Solutions for Handling Custody Exchanges When Parents Don’t Get Along

Divorce and child custody are among the most contentious and highly emotional life events. When parents do not get along, the children suffer the most. 

Whether children are precocious preschoolers or smart-mouthed teenagers, confrontational custody exchanges can have lasting harm. However, there are solutions to reduce conflict. 

How High Conflict Custody Exchanges Hurt Children

It is common knowledge that divorce and fights over custody can cause children to act out in school and at home. While the difficulty of the situation is often acknowledged, children’s adverse behavior is still regarded as a phase that they will bounce back from in time.

However, the medical community has taken a keen interest in the effects of stress on brain chemistry, illness, and overall health. Recent studies have revealed that toxic stress can alter a child’s brain chemistry and organ systems. 

The famous “it’s just a phase” dismissal may be ignoring a cause of life-long mental and physical illness. 

What is Toxic Stress?

Toxic stress describes someone who is under constant and prolonged pressure. Often referred to as the “fight or flight” response, the chemicals released in the body during a stressful event are meant to help the body respond to a single event, e.g., running away from a dangerous situation. 

In short bursts, stress chemicals are very beneficial. However, when stress chemicals are continuously released, they begin to damage internal organs, particularly the brain.  

How Toxic Stress Affects the Body and Brain

Toxic stress seriously affects the body and brain. Ironically, prolonged stress damages the body’s ability to handle stress.

Neurotransmitters in the brain send signals to the body to ease off releasing stress chemicals and switch happier chemicals, like dopamine and serotonin. 

When the body constantly goes into a stress-response episode, those neurotransmitters are damaged and stop releasing as many happy chemicals. The human body goes into a little war with itself, where stress chemicals constantly run into battle and happy dopamine and serotonin stop breaking up the fight.

The damage is irreversible. Once the body is unable to regulate its stress response, all other organ systems experience increasing damage through adulthood: 

  • Mental illness: Low levels of dopamine and serotonin are linked to depression, anxiety, substance-abuse problems, and low self-esteem 
  • Heart damage: Stress chemicals increase a person’s heart rate and blood pressure, leading to heart attacks, strokes, and hypertension
  • Damaged nervous system: Childhood stress damages the nervous system. The nervous system connects the whole body and affects every major system. Chronic stress will cause severe wear and tear on the body, leading to obesity, immune disorders, depression, and many more health conditions. 

Are Confrontational Child Custody Exchanges Really That Stressful on Children? 

Studies ranging from the 1970s through to present day have repeatedly found connections to high-conflict divorce and long-term adverse effects on children. 

Toxic stress affects a child the way hard braking wears down the brake pads on a car. Every time ex-spouses argue during the exchange of custody, the child’s brake pads wear down a little more. Soon, the brakes start to squeal and act up. Ignoring the issue only makes it worse. Eventually, the brake pads wear down past a certain point and trickle down to other systems. 

While the brake pads on a car can be replaced, childhood cannot. Confrontational child custody exchanges provide a continuous supply of stress that has been proven to be detrimental to kids into adulthood. 

What is the Solution to Reducing Confrontation During Custody Exchanges? 

When parents do not get along, there is no magic formula, one-time event, or blog that can change the relationship. Parents have to work to get along every day. 

Compromise is necessary. There will be times a parent has to swallow their pride. Times when parents feel they give more than the other. However, childhood does not last forever. 

As Dr. Harley Rotbart famously stated, from birth to turning 18-years old, there are “940 Saturdays and you’re done.” By the time a child is five-years-old, 260 Saturdays are gone. 

To protect children from a lifetime of mental and physical consequences, compromise for 940 Saturdays. A custody exchange plan can help.

What is a Custody Exchange Plan?

A custody exchange plan is a long-term, set routine to handle child custody exchanges. To create a plan that is agreeable for both parents, consider the following:

Long-Term

First and foremost, every decision needs to be made with long-term implications in mind. What defines “long-term” is often subjective. 

Five years is a good measurement when considering children. Toddlers and small school children have similar schedules. However, by 5th-grade, kids may have after school activities that will require an adjustment to the exchange plan. When high school comes along, teenagers have far more responsibilities and increasingly active social lives. 

When considering all aspects of the custody exchange plan, make decisions that will work for both parents for the next five years. Save the date to legally modify the exchange plan when time is up.

Neutrality

Instead of exchanging children at one another’s house, choose a destination that is neutral for both parties. The home is a source of comfort and control, but only for one parent. In a highly-contentious relationship, the visiting parent can feel out of place and defensive, setting the stage for antagonistic behavior for both. 

Choosing a public place that is equal distance for both parents can ease tensions dramatically. People are less likely to draw negative attention to themselves by being confrontational. Restaurants, playgrounds, or schools are neutral places that may be convenient for both parents. 

If the relationship between parents goes beyond not getting along into violent and aggressive behavior, using a school or a daycare can be a great buffer. One parent drops the child off at daycare; the other parent picks the child up. Communication, while still important, is reduced to the bare minimum. 

Short and Sweet

Keep the exchange brief. Drawn out goodbyes peppered with multiple hugs and kisses can trigger separation anxiety in children. Instead, parents can give their children their full attention and say a quick, loving goodbye. 

Another good tip when dealing with smaller children is giving them a timeframe for when to expect to be reunited. However, smaller children may not understand what three days mean. Instead, use language they can relate to, “I will see you after three nighttime sleeps.” 

Handling custody exchanges can be difficult for the family as a whole. Children suffer the most from high-conflict exchanges. Minimizing common sources of stress by creating a long-term plan can keep parents sane and protect their tiny humans from disease-causing toxic stress. 

The child custody attorneys at The Law Offices of Steven M. Bishop can assist in creating a legally-binding custody exchange plan. Schedule a consultation by calling (619) 724-4148. 

 

Is A Custody Plan Necessary If You Just Separate?

Is A Custody Plan Necessary If You Just Separate?

When married partners get a legal separation, they are not divorced, but they are no longer married either. That usually means they live at separate locations, and their children must travel back and forth to see them both. This can potentially cause additional hardship to children who are already going through the painful process of having their parents split up. 

