Often our clients don’t realize how much a “good day in court” depends on their own attitude, that is, the client’s willingness to compromise and solve problems.  That’s because most people’s perceptions of the legal system come from movies and TV.  Whether the issue is child custody, alimony, child support or the division of property, the client’s perceptions, based as they are on the popular culture, tend to be distorted.  My goal for this blog is a reality check.

Good Versus Evil:

It is good to recall that TV cases are invented by a team of script writers to be entertaining, not educational.  Given the limits of television, a fictitious case will usually have a clear morality play, complete with a villain, a victim and a hero (sometimes even the lawyer gets to be the hero!).  The writers invent characters that you either love to love or love to hate.

Family law cases often reinforce this “good versus evil” view, as most family law litigants have a less than charitable view of their soon-to-be-ex.  Let’s face it:  we all tend to judge others when we feel betrayed (a left spouse) or abused (a leaving spouse) or when we have disagreements about the children (everyone).  But I find that those who have the most difficulty in family court are those who consistently see their ex as a villain and themselves as a victim.  And, conversely, those who are able to judge their soon-to-be-ex with charity will normally do better in family court, particularly if the issue is how to share parenting responsibilities.

An Important Disclaimer:

There are cases where there are clear villains and victims.  I once represented a woman who’s ex-husband was a methamphetamine addict who tried to burn her house down with my client and her children inside.  My client’s ex is now cooling his heels in the state pen.

The Moral of the Story:

The vast majority of cases in family court involve basically decent people who disagree.  Or, sometimes one basically decent person struggles with alcohol or substance abuse issues or mental illness.  In these types of family law cases, having a little charity for your court adversary helps you look more reasonable to the judge, and makes you able to solve even difficult problems calmly and rationally.

I urge my family law clients to be problem solvers.  You certainly want to avoid the perception that it’s about getting revenge against your ex (even if it is!).  Be willing to reach agreement instead of putting on the dog and pony show (a family law trial).  Doing so will save money and what is left of your ability to co-parent with your ex.

When litigating on behalf of clients, I am always prepared to do battle, if necessary.  As your lawyer, I owe it to you to present your absolute best case to the court.  But usually the best result is a resolution of your case that avoids the damage that my withering cross-examination will do to your ex and your co-parenting relationship.

Hoping you find this wisdom helpful, I remain …

Very truly yours,

Thomas D. Ferreira, Esq.

The post TV VERSUS REALITY AND HOW TO SUCCEED IN FAMILY COURT appeared first on Carlsbad Divorce Mediator and Legal Document Assistant.

In my experience, a spouse who is dragged kicking and screaming into a support award will tend to resist payment with everything they’ve got.  If, for example, the paying spouse is a salesperson or executive whose earnings are based on their effort, a burdensome award can have the effect of “killing the goose that laid the golden egg.”  I see over and over again the sharp decline of supporting spouses’ earnings after a financially devastating award of spousal support (alimony).

In settlement discussions success or failure often rides on how the parties perceive, or “frame” the spousal support obligation.  When mediating, I find it invaluable for the supporting spouse to reframe his or her payment obligation, understanding it as rehabilitative, not compensatory.  If a payor understands the purpose of the award as helping the supported spouse get on his or her feet financially, the payor is often more willing to shoulder the burden and pay the award.  Conversely, I find that as a general rule, payors tend to resist payment that the other party demands as “compensation” for their home-making or career deferral.

I also find that giving the paying spouse a light at the end of the tunnel (one that is not the headlamp of an oncoming train) reduces or eliminates expensive and hurtful litigation, and creates a high likelihood that the supporting spouse will pay.

A willing payor is an intangible but real benefit, one that the receiving spouse is wise to consider before insisting on “what I’m entitled to under the law.”

Burdensome spousal support awards are like poison to the goose that lays the golden eggs, because they are made without regard to whether they are just.  California law awards spousal support (alimony) from moneyed spouses to less moneyed spouses based on Family Code section 4320.  But if you click on the link, you’ll see that the law does not take justice or fairness into account in making the award; such awards are made without regard to marital fault.

