How Is Child Support Calculated in California?

An order to pay child support is one of the most emotionally-draining aspects of a divorce or separation. We understand that it is one of the hardest things to go through and can be one of the most overwhelming. Every state utilizes its own guidelines for establishing child support. While they share some similarities, they can ultimately be very different. 

But how does California calculate child support? 

Depending on your case’s specifics, it may not be as simple as you would hope. If you’re like most people, you’ve never thought to look into how California determines child support before filing for divorce. Let’s take a look at the particulars of California state law.

Understanding Child Support

When dealing with child custody, judges in California must rule in the child’s best interest. The same applies to child support orders. One or both parents may be required to pay child support to cover necessary living expenses for their child.

There are two key factors judges use to determine child support. The first is the total income of each parent. Both parties will be required to fill out an Income and Expense Declaration, which will determine the final estimates. A divorce attorney from our firm can assist you in completing the form. 

The second is what’s referred to as the time-share. How much time you spend with your child gets broken down into a percentage and used with your income to determine who will be paying child support and receiving it. 

It’s possible to determine what your child support responsibilities might be beforehand. The California government provides an online calculator here that includes all the factors of the state’s guidelines. Thoroughly reading the calculator requires knowledge of California law, but one of our lawyers can help you understand what it all means.

5 Common Questions About Child Support in California

We know there are likely many questions swirling around in your head when trying to figure out how to calculate what your child support could be. We’ve answered a few of the most common questions for you.

1. What About Multiple Children?

If you have multiple children, you’ll have to make payments for each child. A judge will use the first calculation to determine each payment. However, older children will receive smaller payments than younger kids. 

2. What Does Child Support Cover?

There are specific things a parent’s child support payments are supposed to cover. These also factor into the overall payment amount. However, keep in mind that child support ensures that both parents share the responsibility in covering expenses.

All child support orders cover the basics of food, clothes, healthcare/insurance, and housing costs. Again, the party paying child support won’t be paying the entirety of these costs, just contributing. Though some other costs may not apply to your situation, these are mandatory.

Other costs that aren’t required but a judge may still order include medical bills, school-related costs (including extracurricular activities), and professional child care costs. Parents can elect to include other costs as part of child support, even if a judge doesn’t order them.

3. How Long Does Child Support Last?

As the name would imply, child support assists in raising children, but the commonly-held legal definition of an adult doesn’t necessarily apply here. While age certainly plays a role in determining when support stops, it’s isn’t always the only one. The only time that age is the sole factor is when a child turns nineteen.

A child support order may end when a child turns eighteen, but only if they have graduated high-school. An eighteen-year-old who is still a student, even if only part-time, is still considered a child and will require support. Child support payments end automatically once they are nineteen, even if they haven’t graduated.

If your child becomes independent through marriage or joining the military, they are no longer eligible to receive child support. Usually, this only happens once they are eighteen but may occur at a younger age depending on their location. You also cease to pay support for a child that has passed away.

The only time child support continues past nineteen is in the case of disability. If a court determines that a disabled adult cannot take care of themself due to their condition, they may order child support payments to continue. Such orders can continue until their condition improves, or longer if their situation doesn’t improve and allow them to provide for themselves. 

4. Is Child Support Flexible in Any Way?

California created a set of rules for determining child support called the Guideline. While the Guideline utilizes a formula to determine child support payments, the state legislature recognizes that there are unique circumstances that they must account for to maintain fairness. A judge is required to acknowledge these factors when devising the final order.

The most significant variable that can alter support payments is a large discrepancy between both parents’ income. A payer who makes considerably more money than their ex-spouse will end up paying more, but the amount may be changed. The law allows this to prevent a parent from paying more than their share of expenses. 

Something similar can happen when comparing time-share. A judge will consider how much time a parent gets to spend with their child and compare it to the financial support they provide. A parent who pays most child-rearing expenses but doesn’t get to spend much time with them may see their financial responsibilities diminish.

Of course, some factors can increase child support beyond the usual calculations. A child with a medical condition that results in high expenses will need more significant aid to have their needs met. 

Keep in mind that a judge may change the order any time after ordering it as well. Often, this can occur due to a change in the children’s or one of the parent’s lives. If reported to a judge, they may deem a necessary change. Parents can also agree to make changes with the court’s consent or challenging aspects of the order.

5. What If I Can’t Pay Child Support?

If you miss a payment, it’s best to try and resolve the matter quickly. California will go through multiple avenues to recover the missed compensation. On top of that, the state adds ten percent interest to missed payments, increasing the amount you owe. In especially bad cases, you could face severe legal consequences.

If you can’t meet your payment obligations, it’s best to talk to a family law attorney as soon as you can. Depending on why you missed your payment, you may be able to change the terms of your child support order.

Hire Azemika Law for Your Child Support Case

Our team at Azemika & Azemika has been practicing in Kern County family law for over thirty years. If you need a family law attorney to help with your divorce, child visitation or support, custody, or adoption, you can count on us.
For comprehensive representation in any child custody and child support matter, call Azemika & Azemika Law. We will fight for and protect you and your family during the separation and divorce process. Contact us online or by phone to arrange an initial consultation with our attorneys.

Why Adopt an Adult?

gavel court for adult adoption

When people think of adoption, most picture a husband and wife holding a young child. It is, after all, their dream of being parents coming true. Another image that comes to mind might be a family of children of various ages in a courtroom finally being adopted by their happy looking new parents. 

