Category Archives: Custody

What To Do If Your Ex Relocates With The Kids Without Permission?

what to do if your ex relocates with the kids without permission First and foremost, any relocation that takes a child away from their regular school district or outside of a reasonable distance/commute from a co-parent who has child custody or visitation rights is against the law. However, the situation can get sticky if there’s no child custody or visitation agreement in place.

We always recommend seeking support from a family law professional if your ex relocated with the children without permission to determine the best course of action. If the issue cannot be resolved without a judge, it is considered a relocation or move-away case.

CA Courts Support Relocations (Without Permission) If They Don’t Alter Legal Agreements

First, we need to be clear about the type of relocation. Your ex has permission to move whenever and wherever they want without your permission as long as the move does not violate the terms of the child custody and visitation agreement.

While you may be irritated or frustrated by the move or the other parent’s lack of communication, the courts typically won’t have an issue if the move or relocation:

Is within a reasonable distance (CA considers a distance of 20 miles or more to be “long distance” for co-parenting).
The children remain in the same schools/district
The relocation is to a safe, residential structure.

While we never recommended any parent relocating children without notifying the other parent, as long as the terms of the custody/visitation agreement remain intact, it is not illegal. Of course, they must provide you with contact information ASAP, or else it could be construed as absconding with a child (kidnapping).

California family law courts put the children’s well-being and best interests first in child custody cases. If you feel the move puts your child at risk in any way, that it interferes with the current custody/visitation agreement, or is a direct violation of your rights as the legal or physical custodian of your child, contact a lawyer.

Child Relocation Situations Where Courts Get Involved

Here are some of the child relocation situations that warrant some type of legal action on your behalf:

You feel your child is in danger

If, for any reason, you feel your child(ren) is in danger, you can speak to your county court or a local family law professional to help you file a temporary emergency child custody order. The courts expedite the review and hearings for these orders, so you’ll typically have a decision within a few business days.

Consulting with a family lawyer or the free legal assistance provided by your local county court is the best way to determine whether the case warrants it. Keep in mind that if you’re viewed as over-reacting OR if interpersonal issues with your ex-spouse are a driving force for this action (rather than a true threat to a child or custody/visitation), you could be penalized by the court.

They’ve moved the child out of the county, state, or country

It is illegal for a parent to relocate with a child out of the county, state, or country without the other parent’s permission (an exception may be if the move still keeps them within 19 miles of your home and the children can still attend the same schools, extracurricular activities, etc.

Even taking a vacation out of state or country requires written permission from the other parent, so moving children to another state or country without written permission from the other legal or custodial parent. That type of long-distance move, particularly without at least 45 days advance notice, is not viewed favorably by the courts without a proven and extenuating circumstance.

The move negatively impacts your ability to have custody/visitation of your child

Child custody agreements outline two separate types of custody: legal and physical. Depending on the situation, two parents may share legal custody, but one may have primary or majority physical custody of the child. In California, parents often share 50/50 legal and physical custody of their child.

This agreement is legally binding. However, the courts also recognize that it’s a living document and that things change yearly as your children grow up. Changes to the agreement can be made without a new legal document, but they are best done in writing to create a verifiable paper trail.

If your ex-spouse moved more than 20 miles away, the distance affects how often you can physically see or visit your child within the current custody/visitation agreement. The move may also take your child out of their current school district. In either case, your ex shouldn’t have moved without communicating with you and creating a new child custody agreement that reflects reasonable changes based on where/how far away they moved.

It negatively impacts your child (or not)

The older your child is, the more the child custody or visitation agreement may need to evolve with the child’s needs and preferences. The court can prevent a move (or grant sole physical custody to the non-relocated parent) if they feel the move is not in the child’s best interest or negatively impacts their well-being. (Cal. Fam. Code § 7501(a) (2023).

That said, if your child is old enough to speak about their preferences and give substantial support for their feelings, and they prefer the move, this could impact your case. Courts are more apt to listen to older children (10+) or may also ask for information from a qualified, reputable family therapist to help determine what’s best.

Sometimes, a child wants to change schools or districts because the new one is better for their social, academic, or extracurricular life. The court may consider this. That said, the court frowns upon anyone who moves a child without providing at least 45 days’ notice to the other parent, especially if that move impacts the current custody/visitation agreement.

You are notorious for speaking ill of the other spouse or initiating negative drama

Studies are very clear that children with divorced parents fare best when their parents both practice healthy co-parenting and communication (leaving their interpersonal affairs out of the children’s awareness to the best of their ability).

The courts do not support this either. On their page about relocating with a child, the CA family law court is clear the relationship between co-parents can play a role in a judge’s decision:

A judge can consider the co-parenting relationship. Do the parents talk badly about one another in front of the child? Do they allow the other parent to have access to or contact with the child (following the court order)?

The older a child gets, the less they want to be put in the middle or absorb one or the other parent’s negativism about their other parent. That can include a child no longer wanting to live with the parent prone to speaking badly about the other, opting to be in the more peaceful parent’s home.

Schedule A Child Custody Mediation Session With The Law Offices of Gerard A. Falzone

Is your co-parent talking about a move or relocation that would jeopardize the child custody or visitation agreement? Or did your ex move more than 20 miles away with your child without your permission? Take a pause and create a clearheaded plan that doesn’t contribute to more negative strain that can impact your child’s well-being.

Schedule a free discovery session with a child custody mediator at the Law Offices of Gerard A. Falzone. After more than forty years supporting Bay Area families, we’ve seen first-hand how mediation sessions are far healthier and can reshape co-parenting and child custody/visitation agreements for the good of the whole. We’ll review your case and help you determine the best way forward for your child and their future.

