California family law Archives - Lonich Patton Ehrlich Policastri

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What Are Fathers Rights In Child Custody?

October 5, 2019/in Family Law /by Riley Pennington

It used to be that a mother was seen as the primary caregiver of a child. This led to custody often being awarded to mothers over fathers. Things have changed and the courts realize that fathers have a substantial effect on a child’s life. Fathers rights are legitimate and you’re just as likely to gain custody as the mother – barring certain circumstances.

Determining Custody

Child custody in California is determined by the best interest of the child. This is a standard used in San Jose and the rest of California to maintain equality in custody cases. This means that the court will determine which parent has the best interest of the child in mind and will provide the best environment for the child.

As a father, you have the right to seek custody of your child. You and the mother both have the right to request visitation rights. Both parties are viewed as equal by the courts. Just like in any child custody case, there are a few things that could prevent you from gaining visitation rights or custody of your kids.

If there is evidence of child abuse, domestic abuse, drug abuse, or addiction by either party, this will impact child custody.

The courts make it a priority to keep both parents as involved in their kids’ lives as possible. This is because, in San Jose, the courts believe children benefit from a healthy loving relationship with both parents.

A fathers spends time wityh his child of the beach thanks to the equality of fathers rights in CA.

As a father, if you have a better relationship with your child and are better able to care for them, the courts are likely to award you custody. This is all based on case to case, however.

Paternity And Custody

To be eligible for child custody, a male must prove (or have done so previously) parentage or paternity. In San Jose, these terms are used synonymously.

Paternity can be established in a variety of ways.

VDP – This is a voluntary declaration of paternity. It is used when a child is born in a medical setting and both parents or parties acknowledge each other as the legal parents through signing this form. This adds the father as the rightful parent on the birth certificate alongside the mother.
Paternity/ Parentage Action – A paternity test can be ordered by multiple parties to determine parentage. A potential father seeking to legitimize his claim or a mother using the services of the child support agency are a couple examples.

In some cases, paternity may have already been established. A child born in marriage is considered to be the child of both married parties. If the parents are unmarried but are living together in a familial situation, the male is considered the child’s father. This is, of course, if he has taken on a parental role with the child despite not being the biological father in some cases.

Fathers Rights And Child Support

Fathers Rights grants the primary custodian rights to child support

To be determined as the primary caregiver and custodian of a child means that child will live with you. You are responsible for housing and caring for the child the majority of the time, and can determine where they live. The other parent may be granted visitation rights, barring any circumstances mentioned above that jeopardize the safety of the child.

As the primary custodian, you have the right to request child support from the other party. This is a sum paid monthly that helps with the costs of raising your child.

If you’re a father seeking information on fathers rights, contact an experienced attorney at Lonich Patton Ehrlich Policastri. We offer free 30 minute consultations.

The Ins and Outs of Life Insurance During Divorce

April 11, 2019/in Family Law /by Michael Lonich

Life insurance is usually not high on the list of concerns during a divorce. However, it is important to know that under certain circumstances life insurance can be an important asset.

In California, Can Life Insurance be Divided?

California is a community property state, which means that anything earned by the couple is owned equally be each partner. When life insurance is purchased with community money it is possible that the proceeds of the life insurance policy may be community property.

There are two types of life insurance: whole life insurance and term life insurance.

The first type of life insurance is whole life insurance. For whole life insurance, the policy accumulates a “cash value”. The amount of the policy that was purchased with community money is considered to be divisible property in divorce.

The second type of life insurance is term life insurance. Term life insurance is a contract providing only coverage during a specified term and has no cash value. Term life insurance purchased with community money is community property. However, the property in term life insurance is the right to have coverage during the individual term paid for with community money. Because the couple has already received the “benefit” of the policy during the marriage, the policy is not considered to be a divisible asset.

If the partner for whom a term life insurance policy is maintained were to pass away during a term in which any community funds were used to purchase the term policy, a portion of the policy proceeds would be community property and subject to division in a divorce.

Can Life Insurance be Awarded as Child or Spousal Support?