However, there are actually many cases where people choose to adopt an adult. It could be for a legal reason, or perhaps a more personal one. Whatever the cause, legally adopting an adult has its benefits for all involved. 

The Legal Standpoint

The most common reason someone would like to adopt the adult in their life is to change the adult’s last name legally. People can go and have their names changed in the court system without the cost and paperwork of adoption. However, the more personal touch of asking the step-parent to be their parent legally makes the legal step feel more of a family coming together than something for the court system to simply officiate. 

Also, adopting your step-child or foster child will give them a legal standing if you die without a will. While several people are making their end of life plans, some pass on unexpectedly without taking the time to have provisions to care for all the children they want to provide for after they have left this world for another. Adopting an adult gives them legal standing in inheriting from the estate of a deceased family member. 

Another reason one might adopt an adult is if the adult in question has a disability that will require decisions made on their behalf in the near future. The disability could progress to the point the adult needs to have someone making all the medical and financial decisions for them. 

It would leave the disabled adult vulnerable to someone who would take advantage of them if they did not have an immediate family member to do it for them. Adult adoption is the simplest solution to this type of problem plaguing thousands of adults with disabilities. 

While these solutions have a personal connection, they are not solely for personal reasons. There are a few reasons, while they have a legal association, that are done for a more personal, emotional reason.

The Personal Side of Adult Adoption

Aging out of foster care for is often not a good experience. The new adult has worries about where they will stay, how they will support themselves, and if they will have anyone to help them on their beginning journey into adulthood. 

Foster parents who received their child into their late teenage years and loved them as one of their own can adopt the new adult with their consent. It will give the new adult the support system they need to help succeed in the world they now don’t have to navigate alone and give the adult an emotional bond often missing in foster children who age out without a solid family structure. 

There are also cases where a child will find their biological parents after being in the system for years, or perhaps adopted when they were babies after the parents gave up the child for their own personal reasons. The adult may decide to allow their biological parents to adopt them to give themselves some closure, among other personal reasons.

The parents may also want to adopt the biological child they gave up to make sure the child is provided for from their estate and give themselves some sense of relief. However, the adoption between the biological parents and the adult may negate any inheritance the adult may receive from their adoptive families unless there is a will specifying they get anything from an estate. 

Another reason someone goes for adult adoption is when an adult wants to make their step-parent “legally” their parent. For whatever reason, the step-parent had been longer in their life and, in some cases, in better ways than the biological parent. 

The child reaches adulthood without the parent being able to adopt them for one reason or another. Now that the child is an adult, the two consenting parties can make the step-parent “officially” the parent by the adult adoption process.

Navigating The Whole Process

In some areas, adopting an adult is as easy as filling out paperwork, however the process does require care and attention. It is always best to have an experienced California family law attorney on your side. Azemika & Azemika can help.

We are family law specialists and we understand that each case is as unique as the clients we represent. For comprehensive representation in the adoption process, contact us today.

What You Need to Know About Adopting Your Stepchild in California

parent washing dishes with child for Adopt a Stepchild in Ca case

The bond between a step-parent and step-child can become even stronger than that of the noncustodial parent. If the noncustodial parent is absent or has terminated their parental rights, adoption is an option that may be right for you and your family.

It may feel daunting to consider adopting your stepchild in Ca, but with some thought, preparation, and the right legal resources, your adoption can go smoothly. In this article, we will cover the process of step-parent adoption.

Requirements to Adopt

There are many things to consider when you want to adopt a stepchild in Ca. Before, the process takes as little as 180 days or may take longer depending on the case’s complexities. 

Before deciding to adopt a stepchild in Ca, there are some requirements you need to make sure you meet. The criteria are:

  • Biological and Adopting Parent Relationship – The biological and adoptive parent is required to be legally married or in a domestic partnership to file for the adoption. There is the option of a “second-parent adoption,” however, that is a more complicated process.
  • Adopting Parent Age – A parent adopting a stepchild must be 18 years old or older and at least ten years older than the child. Sometimes, the 10-year requirement can be waived depending on the circumstances.
  • Biological Parent/Spouse Consent – Both the adopting parent, their spouse, and the biological parent must agree to the adoption.
  • Consent – The child’s other biological parent must give consent to the adoption. If there is no consent, the adoption may still proceed but will not be considered an uncontested adoption. The adoption procedure will differ if consent is not able to be obtained. Some of the reasons for proceeding without consent are willful failure, abandonment, and alleged parental rights termination.
  • Consent of the Child – The adoptive child must consent if they are 12 years old or older. 

Next, we will take a look at the steps to adoption by a step-parent.

How to Adopt a Stepchild in Ca

Step 1. Filing for Adoption

To begin the adoption process, an adoption request form must be filed. This form must be completed with information about the step-parent, their relationship with the child, and information relating to the parents or other guardians that may affect the courts’ determination. 

Step 2. Social Services Investigation

After filing for adoption, the court will contact the Social Services office in your county to complete an investigation. They gather relevant identifying documents, such as a birth certificate. Next, they interview both the biological parent and the adoptive parent. In most cases, they will interview the child as well. 

This investigation is often brief and straightforward, following the State’s guidelines for adoption in the child’s best interest.

Step 3. Termination of Parental Rights

The other parent of the child must be living to terminate their parental rights. This frees the other parent of obligations like child support and any court-ordered visitation rights. If the non-custodial parent agrees to terminate rights, a form is completed and submitted to the courts.