Relocating With Your Kids After A Divorce

relocating with your kids after a divorce Divorce visitation agreements are legally binding. Each parent is accountable for those documents. Both parents must agree upon any variation, including relocating with their kids after the divorce.

According to the California Family Law Courts, parents can change where a child lives as long as they can still uphold the current child custody and visitation agreements, including reasonable transportation to and from visitation locations, and both parties agree with the move.

If a relocation will take the children more than a reasonable distance from the other parent, especially if the relocation will be to another county or state, it is almost always better to draft a new child custody and visitation agreement with a family law attorney to avoid potential litigation from the other parent.

5 Considerations Before Relocating With Your Kids After A Divorce

If you are found in violation of your child custody agreement, the other parent will almost always have the upper hand in any ensuing lawsuit.

This list of five things to consider before moving away with your kids after a divorce can help determine whether the move makes sense or is worth pursuing in court if your former spouse is opposed.

Is it in the best interest of the children?

California is a no-fault divorce state. This means that the reasons you divorced your former spouse have little to do with the court’s support of parental rights. While there are exceptions to this, such as a history of substance abuse, domestic violence, or anything else that may threaten a child’s safety, the courts always prioritize the child’s right to have an equitable relationship with each parent.

If the move you are making is not in the best interest of your children but has more to do with your personal best interest, it is doubtful the courts will support that move. Significant evidence must show that your children will fare better in your future destination.

Is your former spouse on board with the move?

You would think that if your ex-spouse is on board with the move, it would be an easy yes. But that may not be the case. The courts listen to kids’ input once they’re 14, and they will not typically support a relocation unless it’s necessary (involuntary job transfer, military relocation, etc.) if they feel your children’s emotional or mental well-being will be compromised by changing schools and starting over in a new location.

However, assuming your children are under 14 and your former spouse is on board with the move, you may be able to relocate without the necessary legal work. In this case, it’s still advised that you use child custody mediation to draft a document outlining the new child visitation agreement, but these don’t necessarily need to be filed with the court.

NOTE: Even if your spouse verbally approves your relocation, always get their approval in writing. This can be a typed and printed/signed paper agreement or an email stating all of the details of the move and anyways it will impact the current custody visitation agreement. In the case of an email, you will want your ex-spouse to reply that they accept all of the terms in your email and are on board with the move. If your ex-spouse gets angry later on and there is no written record of the agreement, you risk being held in violation of the legal custody agreement.

Is this move taking place out of spite?

Again, the best interests of the children are always the court’s highest priority if there is any indication that this move is unnecessary or, more importantly, done out of personal spite, there is no point in pursuing it.

Provide ample written notice to your ex-spouse before relocating with your kids

Deciding to relocate your children, especially if it impacts your ex-spouse’s custody and visitation rights, is a very big deal. They deserve ample notice so they have time to process what this means for them and their relationship with your children and to perform their due diligence if they oppose the decision.

We recommend providing at least 60 days’ notice and no less than 45 days’ notice, which will also look better from the Court’s perspective if this evolves into a child custody lawsuit.

Be proactive in creating a custody and visitation plan for your ex-spouse

To support your cause, you can proactively create a sample custody and visitation plan that accommodates a similar amount of quality time your children would have with the other parent.

So, for example, if you are moving more than an hour or two away – where weekend or every two-weekend visits are unreasonable – the new custody plan may involve giving up the majority of your children’s long weekends, holidays, and summer vacations so that the kids can spend significant quality time with their other parent. If that’s the case, think seriously before committing. You may miss having your kids around for those traditional moments and your summer holidays. The new agreement that you created will be a legally binding agreement – which may jeopardize the amount of time you get to be with your kids.

Also, remember that as your children get older and more involved in school and with their friends, this arrangement may be extremely distasteful to them. We’ve had cases where teenage children moved back with the other parent, with approval from the court, because they resent the parent’s decision to move away and want to return to their original community family and friends.

Schedule A Child Custody Mediation Session At The Law Offices of Gerard A. Falzone

Are you thinking about relocating with your kids after a divorce to a location that would impact a current child custody and visitation schedule? Schedule a consultation at the Law Offices of Gerard A. Falzone.

During this first session, I can review your current custody and visitation order, discuss your move and the reasons for it, and give you an idea of how the courts might decide on your case if your ex-spouse opposes the plan. If your ex-spouse agrees with the move, I can meet with both of you and help you draft a new child custody and visitation agreement that supports your children’s well-being and a healthy relationship with both of their parents.

Creating A Custody Schedule

creating a custody schedule Creating a child custody schedule isn’t always easy. Multiple factors should be considered, but the child’s well-being should always be the priority.

4 Steps To Creating A Child Custody Schedule That Works

Unfortunately, although understandably, money is a driving force in child custody schedules because parents who have the kids less typically pay more. We understand this. However, the continuous transitions forced on a child due to household changes, schedules, rules, boundaries, etc., can cause emotional and academic challenges.

Remember: Child custody agreements are legally binding but can be negotiated multiple times until your children turn 18, depending on their needs.

Consider working with a divorce and family law mediator who can help you create child custody and co-parenting agreements, which can minimize contention between the two of you.

Here are some helpful suggestions for creating a child custody schedule that works for your family.

