Q&A: Children out of Wedlock - Friday, December 11 2009

• One-third of the children born' in the United States are born out of wedlock. • Three-fourths of children born to teenagers are born out of wedlock. • The law creates rights and duties for parents who have a child born out of wedlock. Q: What significance is there in placing the father's name on the birth certificate? A: If it is without the man's consent, it is of no significance. If it is with his consent it is some evidence of paternity, but does not establish paternity. The law states that the name of the father should not be entered without his consent.   Q:Where the parents are in agreement, is there a simplified procedure for establishing paternity? A: Yes. This can be accomplished by signing a voluntary acknowledgment of parentage and having it witnessed. The statement must also contain the social security numbers of the parents. This voluntary acknowledgment of paternity can be used as a basis for seeking a child support order without further legal proceedings to establish paternity. This acknowledgment does not establish an obligation for child support. Child support can only be established by a court order or administrative order by the California Department of Child Support Services (DCSS).   Q: Must a child born out of wedlock be given the father's last name to receive benefits a child would be entitled to, such as Social Security, upon the death of the biological father? A: No, but paternity must be established in court proceedings, or by a paternity acknowledgment.   Q: May a father bring court proceedings for custody of the child? A: Yes. In law there is no gender bias in favor of the mother. The child's custody is determined on what is in the best interest of the child. If the father shows no, or little, interest in the pregnancy or the delivery, does not contribute to the pregnancy and birth expenses, does not contribute to the support of the child, and does not attempt to visit the child; he will have virtually no chance of gaining custody.   Q: Is a father of a child born Out of wedlock entitled to visitation? A: Yes. He may obtain a court order for visitation.   Q: How much visitation will the father of a nonmarital child receive? A: The same as the father of a marital child, which is usually alternating weekends, a "dinner date" every two weeks, alternating holidays and at least two weeks of vacation time.   Q: How is paternity proved? A: The usual method is by DNA testing. These test results can pinpoint if a man is a child's father with better than a 99 percent likelihood. Q: How much child support will the court order? A: In California child support is calculated by a computer program that processes financial information about the parents to determine child support.  There are 3 main factors the program considers:  Income available for support, the number of children, and how much time the children spend in the care of each parent.  While gross income numbers go into the calculation, the program wants to base support on net income so tax information such as tax filing status, number of exemptions, tax deductions like mortgage interest and property tax are considered in the calculation.  The program also considers the cost of health insurance, madatory retirement contributions and union dues.  If a party is paying child support for children of a different relationship that is also considered before the number is calculated.  The typical program is called Dissomaster.   There are others, Supportax, and The Department of Child Support Services has its own calculator on its website, https://www.cse.ca.gov/ChildSupport/cse/guidelineCalculator

Cohabitation - Friday, November 6 2009

Facts and statistics are emerging about cohabitation. Cohabitation in recent decades has emerged as an important emotional and economic institution, both as a predecessor to, and often as a substitute for marriage. This writing takes up some of those facts and figures.   ·        50% if women aged 15 to 44 had cohabitated at some point.  1   ·        Among those currently cohabiting, the vast majority expected their cohabitation to lead to marriage.  2   ·        Most cohabitations do not end in marriage, but most marriages are preceded by cohabitation. In the early 2000s, 59% had cohabitated with their future spouse before the marriage.  2   ·        Cohabitation with an intended spouse is even more than common among those who have previously divorced, with 75% of those remarrying in the early 2000s having cohabited before the marriage.  2   ·        USA couples who cohabited prior to the marriage historically have been more likely to divorce than those who did not cohabit.  2   ·        I have seen no studies confirming it, but from what I have observed it seems that cohabitation is in part related to the fact that people are marring at a later age.   ·        Speaking of a later age, related to cohabitation, cohabitation by senior citizens may be economically driven. When a retired man and a retired woman each receive social security benefits, if the marry, total social security benefits will drop. It make economic sense for some of these couples to live together, but not to marry.   1.   2002 National Survey of Family Growth. 2.   Marriage and Divorce: Changes and their Driving Force, by Betsey Stevenson and Justin Wolfers.

