Child Input in Custody and Visitation Cases

Getting the Child’s Input in Custody and Visitation Cases

A divorce impacts the entire family, especially child custody and visitation rights. The divorce process is so very adult.  Parents and their attorneys, all well dressed in suits, meet in wood paneled courtrooms with all the formalities that come with appearing before a judge.  Even a suit isn’t formal enough for a judge, he or she needs to wear a robe. Should the child’s opinion play a role in such a process? How would a child fit into this proceeding?

Under California law, child who is at least 14 years old must be allowed to directly address the court regarding custody and visitation, unless judge finds that it would not be in child’s best interests (if so. the reasons must be stated on the record). Children younger than 14 aren’t prevented from addressing the Court on these issues, if that’s deemed appropriate and consistent with the best interest of the child.  If barred from testifying, children must be given another way to voice their opinion, such as through a mediator or a psychologist.

There are pro’s and cons to getting input from a child.  This can put the child in a very difficult spot, especially if the parents not only are getting divorced, but one or both plan on moving away. If the child is mature, articulate and not too stressed out, given the serious impact on the child’s life, hearing from the child is a good idea.  If the parents are manipulative and the child is more interested in living with the parent who enforces the least rules, this can be a bad idea.

This is a very sensitive area where we tread with much care so we, and our clients, do not appear to ask a child to take sides in what can be a very emotional dispute. If the child’s opinion is for our client, all the better, but the judge is the ultimate decision maker on how the child voices his or her opinion, how much weight that opinion should be given and on the custody and visitation issues in general.

If you have any questions about visitation or custody issues, contact our office.

 

 

Move Away With Children / Relocation

Move Away With Children / Relocation

Carlsbad California and Move Away and Relocation Child Custody Attorneys

A common issue facing California parents and courts is the question of a parent’s right to move away, even out of the State of California and take the children with them. The issue has gone back and forth over the past decade between the courts and the State Legislature. Interpretations of recent rulings might lead some parents to believe if they have custody they have the right to move away. This is usually not the case. The court will want to hear the underlying issues, and will have an interest in what is in the best interests of the child or children involved. A moving truck operated by Piedmont Moving Sys... Today, many divorces in California are filed by the parties themselves and the terms of their child custody and parenting time agreements may or may not address this sensitive issue. This is one of the many reasons to consult with an attorney prior to filing your own paperwork in a child custody or divorce case in California. If you believe your former spouse is considering relocation and will be taking your child or children with them it is important to act immediately to protect your parental interests and the needs of the children.

Contact Experienced Carlsbad and North County San Diego Child Custody and Relocation Attorneys

At the Law Offices of Fischer and Van Thiel, LLP we work to protect our client’s interests and parenting rights. If you are considering relocating with your child it is important to ensure that you have the legal right to do so. If you are the parent remaining in California and you want to preserve and protect your ability to see and raise your children, there is a lot that can be done to protect your rights as a parent and relationship with your children. We are sensitive to the issues on both sides of this controversial subject, and work to help our clients accomplish their parenting goals. Contact us today at 760-453-0732 or contact us to schedule a confidential and free consultation with an experienced Carlsbad area child custody lawyer.

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How to Value Your Home In a Divorce

How to Value Your Home In a Divorce

If you are going through a divorce, one of the things you must do is determine the value of all of your marital property so that it can be divided up fairly between you and your spouse. When it comes to the family home, establishing a fair and accurate value can pose a significant challenge.

The only way to be 100% accurate in valuing a home is to actually sell the property. However, people often have a deep emotional attachment to their home and one spouse may want to keep it. In that case, it will be necessary to figure out another way to appropriately put a value on the home.

Work Together to Determine the Fair Market Value

Sometimes it is possible to work with your spouse to come to an agreement regarding the fair market value of the home. One way to do this is by examining recently sold comparable properties. (Comparable properties are those with approximately the same square footage with the same number of bedrooms and bathrooms in the same area as your home.) To find out what comparable properties have sold for in your neighborhood, you can go to www.zillow.com. Enter your zip code and filter the search results to show only recently sold homes.

Get an Appraisal

While some parties like to do their own research to determine a value for the family home, in most cases, you’ll want to get an opinion from a neutral third party, such as an appraiser. (Parties often find that it is difficult to come to an agreement with their spouse when discussing a home’s worth.) An appraiser will take measurements, look into the attic and basement, check the plumbing and electricity, as well as do a visual inspection of the siding, roof, and general condition of the home to write up an official appraisal.

However, keep in mind that appraisals can be subjective and it is common for different appraisers to come up with quite different assessments. Divorcing spouses may decide they want to get independent appraisals and, if there is a disparity in the appraised values, meet somewhere in the middle.

If you are thinking about filing for divorce and have any questions about how your assets may be divided, contact the Oceanside divorce attorneys of Fischer & Van Thiel today at 760-722-7646.