Schedule sessions with a child/family therapist

We highly recommend working with a Bay Area family therapist to determine a schedule that would work best for your children based on their ages, needs, and personalities. For example, some client families exchange children every two days or so, and others alternate weeks. Older children may like rotations every two weeks as it gives them time to land in one home for longer, minimizing transitions. We’ve even had a client whose daughter spent six months in one house and six in the other because she couldn’t stand going back and forth more than that. Parents should always be willing to work with their children’s needs.

We understand that it’s difficult to be away from your child. However, video apps, texts, phone calls, etc., make it possible to connect with children in a very personal way as much as you like. Children of divorce are at higher risk for emotional issues, depression, anxiety, and academic struggles. If keeping your child at one house more than another is easier on them, it might be the best way to handle things for now, even if it’s harder on you for a bit.

Consider the children’s ages and needs

The website Custody Xchange has a page dedicated to age-based guidelines for parenting plans and schedules based on research findings. One of our other favorite things about their page is that they highlight children’s physical, emotional, and boundary-based needs by age, which can help you create a co-parenting plan that always honors a “children first” mentality.

PRIORITIZE HEALTH COPARENTING: No matter what led you to a divorce, healthy co-parenting is essential for your children’s emotional stability and health. Do all that you can to streamline healthy communication while co-parenting.

Their schedules and tips include recommendations for:

Babies. All children do best with stability, but this is especially true for babies who rely on a routine for nourishment, hygiene, and comfort. Regardless of what you decide, it’s essential that both parents can agree on – and uphold – the same schedule and routine for their baby to support healthy physical, mental, and emotional development.
Toddlers. Most toddlers fare best with a schedule that allows them to see each parent every two days. Again, routine is essential. Regardless of the water under your adult divorce bridge, maintaining consistency between homes is always in the children’s best interest.
Preschoolers and TK. Children at this age may prefer sticking with the two-day schedule but may be able to stretch to three days off – with parents sharing or alternating weekends.
School-age children (5 to 13). Children may have more input as they get older. Many parents find that split weeks with alternating extended weekends are the best way to go at this stage of the game. That said, some children do fine with every other week/weekend at this age, especially if there is a once-per-week dinner with the other parent or when the other parent is part of the school/extracurricular chauffeuring schedule.
High School. By this age, most children do fine with an every-other-week schedule. However, some prefer to be at each home for two weeks at a time for more stability and because they communicate with either parent independently. If your child is heavily involved in sports or extracurricular activities, they may no longer want to spend much time with a parent who lives outside of the school district, so that is worth taking into consideration.

Learn about all the scheduling options

Historically, child custody schedules were usually 80/20. Children spent 80% of their time with one parent (usually the mother) and 20% with the other. This meant spending every other weekend and a portion of school breaks with the non-custodial parent. But things have changed. Today, unless there’s just cause, most parents share 50% custody. However, scheduling that 50% depends on work schedules and the children’s age.

We’ve briefly hit on some of the most common child custody schedules out there, but every family is different. In our post about healthy co-parenting communication, we referenced helpful apps, one of which is Our Family Wizard. Their website offers a range of parenting schedules that work well but may require extra calendaring on your part.

Examples include:

The 2-2-5-5 rotation. With this one, children spend two days with one parent, two days with the other, then five days with the first parent, and five days with the other.
The 3-3-4-4. This schedule is like the 2-2-5-5, but it’s done with three/four days in between.

These schedules can be a healthy bridge for younger children when they switch from switching homes every two days to a week-on/week-off schedule. It allows everyone to get used to the longer stay routine.

Have written agreements that cover everything…

Consistency is essential for all children. You do your child no favors when you opt to be the “easy” or “fun” parent. You’re actually setting your children up for emotional angst, anxiety, and confusion. In fact, “setting up a routine ASAP” is #3 on our list of 5 tips for helping children cope with divorce.

One of the best things you can do during and after your divorce is to sit down and draw up schedules and agreements that both of you pledge to uphold. This includes things like:

How communication will take place.
Using a co-parenting app to facilitate things.
Schedules for sleeping, napping, homework, etc.
Rules and consequences.
Tech and screen time boundaries.

Again, your divorce mediator or the family therapist can help you create and uphold these agreements and support both of you when things aren’t going smoothly.

Schedule Divorce Mediation At The Law Offices Of Gerard A. Falzone

Are you prioritizing what’s best for your children as you move forward with the divorce? Schedule a divorce mediation session with the Law Offices of Gerard A. Falzone. We’ve worked with Bay Area families for over 30 years to create child custody schedules that successfully supported everyone’s well-being. Contact us to schedule your child custody mediation consultation.

Child Custody: Supervised Visitation In California

child custody supervised visitation in california In child custody cases, the child’s safety and well-being are the top priority of the family law court. If the judge feels a child’s physical or emotional health is at risk with one of the parents, they may order supervised visitation.

What Is Supervised Visitation?

This means the parent spends time with their child or children in the presence of a neutral third-party – called a “provider.” This person can either participate in the visit (if they have a relationship with the child) or remain close by to witness all of the physical interactions and verbal communication (more on providers below).

Situations That Lead To Supervised Visitation

Most supervised visitation orders occur when the judge knows or suspects the other parent:

Has been absent for most or most of a child’s life, or the child doesn’t have a relationship with the parent yet.
Has an alcohol, drug, or substance abuse problem.
Has a history of physical, verbal, or emotional abuse (domestic violence).
May have mental health issues that negatively impact their judgment and/or parenting decisions.
Is a kidnapping or flight risk.