Can you imagine what would happen if a politician proposed a tax that would confiscate about half of a hard-working person’s take-home pay?  There would be a march on Washington.  Yet every day in California family court, former spouses are ordered to make this type of payment, which continues until the death of either party, the marriage of the supported spouse or further order of the court.  The ability of the supporting spouse to ask for a reduction or termination of the award is small consolation, as these awards are often hard to modify and/or terminate.

As I have said in previous posts, the traditional rationale for spousal support awards has been that a party who deferred his or her career to make a home and raise children should not have to give up the marital standard of living just because the other party wants a divorce.  But in a “no fault” system, the law gives no advantage to the person  who doesn’t want the divorce (a petitioner has the same right to spousal support as a Respondent does), nor does the breaking of marital vows have even the slightest effect in mitigating the award.

Therefore, a “stay at home” spouse in a long marriage can have a series of affairs, waste community assets and even practice extreme cruelty and the court will award that spouse an open-ended spousal support award.

Conversely, an “innocent” spouse who has worked 2 jobs and raised the kids single-handedly may find themselves paying a couch-potato spouse, when the very cause of the divorce is the latter’s unwillingness to pull their financial weight.

The good news is, there is a solution for those who go to mediation.  In mediation, our approach is to look at the long-term goals of the parties, and also at the resources in the estate (including the supporting spouse’s income and the career abilities of the supported spouse) that may be used to achieve those goals. 

The points I hope you’ll take away from this article are:

• Supporting spouses have to come to grips with their perception (and resulting resentment) that the award is unfair.  In a long marriage with a large income gap, there will likely be a lengthy and burdensome spousal support order.  That’s just reality.
• Supporting spouses must be careful not to “kill the goose that laid the golden egg.”  At some point of wealth confiscation, it’s just not worth it for the supporting spouse to persevere in a high-paying, but difficult and stressful job.

Reframing the question in terms of both parties’ post-divorce goals and ambitions, and what resources are available to achieve those goals, will make your case much easier to settle and incentivize the paying spouse’s long-term compliance with the resulting award.

Hoping this helps in negotiating a settlement of your divorce, I remain…

Very truly yours,

Thomas D. Ferreira, Esq.

The post REFRAMING SPOUSAL SUPPORT NEGOTIATIONS: THE LAW AND THE GOOSE THAT LAID THE GOLDEN EGG appeared first on Carlsbad Divorce Mediator and Legal Document Assistant.

No, what’s happening in divorce court is not fair, and most people leave family court feeling like they’ve been handed a raw deal.

We expect our judicial officers to render fair and just verdicts.  Sadly, the problem is not the very honorable and hard-working members of our family law bench.  I am often surprised at the ability of judges and commissioners to sort through the garbage presented by the parties and hand down a result that is not just legally correct, but wise for the family before them.

The difficulty is, the judicial officer is charged with following the laws (mostly the California Family Code and Code of Civil Procedure).  Our law makers did not design a fair and just law; they designed a law designed to reduce conflict, enforce a duty of support, divide marital property and promote the best interest of children.  Considerations of fairness or justice are secondary.

Consider a typical marriage vow:

I, [name of bride or groom], take you, [name of groom or bride], to be my lawfully wedded [husband/wife], to have and to hold, from this day forward, for better, for worse, for richer, for poorer, in sickness and in health, until death do us part.

A vow is another name for a promise, a covenant, a contract.  It is a solemn promise to do something no matter what.  One would expect a just judge to enforce a promise like this.

But when you divorce, you find out what you really bound yourself to when you said “I do.”  I call this the standard marriage contract.  Here’s the Reader’s Digest version:

“You and I will continue to live together and mutually support one another financially and raise our children together until one of us decides the marriage has broken down. Once one of us makes that decision, the marriage will be dissolved, even if the other person feels the marriage has not broken down.  The financial duties of spouses to support one another financially shall continue as long as it takes for the spouse earning less to reach the standard of living we enjoyed as a couple, even if it takes the rest of our lives.  We shall live separate and apart, divide everything we got during our marriage 50-50, and our children will shuttle back and forth between our homes.  A judge of the California Superior Court shall be appointed as a super-parent to make sure each of us behaves in accordance with our children’s best interests.”