The non-custodial parent may not be willing to participate or unable to be found for their signature. Unwillingness to consent does not mean the parent will fight the adoption, but rather that they are not interested in participating. 

When a non-custodial parent cannot be found, you must take all reasonable efforts to locate them. If the non-custodial parent cannot be found, a petition is filed with the court, and a judge determines if their rights are to be terminated. 

Step 4. Court Hearing for Adopting your Stepchild in Ca

The last step of the adoption process is a court hearing. A judge legally formalizes the adoption. This is generally a happy event. Friends and family attend to support the adoptive parent and may even take a photo with the judge.

Same-Sex Couples

The legalization of same-sex marriage came with the presumption of parentage by non-biological parents of children born during a marriage. When one parent in the union has a biological relationship to the child, but the other doesn’t, a step-parent or second-parent adoption can secure legal rights for the non-biological parent.

If a child is born from a previous marriage, same-sex couples can still file for adoption. For adopting your stepchild in Ca, they must meet the requirements and follow the same process outlined above. 

Finding the Right Attorney

It is possible to file for adoption without an attorney, but it may be more difficult and costly. Finding an attorney who specializes in adoptions provides you with counsel and guidance throughout the adoption process. 

At Azemika & Azemika, we are devoted to family law. We are experts at cases involving dissolution of domestic partnerships, divorce, visitation, child custody, paternity, child and spousal support, adoptions, and abandonment. 

We have successfully handled some of the most challenging family law cases in Kern County. We aim to provide all of our clients with very knowledgeable, aggressive, and affordable representation.  Contact us today for a consultation with one of our experienced attorneys and let us fight for your family. 

What You Need to Know About California Divorce Law

Attorney with court gavel for California Divorce Law

When love doesn’t end up as “til death do us part,” you need to know your rights. There are many things to consider, both for your financial and legal rights. 

In California divorce Law, family circumstances such as the number of years married, children, and spousal support will determine the rights and length of time for the divorce to be final. 

California is a “no-fault” divorce state. This means that no party is found at fault in the divorce. The most common reason for filing is irreconcilable differences, meaning that you have exhausted all means of reconciling and still want to get a divorce. 

So, what are your rights in the state of California? Let’s take a look at them.

Division of Property for California Divorce Law

In California, your property is considered either separate or community property in the case of a divorce.

Separate Property

Separate property refers to any money or debt belonging to an individual before the marriage. The property may be:

  • Any real property owned – houses, rental properties, etc.
  • Any gifts or inheritances received from family or other individuals
  • Property in one individual’s name only during the marriage but not used by the other spouse or for the benefit of the marriage
  • Any property or debts designated as separate in a prenuptial agreement

Community Property 

This refers to any real property, money, or debt obtained during the marriage and benefits both parties. In California, this property is to be equally divided between both parties of the divorce. 

The type of property considered community are:

  • House
  • Car
  • Furniture
  • Clothing
  • Bank accounts and cash
  • Pension plans and retirement accounts
  • Business
  • Patents

If there is no legal way to divide equally, both parties will need to agree on the property’s distribution. 

Commingling Property

When there is a combination of community and separate property, this is called commingling property. 

For example, if a spouse owned a house before the marriage and sold it after getting married, using the profits as a down-payment on a new home, the down-payment is considered separate property. But if the house payment is made using both parties’ income, the equity is deemed commingled. 

It can get complicated separating commingled assets. Your lawyer and the courts use different methods to trace the assets’ origin and determine how to divide them. It’s best to consult a lawyer to figure out the best way to approach dividing commingled assets. 

Same-Sex Marriage & Divorce

The U.S. Supreme Court declared same-sex marriage legal nationwide in 2015. In California, same-sex divorce is the same as a heterosexual divorce. 

As long as you meet the legal requirements, including residency, the divorce will proceed as usual. Property and child support are also treated equally under California divorce Law. 

Spousal Support (also known as Entitlements)

Upon divorce, you may be entitled to spousal support. There are specific requirements to determine eligibility for entitlements. The spousal order outlines the amount a spouse or domestic partner pays the other party. 

The following conditions qualify for spousal support are:

  • The length of the marriage
  • Any issues of domestic violence
  • The age and health conditions of both parties
  • Ability to pay by supporting spouse
  • Tax consequences
  • The goal of self-support

If you feel you are entitled to spousal support or want to know your options, your lawyer can advise if you meet the requirements and how to proceed.

Child Custody & Support

Child custody and child support can get messy and complicated. It’s best to work with your lawyer to determine the best way to proceed. California custody and support laws do provide guidelines for determination. 

The court uses the following criteria to determine child support:

  • Net income of both parents
  • Age of children
  • Time children spend with each spouse
  • Who declares children as dependent for tax purposes
  • Retirement plan contributions
  • Health insurance costs
  • Mortgage interest and property taxes of both parents

As far as custody of children goes, there are two types: Joint & Sole custody. Joint custody is when both parents share the rights and responsibility for the child(ren) to make decisions on health, welfare, and education. 

For sSole custody, one parent has the full responsibility of health, education, and welfare of the children(ren). In joint custody, the children(ren) spends time with both parents as determined by each party and the court. When sole custody is determined, the children(ren) live with one parent, and the other parent has visitation as determined by the courts. 

Where to Find Help

At Azemika & Azemika, our law firm’s practice specializes in the field of family law. As a result, we can handle divorce cases, dissolution of domestic partnerships, child custody, visitation, child and spousal support, paternity, abandonment, and adoptions. 