California family law provides broad discretion in matters of spousal and child support. A judge may order a parent to buy an insurance policy with the child or spouse named as the beneficiary.

California law allows life insurance to be awarded for child support because the obligations of the parent extend beyond death. A judge may order a life insurance policy as child support when the judge believes that the ordered parent may have trouble providing for the child.

Life insurance awards for spousal support allows a judge to order a spouse to purchase a policy with the other spouse named as the beneficiary. The judge’s ability to order life insurance as spousal support is directly stated in California Family Code section 4360.

Is There Anything Else to be Aware of?

It is important to remember that a life insurance policy is a separate contract from marriage. The named beneficiary of a life insurance policy does not automatically change following a divorce. The holder of the policy must contact the life insurance provider to request a change of beneficiaries.

Another item to keep in mind is that even if a life insurance policy is not discussed during divorce proceedings, it can be brought before a judge later as an “omitted asset.” The judge may then decide on whether the policy should have been divided or have been included in an award of support.

Determining the rights to life insurance in divorce can be complicated. It is important to understand your rights to a life insurance policy both during and after divorce. If you have questions about your or your partner’s life insurance policy, please contact one of the experienced attorneys at Lonich Patton Ehrlich 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 detail general legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.

How Can Parents Secure Parental Rights in Assisted Reproduction?

June 5, 2017/in Family Law /by Mitchell Ehrlich

Many couples are choosing to begin the expansion of their families later rather than sooner. With this new trend, assisted reproductive technology has gained tremendous popularity in aiding individuals embark on this process.

Assisted reproduction refers to all treatments which involve handling eggs or embryos outside of the body and includes procedures such as: in vitro fertilization, intracytoplasmic sperm injection, donor egg or embryo, surrogacy, gamete intrafallopian transfer, and zygote intrafallopian transfer. As fascinating as these medical processes are, legal considerations need to be addressed when parentage is being determined.

Parentage in the law deals with the legal relationship between parents and a child. We discussed establishing a child’s parentage generally in an earlier blog post here. But the right of parentage earns a new level of complexity when done through assisted reproduction.

Many couples who engage in assisted reproduction use a donated egg or donated semen. And there can be some natural concerns that come up when you are on the side of the donation recipient. Does the donor have rights as the parents-to-be do? How do parents-to-be secure their parentage rights?

Their rights as parents can prevent the donor from seeking parental rights. However, if the sperm donor and the intended parent wants the donor to be treated as the child’s parent then there must be a written agreement stating this prior to conception. Also, if an egg donor wishes to be treated as the child’s parent the court must find satisfactory evidence that the donor and person seeking treatment meant otherwise. This may be demonstrated by the donor taking on a role of raising the child.

Parents using a surrogate may have parentage concerns too, but preparing before birth will ease these anxieties. As long as the parents-to-be sign the appropriate surrogate contracts they shall be the lawful parents of the child.

Ultimately, the ruled and laws regarding assisted reproduction and parentage rights are complex. All relationships are unique and some may not fit perfectly within the box of California law. Moreover, the scientific abilities of reproductive assistance are constantly evolving at a rapid rate. Therefore, it is important to talk with a knowledgeable attorney like those at Lonich Patton Erlich Policastri to discuss your specific situation.

If you would like more information about assisted reproduction and parental rights, please contact the experienced family law attorneys at Lonich Patton Erlich Policastri.

Lastly, 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 detail general legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.

What Parents with a Disability Need to be Aware of in a Divorce

June 1, 2017/in Family Law /by Michael Lonich

Parenting while going through a divorce is hard, but also having a disability adds a new level of complexity that makes it is easy to feel overwhelmed and deflated. This is why it is so important to have a competent lawyer who will advocate for your parentage rights effectively and with care.

The thought of having parentage rights taken away will make any parent’s heart drop. But the chances of a disabled parent facing this nightmare is almost a guarantee. According to the National Council on Disabilities the removal rates of children from disabled parents are dispiriting. For children with psychiatric disabled parents the removal rates were between 70% and 80%; parents with intellectual disabilities were 80%; and parents with physical or sensory disabilities experienced high removal rates and loss of parental rights, as well.