I’m not saying this to complain; quite the opposite—in divorce everyone does better when they accept the reality that family law is not fair.  Or perhaps more accurately, fairness and justice are only one of many concerns that the law addresses; they are not the law’s primary concerns.

It follows that spending your energy and money on obtaining a fair or just result means wasting your energy and money.

I would challenge you, reader, to think of divorce as a time to reassess your life’s priorities.  What type of parent have you always wanted to be, and how can you make that happen?  How can you divorce from your spouse without divorcing your kids, your friends and your family?  What have you always wanted to do for a living, but been to afraid to do it?  Have you always wanted to go back to school?  Travel?  Play the violin?  What resources are there in the  marital estate, and  how can you best employ them to make that happen?

You’ll find that once you have clarity on these points, the right decision at each point in the process will become self-evident.  Whereas, if you cling to fairness, you’ll always be wondering why your decisions have lead to outcomes that are inconsistent with your goals and values.

I remain…

Very truly yours,

Thomas D. Ferreira, Esq.

The post THAT’S NOT FAIR appeared first on Carlsbad Divorce Mediator and Legal Document Assistant.

Your children will want to spend time with you when they have something to look forward to.  I call this technique “creating anticipation.”

Let’s say that you have parenting time with the children every other weekend.  Plan something cool for your weekend, like camping, or fishing, or a trip to the beach, or a museum. 

Spend the first weekend together with your child or children researching the choices.  Involve them in planning the activity.  If you have a scheduled telephone call with them, talk to them about the activity and give them an active role in planning.

A great resource for finding activities is San Diego Family Magazine, or similar local publications, where there are lists of free and low-cost options for family outings.

The goal is not to usurp the other parent’s time.  Just plant the seed about the activity, and get them thinking about it and anticipating it.

Then make sure you follow through.  Trust must be forged through years of following through on promises, but it can be dashed in a day by a broken promise.  If you say you’ll do it, make it a priority.

I’m not suggesting that you be “Disneyland dad.”  Parenting is often a difficult chore, requiring boundaries and discipline. Sometimes the answer has to be “no.”  But establishing positive associations with your parental world will help you build solid relationships with your children.  And as family minister Josh McDowell once pointed out, “Rules without relationship leads to rebellion.”

Creating anticipation works well with block vacations.  Say you plan a week-long camping trip.  You can schedule time during your child visits where you determine the location.  Then, ask the children to think about what gear they will need.  Spend time looking at brochures, websites, books and other media.  Get them involved in the trip.

It is so important for the children to have both parents in their lives.  Take the time to build that relationship, and you’ll find that when it’s time to talk with the therapist or Family Court Services mediator, a tear will form in their eye as they think “wow, he’s such a great dad,” or “she such a great mom.”

Wishing you the greatest success in building relationships with your children after divorce or separation I remain …

Very truly yours,

Thomas D. Ferreira, Esq.

Disclaimer: Thomas D. Ferreira is an attorney licensed only in the State of California. The information set forth in this blog or on our websites are not intended to create an attorney-client relationship, nor are they intended as legal advice on your specific matter. This information is not intended to apply to cases or jurisdictions outside the State of California, and those viewing this information outside of California, or having business before jurisdictions outside of California, should consult a local professional or lawyer. The information in this blog is not a substitute for the advice of competent counsel, and is not intended, nor should it be construed, as a guarantee, warranty or prediction regarding the results of your legal matter.

The post CHILD CUSTODY SECRET NUMBER THREE: MOTIVATE YOUR CHILD TO SPEND TIME WITH YOU appeared first on Carlsbad Divorce Mediator and Legal Document Assistant.

(a) Custody should be granted in the following order of preference according to the best interest of the child as provided in sections 3011 and 3020:

(1) To both parents jointly … or to either parent.  In making an order granting custody to either parent, the court shall consider, among other factors, which parent is more likely to allow the child frequent and continuing contact with the non-custodial parent, … and shall not prefer a parent as a custodian because or that parent’s sex.

