Tag Archives: Family law

How to Interact with Your Mediator

30 Jan

Have you decided to utilize a mediator to navigate you and the opposing party through your family law matter? Are you ready to come to an agreement but not sure what to expect and how to interact with your mediator? The helpful tips below can assist you in your upcoming experiences in mediation.

What will be the main focus of mediation?

  • The number one goal is to determine what is best for all parties, and when children are involved, the resolution of custody and support matters will focus first and foremost on the best interests of the children.
  • That the parties mediate in good faith with no secret agendas.
  • Each party remembers and adheres to the idea that mediation is not the place to make the other party look bad.
  • If one party becomes hostile or accusatory about unrelated issues, the other party should not buy into these issues. Instead, the non-accusing party should tell the other party, in front of the mediator, that he or she is there to talk about fair settlement of the marital estate and/or co-parenting only.

What should I expect from the mediator?

  • To stay neutral, reduce tension, and help both parties communicate.
  • Not to decide who is “right and wrong,” or force either of party to agree to something that makes him or her uncomfortable.
  • To explore options and creative solutions to settling the issues of contention.
  • Not to contact either party outside of the mediation in order to avoid being influenced.
  • To make each party aware that he or she cannot represent either party, give legal advice or provide counseling. This applies even if the mediator is a lawyer or therapist.

What are some other helpful tips for choosing and interacting with a mediator?

  • Before choosing a mediator, interview several about their training, experience, style, and fees.
  • Always ask if the mediator has experience in Family Law and your specific issues.
  • Be sure to choose someone with the training, experience and cultural sensitivity to help resolve your specific issues.
  • Know that choosing male and female co-mediators can help ensure gender balance and prevent perceived unfairness.

In the end, remember that negotiating agreements isn’t always straightforward. It may seem at times that the mediator is working on issues that should be covered at a different point in the process. Always be aware that you may need to gather additional information at various points. But the mediator should always help you to stay on track and consider new and unique options. A good mediator encourages each party express opinions, positions, and items of importance, and will help the parties listen to each other in ways that will make a resolution more likely.

Child Custody Orders: An Overview

1 Nov

Have a custody issue that needs to go to court and unclear on terminology and nervous about the factors surrounding a court order? Read more for answers to common custody questions.

What do the terms “Legal” and “Physical” Custody mean, and what is the difference between the two?

Though it may not have impact on visitation time with the child, California law makes a distinction between sole legal custody and joint legal custody. “Sole legal custody” refers to one parent having the right to make decisions regarding the health, education and welfare of a child. Joint legal custody bestows this right on both parents, which at times requires parents to confer before making major decisions about the child’s health, education, or welfare.

Physical custody, on the other hand, involves parental rights of supervision of the child. Sole physical custody bestows that right on the parent with whom the child lives exclusively. The courts have decided that a parent with sole physical custody has the presumptive right to move with the child.

An order for joint physical custody, on the other hand, means simply that both parties will have significant periods of physical custody with the child. These orders are typically accompanied by a “timesharing arrangement” or “parenting plan” for the parties. These arrangements set the specific dates and times during which each parent will exercise custodial time. At times, you will see orders for “primary” physical custody. However common, this term is not defined by statute. It is instead used to describe unequal timesharing arrangements, which are also accompanied with a schedule allocating the dates and times during which each party is to exercise custodial time.

Where does “visitation” come in?

If a parent is awarded merely “visitation” he or she is deemed a “noncustodial” parent if the other parent is awarded and exercises sole physical custody. More commonly, many courts will still designate any custodial time as “visitation”, regardless of orders giving parties joint physical custody.

What factors will the Courts apply to determine custody?

In an average custody determination case, there are many factors the court uses to determine the resulting order. A list of the most common factors follows:

Status Quo

“Status quo” refers to the custodial schedule being exercised by the parents before the court became involved. The court will seek to maintain the status quo so long as it is an acceptable arrangement.

Frequent and Continuing Contact

California law and public policy put forth the goal that children be permitted frequent and continuing contact with both parents. This goal is used as a guideline in establishing custody orders so as not to allow the children to become estranged from either parent.

