Frequently Asked Questions
Divorce law can be a complex topic for those unfamiliar with the field. At the law firm of Fischer & Van Thiel, LLP, we have taken it upon ourselves to ensure that you are familiar with each issue that arises in a divorce.
Can I enroll my children in a school of my choosing if I am separated from my wife?
My wife and I have 5 kids. A month ago she left and moved across town. The 3 older kids (teenagers) stayed with me she took the 2 younger kids, ages 10 and 8. She then removed them from their school and enrolled them across town at another school against my objections. I want to do what is best for my kids and was wondering since we are still married and no papers have been filed, is there anything stopping me from picking my 10 and 8 year old up from school and enrolling them in their old school where they want to be?
There is nothing stopping you from picking them up, but it doesn’t solve your problem. There is nothing stopping her from then taking them out of school once again. In order to make permanent orders regarding where the children are to live and go to school you are going to have to file for divorce or legal separation and get some custody/visitation orders in place. The Court can make a decision where the kids will go to school. Their old school may be where they know everyone, but is there new school more convenient for the mom who has to take them and pick them up? These are factors the court will look at when making these decisions. Are you going to be able to help with the pick-up and drop off if you live clear across town? You need to think about what is best for the kids in the long run and that may be to go to the new school.
Can you change the determinations made in a divorce if circumstances change?
If someone uses the same divorce attorney and the divorce becomes final, can the terms be changed later? For instance, they said they would share custody of the children, but every time it’s my brother’s turn to have the kids for the weekend, his ex-wife comes up with a reason why she needs to keep them. Can he get custody in writing even though the divorce is already final? Also, his child and alimony payments were determined on his last two years of work. He has since lost his job and the ex-wife makes more than he does. Can you and how do you adjust the required monthly payments? He “owes” her $5000/month but doesn’t have a job. How is he supposed to pay this? Thank you for any help you can provide. Signed, a worried sister.
This is something that can be easily modified. You would need to file an Order to Show Cause to modify child custody, visitation, child support and spousal support. From there the parties would go to mediation and sit down with the mediator to discuss the current custody and timeshare plan. Your brother can then address all his concerns regarding the children at that time.
Support is calculated based on the parties’ income. He would need to submit updated proof of his income and expenses. If there has been a change of circumstances, the judge can revisit the support amounts and see if they are still the right amount to be paid. He needs to get the support modified ASAP, as he doesn’t pay arrears will build up and interest could be tacked on.
Can you get child custody with no job?
My husband is trying to control my every move. I want to leave but he said if I leave if can’t take my son because I don’t have a job. Could I get custody?
Yes, you can get child custody even if you are unemployed. The court considers the “best interests of the child” when determining custody and visitation. You will need to file for divorce and file an Order to Show Cause requesting that the court set orders for child custody, visitation, child support and possibly spousal support. It is likely that the court will order him to pay you support for the care and maintenance of your son and maybe even spousal support depending on your individual circumstances.
How can I retain custody of my children in California?
My wife and I have been married since 2002 and we have two children, 8 and 5 years old. She kicked me out of the house and now wants to keep the kids. She is not a US citizen and cannot become one. My kids and I are born and raised in California. What should I do?
You should file for divorce and custody of the children. She can’t just unilaterally kick you out of the house if you are both on the lease or deed. However, she can keep the kids from you until there is a court order that the police can enforce. In order to protect your rights, you should file and get a specific parenting plan laid out so in the event that she tries to keep the kids or take them you can get the police to help you. Without a court order there is not much you or the police will be able to do.
The court will not likely take her immigration status into consideration when deciding who to award custody to. The Courts look at the quality of the parent and who can provide the most stable consistent environment.
How do I get custody of my children again?
Two years ago I was at my now ex’s house with my two children when a raid took place for marijuana. I was clueless to the fact that he was growing marijuana in the garage. CPS was called and kids were taken. It has been a hopeless battle for me with false hope after me doing everything and more than was told to do I went to a very strict four days a week drug program, was drug tested three times a week, rehab, eventually rented my own apartment. I jumped through all the hoops. The father was asked to attend parenting classes and was granted full physical custody. We both share joint custody and I see my son four days out of the month and he controls everything and threatens that he doesn’t have to let me see him at all. I have not had a fair chance at all. I need help, even my criminal charges are the same as what he was charged with and I was just a guest that stayed the night at his residence.
