CHILD CUSTODY
LEGAL CUSTODY:
This term relates to the right to make legal decisions for the child regarding the health, education, and general welfare of a minor child who has not reached the age of majority, or 18 years.
Joint Legal Custody:
This term is utilized when both parents share in the right to make decisions for the child(ren) regarding the health, education, and general welfare of a minor child who has not reached the age of majority, or 18 years. An order for Joint Legal Custody usually provides for the parties to discuss these issues prior to making decisions on behalf of the minor child(ren). It further restrains either party from making these decisions unilaterally, except in emergency situations.
For example, a decision regarding whether your minor daughter should proceed with the “nose job” she has requested needs to be made by the parties, together. However, should the same minor daughter fall and break her arm, requiring emergency assistance, the party present at the hospital can make the decision for the emergency treatment by him or herself but must advise the other party as soon as possible of the situation.
It is assumed that the parties know better than a stranger in a black robe as to what is in their child(ren)’s best interest regarding the issues of his/her health, education and welfare.
Sole Legal Custody:
This term is utilized when only one parent has the right to make decisions for the child(ren) regarding the health, education, and welfare of the minor child who has not reached the age of majority, or 18 years. This is often when one parent is absent from the family or, the parent has a history which has caused him or her to make bad decisions regarding the minor child(ren) in the past. This could include incidences of abuse or neglect.
The goal of most states is for parents to make joint legal custody decisions. The court system offers assistance in this area including mandatory mediation and other programs which parties must attend prior to seeing the “stranger in a black robe.”
PHYSICAL CUSTODY:
This term relates to where the child(ren) resides.
Sole Physical Custody:
This term is utilized when the child lives with one parent and the other parent has limited visitation rights.
Joint Physical Custody:
This term is utilized when a child(ren) resides with each parent for a substantial amount of time during the course of a calendar year. Joint physical custody does not mean equal custody. In California the term means that each party has “frequent and continuing contact” with the minor child(ren). This term is used in referring to a custody plan wherein the minor child(ren) resides with one parent and visits the other parent on alternating week-ends. This term is also used in referring to a custody plan wherein the minor child(ren) resides with both parties equally. The best interest of the minor child(ren) is the criteria for an award of custody.
When reviewing the “best interest” of the minor child(ren) the Court must review the following:
The age of the minor child(ren);
- Which parent is likely to encourage frequent and continuing contact with the other parent;
- Any history of child or spouse abuse by the party seeking custody;
- The history and nature of each party’s involvement with the minor
child(ren);
- The parenting skills of the respective parties;
- The preference of the minor child(ren) if they are of sufficient age and maturity to render a sound opinion.
The Court is restrained from making a decision as to custody based on:
- Religion;
- The sex of the parent;
- The sexual preference of the parent;
- The financial status of the parent; or
- Whether the parent is a “stay-at home” parent or working parent.
SUPPORT AND MAINTENANCE:
Child support:
Both parents have a legal duty to provide financial support for their child(ren). The court may order either or both parents to make regular payments to cover a child's living and medical expenses. This periodic payment is called child support.
Child support is determined using guidelines established by California law. Child support guidelines are based on each parent's monthly income and the amount of time the child is cared for by each parent.
Basis of child support:
For the purpose of determining child support, a court will consider income from all sources, whether or not it is reported or taxed under federal law. The income can be in the form of money, property, and/or services and includes:
- Wages from a job
- Tips
- Commissions
- Bonuses
- Self-employment income
- Unemployment benefits
- Disability compensation
- Income from workers' compensation
- Interest income
- Dividends
- Rental income
- Social Security or pension income
- Any payments or credits due or becoming due, regardless of the source, including lottery and prize winnings.
A court will deduct certain payments from each parent's gross monthly income to determine the net disposable income. Payments that may be deducted include taxes, mandatory union dues, mandatory retirement contributions, health insurance premiums, child or spousal support actually being paid, and costs of raising children from another relationship. The computer program authorized by state law calculates the net disposable income of each parent, and the percent of time each parent spends with the child(ren) to set the child support amount.
Alimony/Spousal Support:
Spousal support is payment for support of an ex-spouse (or a spouse while a divorce is pending) ordered by the court. More commonly called alimony, spousal support is the term used in California. A party can ask for spousal or partner support to be paid while the case is pending and the parties are working towards resolution. This is called a "temporary spousal support order" or a "temporary partner support order." Many counties have formulas for calculating the amount of a temporary spousal or partner support order.
Temporary Spousal Support:
Temporary spousal support is ordered from one party for purposes of maintaining the standard of living as established during the marriage. The Court will frequently use the support calculator for purposes of determining a support amount.
Permanent Spousal Support:
The judge will not use a formula to figure out how much spousal or partner support to order at the end of your case (called the "final judgment").
When the judge makes his or her final order, the judge must consider the factors in California Family Code section 4320.
These factors are:
- The length of the marriage or domestic partnership;
- The skill level of the parties;
- What each person pays or can pay (including earnings and earning capacity);
- The assets and debts of the parties;
- Whether the spouse or domestic partner seeking support assisted the other in obtaining an education, training, career, or professional license;
- Whether there was domestic violence in the marriage or domestic partnership;
- Whether the spouse, or domestic partner, seeking support was affected by unemployment, or by taking care of the children or home;
- The tax impact of spousal support; and
- The age and health of the parties.
Judges are given broad discretion in awarding spousal support. The trend in many states is against ongoing spousal support orders. Specifically, in California, the goal is that the supported party shall be self-supporting within a reasonable period of time. To the extent that the supported spouse fails to work toward this goal, it can be used against him or her at a later date by a request that support be lower or ceased. The exception is in the case of a marriage of long duration, or more than ten (10) years.
COMMUNITY PROPERTY DEBTS
Most of my clients are shocked to learn that almost all debts incurred during the marriage, with very few exceptions, are community debts and therefore must be divided equally between the parties. It is not necessary for both husband and wife to have agreed regarding the expenditure, nor is it even necessary for each spouse to know about the expenditure. So long as the expenditures are for community purposes they are community debts and will be divided equally. As an example, husband may charge expensive sporting equipment without wife's knowledge, and wife may charge expensive clothing, but these charges will be considered community debts and must be divided equally. The only exceptions are charges in anticipation of separation; for example, charging an entire new wardrobe one week before filing for dissolution; or charges not for community purpose, such as sexy underwear for a lover; or student loans, which are assigned to the person receiving the education.
If, after the date of separation, you make payments on certain community debts from your income or the support the court awards you, you will receive CREDIT for making those payments. If there is a community debt of $1,000.00, one half should be paid by each spouse. If one spouse pays more than one half of the debt, he or she will receive credit at time of trial or settlement.
Therefore, we suggest you keep a file folder or a large manilla envelope for each major debt that you have. Into the folder please place a statement showing the balance owing on the account at time of separation, the monthly statements sent each month thereafter, as well as your canceled checks showing proof of payment. We will ask you to come into the office before trial or settlement so that we can go over the payments and determine which entitle you to credit.
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