Grounds On Which Child Custody Orders Can Be Modified

Posted by: Gerald A. Maggio, Esq.

child custody mediation attorneys Orange County; California Divorce MediatorsOne of the most important things that parents have trouble dealing with during a divorce is child custody. Custody plans are made based on the current situation of the parent. It includes things like visitation time and agreements based on the child’s preference.

However, situations can change any time and then it becomes difficult for parents to stick to the original custody plan. At times like these the custody plan is subject to modification provided the court allows it.

Below is a list of the grounds based on which child custody plans can be modified.

Relocation

Relocation can happen for either of the parent at any point of time. Relocation is one of the major grounds on which custody plans can change. But that depends on the state. In California, there are travel restrictions for parents but if the relocation is unavoidable, the court allows the parent to change the custodial plan.

Relocation does not mean that the custody of the child will get transferred from one parent to the other. The court makes sure that the child stays in touch with both parents.

Unhealthy environment

A change in custody pans is often requested when one parent feels that the other is not providing a good environment for the children. However, the parent making the claims must provide proof and substantial evidence that the environment provided by the other parent is indeed bad.

An unhealthy environment means a parent who moves frequently, does not hold a steady job, has too many relationship and is misbehaves with the children.

Child’s preferences

California courts always take the child’s preference into consideration before passing a judgment. In fact, it is the single most important factor that determines a custody battle and custodial plan. When a custodial plan is changed, the court looks at the situation of the child and determines if changing the situation will have any effect or not.

Conclusion

Creating and maintaining a child custody plan is an important job for divorced parents as their children are at the center of it. A child custody plan can be changed anytime depending upon the situation of the parents and the children. A California court always takes the child’s preference into account and decides whether the situation will be beneficial for the child or not. A parent’s relocation and an unhealthy environment are the top reasons for the change in child custody plans.

To learn more about the divorce process in California and how mediation can help, please visit our page, What is Divorce Mediation

Advantages Of A Mediated Divorce

Posted by: Gerald A. Maggio, Esq.

Divorce Mediators Orange County; California Divorce MediatorsEvery couple who go through a rocky relationship after their marriage prefer a divorce over everything else. But couples often end up having a bad divorce, even worse than their marriage was. Things like finances, debts, assets, properties and children are all involved, not to mention the emotional and psychological trauma.

However, couples can also go through a smooth divorce if they choose to do it amicably. Such divorces, known as mediated divorce, happens when both parties decide to settle on a common ground before heading over to the court.

  1. Inexpensive

One of the major problems with divorce is that they can be expensive as hell. But in a mediated divorce, all it takes is for both individuals to sit down and decide on a settlement. The settlement includes property and asset division, child and spousal support and debt division. Hiring a divorce lawyer can sometimes be an expensive affair and couples may still end up losing more than they bargained for. Having a good discussion with your spouse before the divorce proceeding can yield beneficial results.

  1. Faster results

Divorce proceedings can take a long time before a final decision is passed. The waiting period can be strenuous and depressing for most individuals. A mediated divorce on the other hand takes less than 18 weeks on average and the end result is a lot better than the results of a traditional divorce.

  1. Less animosity

If you go through a bad divorce, it is highly unlikely that you will ever want to talk to your ex. wife. Initially, you will be fine with the way things are but after a certain period of time you will realize its after-effects. Individuals often go through feelings of guilt and shame after a bad divorce. Mediated divorce helps you avoid all of that and makes you feel less angry towards your partner.

  1. Customized solution

Mediated divorce gives customized solutions for you. Since how you want the divorce to take place and its outcome is completely in the hands of you and your partner, you can make changes as per your wish.

Conclusion

Divorces can be mentally and physically strenuous for both parties. A mediated divorce helps couples decide the outcomes of their divorce. Mediated divorces are inexpensive and yield faster and better results than traditional divorces. Couples are also saved from the psychological stress of divorce.

