Child Custody Modification

Child Custody Modification

Child Custody Modification

In California, modifying a child custody order requires a proof of significant change in circumstances. However, like most rules in the legal field, this rule also comes with important exceptions. Here, I will discuss some of those exceptions. However, first I will discuss where the change in circumstances rule comes from and why does it exist in child custody cases.

 

Res Judicata

Generally, you may need to prove significant change in circumstances when you ask for a modification of a child custody order in family court. The key phrases here are “modification” and “custody order.” In the legal field there is this concept called “Res Judicata.” This is the principle that states, for the sake of judicial efficiency, a case should not keep getting re-litigated if it has already been litigated or decided once on its merits. The way Res Judicata is incorporated within child custody laws is through the rule of significant change in circumstances. So, assuming there is a final custody order, one way you can modify it is to first prove a significant change in circumstances. In short, you are telling the court that there are no issues with Res Judicata since there are new facts (changed circumstances) that are significant enough to requires modification (litigation). Thus, you are not re-litigating the exact case that was litigated previously. In fact, change in circumstances requires a showing of circumstances that did not exist at the time the custody order was made.

Exceptions to Change in Circumstances

Given that Res Judicata is the governing principle behind the significant change in circumstances rule, then we can logically deduce certain exceptions to the significant change in circumstances. So, in California, the type of cases stated below proof of significant change in circumstances may not be required for child custody modification.

Temporary vs. Final Custody Orders  

If a child custody order is temporary and not final judgment or final order of the court, then you do not need to prove significant change in circumstances to change custody. So often the issue here comes down to the definitions of final and temporary custody orders.

 

Increasing Parenting Time or Visitation

If you are just asking the court for more time with your child and not necessarily a change in custody you do not need to prove significant change in circumstances. For example,  you may want more visitation time with your child. Perhaps, you want an additional weekend per month. If your request is not significant enough to be considered a change in custody, then you do not need to point to significant change in circumstances. You may only need to prove that the change you request is in the best interest of the child.

Conclusion 

California law recognizes exceptions to the significant change in circumstances rule in modification of child custody orders. Like the rule itself, exceptions are also governed by the principles of Res Judicata . We hope you found this article informative.

 

Related Readings

Child Custody Modification

Child Custody Modification

In California, modifying a child custody order requires a proof of significant change in circumstances. However, like most rules in the legal field, this rule also comes with important exceptions. Here, I will discuss some of those exceptions. However, first I will discuss where the change in circumstances rule comes from and why it exists in child custody cases.

read more

Sabeti Law & Associates 

  • Family law attorneys in orange county 
  • Family law private mediation 

Tel: 949-326-2626

Fax: 949-899-8259

 

Address: 23832 Rockfield Blvd Ste # 175,

Lake Forest, Ca, 92630

Email: Contact@Sabetilaw.com 

Monday - Thursday
9:00 am - 5:00 pm
Frirday
10:00 am to 2:00 pm
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Custody of William Jr.

Custody of William Jr.

Birth of William Jr.

Ana, after a brief relationship with Garay becomes pregnant. Ana informs Garay about the pregnancy, but Garay does’t believe he is the father. Ana gives birth to a baby boy. The year is 1979. William Jr. is the name given to the baby boy. William Jr. becomes the subject of a child custody dispute that changes how custody laws are interpreted and applied in California and across the US.

Fatherhood

Ana, now a single mother, is also a nursing student. She is having a difficult time financially. So she goes to the family court and requests that the court order Garay to pay child support. Garay demands a blood test.  A blood test is taken. Garay is the biological father of William Jr.

Making it work

Garay realizing he is the father of William Jr. agrees to pay child support. He tells Ana that they should explore the possibility of forming a family. Garay moves-in with Ana and William Jr. but after six weeks Ana and Garay realize the relationship will not work. So, Garay moves out.

Custody dispute

Garay wants consistent visitation with his son William Jr. He wants to be a father. Ana refuses to agree to visitation or custody. Ana asks the family court to give her exclusive custody. Garay, in response, also asks for exclusive custody. A child custody dispute starts.

Child custody trial  

The custody of William Jr. goes to trial. The judge recognizes that custody determination must be based on the best interest of the child. Meanwhile, Garay is now married. Ana continues to study to become a nurse.

