Grandparent Visitation Rights

Posted April 19, 2011 in Family Law by David Patton.

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April 19, 2011
Grandparent Visitation Rights
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A grandparent may seek visitation rights even if there is no parental custody case pending in court.  A court’s jurisdiction over this issue may be invoked in a separate action brought on the grandparent’s behalf.  In order for grandparents to seek visitation privileges, they must first meet a two-part test.

First, the grandparent must have a preexisting relationship with the grandchild so that visitation would be in the child’s best interest.  Second, the court must balance the child’s interest in grandparent visitation with the parents’ rights to exercise parental authority.

For more information about grandparent rights, please contact us.  Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results.  While this post may include legal issues, it is not legal advice.  Use of this site does not create an attorney-client relationship.

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Courts Must Consider the Child’s Best Interest When Making Custody & Visitation Decisions

Posted April 14, 2011 in Family Law by Lonich and Patton.

When a Santa Clara County Family Court Judge makes a decision regarding custody and/or visitation of a child, the court is required to make a determination based on that child’s best interest.  When making the “best interest” determination, the court can consider a wide variety of relevant factors.  The court must, however, consider the child’s health, safety, welfare, any history of physical abuse, history of parental drug or alcohol abuse, stability and continuity of the child’s environment, as well as other factors.

When a court considers allegations of abuse in order to determine appropriate custody/visitation orders, the court will look at a parent’s history of domestic violence against the child or another person.  “Abuse,” in this context, is defined by the California Family Code as “intentionally or recklessly causing or attempting to cause bodily injury or sexual assault, or placing another in reasonable apprehension of imminent serious bodily injury to himself, herself or another.”

A significant component of the “best interests” analysis includes the goal of protecting a stable custody schedule.  When examining this factor, the court will look at any harm that may be caused by disrupting established patterns of care and emotional bonds with the primary caretaker.

Before a court considers allegations of drug or alcohol abuse by a parent in a child custody/visitation determination, the court may require independent corroboration.  Independent corroboration may include reports from law enforcement agencies, courts, or other organizations.  In addition, after following strict legal guidelines, a court may order a parent to undergo testing for illegal drugs or alcohol abuse.

For more information about all of the factors that a court will consider in determining what is in a child’s best interest in a child custody case, please contact our San Jose child custody attorneys at Lonich & Patton.  Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results.  While this post may include legal issues, it is not legal advice.  Use of this site does not create an attorney-client relationship.

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What are the Legal Implications of Conceiving a Child Through Artificial Insemination?

Posted April 12, 2011 in Family Law by Gina Policastri.

The California Family Code provides that if a woman is artificially inseminated with semen of a man who is not her husband, then her husband is treated as the legal father of the child conceived.  However, the insemination must have been conducted under the supervision of a licensed physician and surgeon and with the consent of the woman’s husband.

Likewise, under the California Family Code, a donor who provides semen to a licensed physician or to a licensed sperm bank for use in artificial insemination or in virtro fertilization of a woman (who is not the donor’s wife) is treated as if he was not the natural father of the child.

If you are considering trying to conceive a child through artificial insemination, it is important to realize that these rules only apply where the donor semen was provided to a licensed physician and the insemination was done under the supervision of the licensed physician.  If the semen is provided informally, the California law presumption does not apply.  This means that the semen donor can later establish his paternity of the child.

For more information about how to protect your parental rights, please contact us.  Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results.  While this post may include legal issues, it is not legal advice.  Use of this site does not create an attorney-client relationship.

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Huffington Post Article Argues for Increased Accountability for Parents Misusing Child Support Funds

Posted April 8, 2011 in Family Law by David Patton.

An article published by Huffington Post recounts the importance of holding parents accountable for misusing child support funds.  The article discusses the issues arising when a parent uses child support money (paid by an ex-spouse) as his or her own personal money rather than using the funds to directly to support the child.  The article details that some states set a limit on the amount of child support that can be awarded to an ex-spouse.  This limit is intended to ensure the child’s necessities are taken care of while making sure the parent receiving the payment does not receive a monetary windfall.  California does not have such a limit in place.

The author of the Huffington Post article makes a very interesting point:  California child support statutes are missing the requirement that child support money should be used solely to care for the child.  In addition, the author suggests that a procedure should be put in place that allows for oversight of this process so that parents would be much less inclined to misuse child support funds.  For the full article, please click here.

For more information about California child support, please contact Lonich & Patton.  Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results.  While this post may include legal issues, it is not legal advice.  Use of this site does not create an attorney-client relationship.

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Delaying Divorce Due to Financial Circumstances

Posted April 7, 2011 in Family Law by Lonich and Patton.

Recent economic pressures have impacted most individuals, including those wishing to file for divorce.  As economic conditions improve, a recent MSNBC article suggests that divorce filings are likely to rise as many were stalled due to economic realities. In highlighting this phenomenon, the article focuses on the Wesners, a couple who initially decided to divorce in 2008, but continually held back due to their financial circumstances.  At first Beverly Wesner decided that she would like to have a job before filing for divorce.  However, shortly after Beverly secured employment, her husband Dave suffered his own employment difficulties. While Beverley considered filing for divorce during this time period, she was afraid of having to pay spousal support to Dave.

In the meantime, Dave and Beverley have had to endure not really being married while definitely not being divorced.  During this time, the couple experimented with a living situation, called “bird nesting,” that is becoming more common in the current economic conditions. In this setup, the kids stay at the family home fulltime while the parents alternate between living in the family home and living in a rented apartment.  Eventually, Beverly contacted an attorney to move forward with their divorce after Dave found a job. While the Wesners and countless families across the country have struggled with divorce during difficult times, the article suggests that a growing number may soon be filing for divorce.

Locally, Lonich & Patton has noticed the impact of the difficult economy with many individuals considering divorce holding back due to underwater property values, depressed 401k values and other economic hardships.  If you would like to learn more about divorce and the division of assets and debts or would like to discuss your options, please contact the San Jose Divorce Attorneys at Lonich & Patton, LLP. Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results. While this post may include legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.

 

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