If you are a disabled parent facing divorce or a child custody battle, it is important to find a lawyer who is sympathetic to your situation, who understands your condition, and will be effective in their advocacy for you. This is crucial because there are many unfortunate challenges a disabled parent can face in court.

Disabled parents may experience bias or speculation regarding best interest determinants. When dealing with a child, the court’s main objective is to produce a result that is in the child’s best interest; and a parent’s disability will be considered.

There is also a “no harm” requirement when determining a child’s best interest scenario, where the court factors the mental and physical health of all individuals involved to determine if there is a potential chance for harm to occur to the child. With this requirement, there is no obligation to show that the parent’s disability is actually causing, or will cause, any harm to the child or their environment. This can clearly disfavor any parent dealing with a disability.

If you are a parent who has a disability and is facing a divorce or custody battle, securing knowledgeable and effective counsel is imperative. There are a few key characteristics you should look for your future lawyer.

Of course, a knowledgeable lawyer in family law and child custody is a must, but you also want one who will focus on your parenting abilities and strengths. Your attorney needs to understand the specifics of your diagnosis in order to better advise and understand you. By being knowledgeable on your disability’s characteristics your lawyer will be more equipped to advocate on your parenting strengths and abilities. Finally, you want to find a lawyer who apprehends the benefits and pitfalls of various parental evaluations. Overall, your lawyer should give you assurance that your parental rights are protected and that you are given a fair opportunity to raise your child.

If you are considering a divorce or legal separation and would like more information about child custody and parental disability, please contact the experienced family law attorneys at Lonich Patton Erlich Policastri.

Educational Degrees and Divorce

May 24, 2017/in Family Law /by Michael Lonich

More individuals today have received some sort of professional degree or training than ever before. But with the influx of costs for higher education many married students rely on their spouse for financial support. And upon legal separation or divorce a spouse who supported the other through their education may be entitled to reimbursement for their community fund contributions.

If a spouse chooses to obtain a professional degree or training during their marriage usually two events occur. First, the non-student spouse supports the other financially by paying for the community and educational expenses. Second, after the education is complete, community funds may be used to repay any outstanding loan amount. Upon legal separation or divorce in California these educational loans will be assigned to the spouse who received the education or training and the non-student spouse may have a right to reimbursement for their community contributions. However, California does not recognize an obtained degree or training as community property and therefore its value cannot be divisible upon divorce.

The reimbursement for community fund contributions to a spouse’s education or training is an exclusive remedy governed by Family Code Section 2641. But the spouse seeking reimbursement has a burden to trace the funds to a community property source such as earnings acquired during the marriage. Reimbursement is seen to give a fair “quid pro quo” (this for that) of the community’s investment in the education of a spouse. A supporting spouse may receive reimbursement if the education or training “substantially enhanced” the earning capacity of the spouse or the marriage has ended before the community obtains a benefit from such education. Contributions that may be reimbursed involve payments made with community or quasi-community property to support the student spouse’s education expenditures. These expenses include: tuition, fees, books, supplies, transportation, and directly related educational expenses. However, a spouse will not receive reimbursement for ordinary living expenses since these would have been incurred regardless of a spouse’s educational expedition.

Full reimbursement is not guaranteed though and a court may choose to impose limitations on a spouse’s reimbursement amount if their case’s circumstances warrant such a decision. There are several reasons for a limitation and the ones listed below are by no means exhaustive, but merely illustrative.

A person embarks on an advanced degree or training for a multitude of reasons, one of which may be for better financial standing. Yet, even though there is an expectation that the education will benefit the marital community there is no presumption that the enhancement will be “substantial.” Thus, if a spouse cannot demonstrate the education received in fact substantially enhanced the earning capacity, then reimbursement may be limited.

