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Divorce can be traumatic for everyone in the family, especially for children. Data from Centers for Disease Control and Prevention (CDC) reveal that 50% of first marriages end up in divorce. More than 1 million children are affected in some way annually in the United States by the process and implications of divorce.

Traditionally, until the 1960s or 70s, the “tender years doctrine” was applied by most states in the US when deciding custody. The doctrine awarded child custody always to mothers by default, as being the natural guardians of their children. In the recent times, law has changed in the sense that no parent automatically gets the custody of children.

Each of the states in the US has its own law when it comes to child custody. In most cases, biological parents make decisions on behalf of their child as to all aspects of their upbringing following a divorce. In case there is a dispute on who the actual parent is, the juvenile courts will determine the custody, which takes into account the best interests of the child.

Do Children Have A Voice In Custody Preference?

In families where all members can discuss and come to an agreement out of court as to who will get the custody, the process is smoother. When younger children and infants are involved, either the parents or the court has to decide what is in their best interests.

Many states do consider the preferences of children while considering custody decisions. For instance, in California, the Family Code came into force in 2012, section 3042 of which deals with the child’s custody preference. The code states that “if a child is of sufficient age and capacity to reason so as to form an intelligent preference as to custody or visitation,” the court shall give due consideration to the preference. Besides, if a child is 14 years or older, and wants to address the court regarding custody preference, the child will be permitted to do so.

 

Experts do understand that interviewing the child during a court hearing can be a very traumatic experience and should be avoided. A private interview is often scheduled at either of the parent’s request with the judge.

 

There are many reasons why the child’s preference on custody alone is not enough to make decisions:

  1. The custody preferences of the child may be colored by anger. Some kids do not like being disciplined and may show a preference for the more lenient parent who may not be necessarily the more responsible one.
  2. If the child is younger, he or she can be manipulated by any one of the parents in order to secure custody.
  3. The child may not understand all of the reasons behind a parent’s actions or decisions. For example, refusing a trip or a toy may be due to affordability issues, and not based on hatred or irresponsibility.
  4. Many times the child may not even have a preference or may not be sure.
  5. Best interests of the child may be contradicting his or her preference.

Since the judges have to use their discretion in deciding each case based on its merits, they usually take the help of a child psychiatrist or other experts.

Researchers Bala and Birnbaum who studied some of the custody disputes, did find that many children do “want a say in how they are to be involved in the legal process”, but not many were keen on making decisions about their future.

Since the custody decisions are changeable with evolving situations, no child needs to be stuck with an undesirable arrangement long term.

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Brad and Angelina Divorce Highlights the Downsides of Serial Adoption

 

Months before Monday’s divorce filing by Angelina Jolie, tabloids reported that Jolie was considering adopting a seventh child to bolster her faltering marriage to Brad Pitt.

 

Now that they are officially divorcing, we can breathe a sigh of relief that that adoption never took place. The couple has already taken serial adoption much further than the average family would be able to get away with: Jolie adopted Maddox from Cambodia in 2002, when he was only a few months old. She adopted Zahara in Ethiopia in 2005 when the girl was only six months old. Pitt adopted both Zahara and Maddox in 2006. Jolie adopted Pax from Vietnam in 2007. Because of local adoption laws, she adopted him as a single parent and Pitt adopted him as his son a year later. The couple has biological children as well: Shiloh, born in 2006, was Jolie and Pitt’s first biological child. Knox and Vivienne, born in 2008, are Angelina and Brad’s biological twins.

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It’s a sad fact many estranged California couples live with each other for years. Their marriages are shot but they stay together, emotionally separated and loveless, in order to keep a roof over their heads or raise their children.

 

For many years, the family courts were sympathetic to that reality. They agreed that the couple could legally separate but remain under the same roof.

 

Last year, in In re Marriage of Davis, 2015 DJDAR 8320, the California Supreme Court turned that on its ear and created problems for many families when it ruled that, no matter when a marriage actually ended in the couple’s eyes, until one party physically moved out there was no legal separation.

Continue reading New Law Jettisons Controversial Divorce Ruling

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Surrogacy is a valid option for some couples looking to have children. However, putting together a valid surrogacy agreement can be challenging.

 

The family structure has evolved. Couples who were once unable to have children are now able to explore alternative options and grow their families. These options can include fertility treatments and adoption. Another option gaining in popularity is the use of a surrogate.

 

More on surrogacy

 

The term surrogacy refers to the use of a female to carry a fetus or multiple fetuses to term while another individual or individuals become the legal parent to the child or children at birth. Surrogacy can be achieved using either the surrogate mother’s egg or a donated egg from another individual. This egg is then fertilized by either the male partner’s sperm or donated sperm. The fertilized egg is then implanted in the womb of the surrogate mother.

