Family Law Archives - Page 30 of 36 - Lonich Patton Ehrlich Policastri

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.

Is Summary Dissolution Right for You?

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

If you are looking for a simplified divorce process, you may be interested in learning more about summary dissolution. Summary dissolution involves less paperwork and you do not have to appear in court. However, you must meet certain conditions before you qualify for a summary dissolution.

First, you and your spouse must have agreed in writing to a division of your assets and debts. In addition, you must have been married for five years or less, and have no children from the relationship. Neither party may own a home or real estate, the value of the community property must be less than $25,000, and combined debts must not exceed $6,000. Both partners must also waive spousal support.

If you meet the requirements, a summary dissolution may be appropriate for your situation. Both spouses must agree to all of the terms of a summary dissolution. In addition, either spouse may cancel the summary dissolution for any reason before the dissolution is final.

For more information on summary dissolution, please contact our Bay Area divorce 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.

Is Property Acquired After the Date of Separation Still Community Property?

February 25, 2011/in Family Law /by Julia Lemon

In California, the legal date of separation occurs when (1) at least one spouse has the subjective intent to end the marriage and (2) there is objective evidence of conduct that reflects that intent.

California is a community property state. This means that under California law, most property acquired by married persons during their marriage while living in California is presumed to be community property. Property that is acquired prior to marriage, or during marriage by gift, bequest, or devise, or as income from property owed prior to marriage is presumed to be separate property of the receiving spouse. After the date of separation, the earnings and assets acquried by one spouse are generally considered that spouse’s separate property.

For more information on legal separation (property division?), 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.

What is Summary Dissolution?

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

Summary dissolution is a California divorce procedure that allows couples meeting certain qualifications to divorce quickly and simply. Some of the qualifications for a summary dissolution are discussed below.

In order to qualify for summary dissolution, the couple must have been married for no more than five years. Prior to filing for summary dissolution, at least one of the spouses must have been a resident of California for at least 6 months and a resident in the county where the dissolution was filed for at least 3 months.

In addition, “irreconcilable differences” must have caused the breakdown in the marriage. The couple must have no minor children. This means that no child of the relationship was born before or during their marriage. Also, the wife (to the best of her knowledge) must not be pregnant, and the couple must not have adopted any children during their marriage. However, the couple may have adult children.

In order to qualify, the couple also must not have any real property interests other than short term leases. Therefore, couples who own homes are not eligible for summary dissolution. The couple may only have a maximum of $6,000 in unpaid debts incurred by either or both parties during the marriage. This number, however, does not include the balance left on a debt from an automobile purchase.

If a couple qualifies for summary dissolution, they can proceed with a divorce without having to appear in court. However, because there is no trial or hearing in a summary dissolution, couples do not have the right to appeal the case or to ask for a new trial (since there was no trial). For couples who do not qualify for summary dissolution, they may proceed to obtain a divorce through the regular dissolution process. Under the regular dissolution process, couples may ask for a court hearing or a trial. If either party is unsatisfied with the judge’s final decision at trial, he or she may appeal the decision to a higher court.

For more information about California divorce or to find out about all of the summary dissolution requirements, please contact our San Jose divorce 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.

What is a California Emergency Protective Order?

February 24, 2011/in Family Law /by David Patton

Note: People can tell what internet sites you have visited on your computer. Be safe, and use the internet at a local library, friend’s house, or at work!

An emergency protective order (EPO) is a court order that protects victims from domestic violence by prohibiting the victims’ abusers from coming within a certain distance of the victim. You can obtain an EPO by calling 911 and reporting domestic violence to the police. You can ask for this order at any time – day or night. An EPO may also grant the victim temporary custody of his or her children. However, an EPO and other restraining orders do not guarantee the safety of you and/or your children. If you continue to fear for your safety after the issuance of an order, the California Bar suggests you consider moving into a domestic violence shelter or the home of a friend or relative who is not known to the abuser.

