Alternative Custody Schedules: Bird’s Nest Custody

Posted July 7, 2016 in Family Law by Michael Lonich.

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July 7, 2016
Alternative Custody Schedules: Bird’s Nest Custody
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Divorce is always difficult—especially when children are involved.  Consequently, there will never be a “one size fits all” approach to child custody.  Traditional custody arrangements (sole, every other weekend, etc.) may work for some families, but others may benefit from an alternative schedule.  Enter: bird’s nest custody.  Bird’s nest custody is an alternative method of child custody where the children remain in the marital home, and it is the parents who make scheduled moves between residences.  More specifically, one parent will move into the marital home (aka the “nest”) and take care of the children for a period of time while the other parent lives in his or her own individual home or stays with family and friends.

Bird’s nest custody is not right for every family, but it can be beneficial, even as a short-term, transitional solution, when the parents voluntarily consent to the arrangement and are able to communicate respectfully with one another.  In return, children can acclimate to their parents’ divorce in a familiar environment, maintain accustomed to patterns of interaction with their school and friends, and be spared the emotional and logistical hassle of regular house switches.  Additionally, parents who are not ready to sell the marital home–especially if the housing market is down—can hold off on that step until circumstances are more financially favorable.

Bird’s nest custody is not without a downside—namely, it is expensive.  Instead of maintaining two homes, a family must maintain three homes.  Parents can try to maintain only two homes by sharing the “off home” as well, but couples must be realistic about their ability to navigate the physical and emotional logistics of two shared residences.  Additionally, some couples may not benefit from stalling the sale of the marital home—everything inside the house and the house itself are key pieces of a divorced couple’s property settlement.  Without selling the home and its assets, reaching an agreement about the distribution of community property may be difficult.

Psychologically, issues arise for both children and parents.  First, bird’s nest custody may leave children, especially young ones, confused about whether or not their parents have truly split.  Second, parents may have trouble moving on if they maintain such strong ties to their marital home.  Ultimately, a clean break may benefit children and parents more than the environmental stability that results from nesting.

Lastly, most real life attempts to implement bird’s nest custody are not successful.  Seldom are divorced couples willing or able to make the approach work—ex-spouses do divorce for a reason!  The aim of bird’s nest custody is to reduce a child’s stress, and if the approach leads to more tension and more arguments between the parents, the process will not benefit anybody in the family.  Additionally, changes in an ex-spouse’s romantic status usually complicate the arrangement—even if new partners don’t mind moving between residences, rarely would a parent feel comfortable welcoming his or her ex-spouse’s new partner into the “nest.”  Moreover, the situation is fairly impossible to implement if a spouse or new partner has children from a previous relationship.

Ultimately, successful implementation of bird’s nest custody requires clearing quite a few hurdles, but the approach demonstrates that alternative and creative custody arrangements do exist—families should not feel bound by traditional custody schedules.

If you are interested in learning more about bird’s nest custody or other alternative custody schedules, please contact the lawyers at Lonich & Patton—an experienced family law lawyer can help parents craft the best custody arrangement for their children and themselves.

Please remember though that each situation is unique, and results discussed in this post are not a guarantee of future results.  While this post may detail general legal issues, it is not legal advice.  Use of this site does not create an attorney-client relationship.

Source:  Michael T. Flannery, Is “Bird Nesting” in the Best Interest of Children?, 57 SMU L. Rev. 295, 297 (2004)

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Going to California, The Quasi-Community Property State

Posted June 27, 2016 in Estate Planning, Family Law by Michael Lonich.

A move to the Golden State has the potential to change the character of your property.  Upon arrival in California, meeting with an experienced California estate planning attorney is a must!

Generally, there are two kinds of property systems: community property and separate property.  California is one of nine community property regimes in the United States.* Presumptively, community property is all property acquired by a couple during marriage.  The community property system gives each spouse a fifty percent (50%) interest in the property, among other characteristics.  In California, separate property is all property owned by a person before marriage and all property acquired by gift, bequest, or devise during marriage.