The State of California has a keen interest in the welfare of its children. So California law prioritizes the welfare of children when couples separate by requiring there be a plan in place that is structured so that children are able to spend time with each parent on a schedule and with a minimum of disruption in their lives. 

The family law attorneys at The Law Offices of Steven M. Bishop work with separating or divorcing parents to develop custody plans that promote the best interests of the children and provide parents with workable custody arrangements.

What Happens When Partners Legally Separate 

The process of legal separation in California is very much like the process of divorce, except that certain legal rights and responsibilities between the separating couple remain in place when a separation is final. Like divorce, the following are determined in legal separation:

Separated spouses are not free to marry others and still have the rights granted to married couples to inherit or to bring a wrongful death claim. Unlike divorce, it only takes a motion to the court to remove the separation order and resume the marriage. 

Why Married Couples Might Choose Separation Instead of Divorce

There can be practical as well as economical reasons for partners to want to split physically while still remaining connected legally. One spouse may need or want some benefit or right only granted because of the marriage, such as:

  • Beneficial tax status
  • Access to healthcare or retirement benefits
  • Financial support
  • Social security benefits

Couples who seek to separate but do not meet the residency requirements necessary to get a divorce may seek a separation and later convert it to a divorce. For partners who choose not to divorce, a legal separation does protect each person’s financial interests from the actions of the other.

Child Custody in Legal Separation or Divorce

Custody plans in California are also called ‘parenting plans’ or ‘custody and visitation agreements.’ California requires parents to create an agreement concerning how they plan to parent their children after they separate. Custody plans must specifically address two components of custody with the best interests of the child or children in mind.

  • Physical custody – How much time will a child or children spend with each parent?
  • Legal custody – How will decisions affecting the health, education, and welfare of a child or children be determined?

There is a legal presumption that joint custody by both parents is in the best interests of a child unless evidence demonstrates that a different custody arrangement should be made. A parent who does not have custody of a child or children at least half of the time will normally be granted visitation rights as agreed upon by the parents or as ordered by the court.

Once an agreement is reached between parents, it will be reviewed by a judge before it can be finalized and become an order. Custody plans need to demonstrate that care was taken to consider the best interests of each child, and every attempt was made to formulate an arrangement with those particular interests in mind. Things to consider when creating a custody plan include:

  • Meeting a child’s basic needs for support and guidance, food, medical care, and rest
  • A child’s age, personality, experiences, and abilities
  • A child’s ties to a school or community
  • A child’s relationship with each parent 
  • Creating a schedule that is consistent and establishes a routine so a child has structure and can feel secure
  • Try to anticipate what might interfere with the plan – such as unexpected events – and allow for flexible solutions as necessary

In joint custody plans, it is typically agreed that both parents can have access to information about their child, including medical records. Parents usually also agree that each can freely contact their child, and they are not prohibited from contacting each other. 

What Happens When Separating Parents Cannot Agree on a Custody Plan?

When parents are not able to agree on custody or visitation issues, California law requires the parties to participate in mediation to try and resolve their issues prior to a court hearing. Also referred to as ‘child custody recommending counseling,’ parents meet with a Family Court Services (FCS) counselor who tries to help them come to an agreement. 

Parents are usually seen together unless there is a restraining order in place or domestic violence is alleged. Child custody recommending counseling deals only with disagreements relating to custody and not to issues dealing with financial matters, support payments, or property division.

When the process is complete, the FCS counselor lets the court know what was agreed upon and what wasn’t and makes a recommendation to the court about how the disputed issues should be resolved. The judge will review the recommendations but has the authority to make the final decision.

Getting to the Best Custody Arrangement for Everyone Involved 

People who are going through separation or divorce are not happy. It is a difficult time in the lives of parents, and it is an especially difficult time in the lives of children. It is a time of great disruption and uncertainty. Creating a plan for children to spend time with both parents in a structured and consistent way is the best means to help children move past the trauma and adapt to a new normal. 

The Law Offices of Steven M. Bishop has been helping parents develop custody plans in the San Diego area for more than 40 years. The firm’s family law and divorce attorneys encourage parents to cooperate by finding solutions that are sustainable and provide the optimum benefit for the children. Call 619-724-4148 to schedule a free telephone consultation or contact a San Diego family law specialist here.

Divorce and Your Retirement Plan – Removing Your Spouse as a Beneficiary

Back in 1994, David Egelhoff lived in Washington state and worked for the Boeing Company. It was a respectable job with a good pension plan and a life insurance policy. He had been married a couple of times. He had two kids with his previous wife and was just coming out of a divorce with his second wife, Donna Rae Egelhoff. 

Two months after David signed the papers to finalize the divorce from Donna, he got in a car crash and died. Both his retirement plan and life insurance policy were awarded solely to him in the divorce decree, but he died intestate (legally unrepresented). 

Unfortunately, he never swapped out Donna as his designated beneficiary on his benefit paperwork. The manager of both the plan and the policy, the Employee Retirement Income Security Act (ERISA), paid Donna $46,000, the proceeds from the life insurance policy.

Under Washington state law, David Egelhoff’s children from his previous marriage, Samantha, and David, were his statutory heirs. They wanted to recover their father’s life insurance proceeds, so they sued Donna in state court.

Because the Washington state law conflicted with the federal law, ERISA only recognized the last designated beneficiary which was Donna. So, to resolve the issue, the case was pushed from court to court until it finally ended up in the United States Supreme Court in 2001.

SCOTUS ultimately ruled Donna would keep the money because ERISA’s policy dictates the last known beneficiary receives the proceeds. This reinforced ERISA’s federally controlled standard procedures. They also noted the problem with allowing states to impose their own laws on federal administrations like ERISA creates roadblocks in administering the proceeds from plans and policies. 

This ruling only applied to ERISA, which manages benefit plans like 401(K) and 403(B). ERISA does not control individual retirement plans (IRAs). This means if an IRA were in question: Would they be resolved using state law, meaning Egelhoff’s kids would receive the benefit, or would it fall under federal law as well and release the money to Donna as the designated beneficiary?