In most cases, the overarching goal of supervised visits is to provide a safe space for the child and parent to bond and develop a healthy relationship while also providing the supervised parent with a plan for recovery or a structured, step-by-step protocol for gaining unsupervised visitation rights. However, there are times when supervised visits are permanent.

How Long And How Often Are The Visits?

The judge will order the frequency and duration of the visits. Some things govern this order, such as:

The parent’s work schedule.
Availability of the provider.
What seems healthiest and best for the children.
The age and needs of the children.
Any other factors the judge feels are relevant to the order.
The financial ability to pay for a professional provider’s time if that’s part of the order.

Who Can Serve As A Provider?

There are three types of supervised visitation providers: professional, therapeutic, and nonprofessional.

Professional provider

The judge may order a professional provider to supervise the visits in cases of domestic violence or serious mental illness. The provider will use the judge’s order and talk to you and the other parent to learn more about your story and the family history.

These providers are specially trained to handle complex family systems and how to interact and mitigate any negative impact on the child if something goes wrong during the visit. These providers typically work for an hourly fee, paid for by the non-custodial parent.

Therapeutic provider

Sometimes the judge might specify that a therapeutic provider is needed. This is likely if the supervised parent has a mental illness. You may also benefit from a therapeutic provider in cases where the relationship between the child and the non-custodial parent is dysfunctional, ruptured, or nonexistent.

Then, the therapeutic provider serves in a counseling capacity, helping the parent and child to nurture a healthy relationship, learn how to communicate, and may even support the parent in learning and practicing healthy parenting skills. As with a professional provider, therapeutic providers typically charge a fee paid for by the non-custodial parent.

Non-professional provider

In other cases, the judge may state a nonprofessional provider will suffice. This person will not have any training and is typically a trusted family member or friend. However, the court has strict guidelines about non-professional provider qualifications, including things like:

Being at least 21 years old.
No record of a DUI conviction in the past five years.
Holding a valid driver’s license, registered car, and insurance.
No record of a conviction for child molestation, child abuse, or other crimes against a person.
Not having civil, criminal, or juvenile restraining orders within the last ten years.
And the list goes on.

You can Click Here to learn more about the California Family Law Court’s laws and codes governing supervised visits and the roles/expectations of providers.

When can you stop having supervised visits?

Once supervised visits are court-ordered, that order remains in place under the terms of the order. In some cases, there may be stipulations – like the non-custodial parent must show proof of certain things (sobriety and regular participation in a recovery program or completing a series of anger management classes, etc.). Once the non-custodial parent submits the proof asked for by the court, the court may issue a new visitation order.

Throughout the duration of the court order, the custodial parent must comply with the supervised visitation schedule. If the custodial parent wants to cease supervised visitation for any reason – whether to end visits altogether or to allow the non-custodial parent to have unsupervised visits, they must file a request for modification through the court.

In the meantime, the current order remains in place and must be honored. If you believe the visits are doing more harm than good for your child, we recommend working with a family law attorney. You’ll have to provide very specific evidence or proof before a court considers terminating visitation rights altogether.

Do Supervised Visits Continue If The Non-Custodial Parent Doesn’t Pay Child Support?

There is absolutely no connection between child support payments and child visitation orders. If the non-custodial parent is in arrears (the term for skipping payments or making incomplete payments), you’ll need to pursue that through the family law courts. They’ll work with the non-custodial parent to issue payments, even if that means garnishing wages, freezing bank accounts, or even suspending their driver’s license or passport privileges.

Regardless, the current child custody and visitation order remains in place, and lack of payment never alters that.

The Law Offices Of Gerard A. Falzone Can Help Establish Healthy Supervised Visitation

Do you feel supervised visitations are essential to the health and well-being of your child? Or do you feel the custodial parent is exaggerating and that supervised visitation is unfair in your situation? The Law Offices of Gerard A. Falzone is here to help. We’ll listen to your situation and make recommendations on how to confidently move forward with the safety, health, and well-being of your children as the top priority. Contact us to schedule a consultation.

Co-Parenting While Sheltering In Place

Co-parenting while sheltering in place puts multi-household children and their families in a tight spot. On one hand, there is the desire to honor all of the sheltering in place stipulations, which prohibit visiting others’ houses or social gatherings of any kind. However, it does allow traveling to and from your home to other locations for “essential” reasons, and honoring the orders set forth in your child custody agreement is absolutely “essential” in the court’s eyes.

Your Child Custody Order Still Reigns Supreme

While it’s understandable that you or your spouse may have concerns about a child traveling from house to house, and the risk of potentially catching or spreading COVID-19, your child custody order still reigns supreme unless the parents have a written agreement that states otherwise.

Review your child custody order

If you worked with an attorney or family law mediator to draft your child custody order, there may be specific clauses you’ve forgotten about along the way. This may include information such as:

Does illness or medical emergency alter the co-parenting while sheltering in place?

Sometimes, child custody orders dictate that an illness, serious injury, or other medical emergency alters the plan. Nolo.com writes, “If your child has asthma, is immunocompromised/suppressed, or has another underlying medical condition that makes your child more susceptible to COVID-19 or resulting respiratory complications, you should speak to your child’s pediatrician for advice and talk to your ex about how to reduce the risk to your child in both homes.”

Perhaps a child remains longer with one parent or another to provide a greater level of stability during healing. The other parent will be fully entitled to a make-up time later on and can use Zoom or other video-streaming, phone calls, online games, letters, texts, email, and other digital options to remain closely engaged with his/her child.
If your child is diagnosed with coronavirus, you may have to disclose that to the other parent or you may not – it’s probably in the agreement.
If you or the co-parent are diagnosed with a contagious, life-threatening illness (such as COVID-19) it could be considered negligence to keep that information from your child’s other parent or to have your child in your home again until you recover are test negative for the virus or contagion.

