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International Travel and Child Custody – What You Should Know

Sometimes it seems that issues around child custody are needlessly complicated and difficult to understand. So when a parent who shares custody of a child wishes to travel internationally, he or she should be aware of the additional legal ramifications of taking that child out of the U.S.

In one respect, things are fairly straightforward, at least for residents of California. This state has no statutory prohibitions for international travel with a child, unlike state laws affecting a parent’s decision or desire to relocate with a child out of his or her county of residence to another part of California (or another state). However, other variables, such as travel restrictions in a court order, may impact travel plans.

To understand how child custody may affect international travel, let’s look at situations (1) where there are no court orders and (2) where a child custody order is in place.

No court orders

If your child doesn’t already have a passport, federal law requires both parents to sign the passport application. To complete this process, both parents can appear in person to present the application or one parent can give the other parent a document of signed consent to indicate their agreement.

In cases where one parent objects to the other parent traveling out of the country with their child, obtaining a passport may prove difficult. Sometimes this may legal proceedings to establish each party’s rights—that is, to file a petition for custody orders.

Another reason why it is important to have the other parent’s consent (or court orders establishing specific rights) is that various government agencies in the country you wish to visit may require a letter of consent signed by the other parent. This can also apply to customs and/or airline officials who ask to see a signed letter of consent before taking the child’s boarding pass.

A custody order in place

Some child custody orders may include provisions that prohibit or at least limit the extent of international travel with the child (this can apply to domestic travel restrictions as well). Even if there are no specific restrictions, it is a good rule of thumb to make every effort to get the consent of the other parent before making travel arrangements and to ensure that, unless the other parent is in total agreement, such travel does not conflict with either the other parent’s time with the child or with the child’s school attendance.
Even when a custody order is silent on the issue of travel with the child, you may still have to “jump through hoops” regarding, as stated above, passports, letters of consent, and so on. Again, my advice is to always obtain permission for your travel plans, in writing wherever possible.

Nightmare scenarios

What happens should you choose to disregard the other parent’s wishes and travel out of the country with your child without the consent of the other parent? Here are possible nightmarish consequences to consider:

• The other parent can file a police report with local law enforcement, charging you with parental kidnapping.

• The other parent can appeal to the U.S. Department of State and set proceedings in motion that charge you with federal parental child abduction.

• If a custody order exists, the court can deem your actions “contemptible,” laying the groundwork for additional penalties and fines on your part, as well as grounds for a change of custody.

Again, if you must travel to Mexico or elsewhere outside of the U.S. with a child, do everything in your power to get the other parent to consent. Once the other parent has consented, you can travel with the child worrying of facing the above-indicated civil and criminal penalties.

If for some reason you’re unable to obtain consent and still need to travel with your child, promptly consult a family law attorney to explore your other legal options.

Unclear as to your rights under a child custody order? The Law Offices of Ian S. Topf, APC offer free consultation in a variety of issues, ranging from family law, estate planning, bankruptcy, and DUIs and landlord/tenant disputes.

What To Do When A Family Court Order (Child Support, Visitation, Debt Responsibility, etc.) is Ignored?

Clients often ask me what they can do when an ex-spouse or former domestic partner violates or ignores a Family Court order regarding child support, visitation rights, restraining orders, etc. If such a violation occurs, they ask, shouldn’t the offending party be subject to a contempt of court action?

In California, most contempt of court actions relating to Family Court orders are considered criminal proceedings. When such an action is brought in Family Court, the person charged with contempt has the same rights as anyone facing criminal prosecution. This includes the right to an attorney, the right to a formal reading of the charges against them, and the right to testify and cross-examine witnesses. As for prosecuting such an action, there is generally higher burden of proof involved where the accused can be found guilty only if the admissible evidence provides their guilt beyond a reasonable doubt.

If found guilty, the Defendant faces possible jail time, community service, and/or having to pay a substantial fine.

There are exceptions to what can be brought as a contempt action. For example, when the court orders one party to pay a debt obligation to a third party (such as a credit card company), a former spouse/partner cannot seek contempt for failure to pay. California, like most states, do not allow criminal charges for failure to pay consumer debts.

With all of the above in mind, many people who believe they have been wronged as a result of their ex-spouse/partner’s violation(s) of court order(s) think it’s a no-brainer to file contempt charges and throw the “dead-beat” in jail, especially if the other side fails to pay court-ordered support.  However, I offer a word of caution: often incarceration leads to additional, future issues.  A person responsible for paying support may have trouble paying support when he/she is not working due to being in jail and the conviction/jail sentence may cause that person to lose his/her job permanently.