There is an obvious takeaway from the Egelhoff case—take the time to check or double-check specific accounts, plans, and policies to make sure the designated beneficiaries are correct, and the money will go to the desired people. There should be no question where the money will go when someone passes. And there should be no reason to leave loved ones or a divorced spouse battling it out in courts, building years of animosity and attorney fees.

When someone leaves behind a mess of paperwork with outdated information, cases like these can get complicated. The Egelhoff case is evidence that information can go out of date in two months. A day can be too late when it comes to divorced spouses. There are a couple of things Californians can do to make sure their estate is dispersed according to their wishes. 

California Rules for Retirement Plans

So often, the idea of estate planning gets tangled up with the contents and beneficiaries of a will. What many overlook in the process of sorting the affairs of an estate are retirement plans or 401(K). A well-funded 401(K) can be the most valuable asset in an estate. Because of its importance, keeping the beneficiary information updated on all financial assets like life insurance policies and 401(K).

So much of a person’s assets are tied to financial products like these, and often, the designated beneficiaries have not been changed since you opened these accounts years ago. 401(K) or IRAs designations are legally binding and usually take precedence over instructions in a will.

However, if you decide to seek a divorce from your spouse, you may have to divide your 401(k) equally during your division of assets. Depending on when you acquired your retirement plan, your spouse may receive up to half of the value you acquired during your marriage.

California is a 50/50 or no-fault divorce state, operating by fairly dividing a married couple’s combined assets, known as community property. This division of assets also applies to retirement plans and usually causes substantial negotiations during a divorce.

Spouses often receive 50% of the retirement plan’s value, but only on the sum accrued during the marriage. This process manages all classifications of retirement accounts, including:

  • Employment-based plans or 401(k)
  • Family-owned business plans
  • Traditional private employment plans

There are two options when dividing retirement plans, including: 

  1. Both spouses agree one spouse will receive a retirement plan payout of a retirement plan when the other retires.
  2. Or both spouses can agree to allow one spouse to have sole control over the retirement plan, and the other spouse receives another portion of their community property that equals their share of the retirement plan.

If one of these two options cannot be agreed upon, the court may order the couple to decide by evaluating circumstances. The options can impact people in multiple ways. There is a risk of losing a retirement plan’s future value, or it could have tax implications. 

After an agreement is reached, and the retirement assets are split, a Qualified Domestic Relations Order (QDRO) will be needed to facilitate the transfer of the proceeds of the 401(k) into a spouse’s retirement plan. A QDRO is a convenient way to transfer funds while remaining tax-and-penalty-free. It also allows funds from a 401(k) to be rolled into a Roth or traditional IRA, 

There may be an urge to withdraw funds from a 401(k) because of concerns about losing large chunks of a retirement plan in an upcoming divorce. Actions like these have consequences. The court may look at this move as taking an advance from future retirement funds. Courts can order the account to be reimbursed, or other assets in the community property could be forfeited. 

Depending on the circumstances of the withdrawal, courts may take other actions to balance the division of community property, including: 

  • Pay a pre-tax
  • Pre-penalty valuation of the funds

The best move is to seek advice from a qualified estate planning attorney to help navigate the treacherous waters of divorce and retirement plans.

Keep it Simple, Keep the Inheritance Separate

The Millennial Generation continues to break the traditions of previous generations. Never scared of asking questions and doing things differently, these 25-to-40-year-olds are veering away from joint bank accounts and keeping their money in separate accounts.

Millennial parents also have one eye on the future. Almost 30% of them have already started saving for their kids’ college. Although less than half of these parents are aware of 529 plans—tax-advantaged plans used to invest in the education of individual children.

A recent Bank of America survey shows the majority of Gen X and Baby Boomer couples use joint bank accounts, with only 10-15% keeping their money in single-person accounts. More than 25% of Millennials have decided to keep their finances separate.

One reason could be Millennials embracing technology. With apps like Venmo and Zelle, you can transfer money from person to person in a snap. Another reason may come from experience. Millennials have watched their parents and grandparents go through divorces and struggle to divide their assets. 

Here is the catch—keeping separate bank accounts or only putting one person’s name on a house deed does not truly separate the assets into two separate baskets when a marriage is concerned. When a marriage is dissolved in California, a couple’s assets are usually melted into a large puddle that is referred to as community property. This puddle is evaluated, mopped up, and divided into two separate buckets. 

Defining Assets 

Divorce is challenging. Parsing out the marital assets can be the most difficult step in this process. California is a no-fault or 50/50 divorce state, so when identifying and dividing assets, it usually falls into one of two categories: 

  1. Community property – Equally shared property by the couple
  2. Separate property – Property that belongs solely to an individual spouse.

Identifying community property usually depends on assets both brought into the union or gained by either spouse while married. This may include:

  • Income and wages
  • Bank accounts and cash
  • Stocks and bonds
  • Intellectual properties 
  • Real estate
  • Cars
  • Home furnishings
  • Clothing
  • Collectibles 

During a divorce, any assets falling into community property are owned by both spouses and divided fairly in the divorce negotiations. 

The division of property can get complicated, especially in high-asset divorces. The terms often get contested, leading to courts where a judge divides the assets according to California’s community property laws.

The laws are different from an equitable distribution state where family courts evaluate various aspects of a case before property and debt are allocated to each spouse. Among the many aspects analyzed by the court usually include: 

But in California, a married couple or domestic partners are a legal community, and property encompasses both debts and assets. It does not matter who is determined to be at fault for the divorce or either spouse’s financial situation either before or during the marriage. All of it gets split during a divorce.

Because of California’s laws, it is imperative to act preventatively by protecting assets like an inheritance before a divorce happens.

The Exceptions   

Gifts directly given to only one spouse and any inheritance received by only one spouse are seen as separate property. No matter whether someone inherits property before or during their marriage, it is considered separate property, and a spouse has no ownership rights. 

But exceptions do exist. Two of these exceptions transfer inheritances from separate property to community property.

