San Diego Divorce Attorneys BlogNo, Sherri Shepherd’s case is not in being heard in California, but that does not make the facts of her legal battle any less intriguing to us California divorce lawyers. It has certainly left me hypothecating as to what the outcome of her widely-publicized parentage and support battle might be under California law. Although a Pennsylvania trial court ruled last year that Shepherd was legally responsible for a child born to a surrogate after her divorce from ex-husband Lamar Sally, the legal battle may not be over for the parties. The case has hit the media again since news recently broke that Shepherd is appealing the trial court’s decision.
Articles Posted in Child Support
What is a Wage Assignment?
One of the first questions I am asked about child or spousal support it, “How will I be paid my support?” My answer is always the same “depends.” In fact, “It depends” is my answer to most legal questions. In the case of support payments, it really depends on what you and the other party want to do. You can either choose direct payment or a wage assignment.
Direct Payment
Direct payment is just as the name implies. The support payor pays the support payee directly. Continue reading
California Guideline Child Support Calculator
Under federal law, every single state is required to have a formula that determines the correct amount of child support that should be awarded. California is no exception. The California Guideline Child Support Calculator is based on California Child Support Guidelines and can be used to estimate the amount of child support that may be ordered in your case. It is important to remember the Court Commissioner or Family Law Judge has the final authority to determine the amount of a child support order. This calculator provides only an estimate and is not a guarantee of the amount of child support that will be ordered. Other factors may affect the amount of child support awarded.
Enforcing a Support Order
There are two types of support in Family Law cases in California. There is child support, which refers to support intended to assist in providing for the needs of the children involved in the case. Then there is spousal support, sometimes called “Alimony” (The two terms are interchangeable) which is intended to provide spousal maintenance after a divorce proceeding is initiated. During the course of a case, the court may make an order for either, or both, child and spousal support. After the order has been made, the court expects the amounts to be paid.
They Paid What?! How Is My California Child Support Obligation Calculated?
At some point in your life, you have probably done a double-take upon hearing news of a crazy-sounding child support payment of a celebrity or famous athlete. The media loves to report on these sometimes exorbitant amounts, for the shock value given to amounts of money that many Americans may never even dream of seeing. Here are some reported examples:
• Halle Berry, paying $20,000 per month to ex-boyfriend for 1 daughter • Eddie Murphy, paying $51,000 per month for 1 daughter • Sean “Diddy” Combs, paying $20,000 per month to ex-girlfriend for 1 son and $21,782 per month for now adult son to another ex-girlfriend
• Charlie Sheen, paying $50,000 per month to ex-wife Denise Richards for 2 daughters, and $55,000 to a different ex-wife for 2 sons
• Allen Iverson, owing $8,000 per month to ex-wife • Terrell Owens, owing $120,000 per month in child support and mortgages to 4 different mothers (whether he actually pays is a completely different story…)
The End of the Nuclear Family and the Rise of the Single Parent
The iconic image of the American Family has changed according the Pew Research Center. Today, less than half (46%) of U.S. children under the age of 18 reside with two married heterosexual parents in their first marriage. In fact, 34% of U.S. children are being raised by a single parent.
Whether you are participating in a conscious uncoupling like Gwyneth Paltrow and Chris Martinor you are a single parent raising a child, the challenges and joys of raising children on your own are enormous and the issues involving custody disputes can seem complex. Are the California Family Law courts keeping pace with our new culture?
The answer is yes. California is at the forefront of ensuring that no matter what your personal situation, you are dealt with fairly and respectfully. The law does not distinguish between previously married and unmarried parents in custody cases. That makes the Family Court a vital resource in protecting your rights as a single parent, whether you are seeking a custody order you require child support. If you are not married to the other parent, a Judgment of Paternity is an important first step. However, navigating the Family Court system in California can be daunting, especially when you are trying to put your side of the story before the court. Bickford Blado & Botros are experienced in representing clients in their paternity and custody disputes in the Family Court and we are experienced in dealing with the complexity of the modern family dynamic.
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Step-Parent Adoptions
Blended families, a family consisting of a couple and their children from their current and all previous relationships, are a regular part of American life. That is why the following statistics should not be surprising:
• 48% of all first marriage will eventually end in divorce;
• 79% of women and 89% of men will marry again within 5 years;
• 43% of marriages today in America involve a 2nd or 3rd (re)marriage;
• 68% of re-marriages involve children from prior marriages;
• 2,100 new blended families are formed every day in America;
• Over 65% of Americans are now a step-parent, a step-child, a step-sibling, a step-grandparent or touched directly by a step-family scenario
In many cases, the children will grow very close to a step-parent and in cases where one of the biological parent’s is absent from that child’s life, the step-parent may consider adopting their step-child.