If you still desire to pursue contempt charges against a spouse or partner, you will need to make sure your pleadings specifically set out your claims.  Here are a couple of tips:

Burden of Proof. To establish contempt of a Family Court order, you have to show (1) you have a valid court order, (2) the other party has actual knowledge of that court order, and (3) the other party willfully violated that court order.

A valid court order 

Contempt can only be brought when there is a violation of a valid court order.  Any agreement between parties that’s hasn’t been accepted by the Court as its order is not enforceable by contempt. If you assert to the Court that the other party “promised” by email or text to make pay you child support or allow visitation with your child but no court order has been issued, your contempt action will likely be turned away.

Knowledge of the court order 

The person you wish to have charged with contempt must be shown to have knowledge of the existing Family Court order. This requirement is usually met if the Court entered orders after a hearing attended by both parties.  However, if you proceeded with obtaining orders by default—i.e., a situation where the other party didn’t participate in the original court proceeding where the support obligation was ordered —you must prove that person actually received (and has knowledge of) the court order.

Willful violation of the court order 

The person being charged with contempt must be shown to willingly defy the Family Court order. In a situation where that person is in jail or otherwise incapacitated (and therefore unable to earn money to make payments), a contempt action probably won’t result in the desired outcome.

Be Specific. In my experience, many contempt actions get tossed out of court because the description of the violation is too vague or ambiguous.

For example, charging someone with contempt because he “always fails to make regular monthly child support payments” generally won’t hold up as a valid count of contempt. However, being specific—“In January 2015, my ex-husband was supposed to pay $1,000 in child support and he didn’t make the payment”—is a much better charge.

In general, always be prepared to provide your attorney with specific details about your matter.

Contempt of Family Court order actions do have their place in enforcement of orders, but usually are a last-ditch effort.  Fortunately, there are other means by which to enforce a court order to pay child support, to ensure a parenting plan is adhered to by the other party, and to try to make sure each party takes responsibilities for their respective obligations under court orders. If you are banging your head against the wall because the other side refuses to cooperate with court orders, seek the advice of an experienced attorney to explore your options and take the appropriate steps to get the relief you desire.

Are you in need of legal counseling or have any questions about the above topic? The Law Offices of Ian S. Topf offer a free consultation in a variety of issues, ranging from family law/divorce, bankruptcy, and estate planning to criminal/DUI matters and landlord/tenant disputes.

2015 Resolution: Take Care of Your Legal Needs

On behalf of all of us at the Law Offices of Ian S. Topf, APC, best wishes for a happy, healthy and prosperous 2015!

It’s not too late to make a New Year’s resolution that will benefit you and your family throughout the new year. This is a great time to take care of some essential legal planning responsibilities – and you’ll feel much better when you do.

Estate planning

Many people mistakenly think of an estate plan as something that matters only when they die, but there’s really much more to it than that. With a thorough and carefully prepared plan in place, your loved ones won’t have to experience the additional stress of wondering about your final wishes (health, financial, etc.) should you become physically incapacitated and unable to share those wishes during a highly emotional time.

If you already have an existing estate plan, the new year offers a perfect opportunity to review the plan so it reflects any changes that took place during 2014. Such changes might have included:

  • Got divorced or remarried
  • Blessed with the birth or adoption of an additional child in the family
  • Need to remove or replace an agent or beneficiary who passed away
  • New wishes for how you want to have your medical needs addressed

It’s also important to note that, depending on when you first created your estate plan, California law may have changed in ways that invalidate some provisions (or at least affected them so they’re no longer practical). In my legal practice, for example, I’ve come across very old estate plans that haven’t been modified to accommodate requirements under HIPAA (Health Insurance Portability and Accountability Act) and/or the California Probate Code. Without being updated, such plans could run into serious legal problems at a later date; the same problems you have sought to avoid by creating your estate plan in the first place.

In summary, now’s a good time to check with an experienced lawyer to make sure your estate plan is still legally valid and will sleeping aids carry out your wishes, and, if you do not have an estate plan in place, get to it!

Debt relief

Are you one of the many, many Americans who spent too much money during the holidays and find yourself starting the new year in considerable debt? Rather than wallow in this predicament, take advantage of free consultation offered by many debt relief attorneys (including myself)!