Garay’s case  

Garay argues that it is in the best interest of the child to reside with him since he is in a much better financial position. Garay is married. William Jr. can be cared for by his stepmother who will stay at home. As a result, William Jr. doesn’t have to stay with a babysitter or at different daycare centers. Garay – he argues- would never prevent Ana from visiting William Jr. if he has exclusive custody. Thus, Garay argues he should have custody.

Ana’s case

Ana argues that child custody has already been established.  Ana has been caring for William Jr. since birth. She should continue to have custody and nothing should change.  A change in custody would create instability in the child’s life since there is a strong parent-child emotional bond developed between Ana and William Jr. The same emotional parent-child bond does not exist between William Jr. and Garay. So, it is harmful to change custody now.

Family Court Judge Decides

The judge decides that it is in the best interest of the child to reside with Garay.  He is much better off financially. He can provide a more comfortable home and a living situation. He is married which means that there is someone to care for and raise the child. William Jr. would not have to stay with a babysitter or at daycare centers. On the other hand, Ana is a working single mother. A nursing student. She is not financially stable. Ana will not allow Garay to have visitation. Yet, Garay will give Ana visitation. Therefore- the judge decides- it is in the best interest of William Jr. to reside with his father.

t

Is this story based on a real case ?

Yes !

Burchard v. Garay

California Supreme Court Case 1986

Devastation

Ana is devastated. She realizes that she  lost custody of her son and vows to appeal.  She wants her son back. So, she appeals.

Appeal

Ana appeals to a higher court. The appellate court. Ana tells the higher court the family judge abused its discretion by giving Garay exclusive custody. Yet, the appeal court decides the judge did not abuse its discretion and the decision of the trial court is valid. Ana appeals to the California Supreme Court. Thus, she continues the fight.

Supreme Court

California Supreme Court agrees with Ana. The court decides the family judge abused its discretion. Increase in wealth is not correlated with better parenting. More importantly, wealth does not correlate with the degree of love and affection a parent can provide a child. If each parent can provide adequate care for the child, then the relative economic situation of each parent should not be a factor in custody. Even if Ana struggles financially, the law allows her to get child support.

The court agrees that the best interest of the child should determine who gets custody. Yet the best interest of the child should be determined by looking into the parent-child emotional ties and established bonds. Not money. Ana was the primary caretaker from birth. The parent-child emotional bond is much stronger between Ana and William Jr.  Ana’s refusal to agree to a visitation arrangement does not justify changing custody. Both Ana and Garay have acted immaturely. However, no evidence existed to suggest Ana would refuse to follow a court ordered visitation. The family court judge made an error and thus abused its discretion.

Related Readings

Child Custody Modification

Child Custody Modification

In California, modifying a child custody order requires a proof of significant change in circumstances. However, like most rules in the legal field, this rule also comes with important exceptions. Here, I will discuss some of those exceptions. However, first I will discuss where the change in circumstances rule comes from and why it exists in child custody cases.

read more

Sabeti Law & Associates 

  • Family law attorneys in orange county 
  • Family law private mediation 

Tel: 949-326-2626

Fax: 949-899-8259

Monday - Thursday
9:00 am - 5:00 pm
Frirday
10:00 am to 2:00 pm
Saturday- Sunday
Closed

Story of Infidelity & Divorce

Story of Infidelity & Divorce

Story of Infidelity and Divorce

An exceedingly common reason for divorce is spousal infidelity. Rarely is the case that infidelity is the root cause of marital problems. More often, infidelity seems to be a symptom of a marital conflict which has not been properly dealt with. Yet, infidelity and divorce are interconnected since infidelity, even if not the root cause of conflict, is at least a trigger which causes one spouse to initiate divorce. Considering the connection between infidelity and divorce, many people, during their consultation with a divorce lawyer ask whether and how the marital infidelity will impact their divorce. This blog uses the story of Infidelity and divorce of John and Hailey to illustrate the impact of infidelity on divorce, custody, child support, spousal support and division of assets and debts.