With efficiency and great attention to detail, our partners at Azemika & Azemika Law use our vast experience in family law to customize each case to our clients’ needs. Contact us today for a free case consultation.

Setting Aside Family Law Judgements in Kern County

Setting Aside Family Law Judgement in Kern County and child custody attorney bakersfield ca

Divorce or legal separation proceedings are already emotionally taxing on the involved parties, especially when a verdict is unfair. Setting aside family law judgement is a particularly complex process that you cannot handle without an experienced family law attorney.

The Code of Civil Procedure and Family Code has many applicable laws you will need help navigating. An easy way to avoid this situation entirely is by contacting an attorney before you sign any agreements but, assuming you are already in an unfavorable position due to a signed settlement, we will address your options at that point. 

This legal guide will help you understand the process of setting aside judgments and will help you understand how the process is started. 

How Do I File A Set Aside Order in Kern County, California? 

So you signed a settlement agreement in your divorce or separation case, and now you think there is something legally incorrect about it. First, you will need to establish legal ground for your order. Your attorney can assist you in this process. An attorney can scan the agreement and establish permissible legal grounds for your set aside order.

It starts with an RFO. 

After speaking with an attorney and establishing your legal footwork, you will need to file an RFO or a Request for Order. This document is the first part of the process for setting aside a judgment. It contains certain forms and other pleadings. In the RFO, you will address what relief you are seeking and why. Additionally, you can file another declaration that sets forth your testimony as to why the judgment should be set aside. You and your attorney will need to write it on a pleading paper, sign and date it.

You have to file the RFO in the same court which reached the initial judgment in your divorce or separation case. The standard recommendation is that you file a Points and Authority for your motion when trying to set aside a judgment in a family law case. 

What Law Can I Cite For My RFO? 

What laws you reference in your RFO depend entirely on your legal argument for a set-aside judgment motion. In family law, a common procedure for arguing against the judgment is under Civil Procedure 473(b) which is seeking relief from the judgment against you due to your or your attorney’s mistake, excusable neglect, inadvertence, or surprise. If you are claiming it under your own mistake or neglect setting aside judgment is at the court’s discretion. However, if it was a mistake made by your attorney, the court must grant you relief from the judgment. 

There are only two avenues that constitute a mistake or neglect when citing Civil Procedure 473(b) as the argument in your RFO. There is a mistake of fact and a mistake of law. These are defined as the following: a mistake of fact is when you believe the facts are different than what they actually are, and a mistake of law is to misunderstand the legal consequences of known facts.

You can apply a claim of surprise or inadvertence to your proceedings if you are placed in a situation to your detriment through no fault of your own. Considering surprise or inadvertence, the court assesses whether these occurred by determining if an average person under similar circumstances might have made the same error as you. 

Excusable neglect is applied to your pleadings if you suffer from a disability, such as mental confusion, certain illnesses, or if English isn’t your first language. 

How Much Time Do I Have To File My Motion?

You have six months to file your relief motion under Civil Code Procedure 473(b). It is important to note that when you are seeking to set aside a default judgment, the six month period begins from the entry of default, not the entry of judgment. Or in the case of citing your attorney’s mistake as the reasoning for relief, the six-month period begins from the entry judgment date. 

Regardless, It is important that you act fast if you decide to file a motion to set aside a judgment. Six months may seem like a long time, but legal proceedings can take months, not to mention the time it takes finding the right attorney for you.

Contact an Experienced Kern County Family Law Attorney

Setting aside family law judgement requires an attorney’s detailed expertise.
At Azemika & Azemika Law, we are dedicated to providing aggressive and knowledgeable service at an affordable cost. It is a fact that a breakdown in a relationship or marriage can be stressful and traumatic. With a combined total of over 42 years of experience in Family Law Matters, our partners are exclusively devoted to assisting our clients through these difficult times by restoring the peace of mind you and your loved ones deserve.

Father’s Timeshare for Child Support Is Zero Despite Mother’s Interference with Father’s Visitation

sample case about legal custody of Child and child support in california

In a partial reversal, a California Court of Appeals has ruled that a Trial Court was wrong by attributing extra unsubstantiated timeshare to Father to compensate for Mother’s alleged interference with and prevention of Father’s visitation with Child. According to the Appellate Court, actual timeshare must be used in calculating child support, which is not affected by one parent’s deprivation of other parent’s visitation rights.

In the case of County of San Diego v. P.B., Mother and Father were married in 1998; their Child was born in September 2001. In 2006, Mother filed for divorce. Child custody, child support, and visitation became issues of ongoing contention and dispute. Mother and Father had joint legal custody of Child, but Child lived with Mother, and Father had a fifty percent (50%) timeshare.

In 2011, “an incident at a restaurant” caused Father’s timeshare to change from fifty percent (50%) to supervised visitation only. From October 2014, through July 2015, Father had a twenty- nine (29%) timeshare. Meanwhile, in September 2014, Mother filed a motion for increased child support and determination of arrearages in the Family Support Division.

In October 2015, a family court services counselor prepared a report regarding the custody dispute. That report stated that the 2011 incident had caused Child to be seriously afraid of Father and to not want anything to do with Father. The counselor reported Father’s claim that Mother made false accusations against him that detrimentally affected his relationship with Child. Child told the counselor that Mother had told him about examples of Father’s bad parenting in Child’s childhood, but he had no independent memories of them. The counselor concluded that Child was “emotionally stunted” and could not “psychologically see himself as a separate person from his mother.” Child’s memories of the restaurant incident served to validate Mother’s views of Father and made Child oppose any efforts to reunify with Father. The counselor recommended that Mother and Father have joint legal custody of Child, with sole physical custody to Mother and no parenting time for Father.