Your child custody agreement is your primary resource. But, of course, it is only a template. It cannot answer every question or dilemma that may arise throughout the course of life’s unpredictability. For that, you rely on (hopefully) healthy communication skills.

Visit 7 Tips For Positive Communication with Your Ex to help set the stage for open, honest, and heartfelt conversations.

Create An Agreement For Co-Parenting While Sheltering In Place

If you and your child’s other parent are more or less in agreement, see if you can draft a simple COVID-19 Co-Parenting Agreement that prioritizes overall health and wellbeing – starting with the child’s and then including each of the parents and other household members.

Have an honest conversation around:

Your ability to honor shelter-in-place orders. If both households are vigilantly honoring the tenets of the Bay Area’s shelter in place orders, there’s no reason a child can safely travel between homes (always washing in and out, of course).
Are one of you at higher risk for contracting COVID than another? Some of my co-parenting clients work in the ICU or healthcare industries, or in supermarkets where they feel especially exposed. In these cases, some of them have established it’s better to have the child remain 100% with the other parent and have gotten creative with visitation. Others have established their own honoring of protective gear and sanitization routines are enough to protect them and their child(ren).

Is the child expressing a wish to remain with one parent over the other right now? Some households are more tense, anxious, and afraid right now and can spill right over onto the children. If your household climate, or your ex’s, is agitating your child or seems detrimental to his/her sense of safety, happiness, and security, s/he might express a desire to spend more time with one parent over the other. In this case, you can make a temporary agreement to accommodate the child’s understandable request.
Will there be changes to child support/alimony during this time? While you can apply for a modification to any child support or alimony payments as a result of COVID-related financial hardship, you’re still beholden to the original agreement unless the two of you have agreed to temporary changes.

That said, any disagreement between the parents needs to be resolved ASAP with help from a family law specialist or the judge. In the meantime, the existing order or agreements remain in place. If you truly feel your child’s health is at risk, you and/or your lawyer may be able to obtain an emergency child custody/visitation order. Click Here to learn more about that.

Get Your Changes in Writing

If you decide to create a temporary COVID-19 Co-Parenting agreement, make sure to get it in writing. Even a clearly worded, detailed email that states the new tenets of the agreement – and the recipients have written acknowledgment and agreement of those changes – may be enough to hold up in court if a dispute arose afterward. However, I highly recommend working with a family law professional, even if it’s a one-time consultation with a mediator, to keep your child custody and visitation agreement clear and legally sound.

The agreement can always include that either party retains the right to revert back to the original agreement, or to amend the temporary version, by communicating in writing to the other parent. You may also want to clarify that the temporary agreement is immediately null and void and that both parties will revert back to the legal co-parenting agreement as soon as sheltering in place restrictions are reduced or eliminated.

Need Professional, Third-Party Support?

Would you benefit from third-party support from a family law professional as you navigate co-parenting while sheltering in place during COVID-19? Contact us here at the Law Office of Gerald A. Falzone. I work with couples to calmly and compassionately make decisions that always prioritize the child’s and family’s well being.

Can I Have My Child Transfer Schools During A Divorce?

The parameters around whether you can have your child transfer schools during a divorce are governed by the current custody agreement – temporary or legally -, a court or judge’s decision and the emotional wellbeing of your child.

While we can provide general information about transferring a child’s school during a divorce, we recommend consulting with a family law attorney if you haven’t already before making any final decisions.

Will Your Child Transfer Schools During Your Divorce?

If you transfer your child without respect for California child custody laws, you may jeopardize your own custody status in the eyes of the law.

What is best for your child’s mental and emotional wellbeing?

First and foremost, your child’s mental and emotional wellbeing should be the top priority before making the decision to change your child’s school. Divorce is extremely hard on children, disrupting their sense of self, their security, and their happiness. As the secure and familiar world they know begins to splinter and re-build around them through the divorce, the stability of the same school and friends can provide a healthy anchor while children slowly adjust to their new life with divorced parents and a divided home life.

If you haven’t already, consider meeting with a family law mediator to negotiate child custody agreements, as well as decisions around whether or not to change a child’s school. This can save you thousands of dollars in legal fees, and neutral mediators are experienced at smoothing over the rough emotions that can get in the way of making the healthiest decisions for your child.

Read How to Prepare for Child Custody Mediation for more on that topic.

Is the decision a mutual one between you and your spouse?

If the decision is mutual, there should be no issue. That said it is a good idea to get your mutual consent in writing and sign it. That way, if negative feelings or contentious disagreements arise in the future, you have proof that your ex-spouse supported your decision.

Do you have sole or joint legal custody?

If you have sole legal custody, you can change your child’s school without permission from your ex. If your spouse has visitation rights or partial/joint physical custody, you should notify him/her about your decision so s/he can’t say that you’re trying to keep the child from him/her by withholding information about where your child is, needs to be picked up for visitation, etc.

If you have joint legal custody, you cannot transfer your child to another school without your ex-spouse’s consent OR a judge grants you permission.

Is the new school a reasonable distance from your ex’s home or place of business?

If you have joint physical and legal custody, it makes sense that your child’s school should be a reasonable distance from your home, and your ex’s. Transportation to and from visitation is a 50/50 endeavor between parents. If your chosen school is notably further from your ex’s home or work than the current school, s/he has a right to oppose it. In that case, you may need to go to court.

