Family Law Archives - Page 10 of 36 - Lonich Patton Ehrlich Policastri

How Do Judges Determine Child Custody?

July 7, 2022/in Family Law /by David Patton

When two people get divorced, one of the most challenging and important decisions that must be made is who will have custody of the children. Judges must consider various factors in making this determination to ensure they are making a judgment that is in the child’s best interests.

Judges often evaluate factors including each parent’s home environment and work schedule and whether either parent has been abusive or neglectful. Ultimately, the goal is to ensure that the child has a stable and supportive home life.

What factors do judges evaluate when determining child custody after divorce?

When determining child custody, judges must take into account many factors, including the child’s age, best interests, and their relationship with each parent. They may also look at the parents’ ability to cooperate and the scenario that will provide the most stability and continuity.

Depending on the child’s age, a judge may ask for their input on the arrangement and what they feel most comfortable with. This can be done by speaking with the child directly if they are old enough or by utilizing a custody evaluator as a liaison.

In addition to the considerations above, a judge will also evaluate each parent’s mental and physical well-being and their capacity to care for the child. This could involve looking at work schedules, available family support, and financial situations to determine which parent can provide the most stable living situation.

If there is evidence of neglect or abuse from either parent, the judge will take steps to protect the child by limiting or preventing contact with that parent.

Primary vs. Shared Physical Custody

There are two common forms of child custody arrangements – primary or shared physical custody. A primary custody arrangement means one parent has sole supervision over the child, while the other might receive visitation rights. However, the child resides only with the parent with primary custody. Primary custody also grants the primary parent the ability to make decisions regarding health and education without the other parent.

Shared physical custody is also known as joint custody. In these arrangements, the child resides with both parents on a schedule. Typically, shared physical custody is measured by counting the amount of overnight time each parent has during a set period, though time may not always be divided equally. For example, a child may live with one parent during the week and the other parent on weekends or might alternate weeks and weekends with each parent. Joint custody also provides both parents with equal rights to make decisions regarding the child’s health or education.

In California, there is a presumption of shared physical custody, meaning that a shared arrangement is often recommended unless there are strong reasons for one parent to be awarded primary physical custody.

Assistance with a child custody case

Determining the custody of children in a divorce can be a daunting task. Still, with careful consideration, judges aim to make arrangements that are in the child’s best interest. If you need guidance in navigating a child custody situation, allow the experienced family lawyers at Lonich Patton Ehrlich Policastri to assist.

Our team of lawyers has been helping families in the greater Bay Area navigate complex legal situations for decades. Call 408-553-0801 or click here to schedule a free consultation today.

What Happens in a Restraining Order Hearing?

June 24, 2022/in Family Law /by Gretchen Boger

If you find yourself in a situation where you need to file a restraining order, you are likely nervous, scared, and unsure of what may happen. Understanding the process and knowing what to expect during the hearing may ease some of your anxiety.

Why You Might Need a Restraining Order

In California, a restraining order or protective order is a legal order issued by the court that requires one person to stop harming another, whether it is physical, sexual, stalking, threatening, or harassment. The person getting the restraining order is called the “protected person,” and the person on the receiving end of the restraining order is called the “restrained person.”

Restraining orders can include the following:

Personal conduct orders prohibit the restrained person from committing specific actions
Stay-away orders that don’t permit the restrained person from being in the same location as the protected person
Residence exclusion states that the restrained person must vacate the premises where the protected person resides.

There are four different types of restraining orders, including:

Domestic Violence : to protect someone who is being physically by a person they live with
Civil Harassment: for protection from someone who is not a close family member or domestic partner, such as a neighbor, distant relative, or roommate.
Elder or Dependent Adult Abuse: for adults who are unable to care for themselves due to physical or mental disabilities or older (65+) adults. The protective order is put in place for someone who has been physically abused, financially exploited, neglected, or deprived of services such as healthcare visits or medications.
Workplace Violence: can be requested by an employer to protect an employee from being harassed at the workplace.

What to Expect During the Process

In California, an individual must first file a petition with the court. At the hearing, the petitioner (the person who filed the order) will have an opportunity to present evidence and testimony to support their claims. The respondent (the person the order is filed against) will also have a chance to give evidence and testimony.