“Frequent and continuing contact” is the law’s buzz word for the preference of the law to award custody to the parent who supports the other parent’s parent-child relationship.  In practice, most judges recognize the importance of mothers and fathers in the lives of children.

That doesn’t mean that you should try to buy your child off with gifts or taking them on expensive trips every time they’re in your care.  It means actually being there as a parent.  It means having a relationship with your son or daughter, not just an acquaintance.  To build this relationship:

• Be there when the child needs to talk (except if it’s to complain about the other parent).
• Get to know the child’s school teachers and support the teacher with the child.
• Help with homework.
• Get involved in extra-curricular activities.
• Cook meals .
• Read to your kids!!! This one is huge.  My kids are 9 and 10 right now, and they still beg for their bedtime story every night.

Your goal in presenting your case to the judge is to show them what a great mother or father you are, not what a no-good SOB your ex is.  To do this, you have to lay the ground work by actually having a close, warm and deep relationship to the children.  Your kids will thank you for it, whatever their age.

I’ll be along with my final tip, creating anticipation, in my next post.  This is likely the most powerful tool in the arsenal, and it works.  Until then, I remain…

Very truly yours,

Thomas D. Ferreira, Esq.

Disclaimer: Thomas D. Ferreira is an attorney licensed only in the State of California. The information set forth in this blog or on our websites are not intended to create an attorney-client relationship, nor are they intended as legal advice on your specific matter. This information is not intended to apply to cases or jurisdictions outside the State of California, and those viewing this information outside of California, or having business before jurisdictions outside of California, should consult a local professional or lawyer. The information in this blog is not a substitute for the advice of competent counsel, and is not intended, nor should it be construed, as a guarantee, warranty or prediction regarding the results of your legal matter.

The post CHILD CUSTODY SECRET NUMBER 2: THE PARENT-CHILD RELATIONSHIP IS KING appeared first on Carlsbad Divorce Mediator and Legal Document Assistant.

The biggest mistake most child custody litigants make is believing that filing in court for custody will automatically change your situation.  Though this is sometimes true, the reality is, you generally have to create a change in circumstances before you file.

Remember, the parent-child relationship is king.  Before filing, do whatever you can to establish and nature that relationship, and keep a diary of how the children are doing each time you see them.  Here are some thing you can do to lay the groundwork for a successful request to change the custody or visitation schedule:

• Take any additional time with the children that he/she is willing to give you.  Don’t worry that the extra time isn’t in the court orders; as long as you have agreement with the other parent, you can do whatever you want.  Raising kids is tough sledding, and believe me, she’ll (he’ll) need a break sometime.  Be “Johnny on the spot” to step in when the other parent needs extra help.

• Get involved with education and extra-curricular activities.  The courts want to see that you are “child-focused,” and they are very concerned about the child’s education.  Make sure you go to orientations, meetings and parent-teacher conferences with your children’s teachers.  Ask that the school send you the child’s report cards directly.  Volunteer in the classroom—teachers always need help.  If the teacher sees you as an involved parent, you’ll stand head and shoulders above most parents who want the school to do all the heavy lifting.  One side benefit is that a teacher is a great person to write a declaration in support of your request for more parenting time.

• Move closer to the other parent.  Distance is often a barrier to being involved in the children’s lives.  Yes, it’s not fair that a custodial parent can dictate where you live.  But if you rearrange your lifestyle to be in the children’s school district and be close, you’ll score points with the court.  I have had cases where the willingness of a parent to move closer to the other parent was the change of circumstance that got my client more parenting time.

• Disengage from conflict.  The second biggest mistake I see in child custody cases is parents sending nasty communications to each other, trying to get the other parent to do some act (such as alter the visitation schedule) or filing repeatedly in court on minor issues.  This is generally counter-productive.  A better strategy is to take the time you have and focus it on your children.  Make “dad’s world” or “mom’s world” an awesome place to be a kid.  Any energy focused on the other parent (with whom  you’ve presumably broken up) is a waste of time and effort.