To learn more about the divorce process in California and how mediation can help, please visit our page, What is Divorce Mediation

How Can Non-Custodial Parents Reestablish/Improve Visitation?

Posted by: Gerald A. Maggio, Esq.

Orange County child custody; California Divorce MediatorsIt is the wish of every parent to be with his/her child after a divorce. But one of the worst consequences of divorce is that one parent must sacrifice his/her custodial rights for the other. According to state laws, non-custodial parents in California get visiting hours as set by the custody agreements. But parents often remain unsatisfied with such agreements. They want to spend more time with their children.

Consult an attorney

The best way to assess the agreement plan and work accordingly is by consulting an attorney. Non-custodial parents should seek the advice of an experienced lawyer and decide what works best for them. There are many good lawyers available in California and each offer their own set of expertise.

Always remember that every system has loopholes and a good lawyer knows where those exist and how they can be used for his/her client’s benefits.

Avoid visiting the court 

One of the best ways to increase visiting hours or even get custody of your child is by finding contempt against your spouse and filing them in a court. However, in all likelihood, the judge dealing with your case might be burdened with work and may get irritated having to deal with a case that was supposed to be finished. It is possible for your plan to backfire if the judge feels you are deliberately trying to increase visiting hours.

It is therefore advised to avoid going to the court as much as possible after a judgement has been passed. Go only if the case is serious and requires a second hearing. Otherwise, simply stick to the advice of a divorce lawyer.

Take advantage of the system

As mentioned before, the system is full of loopholes. There are problems and identifying those problems should be your main aim. A non-custodial parent may request for a change in custodial plans when there is a substantial change in the situation. Substantial change includes emergencies, health, employment or denial of visitation.

If the California court believes the changes are negatively affecting a child, it may change the visiting hours and reestablish new plans for the non-custodial parents.

Conclusion

Changing custodial plans and visiting hours once they have been established can be tough but not impossible. The judicial system has weak spots which can be used in one’s favor. Courts can change custodial plans for non-custodial parents if it finds it in the child’s best interests.

To learn more about the divorce process in California and how mediation can help, please visit our page, What is Divorce Mediation

The Difference Between Mandatory And Private Divorce Mediation

Posted by: Gerald A. Maggio, Esq.

divorce mediation attorneys Orange County; California Divorce MediatorsMediation is a process where an experienced and trained individual, in most cases a lawyer, tries to pacify things between couples so that they can avoid a divorce. Divorce mediations are usually of two types – mandatory and private. Mandatory divorce mediation is ordered by the court and is a part of the divorce proceeding. It usually arises when there are major disagreements on issues like custody and visitation. Private mediations are conducted by experienced divorce mediators and lawyers who do not work under the guidance of a court.

Mandatory mediation

Mandatory mediations are court ordered and are provided for couples who choose to go through the court system. Before their case can be heard, the court orders a mandatory mediation. It is usually done when there are children involved. California courts are strict about child custody and visitation and therefore give the couples a chance to reconsider their decision. One major flaw with court-mediations is that they are fast and do not stress much on details. They tend to miss out on the smaller and more important issues due to time constraints.

Private mediation

Private mediations are more flexible and offers couples ample amount of time to talk things over. It deals with more complex matters and allows couple to think things over before they finally proceed with their divorce. Divorce mediators are often skilled at their job and ask questions that identify key areas of problem. Private mediators provide custom solutions that work best for the family. They work within the constraints of court laws use their own methods to deal with the situation.

The major difference between private and mandatory mediation is that private mediation allows couples the freedom to choose their own time and space. Mandatory mediation may work in cases where the couples are reluctant to sit for a mediation. Private mediation keeps things less stressful and provides solution based on the need.

Conclusion

Private mediation and mandatory mediation differ on a variety of different levels and both have their uses. While mandatory mediation is court ordered, and must be attended by couples, private mediation depends on the couples. They choose the time, place and the mediator too. It gives them the freedom to spend as much time as they want with the divorce mediator. Mandatory mediation works well for some but most couples prefer private mediation due to its advantages.