California’s community property system is unique because it also recognizes “quasi-community property.”  Quasi-community property includes all property, wherever situated, that would have been treated as community property had the acquiring spouse been domiciled in California at the time of acquisition.  For example, if husband bought a car with funds earned during marriage, while living in Minnesota, a separate property state, the property would be the husband’s separate property.  However, if husband and wife moved to California and then filed for divorce, the car would be considered quasi-community property.  The reason being is that if the husband was domiciled in California at the time he had purchased the car, it would have been characterized as community property.  Pursuant to California law, all property acquired during marriage, including a spouse’s earnings, is community property.  Therefore, in accordance with the quasi-community property statute, each spouse would have a fifty percent (50%) interest in the car.

The example above is just one of many that may give rise to quasi-community property.  Nonetheless, it illustrates the potential effect a move to California can have upon one’s property.  Moreover, each state has the authority to make its own property laws.  Therefore, it is imperative that when you move to a new state, especially from a separate property state to a community property state, you visit an experienced estate planning attorney.

For more information about quasi-community property or estate planning in general, please contact the experienced estate planning attorneys at Lonich & Patton for further information.   The attorneys at Lonich & Patton have decades of experience handling complex estate planning matters, including quasi-community property issues, and we are happy to offer you a free consultation.  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 detail general legal issues, it is not legal advice.  Use of this site does not create an attorney-client relationship.

*https://www.irs.gov/irm/part25/irm_25-018-001.html

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How to Establish a Child’s Parentage

Posted June 17, 2016 in Family Law by Michael Lonich.

When a child is born to a married couple, California law automatically establishes both spouses as the child’s parents.  However, while nonmarital births peaked in the late 2000s, four out of every ten children are still born to unmarried women.*  Additionally, nonmarital births are increasingly likely to occur in cohabiting unions.  Yet, even when born to a cohabiting (but unmarried) couple, a child’s parentage is not automatically presumed—he or she will not automatically receive the same benefits that a married couple’s child will receive.  As a result, it is very important that unwed parents legally establish their child’s parentage.

Establishing parentage is important for the parents and the child because it entitles all parties to a host of legal rights and privileges: child support, legal identification documents, both parents’ names on the child’s birth certificate, access to family medical records and history, health and life insurance coverage, the right to inherit, and the right to receive social security and veteran’s benefits.  Additionally, once parentage is established, a court can make orders concerning the above listed rights and privileges and concerning child custody, visitation, name changes, and expense reimbursement.

The parentage of a child born to an unmarried couple can be established by either 1) a voluntary signing of a Declaration of Paternity, or 2) a court order.  First, a Declaration of Paternity can be signed by both parents once the child is born.  The form can be signed at the hospital or at a later date, but to become effective, it must be filed with the California Department of Child Support Services Paternity Opportunity Program.  If signed and filed properly, a declaration form has the same effect as a court order.

Second, if a parent refuses to sign the declaration, an individual, with the help of a family law attorney or through a local child support agency, can go to court to establish parentage.  In California, section 7611 of the Family Code provides several rebuttable presumptions of natural parent status: 1) the presumed parent and the child’s natural mother are married when the child is born, or the child is born within 300 days after the termination of a marriage, 2) before the child’s birth, the presumed parent and the child’s natural mother attempted to marry each other, 3) after the child’s birth, the presumed parent and the child’s natural mother have married or attempted to marry each other, and with consent, the presumed parent is named as the child’s parent on the birth certificate or is obligated to support the child under a written promise or court order, and 4) the presumed parent receives the child into his or her home and openly holds the child out as his or her natural child.  If a court finds that one these presumptions applies, it will issue an order establishing parentage.

Additionally, section 7551 of the California Family Code provides that in civil proceedings where paternity is relevant, the court may order (of its own initiative or upon suggestion by an involved party) that the mother, child, and alleged father submit to genetic tests.  As provided by section 7555 of the California Family Code, if the court finds that the ordered genetic testing establishes paternity to a certain degree verified by experts, there is rebuttable presumption of paternity, and the court may proceed with support and custody orders.

For more information about establishing a child’s parentage in California, especially if you are interested in pursuing child support and/or custody of your child, please contact the experienced family law attorneys at Lonich & Patton.

Lastly, 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 detail general legal issues, it is not legal advice.  Use of this site does not create an attorney-client relationship.

Sources:

*http://www.cdc.gov/nchs/data/databriefs/db162.htm

http://www.courts.ca.gov/1201.htm

 

 

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Finding Your Divorce Attorney: 3 Ways to Ensure You Hire the Right One

Posted June 10, 2016 in Family Law by Lonich and Patton.

