Family Law Archives - Page 29 of 35 - Lonich Patton Ehrlich Policastri

What are the Legal Implications of Conceiving a Child Through Artificial Insemination?

April 12, 2011/in Family Law /by Gina Policastri

The California Family Code provides that if a woman is artificially inseminated with semen of a man who is not her husband, then her husband is treated as the legal father of the child conceived. However, the insemination must have been conducted under the supervision of a licensed physician and surgeon and with the consent of the woman’s husband.

Likewise, under the California Family Code, a donor who provides semen to a licensed physician or to a licensed sperm bank for use in artificial insemination or in virtro fertilization of a woman (who is not the donor’s wife) is treated as if he was not the natural father of the child.

If you are considering trying to conceive a child through artificial insemination, it is important to realize that these rules only apply where the donor semen was provided to a licensed physician and the insemination was done under the supervision of the licensed physician. If the semen is provided informally, the California law presumption does not apply. This means that the semen donor can later establish his paternity of the child.

For more information about how to protect your parental rights, please contact us. Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results. While this post may include legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.

Huffington Post Article Argues for Increased Accountability for Parents Misusing Child Support Funds

April 8, 2011/in Family Law /by David Patton

An article published by Huffington Post recounts the importance of holding parents accountable for misusing child support funds. The article discusses the issues arising when a parent uses child support money (paid by an ex-spouse) as his or her own personal money rather than using the funds to directly to support the child. The article details that some states set a limit on the amount of child support that can be awarded to an ex-spouse. This limit is intended to ensure the child’s necessities are taken care of while making sure the parent receiving the payment does not receive a monetary windfall. California does not have such a limit in place.

The author of the Huffington Post article makes a very interesting point: California child support statutes are missing the requirement that child support money should be used solely to care for the child. In addition, the author suggests that a procedure should be put in place that allows for oversight of this process so that parents would be much less inclined to misuse child support funds. For the full article, please click here.

For more information about California child support, please contact Lonich Patton Erlich Policastri. Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results. While this post may include legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.

Delaying Divorce Due to Financial Circumstances

April 7, 2011/in Family Law /by David Patton

Recent economic pressures have impacted most individuals, including those wishing to file for divorce. As economic conditions improve, a recent MSNBC article suggests that divorce filings are likely to rise as many were stalled due to economic realities. In highlighting this phenomenon, the article focuses on the Wesners, a couple who initially decided to divorce in 2008, but continually held back due to their financial circumstances. At first Beverly Wesner decided that she would like to have a job before filing for divorce. However, shortly after Beverly secured employment, her husband Dave suffered his own employment difficulties. While Beverley considered filing for divorce during this time period, she was afraid of having to pay spousal support to Dave.

In the meantime, Dave and Beverley have had to endure not really being married while definitely not being divorced. During this time, the couple experimented with a living situation, called “bird nesting,” that is becoming more common in the current economic conditions. In this setup, the kids stay at the family home fulltime while the parents alternate between living in the family home and living in a rented apartment. Eventually, Beverly contacted an attorney to move forward with their divorce after Dave found a job. While the Wesners and countless families across the country have struggled with divorce during difficult times, the article suggests that a growing number may soon be filing for divorce.

Locally, Lonich Patton Erlich Policastri has noticed the impact of the difficult economy with many individuals considering divorce holding back due to underwater property values, depressed 401k values and other economic hardships. If you would like to learn more about divorce and the division of assets and debts or would like to discuss your options, please contact the San Jose Divorce Attorneys at Lonich Patton Erlich Policastri, LLP. Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results. While this post may include legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.

A Recent Study Indicates More Women are Seeking Prenuptial Agreements Before Tying the Knot

April 5, 2011/in Family Law /by Julia Lemon

Prenuptial agreements are increasingly more common among women. This trend partially stems from the growing percentage of females in the modern workplace. Women today, more than before, are seeking to protect their separate property assets by ensuring a prenup is in place prior to marriage. In addition, couples are signing these documents in order to protect their pension and retirement accounts in the event of a later divorce.

A California prenuptial agreement is a contract executed between two prospective spouses, to be effective upon marriage. Generally, a prenuptial agreement addresses the parties’ present and future property rights, as well as other issues relating to the marital relationship. Certain issues may not be dealt with in a prenuptial agreement, such as child support or child custody. Other provisions may be invalidated if they are found to be contrary to public policy, such as “fault” or “penalty” provisions for infidelity or abuse. In addition, if you are considering waiving your spousal support rights in a prenuptial agreement, it is highly recommended that you retain your own attorney both to protect your legal rights and the enforceability of the agreement.

