any chance of getting the custody of the child.

How to Win a Custody Case that has Spousal and Child Support Involved

This one of the leading causes of disagreements caused between the spouses in the family law courts. In most of these cases, it should be understood that the courts before making any declaration, will need complete declaration of the financial position and capabilities of each of the parties. If one of the parties has doubts over the claims made by the other party, the courts will order an inquiry to allay those doubts.

There are different ways each of the parties can win these cases. In the first instance, the spouses asking for spousal and child support will have to prove to the court that their financial capability isn’t healthy and that the financial prowess of the spouses should be used to help bridge the income disparity.

The other spouse, on the other hand, will simply need to show that the other spouse is in a good enough financial position and can earn more than he/she can pay. Or the party needs to show that their financial restraints make them unable to make such large amounts of payments.

Father’s Rights in Orange County

Posted by: Gerald A. Maggio, Esq.

family law lawyers in orange county; The Maggio Law FirmThe rights of fathers are an important area to discuss since they are equivalent in the law to the rights that a mother enjoys.  Here’s what you need to know.

What rights do I have as a father with respect to the legal custody of my children?

Rights In Regards To Joint Legal Custody In Orange County

Orange County family law is known to favor agreements and orders that grant joint legal custody to both of the parents. The primary reason for this is that the law in California wants the parents to prefer joint legal custody, since it enables both of them to be involved in the decision-making for the child’s benefit. One of your main rights as a father is that you should be involved in all of the decisions that are made in your child’s life. This includes rights such as:

  • Decisions with respect to the extracurricular or school activities of the child.
  • Decisions that are related to medications, visits to the doctors and other aspects that are concerned with the health of the child.
  • Other non school related decisions integral to the child’s life.
  • Decisions that concern the religion of the child or whether he or she is to remain without a religion.
  • To be listed in the medical and school list of the child and be entitled to receive information about them.
  • Decisions such as the traveling of the child and where he or she will live.

What are my rights in California with respect to physical custody as a father?

As a father, as previously mentioned, you have the same rights as a mother has in a family law case. Fathers in an Orange County child custody case have the right to have a constant, regular, and frequent contact with their child. While you need not really get into the cases such as joint or primary physical custody, you should however make sure that these rights of yours are made sure of by the courts through an order.

What if I am a single father? Are my rights affected?

This is one of the most commonly asked questions and the answer to this question is that there are going to be no changes to your rights whether you are a single father, currently married father, or a divorced one. You will have the same rights to see your child as any other married father will have.

How To Win Custody In The Case Of False Allegations

Posted by: Gerald A. Maggio, Esq.

family law attorney Orange County; The Maggio Law FirmFathers are often unaware of their rights and seem to end up on the wrong side of the court’s decision in a whole host of cases in divorce and family law cases. One of the clearest examples of the lack of usage of father’s rights is with respect to child custody cases and especially ones that have false allegations of abuse leveled against the father. In most cases, where a father is falsely accused of such an abuse, they are unable to properly defend themselves in such situations or comprehend why such allegations have been leveled against them.

The other spouse usually levels false accusations against the fathers in child custody cases is because of the importance that courts give to such accusations. This, however, doesn’t mean such parents should be allowed to get away with making such grave false accusations. This blog talks about how a falsely accused parent can take custody back from the lying parent.

The Family Code and Father’s Rights

In cases of divorce that involve abuse allegations against another spouse, one of the most quoted sections of the California Family Code is Family Code section 3011.  This code section states that a court may consider any history of abuse by the parents that are seeking custody. In the same code, however, the courts have also stated that any false accusations of this nature are not be tolerated and such parents who have been falsely accused should take action against the accusers.

According to the California Family Code 3027.1, the parent who has been falsely accused only need to show that the other parent knowingly made the false accusations against the father. If a father is able to show that, then the father can ask the court to impose sanctions on the mother for falsely accusing the father.

Supervised Visitation

A lot of fathers fighting divorce cases, and facing false accusations in child custody cases, are unable to realize that the courts have the discretion of giving strict orders against the parent who has made false accusations. One of these orders can be the order of supervised visitations for the mother. These kinds of orders are usually made in the cases which involve false accusations of sexual abuse. However, there is no hard and fast rule in this regard and other abuses may also amount to the same punishment.

Limiting Visitations

Simply proving to the court that the accusations were wrong and winning back custody may be what most fathers do in such cases but is it enough? Are you sure allowing the other parent to leave without having to pay will reform their behavior? In addition to monetary sanctions, fathers should press their attorney to pursue the other spouses and to try and limit their visitations to the child.

A Guide for Dads In Choosing the Right Divorce Attorney

Posted by: Gerald A. Maggio, Esq.

Divorce Lawyers Orange County; The Maggio Law FirmWhen you are looking to make the most of your divorce case, one of the most important people is your divorce lawyer. The importance of divorce lawyers cannot be stressed enough since they are the mouth pieces of the spouse in the court and are the ones who develop your case strategy. Keeping these facts in mind, it is important that you are able to get services of the right attorney for you that is suitable to your case.