“Unjust reimbursement” can also limit reimbursement. This occurs when a court determines specific circumstances within a case renders a full reimbursement of the community contributions unfair. For example, if both spouses have obtained a degree or training at the community’s expense a reimbursement to only one would be unjust since both were at one point supported by the other. Unjust reimbursement may also occur when a spouse receives education or training that substantially reduces their need for spousal support. These examples however are merely illustrative and many other circumstances may lead a court to deem full reimbursement to a spouse as unjust.

Finally, a written agreement between the spouses that waives or modifies a reimbursement right may limit a spouse’s amount receivable. Such a waiver or modification must be written expressly; it cannot be agreed upon orally or implied and must be signed by the adverse party.

The achievement of obtaining a degree or training is rewarding for all involved. However, upon legal separation or divorce, rights to reimbursement for community contributions can become complex. If you are considering a divorce or legal separation and would like more information about divorce and educational reimbursement, please contact the experienced family law attorneys at Lonich Patton Erlich Policastri.

How SB 1255 (the “anti-Davis legislation”) Will Impact Your “Date of Separation”

August 29, 2016/3 Comments/in Family Law /by Mitchell Ehrlich

Currently divorcing spouses or couples considering divorce better consult a lawyer soon—a newly enacted statute has changed the method by which California courts determine a married couple’s “date of separation.” On July 25, 2016, the governor of California, Jerry Brown, signed SB 1255 (aka the “anti-Davis legislation”), a bill which amends California Family Code § 771 and adds section 70 to the Family Code. As a result, the existing standard that governs a married couple’s “date of separation” has been changed. Previously, Family Code § 771 instructed that spouses were not separated until they were “living separate and apart”—a phrase which courts interpreted to mean “living in separate residences.” With the passing of SB 1255 though, spouses may now be considered “separated” even if they share a common residence.

A couple’s legal “date of separation” is important because it determines the point at which a spouse’s earnings and accumulations are no longer considered “community property” and instead, are considered a spouse’s own “separate property.” In turn, the difference between community and separate property is important because absent a written agreement stating otherwise, all community property must be evenly divided between divorcing spouses.

SB 1255’s nickname—the “anti-Davis legislation”—came about because of the case its creation abrogates: In re Marriage of Davis. In July 2015, the Davis court held that “living in separate residences ‘is an indispensable threshold requirement’ for a finding that spouses are ‘living separate and apart,’” or in other words, for determining a “date of separation.” However, the Davis court didn’t create new law—it merely affirmed what it believed was the California legislature’s intention when it coined the phrase “living separate and apart” many years ago.

To ascertain the legislature’s intent, the Davis court had to do go back 146 years to 1870 when the phrase was first used in a statute that protected the rights of married women. Similarly to section 771, the 1870 Act did not define “living separate and apart.” However, according to the Davis court, section four of the 1870 Act suggests that the legislature intended for the phrase to require separate residences: a wife, who was “living separate and apart” from her husband and wished to sell her real property without joining her husband, had to record a declaration that included a description of “her own place of residence” and a statement that “she is a married woman, living separate and apart from her husband.”

Additionally, when the California legislature repealed a number of Family Code sections in 1969, it created a new statute (section 5118) that reproduced the 1870 Act language. Once again though, the legislature provided no specific definition of “living separate and apart.” The Davis court reasoned that the legislature’s continued use of the phrase—without defining it—expressed its satisfaction with earlier judicial interpretation of the language.

Further, the Davis court also relied on a notable 2002 case—In re Marriage of Norviel—which concluded that “living apart physically is an indispensable threshold requirement to separation, whether or not it is sufficient, by itself, to establish separation.” Therefore, relying on legislative history and case law, the Davis court affirmed the Norviel holding—spouses had to live in separate residences before they could be considered separated.

While the Norviel and Davis courts may have correctly discerned the original meaning of “living separate and apart,” our modern legislature took issue with their holdings and in response, passed SB 1255. The bill expressly abrogates Norviel and Davis, and rather than provide a specific definition for “living separate and apart,” the legislature did away with the phrase all together. Instead, section 771 (the modern statute that contained the disputed language) now uses the phrase “after the date of separation” to determine when a spouse’s accumulations and earnings transition from “community” to “separate” property. In turn, newly added section 70 defines “date of separation” as a “complete and final break” that is evidenced by two factors: 1) a spouse has expressed his or her intent to end the marriage to the other spouse, and 2) the conduct of the spouse is consistent with his or her intent to end the marriage. Further, section 70 requires that a court look at all “relevant evidence” when making the above determination.