To learn more about the divorce process in California and how mediation can help, please visit our page, What is Divorce Mediation

The “Right of First Refusal” Concept in California Divorce

Posted by: Gerald A. Maggio, Esq.

Orange County child custody; California Divorce MediatorsThe “Right of First Refusal” concept in California divorce and custody cases awards one parent the first option to undertake the responsibility of the child in the absence of the other parent. What this means is that after a legal custody battle, one parent can take care of the child during the time that has been allotted for the other parent. The right of first refusal allows parents to take responsibility for child care instead of awarding it to a third party.

The right of first refusal has two advantages. First, the child is not put into the hands of a third party. Second, the costs for paying the third-party care provider is also avoided.

When can the right be exercised

Parents who are unavailable to take care of their children for more than 12 hours must notify the other parent prior to the unavailability. It gives the other parent plenty of time to consider the decision. If the other parent refuses to be present at the mentioned time, it becomes the custodial parent’s duty to look for an alternative care for his/her child.

For the right of first refusal to become actionable, deciding the period of time is very important. However, since there is no perfect timeframe which decides the right, it depends on case to case. It’s a good idea to include a divorce lawyer during such matters.

One of the most important factors for exercising the right of first refusal is geography. For the right to take place, parents need to stay close to each other. If the distance is too long, the right may not be of too much help.

When can it be misused

There have been instances where the right of first refusal has been misused. If you have not enjoyed a good relationship with your spouse, then he/she may not agree to your offer. During tight-knit custody battles, such rights can make a lot of difference in custody preferences.

A divorce affects children badly. It has negative psychological effects which can become physical if ignored. Custody battles are tough and the state of California has laws to make sure the child spends an equal amount of time with each parent. The right of first refusal was created to provide temporary custody to the other parent in the absence of the first one. It helps avoid the involvement of third parties and keeps the matter between the two parents.

To learn more about the divorce process in California and how mediation can help, please visit our page, What is Divorce Mediation

Are Alimony Payments Tax Deductible?

Posted by: Gerald A. Maggio, Esq.

Orange County divorce mediation attorneys; California Divorce MediatorsAlimony aka spousal support that is paid by one spouse in the form of financial support to the other for spousal maintenance. The purpose of spousal support is to financially help the other parent maintain a certain standard of living after divorce.

Since alimony payments are considered to be a form of income, it is tax deductible. However, there are many requirements without which tax cannot be deducted from alimony payments.

The paying spouse is entitled to tax deductions for payment of spousal support

The IRS allows the one who is paying for alimony to deduct such payments from his or her taxes.  The recipient must also show the payments as a source of income. Tax deductions help both spouses save money and the IRS too can keep a track of the alimony being paid. It helps as supporting evidence when disparities in alimony payments take place. In some cases, it also helps spouses maintain a good relationship with each other which is important when children are involved.

Issues regarding spousal support and taxes

There are certain requirements without which alimony taxes cannot be applied.

  1. During a divorce agreement, the alimony must be clearly mentioned. If nothing of this sort is mentioned in the agreement, then neither parent is responsible for paying any amount of money to the other parent.
  2. Couples usually have to live separately at the time of alimony payments.

Conclusion

Alimony is an important part of divorce and both the paying and receiving spouse should be aware of how taxes get deducted from alimony. It helps save money and protects spouses from doing anything illegal. Also, unfair alimony provisions are also prevented. Since, tax deductions mostly depend on the paying spouse, keeping a good relationship helps. Alimonies are important and it helps one spouse maintain almost the same amount of lifestyle as the other spouse.

To learn more about the divorce process in California and how mediation can help, please visit our page, What is Divorce Mediation

Legal Separation Or Divorce? Which One Is Better For Children

Posted by: Gerald A. Maggio, Esq.

Orange County divorce mediation; California Divorce MediatorsFor couples who don’t want to live under the same roof anymore, the question of whether to get a divorce or not arises. An alternative to divorce is legal separation where the couples are still legally married but choose to live separately. In both cases, couples who have children often find it to be a confusing decision. Both options have their pros and cons and it is up to you to decide what you want to do.

