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365 Broadway, Suite 203. El Cajon, California
Telephone (619) 447-6780 - E-mail: Familylaw1@aol.com
To learn more about the following subjects,
click on the subject matter title you are interested in.
1.
Divorce - Contested vs. Un-Contested. 2.
Child Custody.
3.
Child Support. 4.
Spousal Support. 5.
Restraining Orders. 6.
Challenging Restraining Orders (TRO). 7.
Attorney Fees (who will pay)
8.
Contempt Actions - Enforcing
a court order. 9.
Paternity Action.
10.
Child Support
Enforcement .
(DCSS and the District Attorney office) 11.
Loss of Driver's
License. 12.
Custody
Evaluation
.
12.
Wage Assignment orders 13.
General common legal
terms. 14.
Legal terms used in a divorce proceeding.
Child Custody and Visitation
IF THE PARTIES CANNOT REACH AN AGREEMENT on visitation and child
custody matters, the court, not you, will determine each parent's rights and obligations
toward their children. The court will make decisions about your children if:
- you are going through a divorce (dissolution) and cannot agree on matters
affecting the children.
- you and the other parent were never married but one parent has asked the
court for a legal order establishing the rights and obligations of each parent.
- you are seeking a domestic violence restraining order and have children
with the person to be restrained.
Custody refers to the responsibility of caring for the children and planning
for their future. If you have children with another person, the end of that
relationship usually does not mean the end of your contact with that person.
Together you should try to agree on a plan that is best for your children. There
are many different types of custody:
- Joint custody means that both parents share physical and
legal custody.
- Sole physical custody means that a child will live with
and be under the supervision of one parent. In this type of arrangement it is
common for the other parent to have visitation.
- Joint physical custody is defined as each parent having
significant periods of physical custody with the child.
- Sole legal custody means that one parent shall have the
right and the responsibility to make the decisions relating to the health,
education and welfare of a child. In Joint legal custody,
both parents share these rights and responsibilities.
If you and the other parent cannot agree on a plan, the court will decide. The
official legal standard is always the child's "best interest". The problem
in many divorces or actions involving children is that there is not always a clear line
that one parent is better than the other. The policy
favored by the courts is that arrangement which allows for frequent and
continuing contact with both parents. Before the court makes these decisions,
parents must go through a process with Family Court Services called "mediation".
But if there is a need for immediate orders, the court could issue them prior to
mediation.
Mediation
Family Court Services is part of the court system and provides mediation,
counseling, and evaluation of families with custody and visitation disputes.
A person may be ordered to mediation or evaluation. If an Order to Show Cause action is
filed seeking some form of relief from the court for custody or visitation, the
court will order the parties to attend mediation through Family Court Services.
The mediator, for all practical purposes, wears two hats. The first is to
try to work our an agreement between the parents. If that fails, he or she
will then put on a different hat, one of an evaluator, who will then make a
recommendation to the court. It is important to know what you
say could affect your children's relationship with you. This
is when legal counsel is important. The Law Office of David A. Casey
can guide you in a positive way to get the best results.
Family Court Services
Family Court Services (FCS) provides mediation for divorcing
parents, or those involved in paternity case, who cannot agree on
a child custody or a visitation sharing plan.
Mediation is provided in a private
office with a court counselor. Please keep in mind, these
are NOT
counseling sessions! It is an information gathering process
through an interview with the intention of trying to get the parties to
come to an agreement regarding custody and visitation issues . The focus is on the children's best
interest. The mediation conference
allows both parents to try to work together toward a mutually acceptable
agreement regarding the well-being of the children.
It is important to know that you DO NOT HAVE to agree to anything at the
mediation or what may be recommended. In fact, if you don't agree to what the FCS counselor is recommending, then it is important that you say you
don't agree since it
is very difficult to change the agreement that you made if you "flip flop".
The court weighs heavily on the recommendation to the court on what is best
for your child(ren)). The mediation session will last
approximately 1 1/2 to 2 1/2 hours.
Mandatory
Mediation is Required When Custody & Visitation Issues are Before the Court
In any dissolution matter regarding child custody
and visitation when there is a dispute, it is mandatory that the
case be set for mediation prior to the court hearing. If an agreement is
reached, it is reported to the court (usually through the attorneys if
the parties have attorneys). If the parties reached an agreement,
the court hearing may be cancelled since the family made its own
decision thus there is no need for the hearing to proceed.
However, in most cases there are other issues such as child
support, and other financial issues that are NOT addressed in mediation
but need to be addressed in the court. If an agreement is
not reached, a
recommendation will be made by the court counselor and the court hearing
will proceed. You will get time to review the report prior
to the hearing. You could be granted additional time for a full
review based on the Local Rules of the Court. It is
important that you understand what the FCS recommendation is before the
hearing takes place.
