A child is the most important aspect in a divorce. Most parents want to make sure that they keep hold of their children. This leads to increased conflict during divorce proceedings with each of the party hell-bent on trying to get custody of the child. However the final decision on matters of custody is taken by the judge. They will have the power to decide which sort of custody would be best for the interest of the child.
Typically, there are three different types of custody orders that a court makes. This blog will take a look at the three different types of custody that the family law judge can award.
Sole custody
This is the by far the easiest custody arrangement to understand. As the word itself suggests this is a custody that is restricted to the one parent only. Hence the courts will choose either of the two parents as being the person who can take care of the child best and give sole custody of the child to them. A sole custody generally means that the spouse who has been awarded the custody will have the authority to take all important decisions in the child’s life on their own.
Not only that, the child will exclusively live with that parent, although the other parent may be given some visitation rights. This kind of custody is often given in situations where the other parent is involved in any kind of drug, alcohol, sexual or physical abuse with or without the child.
Joint custody
Joint custody is the most common custody order in divorce cases. This as the name suggests requires both the spouses have custody of the child jointly. This though in no way means that the two spouses will need to live together. Instead, this means that the physical custody of the child will be shared amongst both parents.
In addition to physical custody, important decisions that are taken about the child such as the school that they will study in, the religion that they will practice, the hospital they will go to, etc. are taken by both parents in consultation. This is known as joint legal custody, and it is common because the courts believe the presence of both the children at some point during the week is in the best interest of the child. However for such a custody arrangement to work, both parents need to have frank communications.
Third party custody
There are some situations where neither of the parents is deemed by the family law court to be fit to take care of the child. Remember being a parent doesn’t guarantee custody of the child. In the Orange County the most important thing is best interest of the child. In such situations the court can grant the custody of the child to third parties such as grandparents of the child, etc., although generally only temporarily.
Gerald A. Maggio is an experienced Orange County divorce and family law lawyer and family law attorney located in Irvine, California, serving the Orange County and Riverside areas. Mr. Maggio assists clients with legal issues including divorce, legal separation, divorce mediation, child custody, prenuptial agreements, stepparent adoptions, and other family law issues. Mr. Maggio has practiced law in California since 1999, and founded The Maggio Law Firm in 2005, focusing exclusively on divorce and family law matters.
Going through a divorce is definitely not one of the easiest experiences for many, and add issues of child custody to it and the marriage becomes even more stressful. Now add that stress to a parent who is in the military and on active duty, and the stress levels can go through the roof.
One of the landmark cases that has come to define the approach that the court must take when dealing with Orange County divorce cases with child custody issues involving military personnel is called the Marriage of E.U. and J.E. The greater emphasis of the court’s decision was with regard to parental rights enjoyed by members of service that are deployed for active duty.
This blog will outline what the courts decided and most importantly observed in this case.
A Brief Low Down on the Facts
The child between the married couple was born in the year 2000. A year after the birth of the child the parents filed for an Orange County divorce. The primary custody of the child was given to the father and the parental arrangements were formalized back in the year 2006 July. It was reaffirmed by the trial court as being in the best interest of the child.
However, there was a clause in the 2006 order which highlighted that in case a spouse was to be called for military duty, the other spouse would assume primary responsibility of the child. This would end when the deployed parent came back home and things would go back to the status quo decided.
The father was deployed from 2009 to 2012 in Afghanistan. Once the father returned, the mother refused to hand the primary custody back to the father arguing that it would damage the stability that the child had become accustomed to over the past few years.
What the Judges Thought
As a result of this development, the judge had to have a hearing on the 2006 order and ordered an Evidence Code section 730 child custody evaluation. The judge of the case accepted that there was to be a delay as a result of Family Code section 3047 being used, but placed some responsibility of the situation on the father. This was because the father had failed to provide information of his prospective deployment to the court back in October 2010 when they asked.
Once the 730 report came out, it suggested that the child should be left in the care of the mother because the age of the child was now 6 and he had become accustomed to the care and stability of his mother. However, the parties couldn’t come to agreement on this fact. The father argued that Family Code section 3047 was designed to protect the parental rights of people that were deployed in service.
Importantly, the Court of Appeal on hearing the appeal, accepted the use of Family Code section 3047 and ordered for the custody to be returned to the father now that he was back from his service and that his deployment should not be used against him.
Gerald A. Maggio is a trained Orange County divorce mediator who has amicably resolved cases many cases out of court, as well as an experienced divorce and family law attorney. Mr. Maggio founded California Divorce Mediators in 2012 with the belief that although “not every marriage can be saved, every family can” and a mission to save families from the financial and emotional distress associated with traditional divorce litigation. California Divorce Mediators is located in Irvine, California, and serves the Orange County area and other counties in California offering divorce mediation, child custody mediation and mediation of other family law matters.