Best Interests of the Child

In any custody dispute, the primary goal of the court is to ensure that the best interests of the child are met through any resulting custody orders. The court will consider the child’s “health, safety, and welfare”, and take a broad view to get a firm grasp on a particular child’s best interest.

What factors are prohibited from consideration when the court makes custody determinations?

Though the law allows many factors to play a role in determining custody, there are several that should not be considered, in light of California law and public policy. The following factors are among the list of prohibited considerations:

Race of Parent

The race of either parent may not be used as a determining factor in custody cases. This rule applies even if there are concerns of effects of racial prejudice on the child.

Sexual Conduct or Preference of Parent

Typically, unless there is evidence that a parent’s sexual conduct has a significant and negative bearing on the welfare of the child, this factor cannot be used to form a basis for a custody order. This includes the sexual orientation of either parent, though historically orientation has been regarded as a factor in making a determination regarding the best interest of the child. Modernly, contemporary views on parental rights have made it so that a court is unlikely to use sexual orientation as a factor in awarding custody in any way.

Religious Practices

Unless there is strong evidence that the religious practices of a parent are detrimental to the child, religion is otherwise irrelevant and may not be used in a determination of the child’s best interest

Physical Handicap of Parent

Unlike the factors above, a parent’s physical handicap may be among the factors considered in making a custody determination. However, the court cannot base an order solely on a finding that one parent suffers from a physical handicap. The physical handicap would simply be among many factors weighing into the child’s overall best interest

Disparity in Parental Incomes

Finally, a court may not base a determination of custody on the incomes or wealth of the parents. In contrast, the court has noted that the remedy to an income disparity is to award sufficient child support to effectively narrow the disparity.

Will the court consider where my child wishes to live?

Courts do look to the preferences of a child when determining custody and visitation orders when the child has reached a “sufficient age and capacity to reason so as to form an intelligent preference.” The court decides whether a child will testify to his or her preferences on a case-by-case basis. The court must balance the desire to protect the child with the duty to consider the child’s wishes and the value of the child’s input in making custody decisions. Typically, when a child has reached the age of 14, the court will hear testimony from him or her. Please be aware that a child’s wishes do not override his or her own developmental and safety needs, and his or her preference remains secondary to a determination of best interest.

If you continue to have child custody questions or concerns, call for your free thirty minute consultation!

Do I have legal rights to visitation with my Grandchildren?

24 Sep

Unfortunately, family conflicts can stretch beyond the biological parents. Many times, grandparents are affected by disruption to the family unit as well. Visits with grandchildren get pushed aside, which can be quite upsetting to a loving grandparent. Fortunately, in some circumstances a grandparent can turn to the courts for help establishing regular visits with grandchildren. The court will then determine whether the visitation is in the best interests of the child.

The Family Code in California allows a grandparent to petition the court for visitation if certain circumstances exist. First, if a parent is deceased, the grandparent can petition for visitation as long as the child is not adopted by someone other than a stepparent or another grandparent. In fact, even if visitation is established prior to adoption by a third party parent, it automatically terminates upon this adoption.

More commonly, a grandparent can petition the court for visitation rights during a divorce proceeding or other family law matter in which child custody is at issue. Visitation rights may not be granted in this scenario, however, if doing so would conflict with a right of custody or visitation of a birth parent. Even though a petition for visitation under these circumstances often involves a contested divorce, there is a rebuttable presumption that grandparent visitation is not in the best interests of the child if the child’s divorcing parents agree that the grandparent should not be granted visitation.

A grandparent can also petition for visitation outside of a divorce or family law custody proceeding, if the birth parents are not married to each other, or are married but are living separately on a permanent or indefinite basis. In this situation, a court has the authority to order visitation to a grandparent if and only if it finds that there is a preexisting bond between grandparent and child such that visitation is in the child’s best interest and then balances that interest against the parents’ right to exercise parental authority. As with visitation petitions in divorce proceedings, there is a presumption that grandparent visitation is not in the child’s best interest when the parents agree that the grandparent should not have access to the child. Additionally, under circumstances where one parent has been awarded sole legal and physical custody of the child, there is a presumption that grandparent visitation is not in the best interest of the child when the custodial parent objects to the visitation.

