How to Establish a Child’s Parentage

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

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June 17, 2016
How to Establish a Child’s Parentage
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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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7 Tips to Keep Your Sanity in Custody Litigation

Posted May 2, 2016 in Family Law by Rebecca Sternbach.

In her memoir “Yes Please,” comedian Amy Poehler likened divorce to “spreading everything you care about on a blanket and then tossing the whole thing up in the air.” Undeniably, the end of a relationship is devastating for all involved, especially for the children of the relationship. Sometimes, parents separate with the best of intentions, promising to keep the peace for the sake of the children–with varying degrees of success. An unfortunate reality is that divorce and custody litigation is taxing on children of any age, and exposure to conflict can have lasting and serious repercussions. In fact, studies show that children exposed to a contentious divorce are more likely to struggle academically, socially, and emotionally.*

This post contains tips to decrease conflict and keep you (and your family) sane during custody litigation.

1.  Be Flexible.

Life after separation is uncomfortable for both parents and children. On top of arranging separate housing and sorting such issues as payment of household bills and the sale of the family home, you and your ex must negotiate a temporary visitation schedule. This is no small order! In approaching this challenge, flexibility is key. Remember, initial temporary custody arrangements are just that—temporary—and will be fine-tuned over time. Consider taking advantage of the free custody mediation services available in some counties through Family Court Services, where a neutral mediator will help you and your ex formulate a visitation schedule.

2.  Communication is Key.

Hostility strains communication. Children adjusting to divorce will benefit from their parents maintaining healthy lines of communication. While face-to-face communication with your ex may be difficult, luckily there are many alternatives. Consider designating a “family notebook” to travels in your child’s backpack or overnight bag. You and your ex can write (peaceful) notes to one another, detailing the status of homework and projects, sleep and nap schedules, snacks and meals eaten by the kids during visits, and health-related concerns. Or, consider using Our Family Wizard which is a web and app-based custody tool that helps parents with scheduling and communicating (and is frequently ordered by family court judges).

3.  Choose your Words Carefully.

Think of your child as a sponge. He or she will soak up everything you say and do, especially during this unstable time. For this reason, no matter how tempting it may be, do not “vent” or criticize the other parent in the presence of your children, or discuss the ongoing litigation. To help your children understand the changes your family is undergoing, and offer a safe space for your children to discuss these changes, consider family or individual counseling.

4.  Practice the Golden Rule…Even if Your Ex Doesn’t.

Treat your ex as you wish to be treated, even if he or she does not return the favor. Retaliating against your ex by withholding contact with the children will breed further tension and conflict. To that end, difficult though it may be, try to take the high road. Show respect and flexibility to your ex, even if he or she is seemingly unwilling to offer the same courtesy. Ultimately, the court will see you as the more reasonable parent.

5.  Be Cautious When Introducing New Partners.

Err on the side of caution when introducing a new boyfriend or girlfriend to your children. It can be difficult for children to process the end of their parents’ marriage, and the introduction of a new partner too soon may cause confusion and anxiety. It may also heighten conflict with your children (or resentment from your ex). Even if your children adore your new partner, if the new relationship is short lived, then your children may face even more difficult change. Consider waiting until the initial uncertainty of the custody litigation—and your new relationship—has passed before introducing a new partner.

6.  Go Back to School.

It’s never too late to learn. There are an abundance of parenting classes offered on a variety of topics (from parenting an infant to relating with a teenager). The courts often order one or both parties to participate in a parenting class. Consider voluntarily enrolling in a class at the beginning of the case. Not only will it impress the judge, by honing your own parenting skills, you will also develop coping mechanisms and learn to navigate conflict.

7.  Be Patient and Change Will Come.

Change will not happen overnight. Separating from the parent of your child will undoubtedly cause a period of unhappiness and uncertainty. However unpleasant, this time shall pass. Be patient, and change for the better will come.

If you need help navigating your custody litigation, 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.

*Source: Children of divorce in the 1990s: An update of the Amato and Keith (1991) meta-analysis. Amato, Paul R. Journal of Family Psychology, Vol 15(3), Sep 2001, 355-370.

 

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4 questions to ask before hiring a mediator

Posted March 8, 2016 in Family Law by Michael Lonich.

Mediation can be very helpful for spouses going through a divorce. Ensuring a successful mediation requires choosing the right mediator. Before deciding to work with a mediator, parties may consider speaking to those who have worked with him or her in the past. Below are a few suggested questions to ask those who have worked with the mediator:

1.Did the mediator develop a relationship of trust and confidence with you?

2.Was the mediator patient yet tenacious?

3. Would you hire this mediator again?

4.Was the mediator creative?

Sometimes our issues don’t have an easy solution. For example, deciding a custody holiday schedule or deciding who will keep the marital home, can make it difficult to reach an agreement. Hire a mediator that you know is prepared to deal with these complex issues.

While divorce mediation works in many situations, it is not always appropriate. Litigation is often the best option in situations where there is domestic violence, one party refuses to cooperate in making required disclosures, or communication between the parties is impossible. If you have any questions about divorce mediation and would like to speak to an attorney, please contact Lonich & Patton for further information.  Keep in mind 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.

Source:

http://www.pon.harvard.edu/daily/mediation/hiring-a-mediator-a-checklist/?mqsc=W3826827&utm_source=WhatCountsEmail&utm_medium=PON%20Harvard+Neg%20Insider%20%28Tuesday/Thursday%29%20Standard%20Rule+Neg%20Insider%20%28Tuesday/Thursday%29%20Standard%20Rule&utm_campaign=Neg_WIR_02202016

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