  1. Transmutation – Allowing a spouse to be assigned joint ownership of inherited property. This can happen if both spouses sign their names on a house deed or a car title.
  2. Commingling – If money is inherited, it should be deposited into a non-joint banking account. If this money is used to buy anything for both spouses, this is considered commingling, making it community property. If a house or money is inherited, but the beneficiary sells the house or uses the money to buy a new house or repair and remodel the existing home with their spouse, then this new house or the increased value of their home becomes community property.

This does not mean these exceptions are absolute, but if these assets get transmuted or commingled, it can be an uphill battle proving inherited assets should still be treated as separate property during a divorce.

The marital assets should get divided fairly, but this does not always mean equal. In some cases, a judge may deem a settlement as unfair and decide to add separate property to balance it out.

Some Preventative Tips 

Recent surveys have also seen an increase in couples getting prenuptial or postnuptial agreements. Millennials have been the largest demographic using these legal contracts as an effective solution to secure separate property. 

The entertainment industry has given prenups and postnups a bad name for making marriage seem like a financial negotiation, but couples discussing these agreements allow for honest conversations regarding finances and marital property.

Separate bank accounts may not protect property during divorces, but they are not worthless. Keeping money in a separate account can help in a bind. If a divorce gets hostile, and a spouse blocks access to funds or marital property, it is a good practice to keep at least one credit card and one checking account separate.

During a contentious divorce, no one wants to appeal to a judge so they will order their spouse to loosen the control of their funds just to pay ordinary expenses like bills and childcare or attorney retainers.

Eventually, these separate accounts may have to be divided up in settlements, but they can help in a tough spot. Someone already going through a tough divorce does not need to be cut off financially or dependent on the court or their loved ones to help support them.

It is also important to keep thorough files, records, and notes detailing any inherited property. In the event these assets are questioned, evidence is essential to trace when the inheritance was received and who has the sole ownership of it.

How Criminal Charges Can Affect Child Custody in California?

To be blunt, criminal charges can, and likely will, affect the custody of your child in California. There are various degrees of criminal charges, and the more severe a charge is, the more impact it will have on your custody case. 

A judge will always decide a custody battle with the best interest of the child in mind, which is why a criminal history may not always be detrimental or affect child custody. If a judge believes the charges on your record do not represent a current or future danger to your child, they are likely to overlook the criminal history. However, if the judge determines that the criminal charges put the child (or children) at risk or negatively impact your ability to be a fit parent, then this will have a grave impact on child custody. 

What Kind of Criminal Charge is it? 

All criminal charges are not the same and therefore, the court’s do not treat each charge the same when determining custody. The nature of the crime and the timeline will always be considered before the judge makes a ruling in a custody case

There are some crimes that will likely always lead to a parent losing custody, and those include: 

  • Aggravated assault 
  • Crimes that endangered a child (negligence, recklessness, etc.) 
  • Domestic Violence 
  • Homicide 
  • Kidnapping 
  • Sexual assault and harassment crimes 
  • Stalking 

In addition to considering the nature of the crime, a judge will also look at the following factors when deciding a custody case: 

  • Repeat offenses 
  • The sentencing for the crime 
  • When the crime occurred 

If the crime was violent in nature or the parent has multiple crimes on their criminal history rap sheet, then it will likely hinder your custody case and cause you to lose your parental rights in some capacity (if not entirely). However, if the charges on your record were not violent in nature, did not occur recently, and there are no repeated offenses, then they may not affect your case at all. 

The Effects of Drug and Marijuana Charges on Child Custody

Under California Family Code 3011 (a)(1)(B)(4), the habitual or continual use of a controlled substance, including alcohol and marijuana will greatly impact a child custody case. 

Even though marijuana is now legal in California, prior charges can still be a crucial issue when deciding a custody case. If the use and charges impacted a child’s life, the court will likely use this against a parent. However, for the most part, marijuana is now treated like alcohol and will typically only affect a custody case when the use of the substance is excessive, consistently in the presence of the child, while operating a vehicle, and/or under the influence during your assigned time with the child. 

Criminal charges related to drug use or selling of drugs can have a great impact on your case. However, the best way to abate these charges during a custody battle is to: 

  • show no repeated offenses
  • show that the use of substances has ceased 
  • show that the charges did not have any impact on your child or your ability to parent 

If there are drug charges on your record, a court will be able to require drug testing when determining custody of a child. 

Do the Criminal Charges Impact the Ability to Be a Fit Parent? 

A criminal charge will not always directly relate to the custody situation, but the charges can still impact the outcome of your case. The best interest of the child is always the top priority when determining the custody of a child or children. 

A court, or other parent, can show that an arrest, charge, or illegal actions negatively impact that parent’s ability to adequately care for their child, regardless of how the crime itself impacted the child. A court can view criminal charges and illegal behavior as a pattern of poor decision making and an inability to care for a child’s life. 

A court will never place a child with a parent when it believes the minor will be in an ill-fitting home or in harm’s way. A criminal history will likely lead a court to make assumptions about the parent and greatly limit their custody rights. An arrest record and criminal history will typically cause a court to rule in favor of the other parents and grant only limited visitations or supervised custody

Even though a criminal history can have a severe impact on gaining custody of your children, each case is different and, in some instances, the charges can be overlooked if a judge determines that having custody would be in the child’s best interest. 

Can you Overcome Criminal Charges? 

Criminal charges will not always mean an automatic loss of custody rights. If you are seeking custody of a minor child (younger than 18), there are ways to increase your chances of gaining custody. 

In the case of domestic abuse, a court will allow you to attend a fifty-two (52) week batterer program and complete the final evaluation to fully comply. Similarly, if you have a history of substance or alcohol abuse, you can receive substance abuse counseling and/or attend rehab to show that you have overcome substance use and will not affect your parenting. 

Additionally, the best way to overcome criminal charges (regardless of severity), is to remain in compliance with all probation, parole, and restraining orders. Most importantly, avoid committing any additional crimes. 

Contact a California Custody Lawyer 

A criminal history will likely have an impact on your child custody decision, but it is always important to discuss your case with an attorney before any court proceedings. For more information on how criminal charges can affect a child custody case in California, contact the San Diego family law attorneys at The Law Offices of Steven M. Bishop. 

