Fair Cadora Blog
Posted By Kevin L. Cadora, Esq.
Nowhere else in family law is an issue more important than child custody and visitation. It does not matter how much money the parties have or how many properties or overseas timeshares a spouse owns; when it comes to children, no other issue can compare since custody deals with people, which can never be replaced, and money and property are always replaceable. The reason custody and visitation is such an important issue in family law is based upon two primary principals. First, when dealing with children, emotions run high so custody and visitation are extremely important to both the parties and the judge because the custody plan will impact the children as well as the parents. Second, custody of children has a direct correlation to the parents’ constitutionally protected property rights in the form of child support. The emotional and psychological impact of child custody litigation coupled with the financial impact of child support makes custody and visitation one of the most important issues in any family law proceeding. Before further discussing custody and visitation, however, it is important to differentiate between custody and visitation because the terms are NOT synonymous.
First, custody is divided into physical custody, which is defined as either sole to one parent or jointly to both parents and legal custody, which is a parent’s right and responsibility to make decisions regarding the children’s health, education and welfare. Custody litigation is often required when parents cannot agree on (1) where the children will live, (2) where the children will attend school or (3) non-emergency medical treatment for the children. Custody litigation is also prevalent when one parent seeks to relocate the children out of California. Custody is initially determined based upon the children’s best interest and if a parent wishes to modify a permanent custody order, the parent must also show a change in circumstances warranting a change in custody that would be in the children’s best interest.
Next, visitation is the time a non-custodial parent has with the children, which is also decided based upon the children’s best interest. Visitation can be unsupervised, supervised and even therapeutic depending on the needs of the children and the parents. The court also has the ability to order supervised exchanges of the children in the event there is enormous conflict between the parties. Regardless, the court must balance the parents’ rights to frequent and continuous contact with their children against what is in the children’s best interest.
Factors the court considers when ordering custody and visitation include but are not limited to (1) a parent’s habitual and continuous use of drugs/alcohol, (2) domestic violence perpetrated by a parent, (3) the special needs of the children, (4) the parent’s living conditions, (4) the distance between the parents and extended family, (5) the parent’s work schedules, (6) the children’s activities and (7) the children’s behavior and academic performance.
Finally, it is extremely important to remember that child support is based upon a parent’s time with the children. The more time a parent has with the children, the less their child support obligation will be to the other parent and vice versa. Granted, there are several other factors that go into the calculation of child support but the non-custodial parent’s timeshare or percentage with the children is critical to the calculation of child support.
Posted By Kevin L. Cadora, Esq.
The differences between getting a divorce and getting a legal separation may seem many but there is really only one difference between the two; in a divorce you are returned to single status after judgment whereas you maintain your married status after a judgment for legal separation is granted. All issues in a divorce such as custody, visitation, child support, spousal support division of community assets and debts and attorney’s fees are handled exactly the same in a legal separation. The only difference is the parties remain married after judgment. Notwithstanding, obtaining a judgment for legal separation could have long last financial ramifications that a party must discuss with an experienced family law attorney and accountant before filing. In that case, why file for legal separation if all issues are disposed of by the court? There are three possible reasons to file for legal separation versus a divorce.
First, the parties’ religious and/or cultural beliefs prohibit divorce and therefore the parties remain married in order to maintain the parties’ religious and/or cultural beliefs. Religious and/or culture reasons to file for legal separation are rare but do occur from time to time.
Second, a party may want a divorce but neither party has been a resident of California for at least six months prior to filing, which is a requirement in order to file for divorce in California. Therefore, one party files for legal separation and once the party has been in California for six months, the party amends their petition to dissolution of marriage. There may be many strategic reasons to keep a case in California such as a party is pregnant and wants California to decide custody, visitation and support when the other parent is in another state or California’s family laws are more in a party’s favor than another state. Filing for legal separation and then filing for divorce after a party has been a resident of California for six months is purely strategic and should be discussed with an experienced family law attorney before pursuing.
Finally, a party may file for legal separation because they have a permanent disability and they require the other party’s insurance in order to maintain the marital standard of living. The parties agree to remain married so the disabled spousal can continue coverage under their spouse’s policy, which could off-set the supporting spouse’s spousal support obligation to a much lower level depending on what the supported spouse’s premiums would have been had the parties divorced. Again, filing for legal separation to keep a spouse on an insurance plan should be discussed with an experienced family law attorney before pursuing.
Another important point about legal separation is that the responding party must agree and consent to the legal separation. If the responding party seeks a divorce when the petitioner has filed for legal separation or the petitioner’s changes their mind before the entry of judgment, the court will grant the request for a dissolution of marriage over the party’s objection since California is a no fault state and parties may divorce based upon irreconcilable differences, which basically means for any reason. Filing for legal separation MUST be discussed with an experienced family law attorney as well as an accountant because health insurance coverage may continue unless otherwise agreed by the parties and there are tax ramifications for filing taxes married filing separately is also an important issue when deciding how to proceed with your family law matter.