California Family Law Frequently Asked Questions

The following information includes frequently asked family law questions. These questions and answers are general in nature and should not be used as specific legal advice for your case. Each case is different and carries its own set of circumstances which must be taken into consideration by competent legal counsel. For specific questions about your case, contact Attorney Donald E. Roach of the Law Office of Jones & Roach.

How are Custody issues decided?

No area of family law brings to the courtroom the tension, anxiety, hostility, volatility and raw emotion as child custody and visitation litigation. Rare is the divorce, dissolution or custody determination in which the parties have been able to set aside personal differences to reach the goal of what is best for the children involved. Most parents pay lip service to this ideal, but often cannot reach it in actuality.

Most often a judge will take great pains to get parents themselves to come to a mutually acceptable custody agreement if that is possible. A decision made by a stranger is rarely completely acceptable to all if the attempt has not been made in earnest. The family court systems of the states usually have several layers of counseling, mediation and conciliation to attempt to bring warring parents together for the purpose of resolving the issue of what it is in the best interests of their children.

What about visitation?

Generally a court will grant reasonable visitation rights to a parent unless it is shown that the visitation will be detrimental to the best interests of the child. A non-parent can in the discretion of the court also be granted visitation rights if they have an interest in the welfare of the child—this is generally divided into the area of grandparents, step-parents and other non-parents. It should be noted, however, that this is discretionary. The court may also approve visitation plans and restrictions considering factors relevant to the best interests of the child.

How can a parent remedy the frustration of visitation rights?

A variety of remedies are available to provide relief to the non-custodial parent who has had visitation rights frustrated. The non-custodial parent can commence an action to show cause concerning contempt for violating the court's order pertinent to visitation. The court also has power to modify support, yet this works a hardship on the welfare of the child. Another alternative is to ask the court to require the custodial parent to post a monetary bond, which would be forfeited if the custodial parent frustrates visitation. Usually a history of frustration of visitation is the threshold that must be shown the court, not a sole incident.

How is the amount of child support determined?

Federal law now requires that the amount of a child support payment be set in accordance with a guideline. Having a guideline is believed to prevent widely different amounts of child support being ordered from courtroom to courtroom. Guidelines provide an objective basis for the determination of the amount of support to be paid. As a result, most states have established formulas that are used to determine the amount of the payment from one parent to the other. Fullerton, California child support lawyer Donald E. Roach will safeguard your legal rights and fight for what is fair. Call now for your appointment.

When can a child support order be changed or modified?

An order for child support can be changed or modified any time there is a material change in circumstances from the time that the existing child support order was issued. A material change in circumstances can take many forms. The change can be the result of changes in the parent's financial situation - such as appreciable difference in the amount of income earned, loss of a job, a large inheritance, or a change in the amount of time spent with the child. The material change in circumstance can be the result of a new situation for the child - such as large medical expenses, need for special education, or other unexpected requirements. A child support payment could be modified by stipulation between the parents (as long as guideline support factors have been accounted for) or by a noticed court hearing.

What happens to a father who refuses to pay court ordered child support?

Under the Child Support Enforcement Act of 1984, it is against the law for any father, presumed or assumed, to not pay court ordered child support to the custodial guardian, regardless of joint custody. Federal laws permit the interception of tax refunds to enforce child support orders, and other methods of enforcement include wage attachments, seizure of property, suspension of a business license and possible driver's license revocation. In the event that none of these attempts are entirely successful, the court of law that issued the child support order can hold the father in contempt and, in the absence of a reasonable explanation for the delinquency, impose a jail term.

Can I object to the terms my spouse has requested in our divorce?

Yes, you (along with your attorney) can reject the terms of your spouse's offer. On receiving an objection to the establishment of a family law attorney's settlement, the California divorce court may at its own discretion determine whether the case involves complex or substantial issues of fact or law related to property rights, visitation, custody or support. If the California divorce court finds that the case involves one or more of these complex or substantial issues, the court may implement a case management plan. For more information about complicated divorce and separation issues in California, contact Fullerton family law Attorney Donald E. Roach today.

Can a divorce action be stopped by one of the spouses?

A no-fault divorce cannot be stopped by a spouse because objecting to the other spouse's petition for divorce is itself an irreconcilable difference that would justify the divorce. However, a spouse could potentially stop a fault divorce by either convincing the court that he or she was not at fault or by using any of the following defenses.

1. Condonation - implied approval of another's activities by treating the person as though the offense were never committed. Example: if one spouse committed adultery and the other never objected to it, the offending spouse could say that the other spouse condoned the behavior.
2. Connivance - setting up a situation so that the other person commits a wrongdoing. Example: inviting the offending spouse's lover over then leaving them alone together for an extended period of time would be considered conniving an adulterous behavior.
3. Provocation - inciting of another to do a certain act. Example: if one spouse sues for divorce on the grounds of cruelty, and it is later proven that he or she provoked the other into committing the act, the petition for divorce can be stopped.
4. Collusion - secret agreement or cooperation between the spouses designed to deceive the judge. Example: a couple does not want to wait through the separation period required to file a no-fault divorce, so one manufactures a "fault" with the other and files for a fault divorce.

Is a father who never married the mother still required to pay child support? What if the father is not allowed to see the child?

Regardless of marital status, an 'assumed father' is any biological father of a child for whom paternity has been established by either the admission of the father or paternal testing. Assumed fathers are required to pay child support. Additionally, a man who never marries a child's mother, but welcomes the child into his home and supports the child as his own may gain a 'presumed' father status, and typically, the presumption of paternity holds the same rights and responsibilities of an assumed father, in regard to parental liability and monetary support.

Every parent has a financial obligation to support their children and child support should never be confused with custodial or visitation rights. There is no state which permits a parent to withhold child support because of disputes over custody or visitation. If a non-custodial parent believes their rightful child visitations are being disrupted, it is recommended to contact an attorney to file a claim against the custodial parent in a court of law, rather than stop making child support payments as a form of retaliation. However, in the event of parental kidnapping, in which the custodial parent completely disappears with the child, any wage garnishments or income attachments as made for child support on behalf of the non-custodial parent would cease.

Take Action to Protect Your Rights:

If you or a loved one is involved in a divorce or child custody case in the courts of Orange County, Los Angeles County, San Bernardino County, Riverside County or surrounding California counties, or within the cities of Fullerton, Los Angeles, Anaheim, Cerritos, Yorba Linda or La Habra, and you need the help of an experienced family law attorney, call Donald E. Roach today at (866) 784-3017, or complete the contact form provided on this site to schedule your free initial one-half hour consultation.