Hiring the right attorney has the potential to save you time, money, and peace of mind; however, this is no easy task – nor should it be. Getting a divorce is often one of the most difficult, exhausting, and emotionally draining times in a person’s life.  It is of utmost importance to hire the attorney that is willing and able to be your guide and advocate through the arcane domain of divorce. Below are three ways to ensure that you are choosing the right attorney.

1. A Referral

With approximately 40% – 50% of all marriages ending in divorce, it is likely that you know someone who has gone through a divorce.  While it is not always easy to admit that your union has failed, seeking advice from those who have had to go through the process can play an integral role in deciding who will represent you.

Simply asking them if they would recommend their attorney is indicative of an attorney’s capabilities.  However, an attorney who was perfect for someone else may not be perfect for you, and vice versa.  Therefore, confide in those who have gone through this onerous process, but be aware that each divorce is unique and each attorney-client relationship is unique, as well.

2. An Internet Search

Today a simple Google search, for example, “Bay Area Divorce Lawyers,” will return dozens of results.  The results at the top of the list will most likely be the law firms that specialize in divorce in the Bay Area.  Take your time when researching each law firm.

A law firm’s website should indicate its areas of specialization, the attorneys that work there, and the results that the firm gets.  More often than not, the website will give examples of the kinds of cases the firm has tried.  These examples are important to you. You should be asking yourself, if these examples are similar to your current situation.  If so, the firm is one that you should definitely consider.  A firm’s website can provide a lot insight about the firm; however, it should not, necessarily, be the determinative factor in your decision making process.

3. A Consultation

If a referral source or your research has resulted in finding an attorney that you like, you should schedule a consultation.  A consultation is a time for you and the attorney to decide if working together is the right decision. There are number of things that you should consider when meeting with your potential attorney for the first time.

First, if the attorney is charging you an initial consultation fee, do not let it discourage you from scheduling the consultation.  Usually, in other areas of law, when a prospective client meets with an attorney for the first time there is a free 30 minute consultation.  However, divorce attorneys may charge an initial consultation fee.  The reasons for the fee are to determine if clients can afford attorney’s fees and to deter clients that are “lawyer shopping.”  Lawyer shopping occurs when a prospective client meets with a number of different divorce attorneys with the intention of creating a conflict of interest.  As a result, any attorney who the client met with is precluded from representing that client’s spouse.  One way to deter invidious behavior, such as lawyer shopping, is to charge for the meeting.

Second, the attorney-client relationship is something that should be founded upon honesty, trust, and accountability. The consultation is the appropriate time to meet and decide if working together would be in the best interests of both parties.  During the consultation there is a lot of information that each party should receive before making a decision.

As the client, you should make note of the attorney’s demeanor and professionalism. Is the attorney professional, did he or she dress well, was the meeting uninterrupted, did you receive the attorney’s undivided attention, and were you treated with respect? An attorney who dresses well, is professional, and treats you with respect usually correlates to being a fine lawyer.

Third, divorce has the potential to last for years. It is important that you choose an attorney you can be around throughout the divorce. Your attorney is your advocate, and the last thing that you need is to have tension between one another.  Therefore, choose someone that you can foresee yourself getting along with.  This doesn’t mean your attorney needs to be your best friend, but it does need to be someone that you can work with.

Fourth, hiring an attorney who has dealt with cases similar to yours will most likely save you time and money.  While divorce may seem like an ossified area of the law, results are, often times, dictated by specific factual findings and great lawyering.  Having an attorney who is familiar with certain situations will increase your chances of reaching a settlement in your best interest.  For example, an attorney who has dealt with unique assets and situations (horses, real property out-of-state, blended families, etc.) is more likely to reach a better result and not bill as much for researching these unique circumstances.

Finally, if you decide that the attorney is right for you, you should be ready to get the process started right away.  The items that you should bring to the first consultation are: 1) any pleadings, motions, proposed settlement agreements, or any other documentation dealing with the case, 2) your most recent tax returns, 3) a preliminary schedule of assets and liabilities, and 4) your monthly income and expenses.  Any other documents or paperwork that you think are relevant should be brought to the consultation, too.

