CALIFORNIA DIVORCE SETTLEMENTS
Resolution of a family law or divorce case is recognized by family lawyers, mediators and judges as the best way to serve a client’s interest. The good news is ultimately, the overwhelming majority of family law cases settle, however the journey to get there can be a rocky, harsh and an expensive road.
To settle a family law case, its essential that all parties are operating from the same expectation of approaching the case with a desire to compromise. Compromise in its best sense is when both parties leave the agreement feeling they got something and gave up something. If the effort to agree is marred by a lopsided expectation of what is fair, the likelihood of ending up in front of the judge is high.
The best approach for the attorney representing the client is to be tuned into the psychological forces that are driving the case as early as possible. For example, if the other spouse is bitter and resentful about the breakup, this feeling may run all other aspects of the case causing the angry spouse to try and “get even” in the division of the property, parenting of the kids or other issues affecting the case. The experienced family law attorney will talk about those potential psychological issues with the prospective client in the initial office visit.
Each family law case is a unique combination of issues and personalities and will for those reasons take its own course to resolution. Some cases can be resolved faster if the parties are both emotionally prepared and well organized about their property and how they want to approach the division of property and other issues. Other cases can take months and even years where there are significant property issues and complicated fact patterns in tracing separate and community property.
A good attorney will not only know the law applicable to the case but act as guide on how to engage with the other party and the attorney. Direct and civil communication and proactive problem solving to create an environment that is stable and cultivating trust will go a long way toward creating a fertile ground for settlement and provide a broader perspective for forward progress on the case.
As I enter my 31st year as a Family Law practitioner, I find that settlement is more an art than a science. Settlement releases the parties to move on with their lives, helps stabilize the parenting relationship and allows the parties to let go of the problems of the marriage.
ARLENE KOCK of the Law Offices of Arlene D. Kock, A Professional Law Corporation, has her office located in San Ramon ,CA. With over 31 years experience, her practice covers all aspects of Family Law. She regularly appears in family law departments throughout Northern California. For further information, please call her office 925-743-8666.
Saturday, December 12, 2009
California Child Custody: The Basics
California Child Custody Laws
Arlene D. Kock, Esq.
Who Gets Child Custody in California?
Like most states, the standard for child custody determinations in California is found in the Family Law Code and is designed to establish the overall best interest of the child with an emphasis on assuring the “health, safety, and welfare” of the child and “frequent and continuing contact” with both parents absent child abuse, domestic violence, or where the contact would not be in the best interest of the child as provided in the California Family Code section 3011 (See California Family Code Section 3011, 3020, 3040, 3080. Further, according to California family code section 3040, child custody should be granted in an order of preference and according to the best interest of the child.
DOMESTIC VIOLENCE AND CUSTODY
If the child has been exposed directly or indirectly to domestic violence, then the court must design a custody plan to allow safe contact with the abusive parent. In some instances based upon the kind of abuse, the court will prohibit contact between the child and the abusive parent.
Many reasons may exist to place the child in a new custody environment or maintain the child’s current custody plan. The courts and judges are trying to steer away from the language used in the past designating one parent as a visiting parent and the other parent as the custodial parent. The way the judges and specialists in the field currently model custody definitions is to refer to both parents as having “parenting time”. This approach assists the parents in understanding that it isn’t the quantity of time that is most important for the child’s well being but the quality of the time.
WHO CAN ASK FOR CUSTODY OF A CHILD
A common challenge for the court is to decide who will get custody of the child. Child custody may be petitioned by not only biological parents but by grandparents, stepparents, or any person who believes they can provide suitable care and guidance to the child.
According to California family code section 3040 child custody should be granted in an order of preference and according to the best interest of the child.
The court looks first to grant custody to both parents jointly or to either parent before looking to grant custody to other persons. California however does not currently establish a preference or a presumption for or against joint custody arrangements. Instead, if the parents are unable to come to an agreement on child custody and visitation it allows the California family court or California judge to make the parenting arrangement decision on a case-by-case basis according to what it believes reflects the overall best interest of the child and the specific circumstances affecting that child’s family system.
If neither parent is granted custody, then the court may look towards the person’s home in which the child has been living and the stability of that environment and then to any person deemed by the court to be able to provide appropriate care for the child. In short, the court will typically look to grant child custody first to the parents according the best interest of the child and if they are deemed unfit the court will then look to grant child custody to other persons according to the best interest of the child.
