California Family Law Blog

San Mateo Family Law Attorney Talks About Public Policy and Settlements

When a couple begins or is going through a divorce, there is one piece of consistent advice that is given. Settle. The couple will hear their attorneys, the judge, and their friends who all tell them to settle as quickly and as soon as possible. To a lawyer and a court, settling is coming to an agreement over issues. The agreement may be a hard fought compromise over a hotly contested point or a tradeoff where each side gets what they really wanted. As a policy, a Court is loathe to interfere with a settlement agreement because the best people to make a decision about their lives are themselves. The Court is ill equipped to consider all factors from a couple’s marriage and life situation to make an extremely tailored agreement that the couple themselves could. For example, the couple may agree to keep the family residence for the next 5 years in hopes of recovering their lost equity which includes a detailed payment schedule for the house. The Court would have just sold the house at a loss to end the fighting.

However, there is one area that the Court’s will not or may not allow the parties to settle. This is in the area of the children. Specifically, the termination of parental rights for child support. A couple, depending on the circumstances, may decide that one parent is going to walk away from the child(ren) of the union. This parties have agreed that it would be best if one parent assume all parenting duties and the other parent surrender all say, control and rights to the child. The usual exchange is that the caring parent will waive any and all child support claims against the other parent. While this is a “settlement” between parties, the Court’s will not or may not approve it because it is against “public policy.”

Public Policy simply means the State’s interest or the Public’s interest. There is no one person who is the State or who is the Public. There is contacting the State or the Public for a discussion. The State or the Public’s interest means that the certain agreement cannot be allowed because the State or the Public do not want people to make such decisions. In this case, the State or Public’s interest is that a creation of a parent-child relationship for both emotional and financial support which includes the parental support of that child trumps any private ordering of parenthood after the birth of the child. In other words, both parties are stuck being that child’s parents. It is against what the State or Public interest to have a child without a parent simply to remove a financial liability. The State or Public’s interest is so overwhelming that parties cannot negotiate away their obligations by contract. Therefore, the parent’s ability to settle on this issue is extremely limited.

If you have a question regarding custody settlements please contact Sagaria Law at 1-800-941-6730 for a free consultation or visit us at www.sagarialaw.com. Our team of Family Law Attorneys can assist you with all aspects of your case. We have attorneys in San Mateo, Monterey, Fremont, Salinas, Sacramento and San Jose.

San Jose Divorce Lawyer Discusses Custody and Visitation

Recently, a child named Isabella’s parents have been in the news, as the parents challenge each other for custody and visitation of Isabella. What’s so special about Isabella? Her parents are two women – she has two moms. Isabella’s moms had her while they were living in Vermont, as a couple united under Vermont’s civil unions law. They split with Isabella was only 17 months old, and one mom (Mom #1) moved with her to Virginia and renounced her homosexuality. Mom #2 stayed in Vermont, and now Isabella is at the center of a dispute of the rights of homosexual parents, the influence of homosexuality, and the issue of same sex marriage.

Virginia eventually ruled in favor of visitation rights for Mom #2, but that is not the focus of this post. Laws vary widely state to state on these issues, so today’s post discusses a relatively recent California decision on one of the primary issues present in that case: does a woman, who is not biologically the mother of a child, but who agreed to raise and support a child born of her lesbian partner, have any parental rights and obligation? This landmark case in California is known as the Elisa B case, and it essentially concludes that where a woman has supported her partner in artificial insemination, received the child (or children) into her home, and held them out as her own, that under the Uniform Parentage Act, she has the obligation to support them (and that obligation comes with rights too).

California’s domestic partnership law also states that the rights and obligations of domestic partners as to the children of either of them, shall be the same as those of spouses. So, if Isabella’s moms were in California, the outcome would be the same – Mom #2 has visitation rights even though she is not the biological mother.

Mom #1’s behavior in disobeying a court order has left her in contempt of court in Virginia. The outcome in California would likely be the same as well. Disobeying a court order, such as an order for visitation, is grounds for contempt, and contempt can be punished with a fine or with jail time in California.

If you are involved in a dispute over custody and visitation of a minor child, whether it’s a result of a dissolution of marriage or domestic partnership, or you never married, you should seek the advice and assistance of an attorney. Here at Sagaria Law, we offer a free consultation on all aspects of family law cases. Your consultation can be over the phone, or in person at any one of our six Northern California locations- Sacramento, Redwood City, Fremont, San Jose, Monterey and Salinas. Call us today at 1-800-941-6730 to schedule your appointment to speak to one of our experienced family law attorneys.

Sacramento Divorce Lawyer Discusses the Relevance of Sexual Conduct in Custody Disputes

Have you ever wondered if your sexual preferences, either for partners or behaviors, might impact your custody dispute? Lots of people have former partners who threaten to use their sexual past against them, not realizing its rarely relevant to a custody dispute.

California Law specifically states that a party’s sexual conduct is not relevant in awarding custody unless there is compelling evidence that it has a significant bearing on the child’s welfare. Furthermore, until the enactment of domestic partnership legislation, homosexuality could not be determinative in and of itself in awarding custody, but it could be one factor. However, contemporary courts would probably conclude it now has no relevance at all because of changes in how same sex couples are treated in the court.