In September 2016, Mother and Father stipulated to a final custody order that provided for Father and Child to begin reunification therapy, and that after 60 days, Father could have increased parenting time up to fifty percent (50%) unless Child’s attorney or the reunification therapist opposed it on the basis of Child’s best interests. However, reunification therapy did not go well (Child threatened suicide and was taken for hospital evaluation). Father then filed a motion to modify custody, based on Mother’s having “brainwashed” Child and her determination to keep Child and Father apart. As to child support, Father’s attorney argued that Trial Court should attribute a fifty percent (50%) timeshare to Father, per parties’ stipulation, because of Mother’s efforts to thwart visitation. Trial Court made no finding of visitation interference by Mother, applied a zero timeshare, and ordered Father to pay $819 per month for child support, retroactive to October 1, 2014. Trial Court remarked that it might use another timeshare if it found that Mother had interfered with Father’s visitation.

In March of 2017, Father submitted a declaration contending that Mother interfered with his visitation time and failed to support his reunification therapy with Child. At a hearing on child

support in the Family Support Division in May of 2017, Trial Court made an interim order, based on allegations of alienation in the custody dispute, wherein it found that timeshare was 50/50 and ordered no child support. Trial Court reasoned that it would be inequitable to permit Mother to ignore or interfere with the stipulated timeshare and then seek added support on the basis of increased timeshare. Mother objected on the basis of California Family Code Section 3556 [enforcement of child support order not affected by custodial parent’s refusal to permit visitation].

At the next hearing in September 2017, Mother told Trial Court that Father and Child were undergoing conjoint therapy, but Child still refused any visitation with Father. Trial Court updated its interim orders, set child support at $286 per month from October 2014, through July 2015, using a 29% timeshare. For the period from August 2015, through December 2016, Trial Court used a 2% timeshare and ordered child support of $817 per month. From January 2017, forward, Trial Court set timeshare at 2% and child support at $892 per month plus back child support of $200 per month.

At a custody hearing in December 2018, Trial Court noted that Father had had no contact with Child, except for therapy sessions, since August 2015, and their estrangement was virtually total. Trial Court found it unclear that Mother had caused the estrangement, but recognized that Child was then 17 years old, which made a reconciliation highly unlikely. It cautioned Father that estrangement was not a defense to paying child support. Trial Court concluded that Mother and Father would have joint legal custody of Child, with Child to reside primarily with Mother and visit Father only by mutual agreement.

At a final hearing on child support, Family Support Division Trial Court commented that the evidence seemed to show that Mother’s actions were largely responsible for the estrangement between Child and Father and that the estrangement constituted a special circumstance. In a final child support order issued on January 18, 2019, Trial Court made no change to existing support order for the period of October 1, 2014 through July 31, 2015. For the period form August 1, 2015, through December 31, 2016, Trial Court attributed a 29% timeshare to Father and ordered $529 per month for child support. For the period from January 1, 2017, through October 31, 2017, Trial Court attributed the same timeshare, despite no visitation, and ordered Father to pay $649 per month. From November 1, 2017, forward, Trial Court applied a zero timeshare and ordered Father to pay $970 per month. Trial Court acknowledged Mother’s contributions to the estrangement.

Claiming that Trial Court erred by attributing extra timeshare instead of actual timeshare, Mother appealed Trial Court’s ruling, and now California Court of Appeals has reversed Trial Court in part and remanded the case back to Trial Court for further proceedings. According to the Appellate Court, (1) Trial Court stated no valid legal or factual basis for attributing extra timeshare; (2) Trial Court may not modify child support as a means of coercing custodial parent into compliance with custody orders; (3) Trial Court’s method of calculating child support was “tantamount to withholding child support” and was inconsistent with applicable law; and (4) Father’s parents’ payments for Father’s legal fees do not qualify as recurrent monetary benefits that are available for child support calculation. The Appellate Court has reversed the child

support calculation for time period from August 2015, through October 2017, and has remanded the case back to Trial Court for recalculation based on Father’s actual timeshare.

Moving Away: California Child Custody and Relocation

Moving Away California Child Custody and Relocation | child support lawyers in bakersfield ca

Divorce is a tough and emotionally painful process to go through, and when there are children involved, the stakes only increase. What happens when a custodial parent wants to move away with their child in tow? How do you contest it or defend it? 

Having a divorce attorney can help you navigate these grey areas to the letter of the law and  determine the best course of action for you and your family. 

What Constitutes ‘Custody’?

Before we can discuss moving away, it would be helpful to clarify what custody means, and the different kinds of custody a parent or caretaker can have.

When a couple divorces, they reach an agreement on where their children will live and how visitation works between the two households. If a decision can’t be reached, a judge will determine what is in the child’s best interest. From there, custody can be unique based on the conclusions reached by the court and the couple.

Physical Custody

This determines which of the parents the child in question will live with. This is the ‘custodial’ parent, and they have the specific right to have their child in their home. The other parent is the ‘noncustodial’ parent, and although they have visitation rights, they have more limitations than the custodial parent.

