When it comes to child custody, it is not just about determining which parent or guardian the child will live with or the amount of visitation awarded to the other parent. One of the most important things that will be decided in a divorce involving children is whether one, the other, or both spouses will have legal custody of the child. Legal custody is the right and responsibility of the parent to make decisions about the child regarding their upbringing. This includes decisions on what school they attend, what religion they observe, and which hospital they go to in the event that medical treatment is needed.
If you and your spouse have decided to divorce and have minor children, the San Diego child custody attorneys of Fischer & Van Thiel, LLP, are highly experienced and skilled divorce and family law attorneys who can provide committed and aggressive legal representation. Contact us by calling 858-935-6211 to discuss your case.
Definition of Legal Custody
The different types of custody in family law can be confusing. Some important things to keep in mind about legal custody include:
- Legal custody does not determine who the child lives with. Physical custody decides that, and it can be joint custody, sole custody with visiting rights, or sole custody without visitation.
- Legal custody gives the parent the right and obligation to make decisions that regard a child’s upbringing; things such as schooling, religion, and medical care.
- Most states award joint legal custody, which means each parent has equal influence over the issues and they both must work together to resolve disputes
- If one parent attempts to undermine the other parent’s legal custody rights in joint legal custody, they may be found in contempt of court and be forced to go through another custody battle
If you have been awarded joint legal custody, it is best to try to work together with your ex-spouse in order to avoid having to return to court to settle the issues once more.
If you and your spouse are separating and you have concerns about child custody, contact the San Diego child custody attorneys of Fischer & Van Thiel, LLP. We can help you understand your options and provide strong legal representation if necessary. Contact us at 858-935-6211 today.
Mike's Top FAQs About Child Custody401K plans and divorce
401K plans and divorce
If my spouse waives his right to my 401k plan, is there any circumstance that the court will still award him half or a portion of my 401k plan?
It is theoretically possible that a court can disturb an agreement to waive rights to property, but it is unlikely. Courts will generally treat agreements as contracts, and thus are likely to strike an agreement only if it is unconscionable, induced by fraud, undue influence, duress or is against public policy. The judge cannot “reject,” nullify, or modify the provisions of an agreement merely because of his or her personal belief that a different arrangement should be made.
A marital settlement agreement, or MSA, can be used as a contract between spouses regarding the division of property that would otherwise be subject to community property laws. An MSA is subject to general contract laws, meaning that it can be found invalid if terms are against public policy (which includes, but is not limited to, (a) abrogating the statutory child support duty or impinging on the court’s jurisdiction to award child support, (b) limiting the court’s exercise of child custody jurisdiction, (c) “altering legal relations,” (d) “promoting dissolution,” and (e) providing for “fault”-based penalties at marriage dissolution) . The MSA can also be found invalid if entered into as a result of fraud, duress, menace, undue influence, or other factors which may make the agreement void or invalid. Generally, an agreement such as the MSA is favored. Hence, if there are no legal or equitable grounds for rescission or reformation it is binding on the parties and the court without express approval.
Can I get child support in California if I am not getting a divorce?
I have been separated for two years from my wife, and my kids live with me. Can I get support without filing for divorce in California? We have not been living together since our separation, and even file taxes separately.
You do not need to file for divorce in order to get support. You will need to go through the court to obtain a child support order so you will have to file something. You can contact your local Department of Child support services office and they can help you get started. So while you do not have to file for divorce, you can file for a legal separation. The court needs to know that you two have in fact separated and there is one parent who is the full time provides and therefore in need of support.
Can I move out with my daughter before the divorce in California?
My wife and I are going to divorce, but we have not filed yet. We are always fighting, and my daughter, who is 7, is very stressed with the way we are living. Can I move out with her, if I do not move far away and let him see her all the time? He is not happy with my choice. Is this legal?
Yes, you can move out with your daughter, assuming there are no court orders already in place regarding custody and visitation. It is important to maintain frequent and continuing contact between the child and the other parent. When the court makes custody and visitation orders they will look highly upon the parent who facilitated contact with the child and the other parent. It is important to make the transition as easy as possible for the child.
Question: Is there a statute of limitations on owed child support?
An ex lover of mine (20 years ago) just approached me out of nowhere about getting tested to see if her son is my child. He is 20 and I live in California. I am trying to find the statue of limitations for child support if indeed I take the test and the child turns out to be mine.
Unless the mother has made a claim for child support with the welfare office or her local Department of child support services office, they cannot now collect from you on child support. Since he is no longer a minor child now that he is emancipated, there are no obligations for child support. You can get tested to see if you are the father, but you do not have to.
If the state has paid out welfare for the child, and it turns out that you are the Father, there can be some potential liability there with having to pay back the state the money they paid out. If this is not an issue, then they cannot now ask you to pay for child support.
Is the opinion of the child ever taken into consideration in a divorce?
Typically the Courts will take the child’s opinion into consideration at the age of 12. There is no set age, it depends on the maturity level of the child. If a child is of sufficient age and capacity to form an intelligent preference to custody the court can take it into consideration. It is important to note that all judges will rule for what is in the child’s best interests whether it be for the mother or the father.