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Posted on in Child Custody

IL family lawyerChild custody is complicated no matter the circumstances of a parent’s particular case. Not only are custody battles complex, but they are often stressful times for everyone involved. However, the stress and complexity of a child custody case can each take on new dimensions when one parent is not a U.S. citizen. A San Jose child custody attorney can help explain what options you have today.

Types of Custody Available for Non-Citizen and Citizens Alike

Even though one of the parents is not a U.S. citizen, they will be given a fair chance at gaining custody rights over their American citizen child or baby. The custody decision may be one of the following:

  • Sole legal custody;
  • Joint legal custody;
  • Joint physical custody;
  • Visitation rights; or
  • No custody or visitation rights.

California courts will always choose a living situation and custody arrangement that is in the best interests of the child. This remains true even when one parent is not a U.S. citizen. As such, it is important to understand this vital question: “what are the best interests of your child?” The court will analyze the following factors (and more) to come up with a decision:

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Posted on in Divorce

California family lawyerA woman who had gone through a divorce a year earlier took her car to the mechanic, who found a GPS device that the woman’s ex-husband had installed--a GPS device that still had 25 to 50 percent of its battery left, which meant that it had only been on the car for a few weeks. The woman knew that her ex had been tracking her, but she did not know how. She had gone out of town and stayed at friend’s houses in an attempt to escape her ex, who was physically abusive to her. He ended up knowing where she was at all times because of the GPS device, which, if the car was owned jointly during the marriage, he had a legal right to install a GPS device on. While bizarre, particularly because there was evidence of abuse, this type of spousal stalking is legal. Stalking cases such as this have become more prevalent with technology as ex’s attempt to control or monitor the other party. A San Jose family law attorney may be able to shed light on whether such tracking measures are legal or not.

California’s Gray Area Law

In California, it is legal to put a GPS tracker on a car as long as the owner gives consent. For jointly owned vehicles, it is generally legal, though the law is somewhat less clear. Personal investigators are using GPS devices frequently to track their targets. A husband may wish to track his wife or ex-wife, and because he jointly owned the vehicle and gave his consent, the majority of personal investigators feel legally entitled to use GPS, according to an investigation done by one media outlet. Of 20 personal investigators that were contacted about this, 16 replied and only one refused to use GPS in this regard.

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California divorce attorney, California family law attorneyMany people view divorce as a fresh start to life, and this is true for some. But what happens when the divorce process itself is flawed from the beginning? As with marriages, not all divorces end in agreement. When a divorce case has been finalized by a court’s judgment, and both parties have legally agreed to the terms, there still may be an opportunity to have a specific part of that agreement, called an order, canceled. The process of canceling or “setting aside” a court order in a divorce case is difficult and complex, and in the end, is left to the judgment of the court. There is also a strict time limit for setting aside a motion. In California, you have six months from the date of the judgment to file a motion for setting aside an order, according to California Code 473. If you are unhappy with a court order in your divorce agreement, do not hesitate to contact an experienced Santa Clara County divorce attorney today.

Requesting an Order to be Set Aside Vs. Appeal or Reconsideration

Neither an appeal nor reconsideration are similar to setting aside an order. During an appeal, the same set of information will be presented to the court as in the original hearing, while a motion to set aside an order generally stems from an issue such as failing to show up to court or a type of excusable negligence. Make sure to consult with your attorney about the best way to proceed, either with an appeal or with a motion to set aside. You must have a valid reason for requesting a motion to set aside an order; otherwise, you may be forced to pay the other party’s attorney’s fees and costs associated with responding.

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California family law attorney, California custody lawyerNot all marriages or separations end peacefully. When you are engaged in a custody dispute with the other parent, the relationship can turn even more sour. During this time it is important to keep the negativity at bay when you are around your child because of the difficulties they are going through, as well as the implications that it could have on the custody outcome. Everything you do and say around your child can be taken into consideration by the court if it is being documented by the other parent. Similarly, everything they say and do can be used against them as well. When deciding which parent will receive sole custody, the court always chooses in the best interest of the child, according to California Code 3040. To ensure that the court has all the information that it needs to make this crucial decision in your favor, it is important that you begin collecting information and documenting all types of interactions that the other parent has with your child. This should begin immediately and continue until a final decision has been made by the court.

Similarly, everything they say and do can be used against them as well. When deciding which parent will receive sole custody, the court always chooses in the best interest of the child, according to California Code 3040. To ensure that the court has all the information that it needs to make this crucial decision in your favor, it is important that you begin collecting information and documenting all types of interactions that the other parent has with your child. This should begin immediately and continue until a final decision has been made by the court.

What Type of Information Do I Need to Document?

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California custody attorney, California family law attorneyIn the past, if the parents did not agree upon shared custody, the court usually granted primary custody to the mother, as it was deemed that she would have more time to provide for the child and would provide better care. While the judge would give sole custody to the mother, the father would be given visitation hours and would be required to pay child support. The reasoning behind this aging dogma was that the father would be better suited to providing financial assistance through his job, while the mother better suited to home making and caring for children. As women gain rights in the workplace, this practice is becoming more and more outdated in most states, including California. While women still only earn 81 cents for every dollar that men make at the same job, that number used to be 62 cents on the dollar back in 1979, per the International Labor Organization.

According to California law, if the parents cannot reach an agreement on custody rights, the court will make the decision based on what is best for the child. According to California Courts, these factors include:

  • The health of the child;
  • The emotional ties between the parents and the child;
  • The ability of the parents to care for the child;
  • Any history of family violence or substance abuse; and
  • The child’s ties to school, home, and his or her community.

There is no law that states the mother will be given priority if all other factors are equal. However, if you feel that you are not being given an equal chance for custodial rights, it may be time to contact an experienced child custody attorney to argue your case for fair and equal representation. Additionally, the court is not legally allowed to deny your custody or even visitation rights based on the following factors:

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Posted on in Visitation

Calfornia custody lawyer, California family law attorneyDivorces can be messy. While primary custody is most often given to one of the parents, or shared, other family members deserve to stay in touch with the children of a divorced couple too. Grandparents are an integral part of most children’s upbringing, and may be left out of the custody or visitation rights agreement if they or others do not take action. Under California law, a grandparent has the right to ask the court’s permission for legal visitation rights. If you wish to stay in touch with your grandchildren, there are options to take in order to guarantee that that happens, and talking with an experienced child custody attorney may offer just the help you need. Don’t let this go to chance; contact an attorney today to discuss your options.

 

The Role Grandparents Play in American Homes

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