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.  

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.  

The Child Support Process in California

Posted by: Gerald A. Maggio, Esq.

Divorce attorneys in Orange County; The Maggio Law Firm, Inc.The process of seeking child support in California has different stages to it. It is advisable to enlist the help of experienced lawyers with knowledge of the child support laws in California. The process will require you to fill out a number of detailed information. It is best your lawyer helps you do this.

Child support cases can become quite complex. Self representation should not be considered. You may be a parent seeking or disputing child support, but these are the different stages in the child support process that you need to be aware of.

Filing a request for child support

The filing of a request for child support can be done in 2 ways. Most commonly, the parent seeking child support will have to file a Request for Order.  Or your attorney may want to type out the formal request declaration detailing in legal terms the basis of such a request. Sometimes a child support case may be filed because a local child support agency has approached the California Department of Child Support Services.

Declaring your income and expenditures

A request for child support should have a declaration of the income and expenditures of the parents of the involved child. Failure to provide these critical details will affect the process and outcome of the child support case. The parent seeking support may be denied the requested amount of child support.  The parent opposing the child support request, based on an assumption made by the court about his or her income, may have to pay more.

Serving the request order to the other parent

The other parent is served with the child support request order once the request has been filed. The method of serving the order depends on whether the other parent has already been served with a paternity or divorce petition. It is also greatly influenced by the fact that whether the other parent is a resident of California or not.

Deadline for responding to the order

The parent receiving the request order will have to reply within 9 working days of the court and before the date of the hearing of the child support case.

The hearing 

The court will review the documents submitted by each parent, and listen to testimonies made under oath to make a decision on the child support case. The court will listen to all disputes and issues that are well supported with factual evidence.

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.  

Who Pays Alimony in Divorce?

Posted by: Gerald A. Maggio, Esq.

Top divorce attorneys in Orange County; The Maggio Law FirmEvery time you hear the word ‘alimony,’ you are probably thinking of a man writing out all of his monthly salaries off to his vengeful ex-wife. It is normally taken to be that way in popular culture. Movies and TV shows often use this as a device for easy comedy. The loser husband going broke every month while the woman in question has an easy life spending all that money. It works as a plot device, but in real life, this is not the case. In fact, in a lot of ways, it can be quite misleading. If you think that alimony is something the man pays his ex-wife by default, you may be wrong.

The standard of living (of the marriage) 

One of the key things that are used to measure what a marriage is worth and how alimony is calculated is the standard of living, in this case, of the marriage. It is also the key to finding out if there will be any alimony at all. Standard of living is an economics concept, and it is used to find out whether the couple would be able to live by themselves, in the same or similar economic standing as they were able to when they got married, after divorce. The law is simple so far. If one person makes all the income and the other is a stay-at-home spouse, then the person who is employed will have to share a part of their income with the non-earning member. If there is no sharing, the earning member will end up with a lot more disposable income than that of the non-earning member whose standard of living will drop drastically. The concept of alimony is designed to protect the standing of the non-earning member.

The courts decide what the alimony amount will be and for how long it will have to be paid. In many cases, it will extend until a specified period, within which the recipient can find their own employment and sustenance.

It is important to remember that apart from extraordinary cases where one member has a sudden spike in income, it is almost impossible to return to the same standard of living levels that the couple enjoyed as a family. That is simply because it is costlier to run two households than it is to run one. The concept of alimony is simply there to make this downgrade as soft as possible.

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.   

Some Fallacies About Child Custody Dispelled

Posted by: Gerald A. Maggio, Esq.

orange county child custody attorneys; The Maggio Law FirmWhen you go through a divorce, the most important thing that most spouses worry about is the custody of their child. Children are thought to be the most important assets in a divorce case. However, the fact that it is such a popular aspect in a divorce case has meant it has gained popularity. Much of which has resulted in a number of false fallacies developing that are harming the process and the way parents are fighting their divorce case.

Hence, to make sure you don’t fall for the fallacies that have developed in an Orange County divorce, here is low down on some of those fallacies and the truth about them.

1.     The Gender Of The Parent Is An Important Consideration

This is one of the biggest and most widespread fallacy about the Orange County family law courts. People believe that the judges in the case tend to consider the sex of the parent as an important factor in deciding who to grant custody to. This however is far from the truth. Whether it is a woman or a man, the law is equal for all and that includes cases of child custody in divorce. The only important consideration for the court is the best interest of the child. Whether it’s with the father or the mother, that is what will dictate the decision.