WHICH PARENT WILL INSURE THE CHILD HAS VISITATION
California Family Code Section 3040 states: (a) Custody should be granted in the following order of preference according to the best interest of the child as provided in Sections 3011 and 3020: (1) To both parents jointly pursuant to Chapter 4 (commencing with Section 3080) or to either parent. In making an order granting custody to either parent, the court shall consider, among other factors, which parent is more likely to allow the child frequent and continuing contact with the noncustodial parent, consistent with Section 3011 and 3020, and shall not prefer a parent as custodian because of that parent's sex. The court, in its discretion, may require the parents to submit to the court a plan for the implementation of the custody order. (2) If to neither parent, to the person or persons in whose home the child has been living in a wholesome and stable environment. (3) To any other person or persons deemed by the court to be suitable and able to provide adequate and proper care and guidance for the child. (b) This section establishes neither a preference nor a presumption for or against joint legal custody, joint physical custody, or sole custody, but allows the court and the family the widest discretion to choose a parenting plan that is in the best interest of the child.
As noted in the statute quoted above, the court shall consider, among other factors, which parent is more likely to allow the child frequent and continuing contact with the noncustodial parent.
If the judge finds that the parent with the current greater time share is sabotaging the parenting relationship of the other parent, the court may make an order to change custody to the other non-offending parent if the judge determines that this parent would be more responsible in insuring that the child has regular custodial visits.
Arlene D. Kock, Esq.
Who Gets Child Custody in California?
Like most states, the standard for child custody determinations in California is found in the Family Law Code and is designed to establish the overall best interest of the child with an emphasis on assuring the “health, safety, and welfare” of the child and “frequent and continuing contact” with both parents absent child abuse, domestic violence, or where the contact would not be in the best interest of the child as provided in the California Family Code section 3011 (See California Family Code Section 3011, 3020, 3040, 3080. Further, according to California family code section 3040, child custody should be granted in an order of preference and according to the best interest of the child.
DOMESTIC VIOLENCE AND CUSTODY
If the child has been exposed directly or indirectly to domestic violence, then the court must design a custody plan to allow safe contact with the abusive parent. In some instances based upon the kind of abuse, the court will prohibit contact between the child and the abusive parent.
Many reasons may exist to place the child in a new custody environment or maintain the child’s current custody plan. The courts and judges are trying to steer away from the language used in the past designating one parent as a visiting parent and the other parent as the custodial parent. The way the judges and specialists in the field currently model custody definitions is to refer to both parents as having “parenting time”. This approach assists the parents in understanding that it isn’t the quantity of time that is most important for the child’s well being but the quality of the time.
WHO CAN ASK FOR CUSTODY OF A CHILD
A common challenge for the court is to decide who will get custody of the child. Child custody may be petitioned by not only biological parents but by grandparents, stepparents, or any person who believes they can provide suitable care and guidance to the child.
According to California family code section 3040 child custody should be granted in an order of preference and according to the best interest of the child.
The court looks first to grant custody to both parents jointly or to either parent before looking to grant custody to other persons. California however does not currently establish a preference or a presumption for or against joint custody arrangements. Instead, if the parents are unable to come to an agreement on child custody and visitation it allows the California family court or California judge to make the parenting arrangement decision on a case-by-case basis according to what it believes reflects the overall best interest of the child and the specific circumstances affecting that child’s family system.
If neither parent is granted custody, then the court may look towards the person’s home in which the child has been living and the stability of that environment and then to any person deemed by the court to be able to provide appropriate care for the child. In short, the court will typically look to grant child custody first to the parents according the best interest of the child and if they are deemed unfit the court will then look to grant child custody to other persons according to the best interest of the child.
WHICH PARENT WILL INSURE THE CHILD HAS VISITATION
California Family Code Section 3040 states: (a) Custody should be granted in the following order of preference according to the best interest of the child as provided in Sections 3011 and 3020: (1) To both parents jointly pursuant to Chapter 4 (commencing with Section 3080) or to either parent. In making an order granting custody to either parent, the court shall consider, among other factors, which parent is more likely to allow the child frequent and continuing contact with the noncustodial parent, consistent with Section 3011 and 3020, and shall not prefer a parent as custodian because of that parent's sex. The court, in its discretion, may require the parents to submit to the court a plan for the implementation of the custody order. (2) If to neither parent, to the person or persons in whose home the child has been living in a wholesome and stable environment. (3) To any other person or persons deemed by the court to be suitable and able to provide adequate and proper care and guidance for the child. (b) This section establishes neither a preference nor a presumption for or against joint legal custody, joint physical custody, or sole custody, but allows the court and the family the widest discretion to choose a parenting plan that is in the best interest of the child.
As noted in the statute quoted above, the court shall consider, among other factors, which parent is more likely to allow the child frequent and continuing contact with the noncustodial parent.
If the judge finds that the parent with the current greater time share is sabotaging the parenting relationship of the other parent, the court may make an order to change custody to the other non-offending parent if the judge determines that this parent would be more responsible in insuring that the child has regular custodial visits.
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