What Your Spouse May Say - Friday, November 6 2009

“Let’s use one lawyer. It will be cheaper.” Meaning:  you will think we are represented by one lawyer, but actually the lawyer is my lawyer and will give me the advantage whenever he can.     “You have hired the most expensive lawyer in San Diego County. Fire him before he eats up all my assets.” Meaning:  This lawyer is reputed to be tough. Get rid of him and hire a patsy.   “I cannot afford to give you child support and everything else you want. I’m going to have to go for the kids.” Meaning:  He probably stands a snowball’s chance in hell of obtaining custody, but that does not stop him for suing for the custody of the kids. He is using custody of the kids as leverage so you will lower your financial demands. The fact is he can no more afford a contested custody trial than you can.   “I am going to drag your boyfriend/girlfriend into the case.” This is one of the realities of a divorce. If you are involved with someone else, that person may become involved in the divorce case. “Fault” like being involved with someone else, does not, as a matter of law, have any impact on the financial settlement and is not relevant in regard to custody of children unless the extracurricular activity had a negative impact on the children. The reality is the extramarital affair is often attempted to be used as leverage in divorce settlements.   “This divorce is going to hurt the kids.” This is true, divorces do hurt children. Probably the leading authority on the effect of divorce on children is Judith S. Wallerstein. She has written that divorce impacts on children even long after they are adults. If the parents can “stay together for the sake of the children” and play it so that children are not aware of the lack of affection, this is better for the children. It is, however, a rare couple who can pull this off. You must decide whether you and the children would be better off with a divorce. you have a duty to your children, but you also have a duty to yourself to have a life. you must weigh the pros and cons.   “I am going to drag this case our forever. By the time you get your share of the property you will be collecting social security.” This is not true. Most dicorce cases are settled within six months from the time they are started. Rarely, in about 5 percent of the cases, there are significant contested issues that have to be tried: Child custody, complex property issues or maintenance issues, and it may take two years to take the case to trial. IF there is an appeal, it may take perhaps another year.   “This case will bankrupt both of us.” This is a possibility. You might end up liquidating your assets or borrowing against them and going into debt on account of a bitterly fought divorce. It has been said, and it is true, that a bad settlement is better than a good trial.

Beware Of The Relocated Spouse - Thursday, August 20 2009

With the uncertain economy many people are moving out of California.  In the divorce world this is significant when children are involved.  We are hearing from more and more clients that one parent proposes leaving the state, with the children, to relocate closer to family and look for a job.  The other parent might move at the same time or stay behind to continue to work an existing job while the relocated parent looks for work.  In both situations we have seen the following:  the stay behind parent decides not to move or one parent decides they do not want to live closer to family after all.  In these cases child custody and visitation issues are complicated if the children havce been relocated to the new state (or county) for more than 6 months.  In that instance, jurisdiction over the children my rest with a court in their new state and the stay behind/moving back parent is faced with litigating custody and visitation issues in the other state.  Worst case scenario, the moving parent received a unopposed move away based on the intitial agreement of the parents.  6 months is not a long period of time and the stay behind/returning parent needs to be prepared to file the appropriate action in court should the relocated parent try to stay away with the children.