2.     A Teenager Can Choose Their Parent

Again, it is common knowledge among people that when you go to an Orange County divorce with a teenage child, the courts will give them the authority to choose the parents they want to live with. This in fact is nothing more than a fallacy. The family laws has no provision or precedent where the judges go ahead and give the child irrespective of their age the final decisive authority in a case. While a teenager may be able to advise the court as to his or her preferred parents, this is in fact solely in the domain of the judge to decide.

3.     Parental Alienation Cannot Be Proved

In an Orange County divorce case, there are often instances where one of the parent is guilty of alienating the child from the other parent. It is often thought that parental alienation cannot be proven. This, however, is far from the truth. While it can be said that lack of documentation makes the parental alienation hard to prove, it can still be proven with the correct argument and evidence. In case you have documented the other parent’s parental alienation, it can be easily proved and used against the other parent in matters of child custody.

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 Different types of Child Custody

Posted by: Gerald A. Maggio, Esq.

Orange County divorce lawyer; The Maggio Law FirmA child is the most important aspect in a divorce. Most parents want to make sure that they keep hold of their children. This leads to increased conflict during divorce proceedings with each of the party hell-bent on trying to get custody of the child. However the final decision on matters of custody is taken by the judge. They will have the power to decide which sort of custody would be best for the interest of the child.

Typically, there are three different types of custody orders that a court makes.  This blog will take a look at the three different types of custody that the family law judge can award.

Sole custody

This is the by far the easiest custody arrangement to understand. As the word itself suggests this is a custody that is restricted to the one parent only. Hence the courts will choose either of the two parents as being the person who can take care of the child best and give sole custody of the child to them. A sole custody generally means that the spouse who has been awarded the custody will have the authority to take all important decisions in the child’s life on their own.

Not only that, the child will exclusively live with that parent, although the other parent may be given some visitation rights. This kind of custody is often given in situations where the other parent is involved in any kind of drug, alcohol, sexual or physical abuse with or without the child.

Joint custody

Joint custody is the most common custody order in divorce cases. This as the name suggests requires both the spouses have custody of the child jointly. This though in no way means that the two spouses will need to live together. Instead, this means that the physical custody of the child will be shared amongst both parents.

In addition to physical custody, important decisions that are taken about the child such as the school that they will study in, the religion that they will practice, the hospital they will go to, etc. are taken by both parents in consultation. This is known as joint legal custody, and it is common because the courts believe the presence of both the children at some point during the week is in the best interest of the child. However for such a custody arrangement to work, both parents need to have frank communications.

Third party custody

There are some situations where neither of the parents is deemed by the family law court to be fit to take care of the child. Remember being a parent doesn’t guarantee custody of the child. In the Orange County the most important thing is best interest of the child. In such situations the court can grant the custody of the child to third parties such as grandparents of the child, etc., although generally only temporarily.

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 Initial Steps Taken In Divorce Litigation

Posted by: Gerald A. Maggio, Esq.

Orange County divorce lawyers; The Maggio Law FirmAs divorce is almost always a messy situation, it is always prudent to ensure that there is enough professional help that you seek while going through the agonizing process. Divorce litigation is the process of taking divorce settlement matters to court. This is in case there is no settlement that is reached outside of court. If divorce mediators are unable to help in any settlement matters, the case is carried forward to court. While the situation may get inconvenient, it is always better to find common ground and settle disputes outside of the court.  However, if it is difficult, here are some steps to expedite the process.

Filing the divorce petition

In California, if a divorce petition must be filed, it must be done so by you or your spouse in the resident county of you or your spouse. The additional stipulation is to also have a minimum of six months of residency in the state. There must be a domicile certificate that indicates that the plaintiffs are both residents and citizens of the area. A temporary restraining order could be filed if either of the party is not consenting with the general decorum and rules of consent and appropriate behavior.

Serving the divorce petition

When a divorce petition is filed, it must also be served with due notice to the other party.  Thereafter, the other party must file their Response within 30 days after service of the Summons and Petition.  Consent for the divorce filing is not required in California.  Essentially, it is much like a regular lawsuit, and in this instance parties sue the other party for divorce.

Seeking temporary orders

After the petition is served and delivered, either party can seek temporary orders regarding custody, child support, spousal support, etc. while the divorce proceedings are pending.  These orders are of temporary nature until the case is finally settled in trial or by a negotiated marital settlement agreement as part of a Judgment.

Discovery

Once the basic foundation is in place, it is important that both parties know their best interests and request information and documentation from the other party through formal discovery requests that may come in useful during the court case.

Mediation

Even though an official petition is filed, the law allows both parties to try to work out situations amicably by finding common ground and reasonable settlements through divorce mediation. This could be considered to be one last chance to settle matters out of court.

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.

