May 24, 2010

Child Support, Custody & Visitation

Posted in Child Support, Custody, Visitation tagged , , at 11:08 am by demetriagraves

Divorce is never easy. Seeing a relationship unravel before your own eyes can take its toll in many ways. Often this process can be hardest on the younger members of a family. When going through a divorce it’s important to remember that your kids need your support and assurances. No matter how bad it seems, it’s important to put aside your own difficulties and focus on helping your kids manage this transition as smoothly as possible. So that they come out stronger and relatively unscathed. In this article I’ll be focusing on discussing Child Support in financial and legal terms instead of emotional terms. I’ll also cover the topics of custody and visitation because they are also related to how child support is calculated.
Custody and visitation issues top the list of concerns for couples involved in a divorce. For many years to come the now ex-spouses must continue to plan their lives together and negotiate the dozens of choices that come up when raising children. Judges will go to great lengths to get the two parties to make their own decisions and solve their own conflicts.
When two parents separate, it is usually determined that a child will primarily reside with one of the separated parents. In those situations, the parent keeping the child will incur most of the child-related expenses: food, accommodation, clothing, groceries, utilities, transportation, school, lessons etc.
To reflect that inequity, the common law has established that each parent has a legal obligation to support their child, financially speaking. No law has made any rules regarding the fulfilling the emotional needs of the child.
It is typical practice to establish one parent as having primary custody. That parent is referred to as the ‘custodial parent’. The other parent is referred to as the non-custodial parent. Regardless of the schedule, in most cases the parents are required to make important child care and upbringing decisions together.
A strictly legal definition of child support is “Periodic money payments payable by a non-custodial parent, to the custodial parent, for the care of his or her minor child.” For those who are unfamiliar with law speak, custodial parent is the one keeping the child while non custodial parent will be the one making the periodic payments.
For the parent who does not have the child living with them, this means equally or fairly contributing to their child’s expenses and needs. This is done by requiring that parent to make monthly or other periodic payment (rarely a lump sum or annual payment) to the other parent as a contribution towards the expenses of raising a child.
Initially, costs were split fifty-fifty between the parents. But over time complex systems have been established to determine the payments that need to be made keeping in mind the income of both parents and the number of children.
There are unique rules to deal with children who are no longer minors, and have special or extraordinary needs or expenses, and when a child or the children spend close to equal time with, and maintain residence in the homes of, both parents.
If the parties cannot decide upon a support amount and payment frequency, child support is set by the court and will be calculated based on the California State Guidelines and on any data that the parties may present. The State Guidelines are designed to be fair and equitable to the parents and more importantly, be in the best interest of the children.
California law allows either party to apply for a change in child support payments. The law requires that before a support change will be considered by the court, a material change in the status of the parties or the children must have occurred. This can include a change in the financial status of either party (for better or worse) or a change in the needs of the children such as education costs or an illness.
In California, any couple who cannot agree on custody or a visitation schedule is obligated to participate in and complete a counseling program prior to their disagreement being taken up by the court.
Judges that are forced to make custody and visitation decisions will base their rulings on evidence provided by the spouses and by professionals, such as psychologists, family service representatives or doctors. The judge will also take into account any history of child abuse, drug or alcohol addictions and any protective orders that may have been issued to help determine what is in the best interest of the child. However, the courts in California tend to grant joint custody, where the parents share in the day to day care and in making decisions regarding upbringing.
Based on the above factors, most spouses come to an agreement regarding custody and visitation schedule for their children rather than depend upon a judge to decree what is best. This is an area where professional legal assistance is a must. As a family law attorney I offer an initial free consultation, where you can get you questions answered.
Child support as an issue is so important that the right to child support and the responsibilities of parents to provide such support has been internationally recognized. In fact, during the 1992 UN Convention on the Rights of the Child, a binding convention was signed by every member of the UN declaring that “the upbringing and development of children and a standard of living adequate for the children’s development is a common responsibility of both parents and a fundamental human right for children”. The convention further asserted that the primary responsibility to provide such for the children rests with their parents.