Facing a divorce is one of the hardest things a person can do. This is largely due to the fact that with divorce come issues of asset division, child custody, spousal support, reasons that the couple wants the divorce, etc. Additionally, when you plead anything in front of a family law court judge, you will need evidence to back up your claims. Any lack of evidence supporting your claims could shake your standing in the court’s eyes and work against you.
To ensure that doesn’t happen to them, some people are now turning to private investigators to collect the requisite evidence. While typically, spouses in a marriage will know what goes on, in the other’s life, there are some situations where this is not the case. Sometimes, the spouse is kept in dark in terms of finances and the other spouse’s activities out of the house. In such cases, litigating a divorce case and backing their claims up with adequate evidence can most certainly be a challenge.
To avoid all this, a private investigator can be used. Here is a look at some situations where a private investigator could come in handy.
Asset Search
When couples come into divorce court, they are required to disclose all of their assets before the court. Yet, some spouses who are ill advised by their lawyers may look to hide their assets. In such a case, if the other spouse has a mere suspicion or even an idea that the spouse might have more assets that they are showing, he or she may turn to a private investigator to find out the real situation. If a private investigator is able to find evidence of the assets being hidden, the other spouse can use it to their advantage in a divorce case. The courts are very tough towards spouses that lie to the court.
Marital Misconduct
Often, spouses that have a prenuptial agreement may find it hard to get a greater share of spousal support or asset division than the one laid down in the agreement. However, some prenuptial agreement can have penalty clauses, where for instance, if an act of adultery has been committed by one of the spouse or any other such marital misconduct, then the pre nuptial agreement can be set aside by the court and the spouse being wronged will be given a greater share of the assets and a higher amount of spousal support.
Child Custody
This is an aspect of a divorce where neither of the spouses leaves a stone unturned to get the order in their favor. Some may even hire a private investigator to dig up some dirt against the other spouse that can be used in their case’s favor. The courts will take any evidence against either of the parent very seriously, since it functions on the principle of the best interest of the child.
Gerald A. Maggio is an experienced Orange County divorce and family law lawyer and family law attorney located in Irvine, California, serving the Orange County and Riverside areas. Mr. Maggio assists clients with legal issues including divorce, legal separation, divorce mediation, child custody, prenuptial agreements, stepparent adoptions, and other family law issues. Mr. Maggio has practiced law in California since 1999, and founded The Maggio Law Firm in 2005, focusing exclusively on divorce and family law matters.
When you are going through divorce, your lawyer will tell you the importance and the role a judge has in your divorce case. It is their final decision which will be binding on both the spouses. This means that a judge has the power to decide your future.
There are a number of different aspects to an Orange County divorce case, and typically, a judge will make a number of different decisions in this regard. Some of the common areas of law and the power that the judges wield are outlined below.
How to Divide Property
One of the most important aspects in a divorce are issues of asset division. If two spouses are unable to reach an independent agreement, the judge will take a look at the facts, listen to the arguments of both sides, and then decide who is entitled to what. This decision will take into account the California community property laws. The judge will need to take into account whether the property is community property or separate property.
Parenting Plan
Part of custody determinations is making a parenting plan. The judge, in matters of parenting plans, will decide on issues that the parents are unable to agree upon. This could either be how the child-related decisions are made, how holidays will be celebrated, and how a parental move might affect these guidelines.
Spousal Support
For the court to rule in matters of spousal support, one of the spouses needs to raise the issue in front of the court. Typically, financially dependent spouses will bring the plea before the judge. In taking the decision of how much spousal support to grant, a judge will take into account the incomes of the parties, the ages of the parties, their health, their potential to earn, etc.
Child Custody
Children are obviously important aspects involved in divorce cases. Both of the spouses usually want to have their child live with them. Yet, the final decision will always be made by the judge if not made by the parties. This decision is often the mostly hotly contested and there are a number of things that a judge takes into account when deciding this issue. The most important consideration that they make is the child’s best interest. Wherever the best interests of the child lie, the custody will be awarded.
Child Support
Unlike spousal support, paying child support is often mandatory if sought. Yet, the rate of child support, the schedule of monthly payments and what would amount to a perfect monthly child support amount are all decisions that will be taken by an Orange County family law judge.
Gerald A. Maggio is an experienced Orange County divorce and family law attorney and family law attorney located in Irvine, California, serving the Orange County and Riverside areas. Mr. Maggio assists clients with legal issues including divorce, legal separation, divorce mediation, child custody, prenuptial agreements, stepparent adoptions, and other family law issues. Mr. Maggio has practiced law in California since 1999, and founded The Maggio Law Firm in 2005, focusing exclusively on divorce and family law matters.
