What is important in Child Custody Cases?

California Family Code Section 3020(a) provides the starting base when dealing with the issue of child custody. It states that the California Legislature finds and declares that it is the public policy of California to assure that the health, safety, and welfare of the children shall be the court’s primary concern in determining the best interest of children when making orders regarding the physical or legal custody or visitation of children.

Family courts and judges will then examine and weigh evidence in legal actions or proceedings involving the issue of child custody using a “best interest” standard in which to make their decisions. Since the primary concern and public policy for California is to assure the health, safety and welfare of children, family court judges will assess whether a ruling for legal or physical custody or visitation is one that is in the best interest of children.

California Family Code Section 3020 goes on to say, under subsection (b) of that Code, that it is the public policy of this state to assure that children have frequent and continuing contact with both parents after the parents have separated or dissolved their marriage, or ended their relationship, and to encourage parents to share the responsibilities of child rearing in order to effect this policy, except where the contact would not be in the best interest of the child, as provided under Section 3011 of the Family Code.

There is acknowledgment as seen in Section 3020(b) that children should receive and have frequent and continuing contact with both parents. When family court judges attempt to fashion orders involving custody or visitation, they will attempt to fashion such orders (after weighing the best interest of the children) such that both parents are assured of having frequent contact and visitation with their children. Therefore, parents do not necessarily gain any advantage over the other parent if one of them decides to file a petition for divorce, a petition for custody and visitation, or even a petition for paternity first before the other parent does. There seems to exist an unrealistic view that “filing first” will allow one parent to gain advantage over another in a custody or visitation dispute. The California Family Codes emphasizes and recognizes the importance that children should receive frequent and contact with both parents, in the event if that arrangement is in fact in the best interest of the children. In fact, in the case of Enrique M. v. Angelina V., 174 Cal App 4th 1148, 94 Cal Rptr 3rd 883 (2009), it stated that the United States Supreme Court has endorsed the best interest standard for adjudicating custody disputes between parents, and further held that a California trial court is required to resolve such disputes in the best interest of the child.

Parents are reminded by the Family Code that the best interest of the children comes first over any other interest, including the parents, in family law cases.

How does the California Family Code handle the issue of a child born during a marriage when the husband is not the biological father?

It does happen. Sometimes in a marriage, it turns out that a spouse has an extra-marital affair, becomes pregnant, does not tell her husband, and then the child is born during the marriage. Sometime later the secret affair is disclosed, and then it is also disclosed that the child born is not the biological child of the husband. The situation can become complicated when the actual biological father than wants to enter into the child’s life and assert his parental rights over the child while the married couple does not desire that situation. How does the California Family Code generally handle such a scenario?

California Family Code 7540 generally states that the child of a wife cohabiting with her husband, who is not impotent or sterile, is conclusively presumed to a child of the marriage. From the reading of Family Code 7540, the following elements need to be demonstrated to the family court:

1. There is a marriage;
2. The wife is cohabiting with her husband (i.e., living or residing such that the couple is making a home together by living together);
3. The husband is able to conceive children, meaning he cannot be impotent or sterile;
4. A child was born during the marriage

California case law has interpreted the application of Family Code 7540 over the years. Family courts may chose to apply or not apply the “conclusive presumption” rule of Family Code 7540 in a given case. The courts may try to balance the due process legal rights of each person affected in such a scenario where the biological father is seeking to assert his parenting rights when the child has been cared for or brought up by the wife and husband. If a family law judge believes it is in the best interest of the child that he or she be ruled to be a “child of the marriage” and thereby protecting the integrity and unity of the family, then the conclusive presumption state in Family Code 7540 will be applied.

Therefore, it is important to carefully examine the facts and evidence of a situation where another man is claiming to be the father of a child when that child was born during the marriage of a woman and another man. It is equally important for anyone involved in such a situation to obtain experienced legal representation from a family law attorney. At the Gonzalez Law Firm, with over 17 years of legal experience in matters involving paternity and custody issues, you can be assured that you will receive the best legal representation for your legal dilemma. Attorney David Gonzalez will guide you during any legal proceeding in which you face. He serves all counties, including Los Angeles, Orange and Riverside Counties, in California. You can trust your child custody matter with his firm. Call his firm at 1-877-345-2997 today for a child custody consultation.