The judge will review the evidence and decide whether or not to issue a restraining order. They may impose other conditions, such as requiring the respondent to attend counseling or surrender their firearms.

What is the Most Common Child Custody Arrangement?

June 7, 2022/in Family Law /by Gretchen Boger

When parents divorce, one of the most challenging issues is who will have custody of the children. Both parents want to be involved in the responsibility of raising their children. Joint custody is the most common child custody arrangement where both parents share responsibility for their child. This can mean that the child lives with both parents equally or that one parent has primary physical custody of the child, with the other parent having visitation rights.

Joint custody arrangements include joint legal custody, where both parents have a say in decisions about the child’s welfare, and joint physical custody, where both parents have equal time with the child. In most cases, parents have joint legal and physical custody.

Benefits of Joint Custody

There are many benefits, both for parents and children. For parents, joint custody can help to reduce conflict and increase cooperation. It can also provide a greater sense of stability for children.

And while joint custody arrangements can be challenging at times, they often provide a more positive parenting experience than either sole custody or visitation arrangements. Therefore, a judge will rule that both parents have joint legal and physical custody in most cases. This allows the children to have equal access to both parents, and both parents share the decision-making.

Drawbacks of Joint Child Custody Arrangements

While joint custody can have many benefits for children, it can also present some challenges. One of the most common problems is that it can be difficult for children to adjust to living in two separate households. They may feel torn between their parents and have difficulty developing a strong sense of identity.

Additionally, this type of arrangement can be logistically complicated, especially if the parents live in different parts of the city or country. Coordinating drop-offs, pick-ups, and extracurricular activities can be a challenge, and it can be tough on both parents and children if there is a lot of back-and-forth.

These are some reasons why a judge may rule for one parent to have sole physical custody and joint legal custody for both. For example, if one parent lives in another area and shared physical custody would disrupt the child’s schooling, the judge may rule that the child live with one parent but grant the other parent extended visitation rights.

Where You Can Go for Help

While joint custody arrangements can be challenging at times, they often provide a more positive parenting experience than either sole custody or visitation arrangements. If you are considering a joint custody arrangement for your family or have questions about how it will work in your specific situation, please contact our attorneys at Lonich Patton Ehrlich Policastri for more information.

We have years of experience helping parents resolve child custody issues and can help you create a parenting plan that meets your children’s needs and gives you both the flexibility and stability you need. If you live in San Jose or the greater Bay Area, call us at 408-553-0801 to schedule your free consultation.

Does Having an Adopted Child Impact Child Custody Cases?

May 24, 2022/in Family Law /by Riley Pennington

Many questions often arise once a divorce is on the table, especially when children are involved. For example, how will the children be shared between their parents? Who will have physical custody, and who will have legal custody? How will child support be handled?

Determining custody of children can be a complicated matter in any divorce. However, when a couple shares an adopted child, it can raise additional questions on how it might impact the divorce process and arrangements once the divorce is finalized.

Under California law, adoptive parents are considered the legal parents of any adopted children once the adoption is final. Thus, adoptive parents legally have the same responsibility to ensure that children receive care and support as any biological child would following a divorce.

Divorce and Child Custody For Adopted Children

When a divorce occurs with children involved, it is the court’s responsibility to determine each parent’s physical and legal custody responsibilities.

Legal custody grants parents the authority to make important decisions regarding medical procedures, education, religion, and more. Typically this is a shared responsibility, and both parents remain involved in making significant decisions regarding children after the divorce.

Physical custody determines where the children will reside, while visitation rights determine how often they’ll see their other parent outside of these times.

Adoptive Parental Rights in California

There are two common situations regarding parents with adopted children. First, there are instances where parents have adopted a child with no relation to either of them. There are also frequently situations where one parent adopts the biological child of their partner after marriage.

If one parent is the biological parent and the other parent has adopted the child after marriage, the court will likely award custodial rights to the birth parent following a divorce. However, there can be contributing factors, such as abuse situations, where the ruling might not be as straightforward. Adoptive parents can also apply for shared custody of their partner’s biological child after divorce, as they are considered to have all of the rights of a legal parent after an adoption is complete. The potential significant emotional connection between the adopted parent and child further complicates the physical custody issue.