If you have completed your rehabilitation program, are currently sober and have been keeping up with your court ordered visitation time, you will want to file an Order to Show Cause motion to modify the current custody and visitation order. Given the complexities of your case, it would probably be in your best interest to consult with an attorney.
How do I protect my children and me, as well as our rights, from my husband in California?
My husband was verbally and physically abusive towards my children and me. My friends and neighbors have documented this activity. I need to protect our rights. What do I do?
If you are in immediate danger you should contact the police. A police officer can help you obtain an emergency protective order. An emergency protective order can last for up to one week and will require your husband to stay away from you and your family. If you need protection for more than just one week, you can request a temporary restraining order. Any family law attorney can help you in filing the necessary paperwork for a restraining order. Additionally, there are many self-help centers and domestic violence programs at the courthouses in California. You can also contact the National Domestic Violence hotline at 1-800-799-7233. They can give you information regarding shelters, legal assistance, and programs that are available to help you.
If I reschedule my custody hearing court date, will that hurt my case?
I am a father and I have legal custody of my girls. Yesterday my spouse did not show to court becuase she had to reschedule. She does not work, but I do. If i miss my custody hearing, and I reschedule for the following week, is that bad for my case?
If you speak to the court and get permission to reschedule then no, it will not hurt your case. However, if you just do not show up to a hearing then that could have an adverse effect.
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.
How is child custody decided?
Generally, parents will share joint custody of any children. If parents can agree on a parenting solution, a judge will generally let this plan become the custody agreement. If the parents cannot agree on a parenting plan, or if one parent feels the other parent is an unfit parent, the judge will determine how time will be allotted with each parent.
Q: My wife is accusing me of molesting our son, what do I do?
These are very serious allegations that your wife is making. I would not make any statements to the police unless you have an attorney present. Even if you have not molested your son, the allegations will be taken seriously. Typically, Child Protective Services will be involved and will conduct an investigation to see if the molestation allegations are founded or not. If CPS has reason to believe that the child is being molested, he will be removed from the home. If not, you might want to consider filing charges against your wife for making malicious allegations against you. I would contact a criminal defense attorney to help you with your case and do not willingly talk to the police unless you have an attorney present.
Q: My common law wife of 23 years abducted our 6 year old son 600 miles away (in state) without my consent. I filed a missing persons report with the police and they have not responded. What should I do?
Before dealing with the abducted child you parental rights need to be established judicially. California does not recognize common law marriages. We would need to file a petition to establish paternity and also get you a court date for custody and visitation. Right now since there is no court order that lays out any specific rules on your parenting, the police will not do anything. You need to get a court order in place to protect yourself in the future.
Q: What is the cost of a divorce in California? My husband and I have been separated, though not legally, for over 18 months. We want to begin the divorce process, but do not know what to do. We are on good terms and share custody of the kids. Would mediation be the way to go?
The first step would be to actually file for divorce. The Superior Court of California charges a filing fee of $395. If you both are on good terms and already have a custody and visitation plan worked out, it should be a pretty simple process. If the divorce is uncontested, meaning you can agree on all the issues, you can hire an attorney do to the work for a flat fee of $2500.
Mediation would be the way to go if you could not agree on the issues. The mediator job is to sit down and listen to both parties and come up with recommendations on how assets should be split. If you guys have everything worked out, there is no need for mediation.
Q: When parents have joint custody, do both need to approve of a child moving out of state for school?
In a situation like this, you can request an order from the Court allowing your child to attend the school. You would file what is called an order to show cause and get a hearing date. You will want to present evidence as to why going away to school is in the child’s best interests. The other parent would have to submit evidence as to why it is not in the child’s best interest. The judge will be able to grant the order for the child to move away.