Does SOLE Custody mean you can MOVE OUT-of-STATE?

Parents who share custody of their children face a difficult situation when one parent wants to relocate or move away to a relatively distant location. In recent California cases, if one parent is the primary parent and the children have been living primarily with that parent, that parent is likely to be permitted by the Courts to move away and take the child(ren) along, even if he or she agreed earlier not to move away or relocate.


Under California Family Code section 7501, a parent entitled to the custody of a child has a right to change the residence of the child. However, the Courts have the power to disallow the parent to move away with the child if the move is not in the best interest of the child.

One reason for the Courts to disallow a custodial parent's request to move away with a minor child is when the relocation adversely affects the noncustodial parent's visitation rights. This is the single most hotly issue with numerous cases resulting in different results. Many courts approved restrictions on the parent's right to move away or relocate with the child and imposed burdens such as proving that move away was "necessary" or "expedient, essential or imperative." Some Courts used a test for move away cases to guide the trial courts in making the determination. Others simply held that the custodial parent was presumptively entitled to move away.

If you would like to know more about relocation, and explore your options, you may choose to contact us here to set up a FREE CONSULTATION or call us at (909)234-9789 M-Sun 8am-7pm.

Child Abduction by Parents is Real!

Child abduction is always a serious issue in any highly contested child custody case. Of the thousands of missing children each year, many are abducted by one of the parents after a bitter divorce. Most custodial parents fear child abduction by an angry former spouse.

One such incident happened when a Muslim couple were having marital problems. Under false pretenses, the husband took the wife and their infant child back to their country. There, the husband revealed he wanted a divorce from his wife, and that he would not allow his child to be brought back to the United States, and obtained a Court order from there stating so. The husband also confiscated his wife's and child's passport and without telling his wife, came back to the States. The wife somehow obtained a temporary passport and came back to the States, and with the help of the District Attorney's Child Abduction Unit, was able to get her child back in the States.

Child abduction by a parent is a crime. According to the Department of Justice, some 200,000 children were kidnapped by a family member in 2002. Some of these children disappeared in America; some were taken abroad.

Parental rights do not include illegal removal a child to outsmart a custody arrangement by taking the child across state lines. The Uniform Child Custody Jurisdiction and Enforcement Act, a uniform law regarding custody and visitation for parties from different states, is designed to discourage and prevent parental kidnapping. If a spouse moves during a divorce and attempts to file for custody in another jurisdiction, the law governing jurisdiction is complex. Once a state has jurisdiction in custody dispute, however, it is difficult to move it to another state.

Feel free to contact our office for more information should you have any questions or concerns and need some legal guidance or representation.

Joint CUSTODY does not mean you will have EQUAL Parenting time!

Parents often think that if they have "equal" custody or "50-50" custody of their child(ren), that they (parents) have equal timeshare with their child(ren).

This is not true!

It is understandable that when two parents are having disagreements that lead to Court's involvement, that most of the time the parents' emotions are controlling their judgment. One parent may think that it is in their child(ren)'s best interest to only live with that parent and not the other (unless circumstances justify such thinking...for e.g. if the other parent is a child abuser). However, in absence of justifiable circumstances that would cause one parent to lose joint custody of their child(ren), most times the Court will award both parents equal (aka "joint") legal & physical custody. The Courts determine the custody and parenting time by determining what is in the best interest of the child(ren).

However, the time that each parent will have with their child(ren) are most of the time unequal. The reasons can be as follows (but these are certainly not the ONLY reasons):

• The practical aspect of there being 7 days in a week, and no parent can divide 7 days equally (3 1/2 & 3 1/2 for each parent with their child) without putting a heavy burden on the child(ren)'s lifestyle;
• One parent might work in the military, or drives a truck around the country for his job, which makes it impossible for him to spend 3 1/2 days with his child(ren), even if 3 1/2 day schedule was feasible;
• The Court takes into consideration a minor child(ren)'s opinion as to who he/she wishes to live with after the child(ren) has mentally developed (usually by the time the child is 12 or 13, but that is not always the case). If the child(ren) expresses a desire to live with one parent over the other, then often times, the Courts leave the choice of who the child(ren) will spend time with up to the child(ren).

If you believe you have joint custody of your child(ren), make sure to determine if you have joint LEGAL custody AND joint PHYSICAL custody, or if you simply have joint legal custody but not joint physical custody. These are very different and give parents different rights to their child(ren). You can find more information about child custody here.http://riversidedivorcelaw.blogspot.com/2010/12/child-abduction-by-parents-is-real.html

Can Support be Reduced or Increased?

Often times people wonder if their child support or alimony (aka spousal support) can be increased or reduced. The answer is YES! But how? Not many people know what the proper steps are change the support obligations.

It should not be the case that whoever is obligated to pay the child support or alimony just stops paying. As a word of caution, if one simply chooses to stop paying support without a court order, that person can be punished by the Courts in various forms, including wage garnishments, revocation of driver's license, etc.

So, what should one do to reduce or increase child support or spousal support?

CHILD SUPPORT

To modify the existing child support order, a parent must show the Court that there is some kind of change in their financial circumstances to justify their request for an increase or decrease in the amount. Couple of points about who has the power to modify the support (these are not the only circumstances, however):

• If you are unemployed and you are receiving some kind of state aid (e.g. cash aid, welfare, food stamps), your child support case will be handled by the Department of Child Support Services;
• If you are not receiving any kind of state aid, but simply are unemployed or have a low paying job, your child support amount will be determined by the Court.

Note to parents: Child support can NEVER be set to $0.00 by agreement between the parents. So, if you and your spouse agree between yourselves that the noncustodial parent need not pay child support to the custodial parent for their child(ren), it is a wrong assumption.

SPOUSAL SUPPORT

To reduce a spousal support amount, a spouse needs to make a show that his or her circumstances have decreased financially and thus, he/she cannot afford to pay the support. The burden of proof to reduce spousal support is the same as the Child Support; i.e. there is a material change in financial circumstance of the spouse who cannot pay (e.g. unemployment).

To find out more about how to modify a spousal support order, click on the link  "spousal support" above.