The Bias Sell

There are things that some divorce lawyers do to try to get a potential client to retain them.  One of these things is claiming bias exists in the legal system.  In other words, such lawyers sell to their clients on the claim that the California law system is somehow against men.  As far as their claim of bias is concerned, California Family Law section 3040 states that, “In making an order granting custody to either parent, the court shall consider, among other factors, which of the parent is likely to allow the child frequent and continuing contact with a non custodial parent.”  In this day and age, there is no general bias against men or fathers in divorce or custody cases, and custody is generally decided on the circumstances of individual cases.

The Over-Aggressive Sell

There are a variety of lawyers that use aggressive selling techniques to make sure that they are able to entice the client into using their services. Such lawyers are likely to use the action words such as “going for the kill”, “taking her down” and “squeezing each and every penny from them.” These kinds of lawyers are likely to tell the father that litigation is the only chance that they have of success and to teach the mother a lesson. This, however, is not the case, because the more you go aggressively against your spouse, the more bitter the effect it is likely to have on your children.

The Unethical Sell

It is imperative to avoid anyone who may encourage clients to evade and disregard the law in a bid to protect their assets or position themselves favorably in custody cases in a less than honest way. False allegations and incomplete declarations of assets is one example.  It is always better to be transparent when it comes to disclosure of assets and what the “truth” really is, because taking the low road can often backfire and have negative consequences in your case.

A Guide to the IRS Release of Claims and Exemption Form

Posted by: Gerald A. Maggio, Esq.

Orange county divorce lawyer; The Maggio Law FirmThe IRS release of claims and exemption form, also known as the IRS Form 8332, is actually two forms instead of one. One of the forms is the release form, while the other is the revocation of release form. What is this release and revocation of release of? This is the claim of exemption that concerns the child tax credit, also known as child dependency exemption. The IRS release of claims and exemption form is relatively easy to fill out, with it being self explanatory for the most parts.

Having said that though, are most parents aware of this? The answer is quite simply a No. Do they have issues dealing with such a form? The answer once again is No. It is important to understand what this is about.

What does it do?

The IRS form 8332 is a form that is filled by the custodial parent of the child. The custodial parent can use this form to do the following things:

  • Make sure to release the claim to exemption form of child/children to enable the non-custodial parent to claim a tax exemption of credit for the child.
  • Revoke a previous release form that was filed for the claim to exemption of the child.

Does the Orange County marital settlement agreement/Judgment need to state that the custodial parent should release the child dependency and tax credit exemption?

Yes, your divorce agreement should have this agreed upon and stated specifically. This is important because:

  • When the spouse or parent signs such an agreement that states the child tax dependency and exemption have been transferred over to you, it becomes legally binding.
  • The order clearly specifies that the spouse/parent needs to execute the IRRS 8332 form.
  • Inability to do so will mean you are able to claim exemption as well as reimbursement for further damages of the money that you lost as result of this disregard of the Orange County divorce agreement.

Why would a custodial parent agree on signing and filing out the IRS release of claims and exemption from?

While it is true that divorce tends to be an emotionally charged affair with each of the spouse holding some kind of bitterness about the other spouse, filing out such a form is not that hard to agree upon between the spouses. This is because the exemptions in this form are likely to have no real value to the parent who has the child’s custody. This is especially true in cases where the custodial spouse is dependent on the other spouse for spousal and child support.

What Is Parental Alienation?

Posted by: Gerald A. Maggio, Esq.

Top Orange County divorce lawyers; The Maggio Law FirmThis is one concept that is increasingly being used in Orange County divorce and child custody and visitation cases.  The custody of children can be one of the fiercest bones of contentions between two spouses. Owing to this, will to win at all costs and to keep the custody of the child is what leads to parents using every mean possible to gain themselves crucial advantages.

One such measure is Parental Alienation. Parental alienation is actually a concept for therapists and psychologists, yet the growing use of the term in the Orange County family law court has become very much part of a family lawyer’s repertoire of knowledge. The definition of the word alienation is to isolate something from another. When parental is added with alienation, the definition becomes: the attempts by one of the spouse to isolate the child or children from the other parent.

This isolation can be done through various means. One parent can alienate the child from the other parent using conduct and/or words to create an estrangement, division, or hostility between the victim parent and the child. There are several types of parental alienation:

Disparagement and Parental Alienation

This is the first step on the long road of parental alienation. Identification of disparagement can result in an insight into the process of parental alienation. Disparagement in this context refers to negative and hostile comments being made about one of the parent by the other parent in front of the child. Any such comment given in front of the child irrespective of whether it was directly addressed to the spouse or not is counted as disparagement.