In situations where parents have adopted a child that is not related to either of them biologically, both parents are considered the legal parents of the child after the adoption is finalized and share responsibility for the child’s care in the event of a divorce.

In either scenario, adoptive parents can be required to provide financial support for adoptive children following a divorce. The court will determine what that responsibility should be during divorce proceedings.

As you can imagine, there is no one-size-fits-all answer to the question of how best to handle custody of children during a divorce, as the outcome of any custody case will be based on the unique facts and circumstances of each family. In California, courts are required to consider the child’s best interests when making custody decisions, whether the child is adopted or biological.

Qualified California Family Lawyer

If you are considering divorce and have an adopted child, it is essential to speak with a family law attorney who can provide supportive guidance during what can often be a difficult and emotional time for all involved, especially adopted children.

At Lonich Patton Ehrlich Policastri, we have a team of experienced family law and estate planning attorneys ready to help you navigate your divorce and achieve the best possible outcome for your family’s unique situation. Call 408-553-0801 today to schedule a consultation.

Are There Any Disadvantages of a Prenuptial Agreement?

May 5, 2022/in Family Law /by David Patton

No one gets married thinking that it will end in divorce, but the unfortunate reality is that it does happen. When it does, couples who have a prenuptial agreement in place are far better off than those who do not. A prenuptial agreement may protect both parties in the event of a divorce and ensure that each person walks away with what they are entitled to.

What is a Prenuptial Agreement, and Why Might You Need One?

As the name implies, a prenuptial agreement is a contract signed by two people planning to marry. While some agreements may discuss rights and responsibilities during the marriage, they usually outline the division of assets if the marriage ends.

Having a prenup is advantageous for several reasons, such as:

Ensuring that any inheritance you receive remains separate from your joint assets.
Keeping certain financial accounts solely in your name, including any pensions or 401(k) accounts.
Establishing clear expectations about future responsibilities as well as financial independence during the marriage.
Providing peace of mind and ensuring your needs are met in the event of a divorce.

Myths About Prenuptial Agreements

There are several common misconceptions about prenuptial agreements. Discussing divorce before entering a marriage can create feelings of mistrust and insecurity within a relationship. If one spouse feels like they are signing away their rights, it can lead to resentment and conflict. Furthermore, one person may feel like their future spouse is more interested in protecting assets than building a relationship. While the process requires couples to have potentially difficult conversations about their finances and expectations for the future, creating a prenuptial agreement can establish a solid foundation for a marriage.

Why Might a Prenuptial Agreement Not be Enforceable?

There are many different reasons why a prenuptial agreement may not be enforceable in California. While a couple can draft their own contract, California’s Uniform Premarital Agreement Act (UPAA) outlines what they need to include in an agreement. Failure to meet those requirements could invalidate the contract.

Furthermore, there are some items that can’t be in the agreement, including:

Anything regarding child custody or support
Illegal activity
Non-financial demands of the spouse
Any language that is considered unjust or exploitive

We Can Help Create Your Prenup

Creating a prenuptial agreement is a legally complex process. Our attorneys at Lonich Patton Ehrlich Policastri have experience crafting agreements that meet California’s legal requirements and will provide peace of mind for you and your future spouse.

If you live in San Jose or the greater Bay Area, call us at 408-553-0801 or fill out our contact form to request a free consultation.

Is An Annulment Better Than A Divorce?

April 19, 2022/in Family Law /by Riley Pennington

No one enters into a marriage intending for it to end in separation. However, sometimes marriages don’t work out, and couples find themselves considering a divorce. While divorces are more common, they can be a difficult and expensive process. Annulments are another option that some couples may want to consider, though they are not without their own set of challenges.

So, is an annulment better than a divorce? The answer depends on your individual circumstances. Knowing the details of both options and the regulations within California for who qualifies for an annulment or a divorce can help you make the best decision for yourself and your situation.

What is the difference between an annulment and a divorce?