In a step-parent adoption, one biological parent retains full parental rights and the other biological parent’s rights are terminated. The parental rights are then passed to the adopting step-parent; meaning the biological parent no longer has any rights or responsibilities owed to the child and the step-parent has all the rights and responsibilities originally held by the biological parent.It is important to give due consideration to a decision to adopt a step-child, because step-parent adoption is a permanent transfer of parental rights and responsibilities. Once a step-parent adoption is finalized, it cannot be revoked or nullified, except in very rare situations. More importantly, the adoption is not terminated if the step-parent and biological parent divorce.
A step-parent must meet certain criteria in order to proceed with a step-parent adoption, specifically:
1. The biological parent and the step-parent must be legally married or in a registered domestic partnership;
2. The step-parent must be at least 18 years old and at least 10 years older than the step-child they are seeking to adopt – though in certain circumstances the 10 year rule may be waived;
3. The step-parent’s spouse must consent to the adoption;
4. The other biological parent (i.e. the biological parent whose parental right will be terminated by the adoption), must consent to the adoption – this requirement can be overcome, as I will discuss below, in certain circumstances; and 5. If the step-child is 12 years old or older, the step-child must consent to the adoption.
Family Code Section 8604(b) describes how you can overcome the other parent’s lack of consent to the adoption of the child by a step-parent. Specifically, “If one birth parent has been awarded custody by judicial order, or has custody by agreement of both parents, and the other birth parent for a period of one year willfully fails to communicate with, and to pay for, the care, support, and education of the child when able to do so, then the birth parent having sole custody may consent to the adoption, but only after the birth parent not having custody has been served with a copy of a citation in the manner provided by law for the service of a summons in a civil action that requires the birth parent not having custody to appear at the time and place set for the appearance in court…”
Family Code Section 8604(c), states:
“Failure of a birth parent to pay for the care, support, and education of the child for the period of one year or failure of a birth parent to communicate with the child for the period of one year is prima facie evidence that the failure was willful and without lawful excuse. If the birth parent or parents have made only token efforts to support or communicate with the child, the court may disregard those token efforts.”
If you are considering a step-parent adoption, or if you were served with papers notifying you that your child’s step-parent has filed an Adoption Request, it is important that you discuss your rights with an experienced family law attorney.
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“Infinity”: What do you do when you Ex has nothing nice to say?
Divorce can be a stressful time and while Bickford Blado & Botros endeavors to ensure our cases are resolved amicably, sometimes emotions can run wild and your ex-spouse can lash out at you. For Example Mariah Carey’s new single “Infinity” appears to bad mouth her ex Nick Cannon. While most of us do not have the national exposure of Mariah Carey, we all have broad networks of friends and colleges that we often share with a spouse. So what can you do when your ex-spouse starts badmouthing you to others, especially to your children?
Your ex-spouse disparaging you to others is a tricky situation that can affect your family law case, but it all depends on who is within earshot. You or your ex-spouse venting privately to friends and colleagues can be a normal aspect of any divorce case; we are all only human after all and it is usually benign. Even if these statements get back to you, there is little that can be done unless you feel threatened or unduly harassed and require a domestic violence restraining order. The disparaging language can become much more serious when your ex-spouse continually disparages you to your child directly or by using a third party and it can become a very serious issue in child custody disputes. Another phrase for this is type of behavior is parental alienation; when one parent tries through various means to hinder the relationship between a parent and child.
So how do you know if your ex spouse’s behavior rises to the level requiring you to take action? As a parent you’ll notice if your child’s behavior has changed towards you, beyond the normal stresses of his or her parent’s splitting up. You may notice your child acting out toward you and/or blaming you for the divorce or custody proceeding. They may be withdrawing and not wanting to spend time with you.While your ex-spouse may be acting purposefully, they also may be having trouble dealing with their own emotions regarding the divorce. There are several common ways one parent can disparage the other. First, the parent can speak badly about the other parent directly to their child. This can include saying that the other parent is the cause of the divorce, that the other parent does not love the child, that the other parent chose a new romantic partner over the child, or other inappropriate comments. Second, one parent can utilize third parties, such as siblings or grandparents, to speak ill of the other parent. Third, involving the child in a family law proceeding, this can include either allowing the child access to court paperwork, or distorting the family law proceedings to make the other parent look like the bad actor.