This statutory change was spurred on by Senator John Moorlach (R-Costa Mesa), the author of SB 1255. He believed it was necessary to change the Family Code language because many spouses wish to separate legally in order to protect their personal finances, but also, wish to continue sharing a residence in order to save costs during their divorce. Thus, SB 1255 should better reflect the reality of modern divorce experiences.

While the amended Family Code sections do provide clarity and allow couples more post-separation flexibility, it is important to note that SB 1255 may not be the end of legal disputes about separation dates—in the coming years, case law will further refine section 70. Additionally, couples in the process of a divorce should not let SB 1255 pass by them unnoticed because when the new law goes into effect on January 1, 2017, it may retroactively apply to any cases pending on that date, but this issue still needs to be resolved and addressed by the Family Courts in California. Look for another blog post on this topic specifically. However, consulting now with your attorney to develop a “date of separation” strategy is in your best interest.

If you are considering a legal separation or divorce, please contact the experienced family law attorneys at Lonich Patton Erlich Policastri—we can help you navigate the effects of SB 1255 and answer any questions you may have about how the new law will impact your divorce. The sooner you understand how SB 1255 will affect your current or impending legal plans, the better you can prepare for the new rule when it goes into to effect on January 1, 2017.

Sources:

2016 Cal. Legis. Serv. Ch. 114 (S.B. 1255)

In re Marriage of Davis (2015) 61 Cal.4th 846

In re Marriage of Norviel (2002) 102.Cal.App.4th 1152

Finding Your Divorce Attorney: 3 Ways to Ensure You Hire the Right One

June 10, 2016/in Family Law /by Gretchen Boger

Hiring the right attorney has the potential to save you time, money, and peace of mind; however, this is no easy task – nor should it be. Getting a divorce is often one of the most difficult, exhausting, and emotionally draining times in a person’s life. It is of utmost importance to hire the attorney that is willing and able to be your guide and advocate through the arcane domain of divorce. Below are three ways to ensure that you are choosing the right attorney.

1. A Referral

With approximately 40% – 50% of all marriages ending in divorce, it is likely that you know someone who has gone through a divorce. While it is not always easy to admit that your union has failed, seeking advice from those who have had to go through the process can play an integral role in deciding who will represent you.

Simply asking them if they would recommend their attorney is indicative of an attorney’s capabilities. However, an attorney who was perfect for someone else may not be perfect for you, and vice versa. Therefore, confide in those who have gone through this onerous process, but be aware that each divorce is unique and each attorney-client relationship is unique, as well.

2. An Internet Search

Today a simple Google search, for example, “Bay Area Divorce Lawyers,” will return dozens of results. The results at the top of the list will most likely be the law firms that specialize in divorce in the Bay Area. Take your time when researching each law firm.

A law firm’s website should indicate its areas of specialization, the attorneys that work there, and the results that the firm gets. More often than not, the website will give examples of the kinds of cases the firm has tried. These examples are important to you. You should be asking yourself, if these examples are similar to your current situation. If so, the firm is one that you should definitely consider. A firm’s website can provide a lot insight about the firm; however, it should not, necessarily, be the determinative factor in your decision making process.

3. A Consultation

If a referral source or your research has resulted in finding an attorney that you like, you should schedule a consultation. A consultation is a time for you and the attorney to decide if working together is the right decision. There are number of things that you should consider when meeting with your potential attorney for the first time.

First, if the attorney is charging you an initial consultation fee, do not let it discourage you from scheduling the consultation. Usually, in other areas of law, when a prospective client meets with an attorney for the first time there is a free 30 minute consultation. However, divorce attorneys may charge an initial consultation fee. The reasons for the fee are to determine if clients can afford attorney’s fees and to deter clients that are “lawyer shopping.” Lawyer shopping occurs when a prospective client meets with a number of different divorce attorneys with the intention of creating a conflict of interest. As a result, any attorney who the client met with is precluded from representing that client’s spouse. One way to deter invidious behavior, such as lawyer shopping, is to charge for the meeting.