We can help you design pro-active ways to resolve your debt and gain control of your financial situation, so you can actually move forward in 2015 without this enormous weight on your shoulders. Don’t wait for debt collectors to start coming after you!

Take action

This brings me to what I think should be everyone’s most important New Year’s resolution: Stop procrastinating! It’s understandable that people put off their legal planning—after all, approaching a lawyer about estate planning or debt relief or any other legal matter seems like a severely negative thing, and most of us naturally drag our feet on these issues, sometimes until it is too late. But think how much better you’ll feel after you address and resolve these matters directly.
For families and individuals who have enrolled in legal insurance plans, I suggest you take a closer look at what these plans have to offer. Many plans provide full-service benefits for legal matters like estate planning and debt relief. They’re also very helpful for general legal advice on a wide range of legal matters.

Remember—you don’t have to wait until you’re facing a lawsuit (or initiating one) to get in touch with an attorney. We can help you cope with many of life’s challenges and free you up for other important goals in the coming year.

Are you in need of legal counseling or have any questions about the above topics? The Law Offices of Ian S. Topf, APC offer a free consultation in a variety of issues, ranging from family law/divorce, bankruptcy, and estate planning to criminal/DUI matters and landlord/tenant disputes.

Want to Bad-Mouth Your Ex-Spouse? Bite Your Tongue!

Divorce triggers a lot of strong feelings, so it’s natural for each side to have negative emotions and the desire to express them. But as a family law attorney with extensive experience in this area, I strongly urge my clients not to express those feelings in the home setting.

Kids are “sponges”

As a parent myself, I know first-hand that children are “sponges,” taking in everything they hear and see, and easily influenced by the people around them—especially their parents. If one spouse demeans the other, the result is almost always a negative one. It can bias a child against a parent or, if the child has strong, loving feelings about the criticized parent, can end up generating negative feelings about the spouse doing the bad-mouthing.

As any experience family law practitioner would attest, the general legal consequences of such negativity can be severe, including but not limited to a seemingly never-ending barrage of arguments and verbal attacks, extensive expensive and time-consuming litigation for modification of child custody, intervention by a child welfare agency due to accusations of abuse and neglect, and a very possible loss of various parental rights.

In other words, bad-mouthing is a no-win proposition all around.

Non-disparagement clause

Most child custody orders now include a non-disparagement clause, wherein both parents are admonished that neither parent is to make negative statements about the other parent in the presence of children. This provision usually includes a requirement that each spouse must also do everything possible to avoid letting other people (family members, significant others, etc.) say negative things about the other parent in front of the children.

Violating the non-disparagement clause can affect an individual’s custody rights. The offending party may be required to attend a co-parenting class or, in extreme cases where one parent simply can’t keep his or her mouth shut, the Court can limit that parent’s visitation rights (e.g. supervised visitation) to attempt to insulate the children from such negativity being said about the other parent.

What can you do in a bad-mouthing situation?

If you feel that your children are being affected by unwelcome comments, there are steps you can take to address the problem.

  • Discuss the situation with the other parent in a non-retaliatory, non-confrontational manner. This could be as informal as sitting down with your ex-spouse and reminding them that the Court has ordered both parties not to bring up any legal matters, parenting problems or other issues you have with the other parent in front of the kids. Then you can work together on developing a strategy for dealing with issues as they arise between you.

 

  • If you’re worried that such a discussion will fall on deaf ears, then address the issue in a letter or email to the other parent. In this way, you have documentation of attempts to address the problem informally, trying to amicably resolve the issue without extensive litigation, in the event you must bring it to the Court’s attention in the form of a request to modify custody.

 

  • If the problem still persists, consider filing an action requesting parenting classes or changes to the terms of the parenting plan.

 

When parents divorce and go their separate ways, one of the main goals of the Court is to minimize disruption in children’s lives. This should be each parent’s goal, as well. For this reason, it’s best for each party in a divorce proceeding – even if they can’t stand each other – to bite their tongues and keep their opinions to themselves when around their kids.

Are you in need of legal counseling or have any questions about the above topic? The Law Offices of Ian S. Topf offer a free consultation in a variety of issues, ranging from family law/divorce, bankruptcy, and estate planning to criminal/DUI matters and landlord/tenant disputes.

Legal Resolutions You Can Make in 2014

There’s no better time than the start of a new year to get your legal and financial house in order. That’s why I advise all of my clients to make sure certain legal documents are in place and to take other precautions so there’s a better chance that 2014 will be a “legally hassle-free year.”