Sole or Joint Physical Custody

Joint physical custody” occurs when parents both spend equal time with their child, such as having the child on school nights versus having them on weekends. 

However “sole physical custody” is when the everyday care and nurturing of the child falls to one parent, while the other works within their visitation rights. 

Legal Custody

This refers to whichever parent can make legal decisions for the child. They’re the one who has the final say in regular healthcare, school and education, and religious decisions. 

Joint or Sole Legal Custody

In California, both parents receive joint legal custody for their child unless one parent is deemed unfit to make the necessary decisions, if it’s in the best interest of the child for one parent to make the legal decisions, or if the parents cannot get along to make these necessary choices. 

If this is the case, then the parent deemed fit would have sole legal custody.

Is A Custodial Parent Allowed To Move Away With A Child? 

The custodial parent is allowed to move away with a child as long as this move won’t interfere with the child’s best interests. 

A noncustodial parent in a joint custody situation would need to have an adjusted court order to move out of state with their child. 

Providing Notice and Altering Court Order

In order to move out of state with the child, the custodial parent must provide a written moving away notice if they will be away for more than 30 days. This notice must be sent at least 45 days prior to the move so that both parents can work out their new custody agreement. 

However, if the noncustodial parent disagrees with the move, they can file an objection and request that the court modify the custody as it currently stands. 

What Happens In Court During A ‘move-away’ Situation?

Don’t be caught unaware by what goes on in court, a family law attorney can help get everything in order for this proceeding.

The Hearing

If one of the parents objects to the move, there will be a court hearing to determine if the move is unsafe or not in the best interest of the child. A judge will schedule this meeting in order to make a ruling on any custody changes or allowances. 

Just because a move will be hard on a child doesn’t mean that custody will be adjusted. The noncustodial parent needs to prove that the child will be negatively impacted in a detrimental way by this move. Similarly, in a joint custody disagreement, the custodial parent will need to prove that this change will be in the child’s best interest. 

Factors to Consider 

A court, while determining whether a move is in a child’s best interest, will consider the following factors: 

  1. The child’s current need to maintain continuity, stability, and security.
  2. How far away this move is from the current location.
  3. If there’s a risk of harming the child during the change in custody.
  4. How this move will impact the relationship of the child with both parents.
  5. If moving will negatively impact the child’s relationship with the nonmoving parent.
  6. Why the custodial parent has decided to move.
  7. The parent’s relationship with one another and if they are able to communicate in a civil manner.
  8. How the child’s educational, physical, and emotional needs will be satisfied by this move. 
  9. If there is an extended family for the child in either location. 
  10. Anything else the court decides should be considered in the move-away case. 

You Don’t Have To Face Divorce Alone

A ‘move-away’ order can turn an already difficult divorce into an even more complicated situation. But you don’t have to find your way out by yourself. Kern County family law attorneys Azemika & Azemika can help you and your child move forward and move on with your lives. 

At Azemika & Azemika, we understand family, and are willing and ready to be your rock in this trying process. Contact us now if you or a loved one are considering beginning the divorce process or are facing a ‘move-away’ order. We’ll fight for you and your family.

How Does Legal Separation Work in California?

paper cut family showing divorce mistakes and terminating parental rights

Even though they share some similarities, legal separation and divorce are not the same thing. They both involve the couple living apart from one another with a specific legal agreement in place but legal separation does not completely dissolve the marriage like a divorce does.

In this article, we will detail how legal separation works in California, and when it might be the right choice for you.

What is Legal Separation?

Legal separation requires court-appointed agreements to be put in place, just like a divorce. The couple and their lawyers must reach agreeable negotiations that will be filed with the court. In a legal separation, the marriage is still intact, but with stipulations.

A legal separation agreement will take on all of the issues that are covered during a divorce proceeding. 

Both spouses need to agree to a legal separation in the State of California in order for it to take effect. If your spouse does not agree, you may have to file for divorce.

Pros of Legal Separation

Deciding to go down the path of legal separation is a personal decision that only you and your spouse can make, and you should put considerable thought into the decision.

If you are considering a legal separation, you should always seek the guidance of a skilled attorney who specializes in divorce and legal separation

For many people, legal separation is the first step to a final divorce. Reasons such as tax benefits and religious convictions can inspire a couple to become legally separated before deciding to completely dissolve their marriage.

Many times, a couple will determine that they may not be able to remain under the same roof, but they have a good reason not to divorce either.

Here are some reasons why you should consider legal separation:

  • You and your spouse will continue to receive health insurance from the subscriber’s plan. 
  • You and your spouse will still continue to benefit from federal tax breaks for married couples.
  • There is still a possibility of reconciliation. With a legal separation, you and your spouse can still decide to keep your marriage intact after some time apart. Many couples go to marriage counseling during a legal separation.
  • You or your spouse may not believe in divorce due to religious convictions.
  • You might be financially unstable and staying legally married will help with living costs. 
  • If you or your spouse are eligible for the other’s social security benefits. This sum of money increases after ten years of marriage.
  • You aren’t ready to negotiate a full-blown divorce agreement. Legal separation will protect your rights and financial interests while you decide if divorce is the right decision. 
  • If you plan to stay separated on a long-term basis, a legal separation agreement will keep your interests legally protected.
  • Legal separation covers all the issues covered in a divorce. This includes child support, custody, asset and property division, marital debts, and spousal support.