Even in this day and age of fast moving lives, there are many households where the husband is the bread earner of the family and the wife stays at home to run the household and takes care of the children. The task that stay at home moms accomplish cannot be underestimated.
The choice of whether to out for divorce mediation or traditional litigation is an important one, since it concerns the procedure that you will opt to end your relation with your spouse. It has added significance because whatever decisions you take will have a significant effect on how your future will be.
The best way to choose between the two is to take a look at the 4 critical areas of a divorce and how each works and then decide for yourself.
Child Custody
When you hire a divorce lawyer and so do your spouse, the two will battle it out in court in front of the judge to prove each party’s worth and ability to have the child. This simply means that you are putting the future of your child in the hands of someone who does not really know you, your spouse, or your child. Are you comfortable with that?
If you opt for divorce mediation on the other hand, you will be able to talk to your spouse under the guidance of a mediator about the child’s future. Children are the most important things in your life and mediation allows parents to amicably sort out mutually acceptable parenting plans to follow.
Alimony/Spousal Support
When you go through a divorce especially since you are a “work-at-home” mom who spent her time trying to run the household instead of earning money, you will be entitled to spousal support. This award that has to be paid by the other spouse is awarded in litigation as well as a right in mediation. In divorce mediation where both of parties decide it, the amount to be paid may be fairer to both parties.
Division of Assets
Litigation will involve the spouse fighting with one another to get the proper division of assets, which ultimately will be decided by a third party judge if not resolved by the parties. Divorce mediation on the other hand allows the spouse to mutually decide their property affairs among themselves more quickly and cost-effectively.
In the end, divorce mediation can accomplish what divorce litigation usually works out, but at a quicker pace and lesser cost, which allows parties to move on with their lives more quickly and focus on the children rather than a lengthy divorce case that goes on for months or even years.
Gerald A. Maggio is a trained Orange County divorce mediator who has amicably resolved cases many cases out of court, as well as an experienced divorce and family law attorney. Mr. Maggio founded California Divorce Mediators in 2012 with the belief that although “not every marriage can be saved, every family can” and a mission to save families from the financial and emotional distress associated with traditional divorce litigation. California Divorce Mediators is located in Irvine, California, and serves the Orange County area and other counties in California offering divorce mediation, child custody mediation and mediation of other family law matters.
Orange County divorce mediation is becoming a more preferable alternative to traditional divorce litigation. A number of people are looking towards this new method as means to end their relationship peacefully without hassle. Yet, most people who are interested in mediation are reluctant to try this new method since they are unaware of the issues that mediation can handle.
Here is a lowdown on some of the leading issues that Orange County divorce mediation can handle:
Child Custody
Which spouse gets the custody of the spouse? Will it be a joint custody and what will be the visitation hours are all important issues that need to decide after a couple decides to end their relation. Children are one of the most important assets and should be dealt with by care. There are two types of physical custody available in Orange County family law; one is physical custody and the other legal custody. Spouses attending mediation are not quite bound by these laws; hence can often workout a workable parenting plan between themselves in the best favor of the child.
Spousal Support
Spousal support is another issue that can be mutually decided between spouses in Orange County Divorce mediation. Spousal support simply put is a payment made by the spouse that earns to then stay at home spouse to make sure they are able to sustain their lifestyle. The idea behind this payment is to make sure that the spouse that stays at home is not but at a disadvantage to the earning spouse.
Child Support
One of the leading issues of an Orange County divorce is with regards to child support. This simply means the payment that needs to be paid to maintain and guarantee the betterment of the child and to safeguard their future. While the law in California has a special way and set rules to decide how each of the spouses need to pay the support to the spouse who has the custody of the child, in an Orange County divorce mediation things are different. There is a realization that no two situations are same and spouses can decide mutually any amount that they see fit and just for their child.
Division of Debt
Debt division is an important issue, which unfortunately must come up in all divorce mediation cases. While asset division is thought to be one aspect which can result in conflicts between spouses, debt division can also divide opinions. Yet handling and dividing of debt is an important debt that comes up in mediation cases.
Property Division
Division of asset is an important part of your divorce case irrespective of whether it is mediation or litigation. In mediation spouses will have the chance to decide on their asset division in a more flexible comfortable way that can help both the parties in their future endeavors.
Gerald A. Maggio is a trained divorce mediator who has amicably resolved cases many cases out of court, as well as an experienced divorce and family law attorney. Mr. Maggio founded California Divorce Mediators in 2012 with the belief that although “not every marriage can be saved, every family can” and a mission to save families from the financial and emotional distress associated with traditional divorce litigation. California Divorce Mediators is located in Irvine, California, and serves the Orange County area and other counties in California offering divorce mediation, child custody mediation and mediation of other family law matters.