For more information on prenuptial agreements, please contact our family law attorneys at Lonich Patton Erlich Policastri. Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results. While this post may include legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.

Source:

San Francisco Chronicle

New Study Lists States with the Lowest Divorce Rates

April 1, 2011/in Family Law /by David Patton

An interesting article published in the Wall Street Journal named the states with the lowest divorce rates for the year 2008 -2009. The state with the lowest divorce rate (1.8 percent) was Massachusetts. Nevada had the highest divorce rate at 6.6 percent.

While these numbers are interesting, a state with a “low” divorce rate does not necessarily mean that the married couples living in that state are happier than married couples living in states with “higher” rates of divorce. Many couples in states with “low” divorce rates could be choosing to stay in unsatisfying marriages or simply deciding not to marry in the first place.

While the divorce statistics for California were unavailable, the Center for Disease Control estimates the overall U.S. divorce rate to be around 3.4 divorces for every 1,000 individuals. The U.S. marriage rate is 6.8 per 1,000 individuals. In California, a divorce is also known as a “dissolution of marriage.” When a California divorce is finalized, the couple’s marriage is terminated. At this point, the ex-spouses are considered single and are free to remarry.

For more information on the California divorce process, please contact the San Jose divorce attorneys at Lonich Patton Erlich Policastri for more information. Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results. While this post may include legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.

Source:

Wall Street Journal

Center For Disease Control & Prevention

Divorcing and Thinking about Adopting a Baby as a Single Parent?

March 25, 2011/in Family Law /by Mitchell Ehrlich

An article recently published in the Huffington Post discusses a new trend emerging in Hollywood: recently divorced celebrities adopting babies. The list of Hollywood’s recently divorced mothers with newly adopted children is growing. Madonna adopted a child after her split from Guy Ritchie. Sandra Bullock also adopted a child after she divorced Jesse James. Most recently, reports circulated that suggest that Eva Longoria is looking to adopt a child after her divorce from Tony Parker is finalized.

While this trend may be growing, particularly within the celebrity community, the Huffington Post article tries to make a point: while adoption is a wonderful thing, adoption immediately following a divorce may pose a variety of difficult challenges . As any divorced person could recount, divorce is a stressful, life-changing event. Recently divorced individuals must cope with a new lifestyle while dealing with raw emotions. As cute as babies can be, they need ample amounts of love, attention, and patience. As many new divorcees are running low on emotional stamina, it may be difficult for them to cope with the demanding needs of a newly adopted child.

For more information about California divorce, please contact us. Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results. While this post may include legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.

Source:

The Huffington Post

Why You Should Get Clean: Your History of Drug or Alcohol Abuse Can Affect Your Child Custody or Visitation Rights

March 24, 2011/1 Comment/in Family Law /by Mitchell Ehrlich

California family law requires that before child custody and visitation orders are made, a judge must take into consideration what is in the child’s best interest. When a judge is considering what is in the child’s best interest, he or she may look at any factors that are relevant. In addition, the judge must consider the child’s health, safety, welfare, history of physical abuse, and either parent’s habitual drug use. If you are a parent with a substance abuse problem, it is very important that you obtain treatment for this problem so that you can provide a safe and stable environment for your children.

Before a court considers allegations accusing a parent of drug or alcohol abuse, the court may require “independent corroboration.” This means the court may want to see written reports from law enforcement, courts, probation departments, social welfare agencies, or drug rehabilitation centers. In addition, the court may order a parent seeking custody or visitation to undergo drug or alcohol testing. The court may also require the parent who is tested to cover the costs of the testing.

Please contact us for more information about child custody and visitation rights and how issues of drug or alcohol abuse may affect those rights. Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results. While this post may include legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.

What is “Sole Custody”?

March 17, 2011/in Family Law /by Mitchell Ehrlich

The term “sole custody” refers to one of California’s several types of child custody arrangements. A parent with “sole custody” may have sole physical custody, sole legal custody, or exclusive custody. Each type of custody arrangement has unique rights that attach to it.

If a parent has sole physical custody, he has exclusive physical custody of the child without having exclusive legal custody. This means that the parent with the sole physical custody has the right to have the child live with him/her, subject to the other parent’s visitation rights (if any). However, a custodial parent who only has sole physical custody is not entitled to make all the important decisions regarding the child.

On the other hand, a parent with sole legal custody is awarded exclusive rights and responsibilities regarding child care decisions relating to health, education, and welfare. However, unless sole physical custody is also granted, the parent does not have sole control over the child’s residence and supervision.