Undermining Authority and Parental Alienation

Alienation is isolation and the undermining of authority of one of the parents by the other is an important part of the parental alienation cycle. In theory, the custody of each parent over the child and in matters of the child that each has autonomy over are respected by the parent. By undermining the authority and the decisions of one of the parents in front of the child, the other parent gives the child the impression that the style of parenting by the victim parent is wrong and needs to be changed.

Parentification and Parental Alienation

The word parentification may certainly seem new to you, but this word, however is dubious, as its spelling may best describe one of the most important weapons of parental alienation. When couples have gone through a divorce, the bitterness may lead to one of the parents manipulating the child to hurt the other. This is what the concept of parentification is all about. Parentification means granting the decision making power to the child when he/she is neither mature nor capable enough of making decisions for themselves. This is then taken advantage of and the manipulating parent manipulates the child into making decision that are against the other parent.

An Explanation of Orange County Child Custody Investigations

Posted by: Gerald A. Maggio, Esq.

Top Orange County divorce lawyers; The Maggio Law FirmIt has long been established that the issue of children in a divorce is integral. Parents consider their children to be their most valued asset and therefore, both the spouses are likely to fight it out in court fiercely to make sure they end up having the possession of their most prized assets. The courts, however, have to base their decisions in family law child custody cases on the best interest of the child. Sometimes, it is harder for the judge to be able to evaluate the claims of both the parents in terms of custodial suitability and hence, they can order a child custody investigation to clear the facts and the picture.

Parents that go through these investigations are likely to find themselves under considerable amounts of stress and confusion. Primarily, child custody investigations are about the accusations leveled by one of the spouses against the other with regards to:

  • Child neglect
  • Substance abuse
  • Sexual/physical child abuse
  • Other concerns in relation to the safety and security of the child

The Purpose of Investigations

The use of child custody investigations is done by the Orange County family law court personnel to be able to have a clearer and more objective view of the facts. These facts and clearing of accusations and perceptions are likely to increase the chances of decision by the court that is truly in the child’s best interest. These investigations are done by the internal investigator of the court and therefore, are completely different to the other child custody evaluations done under Evidence Code section 730.

Are Child Custody Investigations Helpful?

This is one of the most common questions that have been asked with regards to child custody investigation. Typically, in Orange County court proceedings, the pattern is in the ‘he said, she said’ style, where arguments seem to be flowing through and lawyers arguing over the actions taken by either of the spouses. All of this is done without any regard to the objective representation of facts and figures.

Child custody investigations, on the other hand, involve a whole host of procedures that are intended to provide the facts objectively at the end of the process. This can include processes such as:

  • Interview of the witnesses and the parents
  • Thorough reviewing of the important documents that include videos, photographs and medical records and other information that can prove decisive in the fighting of the case.

When the Investigation is Complete?

Once the child custody investigation is complete, the investigator is likely to submit a formal report to the Orange County family law court, which has all the necessary facts of the case in an objectively represented form. The court can sometimes ask the investigator for the live testimony of the facts provided.  It is important to note that these proceedings owing to the involvement of the children are closed and only parties and their lawyers are allowed to attend such proceedings.

Determining the Child’s Preference in California Custody Cases

Posted by: Gerald A. Maggio, Esq.

Orange County divorce lawyer; The Maggio Law FirmA decision for divorce not only affects you, it also has an effect on other people that are part of your family, most importantly your children. The effect of divorce is felt most closely and severely by the children of the broken couple. Over the years, the role of the child has become more important in determining the parent that they want to live with.

The child is one of the most important assets to a parent. Contrary to popular belief though, the child continues to have a greater role in determining the parent that he or she wants to live with. This blog takes a look at the aspects of California family law with regard to determining the child’s preference.

The Preference Of The Child Aged 14 Or Older

Keeping in line with California Family Code 3042, the court must take into account the child’s preference and choice with regards to the parent they want to be with. This needs to be done for children who are of the age 14 or over, unless of course the court has reasons to believe that it is not in the child’s best interest to do so. This means that before the child is allowed to voice his opinions in front of the court, the court will decide on whether that would be in the child’s best interest or not.  California family law courts give the utmost importance to the best interest of the child or children involved in the case.

It should be clear at this point that the set bar of age 14 has been set by the legislature, since according to them a child of the age 14 years is mature in terms of emotions and has the mental capacity to take decisions of such significance.

How Can The Choice Be Made By The Child?

This is another instance in California family law courts where the courts have their utmost discretion over the way that the child can convey his/her choice. Despite this, family law judges can take the direct approach of hearing the choice straight from the child. Here are a few things that judges consider before deciding how the child’s choice can be made:

  • The location of the testimony
  • Whether the parents or attorneys should be present. In some cases, the stakeholders’ presence may make the child feel pressurized into making a decision.
  • The method of questioning, i.e. whether the lawyers of the parents or the judge will ask the child.

At this point though, it is important to understand that despite the choice of the child, it is not binding on the court of law to follow the choice and the judge can disregard it if he/she deems fit.