Here are some actions to take in the new year:

Run a credit report. Many people don’t realize that they’re entitled to one free credit report a year. I strongly recommend taking advantage of this. You may think you know everyone you owe money to, but if you run a credit report, the results might surprise you:

You may have forgotten about a debt you owe to a creditor.

  • A creditor may have made a mistake, identifying you as owing a debt when in fact that’s not the case.
  • A creditor may have failed to report that a particular debt has been satisfied.
  • You may be the unwitting victim of identity theft, possibly resulting in numerous debts you didn’t know about.

There are different ways to go about running a free credit report. To get started, check out www.annualcreditreport.com.

Create an estate plan. Thinking about one’s incapacity (e.g. coma) and eventual death is generally not a pleasant experience but, in this day and age, it’s become a necessity.  The overall extent of estate planning will depend on not only what you have but also what you want to do with it.  Without the requisite documents (e.g. living trust, will, power of attorney, health care directive), you and your loved ones may find yourselves in a serious legal situation.

Or update your estate plan. Most experts recommend reviewing your estate plan at least every five to seven years. Why? A lot can happen during that time-frame, including changes in the law and changes in your life – like having children, getting a divorce or inheriting some significant assets.

If you’re a renter, be sure to keep good records. Some recent “Topf of Mind” blog posts have covered tenants’ rights regarding apartment leases and security deposits. The underlying lesson weight loss here is to always keep copies of essential documents. If you don’t already possess a copy of the lease, contact the landlord and get a copy. While you’re at it, ask for copies of any other rules and regulations affecting your status as a tenant as well as other documents relating to your lease. For example, in order to preserve your rights in the event you have to vacate the property, obtain a copy of any inspection report of your residence (e.g. move-in inspection).

Review legal considerations before you get married. With the recent increase in marriages due to the legalization of same-sex marriage in California, we’re seeing again the need for everyone planning to get married to talk to an attorney before taking their vows. (Most couples don’t consult a lawyer until they’re considering a divorce).  Pre-nuptial agreements, for example, are an important consideration to think about prior to marriage.

Get help if you’re facing bankruptcy. This time of year, as people swarm the malls both before and after the holidays, I tend to get a lot of inquiries about bankruptcy. If you face an increasing mountain of debt, it’s definitely time to contact an attorney. And, as I’ve emphasized many times in the past, prior to making that appointment, put together all relevant documents (proof of income, estimates of monthly expenses, an inventory of your personal assets, list of creditors, etc.). Your time spent talking with an attorney will be far more productive if you have the necessary documentation at your fingertips.

This last point applies to all of the resolutions above. Whether the situation involves debt, a tenant’s issue, pre-nuptial or DUI, make contacting an attorney the first thing you do. This will help make 2014 a much better year for you and your family.

Happy New Year!

Are you in need of legal counseling or have any questions about the above topics? The Law Offices of Ian S. Topf offer a free consultation in a variety of issues, ranging from family law/divorce, bankruptcy, and estate planning to criminal/DUI matters and landlord/tenant disputes.

How Does a Child Support Order Get Enforced?

The principle behind laws regarding child support in California is very simple. The parents of children born in the course of a marriage (or conceived out of wedlock) are legally responsible for the financial support of their offspring, regardless of whether or not those parents are living with their child(ren).

Typically, an order for child support is issued by the Court by agreement of the parties or after a Court hearing, where the judge has determined that one party is entitled to receive assistance from the other party in financial support for their child. These child support orders can arise in proceedings for divorce, dissolution of domestic partnership, paternity, or one partner’s petition for the establishment of custody of the child.

Whatever the circumstances, once a child support order has been issued, the supporting parent is legally obliged to obey that order. Failure to do so can be deemed by the Court as willful non-compliance, which can lead to contempt proceedings and, if the supporting parent is found guilty, may be punishable by time in jail.

Enforcement options

Of course, when it comes to enforcing a child support order, things don’t always go smoothly. Once the custodial parent has a court order, she (for purposes of this discussion) has different options for ensuring that order gets enforced. She can hire an attorney to enforce the order or a private child support collection agency to service that debt. The collection agency works much the same as similar agencies charged with collecting credit card or other types of debts. They can garnish that person’s wages, put a lien on property, etc. But they almost always charge a fee for their services.