The core difference between an annulment and a divorce is that an annulment voids a marriage, so it’s as if it never happened. Meanwhile, a divorce recognizes the existence of a marriage and is a legal dissolution of said marriage.

The primary consideration in deciding whether an annulment or a divorce is most suitable for your situation is to evaluate the reason, or grounds, for the separation.

Several common reasons are often cited when couples seek a divorce, including imprisonment, abandonment, adultery, or irreconcilable differences. Couples can also seek a no-fault divorce, in which both parties agree that neither party is responsible for actions that lead to the divorce.

Meanwhile, annulments typically occur when either one or both persons have reason to believe that the wedding should not have happened at all. In the state of California, there are several possible “grounds” for an annulment, including situations where a person has been coerced to marry, either partner is engaging in bigamy, either person is unable to make a sound decision due to mental disability or substance abuse, or either person is underage, in an incestuous situation, or related by blood.

A common misconception is that marriages that have only lasted a brief amount of time can qualify for an annulment, but that isn’t always the case. For an annulment to be granted, it must be proven in court that extenuating circumstances such as one of the conditions outlined above occurred. Given these more stringent annulment requirements, they are typically a less common option for couples looking to separate.

Annulments in California

One key difference when seeking an annulment instead of a divorce is that there are not the same guidelines requiring division of property as there would be in traditional divorce proceedings. When an annulment occurs, both parties are typically reverted to their pre-marriage financial state. They wouldn’t split assets like property or monetary holdings in the same way that might happen with a traditional divorce.

However, California does consider the existence of the putative spouse, or a person who, in good faith, was under the belief that the marriage was legal. In these situations, a judge may intervene to divide property and other assets and make a ruling on eligibility for spousal support, which is not typically awarded during an annulment.

Additionally, children born during a marriage that is later annulled are still considered “legitimate” children. Therefore, they remain entitled to parental support from both parents, though a judge may need to step in to clearly define parental rights.

However, California has legal statutes called “presumptions of paternity,” where it is accepted that while a marriage may have been invalid, the husband is the children’s father. This makes it less of a challenge to establish paternity.

Do I need a lawyer for an annulment?

It’s always a good idea to have experienced representation for any legal matter. A seasoned attorney can guide you through the separation process and help determine whether a divorce or an annulment is the right solution for your situation.

If you are looking for help navigating the legal process for a divorce or annulment in California, contact the expert team at Lonich Patton Ehrlich Policastri at 408-553-0801 to schedule a free consultation today.

Should I Get a Prenuptial Agreement?

April 12, 2022/in Family Law /by Gina Policastri

Marriage is a thrilling time for any couple, as two people plan to embark on an exciting new chapter together. Getting married is a big step in a relationship, but it is also a life-changing and legally binding event that should be entered into thoughtfully and with all the facts available to you.

One important question to ask before getting married is whether you should create a prenuptial agreement. No couple wants to think about divorce prior to getting married, but prenuptial agreements can be beneficial in case of a split as a tool to help protect each person’s interests.

What is a prenuptial agreement?

A prenuptial agreement, or a “prenup,” is a legal document that outlines how assets and liabilities will be divided in a divorce. Many view prenups as negative, but they can be quite beneficial if executed correctly.

While some feel that a prenuptial agreement can take the romance out of the situation, indeed, it can be the opposite. It’s an opportunity for you and your spouse-to-be to outline your wishes on the financial aspects of a marriage without being in the midst of a possibly emotional divorce situation.

This can alleviate some of the financial strife of divorce by ensuring both parties are clear on how assets will be divided and cut down on legal fees from mediation if a couple cannot reach an agreement during divorce proceedings.

Why do I need a prenuptial agreement?

Typically prenuptial contracts have been thought of as something only the uber-wealthy need, but that’s not the case. Many modern couples can also benefit from having a prenuptial agreement.

Prenups help prevent disputes over property and assets during a divorce. This is especially important if either spouse comes into the marriage with significant assets, such as wealth, property, or a business.

Prenuptial agreements can also be used to outline child custody and support arrangements, protect spouses from debts that were held before the marriage, or protect inheritances for children from previous marriages.