When A Forensic Accountant Is Needed in Divorce Cases

Posted by: Gerald A. Maggio, Esq.

Orange County divorce lawyers; The Maggio Law FirmEnding a marriage and a lifelong relation is never easy. It involves a number of different complex issues that are often interconnected. People believe that the process of getting a divorce is one that only involves your divorce lawyer and no one else. However, that is not entirely the case. More often than not there are situations where a divorce lawyer will need to take the help of a professional accountant to solve the complexities of the case, etc.

The role of forensic accountants in an Orange County divorce case is often underestimated and few people recognize the importance that they have. Often the first question that is asked when an accountant is called in a divorce case is why you need a forensic accountant in a divorce case.

Why are Forensic Accountants Needed?

  • There are often situations especially in terms of child support determinations where the amount that each of the spouse earns is hard to determine. Often in cases where both the spouses are self employed such a situation may arise. Here the use of forensic accountants will ensure that they do an income analysis to determine the correct amount of child support that needs to be paid.
  • They can also be used by the parent who has been handed a high child support payment. Who can make sure they provide their income analysis to back their claim of an unfairly high child support amount that should be reduced.
  • Similar to child support, even in issues of spousal support it can be hard to determine the correct spousal support payment. Here once again the use of income/cash flow analysis will be made by the forensic accountant to determine the correct amount.
  • For self-employed spouses that own their own business entities, it will be hard for the courts to gauge the valuation of the business and its assets. A forensic accountant knows the appropriate methods used to determine the value of a company and will outline that value to the court.
  • In a number of cases separate property and community property are not kept apart from one another and they are often either mixed together or used side by side. Here, tracing of what and what proportion originates from the community property and what originates from the separate property can require an expert determination from a forensic accountant.

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.  

What Does Legal Custody & Physical Custody Mean?

Posted by: Gerald A. Maggio, Esq.

Orange County divorce lawyer; The Maggio Law FirmHave you thought about the rights that parents have regarding their children when divorce occurs?  The subject of child custody and parental rights is not often clear or understood.

Legal Custody

The word legal custody defines the authority to make the choices of behalf of a child that is a minor or has not yet reached an age where they can take such decisions.  The matters where legal custody can be exercised include a number of different aspects such as:

  • Health
  • Education
  • Safety
  • Decision on religion
  • Welfare of the child, etc.

In most cases, the courts order joint legal custody, because both parents are seen to have the right to mutually make decisions regarding the health, education and welfare of their children.

Physical Custody

Whereas legal custody has to do with decision-making authority, physical custody actually involves the use of parenting time and being able to care for the children physically. In other words, which parent has the children when determines what the physical custody is.  Although there is no hard and fast rule, most judges label physical custody as “sole physical custody” where one parent has less than a 30% timeshare and “joint physical custody” if the other parent has at least 30% custodial timeshare.

Getting Temporary Family Law Orders In Orange County

Posted by: Gerald A. Maggio, Esq.

divorce lawyers in Orange County; The Maggio Law FirmDivorce is an act of legal separation that happens when couples are unable to live happily with each other. There are many reasons for an Orange County divorce to take place. The reasons can range from a lack of compatibility to unfaithfulness etc. Irrespective of the reasoning though, when couples decide to call it quits in their relationship, they seek help from the Orange County family law court. Divorce cases in family law courts can be emotionally charged with each of the couple wanting to get the best decision in their favor.

There are many tools in the California family law legal system that can be used by couples to make sure that the case is going on smoothly and that they are able to get exactly what they want. One such tool that has been used by divorcing parties is the temporary order. Temporary orders are orders where the spouses want the court to rule on matters of importance temporarily until they settle the entire case or go to trial.

How Do You Get Temporary Orders?

The request by parties to be granted temporary orders in their favor is made by filing a Request for Order with the Orange County Family Law court at the Lamoreaux Justice Center, in Orange, California.  A Request for Order (RFO) is simply put a request put forward by the spouses for the court to make certain orders in their case.

The Process of Bringing a Request for Order

For a Request for Order process to start, both parties need to file papers in the courts that highlight issues that the judge will need to pass a temporary order on and their sides of the case and the order that they believe should be ordered, and the court will schedule a hearing date for the RFO.

At the day that the actual RFO hearing is scheduled, the divorce lawyers from both sides will generally present testimony to the court and highlighting the law and make the legal arguments that they believe applies to their case for them to get a temporary order in their favor.

When it comes to the actual hearing, the burden of proof of proving his or her claim to the court is entirely on the person filing the RFO.

Types Of Temporary Orders

While the family law court can hear a number of issues, there are generally only a few matters that they will make temporary orders for. Here is a list of a few of them:

 
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