On the other hand, during the consultation, the attorney will be considering whether your case should be taken.  Each attorney has their own checklist for determining whether to take on a new client.  Generally, an attorney considers if the case is feasible, if he or she is able to work with the client, and if there are any conflicts, among other factors.

Asking for a referral, conducting your own research, and meeting with attorneys are three proactive steps that will ensure that whomever you hire is the right attorney for you.  Remember, finding the right attorney is a decision that only you should be making.

If you need any help in finding the right attorney, the Certified Family Law Specialists at Lonich & Patton have decades of experience handling complex family law matters. Please contact the Certified Family Law Specialists at Lonich & Patton for further information.  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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DOMESTIC VIOLENCE: PROTECTION THROUGH RESTRAINING ORDERS

Posted June 3, 2016 in Family Law by Michael Lonich.

That familiar Hollywood story—a short marriage followed by an inevitable divorce—recently took a troubling turn when Amber Heard accused her husband, Johnny Depp, of spousal abuse.  Detailing a series of domestic violence incidents, Heard asked a judge for and received a temporary domestic violence restraining order.  While the criminal and civil implications of the Depp-Heard marriage have yet to be fully decided, domestic violence is a dangerous crisis that one in four women and one in seven men will experience in their lifetime.*

First, it is important to recognize what qualifies, legally, as domestic violence:  abuse or threats of abuse when the abused and the abuser are or have been in an intimate relationship.  Abuse includes intentional or reckless physical violence, threats of harm to third parties, and threatening behaviors such as harassment, stalking, or property destruction.  Additionally, the abuse does not have to be physical—it can be verbal, emotional, or psychological as well.

Next, if a victim needs immediate help, he or she should call 911, a local domestic violence shelter, or the National Domestic Violence Hotline (1-800-799-7233).  However, victims do have legal options, such as a restraining order, at their disposal as well.  A domestic violence restraining order, like the one that Amber Heard received, is a court order that can be obtained by an individual who has been abused (or has been threatened with abuse) by a person with whom he or she has a close relationship.  Once in place, a domestic abuse restraining order can be used to enforce the following actions:  forbid an abuser to contact or go near the person who requested the order, force the abuser to move out of the victim’s home (even a joint home), pay child support, stay away from family pets, pay bills, and release property, to name a few options.

More specifically, there are four types of restraining orders:  1) an emergency protective order (EPO), 2) a temporary restraining order (TRO), 3) a “permanent” restraining order, and 4) a criminal protective order or “stay-away” order.  An EPO can be acquired only by law enforcement and will only last for up to seven days, but judges are available 24 hours a day to grant the order if necessary.  If a longer restraining order is needed, a person can seek a TRO—the type of restraining order that Amber Heard sought and received.  For a TRO, an individual can go to court and explain to a judge why the order is necessary.  If the judge agrees that the requesting person needs protection, a restraining order will be issued, and it will usually last between 20 to 25 days, until the court hearing date.  Third, when an individual goes to a TRO hearing, the judge may issue a “permanent” restraining order instead.  The order is not actually permanent—it only lasts for up to three years—but a person may request a new order when the previous one runs out.  Lastly, sometimes the district attorney will file criminal charges against an abuser.  Commonly, the criminal court will issue a protective order against the defendant (the abuser) while the criminal case is ongoing, and if the defendant is found guilty, for three years after the case is over.

Importantly, law enforcement or legal assistance is not necessary to ask for and receive a restraining order, but an experienced family law attorney can ensure that the process is carried out properly and make it easier to handle.  For more information about how to best protect yourself when faced with a domestic violence crisis, please contact the lawyers at Lonich & Patton.  Again though, if immediate help is needed, please call 911, a local domestic violence shelter, or the National Domestic Violence Hotline (1-800-799-7233).  The circumstances of Amber Heard and Johnny Depp’s divorce are alarming, but at least, they do provide an opportunity to have an open discussion about domestic violence and the tools available to those who need help.

Lastly, 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 detail general legal issues, it is not legal advice.  Use of this site does not create an attorney-client relationship.

Sources:

*http://www.cdc.gov/violenceprevention/pdf/nisvs-fact-sheet-2014.pdf

http://www.courts.ca.gov/selfhelp-domesticviolence.htm

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