To discuss your custody case with one of our attorneys, please call our offices at 619-724-4148 for a free phone consultation. We represent those throughout San Diego County and can help answer any custody questions you may have. You can also contact us by email.

Parenting Time and Summer Vacation Modifications

Regardless of how good a parenting plan is, there are bound to be disputes over how vacation times are handled. This is particularly true during summer vacation periods. Children are out of school until fall and their schedules are completely upended. This leaves parents in the predicament of deciding how best to deal with vacation issues when juggling two different schedules which may conflict with each other.

Although  working with a Certified San Diego Family Law Specialist can help you navigate this difficult issue, there are some things you should address before you seek legal counsel.

 

Review Current Parenting Plans

Keep in mind, your existing parenting plan is on file with the court. The court ordered both parents to abide by a schedule which the court believed was in the child’s best interest. Whenever possible, it is best to stick with this plan since there can be penalties associated with varying the plan.

While it may be acceptable for both parents to agree on a modification, it is also important to remember that until the court approves a different plan, either parent may object in court to the plan, even when there is nothing more than a verbal agreement between the two of them. You should never agree to a modified visitation plan which is not approved by the court.

 

Custody and Visitation Orders in California

California family laws typically allow parents to discuss and agree upon holiday and vacation times and will include these agreements in the final custody and visitation orders. When the parents cannot agree, however, the court will make these decisions and may issue a visitation schedule along with the divorce decree. These orders are typically done to protect the best interests of the child and may include language which specifically refers to holidays, summer vacations, and other school breaks. However, keep in mind, circumstances can change.

Some of the circumstances under which a court will review the current parenting plan include:

  • Material changes to the circumstances of one or both parents
  • The distance between the two households
  • The wishes of the child (over a certain age)

Whenever possible, parents should ensure they are doing their best to adhere to the court orders to ensure they are not facing any legal challenges. Remember, either parent may petition the court to hold the other parent in contempt of court for violating a visitation order.

 

Parenting Time Modifications by Agreement

California family law statutes make it clear the court will always take the best interest of the child into consideration. Therefore, it is important to understand that even when there is an existing parenting plan in place, the parents may agree to modify the plan which was agreed to at the time of their divorce.

Parents remain in control over the visitation of their children. When both parents agree the current plan is not working for them, they are free to agree to a modification of the current terms and present those plans to the court. These changes may impact only summer vacation, or they may impact the broader parenting plan if warranted.

Remember, as long as the new plan takes the child’s best interests into consideration, the court is likely to approve a modification which is submitted by the parents. This does require the parents to reach a mutually agreeable solution to summer vacations and other changes to parenting time. The drafting of a plan may be accomplished with or without the assistance of a family law attorney. However, it is always best to have the modification reviewed by your attorney before submitting it to the court, since your attorney can advise you of any potential problems which the court may find with the modification.

 

When Modification Is Contested

Unfortunately, parents cannot always agree on issues pertaining to summer vacation, or to visitations in general. If the parents cannot agree on a modified plan for parenting in the summer, then a petition must be filed with the court to modify the plan. However, this is not a guarantee — to show that a modification is warranted, the petitioning parent may be required to demonstrate:

  • There are circumstances which are substantially different than at the time the original parenting order was put in place
  • The circumstances which have changed materially impact the child, or
  • The circumstances have changed for one or both parents
  • The wishes of the child have changed since the original order was put in place

The petition will be submitted to the court for a hearing. Before such a hearing is held, the judge may recommend the parents participate in a mediation session so that an agreement which is acceptable to both can be reached.

In the event the mediation between the parents fails, then the court will request both parents attend a court hearing to rule on the dispute. As with all other issues which impact a minor child, the court will always defer to what they feel is in the best interest of the child or children.

 

Seeking Legal Help for Modifications

When a parenting plan is no longer working for the parents, or the child, modification of plans is sometimes necessary. However, agreeing on what those modifications should be is often a challenge as both parents may have different ideas as to what is in the best interest of the child.

Remember that the California Family Court will carefully scrutinize California’s Family Code to determine whether modification is appropriate. Parents who file a modification petition without the proper reasoning could be required to pay all legal costs associated with the request.

When you and your spouse cannot agree on a summer parenting plan that is different from your existing plan, you can opt to participate in mediation or arbitration before filing a petition with the court as well, which may be a better alternative. In the event you cannot reach an agreement, then your family law attorney can help you file the required petition for modification with the court.

 

Contact a Family Lawyer Today

Parenting is never easy and when the parents are not living together, there are more complications. Children need both parents, and it is in their best interest to make sure that when the parents can find common ground, they should. However, we are also realistic and know this is not always the case. If you are facing a potential dispute over your current parenting plan and summer vacation, contact a California custody and visitation modification attorney  at The Law Offices of Steven M. Bishop, Attorney at Law by calling (619) 299-9780.

Custody Rights of Non-Biological Parents in California 

Today, many children are part of blended families. While this is a positive thing, unfortunately, when the current family is torn apart by divorce, there are a number of issues which must be confronted, including whether or not the non-biological parent should have rights to claim custody of a child.

You should understand that California, like several other states, has legislated portions of  The Uniform Parentage Act (2017) which provide a legal framework for defining a parent-child relationship. Therefore, it is important to understand what rights are granted to a parent who may not be biological.

New Relationships Resulted in New Definitions

Traditionally, when a man and woman married and had children, the only disputes over custody existed between them. However, today, there are other relationships in which a parent may not be biologically related to a child. Some of these situations include:

  • Same-sex couples — today, more same-sex couples are opting for adoption or having children with a surrogate. In these instances, the child may not be related to either parent. However, the parent-child relationship is well established in these cases and either partner may be considered fit to have custody of the child.
  • Stepparent relationships — in general, a stepparent would not be entitled to custody of a child unless there was an instance where it was determined to be in the best interest of the child. However, a stepparent may have the right to petition the court to be granted visitation rights. In the case where a biological parent loses their life, the stepparent may petition to obtain custody of the child.
  • Adopted child relationships — when a child is adopted, either by a woman or a man, the relationship is presumed to be identical to the relationship of a biological parent. Generally, to adopt a child, the biological parent (or parents) must surrender all rights or that child. Therefore, an adoptive parent(s) would have the same custody rights as a biological parent.