But the question here really isn’t about the advantages and disadvantages of legal separation and divorce. It is more about your duty as a parent. Consider the following factors and then decide.

Providing for your children

The first question that you need to ask yourself is “am I independent enough to take care of my children?” This question should be asked in respect to both finances and emotions. Make sure you have enough finances to take care of the needs of your children. If you want to be truly responsible for providing for your children, you need to be emotionally strong as well. During divorce cases, custody can be awarded to the other parent if you’re not emotionally or financially stable.

Often, it’s difficult to say how children are going to react when their parents stay apart from each other. Teenagers have the right to choose whom they want to stay with but for younger children they are expected to stay with the parent who can provide for them. Divorce is a more permanent solution to separation and should be considered carefully before proceeding with it.

Being responsive to the needs of your children

Your children’s needs should be the top priority because under no circumstance can they become victims of your own personal fight. If you’re counting on a divorce and don’t want to re-consider your decision, then it’s best that you try staying separately first. Legal separation can help you decide if you really want a divorce or not. Also, it will help you understand your children’s psyche when they live separately from one parent.

Conclusion

Whether you get a legal separation or a divorce is completely your choice but a lot will depend on how your kids react to each of them. Divorces may affect them negatively and in such cases a legal separation is the preferred option. In other cases a divorce may be the best option.

To learn more about the divorce process in California and how mediation can help, please visit our page, What is Divorce Mediation

Is a Subpoena Required in a California Divorce?

Posted by: Gerald A. Maggio, Esq.

Orange County divorce mediation; California Divorce MediatorsSubpoenas might sometimes be required in some California divorce cases, but for such cases, that likely means that divorce mediation is not a viable option because at least one of the parties is not being open and transparent concerning finances. During divorce proceedings, either party or both might want to find evidence to prepare for the proceedings. Most of the time, these evidences relate to the financial information of the other party. Cases of hiding assets or getting paid under the table and declaring lesser income are not so hard to find in divorce cases. There are cases of the spouse being perfectly healthy but announcing in court that they are too sick to work. It is in cases like this, the subpoena helps locate necessary information and documentation.  Here is what a subpoena is and what it can do for your case.

A California subpoena is a document that serves the receiver with a mandatory request. Which means to whomever a subpoena is served is bound by law to oblige the acts mentioned in it. There is no way anyone can deny a subpoena unless and until they have a very good and legal reason to do so.

A subpoena is generally issued by an “attorney of record” or by the clerk of the court. Subpoena is an umbrella term which includes various types of subpoenas in it. Following are the three subpoenas that are most used in California divorce cases.

Civil Subpoena that requires personal appearance at hearing

This is the subpoena that is used to make a person, otherwise not willing to appear at the trial, be present at an evidentiary trial. This is often used for witnesses unwilling to be at the hearing.

Civil Subpoena for production of documents and objects at trial

This subpoena, also known as the Duces Tecum, also requires a person to be at the trial. However, in this particular subpoena, the said individual is also required to bring certain objects or things with them at the trial. Financial records are often asked to be presented under such subpoenas.

Deposition Subpoena for presenting business records

In the cases where the other party is hiding their income or assets, this subpoena can be very helpful. It is used to acquire business records only. For example, credit card statements, bank statements, police records, hospital records etc.

Subpoenas can help you in getting accurate and complete documents which might have been hidden otherwise. These documents apart from being complete are certified as well, ensuring accuracy. In case, you can prove that the other party had refused to comply with your initial informal request for disclosure of assets or documents then you can ask the court to punish the other party with court sanctions.

To learn more about the divorce process in California and how mediation can help, please visit our page, What is Divorce Mediation

Legal Issues Regarding Surrogacy

Posted by: Gerald A. Maggio, Esq.