How do I Start or Open a Divorce Case in California?

How do I file for divorce in California?

Petition for dissolution of marriage

A person that wants to file for divorce in the State of California must file a Petition for Dissolution of Marriage with their local court that supervises divorce cases. The Petition for Dissolution of Marriage is a judicial council form. The form number is FL-100 and it is called the Petition-Marriage. The form has been approved by the Judicial Council for the State of California so it is a form that is required by all court located in California. The Petition is broken down into several categories and requests certain information such as where the person who is filing for divorce has lived in the last six months, statistical information concerning the marriage, the names, date of birth, and sex of any children that resulted from the marriage, property and/or debt information concerning separate property and community property, the reason a person is requesting a divorce, and requests that a person is seeking from the court. These requests involve the issues of custody, visitation, spousal support, property rights, and name change. The Petition does not allow a person to request child support, as that issue is an issue that a family law court always maintains jurisdiction or power over, and the family court will make an order for child support as long as the court has financial information from both persons in which to make such an order.

What information is requested on the petition for divorce?

The items listed in the Petition are very important, and must be answered carefully. If a person fails to mark or indicate certain information in the Petition (for example, a person forgot to mark that she wants to seek spousal support), a court may decide not to make any order concerning that issue because of the person’s failure to ask for it in the Petition. The person filing for divorce may then need to file an amended petition in order to get that a missing issue before the court.

The Petition is usually filed along with the Summons-Family Law, Form number FL-110, when a person opens a divorce case. Many courts in California will not accept the Petition if it is not properly filed with the Petition.

If you are thinking of filing for divorce, it is best to seek an experienced family law attorney such as the Gonzalez Law Firm. Attorney David Gonzalez can properly protect your legal rights during a divorce proceeding or case. Contact him at 714-992-5217. His firm provides legal services at competitive and reasonable legal fees. His firm represents many clients whose cases are before all courts in all Orange, Riverside, San Bernardino, and Los Angeles counties in the State of California.

Parent & Teen Relationships: Communicating Expectations and Values to your Teenager

A perspective from Attorney David Gonzalez of the Gonzalez Law Firm located in Orange County, California and who regularly practices in the fields of juvenile crimes/delinquency hearings, adult criminal cases, and family law matters like child custody and divorce.

In 2013, headlines in the news and social media told of stories involving children and teenagers engaged in disruptive behaviors and crimes. Take for instance teenager, Charles Williams, who was arrested and now faces trial for a shooting spree that occurred at Santana High School in California. Another example is the notorious Oklahoma case involving three teenagers of which two are accused of killing a baseball player and the third stands accused of being an accessory to murder for helping his two teenage friends.

Many parents have sent their children to school this year with hope that their children will achieve academic success. Some may achieve it, and some may not. Some teens will form positive relationships with their peers. Some will also make positive choices that embolden their future. However, there will be teens making choices that may have negative consequences affecting them and their future. Parents who have a teenager leaning towards engaging in socially disruptive behaviors or crimes may not know what to do in order to help their teenager avoid making a negative choice. The following suggestions may assist such parents.

Knowledge

Parents need to know their teenager’s circle of friends, social media connections, passwords for all websites and electronic gadgets, and viewing history on computers. The adage of who your teenager hangs out with is what he or she may become still rings true today as it did in the past. Is your teen hanging out with teens that are part of or have ties with a tagging crew? Is your teen involved in sports with other teens of like mind and discipline? Is your teen posting on social media sites geared more toward adults? Is your teen chatting with others who live outside his or her hometown, city or state? Parents may not realistically be able to know all social media connections or websites or all friends that their teenager is involved with; however, the more that parents know the better they will be able to structure the extent of their teen’s social involvement with others and other peers. Knowledge is power, and parents with such power can communicate their expectations to their teen as it relates to their friendships and social relationships.