You may wonder why the court frowns on this behavior? There are multiple reasons but the main one is that it can affect the child’s relationship with their parents. During any custody dispute, the court is always going to try to make decisions based upon what the judge determines is your child’s best interest. One fact they will consider is the ability for your child to have meaningful and continual contact with both parents and whether both parents have the ability to co-parent with one another. In the case of Mariah Carey and Nick Cannon, the entire world is privy to her thoughts on Nick, but the most important people in the eyes of the court would likely be their children, Monroe and Moroccan Scott Cannon. The court does not approve of one parent making negative comments to the children about the other parent. If your ex-spouse’s behavior is hurting your relationship with your child the court has multiple ways it can intervene to try and help from ordering reunification therapy, to ordering the appointment of minor’s counsel.
If you feel that your relationship with your child is being damaged by your ex-spouse, Bickford Blado & Botros are experienced in dealing with complex, emotionally charged child custody cases and has the tools you need to ensure you are able to maintain a good relationship with your children.
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Discovery in Family Law Cases
Once initial papers are filed to get the divorce process started (the petition and response) the next step is typically to gather all pertinent information regarding each spouse’s financial and personal information. Although both parties are required to prepare and serve declarations of disclosure, which outline each party’s income, expenses, assets and debts, discovery is usually a necessary tactic to gather additional information.
Discovery is vital to the divorce process because it allows both sides to examine exchanged information and documentation before determining how to properly divide up assets and debts. Revelations made during the discovery process are also helpful in calculating the appropriate amount of child support and spousal support.
Discovery can occur informally, formally or both. Informal discovery is when the parties and their attorneys simply request specific information or documentation in an email or letter to the opposing party/opposing counsel. Informal discovery indicates that the parties are willing to work together, but simply need more information to move forward in the case.
Formal discovery, on the other hand, typically indicates that the party is more litigious because formal discovery requires that opposing party and opposing counsel follow rigid procedures and timelines in responding to the discovery requests.
Discovery, whether formal or informal, may include some or all of the following: Interrogatories, Requests for Admission, Document Production and depositions.
- Interrogatories are written questions from one spouse to the other that must be answered under penalty of perjury. The interrogatories may relate to any issue that is relevant to the divorce proceeding, such as employment information, details regarding financial accounts and information regarding the party’s health or living situation.
- Requests for Admission, although not often utilized in family law, can be helpful when you need a party to admit or deny specific facts regarding divorce related issues.
- Demand for Production of Documents are particularly helpful when the so called “out-spouse” does not have access to financial statements, documentation relating to a spouse’s business, tax documents, etc. It also is a way to get important information that a spouse may be trying to hide.
- Depositions are when an attorney asks the opposing party (or expert, witness, etc.) a handful of questions during a face-to-face interview. Responses are required to made under oath. A court reporter will draft a transcript of everything that is said during the deposition. Depositions are helpful to get important facts out of the other party and also to see how that person will appear and conduct themselves at trial.
Permissive Dismissal for Failure to Prosecute
Anyone with access to cable television or the internet probably knows more about the Kardashian family than they know about their own family. The Kardashian clan has broadcast their ups, their downs, weddings, births, break ups and in Khloe Kardashian’s case, her divorce from former NBA star, Lamar Odom. More than 16 months ago, Khloe Kardashian filed for divorce from Lamar Odom amidst allegations of infidelity and drug abuse by the former Los Angeles Laker. And while Khloe appears to have moved on, given her highly publicized romance with French Montana, her divorce case is still pending in Los Angeles Superior Court; at least for now that is.
According to reports, if Khloe does not take further action to pursue her case, the Court will consider dismissing the case all together. Pursuant to California Code of Civil Procedure Section 583.410, “The court may in its discretion dismiss an action for delay in prosecution pursuant to this article on its own motion or on motion of the defendant if to do so appears to the court appropriate under the circumstances of the case.”
Failure to prosecute in the family law arena would consist of one of three time frames. They are:
1. Failure to serve the summons and complaint within 2 years after the action is commenced against the Respondent [Code of Civil Procedure § 583.420(a)(1)];
2. Failure to bring the case to trial within 3 years after the action is commenced against the Respondent [Code of Civil Procedure § 583.420(a)(2)]; and 3. Failure to bring to retrial within 2 years after a mistrial, order granting retrial or reversal on appeal [Code of Civil Procedure § 583.420(a)(3)].
The exception to this rule is when there is a valid support order or custody orders pending. In that case, the court cannot dismiss a divorce case for failure to prosecute. One way to avoid having your case dismissed under Section 583.410 is to bifurcate the issue of marital status and ask the court to terminate your marriage. This means that you are divorced from the other party, but the court must still resolve the financial issues in your case. In this case, the court will not dismiss your case under Section 583.410If your case is dismissed under Section 583.410, it will be as if you never filed for divorce in the first place. The six-month waiting period will start over again; you will have to file a new Petition for Dissolution, including paying the filing fee; and will have to perform all of the mandatory disclosure required by statute.
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