Once you have taken steps like these, you’ll have a record that justifies an increase in parenting time, or transition to overnight parenting time or even joint physical custody.

Stay tuned for more great advice on how to increase your parenting time.  Until then, I remain…

Very truly yours,

Thomas D. Ferreira, Esq.

Disclaimer: Thomas D. Ferreira is an attorney licensed only in the State of California. The information set forth in this blog or on our websites are not intended to create an attorney-client relationship, nor are they intended as legal advice on your specific matter. This information is not intended to apply to cases or jurisdictions outside the State of California, and those viewing this information outside of California, or having business before jurisdictions outside of California, should consult a local professional or lawyer. The information in this blog is not a substitute for the advice of competent counsel, and is not intended, nor should it be construed, as a guarantee, warranty or prediction regarding the results of your legal matter

The post CHILD CUSTODY SECRET NUMBER ONE: HOW TO LAY THE GROUNDWORK BEFORE REQUESTING COURT ORDERS appeared first on Carlsbad Divorce Mediator and Legal Document Assistant.

I want to address a specific situation where you get child custody and visitation orders that are  restrictive of your visitation, don’t give you enough time with your kids or are just plain and unfair.

First off, don’t just file yet another Request for Order with the same concerns you had last time.  Unless you find out that she’s beating the kids or subjecting them to sexually explicit material, or something similar, the court is not going to change custody.

What you need is a change of circumstances, that is, something that’s different now that would persuade the court to give you more time.  Now that you have orders, it’s time to execute a plan for getting more time.  You can do it, and it’s never too late.

Here are 3 tips that will move the dial in your direction to persuade the court to give you more time:

1. Lay the groundwork before you file in court.  Too many self-represented parents think the court will solve their problems.  Usually that’s not the case.  Take the parenting time you have and be a great parent with that time.  Document in a diary when you have had visits with your kids and how the visits went.
2. The parent-child relationship is king.  The goal of each visit will be to build a relationship with each of your children.  The court will see your efforts toward this and reward them with more time.
3. Creating anticipation:  your most powerful weapon in any custody battle.  Creating anticipation simply means giving your child something to look forward to the next time they see you.  This can be a craft session, a tea party or a camping trip, depending on the amount of time you have. 

In our experience, it is usually best for separated and divorcing parents to focus on the positives in their world rather than the negatives in the other parent’s world.

These points are so vital to succeeding in child custody court that I’m going to discuss each one separately in the next few days, in a separate post.  Until then I remain…

Very truly yours,

Thomas D. Ferreira, Esq.

Disclaimer: Thomas D. Ferreira is an attorney licensed only in the State of California. The information set forth in this blog or on our websites are not intended to create an attorney-client relationship, nor are they intended as legal advice on your specific matter. This information is not intended to apply to cases or jurisdictions outside the State of California, and those viewing this information outside of California, or having business before jurisdictions outside of California, should consult a local professional or lawyer. The information in this blog is not a substitute for the advice of competent counsel, and is not intended, nor should it be construed, as a guarantee, warranty or prediction regarding the results of your legal matter

The post THE BEST FREE ADVICE ON CHILD CUSTODY EVER—3 WAYS TO TIP THE SCALES IN YOUR FAVOR appeared first on Carlsbad Divorce Mediator and Legal Document Assistant.

Or on the other side, you’ve asked him to leave, but you know that your little girl will need her dad in her life—in some way or another.

So what do you do?  As always, I suggest (assuming that there’s no high-conflict or domestic violence) that you start with a conversation with your soon-to-be-ex.

Once you have a kid (or 2 or 3), your live-in arrangement becomes like a marriage, and your breakup is going to affect your little  urchins in ways you never imagined.  As I said in my last post, the studies show that kids do better when they have warm, involved relationships with both their parents.

So, step one is to have that difficult conversation, and start your co-parenting relationship off on a solid footing.  If your youngest is 2, you have about 16 years left in your sentence, and starting off your co-parenting relationship with a terrible fight is going to insure that it remains contentious for some time.