Infidelity and Divorce of John and Hailey

Hailey and John have been married for 15 years and have two children 10 and 9 years old. Right before the birth of their first child, John and Hailey purchased a house near Johns work in Orange County California. Hailey is a nurse by profession but has stayed home to raise the children since birth of the oldest one. John is a medical engineer who obtained his degree and job during marriage. John makes about $200,000 per year. Recently, Hailey finds out that John has been having an affair for the past 12 months. John has spent, using a credit card, $30,000  on fancy hotels and restaurants. John also took out a $40,000 loan. Hailey finds out John used the loan money to purchase a new car for his mistress. Most of the $30,000 was also used by John on his affair.  Hailey is devastated.  She scheduled a free consultation with a local divorce lawyer.

Request a Free Consultation

Zoom Consultation with a local divorce lawyer

Hailey meets virtually with a local divorce lawyer for a free zoom consultation. The following is an excerpt of their discussion.

  Does my husband’s infidelity help my divorce case?

A»  No. California is a no-fault  divorce state. Your husband’s infidelity itself will not hurt or help you in obtaining custody, child support, spousal support or dividing the assets and debts. Thus, infidelity is not something that will be an issue in the courts.

 

Even though I am a nurse, I have not worked for years. My husband was the wage earner. I stayed home to raise the children. How do I survive financially after divorce?

You have been married for 15 years. During most of your marriage you stayed home and raised the children. Marriages longer than 10 years are usually considered long-term. This means you may get long-term spousal support. Additionally, since you have been the primary caretaker of the children, we can ask the court for primary physical custody. This means the children will spend more time with you which will allow you to request and receive child custody under California law. 

 

My husbands name is the only name on the title of the house. What happens to the house?

If the house was purchased during marriage, it is presumed to belong to the community. This means that the house should be divided 50/50 unless there is some sort of postnuptial or prenuptial agreement or that your husband purchased the house with his separate property. We will make sure you get that which you are entitled to under the law.

Q» How should we divide debts after divorce

A» The marital money he spent on his affair should be reimbursed to you. This includes the loan and the credit card debts. However, the reimbursement is only to the extent that he used marital money and resources on his affair. The other debts accrued during marriage should be 50/50 unless we make a different agreement. If necessary,  I can ask the court to award you a higher percentage of the house to make up for the money your husband spent on his affair. 

 

Q» Who stays in the house during divorce?

A» Depends on many factors. If there is no domestic violence issue, we can ask that your husband leave the house since you are the primary caretaker of the children.

 

Related Readings

Child Custody Modification

Child Custody Modification

In California, modifying a child custody order requires a proof of significant change in circumstances. However, like most rules in the legal field, this rule also comes with important exceptions. Here, I will discuss some of those exceptions. However, first I will discuss where the change in circumstances rule comes from and why it exists in child custody cases.

read more

Sabeti Law & Associates 

  • Family law attorneys in orange county 
  • Family law private mediation 

Tel: 949-326-2626

Fax: 949-899-8259

Monday - Thursday
9:00 am - 5:00 pm
Frirday
10:00 am to 2:00 pm
Saturday- Sunday
Closed

Divorcing a Narcissist

Divorcing a Narcissist

Divorcing a narcissist 

Narcissistic Personality Disorder (NPD) is a set of behavioral patterns and thinking characterized by a need of for admiration, feeling of grandiosity and lack of empathy. The Diagnostic and Statistical Manual of Mental Disorders has a list of traits and criteria for mental health practitioners to determine whether a person has NPD. Sometimes, in divorce cases, one spouses is suffering from NPD. Divorcing a narcissist is difficult. Here, we will give you some tips on how to deal with a narcissist during and after divorce. We hope you find this information useful.

Who is A Narcissist 

Simply being arrogant or mean spirited is not the same as being a narcissist within the context of the NPD. Make sure you find out whether your ex is a narcissist. This may be a difficult thing to do if they are not willing to be diagnosed voluntarily. However, there may be legal tools in the family court (if you have children) to make a diagnosis possible. So, depending on your case, it may be a good idea to talk to and hire a divorce lawyer.

Hire a Divorce Lawyer 

If you are dealing with a narcissist it is a good idea to hire a divorce lawyer. A divorce lawyer can help you remain objective. A narcissist may abuse the court system as a forum to seek revenge. Hire a divorce lawyer to protect yourself from a narcissist ex.