Will your child transfer schools and be happy?

How does your child feel about the transfer? Hopefully, your child’s feelings are seriously considered by you and your ex-spouse. Keep in mind that if your child does not want to change schools, and your ex opposes you, the judge may not side in your favor if you wind up in court.

Is transferring your child’s school worth a trip to the courtroom?

If you have joint legal custody (even if you have sole physical custody), you cannot make the decision to transfer your child’s school until your ex-spouse agrees or the court orders it so. If your ex is not willing to budge on his/her stance, you will need to go to court and let the judge decide. This can cost thousands of dollars if lawyers have to be involved, and there is a chance the judge will want to hear from the child, which can be traumatic for some children.

While younger children’s testimony is sometimes requested, California Family Code 3042 states that children who are 14 years or older, and who can clearly express their feelings or preferences can have a say in where they live and where they go to school. If your child is 14-years old or more, the odds are the judge will want to know how s/he feels about the idea of transferring. While judges do not automatically base their decision on older children’s feelings, they do take the child’s testimony into consideration to establish whether your reasoning justifies the switch.

We’re Happy To Serve You

Contact me here at Falzone Law, 415-582-7800, and schedule a free, consultation. In addition to reasonable hourly fees, I am happy to serve as a mediator to keep you out of the courtroom and facilitate a more streamlined divorce and child custody agreement process.

Can My Ex Track Me During My Parenting Time?

Even the smoothest of divorces are emotionally complex when children are involved. All of a sudden, the loss of control over where your children are and what they’re doing when they’re with the non-custodial parent can lead to excessive worry and concern.

That worry or fear, combined with the innovation of GPS trackers and other monitoring devices, can make it tempting to track the non-custodial parent when they have custody of the children. This is completely illegal in the state of California.

Is Your Ex Tracking You During Your Parenting Time?

If an ex is tracking you during your parenting time, you should consult with an experienced family lawyer who can help you decide what to do next.

California is a dual-consent state

California is a dual-consent state. This means that both parties must consent before wiretapping, GPS tracking, or other location tracking devices are used to monitor someone’s movements or behaviors. In addition to facing criminal charges, any information or evidence supplied by these devices is considered null and void in a courtroom.

However, there are exceptions to this law. The most common is if your ex has convinced the courts that you are at risk for taking the children outside the jurisdiction without consent. In this case, a judge can order tracking devices on your car, phone, etc., so your ex can keep track of your movements when you have the children.

Again, the ability for an ex to track you during your parenting time would only be legal if it was ordered by the court. Otherwise, s/he is violating your right to privacy and your rights as a parent. If you have found a GPS or other tracking device on your car or phone that was installed for your ex’s use, without your consent, s/he can face civil and criminal charges.

Avoid the need for your ex to track your movements during parenting time

Any time spent in a courtroom is expensive, and it can create ugly, unnecessary emotional entanglement that is detrimental to your child(ren)’s wellbeing. If your ex is so upset or worried that s/he’s threatening to track your movements when you have the children, we recommend taking the following actions.

Meet with a family law mediator

Meeting with a licensed, family law mediator can work wonders for facilitating communication between ex-partners who cannot see eye-to-eye about child custody arrangements, or who are not acting or thinking rationally when it comes to the other partner’s time with the children.

Family law mediators are completely neutral parties. We do not take sides. We simply facilitate communication and negotiations between two parties and let them know what a judge would be most likely to say or decide if the issue is brought to court.

Because you pay by the hour, session, and/or the documentation required for filing – family law mediation continues to be markedly more affordable than hiring a lawyer and going to court. Simply put, mediation often saves couples tens of thousands of dollars in legal fees.

Consult with a family law attorney

If your ex is unwilling to go the mediation route, consult with a family law attorney to explain your situation and determine the next steps.

The goal is always to move forward with the least amount of stress and contention as possible, so the first step may be for your lawyer to write a letter explaining the illegality of your ex’s threat to track you – and that legal steps will be taken if you are, indeed, being tracked without your consent.

If first-step actions are ignored by your ex, we can move forward with further steps to protect your rights and to support you in building a trusting relationship with your children.

Find evidence of the tracking device(s) and take action

Next, it’s time to consult with device tracking professionals who can scan your vehicles, phones, computer, etc. to locate and identify actual tracking devices. This is the evidence you would need to pursue action from the courts.

Just as a judge hates to be lied to about hidden assets, s/he also balks when an individual says they haven’t been tracking their ex – only to have evidence presented to the contrary. There is no point in taking legal action until you have solid proof of tracking devices to follow it up.

We Are Here For You

Do you need professional legal and emotional support as you work through sticky and painful child custody details? Please give me a call, 510-521-9500 (Oakland) or 415-482-7800 (San Rafael), or contact the Law Offices of Gerald Falzone online to schedule a free consultation.

Why Divorce Mediation Is The Best Way To Handle Child Custody

why divorce mediation is the best way to handle child custody

When parents decide to end their marriage, the divorce can have a number of psychological effects on the children involved. These include stress, anger, fear, and guilt.

Many of these feelings are exacerbated by the resulting custody battle. That’s why it’s up to the parent to make the process as pain-free for the kids as possible.

One way to do this is to opt for divorce mediation instead of a traditional divorce. This involves coming to an agreement on your terms outside the courtroom. A mediation attorney will guide you and your spouse to amicable solutions.

Divorce Mediation And Child Custody

This approach is much easier for your children when it comes to establishing custody. Let’s look at how everyone benefits.