May 6, 2010

Charlie Sheen Surrenders Custody of Kids

Posted in Celebrity Divorce, Custody, Visitation tagged , , at 10:08 pm by demetriagraves

It’s recently been reported that Charlie Sheen has surrendered legal custody of the two kids he had with Denise Richards. Apparently Charlie and Denise signed a written agreement in which Denise now has full legal custody of 6-year-old Sam and 4-year-old Lola.  Up to now Charlie and Denise had joint legal custody.

There are reports that Denise wanted full legal custody given Charlie’s current marital turmoil with Brooke Mueller – it looks like they are getting ready to divorce. Plus Charlie has a history of sobriety issues and criminal problems and it appears that Charlie didn’t put up a fight and was willing to give up his joint legal custody. This is legal custody not physical custody, Denise was awarded primary physical custody as part of their divorce. It’s assumed that Charlie will still have visitation rights, even though he’ll no longer have joint legal custody.

It’s believed that the agreement was signed two weeks ago but the parties didn’t want to file it with the court just yet. Denise having full legal custody means that she can make medical, schooling and other important decisions without getting Charlie’s sign-off.  She can also leave the country with the kids without Charlie’s permission.

Under their divorce agreement, Denise has primary physical custody and Charlie has visitation rights.  Charlie has been paying Denise $50,000 a month in child support since their divorce and that amount has remained static.

If Charlie ends up divorcing his current wife Brooke Mueller he could be up for more support payments. According to their pre-nup, she’ll get $55,000 a month in child support plus add-ons, like medical and schooling expenses and that could drive the monthly support upwards of $125,000. Mueller won’t get a cut of his Two-and-a-Half Men earnings, Denise Richards already has dibs on that.

April 23, 2010

If Sandra Bullock Divorces Jesse James, What happens with the Kids?

Posted in Celebrity Divorce, Visitation tagged , at 6:42 pm by demetriagraves

The troubles in the marriage of Sandra Bullock and Jesse James have been headline news for the past few weeks. So far at least five women have claimed affairs with James. Bullock has moved out, and is reportedly ready to file for divorce.

It seems there are parallels here to the Tiger Woods scandal: A claim of sex addiction by the cheating husband, a stint in sex rehab, and more and more women emerging, over time, to claim affairs. Though, there is an important difference, too.

Elin Nordegren will very likely get primary custody of her children in the event of divorce – for she is their legal mother, has been their primary caretaker, and would likely stack up better than Tiger in any assessment of relative parental fitness.

In contrast, although Sandra Bullock has played a major caretaking role with respect to James’ children – especially his six-year-old daughter Sunny, from his second marriage – Bullock probably will not receive legal custody, for reasons I will explain, though she may be granted visitation.

Generally speaking, Jesse will attempt to argue that Sandra does not have any constitutionally-protected  rights, and therefore she will not owe any child support nor should she be allowed to visit with the children.  Sandra did not adopt the children but it is very clear and understood that she has played a BIG part in the daughter’s life, but at the end of the day she is not her “mother”

Under these basic principles, Sunny has two legal parents: her biological mother Janine Lindemulder, a porn star who was recently released from jail after serving six months for tax evasion, and Jesse James, who was married to Janine when Sunny was born.

James and Lindemulder divorced shortly after Sunny’s birth in 2004. In 2005, Jesse married Sandra Bullock. Bullock has, by all accounts, been an integral part of Sunny’s life since infancy. Sunny has lived in their home and, since December 2009, James has had sole legal custody of Sunny. In October 2009, after Lindemulder was released from jail, she sought to regain custody of Sunny. But James successfully fought off her attempt; instead, the court awarded full custody to James last December, giving Lindemulder only limited weekly daytime visitation rights.

As Sunny’s stepmother, Bullock is neither a legal parent, nor a co-custodian. However, her presence in the home and her relationship with Sunny were highly relevant to the court’s decision to allow James to retain full custody. And, as long as she remains married to James, and he retains custody of Sunny, she will have the chance to continue effectively (but not legally) parenting Sunny, just as she had been doing and rightfully so, as it would NOT benefit Sunny to abruptly remove Sandra from her life.  Hopefully it doesn’t come to this, but Sandra could petition the court for “visitation” as a 3rd party, which could also have ramifications for her.