Communication

Parents need to communicate to and with their teen as to their expectations when it comes to chores, school and work, and life in general. Parents need to communicate boundaries and set reasonable rules or guidelines with their teens. If, for example, a curfew is set for a teenager, that teen must be told when he or she is expected to return home after being with friends. Experience has shown when a teenager is questioned as to why he or she is or has engaged in certain behaviors more often than not the teenager will reply that he or she was never told specifically that such a behavior was not acceptable.

Encouragement

Along with communicating boundaries with teenagers, parents need to provide positive encouragement to their teens. Parents need to build a relationship with them. Teenagers still need affection, love, encouragement and comfort from their parents. If parents seem to struggle with providing such emotions to their teens, it is imperative that such parents seek counseling immediately in order to learn ways in which to provide such encouragement to their teens. Teenagers still need to know that they have value in the minds and hearts of their parents. If teenagers sense that their parents do not place high value on them, they will seek value or affection elsewhere from such things as inappropriate relationships, gangs, crews, or from the use of alcohol or drugs in which to deal with the lack of value or affection they are missing from their parents. Teenagers want and need affection from their parents. They need to know they are esteemed and wanted. They need to have a sense of belonging.

Parenting Is Not Easy But Is Rewarding

Parenting is never an easy job, but it can be very rewarding. Parents can help themselves by seeking the advice and support of mentors, friends, neighbors, pastors, community organizations, or counseling when the task of rearing their teens becomes overwhelming. When parents make their teens their priority, it may then be possible to stem the tide of juvenile delinquency.

David Gonzalez

Family Law Attorney in Fullerton

Restraining Orders Can Be Obtained Against Former Lovers Who Can't Accept the End of the Relationship

Helpful Tips Regarding Restraining Orders

As Valentine’s Day approaches, many lovers will be out preparing to surprise their loved ones with gifts, dinners, chocolates, and roses. But what about the scorned lover, the person that believed their relationship was the “right one” the “soul mate of my life has been found”, what if that person just can’t accept that his or her romance with that special person is in fact over and done.

Failing to accept the ending of the relationship, the scorned lover continues to revive the relationship with his or her former lover by turning to the following behavior: constant calls, notes on windows, showing up at the former lover’s residence unannounced and uninvited, staying outside the former lover’s residence within eyesight and refusing to leave, sending emails begging forgiveness, and leaving sexually laced messages in order to spice things up again. Although the scorned lover may not in any way have physically abused the former lover, is the scorned lover’s behavior enough for a family law court to issue a restraining order against the scorned lover?

The answer is, well, yes. The California Court of Appeal, in the Second District, ruled recently as of February 11, 2014, and just a few days shy of Valentine’s Day, that a person may exhibit conduct enough to fall under the category of disturbing the peace of another as defined by the California Domestic Violence Prevention Act (“DVPA”). The appellate judges in Burquet vs. Brumbuagh (Opinion B248031), a court case coming from the Los Angeles County Superior Court, reasoned that Mr. Brumbuagh’s (here the scorned lover) continual messages to Ms. Burquet that he loved her and wanted her back, his leaving messages filled with sexual innuendos, his showing up to her home uninvited and refusing to leave when asked to do so, and his apparent inability to accept from her the fact that she was not interested in him anymore and wanted him to stop contacting her was enough evidence to hold that his behavior fell under the category of abuse and disturbing the peace for purposes of issuing a restraining order under the DVPA. The appellate judges further ruled that Ms. Burquet did not need to demonstrate any type of violence committed by Mr. Brumbaugh toward her in any way. It is worthy to note that his behavior continued for a period of months, in fact five months.

So as Valentine’s Day arrives, let the lovers bring their chocolates, exchange their special cards, eat and dine at their favorite restaurants, order the best wines, reminisce about that time “when you had me at hello”, and let each believe the other is their soul mate. But beware the scorned lover who just can’t face the facts of finality when a romance is over, dead, and no longer able to be resurrected.

If you have questions regarding a restraining order, please contact me to discuss the specifics of your case and how I may be able to help you.

David Gonzalez

Restraining Orders Attorney in Fullerton