These are just a few of the instances where parenting is redefined, and when non-biological parents factor into custody decisions. Keep in mind, in all cases, courts in California are legally bound to make their decision based on the best interests of the child.

Amendments to California Family Code

One important thing to remember is changes which were made to the California Family Code during the 2013 legislative session. Specifically, the Code now addresses custody by non-biological parents. Senate Bill No. 274 states allowed for instances of a child recognizing one or more adults as parents. In these csaes, the court would take these adults into consideration when it is in the best interest of the child. The court can make a determination of when a non-biological parent may participate in custody of a minor child.

For those who cannot claim to be biological parents, if you believe that you can offer the most stable environment for a child, you can see guidance from a family law attorney who has experience handling cases involving custody and non-biological parenting. This is particularly true if you are concerned about the well-being of the child. Talking to an experienced family attorney and explaining your relationship with the child, the child’s relationship with the current custodial parent, and others in the household can be helpful. Remember, the courts will always err on the side of the best interests of the child.

Rights of Non-Biological Parents and Visitation in California

It is important to understand how California deals with visitation rights. While they are different than custodial rights — where the child may live part or full time — they are worth understanding in the context of developing a parenting plan. There are other adults in a child’s life who may be entitled to visitation rights. These may include:

  • Stepparents — if the court determines the relationship between a stepparent and child is beneficial to the child, they may grant visitation rights.
  • Grandparents — when couples divorce and the relationship is fractured, it impacts grandparents as well. In some cases, the non-custodial parent may have only supervised visits, or in extreme cases, no visitation rights. In these instances, the only relationship which could be maintained with a grandparent would be for the grandparent to be granted some visitation rights.
  • Other family members — while less common, it is possible for other adult children, aunts and uncles, or other family members to request the court consider granting them visitation rights.

These situations may make developing a parenting plan more difficult for couples. As a biological parent going through a divorce, you already have a lot to consider. If you have any reason to believe there will be a request for visitation from someone other than your spouse, or if you anticipate a petition for custody by a non-biological parent, it is imperative you inform your attorney of this potential.

Children’s Wishes May Also be Considered

One of the issues which the court may take into consideration is the wishes of the child. When a child is over the age of 14, they may express an interest in living with one parent over another. There is nothing which prohibits a child from expressing an interest in living with a non-biological parent. The court is under no obligation to act on the child’s wishes, but it is something you must consider.

There may be instances when the court assigns a third-party such as an advocate, trained social worker, or other adult to work with the child. Unless the court deems it appropriate, the child is not required to express their wishes in court, instead the advocate would present the information on the child’s behalf.

Contact an Experienced Child Custody Lawyer

Regardless of the situation you are in, whether you are currently in a custody dispute with your spouse, you are a non-biological parent who wishes to petition for custody, or you have an interest in petitioning for visitation rights, the first step you need to take is getting sound legal advice.

When you need legal advice about what steps you can take to address custody or visitation issues, contact an experienced lawyer. At our firm, your case will be handled by a lawyer who is a Certified Specialist in Family Law. Please call our San Diego office at 619-724-4148 or send us an email.

Bitcoin is Here to Stay—Handling Cryptocurrencies in a Divorce

Make sure your divorce attorney understands you have Bitcoin assets when you are discussing division of property. More divorces are involving cryptocurrencies than ever before, and the value of those currencies in some situations is extremely high. It is critical, as with every divorce, that both parties properly report their assets; if one fails to do so, the search for the monies can be time-consuming and costly.

There are options available to track Bitcoin, but many lawyers are unsure how to utilize them (or even familiar with the currency itself). Courts, on the other hand, are used to dealing with cases that require tracing assets, particularly those stored offshore, which is a little like the types of Bitcoin holdings that are currently emerging in divorce court. Since Bitcoin’s inception over a decade ago, the field of cryptocurrencies has grown rapidly, and the next big digital token could be issued tomorrow. Due to the growing area of cryptocurrency, it is important that the legal field stays on top of the changing technologies and the issuance of various coins to safeguard their clients from deception.

How are Cryptocurrencies Divided in a Divorce?

California is a state that recognizes community property laws at divorce. Rather than sharing marital assets and properties in an equitable or fair manner, the courts divide community property in half, regardless of the circumstances. Regardless of who brought the asset or debt into the marriage, if your divorce case goes to trial, you and your husband will have to distribute all of your communal property 50/50. There is no exemption, even when it comes to digital property.

If one or both divorced parties acquired Bitcoin or another cryptocurrency during the marriage, it will almost certainly be deemed common property. Community property is expected to be divided equally between spouses under California law.

If one or both spouses brought their own cryptocurrency into the marriage, it will almost certainly be deemed separate property. If one person inherited it or received it as a gift, it will almost undoubtedly be regarded as separate property. Separate property is not usually divided in the same way that common property is and not subject to California law of community property. 

What is Bitcoin? 

Satoshi Nakamoto, a pseudonymous individual or group, developed Bitcoin in a white paper published in 2008. Bitcoin is a digital currency that enables for secure peer-to-peer transactions via the internet, and it is supposed to be an appealingly simple notion.

Unlike services like virtual banks or digital money transfer services, which rely on the traditional financial system for permission to transfer money and on existing debit/credit accounts, bitcoin is decentralized: anyone, anywhere in the world, can send bitcoin to anyone else.

Every Bitcoin transaction is recorded on the blockchain, which is analogous to a bank’s ledger or log of clients’ funds entering and exiting the bank. In simple terms, it’s a log of every bitcoin transaction ever made.

What are Cryptocurrencies? 

A cryptocurrency (or “crypto”) is a type of payment that may be sent around the world without the need for a central monetary authority such as a government or bank. Cryptocurrencies, on the other hand, are created using cryptographic processes that allow users to purchase, sell, and trade them safely.