Continue reading Is surrogacy right for you? A primer on surrogacy in California

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Child custody arrangements must be based on the child’s best interest.

Child custody issues can be some of the most emotional and contentious issues arising in a family law case. It is typically one of the first areas a new family law client will ask about. A lawyer can help you try to negotiate an agreement with the other party regarding what custody arrangements and visitation schedule each of you will have. If you are unable to reach an agreement with the other party then the court will decide.

 

In California, before a Judge hears and decides your custody/visitation matter, you and the other party must go to court ordered mediation to try and reach an agreement. There are basically two different types of counties for these mediations, recommending counties and non-recommending counties. You want to talk to an experienced family law attorney regarding which type of county you are in, the mediation process, and the best strategies for these custody mediations. If no agreement is reached in mediation, then the issue will go before a judge.

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superlawyersBitcoin continues to capture the attention of venture capitalists, retail businesses, government regulators, the media, and politicians over five years after its inception. Despite the recent shutdown of Mt. Gox (formerly the largest Bitcoin exchange), and subsequent drop in the Bitcoin exchange rate, the crypto-currency is still growing in acceptance and use. More and more businesses are starting to accept them in-lieu of traditional currency, and the United States is starting to issue regulations and guidelines concerning their use as a currency. However, many legal issues lurking behind crypto-currencies remain, and untangling them is still a work in progress. This article will cover the basic legal issues of accepting Bitcoin for your business.

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More states than ever before are now recognizing the validity of same-sex marriages and allowing them within their borders. This means that, in those jurisdictions, same-sex couples finally have the right to marry and to have their marriage accepted as a legal union. They can also enjoy unique legal aspects of marriage, including the right to obtain certain benefits (health insurance and survivor benefits, among others), the right to inherit property if a spouse dies without a will and the ability to take advantage of certain tax breaks and credits available only to married couples.

 

Logically, once same-sex couples are allowed to marry, it will be equally possible for them to divorce in a state’s family court the same way that heterosexual couples can. Unfortunately, that isn’t necessarily the case.

Continue reading The emerging legal area of California same-sex divorce

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For the past few decades, researchers have believed that the U.S. divorce rate is on the decline. U.S. Census data seemed to show that the divorce rate reached its highest point in the mid-1970s and has been steadily declining ever since. A new study shows, however, that this long-held belief appears to be incorrect.

 

Researchers at the University of Minnesota’s Minnesota Population Center recently published a study in the journal Demography that suggests the divorce rate in the U.S. has been steadily increasing, not decreasing, over the past few decades. One of the most important aspects of this new study is a re-examination of the data that experts have used over the years to determine the country’s divorce rate. In the past, experts recognized that the sources they used for divorce data were flawed, but they believed that the use of new techniques of analysis ensured accuracy. The Minnesota Population Center study demonstrates, however, that this is not the case. In fact, problems with the ways in which divorce data is collected – even in data sets long recognized as accurate – have contributed to a warped understanding of divorces across the country.

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Adoption for same-sex couples is a rewarding experience though often very difficult to navigate without expert legal assistance.

 

As the nation continues celebrating the legalization of same-sex marriage, many states are turning next to adoption rights. California has allowed same-sex marriage since 2013, although the path for equality took a winding, difficult road through Prop 8. But California was ahead of the curve when it comes to equality for adoption rights. In California, single LGBT individuals can adopt children, same-sex couples can jointly adopt, and a same-sex partner can petition to adopt a partner’s child or child of the relationship, but this does not mean adoption is easy.

 

Fortunately, despite the complexity, it is available to same-sex couples and LGBT individuals to create loving families through adoption. Across the U.S., over 6 million children are being raised by at least one LGBT parent. And California is one of seven states that specifically prohibits discrimination by adoption agencies against same-sex couples. There is no federal law on same-sex adoption, and two states ban adoption by same-sex couples entirely. It is unclear how adoption rights will change in those states that only recently commenced to recognize same-sex marriage.

Continue reading Obtaining help with same-sex adoptions in California

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California law has specific requirements for a prenup to be enforceable.

 

Marriage is supposed to be about love and commitment. It also creates an important and often complicated legal relationship, subject to laws that can significantly impact a party’s future rights and obligations, especially concerning money and property, at divorce, separation and death.

 

When an engaged couple would prefer different rights and obligations than those automatically dictated by California law upon marriage, they should consider a premarital (also known as a prenuptial) agreement. A premarital agreement is defined in California law as ” an agreement between prospective spouses made in contemplation of marriage and to be effective upon marriage” – it is a binding and enforceable contract.

 

California law specifies not only what may be included and not be included, but also what procedures and formalities are required.

 

Continue reading Consider a premarital (prenuptial) agreement before your California marriage

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