There are two special areas of concern relating to sexual conduct in custody disputes: parties required to register as a sex offender as a result of conduct toward a minor, and rape. A person who is required to register as a sex offender as a result of conduct toward a victim who is a minor may not be awarded physical or legal custody of, or unsupervised visitation with, any child unless the court finds that there is no significant risk to the child and states its reasons in writing or on the record. A person who is convicted of rape may not be awarded custody of, or visitation with, a child conceived of that rape.

The bottom line is that all custody awards are made according to the best interests of the child, and the child’s health, safety and welfare are the primary concern in deciding what is in the child’s best interests. Courts have a lot of latitude in making these kinds of determinations, but generally, parties who have unorthodox sexual preferences are not likely to have them impact the custodial arrangement unless there is a showing of harm to the child. In any custody dispute, its always better to come to an agreement about where the children will live and when they will spend time with the other parent, rather than leaving it to a court to decide.

If you are involved in a contentious (or not contentious) custody dispute, or any other family law matter, be it support, divorce, property or paternity, you may benefit from having an attorney involved. The attorneys at Sagaria Law can assist you with all aspects of your family law case. We offer a free consultation, thirty minutes in length, either via phone or in person at any one of our six Northern California locations: Sacramento, Fremont, Redwood City, San Jose, Monterey and Salinas. Call today 1-800-941-6730 or visit www.sagarialaw.com to schedule your free family law consultation.

San Jose Divorce Attorney Talks About Subleasing

As many soon to be divorced parties know, a divorce can take a long time. It is common to find a divorce taking almost a year or longer before all the issues are resolved. One of the main issues will always be the family residence. The more equity in the house, the more the parties will fight over it. In the current real estate market, even selling the house may take 6 months or longer. Therefore, it is common for one spouse to continue to live in the house while the divorce or sale of house is pending. What happens when the spouse living in the house decides to sublease one of the rooms to generate some extra cash for bills?

A definitive family law case stated that the rent is considered “income” for the purposes of child support. Specifically, that means the rent collected must be added to the income of the receiving parent for when calculating child support. Therefore, the spouse who has the house, may end up paying more child support or receiving less if there is the sublease.

The irony of this situation is that a sublease is hardly considered a stable source of income. The sublease may only be in effect for a few months while the house is pending sale but the support order remains in effect until modified. Furthermore, the rental income gives a false impression that the party has a higher ability of income than they really have which may be held against them in future support modifications. Finally, the receiving spouse begins to believe that they are entitled to more support than what is normally possible which will cause resentment if and when the sublease is over and support levels drop.

If you have a question regarding support please contact Sagaria Law at 1-800-941-6730 for a free consultation or visit us at www.sagarialaw.com. Our team of Family Lawyers can assist you with all aspects of your case. We have attorneys in San Mateo, Monterey, Fremont, Salinas, Sacramento and San Jose.

Fremont Divorce Attorney Discusses Christmas, Hanukah and Eid – Holidays and Children in Family Law Cases

As the holidays approach, many parents face the dilemma of how to split the holidays with their children. After all, every parent wishes to spend Christmas, Thanksgiving and other important holidays with their children – these holidays revolve around families. Unfortunately, kids are not easily split in half, and nor is it possible in most cases to spend the holidays with both parents at the same time, as happens with intact families. But, parents can be creative and positive about how to share the holidays.

For example, many divorced parents alternate the holidays, so if one parent has Thanksgiving, the next holiday goes to the other parent. Or, some parents will divide a holiday in half, so a child might be two Thanksgiving dinners, one early and one later in the day on Thanksgiving. Still other parents choose to celebrate the holiday on a different day, so a child might celebrate Thanksgiving on Thursday and again on Friday or over the weekend. Likewise, with Christmas, many families will agree that the children should spend Christmas Eve with one parent and Christmas Day with the other, and alternate which parent gets which in different years.

Parents of children who have divorced, separated or not living together parents need to do everything they can to make the holidays a positive and happy time for the children. Children should not feel pulled between parents, but instead they should look forward to having time with both parents, however that time may be structured. Many children look forward to having two of each holiday, even if one is celebrated somewhat belatedly. Christmas presents are just as exciting on December 26 or 27 as they are on December 25. Other holidays last over multiple days, such as Hanukah, so children get to enjoy time with both parents over that holiday.

Finally, since school is typically out for most of the time around these holidays, parents should take advantage of that time whenever possible to ensure their children enjoy the full holiday experience. Perhaps a noncustodial parent can spend some extra time with the kids during those school breaks, or the kids can see both parents more since class is not in session. Most importantly, parents should try not to fight and put their children in the middle at any point, but especially during the holidays. This is supposed to be a happy time of year, and children with parents who don’t live together may feel stressed that their family isn’t like their friends. Parents have to try to alleviate those feelings, and make the differences positive wherever possible.

If you have questions about sharing custody of your children during the holidays, or arranging a mutually beneficial visitation schedule for them, consulting a family law attorney can help. Here at Sagaria Law, we deal with all types of custody disputes, and we strive to help parents find solutions that work for them and their children. We offer a free consultation, either in person or over the phone, through any of our six Northern California locations: Monterey, Salinas, San Jose, Fremont, Redwood City and Sacramento. Please call 1-800-941-6730 or visit www.sagarialaw.com for your free consultation.