Exclusive custody is a combination of sole legal and sole physical custody. The parent with the exclusive custody has the right to make decisions regarding the child’s residence, health, education, and welfare. The non-custodial parent, however, may retain secondary visitation rights detailed by court order. In addition, an exclusive custody order does not terminate the other parent’s parental rights or due process interest in parenting. The parent without exclusive custody retains the right to seek and obtain custody modification based on a proper showing of changed circumstances.

Please contact our child custody attorneys at Lonich Patton Erlich Policastri for more information. Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results. While this post may include legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.

Santa Clara County Custody & Visitation Process: Part II

March 9, 2011/in Family Law /by Julia Lemon

A previous blog posting provided a general outline of Santa Clara County’s approach to the child custody and visitation procedure that occurs when a couple is divorcing or seeking a legal separation. In the second half of this series, the discussion will focus on the phase of the custody process after the Judicial Custody Conference (JCC) is completed.

If the parents are able to reach an agreement during the JCC, they memorialize it in a written agreement and the custody/visitation portion of the case has been settled. However, if the parties do not reach an agreement, the judge may refer the parties to an assessment or evaluation with Family Court Services, or may set the case for trial.

If the parties are referred to an evaluation or assessment, Family Court Services or a private evaluator will interview the spouses, the spouses’ attorneys, and may choose to interview the children or other relevant individuals. The contents of the evaluation reports are kept confidential and are only sent to the Court, attorneys, and self-represented parties. Afterwards, the evaluator submits recommendations to the judge. Any party may file and serve objections to the orders within 15 days of the mailing of the recommended order. If an objection is filed, attorneys, parties, and the evaluator are then required to attend a Custody Settlement Conference (CSC). The purpose of the CSC is to try to settle any remaining custody and visitation disputes. If an agreement is reached at this phase, the case is settled. If an agreement is not reached upon the conclusion of the CSC, the judge will set the case for trial.

For more information about the child custody and visitation process, please contact our San Jose child custody attorneys at Lonich Patton Erlich Policastri. Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results. While this post may include legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.

Santa Clara County Child Custody & Visitation Process: Part I

March 7, 2011/in Family Law /by Julia Lemon

In California, the procedure for deciding child custody and visitation issues in a family law case can vary slightly from county to county. This discrepancy is a result of the local court rules each county has in place. While the Santa Clara County child custody and visitation procedure may differ slightly depending on the particulars of a case, a general outline of the process is detailed below.

In Santa Clara County, if custody/visitation are contested, the child custody and visitation process begins when one parent files an Order to Show Cause (OSC). An OSC is a court order that requires the other parent to appear in court. After an OSC is filed, a hearing date is set. In addition, the parties are also ordered to sign up for a mediation date and a parent orientation class.

At the initial hearing on the moving party’s OSC, the judge may issue temporary custody/visitation orders at the initial hearing. In addition, in every case with contested custody/visitation issues, the parties must attend a parent orientation class. Parent orientation is a mandatory class that briefs parents about the child custody process, mediation, and proper behavior during the process. Next, the parents attend mediation. The purpose of mediation is to reduce any conflict that exists between the parties. In addition, it serves to give the parties the time to develop a mutually satisfactory custody and visitation agreement. If a successful full or partial agreement is reached, the mediator drafts the agreement into a written document. The mediator then sends the written document to the parties. Either spouse may object to the agreement by timely serving a written objection to the other party. If an objection is served, the case proceeds to a Judicial Custody Conference (JCC). If no objection is served, the mediated agreement becomes a custody order. If no agreement is reached during mediation and the mediator feels further mediation would be fruitless, the mediator will refer the parties to a Judicial Custody Conference (JCC).

A JCC is conference between the parties and the judge assigned to the case. During the conference, the judge does not make orders. Instead, the judge helps the parties reach a settlement by weighing in on the remaining custody or visitation disputes.

For information about the remainder of the Custody and Visitation Process in Santa Clara County, please see the upcoming Part II of this blog series. If you are considering a divorce, please contact our firm for more information. Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results. While this post may include legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.

What are the Legal Implications of Conceiving a Child Through Artificial Insemination?

Huffington Post Article Argues for Increased Accountability for Parents Misusing Child Support Funds

Delaying Divorce Due to Financial Circumstances

A Recent Study Indicates More Women are Seeking Prenuptial Agreements Before Tying the Knot

New Study Lists States with the Lowest Divorce Rates

Divorcing and Thinking about Adopting a Baby as a Single Parent?

Why You Should Get Clean: Your History of Drug or Alcohol Abuse Can Affect Your Child Custody or Visitation Rights

What is “Sole Custody”?

Santa Clara County Custody & Visitation Process: Part II

Santa Clara County Child Custody & Visitation Process: Part I

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