The best and worst states for married couples

Discover the best and worst states for married couples

Getting married? You might want to avoid Alaska.

Alabama, Arkansas, Kentucky, and Oklahoma aren’t good options either.

Not if your hope is to stay married, anyway. That’s because these states have the nation’s highest divorce rates, according to a study recently released by FindtheData.org.

Alaska ranked first, with 14 out of every 1,000 couples getting divorced each year. Alabama, Arkansas, Kentucky and Oklahoma tied for second, with 13 divorces per 1,000 couples.

The best states for married couples? New Jersey ranked last on the list, with only six divorces per 1,000 couples. Massachusetts, Wisconsin, New York and Minnesota rounded out the bottom, tying for second for the lowest divorce rate, with seven per 1,000 couples

The report, which was based on data compiled from the American Bar Association, Centers for Disease Control and 2011 Census Bureau figures, doesn’t offer an opinion on why the rates are as high (or low) as they are in each state. But based on some of the other figures the study reported – including ease of filing and minimum processing time (the shortest amount of time it takes for the divorce to be finalized) – each state’s divorce laws may play a role.

Perhaps not surprisingly, Alaska was the only state on the list that scored a perfect score of 100 for ease of filing. It also had the second shortest minimum processing time, with the possibility of a divorce being finalized in as little as 30 days.

New Jersey, on the other hand, was the polar opposite of Alaska – with a score of 23, it ranked second to last for ease of filing. And it tied for fifth in longest minimum processing time, taking a minimum of 360 days from the date of filing for the divorce to be finalized.

To find out where your state ranked, visit http://divorce-laws.findthebest.com.

Tips to Prepare for Your Divorce Mediation Session

San Diego Family Law Attorney Offers Tips to Prepare for Your Divorce Mediation Session

Divorce mediation is often the most beneficial and least confrontational way to determine the specifics of your divorce. During a mediation, you and your soon-to-be ex-spouse will meet with a neutral third party known as the mediator to work through unresolved issues so you can work out the details of your divorce in an amicable manner that is palatable to both parties.divorce mediation

You will likely discuss critical details such as child custody, parenting time, child support, property distribution, retirement support and even taxes. While the mediation process is less combative than going to court, it can still be stressful. If you are going through this process, please make sure you are prepared for the session and have a definite game plan.

  • Gather and organize your financial documents. It’s a good idea to list your assets including your bank account, retirement funds, real estate, vehicles, annuities, stock, mutual funds and any other asset that is of significant value. Also, list your debts including credit card balances, student loans, home equity loan, rent, mortgage, etc.
  • Check with your mediator beforehand regarding if you need original documents at the meeting.
  • It’s also important to prepare yourself mentally and emotionally. Remember that this is a negotiation. Emotions may run high and that could affect your ability to think clearly. Refrain from using hurtful words and stay calm. Remember, the goal is to negotiate, not to argue.
  • Plan your budget. Think about how much money you need and what you can afford. Base your potential budget on expenses that you expect to have and bring that budget with you to the mediation. When calculating your budget, consider how much you will have to pay for housing, transportation, health insurance and other monthly expenses.

Last but not least, learn about your rights. Seek out legal guidance from an experienced California family law attorney and learn about all aspects of your case. Having a clear understanding of what to expect will help you get what you need from the mediation session.

How to Value Your Home In a Divorce

How to Value Your Home In a Divorce

If you are going through a divorce, one of the things you must do is determine the value of all of your marital property so that it can be divided up fairly between you and your spouse. When it comes to the family home, establishing a fair and accurate value can pose a significant challenge.

The only way to be 100% accurate in valuing a home is to actually sell the property. However, people often have a deep emotional attachment to their home and one spouse may want to keep it. In that case, it will be necessary to figure out another way to appropriately put a value on the home.

Work Together to Determine the Fair Market Value

Sometimes it is possible to work with your spouse to come to an agreement regarding the fair market value of the home. One way to do this is by examining recently sold comparable properties. (Comparable properties are those with approximately the same square footage with the same number of bedrooms and bathrooms in the same area as your home.) To find out what comparable properties have sold for in your neighborhood, you can go to www.zillow.com. Enter your zip code and filter the search results to show only recently sold homes.

Get an Appraisal

While some parties like to do their own research to determine a value for the family home, in most cases, you’ll want to get an opinion from a neutral third party, such as an appraiser. (Parties often find that it is difficult to come to an agreement with their spouse when discussing a home’s worth.) An appraiser will take measurements, look into the attic and basement, check the plumbing and electricity, as well as do a visual inspection of the siding, roof, and general condition of the home to write up an official appraisal.

However, keep in mind that appraisals can be subjective and it is common for different appraisers to come up with quite different assessments. Divorcing spouses may decide they want to get independent appraisals and, if there is a disparity in the appraised values, meet somewhere in the middle.