An EPO remains in effect for five court days or seven calendar days, whichever is shorter. For a longer-term restraining order, you must apply for a Temporary Restraining Order (TRO) at the local courthouse. If a TRO is granted, it will take effect as soon as the restrained party is served a copy of the court papers. The TRO will stay in effect for a period not exceeding three weeks, pending a court hearing. At the hearing, the judge will decide whether a “permanent” restraining order is warranted, which can stay in effect up to three years.

It is important to note that under California law, a wide variety of activity can constitute grounds for a domestic violence protective order. California law defines domestic violence as abuse towards an intimate partner or family member. Domestic violence stems from the abuser’s need to control. It includes threats, annoying phone calls, stalking, unwanted sexual touching, hitting, the destruction of personal property, and other actions. Victims may be a spouse, dating partner, someone you lived with, or a relative related by blood or marriage. It affects same-sex partners as well as heterosexual couples. Both children and adults can be the victims of domestic violence.

For more information about emergency protective orders and temporary restraining orders, please contact the San Jose 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.

An Action to Establish Parentage Might Help You Obtain Child Support from Your Child’s Other Parent

February 23, 2011/in Family Law /by Gina Policastri

A parentage action is a court proceeding in which the court makes a determination of child’s legal parents. Quite often this is not in dispute, but sometimes parentage is disputed for various reasons. Where the parents are not married, a parentage action or at least a determination of parentage is required as part of any effort to obtain child support, visitation, or custody. Either the mother father (even if disputed) of the child can file this type of action.

It is important to know that the legal parents of a child have an obligation to financially support their child. A legal parent also has the right to obtain custody and/or visitation rights in relation to the child.

For more information about how you can establish parentage of your child, please contact our family law 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.

Marital Debts: What You Need to Know

February 22, 2011/in Family Law /by David Patton

The community estate (i.e. a married couple’s community property and quasi-community property) is generally liable for either party’s premarital and pre-separation debts. This rule applies regardless of which spouse has management and control of the property, and regardless of whether the debts were incurred to benefit both spouses.

The community may be liable for child support and spousal support obligations arising from one spouse’s prior marriage even though the other spouse did not personally incur the original obligation. The community, however, may be reimbursed when community property is used to pay the other spouse’s child/spousal support if the obligor spouse had separate property income available to use to satisfy the debt. The community estate is generally not liable for debts one spouse incurs while the spouses are living separate and apart from each other.

For more information about California divorces, please contact the Santa Clara divorce 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.

Premarital Agreements vs. Marital Agreements vs. Marital Settlement Agreements

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

California family law is quite complex. For those who are not familiar with the workings of California law, it may be very difficult to differentiate between the terms “premarital agreement,” “marital agreement,” and “marital settlement agreement.”

A premarital agreement is a contract that is executed between two prospective spouses. The premarital agreement, or “prenup,” is entered into in anticipation of marriage with the idea that it will become effective upon the marriage of the two prospective spouses. Premarital agreements often address issues of the parties’ present and future property rights. Premarital agreements must comply with certain formalities to be enforceable.

A marital agreement, or postnuptial agreement, is a contract that is executed by spouses during marriage. This type of contract affects the rights and obligations incident to an ongoing marriage, both during life and after death. Post-nuptial contracts can be broad in scope, laying out in comprehensive detail the parties’ rights and duties towards each other and the characterization of property. This category also includes “transmutation” agreements, which are contracts changing the property status of a specific asset from its current form to another form (e.g. separate property to community property). Like a prenuptial agreement, marital agreements must comply with certain formalities in order to be enforceable. Additionally, spouses entering into postnuptial agreements must comply with their fiduciary obligations and act with the “highest good faith and fair dealing” towards one another.

A marital settlement agreement (MSA) is executed as part of a dissolution of marriage or legal separation. The MSA typically addresses the parties’ ownership of marital property and other rights and obligations in relation to divorce or separation. Usually, an MSA is incorporated into a judgment of dissolution, and the rights and obligations of the ex-spouses are governed by the terms of the final judgment.

Note that the same rules governing these agreements between spouses also generally apply to domestic partnerships. For more information about prenuptial agreements, marital agreements, or marital settlement agreements, 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.