California Family Law Attorneys; California Divorce MediatorsThe role of a surrogate mother involves carrying and giving birth to a child that belongs to a couple who are unable to conceive in the natural manner. The importance of surrogacy lies in the fact that it is a natural process and includes the same procedures as that in pregnancy. Surrogacy has become an important method for giving birth to a child for mothers who are unable to become pregnant. But surrogacy is not as simple as it sounds. The process involves many ethical and legal issues that must be accepted by parents before they can go for surrogacy. One of the most important things concerning surrogacy is determining who the true parent of the child is. There have been cases where the surrogate mother became the primary caretaker and legal guardian of the child they were carrying. It can be a nightmare for hopeful parents especially mothers to see someone else become their child’s legal guardian.

Rights of a surrogate mother

Every couple who plan to opt for surrogacy should understand the legal rights a surrogate mother is entitled to after she gives birth to the child. In the eyes of the law, the person who gives birth to the child has the right to become the legal mother. Before surrogacy takes place, a legal contract is signed but parents should bear in mind that surrogacy arrangements can be changed anytime. The surrogate mother has the legal right to keep the child if she wishes to.

Parents who want to avoid complications and unwanted problems should first understand each and every aspect of the Surrogacy Arrangements Act of 1985. Next, they should consult with a good family lawyer who has experience dealing with legal issues in surrogacy and parenting.

Obtaining parental rights

Parents need to obtain parental rights before the child can be legally theirs. It might seem odd that biological parents need to apply for a parental order but that is how the law works. The order states that all rights and obligations must be passed down from the surrogate mother to the intended parents. There are certain conditions before a parental order can be made. One of the conditions requires at least one of the parents to be biologically related to the child. The application must be made within six months after the child is born.

Conclusion

Surrogate mothers enjoy many legal rights over the child and can very well become the legal mother. Couples who want their child to be born through a surrogate mother should therefore read and understand the laws regarding surrogacy.

To learn more about the divorce process in California and how mediation can help, please visit our page, What is Divorce Mediation

Divorce Mediators Sometimes Play The Role of Therapist

Posted by: Gerald A. Maggio, Esq.

Divorce-mediation-Orange-County; California Divorce MediatorsThe role of divorce mediation goes beyond simple reconciliation between two individuals. It is an important role and can often lead to favorable results. Ending a marriage is a big decision and should be carefully considered before moving ahead with the process. Apart from emotional problems, things like assets, property, business and children also play an important part.

It is often suggested for couples who experience stress and trauma while going through divorce proceedings to seek the help of a therapist. It is not really the job of a divorce mediator to play the role of a therapist but when the need arises, they can be one in several respects.

How does therapy help during divorce?

An individual going through a divorce may feel depressed and emotionally detached from those around him/her. Although therapy is recommended for such individuals, they can feel scared at the thought of seeing a therapist. They feel they have developed a psychological problem or have become mentally ill. In such cases, if the divorce mediator plays the role of a quasi-therapist who listens to their concerns and issues, the individual feels more comfortable and opens up.

It has often happened that due to depression, divorcees have ended up making terrible decisions that they wouldn’t have normally made. The main job of a divorce mediator is to pacify misunderstandings between the couple and provide a moral support. The main job of a therapist is to understand an individual’s mental state and provide solutions. Sometimes, the two roles overlap and then it becomes the job of a mediator to handle both.

Therapy is also important for children whose parents are going through a divorce because the situation affects them too. Research has shown that children who witness divorce are more likely to experience mental trauma than other children. They are also more likely to perform badly in academics and other activities. Divorce mediators try locating key problem areas and try providing a possible solution.

Conclusion

A divorce can become ugly and individuals going through the process can becoming depressed, and mediation is a good solution.  Therapy can be required because it helps reduce stress and can lead to reconciliation as well. Divorce mediators can often provide some form of therapy if they feel that their clients are making bad and unreasonable decisions due to divorce stress and trauma.

To learn more about the divorce process in California and how mediation can help, please visit our page, What is Divorce Mediation