Keep your children’s best interests in mind

The most important aspect of any child custody case is that the child’s best interests take precedence over anything else. You can achieve this much easier through divorce mediation.

By working together, you’ll be able to form a healthy visitation schedule. This means your children and you will have ample time together. You can also form a schedule that will provide the least amount of inconvenience for all parties.

With the help of a mediator, you can form a parenting plan that benefits your children’s development and emotional well-being. You’ll also be able to establish who’s responsible for financial necessities related to the children.

This is a much healthier situation than battling for custody terms in the courtroom. In these cases, parents often forget how their decisions will impact the children. In addition, the final decision is often made by the judge rather than the parents.

Protect your children from negative emotions

Divorce mediation is all about cooperation. The goal is to come to a common ground and work through your differences amicably. This makes for a much more civilized atmosphere.

On the other hand, traditional divorces are often fueled by anger. This can create a very negative environment at home. Your children will inevitably feel these negative emotions.

In addition, children can get dragged into the proceedings during a traditional divorce. This could mean appearing in court and testifying in front of a judge.

Mediation is a much quieter approach. You and your spouse can work out the custody terms with the guidance of a mediator. They’ll help keep you on track and can step in if tensions arise.

A cost-effective solution

During mediation, you and your spouse only need to hire one attorney to help you through the process. In addition, you’re not spending time fighting for terms in the courtroom. This is a money-saver for both parties.

Traditional divorce proceedings have the potential to carry on and on. This is especially true if each party continues fighting for the terms they want. In this case, both parties must continue to pay their attorneys.

However, if you opt for mediation, you can split the cost of hiring a single attorney. Furthermore, you’ll likely come to a solution much quicker than if you battle for custody rights in front of a judge.

Keep in mind that you’ll soon be financially independent. Doesn’t it make more sense to save money for you and your child’s future?

Mediation is less stressful

Regardless of the way you approach your divorce, this is a stressful time. However, engaging in mediation can make the transition much easier.

Stress can affect the way you interact with your child. This could lead to tension and problems at home.

A mediator’s job is to walk you through the process and allow you and your spouse to see the big picture. They’ll help you resolve conflicts and avoid negative emotional reactions.

Mediation will also help you come to a custody arrangement that’s less stressful for your children. This is critical during this trying time.

Remember, this is a passing phase in you and your child’s life. Instead of fighting, do your best to set a foundation for a hopeful future.

Avoid parental alienation

During traditional divorces, it’s common for parents to slander each other in front of the children. They may blame certain things on their ex-spouse or say things that could cause the children to see that parent in a different light.

This is called parental alienation. Sometimes a parent doesn’t realize they’re doing it and sometimes it’s intentional. Regardless, it has a negative impact on the child-parent relationship.

When two parents choose to mediate through their divorce, they’re less likely to engage in parental alienation. Working through their differences together instead of fighting will ease any resentment they feel towards each other.

A mediator can also help them understand how much of an impact the divorce has on their children. There’s a much better chance a couple will keep this in mind when parenting individually.

Set the stage for a healthy future

Regardless of the way you choose to settle your divorce, one thing is certain – this is the beginning of a new life for you and your children. Mediation is a great way to start that new life.

When you work with your spouse on a healthy custody plan that benefits everyone, you’re setting the stage for future cooperation. You’ll come away from your divorce knowing you can communicate effectively in order to solve problems.

Co-parenting isn’t always easy. You’re bound come to some hurdles along the way. However, forming a solid understanding of each other will help you and your children move on from the divorce and work toward a healthy future.

Mediation will also show you that fighting only causes additional problems and creates stress for you and your children.

Consider Divorce Mediation When Developing A Custody Plan

Your children’s future is the most important aspect of your separation. Unfortunately, traditional divorce proceedings don’t always allow patents to operate with the best interests of the children in mind.

Instead, consider divorce mediation and come to an amicable agreement that benefits your children.

If you and your spouse have decided to separate and need help to come to a custody agreement, we can help. Contact us for family law representation today.

Joint Custody: How To Talk With Your Kids About Divorce

joint custody how to talk with your kids about divorce

There’s an oft-cited claim that half of all marriages end in divorce.

That’s not strictly true. The divorce rate peaked at over 45% in the 1980s but has been falling ever since.

No matter what the statistics say, divorce is still difficult for the whole family. It’s especially hard for the children. You know what life was like before your partner and can probably imagine life without them.

Your children don’t have that benefit of experience. Even joint custody poses problems due to the change and upheaval it entails.

Financially planning for a divorce is one thing. Emotionally preparing your children is another. This guide will help you to plan how you will discuss the situation with your family.

Set Ground Rules with Your Partner Before the Conversation

Telling your children that you’re getting divorced is a difficult conversation. You don’t want to make things worse by the discussion turning into an argument.

Before you talk to them, set ground rules with your partner. Work out how you’re going to break the news and agree what you’ll say.

You need to avoid assigning blame and you don’t want the children to feel pressured into choosing sides. It’s best to block out time for the conversation so it doesn’t feel rushed.

Have a plan for care arrangements in place before you have the discussion. That will help you answer the question ‘What will happen to me/us?’ It’ll show your children that you’re still putting their needs first.

Don’t Rush the Conversation or Pretend Everything Is Fine

The children need time to process the news and ask questions. Let them express themselves, even if they get angry or upset with you.

It’s best if you can have the discussion together. This will reinforce for the children that you’re still capable of a ‘united front’. It’ll show them you can still talk to one another and you’re both there for them.