Grandparents who seek visitation orders should be aware that doing so can raise support issues. Under California Family Code, a court that orders grandparent visitation may allocate visitation time between the two parents so as to not have an adverse impact on child support. A parent or grandparent may also be ordered to pay the other some amount of support for the child or grandchild, usually to cover necessities such as transportation and medical expenses.

Due to the involved nature of these proceedings, and potential financial effects, it is always best to consult with an attorney before taking a case to court.

How Will My Social Security Benefits be Affected by Divorce?

31 Aug

Many individuals considering divorce have concerns beyond simple property division, and worry about how to protect their social security benefits. Though social security benefits are similar to pension plans, which are dividable as community property in the State of California, Federal law overrides California law and keeps social security benefits from being divided as marital community property. Upon a divorce, social security benefits are designated as the separate property of the spouse who accrued the benefits throughout his or her employment.

However, current AND former spouses may qualify for derivative social security benefits, which are benefits earned through the current of former spouse’s employment. There is a limitation of the qualification for these benefits in that the marriage must have been at least of 10 years duration. Parties seeking divorce who have not quite been married ten years and wish to qualify for such benefits in the future may consider legal separation as an alternative. For more information on legal separation, please see “Legal Separation as an Alternative or Precursor to Divorce”.

Though social security benefits are mandated to be assigned as separate property by Federal law, under California dissolution law these benefits ARE considered income for the calculation of support. All sources of income are considered in California when looking into support awards. For this reason, if you are seeking a divorce and have questions about support and social security, it is important that you seek legal advice. Call today for your free consultation!

Legal Separation as an Alternative or Precursor to Divorce

16 Aug

What is Legal Separation?

The term “separation” is frequently thrown about when a marriage relationship comes to an end. There’s moving out and moving on, which constitutes a physical separation. But there is another, more formal, form of separation. Couples who wish to have their assets and lives divided by law, yet maintain the status of a “married” couple can instead seek a legal separation. Legal separation allows these couples to separate their lives formally, but maintain married for religious, financial, or other personal reasons. This can be beneficial in maintaining health insurance coverage, or qualifying for derivative social security benefits.

As with a standard divorce, a person or couple seeking a legal separation must file a petition with the court and serve this petition and summons onto the other party. From this point, the couple may use the legal system to obtain property division and other orders, such as custody and support orders. However, a final judgment of legal separation will only be granted if both parties consent to it, or if the responding party does not appear.

How Does Legal Separation Differ from Standard Divorces?

Most importantly, when a party or couple seeks dissolution of marriage, the action will end in a termination of the marriage. However, along the way the marital property will be divided, as with legal separation. In this respect, the actions are similar. However, there is a major difference between these actions with regards to a standard residency requirement. With divorces, a judgment of final dissolution cannot be entered unless at least one of the parties was a resident of California for six months, and of the county in which the petition for dissolution was filed for the three months preceding the filing. This causes difficulty for new residents seeking to get a speedy divorce and to benefit from court orders relating to the case. In contrast, there is no residency requirement to seek a judgment of legal separation.

When Would Seeking Legal Separation be Beneficial to Me?

As stated above, any person or couple wishing to seek legal services to formally separate from his or her spouse, but remain married in status, should talk to an attorney about legal separation. If a person seeking legal separation later changes his or her mind and decides that dissolution is preferable, the petition for legal separation may be amended. All orders pertaining to the legal separation proceedings remain in effect once dissolution is sought, and will not be reopened.

In addition, legal separation can prove a helpful tool for couples who wish to obtain a judgment of dissolution, but do not meet residency requirements. In addition to the residency requirement, there is a mandatory six month period from the service of the divorce summons (or appearance of the responding party) before a judgment of dissolution can be entered. Coupled with the residency requirements, parties to a divorce potentially may have to wait a year before it can be finalized. These individuals can use legal separation as a tool for speeding up the process. By filing a petition for legal separation, and later amending the petition to seek dissolution once the residency requirement is met, a party can start the clock upon service of the original summons for legal separation. More simply, a judgment of dissolution can potentially be obtained six months from date the service of the summons for legal separation, not the later date of the amended petition for dissolution. Seeking a legal separation with plans to later amend the action also allows the parties to seek temporary orders in their open court case. This is particularly useful if there are custody issues, or either party is seeking support. Filing for legal separation will also place automatic restraining orders on each party, preventing them from disposing of any assets. This protects and maintains property for later division in the dissolution proceedings.