If you are thinking about filing for divorce and have any questions about how your assets may be divided, contact the Oceanside divorce attorneys of Fischer & Van Thiel today at 760-722-7646.

Paternity Rights of Unmarried Parent

Paternity Rights of Unmarried Parent

California law provides no distinction between married and unmarried couples when it comes to issues of paternity and paternal rights. Despite a child’s emotional or actual relationship with a parent, it is the legal adoption and documentation of paternal rights that is crucial in legitimization. A child’s biological mother is automatically established as one of the child’s parents; however the father of the child is a more delicate issue. If a child is born to a set of married parents, the husband is usually presumed and assigned as the child’s father. However, when it comes to unmarried couples who have a child, paternity is not automatically established for the man. If a father wishes to establish paternity there are many options available. When both parents agree to establish paternity, it is recommended they sign a Declaration of Paternity, preferably at the hospital when the child is born. If one parent is not in agreement, a paternity action can be petitioned in court where DNA testing is usually used to establish whether or not paternity exists. Within two years of a child’s birth, blood testing can also be used to dispute paternity that is presumed to exist, and parental obligations can be forfeited. A California Family Law attorney can be incredibly resourceful when it comes to their vast knowledge of family law statutes, and ability to assess and advise the best way to approach establishing paternity. If you are someone you love would like to establish, dispute or forfeit their paternal rights, call the attorneys of Fischer & Van Thiel LLP at 760-722-7646 today and let us help represent your rights.

Prenuptial agreements: not romantic but necessary

Prenuptial agreements: not romantic but necessary

In the world of family law, few things create as much stress and apprehension as a prenuptial agreement. You may think: if this person loves me and wants to marry me, how could they be so offensive as to ask for a prenup? However offensive or worrying a prenuptial agreement may seem, it is probably in your best interest to have such an agreement before you get married. Few people going into marriage anticipating a divorce, but a premarital agreement can protect you and give you rights you otherwise would not have.

On the other hand, you want to be sure that you fully understand what is in the agreement and what the consequences will be if it is ever enforced. It is highly advisable for each of you to have your own attorney before signing the agreement. In some cases, an unrepresented party may be able to avoid enforcement of the agreement if they didn’t knowingly understand what they were signing. In other cases, individual representation is required. California requires both parties to be represented if they want to, for example, limit spousal support or alimony in the event of a divorce. Needless to say, you would never want to sign a prenup on a cocktail napkin if, on a whim, you decide to get married in Las Vegas and have had a few too many drinks. It is very likely that such an agreement would not hold up in court.

Another good reason to make sure you know what you are signing and have fully considered the consequences is to avoid the other spouse crying foul because they felt pressured to sign the agreement. Two days before the wedding is probably not a good time to spring a prenuptial agreement on your fiancé. Having the conversation early and clearing up any disagreements will do a great deal to build trust and confidence in the agreement and more importantly, in the abiding strength of your relationship.

If you have been asked to sign a prenuptial agreement or would like to have a premarital agreement, it is in your best interest to speak with an experienced family attorney who can guide you through the potential pitfalls. The team at Fischer & Van Thiel can answer all of your questions and help you draft an airtight prenuptial or postnuptial agreement. Call our office today!

Domestic Violence is a Serious Issue

Domestic Violence is a Serious Issue

Domestic violence is a serious issue, and while infidelity and wrongdoing during a relationship isn’t necessary to initiate a divorce, charges of domestic violence can have a significant impact on spousal support awards.Blog Image

California’s status as a “no fault divorce” state means that no reason is necessary to file for divorce, relying on the general statement of “irreconcilable differences.” However, charges or even complaints of domestic violence, both physical and verbal, can have a massive effect on awards of both custody and support.

While it may seem obvious that acts of violence should be considered when determining custody or support, California Family Code 4320 states that documented evidence must be provided when determining a spousal support order. Those specifics being noted, any reluctance to share details of a relationship, even damaging ones, can result in a much more unfavorable response from judges when determining orders.

Every detail, even minor ones, can influence the outcome of support decisions. In a case in Riverside County, a husband was being verbally abused by his spouse and moved out of the shared residence. He returned to the residence while his spouse was away, took some of his own property, some community property and vandalized some of his spouse’s personal items.

His spouse claimed she now “lived in fear” and the action was considered a form of domestic violence and applied within California Family Code 4320. Despite her earnings being over seven times what the husband earned, due to this event, her support payments were nullified.

The important factor when initiating divorce proceedings is to be open with all information and maintain a clear line of communication with an attorney to ensure that any necessary details are shared, as even the tiniest remark can have a massive effect.

If you need the protection of a Domestic Violence Restraining Order or need to defend agaminst the accusations of a request for a Domestic Violence Restraining order, do not do it alone.  Call the experienced Carlsbad Domestic Violence Attorneys at Fischer & Van Thiel LLP (760) 722-7669.