Second, the attorney-client relationship is something that should be founded upon honesty, trust, and accountability. The consultation is the appropriate time to meet and decide if working together would be in the best interests of both parties. During the consultation there is a lot of information that each party should receive before making a decision.

As the client, you should make note of the attorney’s demeanor and professionalism. Is the attorney professional, did he or she dress well, was the meeting uninterrupted, did you receive the attorney’s undivided attention, and were you treated with respect? An attorney who dresses well, is professional, and treats you with respect usually correlates to being a fine lawyer.

Third, divorce has the potential to last for years. It is important that you choose an attorney you can be around throughout the divorce. Your attorney is your advocate, and the last thing that you need is to have tension between one another. Therefore, choose someone that you can foresee yourself getting along with. This doesn’t mean your attorney needs to be your best friend, but it does need to be someone that you can work with.

Fourth, hiring an attorney who has dealt with cases similar to yours will most likely save you time and money. While divorce may seem like an ossified area of the law, results are, often times, dictated by specific factual findings and great lawyering. Having an attorney who is familiar with certain situations will increase your chances of reaching a settlement in your best interest. For example, an attorney who has dealt with unique assets and situations (horses, real property out-of-state, blended families, etc.) is more likely to reach a better result and not bill as much for researching these unique circumstances.

Finally, if you decide that the attorney is right for you, you should be ready to get the process started right away. The items that you should bring to the first consultation are: 1) any pleadings, motions, proposed settlement agreements, or any other documentation dealing with the case, 2) your most recent tax returns, 3) a preliminary schedule of assets and liabilities, and 4) your monthly income and expenses. Any other documents or paperwork that you think are relevant should be brought to the consultation, too.

On the other hand, during the consultation, the attorney will be considering whether your case should be taken. Each attorney has their own checklist for determining whether to take on a new client. Generally, an attorney considers if the case is feasible, if he or she is able to work with the client, and if there are any conflicts, among other factors.

Asking for a referral, conducting your own research, and meeting with attorneys are three proactive steps that will ensure that whomever you hire is the right attorney for you. Remember, finding the right attorney is a decision that only you should be making.

If you need any help in finding the right attorney, the Certified Family Law Specialists at Lonich Patton Erlich Policastri have decades of experience handling complex family law matters. Please contact the Certified Family Law Specialists at Lonich Patton Erlich Policastri for further 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.

7 Tips to Keep Your Sanity in Custody Litigation

May 2, 2016/in Family Law /by Virginia Lively

In her memoir “Yes Please,” comedian Amy Poehler likened divorce to “spreading everything you care about on a blanket and then tossing the whole thing up in the air.” Undeniably, the end of a relationship is devastating for all involved, especially for the children of the relationship. Sometimes, parents separate with the best of intentions, promising to keep the peace for the sake of the children–with varying degrees of success. An unfortunate reality is that divorce and custody litigation is taxing on children of any age, and exposure to conflict can have lasting and serious repercussions. In fact, studies show that children exposed to a contentious divorce are more likely to struggle academically, socially, and emotionally.*

This post contains tips to decrease conflict and keep you (and your family) sane during custody litigation.

1. Be Flexible.

Life after separation is uncomfortable for both parents and children. On top of arranging separate housing and sorting such issues as payment of household bills and the sale of the family home, you and your ex must negotiate a temporary visitation schedule. This is no small order! In approaching this challenge, flexibility is key. Remember, initial temporary custody arrangements are just that—temporary—and will be fine-tuned over time. Consider taking advantage of the free custody mediation services available in some counties through Family Court Services, where a neutral mediator will help you and your ex formulate a visitation schedule.