As always, individuals are urged to contact an attorney before making any decisions about the future of your marital and family status. For more information and potential representation, please call or email for your free thirty minute consultation today!

Mediation vs. Collaboration – Get Answers Here!

4 Aug

Web-savvy individuals who have researched alternatives to divorce proceedings may already recognize these terms. But what exactly do they mean? Would either of these methods work for you?

Advantages

Mediation and collaboration can be highly useful tools in settling divorces and their related financial matters. The key to and characterization of both methods is cooperation. All parties involved, from clients to attorneys, have a goal of resolving matters through cooperation. These methods of resolving divorces, which serve as alternatives to traditional divorce litigation, allow the parties involved to define their dispute own their own terms. Because of this alternative nature, parties interested in resolving issues through cooperative methods often are able to define the scope of their dispute “outside the legal standard” and achieve results that would not have occurred through traditional court proceedings. This idea of cooperation creates a major benefit for clients, as it allows them to join together instead of seeing themselves as opposing parties in litigation, if so desired. Mediation and collaboration can help assist parties in dissolving their legal relationship, while salvaging their interpersonal relationship. This is especially beneficial when minor children are involved.

Mediation and Collaboration – What’s the difference?

Mediation occurs through a facilitated conversation involving opposing parties who work with a neutral third party who assists with the exchange of information and ideas. The key to the facilitator’s role is to promote resolution of the issues facing the opposing parties. Mediation is a very good way for parties to save money, which is key in our tough economic times. Court fees are typically expensive and add up quickly, especially when attorney appearances are involved. In mediation, the parties present the issues for discussion with the mediator, which leads to a greater stake in the outcome of the case. A greater stake leads to greater cooperation.

Stephanie P. Feilzer, Attorney and Family Law Mediator can assist you by providing legal counseling before and attorney support during mediation. She is able to counsel clients willing to appear alone with a mediator and opposing party, and is also happy to accompany clients to mediations that involve two attorneys in addition to a neutral counselor. She uses knowledge of law and procedure to assist you in reaching a resolution that reflects both the law and your desired outcome. In addition, Ms. Feilzer can provide Family Law mediation services for you and the opposing party.

In collaboration, attorneys and their clients agree and bind themselves to a written agreement to avoid court litigation. Through this agreement, the parties and attorneys agree to work cooperatively, which in turn maximizes benefits for the parties and family. In collaborative work, issues are resolved through a series of informal meetings involving both parties and both attorneys. At times, the parties will agree to bring in neutral experts to help facilitate the discussion of particular issues. For example, a financial analyst may be brought in to develop a continuing financial plan for after dissolution. Or, often a psychotherapist will be brought in to give advice and help the parties transition from married to single life. It must be noted, however, the most collaborative practice models provide that if either party decides that the process is not working, neither party will be allowed to continue working with the same attorney when the matter returns to traditional court litigation. This may not always be the most convenient model, but it does provide a strong incentive to settle outside of court.

Ms. Feilzer is happy to assist clients in collaborative procedures, and will ensure that our clients understand the process from the beginning. She will meet with the other party and attorney, and go over the collaborative contract to ensure that the principles of collaboration are represented. She recognizes that this method of resolving issues allows the client to have to most control over the process and outcome, as courts will not be there to assist when disputes occur. She is committed to the continued four way meetings until the matter is settled.

Is Mediation or Collaboration Right for Me?

Agreement is key in mediation and collaborative practice. In order for a dissolution to occur without going the rigid, expensive court route, the parties must agree to proceed with either of the alternative resolution procedures. Successful mediation and collaboration involve honesty, trust, and a cooperative attitude. A party wishing to use these procedures should be willing to see resolutions in terms best for the family as a whole, rather than just from his or her own perspective. If any of these attributes or goals matches you and your case, please call today and ask about mediation and collaboration services! Ms. Feilzer is excited to serve the Stockton community with these helpful services.