Do Not Rationalize 

People often try to use logic to try to persuade a narcissist. This likely will be a futile waste of energy and time since the narcissist is unlikely to change behavior based on logic and common sense. Thus, recognize this reality and act accordingly.

Set Strict Boundaries 

To deal with a narcissist you should set boundaries. They way you can do that is not feel obligated to justify or explain yourself for every decision or action you take. When you feel that you are being manipulated standup for yourself or if necessary, leave the situation. Do not accept or answer questions that are unreasonably intrusive. In doing so, you can set boundaries so you don’t get pushed around by the narcissist in your life.

Limit Contact 

Limiting contact with a narcissist is extremely important. Obviously, for one reason or another, this narcissist must be a part of your life. It is important that you limit communication to matters pertaining divorce or co-parenting (if necessary). Otherwise, there is no reason for you to be in a consent communication with the narcissist that goes beyond the scope of that which is necessary. Thus, limit contact.

Document Communication 

A communication with narcissist should be documented. If you are required to talk on the phone, make sure you follow the applicable local and state laws if you are going to record the phone call. Otherwise, feel free to communicate via email or text message. Many courts require parents to use parenting apps for co-parenting. So, consider using a parenting app to document communication.

Conclusion 

Divorcing a narcissist is hard. Co-parenting with a narcissist can be harder. The tips above are not all inclusive. Consider implementing those that you find useful. Hopefully, with a thoughtful strategy you can deal with the narcissist in your life so you can live the happy life you deserve.

Related Readings

Child Custody Modification

Child Custody Modification

In California, modifying a child custody order requires a proof of significant change in circumstances. However, like most rules in the legal field, this rule also comes with important exceptions. Here, I will discuss some of those exceptions. However, first I will discuss where the change in circumstances rule comes from and why it exists in child custody cases.

read more

Sabeti Law & Associates 

  • Family law attorneys in orange county 
  • Family law private mediation 

Tel: 949-326-2626

Fax: 949-899-8259

 

Address: 23832 Rockfield Blvd Ste # 175,

Lake Forest, Ca, 92630

Email: Contact@Sabetilaw.com 

Monday - Thursday
9:00 am - 5:00 pm
Frirday
10:00 am to 2:00 pm
Saturday- Sunday
Closed

Family Law Hearings During Covid19

Family Law Hearings During Covid19

Family law hearings during Covid19

Covid19 has caused major disruptions  in the lives of people around the world. In the past several months most of us have been required to adapt to the reality of life in the age of Covid19. This article is intended to inform you on how Covid19 impacted the family court in orange county and the rest of California. Additionally, if you have a pending case in the family court, we hope to  give you some guidance on what you can do to resolve your family law dispute through a private family mediation.

California stay home order

On March 19, 2020, Governor Gavin Newsom issued a stay home order. The purpose was to protect the health and safety of those in California during the Covid19.  As a result, state courts all around California closed their doors to non-emergency matters. Most trials and hearings were rescheduled. On March 28, 2020, Governor Newsom gave the judicial council of California power to modify certain laws within the court system for the protection and health of Californians. Therefore, a lot has changed as to the  rules of state courts in California.

Impact on family courts

Visit the courts website to learn about the exact changes since each county has its own set of rules and local procedures.   In many counties, family law hearings are now conducted virtually.  Many hearings were changed to status conferences. This has caused a large backlog of cases in family courts. Family law trials have been delayed. Depending on the nature and facts of your case the court may hear your case virtually or in person if physical presence is necessary.

Emergency family law cases

There is a large backlog in family courts. Yet, emergency cases like domestic violence, or ex-parte custody matters will be heard.  Time sensitive cases will also be heard by the court. Yet,  many divorce and custody cases that are not time sensitive or emergency have been rescheduled. To determine whether your case can be heard by the court, talk to a family law attorney in your area.

Family law private mediation

If you have a family dispute you can always turn to private mediation for effective ways to resolve your dispute. Mediation is when parties agree to resolve their dispute with a help of a neutral person. Mediation is effective in simple and complex disputes whether it is a family disputes or a dispute between corporate giants like Samsung and Apple. In a family dispute with a help of a mediator you can resolve your complex family dispute, cheaper and more effectively.