2. Communication is Key.

Hostility strains communication. Children adjusting to divorce will benefit from their parents maintaining healthy lines of communication. While face-to-face communication with your ex may be difficult, luckily there are many alternatives. Consider designating a “family notebook” to travels in your child’s backpack or overnight bag. You and your ex can write (peaceful) notes to one another, detailing the status of homework and projects, sleep and nap schedules, snacks and meals eaten by the kids during visits, and health-related concerns. Or, consider using Our Family Wizard which is a web and app-based custody tool that helps parents with scheduling and communicating (and is frequently ordered by family court judges).

3. Choose your Words Carefully.

Think of your child as a sponge. He or she will soak up everything you say and do, especially during this unstable time. For this reason, no matter how tempting it may be, do not “vent” or criticize the other parent in the presence of your children, or discuss the ongoing litigation. To help your children understand the changes your family is undergoing, and offer a safe space for your children to discuss these changes, consider family or individual counseling.

4. Practice the Golden Rule…Even if Your Ex Doesn’t.

Treat your ex as you wish to be treated, even if he or she does not return the favor. Retaliating against your ex by withholding contact with the children will breed further tension and conflict. To that end, difficult though it may be, try to take the high road. Show respect and flexibility to your ex, even if he or she is seemingly unwilling to offer the same courtesy. Ultimately, the court will see you as the more reasonable parent.

5. Be Cautious When Introducing New Partners.

Err on the side of caution when introducing a new boyfriend or girlfriend to your children. It can be difficult for children to process the end of their parents’ marriage, and the introduction of a new partner too soon may cause confusion and anxiety. It may also heighten conflict with your children (or resentment from your ex). Even if your children adore your new partner, if the new relationship is short lived, then your children may face even more difficult change. Consider waiting until the initial uncertainty of the custody litigation—and your new relationship—has passed before introducing a new partner.

6. Go Back to School.

It’s never too late to learn. There are an abundance of parenting classes offered on a variety of topics (from parenting an infant to relating with a teenager). The courts often order one or both parties to participate in a parenting class. Consider voluntarily enrolling in a class at the beginning of the case. Not only will it impress the judge, by honing your own parenting skills, you will also develop coping mechanisms and learn to navigate conflict.

7. Be Patient and Change Will Come.

Change will not happen overnight. Separating from the parent of your child will undoubtedly cause a period of unhappiness and uncertainty. However unpleasant, this time shall pass. Be patient, and change for the better will come.

If you need help navigating your custody litigation, the Certified Family Law Specialists at Lonich Patton Erlich Policastri have decades of experience handling complex family law matters. Please contact the Certified Family Law Specialists at Lonich Patton Erlich Policastri for further 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: Children of divorce in the 1990s: An update of the Amato and Keith (1991) meta-analysis. Amato, Paul R. Journal of Family Psychology, Vol 15(3), Sep 2001, 355-370.

4 questions to ask before hiring a mediator

March 8, 2016/in Family Law /by Riley Pennington

Mediation can be very helpful for spouses going through a divorce. Ensuring a successful mediation requires choosing the right mediator. Before deciding to work with a mediator, parties may consider speaking to those who have worked with him or her in the past. Below are a few suggested questions to ask those who have worked with the mediator:

1.Did the mediator develop a relationship of trust and confidence with you?

2.Was the mediator patient yet tenacious?

3. Would you hire this mediator again?

4.Was the mediator creative?

Sometimes our issues don’t have an easy solution. For example, deciding a custody holiday schedule or deciding who will keep the marital home, can make it difficult to reach an agreement. Hire a mediator that you know is prepared to deal with these complex issues.

While divorce mediation works in many situations, it is not always appropriate. Litigation is often the best option in situations where there is domestic violence, one party refuses to cooperate in making required disclosures, or communication between the parties is impossible. If you have any questions about divorce mediation and would like to speak to an attorney, please contact Lonich Patton Erlich Policastri for further information. Keep in mind 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:

Mediation Checklist: What to Know When Hiring Mediators

Alternative Dispute Resolution in Marital Cases

October 27, 2015/in Family Law /by Gina Policastri

No one marries with the intent that they will divorce someday. However, there may be a point in a relationship when it is clear that marital dissolution (i.e., a divorce) is inevitable. How the parties proceed after this point can make the difference between an amicable, peaceful conscious uncoupling and a nasty, drawn-out battle.