Cryptocurrencies can be used to buy and sell goods and services, but they are most commonly employed as investment vehicles. Cryptocurrency is also a crucial aspect of the operation of some decentralized financial networks, where digital tokens serve as a transactional tool.

Bitcoin, the most popular cryptocurrency, has a history of price volatility. It reached an all-time high of over $65,000 in 2021 before its most recent decline. Bitcoin can be purchased 7 days a week, 24 hours a day, which is why the price fluctuates so frequently. 

Court Ruling on Cryptocurrencies in California Divorce

Changes in technology and currency have had an impact on not only the global economy, but also on divorce settlements and property division. This was proved in a recent California divorce case in which the husband failed to disclose information about his cryptocurrency investments, violating his fiduciary duty to his wife and her stake in the communal estate. 

The wife in this instance filed a divorce suit in January 2013. The husband made three bitcoin transactions in April 2013. The majority of his $45,000 was eventually ensnared in a bankruptcy proceeding. He eventually recovered a modest sum and acknowledged possession of 1,062 bitcoins in his financial reports in February 2014. The court allegedly determined that the bitcoins were communal property and split them equally between the spouses. It was only after the wife attempted to collect her share of the bitcoins that the remaining coins were discovered to be bankrupt. At the time, the value of bitcoins had skyrocketed, and the original $45,000 investment had grown to $8 million.

In a motion to the court, the wife requested that half of the bitcoins’ worth be transferred to her and that her attorneys’ fees be paid. The motion was granted by the court, which found that the husband had breached his fiduciary obligation to his wife, and she was owed half. The husband subsequently filed an appeal, which upheld the lower court’s decision. 

Finding Hidden assets in Cryptocurrencies

With the advancements in financial technology, it is becoming easier for tech gurus to hide assets. This makes dividing property during a divorce more difficult. However, there are ways to find “hidden” assets in cryptocurrencies. 

The way to do this on a personal level is to collect a year’s worth of bank statements. Make a graph of the cash withdrawals. If you see a pattern of high cash withdrawals from a specific location, check to see if there are any bitcoin ATMs nearby. This is a clear sign there are assets invested in cryptocurrency. This is a low cost way to find hidden assets, however, not always effective. 

Another way to locate cryptocurrencies at a higher cost is to hire a forensics specialist who is an expert in this field. Sometimes, hiring an expert or seeking professional advice is the only answer if you want to ensure all property and assets are on the table before finalizing the divorce. 

Contact The Law Offices of Steven M. Bishop 

If you are going through a divorce and one or both parties has invested in cryptocurrencies, contact an experienced attorney today. For a free consultation call The Law Offices of Steven M. Bishop at 619-598-0152 or contact us through our online system.

 

Student Loan Debt and Your Divorce—Who Ends Up Paying?

Student debt is increasingly becoming the principal debt commitment for people in their 20s, 30s, and even their 40s and beyond, overtaking credit card and vehicle loan debt (and often an obligation that makes even acquiring home mortgage debt difficult). In a divorce between a couple with significant student loan debt, the question of who will be responsible for the debt after the marriage, as well as whether the other party should be reimbursed for any payments made on the debt during the marriage with community funds (income earned during marriage), can be a major point of contention.

With over 45 million Americans struggling with student loan debt, it is no surprise that a significant number of California residents take out student loans before or during marriage. Given that the average age at which people get divorced is 30, many divorcing spouses are likely to be encumbered with a large amount of school debt. Student loan debt will likely be your responsibility if you incurred it, however, due to the laws of some states, your spouse may be responsible for repayment, as well. 

General Rule Regarding Student Debt During a Divorce in California

California is a community property state, which means that a marriage or domestic partnership registration creates a legal “community” between two persons. Any property or debt gained by one person during the marriage or partnership is considered to be the property of the community, not the individual who accumulated it. Community property is defined as “any property, real or personal, wherever situated, acquired by a married person during the marriage while domiciled in the state,” according to California Family Code section 760. Community property is usually shared 50/50 at the end of a divorce.

If a person has student debt before marrying, the debt is considered separate property, and the husband is not responsible for it. If both spouses consolidated pre-marital student loans into a single loan in both partners’ names, then it is likely considered community property. This is not the case, however, if a student loan is taken out while married.

According to California law, debt incurred to finance a person’s education benefits that person throughout his or her life after the marriage, and it would be unfair to make the other spouse pay for that educational debt after the marriage when that spouse is not benefiting from the education in the form of increased family income.

Exceptions to the General Rule 

However, under California Family Code section 2641, courts can make three exceptions to this general rule (a spouse’s student debt is their own burden), requiring the non-student spouse to be accountable for at least some of the debt after the marriage if:

  1. “The community has substantially benefited from the education, training, or loan incurred for the education or training of the party.” Courts will presume that both spouses did not “substantially benefit” from the education when incurred less than 10 years before the filing of a divorce action, and courts will presume that the community did benefit when more than 10 years have passed since the contributions. 
  2. “The education or training received by the party is offset by the education or training received by the other party for which community contributions have been made.” Meaning, both parties benefited from a community-funded and/or debt-financed education.
  3. “The education or training enables the party receiving the education or training to engage in gainful employment that substantially reduces the need of the party for support that would otherwise be required.” Put simply, this means while assigning debt obligations, the court will consider how spousal support figures are changed by either party’s schooling.

These exceptions can and generally are contested or negotiated when going through a divorce. The above factors are not the strict law and a judge will use their discretion when making an overall ruling when assigning property and debts during a divorce. 

What Happens if You are Not Co-Signed on the Student Debt? 

In many circumstances, if you co-signed student loans on behalf of your partner, you will be responsible for repaying that debt even if your marriage ends. This may not always be the case. A good example of when this is not true is if you are able to refinance in your own name or locate a lender who accepts co-signers, then you may be able to free yourself from your former spouse’s student loan debt.

If they are private loans in question, it is likely the party needed a co-signer. If you or your partner co-signed a private student loan during your marriage, even if you divorce, the co-signer is legally liable. In this scenario, looking into co-signer release possibilities would be a good idea.