California Residency Requirements and Exceptions

Certain residency requirements must be met to get a divorce in California. At least one spouse has to be a California resident for at least six months and a resident of the county where the divorce is filed for at least three months. If both spouses have lived in California for at least six months but have lived in different counties for at least three months, then either spouse can file in their respective county. 

Couples who originally registered their domestic partnership in California do not need to fulfill any residency requirements to get a divorce. They can get a divorce regardless of where the partners are living. However, if their domestic partnership is registered in a state other than California, they will need to meet the same residency requirements as married couples. 

If neither spouse/domestic partner can meet the residency requirements, one of them can file for a legal separation and then file for a divorce after the residency requirements are met.

California Grounds for Legal Separation

California courts do not require either spouse to show fault in order to get a legal separation or divorce. It is a “no-fault” state, where one spouse just needs to allege that the couple has “irreconcilable differences” and that the marriage is no longer sustainable. “Irreconcilable differences” means that there are substantial reasons for the marriage to be dissolved.

To obtain a legal separation on this ground, both parties must agree. This requirement gives the responding party the ability to prevent the legal separation. 

Contact Azemika & Azemika Law for More Information on Legal Separation

Deciding to proceed with legal separation or divorce can be stressful. It is important to have a knowledgeable, experienced attorney at your side. At Azemika & Azemika, we are here to support and guide you through this difficult time. We are well-versed in the areas of legal separation and divorce, and we will fight for you and your family.

Contact us today to learn how we can protect you and your rights during the separation and divorce process.

Understanding Child Custody and Visitation

Understanding Child Custody and Visitation and bakersfield child support

Divorce is never an easy situation, especially if there are children involved. Understanding how custody and visitation rights are assigned can help make the process smoother. These two arrangements compose a parenting plan, for which you and your former spouse must provide input. In California, a judge will formalize this plan. Let’s take a closer look at child custody and visitation arrangements.

What is Custody?

If you have custody of your child, you hold a set of responsibilities for their care. There are two main types of custody: legal and physical. If you have legal custody of your child, you are responsible for essential decisions in their lives (e.g. medical care decisions, where they attend school, what church they attend), even if they do not live with you. If you have physical custody, the child lives with you for at least part of the year. In general, the parent who spends less time with their child will be ordered to make child support payments to the primary parent. 

Legal and physical custody do not necessarily coincide. A parent may have legal custody even if the child only lives with them part-time or not at all. Both legal and physical custody can be arranged as “joint” (in which parents share responsibilities) or “sole” (in which only one parent holds these responsibilities). In cases where one parent has sole physical custody or primary residence of the child(ren),  the other parent will have visitation rights.

What is Visitation?

If a parent has the child less than half the time, they are considered to have visitation. Visitation may be arranged on a set schedule, e.g. every other weekend, half of all major holidays and shared summer months or it may be called “reasonable visitation as mutually agreed upon,” in which parents work it out between themselves. It is generally not recommended to not have a set visitation schedule and instead leave it as “reasonable visitation as mutually agreed upon.” 

Divorced couples who may get along at the beginning of their divorce case may not get along as time goes by. Therefore, when you leave the visitation order as “reasonable visitation as mutually agreed upon, the party who has physical custody of the child may not agree to any visitation out of spite.

If a judge determines that one parent may cause distress or risk to a child, or if the child has been estranged from that parent for some time, the court will order supervised visitation. In these situations, a professional supervisor will be in attendance while the child and parent interact. Other reasons for supervised visitation include a parent’s recent criminal conviction and proven drug and alcohol addiction or issues.

How Are Custody and Visitation Arrangements Determined? 

During amicable divorce proceedings, both parents can work with the court to determine an appropriate arrangement. For example, if one parent intends to move far away or work long hours, the other parent may receive primary physical custody because they are better able to provide for the child. In many such cases, the parents will split responsibilities as evenly down the middle as possible.

In situations where parents cannot agree on a schedule, the court has reason to suspect that one parent is ill-equipped to care for the child, or if the child of a certain age requests that one parent be their primary caregiver, the judge is required by law to create an arrangement that is in the best interest of the child. 

Factors such as the child’s integration into their school or community, special health needs, and the child’s overall age and maturity are taken into account. A child’s preference will also be weighted according to their maturity level and any input from a third-party child advocate. For example, the preference of a child who wishes to live with the parent who supports their extracurriculars will be considered to have more weight than that of a child who wants to live with the parent who feeds them ice cream and pizza.

The court will also evaluate each parent’s ability to emotionally provide for the child. Per California law, neither parent may be granted custody on the basis of their gender. Rather, both parents will be asked about their emotional connection to the child, care for their home environment, and other factors that impact the child’s well-being.

When Might Custody or Visitation Be Denied? 

If either parent has a history of abusive or violent behavior, or substance abuse, they may be considered less fit to care for the child. In most cases where one parent has been convicted of domestic abuse charges or in which the child was conceived through rape, custody and unsupervised visitation, if any, will not be granted to the offender. 

If a child protective agency has found that one or both parents have engaged in abusive behavior toward the child (or exposed the child to a traumatizing environment), the judge is likely to deny or strictly limit custody and visitation. 

Moreover, a parent who misrepresents the behavior of the other parent in order to gain primary custody will likely be denied custody. Child advocates will investigate the claims, and if found to be a lie, the interfering parent is not viewed favorably by the court.

In general, the judge will seek an arrangement that minimizes stress and risk to the child. That means preserving emotional bonds, a stable home and educational environment, and financial support whenever possible. 