Q & A on the Removal of Children from California - Thursday, August 27 2009

Questions and Answers on the Removal of Children from California   Q.  If, by court order, I have sole custody of he children, do I need a court order to move with the children out of Illinois?   A.  Yes.  Sole custody does not give you sole authority to make decisions about your children. You must still obtain a court order to remove the children.   Q.  If I have joint custody can I block removal of the children from California?   A.   No.  Not on the basis of having joint custody.  Joint Custody does not give you veto power.   Q.  Is a court order always required in order to permanently remove children from the State of California?   A.  Yes, unless the original marital settlement agreement (incorporated into the divorce judgment) gave you permission to remove the children in the future.   Q.  What is the basis of the court allowing children to be permanently removed from California?   A.  The best interest of the children.  The California Supreme Court in the LaMusga case articulated specific factors the court should consider in a move away case:  (1) the children’s interest in stability and continuity in the custodial arrangement; (2) the distance of the move; (3) the age of the children; (3) the children’s relationship with both parents; (4) the relationship between the parents including, but not limited to, their ability to communicate and cooperate effectively and their willingness to put the interests of the children above their individual interests; (5) the wishes of the children if they are mature enough for such an inquiry to be appropriate; (6) the reasons for the proposed move; (7) and the extent to which the parents currently are sharing custody."   Q.  I remarried and my new (husband or wife) has a significant career opportunity which requires a move to another state.  Will the court allow me to take the children out of state?   A.  Yes, if you build a good case.  The new career/better economic opportunity move as a basis for wanting to move the children out of state is a typical reason for a request/motion for removal.  Courts have held this is a good faith reason to want to move.  However, the court must consider all of the LaMusga factors before they grant or deny the move away request.   Q.  If the children are removed from California, what sort of visitation can I expect?   A.  The factors from the LaMusga case include:  (1) “the children’s interest in stability and continuity in the custodial arrangement”; (3) “the children’s relationship with both parents”; and, (7) “the extent to which the parents are currently sharing custody.”  Thus, the custodial parent should offer liberal visitation, or at least a schedule that keeps time with the other parent as close to the same as possible.  What happens when there is a move is that instead of frequent visitation (for example alternating weekends), the noncustodial parent will receive longer blocks of visitation.  If I am representing the visiting parent I will count eh number of days of visitation the visiting parent has per year and attempt to obtain the same number of days, but in long stretches.  This ideal, however, can seldom be achieved because there simply is not enough non-school time to allow it.  What is typical is having the children on holidays when it is a three day weekend, a substantial part of Thanksgiving, Christmas and spring breaks and a substantial part of the summer.   Q.  What can I do to convince the court there should be a move?   A.  (1) There should be a good economic reason, that is, to show that the children’s economic condition will improve by the move.  (2) You should gather evidence (often available on the Internet) of the quality of education in the new community.  Also, if the children are involved in extracurricular activities in California, the type of such activities which will be available to them in the new community.   Q.  Does the child’s preference in regard’s to removal count.   A.  Just as in  custody cases, the court should consider the wishes of the child, providing the child has a sufficient mental capacity to make an informed and intelligent choice and the choice is consistent with the child’s best interests.   Q.  Who pays for transporting the children for visitation?   A.  There is not rule.  Where, however, the move gives the custodial parent a substantial economic advantage, an argument can be made that the custodial parent should bear the cost of transporting the children for visitation.   Q.  Do these rules regarding removal of children apply to non-marital children where the other parent has visitation?   A.  Yes.  The same rules apply to the move away request for non-marital children as apply to the child of divorced parents. If you are facing any of these issues you should call me at 858-793-7700 to schedule a consultation.

International Law Regarding Divorces - Thursday, January 28 2010

Q      Why a Q & A on International divorce law? A       I receive a lot of questions about International divorce law.  I think this is the product of San Diego’s location being situated so close to the Mexican border. I also believe people read a lot about foreign divorces in the newspaper and these articles generate many questions.   Q      Are the grounds for divorce in other countries different than they are in California? A       Yes. Below are illustrations in regard to some of our neighbors in some countries where Americans frequently visit. Mexico: There are 20 grounds for divorce, all which are fault based, except for mutual consent, and the separation of the spouses for more than two years.   Canada: The grounds for divorce are “breakdown of the marriage” which is established by proof of adultery, cruelty, or being separated for one year.   England and Wales:   The sole grounds for divorce is the irretrievable breakdown of the marriage, which requires proof of adultery, or that the parties have lived apart for a continuous period of at least two years, etc.   Germany: The only grounds recognized are the “breakdown of the marriage.” This requires proof that the spouses have lived apart for one year and both spouses petition for the divorce, the defendant consents to the divorce, or that the spouses have lived apart for three years. Q      Are there practical, non-judicial steps to prevent international child abduction? A       Yes. v       Take and hid the child’s passport, but many foreign consulates in the United States will issue a new passport, or other travel authorization, to nationals of their own country if the nation claims that the passport has been lost or stolen.   v       The law in many countries bars the issuance of a passport to a child without written consent of both parents; however, such laws may be evaded by forging the other parent’s name, by bribery, etc.   v       Submit a written request to the U.S. Department Office of Children’s issues to enter the child’s name with the Children’s Passport Issuance Alert Program.

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Email: jimratzer@ratzerfamilylaw.com

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