Reimbursement of Student Debt Payments

The entitlement to reimbursement under California Family Code Section 2641 is not automatic, and the spouse who wants it must file a formal legal request and show that communal assets were used for reimbursable expenses. A spouse seeking reimbursement must also show that community contributions significantly increased the student spouse’s earning capacity, and that the community did not get any benefits in exchange for their contributions during the marriage or domestic partnership and prior to the divorce.

Tuition, books, fees, and supplies are all reimbursable expenses for a spouse’s education, but they do not include basic living expenses like accommodation, food, and medical care.

It is not always easy to prove the facts that establish an entitlement to reimbursement for educational expenses under California law. Having an experienced divorce attorney on your side will help increase your chances of reimbursement. 

Contact The Law Offices of Steven M. Bishop

Among the most common misunderstandings about student loan debt is that all debt incurred prior to marriage becomes shared debt after marriage. This is not always the case, however, which is why you consult with an experienced attorney to go over all aspects of your divorce and student loan debts.

If you are going through a divorce and either party has student loan debts, either incurred before or during the marriage, contact an experienced divorce attorney today. For a free consultation call The Law Offices of Steven M. Bishop at 619-598-0152 or contact us online at our website. 

Business Valuations for The Self-Employed During a Divorce

The path to a smooth divorce begins with an open discussion of your marital assets. In the state of California, a self-owned business that is acquired during marriage is treated as “community property.” During divorce proceedings, the court will make decisions regarding the division of this community property to ensure both spouses are treated fairly. As part of this process, the court may first require a business valuation to determine how much your company is worth.

Common Business Valuation Methods in California

Assigning a value to a business is a complex process that is best handled by an experienced business valuation expert. To arrive at a value that is fair and accurate, most California business valuations measure value based on anticipated income, existing assets, or a comparison to other businesses operating in the same market or industry. Here are some common business valuation methods:

  • Capitalized Earnings: The worth of projected profits is calculated based on current earnings and future performance expectations.
  • Comparables: A valuation is calculated using the financial performance of comparable businesses in the same industry over time.
  • Adjusted Book Value: This method involves tracking assets and liabilities at their fair market value to place a value on a business.
  • Liquidation Value: This is the approximate amount of money that would be generated if a business is sold on a rush basis.

There is no single best way to place a value on a California business. The valuer will likely consider a company’s age, industry, size, and asset collection before deciding which business valuation method is the most appropriate.

Choosing a Qualified Professional to Value Your Business

Not all valuation estimates are created equal. While some are comprehensive, well-organized, and rooted in sound methodology, others are sparse and pieced together quickly without using standard procedures. Failure to choose a qualified valuation professional can lead to inaccurate, incomplete, or unfair estimates. You can avoid these pitfalls by having one of the following specialists value your business:

  • Chartered Financial Analyst (CFA): CFAs must have a minimum of four years of industry experience and also pass multiple exams.
  • Accredited Senior Appraiser (ASA): Becoming an ASA requires at least five years of valuation experience and over 123 hours of education.
  • Certified Valuation Analyst (CVA): CVAs must have two years of business valuation experience, pass an exam, and submit a peer review report.

As you evaluate possible options, look for valuation professionals who hold one of these titles and who handle business valuations specifically for divorce cases. They will be less likely to assign a value that is too high, which could lead to an unfavorable distribution of business assets. Finally, it is wise to ask potential candidates how many years of industry experience they have and inquire about whether their valuations have a proven track record of being well-received by the California court system.

The Role of Timing in Business Valuations

The role of timing cannot be overstated when scheduling a business valuation. In most cases, a business valuation takes place on the day of your settlement or your trial date. The valuation should be an accurate reflection of your company’s worth while you are operating it.

If your business is valued prematurely, you are more likely to disagree with the results. You may need to schedule a second report, which can be time-consuming and costly. Likewise, it is never a good idea to wait until the last minute. A reliable business valuation can take time, and delaying a valuation could prolong your divorce proceedings.

Steps You Can Take for a Smooth Valuation Process

If you are like many self-employed Californians, your business is among your largest assets. So, it is important to take the valuation process seriously to ensure you receive your fair distribution of the business assets. Here are some steps you can take to pave the way for a smooth valuation process:

  • Step One: Time your valuation with care. Do not rush. As outlined above, the timing of your valuation can be a difference maker.
  • Step Two: Organize your documentation. Records such as income statements, payroll data, and inventory reports may be needed.
  • Step Three: List any intangible assets. These are non-physical assets such as client lists, trademarks, and brand recognition.

In addition to following these steps, do not be afraid to question the results of a business valuation. Since the valuation will be used to determine the division of marital property, it’s crucial to speak up and question the results if they do not seem accurate. Even better, your attorney can challenge the valuation on your behalf and lobby for a second valuation.

How a San Diego Divorce Lawyer Can Help with Your Business Valuation

The single most important step you can take to ensure fair results is to seek the guidance of a San Diego Business Owner divorce lawyer. An experienced attorney can help ensure your business valuation is undertaken by a qualified professional at the proper time. Here are some other ways a skilled divorce lawyer can support you during a business valuation:

  • Fight for your rights during the property valuation process
  • Represent you through the valuation process from start to finish
  • Explain how California laws impact your property valuation
  • Help resolve any property value disputes that may arise
  • Overcome legal obstacles that may impede the process
  • Pinpoint holes or weaknesses in poorly prepared estimates
  • Help uncover any other assets that may require valuation

San Diego’s Most Trusted Divorce Lawyer

Navigating the road of business valuation is not always a straightforward process. But with the help of an experienced divorce lawyer, you can rest assured knowing your business and other assets will be valued and divided fairly.

The Law Offices of Steven M. Bishop are here to deliver the compassionate legal support you deserve during your divorce. For over four decades, we have helped business owners facing divorce save money while obtaining a favorable and fair business valuation. We invite you to contact us today to schedule a free phone consultation. We look forward to helping you secure the best possible outcome in your divorce case.

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To talk to our lawyer about your family law issue in a free telephone consultation, please call our office at 619-299-9780. You may also send us an email. We represent people throughout San Diego County in a host of different family law matters.

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