Can The Custody Arrangement Be Changed?

Parents can request modifications to the custody/visitation arrangement if circumstances change. California courts greatly favor stability and continuity, so any parent wishing to change a parenting plan must provide clear evidence that the requested change would be in the child’s best interest. 

By the same token, a parent cannot request modification based on temporary circumstances. For example, if the noncustodial parent is away on a work trip for a few weeks, this cannot be construed as that parent having waived their visitation rights upon their return.

However, if one parent regularly skips out on their assigned visits or shows no interest in maintaining their custody responsibilities, the court may decide to revise the parenting plan and change their visitation rights. (Note that failure to make child support payments does not allow the custodial parent to deny visitation.)

Conclusion

Child custody and visitation arrangements are always developed to serve the child’s best interests. During any divorce proceedings, it’s important to discuss a potential parenting plan. If this is not possible, be honest with the court and any third-party evaluators. Doing so will help the judge order an arrangement that works best for the child. For comprehensive representation in any Child Custody and Child Support matter, call Azemika & Azemika Law. We will fight for and protect you and your family during the separation and divorce process. Contact us today online or by phone 661-322-8166 to arrange an initial consultation with our attorneys.

California‌ ‌Divorce‌ ‌Questions:‌ ‌Direct‌ Tracing‌ Community‌ ‌Property‌ ‌vs.‌ ‌Separate‌ ‌Property‌

a figure representing Direct‌ Tracing‌ Community‌ ‌Property legal process

Getting divorced is stressful and complicated enough. Figuring out how to divide your assets adds a layer of complexity that can seem overwhelming. With the right team on your side, understanding the different ways to separate and identify what property belongs to who can be a much simpler experience. Here’s the difference between direct‌ tracing‌ community‌ ‌property ‌and‌ ‌separate‌ ‌property‌.

Types of Property in a California Divorce

The state of California recognizes generally two types of property in a marriage: separate  property and community property. 

Separate property is property that was owned or acquired before you got married or after you were separated. If you received property by gift, bequest, or devise or descent during the marriage that was specifically gifted to just you and not your spouse, that will also qualify as  separate property. 

Community property refers to all property acquired during the marriage other than property that was acquired by way of a gift or bequest.

When the court says everything, they mean everything. Your salary through your marriage is considered community property even if you keep separate bank accounts throughout your marriage. The home you bought while married is considered community property. Everything you acquired while you were with your spouse is community property.

However, if you used individual assets to improve or acquire community assets during the marriage, you are entitled to the property or reimbursement for the cost of improvements. This can be a tricky thing to argue because the onus of proof is on you, as the court’s default assumption is that everything acquired during the marriage is community property. You have to be able to prove that you used what the court would classify as separate property assets to cover the cost before they will grant you the reimbursement or the actual property.

How to Sort Out Separate Property Claims

One of the most frequent questions we get asked is this: How do I prove that my separate property assets are my separate property assets? There are three methods that you can use to sort out separate property claims from community property claims:

Keep Property Separate

The easiest way to prove a separate property claim is to keep your separate property in a stand-alone account throughout your marriage and avoid adding community funds to this account. You should also try to avoid using separate property funds on community property assets to keep things clear and simple.

Examples of the kinds of property that should be kept in a stand-alone account include:

  • Everything you owned before the marriage.
  • Gifts you received during the marriage to just you.
  • Any inheritances you (and you alone) received.
  • Rent or profits from separate property assets.

Direct Tracing Method

Another method of identifying what is separate property versus what is community property is the direct tracing method. Direct tracing is a way of connecting the dots between separate property accounts and improvements to community property, including community investment or brokerage accounts. 

Direct tracing requires you to have proof of sole ownership of what you are claiming as separate property. These could be things like deeds, bank statements from a stand-alone account, or legal documents from a gift or inheritance naming you as the sole recipient. 

If you are using this method to prove that you used separate property to fund improvements to community property, you need to be able to show the path of those funds from your separate accounts to community accounts. If you are unable to show that through a paper trail, there is one more way to try and prove to the court that you are owed a reimbursement.

Exhaustion Method

Not all of us are meticulous record keepers. Many times in a marriage, separate property funds are used without thinking about how to get reimbursed in the case of a divorce so records just aren’t kept. There is still a way to prove separate property funds were used: the exhaustion method.

In California, the courts assume that when funds are commingled, community assets are spent first on family expenses such as bills, food, mortgage payments, etc. If you can show that there were no community funds to spend at the time of the home improvement or investment account deposit, then the court would acknowledge that separate funds were used for that expense. 

For example, let’s say that you alone received an inheritance and you and your ex-spouse agreed to use part of those funds to renovate your kitchen since your incomes were used to cover your expenses. If you can show the court that there was no way your community property assets would have been enough to pay for the kitchen renovation, the court would have to acknowledge that your inheritance funds were used and would grant you a reimbursement of those funds.

Experts Can Help Simplify the Process

Separating property is a complicated process, but you don’t have to do it alone. Enlisting the help of an expert in family law is the easiest way to ensure that you walk away with your assets intact. Family lawyers and forensic accounts can help untangle any commingled assets and work with you to show the court that your separate property is yours alone. 
Over the past 28 years, our partners at Azemika & Azemika have all successfully handled the most difficult and high asset family law cases in Kern County and we can help you, too. We are family law specialists and we understand that each case is as unique as the clients we represent. For comprehensive representation in a divorce or domestic dissolution, contact us today.