What if I don’t have a prenup?

If there is no prior agreement in place in the case of a divorce, the state’s laws will determine how property is divided, utilizing the state’s standard property rights for married couples.

Typically this means that any assets accumulated during the marriage are to be divided equally, though the exact guidelines can vary from state to state.

Creating a prenup

It is important that you seek professional legal help when drafting a prenuptial agreement to ensure that an agreement will be considered valid if it should be reviewed in court.

A court will examine whether the agreement is unfair or made under coercion and can invalidate the agreement if it appears that either party entered the agreement under duress or undue pressure. Each party should have their own legal representation to ensure that their interests are represented fairly and communicated clearly. An experienced lawyer can also help guide you through the process to ensure that you have the proper documentation in place.

Get An Expert Team on Your Side

When it comes to family law and estate planning, experience matters. For decades, Lonich Patton Ehrlich Policastri has been helping individuals and families with complex family law and estate planning matters. We’re proud to serve the Bay Area and provide our clients with the highest level of legal care possible.

Click here or call 408-553-0801 to schedule a free consultation today.

Child Custody in Same-Sex Divorces

March 29, 2022/in Family Law /by Gretchen Boger

When two people in a same-sex relationship get divorced, the process of child custody can be challenging to navigate. In California, there are a few key things to keep in mind if you find yourself in this situation.

This article will discuss the types of custody arrangements in same-sex divorces, and where you can go for help.

How Is Custody Determined In California?

California Family Code 3011 requires that child custody be decided based on the child’s best interests. This means that the court will consider several factors when determining which parent should have primary custody of the child. These factors include, but are not limited to:

The child’s relationship with each parent
Any history of domestic violence of either parent
Illegal drug use by either parent
The age of the child
The child’s preferences
The ability of each parent to provide for the child’s needs
The child’s ties to the community

In 2005, the California Supreme Court effectively expanded child custody, visitation rights, and child custody rights for same-sex divorces by its rulings in two separate family law cases.

In other words, California law doesn’t treat same-sex relationships any differently than opposite-sex relationships. This law extends to child custody arrangements and means that if you are going through a same-sex divorce, you have the same rights as any other parent would when it comes to child custody.

Types of Custody

Judges typically require parents to agree on a parenting plan before going to court. If the parents agree, then the agreement becomes legally binding. In cases where the parents can’t agree, the judge will require them to meet with a child custody mediator. If they still can’t come to a parenting plan with the help of mediation, then the judge will make the final ruling after meeting with both parents separately.

In California, there are two types of custody:

Legal custody refers to who will make important decisions for your child, including education, health care, religious instruction, extracurricular activities, and overall welfare.
Physical custody is who the child will live with.

Legal custody can be either sole, where only one parent will make all the decisions regarding the child, and joint, where both parents share responsibility in the decision-making. Sometimes, both parents will share legal custody, but only one parent has physical custody.

Visitation refers to how the child will spend time with each parent.

Family Code 3011 states that “the court shall not consider the sex, gender identity, gender expression, or sexual orientation of a parent, legal guardian, or relative in determining the best interests of the child.”

Get Professional Assistance to Understand Your Rights

If you are going through a same-sex divorce in California, it is essential to understand your rights regarding child custody. If you live in San Jose or the greater Bay Area, contact Lonich Patton Ehrlich Policastri. Our experienced family law attorneys can help you navigate the legal process and ensure that your rights are protected. Call 408-553-0801 and schedule your free consultation.

How Spousal Support Works in Same-Sex Divorces

March 8, 2022/in Family Law /by David Patton

In 2015, same-sex marriage was legalized federally in the United States, which meant that same-sex marriages were finally recognized in all states. This decision ensured that same-sex couples could receive the same benefits as heterosexual couples, including legal privileges such as medical insurance, tax benefits, and employee benefits for spouses.

Since the ruling, same-sex couples are navigating divorces for the first time as well. The process is the same in many ways, but there are some unique factors for same-sex couples considering a divorce.

What is spousal support, and how is it determined in a divorce?