Conclusion

Despite Covid19 disruptions, you can still work to resolve your family dispute privately with the help from lawyers and mediators. Thus, you do not have to wait for the family court.  Take charge and use other dispute resolution tools shown to be more effective. In doing so, you can save money and time while working on truly resolving your legal dispute.

Related Readings

Child Custody Modification

Child Custody Modification

In California, modifying a child custody order requires a proof of significant change in circumstances. However, like most rules in the legal field, this rule also comes with important exceptions. Here, I will discuss some of those exceptions. However, first I will discuss where the change in circumstances rule comes from and why it exists in child custody cases.

read more

Sabeti Law & Associates 

  • Family law attorneys in orange county 
  • Family law private mediation 

Tel: 949-326-2626

Fax: 949-899-8259

Monday - Thursday
9:00 am - 5:00 pm
Frirday
10:00 am to 2:00 pm
Saturday- Sunday
Closed

Best Interest of the Child

Best Interest of the Child

Best Interest of the Child

The phrase “best interest of the child” is commonly used in California child custody disputes. So, it is reasonable to ask what does this phrase mean? This article is intended to help you learn the legal meaning of the phrase “best interest of the child” or “child’s best interest” in California child custody disputes. We hope you find this blog useful.

Court’s Discretionary Power

When it comes to child custody dispute in California, the law gives the family court judges a broad discretion in determining which parent gets custody. This discretionary standard means that one judge can rule in one way while another judge can rule in another way. Because the law gives this broad discretion to family court judges, it is often difficult to persuade an appellate court judge to reverse the custody determination of the lower family court. In cases where the appellate court does reverse the lower court’s decision it is often because the lower court judge has abused its discretion.  Thus, in most cases appeal can be a uphill battle.

Best interest of the child in California

Think of the concept of “best interest of the child” as a set of presumptions. What do I mean? Well, when you file a child custody petition, the court will automatically presume that it is in the “best interest of the child” to have a relationship with both parents. It is difficult to persuade the family court that “it is in the best interest of the child” to not have a relationship with one parent. Even if one parent is unable to provide adequate care, that parent is entitled to reasonable visitation.

Agreement between parents

Very often when there is a custody dispute there is some sort of temporary arrangement between parents as to custody, visitation and decision making. This agreement may or may not be in writing. However, the judge often turns this arrangement into a temporary court order until there is an actual trial as to the merits of the case. The judges do this because the law says the judge can presume that an ongoing arrangement between parents regarding custody and visitation is presumed to be in the best interest of the child unless one party shows otherwise. So, an agreement between parents as to custody or visitation can easily overcome the presumption that the child should have equal time with both parents.

Other Factors- See Family Code § 3011

What does it take to persuade a judge a certain arrangement is not in the best interest of the child? The family code gives some factors for the judge to consider. However, there are so many other factors the judge can consider in determining the best interest of the child.

Some of the statutory factors the judge will consider are the following:

  • Heath, safety, and welfare of the child;
  • Spousal or child abuse;
  • The nature and amount of contact with the parents;
  •  Abuse of illegal drugs, alcohol, or controlled substances;

Additionally, the court will consider which parent is more likely to allow the child to have a relationship with both parents. So, if the judge is persuaded that you won’t allow the child to have a relationship with the other parent, the judge may grant custody to the other parent.

Conclusion

In our opinion, you should work with a family law attorney to increase your chances of success in any family law matter outside and inside of the family court. In doing so, you will be able to use the right set of concepts and law to argue your position whether it is to the court or to the other parent.

Related Readings

Child Custody Modification

Child Custody Modification

In California, modifying a child custody order requires a proof of significant change in circumstances. However, like most rules in the legal field, this rule also comes with important exceptions. Here, I will discuss some of those exceptions. However, first I will discuss where the change in circumstances rule comes from and why it exists in child custody cases.

read more

Sabeti Law & Associates 

  • Family law attorneys in orange county
  • Family law private mediation

Tel: 949-326-2626

Fax: 949-899-8259

 

Address: 23832 Rockfield Blvd Ste # 175,

Lake Forest, Ca, 92630

Email: Contact@Sabetilaw.com 

Monday - Thursday
9:00 am - 5:00 pm
Frirday
10:00 am to 2:00 pm
Saturday- Sunday
Closed