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.

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.

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.

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:

1. Making a plan to co-parent that is in the best interest of the child
2. Ensuring the plan allows the child to spend adequate time with both parents
3. 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.

For many people, getting divorced is a difficult and life-changing experience. While there are undoubtedly challenges that come with divorce, it’s important to consider that there may also be some potential tax breaks available as both partners go through this process.

Determine your tax filing status

If you were legally married as of December 31, you can file a joint tax return. This allows you to combine your income with your spouse to receive a higher standard deduction.

If you can’t file jointly, you can still consider filing as head of household, which also has the benefit of a bigger standard deduction and more lenient tax brackets. However, only one spouse can file as head of household, and there are several requirements to be eligible: you must have had a dependent living with you for at least half the year, and you must have paid for more than half of the upkeep of your home.

Alimony and Child Support

If you have an alimony agreement put in place before 2018, you can deduct the payments as an above-the-line deduction. However, if you began an agreement after 2018 or changed an existing agreement, the payments will not be considered deductible. The IRS also requires the recipient’s social security number to be reported, so they can track it to make sure it’s reported as received income.

Child support payments are handled in a separate manner. You cannot deduct nor be taxed for any child support payments made or received.

Claiming Dependents

After a divorce is finalized, only the custodial parent can claim children as dependents. The custodial parent is the parent with whom the children live with more nights during the year. This parent can claim the earned income tax credit and other credits such as higher education tax credits.

There is an exception to this – a custodial parent can fill out a Form 8332 waiver and transfer dependent status to the non-custodial parent on a yearly basis. This could make sense in a situation where the non-custodial spouse falls in a higher tax bracket.

Children’s Medical Expenses

If you contribute towards a child’s medical bills, you may also be eligible to include this in your medical expense deductions. This applies even if you aren’t the primary custody holder. However, the expenses would need to exceed 7.5% of your adjusted gross income to be eligible.

Asset Transfers and Sales

It’s important to consider the possible tax implications involved with transfers of assets. While there is no tax responsibility for the recipient when a property is transferred during a divorce, they would be responsible for capital gains taxes on the appreciation of the house if and when it was sold.

You may also decide jointly to sell a home. In this situation, if you have owned the property and lived there for at least two out of the previous five years, both spouses can exclude up to $250K each if filing separately, or $500K if filing jointly.

If you live in the San Jose, CA area and have questions about the tax implications of a pending divorce, call (408) 553-0801 or click here to schedule a complimentary consultation. Lonich Patton Ehrlich Policastri has a team of experienced attorneys specializing in divorce and family law who are ready to help you.