I therefore recommend that you begin by understanding that breakups are rarely mutual—that is, there’s almost always a leaving and a left partner.  So express some understanding for his or her feelings.  But hold fast to your decision, because, let’s face it, if reconciliation is impossible, your best option for the children is a clean break.

Use the “and” stance:  “I need to leave this relationship,  and I really mean it—for me it’s over, and I’m not going to change my mind, and I know you’re hurt and devastated, and I know you’re a good mom, and we need to think about how we’re going to co-parent the kids.”

For having the difficult conversation, I have a tried and true guide, a book from the Harvard Negotiation Project called Difficult Conversations.

Next, you’ll need to think long and hard about what parenting schedule you’ll ask for.  What kind of parent do you want to be?  Are you an involved, hands-on parent, or more of a dad who takes his kid on a fishing trip once in a while?  There is no shame in the latter, but in that case, you’ll be ill-advised to go with the “50-50” time share coveted by so many divorced and separated fathers.

Think about your work-life balance, the developmental stage of your kids, and then plan for a regular schedule that builds predictability and stability into the kids’ lives.

I’ll talk about the pros and cons of different parenting schedules in a later blog.  For now, I’ll just urge you to start off in a spirit of cooperation, to make certain your kids have stable, loving relationships with both parents.

And, if you are stuck about having the hard talk, contact our office to get started on the mediation process.

I am your Carlsbad divorce, child custody and family attorney and mediator and I am…

Very truly yours,

Thomas D. Ferreira, Esq.

Disclaimer: Thomas D. Ferreira is an attorney licensed only in the State of California. The information set forth in this blog or on our websites are not intended to create an attorney-client relationship, nor are they intended as legal advice on your specific matter. This information is not intended to apply to cases or jurisdictions outside the State of California, and those viewing this information outside of California, or having business before jurisdictions outside of California, should consult a local professional or lawyer. The information in this blog is not a substitute for the advice of competent counsel, and is not intended, nor should it be construed, as a guarantee, warranty or prediction regarding the results of your legal matter

The post SHARING KIDS WHEN YOU USED TO LIVE TOGETHER: HOW TO START OFF WELL. appeared first on Carlsbad Divorce Mediator and Legal Document Assistant.

With marriage becoming less popular among men and women of parenting age, the question of parenting children after the breakup has become a popular subject of litigation.  The difficulty arises because when the parties are married, you need a divorce decree or judgment of legal separation to end the relationship.  But when mom and dad live together one of them can just leave, sometimes with the children.

There’s solid research behind the idea that children need both parents to lead happy, healthy childhoods.  And all other things being equal, children do better with separated parents in a healthy, cooperative co-parenting arrangement than they do with parents that engage in high conflict  or domestic violence (see Dr. Joan Kelly’s Top Ten Ways to Protect Your Kids from the Fallout of a High Conflict Breakup).

Don’t jump to the conclusion that I am a father’s rights guy just because this article mentions fathers. It’s just that Mothers usually wind up providing the primary home for the children because they give birth and often provide primary care during the first months of life.  Fathers tend to leave the home with the children in it, and this dynamic tends to separate dad from his parental role (but not from his financial obligations!).

My message to moms here is that it is vital to your son or daughter that you support dad’s parent-child relationship even if you’ve decided dad is a total jerk.  If you didn’t think so, you’d probably still be with him.  But in court, an important factor in ensuring your custody of the children will be whether you allow and support “frequent and continuing contact” between the children and their dad.

My advice to dads is to be proactive in seeking paternity orders from the court after the breakup.  Again, your relationship has little in the way of legal status compared to a marriage.  And, if the mother is able to establish residency of the children in a different state from California, you could even find yourself litigating your custody case in the courts of that state.

So, I believe it’s important to get the legal status of your relationship to mom reduced to court orders.  This includes a parenting plan (the time that the children live with each parent) and child support.  Here’s what I recommend:

• If you signed a voluntary declaration of paternity (usually signed at the hospital where the child was born), get a certified copy from the State of California.  A voluntary declaration of paternity has the same affect as a judgment of paternity in securing your parental rights initially.  To get permanent security, though, you’ll need a judgment of paternity from the court.
• If you’re sure the relationship is over, don’t delay in filing a Petition to Establish Parental Relationship (more commonly known as a “Paternity Action”).  For help on Paternity and child custody, please feel free to contact my office.
• I also recommend that you not delay in scheduling mediation of your child custody and financial relationship.  Private mediation can get you through the process without setting foot in court, and you will have professionals guide you through the entire process.
• If mom is withholding the children or being stingy about agreeing to parenting time, you can file a Request for Order.