I would like to stress to potential
clients that you should seek the advice of a competent attorney prior to filing an action for custody
and visitation issues. Keep in mind that the FCS counsel is not there to represent you
so the advice you get from
an attorney could be the difference of having custody or be limited
to a visitation schedule with less time with your children.
Voluntary, Self-Initiated Mediation
Any resident of San Diego County experiencing a child custody/visitation
dispute may apply for the courts mediation service prior to the filing
of any formal court action. This may be done with or without attorneys. Service fees
are based on a sliding scale for the self-initiated
mediation. Most of the time it is better to have a legal action before
the court when you are requesting child support since the court can make
an order retro-active to the date of filing.
CAN A FATHER GET CUSTODY OF THE CHILDREN?
The answer is YES. However, fathers still have to over come
more than the mother has. The laws indicated they
are equal, but in reality, fathers still have more of an uphill
battle than a
mother does. The law indicate that the court needs to
look at the best interests of the children, which they do, but there is
still a misconception that spending more time with the children makes
that person the primary parent. There has been cases where the
mother was with the child more, however, the Father was the one
who was more actively involved in parenting. What this means for the father is that they have to
show FACTS in what supports the best interest of the children being with him.
Fathers can get custody just because of mother
made one mistake such as a DUI or doing some act that was not proper.
What both parents need to remember is that the court does not know who
either parent is. Thus a major part of my job is to make sure that
proper
declarations are submitted to the court indicating the facts that the court can rely
upon to reach the correct decision when making custody and visitation
orders. The court relies upon these supportive declarations
from friends, family, teachers, counselors, evaluators and the
recommendation of the court mediator. However, many times,
the court will want more concrete input from a professional, and
may order a custody evaluation.
This is when your attorney will use
his/her expertise and experience to get the facts before the court.
What counts in court is EVIDENCE. In family law matters, the
court sees a lot of "he said - she said" making the issues more complex.
The court doesn't base it's decision on the party who pays their attorney the
most money, or where the attorney is located, or how eloquently the
attorney speaks, it comes down to WHAT is presented to the
court. In Family law matters, there is NO jury to convince.
There is only one judge who deciphers the facts of the case.
Thus, keeping good records and
maintaining pertinent information certainly increases your chances of
prevailing in court.
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Helping
Children With Divorce
Unless the children
are very young, all
divorces are usually a very unhappy experience for them.
Transitioning into two separate homes can be a difficult
and emotional time. In order to
help children cope with these family transitions, these
suggestions may help you:
- Explain the divorce to the child at
his or her level of understanding without placing blame.
This is probably the hardest with the other parent is seeing
someone else.
- Always allow the child to express
feelings of hurt, anger, etc. If you are not able to
help or calm the child, seek counseling.
It is not uncommon for children to blame themselves for the
divorce. Some say the divorce process is
easier for an older child. Although it may
appear that way, they may just
be better in masking their feelings. Be alert
for changes in behaviors.
- Reinforce to the child that he or
she is not to blame and that both parents will continue to
provide love and care for him/her. But if
you are the parent in a new relationship, be prepared
for misplaced blame and resentment. Studies have
discovered that when the parent waited to introduce someone
new to the child, it was best to wait
until the divorce was well over with.
- Do not carry on arguments with the
other parent in the child's presence or within his/her
hearing.
- Allow the child to speak with other
children who have experienced divorce.
- If the father or mother is not
available, use services of agencies such as Big Brothers or
Big Sisters when appropriate or just spend a lot more time
with them. They will remember who really cares for
them.
- Again, seek professional counseling
when appropriate. Doing so, only goes to show you are
thinking of
the best interests of the children.
- Do not use the child as a spy
between parents' households. If they talk about the
other household, don't be defensive. Listen
to what they are sharing with you.
- Encourage contact between the child
and the other parent's extended family, and both
grandparents, aunts and uncles. when appropriate.
- Do not speak disparagingly of the
other parent to the child and do not ask the child to be
loyal to only one parent. This also means don't speak
to others where the children can hear what you are saying.
This is frowned upon by FCS and the court and may affect
visitation and custody.
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Disclaimer
- Be sure to read the
disclaimer for this website. This website is for informational purposes only. NO
legal advice shall be construed by reading the information provided here or in
the informational booklets/pamphlets. Purchasing any informational booklet does NOT
create any attorney/client relationship. After a retainer agreement has been signed by the
perspective client and attorney, then representation commences.
DON’T WAIT UNTIL YOUR SITUATION GETS OUT OF HAND!
For further information and consultation CALL, e-mail or fax your request for an
appointment TODAY at the Law office of David A. Casey, Attorney.
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