Even though a trial, complete with a judge and court-room setting is glorified on television, most cases do not make it to trial and are more commonly resolved with a settlement. Contrary to what some believe, a divorce does not have to go to court. Parties looking to divorce may resolve their dispute through informal negotiations by using out-of-court alternative dispute resolution (commonly referred to as ADR). These proceedings between you and your spouse along with your attorneys promote voluntary settlement though they can also include traditional court proceedings.

Several ADR processes that family law attorneys use are mediation and arbitration in lieu of proceeding to trial. These forms of dispute resolution are gaining in popularity and are shifting the role divorce attorneys play from representing their clients in a legal battle to acting as divorce mediators who help their clients achieve their goals. In order to determine which approach might be right for you, it’s helpful to understand the process each one entails.

Mediation

The goal of mediation is for a neutral third party to help disputants come to a consensus on their own. In mediation, a professional mediator works with the conflicting sides to explore the interests underlying their positions. Parties in mediation find it effective at allowing them to vent their feelings and to fully explore their grievances.

Mediation sometimes requires the parties to sit in a room together, while other times the parties are in separate rooms and the mediator goes back and forth. This is typically referred to as Kissinger style shuttle diplomacy after it was used to describe the efforts of the United States Secretary of State, Henry Kissinger.

Mediation may be particularly helpful when parties have a relationship they want to preserve (e.g., family members, neighbors or business partners have a dispute) or when emotions are getting in the way of finding a resolution. An effective mediator can hear the parties out and help them discuss issues with each other in an effective and nondestructive manner.

Arbitration

Another form of alternative dispute resolution in family law cases is arbitration where a neutral third party serves as a judge who is responsible for resolving the dispute. The arbitrator listens as each side argues their case and presents relevant evidence, and then renders a binding or non-binding decision, depending on the type of arbitration entered into. Arbitration is less formal than a trial, and the rules of evidence are often relaxed.

Although used more often in civil litigation, arbitration is less often used in divorce cases. In marital dissolution cases, an arbitrator’s decision is not necessarily final, and the parties may still be able to resolve key issues before a court at a later date. It is important to keep in mind that most out-of-court alternatives for resolving a divorce will still require some level of court approval.

Litigation

Perhaps the most recognizable form of dispute resolution, litigation involves two parties facing off before a judge or judge and jury (Currently, Texas and Georgia are the only states that offer spouses the opportunity to litigate their divorce before a jury). During the trial of a divorce case, the attorney’s for each party present evidence on contested issues while the judge (or jury) is responsible for weighing that evidence and making a ruling.

Typical issues that arise in litigation are the determination of the separate property of a party, how to divide community property and liabilities as well as determination of the validity of a pre- or post-nuptial agreement. If children are present the custody arrangement, child and spousal support as well as the time sharing schedule of the children are often areas prone to increased litigation.

It is important to keep in mind that all of the alternative dispute resolution processes are available in settling any ongoing dispute such as property division, child custody or support. However, the effectiveness of these alternatives in contrast to a full trial depend on factors such as how willing the parties are to work on resolving these issues and the general degree of animosity between them.

These choices can make the decision to divorce a complex field. If you are considering filing for divorce, the Certified Family Law Specialists at Lonich Patton Erlich Policastri have decades of experience handling complex family law matters. Please contact the Certified Family Law Specialists at Lonich Patton Erlich Policastri for further information. Also, 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: http://www.pon.harvard.edu/daily/dispute-resolution/what-are-the-three-basic-types-of-dispute-resolution-what-to-know-about-mediation-arbitration-and-litigation/?mqsc=W3814478&utm_source=WhatCountsEmail&utm_medium=PON%20Harvard+Neg%20Insider%20(Tuesday/Thursday)%20Standard%20Rule+Neg%20Insider%20(Tuesday/Thursday)%20Standard%20Rule&utm_campaign=Neg_WIR_10242015