At the Law Offices of Thomas D. Ferreira, I am here to help you with these issues.  Whether you are mom or dad, you are important, and we can give you the help you need to prepare papers, appear at hearings, write motions or handle your entire case.  If you need more information, please take advantage of our free half-hour consultation.

I remain …

Very truly yours,

Thomas D. Ferreira, Esq.

Disclaimer: Thomas D. Ferreira is an attorney licensed only in the State of California. The information set forth in this blog or on our websites are not intended to create an attorney-client relationship, nor are they intended as legal advice on your specific matter. This information is not intended to apply to cases or jurisdictions outside the State of California, and those viewing this information outside of California, or having business before jurisdictions outside of California, should consult a local professional or lawyer. The information in this blog is not a substitute for the advice of competent counsel, and is not intended, nor should it be construed, as a guarantee, warranty or prediction regarding the results of your legal matter

The post HOW UNMARRIED FATHERS CAN INSURE THEIR PLACE WITH THE KIDS AFTER THE BREAKUP appeared first on Carlsbad Divorce Mediator and Legal Document Assistant.

Here’s the thing:  parental rights of natural (and adoptive) parents are fundamental, and protected by the U.S. and California Constitutions.  This includes a legal presumption that parents are fit and act in their children’s best interests (Troxel   v. Granville (2000) 530 U.S. 57).  The bad news for grandmother and grandfather is that if the parents decide that it is in the children’s best interests to exclude them from the children’s lives, and they are basically adequate parents, there’s not a whole lot a court can do to force visitation for grandparents.

In California, there is a statute known as Family Code sect 3104, which provides that that a court may grant visitation rights to grandparents over the objections of the natural parents.  But before you get too excited about using the power of the state to assert your right to see the grandkids, a court must make findings not only that there is a pre-existing relationship between kids and grandma or grandpa, but that this relationship has engendered a bond such that it is in the children’s best interests to order the visitation.

Showing this type of bond is not duck soup by any stretch.  Those of you who are savvy with the law will know that our state laws are interpreted by appellate courts based on cases that come before them, and that these interpretations become part of the law.  A grandparent case came before the Second appellate district, Rich v. Thatcher (2011) 200 Cal. App. 4th 1176, that has raised the bar considerably for grandparents.  The Rich court found that in balancing the right of natural parents to decide what’s good for children, the standard of proof is that essentially the grandparent must show, by clear and convincing evidence, that the parent’s decision to bar grandparent visitation would be detrimental to the child or children.

That Rich standard is a high bar indeed, and something to be considered before initiating proceedings to request grandparent visitation.

Here’s a link to the court’s website that tells you how to initiate the proceedings.  But given the difficulties of meeting the standard of proof, it behooves all grandparents to honor the wishes of their children (children in law) and maintain good relations with them (a particular hot button for me has been my mother’s annoying habit of plying my kids with toys and candy whenever she comes over).  Disputes are better settled through the mediation process than court, because mediation allows the relationships to remain intact, whereas litigation tends to break them down.

Hoping this helps, I remain …

Very truly yours,

Thomas D. Ferreira, Esq.

Disclaimer: Thomas D. Ferreira is an attorney licensed only in the State of California. The information set forth in this blog or on our websites are not intended to create an attorney-client relationship, nor are they intended as legal advice on your specific matter. This information is not intended to apply to cases or jurisdictions outside the State of California, and those viewing this information outside of California, or having business before jurisdictions outside of California, should consult a local professional or lawyer. The information in this blog is not a substitute for the advice of competent counsel, and is not intended, nor should it be construed, as a guarantee, warranty or prediction regarding the results of your legal matter.

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