Spousal support, also known as alimony, is a payment made from one spouse to another in the event of divorce within a marriage. The spousal support is typically awarded as part of a divorce settlement when one spouse can’t work or is unable to independently earn sufficient income to maintain a marital standard of living after a divorce.

In these cases, a court may award spousal support as a part of the divorce process. Spousal support is typically calculated taking into account a number of factors, including current income, earning potential, work or education experience of each spouse, custody of children, and more.

In a typical divorce, a judge will also look at the length of a marriage, whether there was a pre-nuptial agreement, and whether there was any shared property or assets between the couple.

Are there unique issues or considerations for same-sex divorces?

Although many aspects of divorce are the same for same-sex couples, there are some circumstances that could impact a same-sex spousal support agreement.

Same-sex couples may be more likely to have a less conventional situation when it comes to children. They may have adopted a child together or utilized a surrogate or an egg or sperm donor.

In these cases, the court may need to examine the situation to determine whether both parents have parental rights, and some have questioned whether primary custody typically could be awarded to a biological parent.

Determining the duration of a marriage can also be unique for same-sex marriages: This is because sometimes the relationship has lasted longer than is legally indicated, due to same-sex relationships only becoming formally recognized in the mid-2010s. A couple may have been in a domestic partnership or long-term relationship before that, but it wouldn’t necessarily be documented legally. In certain situations like this, courts may have the discretion to recognize longer relationships.

Shared property and assets can also be a question that comes up in divorce proceedings. There could be a question of how to properly divide assets if an asset was purchased before the marriage became recognized federally.

Since this is still a newer area of the law, many divorces are settled on a case-by-case basis. That’s why it can be important to make sure you have an experienced family law attorney to help you navigate the unique circumstances surrounding LGBTQ+ divorces.

To set up a consultation with one of Lonich Patton Ehrlich Policastri’s experienced California attorneys, click here or call (408) 553-0801.

How Child Custody Mediation Works

March 3, 2022/in Family Law /by Virginia Lively

When a couple decides to separate, nothing is more important than coming together to determine what is in the best interests of their children. It is a difficult situation, as there may be anger and hurt on both sides. Still, a trained mediator can help ensure the best possible outcome for everyone involved, especially the children.

Parents can meet with a private mediator or one appointed by the court. A mediator is a neutral party who will listen to both parents, review different options, and come up with a solution on what is in the best safety and welfare of the children.

What to Expect During a Child Custody Mediation Session

A child custody mediation session is not the opportunity to place blame on the other parent. Instead, it’s essential to come into the session with an open mind and a willingness to listen. A mediation session is an opportunity to come together and decide upon the best co-parenting plan that will have minimal disruption in the child’s life.

There are three main goals of child custody mediation:

Making a plan to co-parent that is in the best interest of the child
Ensuring the plan allows the child to spend adequate time with both parents
Helping both parents to learn effective ways to deal with hurt, anger, and resentment.

A child custody mediation session may last a few hours. It is important to get a good night’s rest the night before to ensure that you are focused and alert. Be prepared to discuss several options regarding your child’s schooling, activities, appointments, transportation, and other daily activities.

Is Child Custody Mediation Mandatory In California?

California family courts want the issue of child custody and visitation settled before any hearings take place. According to Family Code 3170 and 3175, family courts require meditation whenever there is a dispute, and it is mandatory before the parents appear before the judge for child custody rulings.

Is Child Custody Mediation Legally Binding?

A parenting plan can be resolved with either a private mediator or a court-appointed one. However, after the couple arrives at a solution, it goes before the judge. The judge will review and sign the agreement, thus, making it a legally binding document.

In the cases where parents can not come to a solution, the mediator will make a recommendation to the judge. The judge may agree or make some changes, but once the judge signs it, it is legally binding.

Get Help From An Attorney

A child custody mediation can be emotional, and you may be feeling stressed and confused. The attorneys at Lonich Patton Ehrlich Policastri can help you understand the process and what to expect. Our attorneys have years of experience helping parents through the mediation process and can provide you with the guidance you need to make the best decision for your family.

We offer free consultations so that you can get all of your questions answered before making a decision. Contact us today to learn more about how we can help you through this difficult time.