Try reading our guide to an amicable divorce if you want to relieve some of the stress.

If being in the same room as your partner is too difficult, ask a neutral third party to be present. Or have two conversations and agree on a set script.

Planning on joint custody means putting in a joint effort.

Put Yourself in Your Children’s Shoes

You’re an adult so you process information in a different way to your children. You know what divorce means and how it can affect your life.

But they don’t. They may be scared they won’t see one of you again, even if you’re working on joint custody. They may even blame themselves for the split. Work out how you’ll reassure them that it’s not their fault.

Try to use their language to help them see that both of you still love them, even if you can’t work things out with each other.

Keeping things simple and factual helps you to avoid toxic conversations or passive aggression. Children will pick up on these cues.

At worst, if they think you’re angry or upset, then they should be angry or upset. A calm and straightforward approach is best.

Establish a Support System

Maintaining a routine is a good way to help them process the news. If they see that core parts of their life won’t change, they’ll be better equipped to deal with the upheaval.

Take it in turns to take them to school, keep up with their after-school activities, and so on.

Inform the teachers at their school that you’ll be sharing joint custody. It’ll help staff monitor their behavior and notify you if they act out or become withdrawn.

It’s advisable to tell the teachers the day before you tell your children. That helps the teaching staff to prepare for potential problems.

If necessary, let the parents of their friends know. That’s important if you normally pick them up from play dates, and your partner will now be sharing the responsibility.

Wherever Possible, Minimize the Amount of Change in the Their Lives

Once you establish separate households, continue following their routine. It can be tempting to allow your children more free rein so they see you as ‘the fun parent’.

Don’t fall for it. You and your partner need to maintain consistency. If you continue to set the same rules, it’ll reinforce for your child that not much has changed.

This will help your child feel more secure. The children also need to feel they’re still allowed to love both of you without being disloyal to one parent.

Stress the Positives of Joint Custody

Divorce doesn’t fall out of thin air. Your children will have noticed the tension between you. They may have heard you fighting.

Your discussion is the perfect place to reassure them that divorce actually means less fighting. If you’re lucky, you and your partner can still work as friends, if not as a couple.

Divorce may be the end of you as a couple but your children need to see it’s just the next chapter in your life as a family. Joint custody means you’ll still be a family – just in a different way.

Studies show that children in a joint custody arrangement fare better than those in other arrangements. Your children will benefit from your shared decision-making and responsibilities – just as if you were still together.

If necessary, let them talk to their friends if they come from a divorced family. Their friends will be able to come up with positives that your children will understand.

Allow the Children to Be Involved in Decisions

One of you will leave the family home. If you haven’t already done so, then you can ask your children if they’d like to help you choose a new home.

After all, they’ll be spending half of their time there too. It’ll help them to feel like they’re still part of the family. They’ll also feel like you still respect their input.

If they’re not interested, don’t force the issue. But try to choose somewhere that will be a safe place for them too.

Make the Divorce As Smooth As Possible

We’ve discussed how you can be there for your child. But you need someone to be there for you too.

Being prepared and armed with solid advice is the best way to answer their questions and feel secure in yourself.

Pets In Divorce Settlements

Divorce is a difficult time for everyone involved. When it comes to splitting up a household, it can be difficult to decide who keeps what. Even harder is the decision on who gets custody of the kids. Recently, family courts are getting more divorce cases where there’s a question of who gets the pets in divorce settlements. This is making it necessary to take a harder look at the role pets play in a family and how the pet’s best interest can be served during this difficult time.

Pets In Divorce Settlements: Pets As Property

Traditionally, the court system has looked at pets as property. When the question of who gets the family pet comes up, the court will put a dollar value on the pet. This often results in one person getting awarded the family pet and the other partner getting something of equal monetary value.

The “value” of the pet is determined by:

Who can prove they paid vet bills.
Which name is on the license.
Who takes care of the pet most often.

As the world becomes more aware of the importance of animals, some courts are starting to change their views somewhat, but there are some things that a couple can do to help make the process easier fro everyone.

Changing Views

As more courts start considering pets as family members, some of the same things that determine child custody are being used to determine pet custody. The judge may take into consideration such factors as who brought the pet into the family, who is able to give it more time and attention and who the pet is most attached to. In essence, he will try to determine the best interest of the pet, but this is also a situation that may not be easy to determine.

Legal Agreements

Couples who are considering a divorce often take the time to sit down with a lawyer and discuss things. If an agreement can be reached between the two people involved, custody issues may be resolved without the case having to go to court.

Let’s look at what can be included in a divorce agreement:

Basic custody of pets – Will it be best for your pet to have the consistency of staying in one home and having visitation from the non-custodial person? Would shared custody be better? Set forth who gets what time with the pet. Having it in writing will make it more enforceable if there ends up being conflict.
Finances – How will vet bills be paid? Will one partner have sole responsibility or will you share the cost? Is there a way you can arrange some kind of pet fund that will make it easier to pay vet bills if the other partner is unavailable?
Attachment – Did one partner bring the pet into the marriage, to begin with? Is there one partner who benefits psychologically from having the pet around? Does the pet prefer one partner over the other? All these answers can determine who has the greatest psychological investment and this is something that needs to be considered in who gets the pets in divorce settlements.

Any custody arrangement works best when two partners can come to an agreement that is best for the children. This holds true for pets as well. Until such a time when the courts fully embrace the concept of pets as part of a family, sitting with a lawyer to discuss custody arrangements for your family pet is the next best thing.