Thursday, May 15, 2008

Does my Child Have Any Say in Visitation?

Dear Attorney,
Is there an age at which a child's wishes are considered in a custody dispute? I have a 16 year old daughter, and for the past several years since my divorce she has lived with me 99% of the time. My daughter sees her dad several times a week after school and on weekends. She spends an occasional night at his home. She is a well adjusted, straight A student and an all around good kid. She is very happy with the current custody arrangement.

My ex has recently begun threatening to take me to court for more time with our daughter. She does not want her current arrangement to change. If my ex takes me back to court for more time, will the judge consider my child's wishes? My daughter has tried to talk to her Dad, but he isn't listening. She is very upset over this and she insists that I fight and says she is prepared to say how she feels to a judge. . .

I hope she doesn't have to, but if she does, will the court listen?

Dear D.M.-
California law requires the courts to take into consideration a child's wishes in a custody dispute, so long as that child is "of sufficient age and maturity." Gernerally speaking, courts interpret this to mean that achild should have some say in where they will beginning around age 13. However, your daughter has nearly reached adulthood, and is unusually mature. She is also a good student. Because of this, your daughter's wishes will be given greater weight.

Although the law favors frequent and continuing contact with both parents, the courts general concern is stability and continuity for your daughter. The courts do not want to "rock the boat," so to speak. Your daughter does see her father, anyway, and it sounds like they have a good relationship, just on your daughter's terms. If this case was to go to court, the judge would order your daughter to be interviewed by a trained court professional, so that she could be given the opportunity to explain her reasons for not wanting to change the schedule. This would also give the court the ability to assess whether your daughter was being pressured by either parent to take a certain position about visitation. Once the court was convinced your daughter was doing well; mature enough to have some imput in her life; and that your daughter was satisfied your daughter was happy with the current arrangement, the court would not change the current visitation schedule.

Don't worry, Mom, everything is going to be okay!!
-- Famularo & Associates

Thursday, May 8, 2008

I do not want a divorce, but my spouse does. . .

Dear Famularo & Associates-

I do not want a divorce, by my wife does. We are still living in the same house, but my wife promises that she is going to file for divorce soon. I want to try to work on our marriage, and I have begged my wife to go to marriage counseling with me. My question is: how can I protect myself in case my wife files for divorce without actually having to get a lawyer?

--G.T. in Temecula

Dear G.T.-

If your wife wants to get a divorce, you cannot stop her from obtaining one. In California, anyone can obtain a divorce for any reason, even if one spouse does not want one. This is the concept of a "no fault" state. This does not mean that you should be the first to file for divorce if you do not want one. You should not help your wife dissolve your marriage being the one to pursue the divorce. However, if your wife does decide to file for divorce, you should take some simple precautions to make sure you are prepared.

Namely, you need to separate your finances from your wife's to protect your assets in a divorce. You need to make sure you obtain a separate bank account, and begin depositing all your paychecks in the new account. You should cancel all joint credit cards and open up new ones in your name only. Also, separate your cell phone plans, your car insurance policies, and any other joint accounts that you might have.

Make sure that you begin gathering financial information. Keep copies of your income tax returns, your spouse's W-2 forms, monthly statements, retirement accounts, bank accounts, loan information, insurance policies, and other important documents in a safe place. You will need this information if you do actually end up getting divorced.

Unless there is domestic violence in your relationship or you are afraid of being falsely accused of domestic violence, you should not move out of the family residence. Let your spouse be the one to move out of the house if she is the one determined to get the divorce. This is especially important if you and your spouse have minor children together.

Finally, if you do have children and your spouse is intending to move out of the house with the children, make sure that you have a satisfactory custody and visitation schedule.

The general rule is that the person who wants the divorce should be the one to file. However, there is one exception to this rule. If you and your spouse have children together and your wife is denying you visitation or intends to move away with your children, you will need to file for divorce immediately.

Many people believe that the person who files for divorce has a legal advantage over the other spouse. This is not true. If you choose to take these simple precautions, you will be in a favorable legal position if your wife does, indeed, decide to separate or file for divorce.
-- Famularo & Associates