But what if she files for divorce? As a stepparent relationship is created by marriage – it terminates when the marriage is dissolved. Just like when a mother-in-law becomes a “legal stranger” to the person her son or daughter has divorced. Generally, a stepmother suffers the same fate with respect to a stepchild, when she divorces the child’s legal parent: After the divorce, she is generally a legal stranger to the child. Though, fortunately in California – that is not quite the case.

It is virtually impossible for a non-parent to successfully obtain legal custody of a child who has at least one fit parent. Visitation is sometimes possible – but may be hard to come by.

Fortunately for Bullock, California law also provides for visitation by a stepparent when he or she divorces a child’s legal parent. Under California Family Code §3101, a court may grant “reasonable visitation” to a stepparent during a divorce or annulment proceeding to dissolve the marriage that created the stepparent-stepchild relationship.

This visitation, however, may not be ordered if it would “conflict with a right of custody or visitation of a birth parent who is not a party to the proceeding.” This provision must also be applied in any particular case in a constitutional manner. It would not be enough for a court to determine, merely, that visitation time with Bullock would be in Sunny’s best interests.

Under this statute, Bullock could request visitation with Sunny even if she divorces James. But court-ordered visitation time for Bullock would have to come out of James’ time with Sunny, rather than out of her mother’s visitation time.

Given the apparently close relationship between Bullock and Sunny; the court’s seeming prior acknowledgement that Bullock is a good influence on Sunny; and the presence of a variety of destabilizing aspects in Sunny’s life, it is not far-fetched to predict that Bullock will be able to get some visitation with Sunny even if she divorces James. This same set of facts may, ironically, operate to the detriment of James, as he fends off yet another custody challenge by Lindemulder. James’ behavior and Bullock’s departure could be enough to give her a leg up in this round.

Broader relationships between stepparents and stepchildren after a divorce tend to be the product of mutual agreement, rather than court order. So ironically, attempting civil or even friendly relationships with James and Lindemulder might be Bullock’s best chance to maximize her visitation with Sunny.

The bottom line is that Sandra Bullock has an uphill battle if she plans to divorce James and maintain a parental-type relationship with Sunny. While court-ordered visitation is possible, Bullock may not legally be able to regain the kind of relationship she has had with Sunny without Lindemulder’s and/or James’ consent.

February 19, 2010

‘Virtual Visitation’ In Our Brave New World

Posted in Visitation tagged at 12:05 am by demetriagraves

Welcome to the twenty first century and ‘Virtual Visitation’. This concept has been long coming for divorced and or separated parents who live far apart. Working out visitation can be frustrating, not to mention expensive, when parents are hundreds or thousands of miles apart.

Many non-custodial parents can now look forward to taking advantage of virtual visitation to stay in touch with their children who are no longer residing close to them. Of course virtual visitation can’t take the place of traditional in-person visits, but it seems like the world just got flatter and parents who are living a long way away from their children can still keep in touch virtually.

Recently there have been cases of judges utilizing new laws which allow, ‘web visitation’ by way of video conferencing .This virtual visitation supplements the non-custodial parent’s “in-person” visitation rights. This allows those parents who don’t have primary custody to have the next best thing to an in-person visit when it’s not feasible to have regular in-person visits. Now that video chatting is common place and accessible in most homes, there’s no reason why these virtual visits won’t become more widespread.

New Virtual Visitation Laws are now being established across the country to facilitate the critical parent-child relationship when parents are separated. This will allow many military, incarcerated or other long distant non-custodial parents the legal right to utilize technologies such as email, telephone, internet and video conferencing to maintain contact with their children.

Most clients that I have spoken to about this idea are very excited at this prospect and many consider it to be a no-brainer. It certainly helps to lessen the blow that many non-custodial parents feel when their particular circumstances mean that they can no longer be geographically close to their children. So here’s to this type of law becoming universally adopted and more widespread across the country.