Another option for enforcing a child support order is using the Department of Child Support Services (DCSS). Utilizing DCSS has advantages and drawbacks. First off, its services are free. Also, DCSS is connected to multiple state government agencies, such as the Employment Development Department and the Department of Motor Vehicles—meaning they have access to records that can be very useful in collection activities against a non-paying supporting parent. DCSS can also:

  • File a petition to establish and/or enforce a child support order
  • Report the failure to provide child support to credit agencies, increasing the difficulty for the supporting parent to get a loan
  • Put a hold on that parent’s bank account
  • Attach a lien on that parent’s property or vehicle
  • Ask an employer to garnish wages
  • Confiscate IRS tax refunds
  • Suspend a driver’s, professional and/or recreational license
  • Assist the Court in issuing an arrest warrant

The chief disadvantage in relying on DCSS to enforce a child support order is that, like all government agencies, it’s overworked and understaffed. With recent cutbacks in government spending, DCSS has downsized its personnel and struggled to keep pace with state-of-the-art computer technology. Going through DCSS, therefore, requires a lot of patience, since results may be a long time coming.

A lot depends on the specific nature of the child support order. A family law firm like mine does have a great deal of enforcement tools at our disposal, such as processing and serving a wage garnishment order on the supporting parent’s employer, in order to enforce the child support order. If you feel you need assistance in the enforcement of your child support order, I would suggest you contact an attorney to explore your options.

Are you in need of legal counseling or have any questions about the above topic? The Law Offices of Ian S. Topf offer free consultation in a variety of issues, ranging from family law/divorce, bankruptcy, and estate planning to criminal/DUI matters and landlord/tenant disputes.

How Does the Court Determine Child Visitation Privileges?

In California, there is a presumption that, in general, a mother and father (or domestic partners) can work together to raise a child together, even after they no longer live together in the same household. This is called “joint legal custody” and it involves collaborating on decisions that directly affect the health, welfare, education and religion of the child (or children).

That’s one aspect of child custody. The other key component is called “physical custody,” relating to where the child actually lives and who takes care of him or her on a daily basis. Whether by a parenting plan agreement reached by both parties or through a court decision made due to a dispute of the parents, one of the two parties will be designated “primary physical custodian.” The conditions of that parent’s custody are subject to whatever visitation rights the other person receives—rights which can range from “no visitation” (in those rare cases where one party’s even seeing the child is deemed to be detrimental to the child’s best interests) up to equal periods of time with each parent.

Types of visitation include:

  • “Reasonable visitation” – The most common form of visitation, these rights can vary from visiting the child on weekends and alternating holidays to an equal timeshare (where each party has, in effect, equal rights of reasonable visitation with the child). A primary physical custodian is generally selected by the Court to cover a few critical areas, such as school placement of the child. This primary physical custodian is entitled to declare the child as a tax exemption and as a dependent on their income taxes—unless there is a prior agreement to the contrary.
  • “Restricted (supervised) visitation” – In these cases, the Court determines the child cannot be left alone with one party, so the other parent or a third party (friend, family member, social worker) must be present to supervise the visit. This can happen when the Court adhd decides that someone must be present to witness interactions between the child and the visiting parent, in the event of future legal disputes regarding child visitation rights, or just to make sure that there is a peaceful and, hopefully, meaningful visitation between a parent and a child.

An effective parenting plan should include provisions for regular visits (weekly, biweekly, monthly) as well as on holidays and vacation time with the child. The schedule can be different for different children in the family, such as situations when each child is on a different school schedule, or when children have different extracurricular schedules.

When determining the parties’ respective future rights to custody and visitation, the Court usually looks for answers to the following questions:

  • How were the two parties taking care of the child before the divorce proceedings began and since then?
  • Who has been the primary physical custodian?
  • Is the current arrangement working? Can it continue to work? Is it truly in the child’s best interests?

Obviously, the two parties involved may have differing answers to these questions, which then leads to the Court stepping in and deciding for the both of them.

In my opinion, the two parties in a divorce proceeding (or dissolution of domestic partnership) should do everything they can to attempt to work out a parenting plan agreement between themselves. After all, who knows the best interests of their child better than they do? When they can’t work it out, the decision is left up to a judge who doesn’t know either party or the child involved. And a prolonged legal dispute makes the whole experience more expensive, time-consuming and emotionally turbulent for everyone involved.

Are you in need of legal counseling or have any questions about the above topic? The Law Offices of Ian S. Topf offer free consultation in a variety of issues, ranging from bankruptcy, family law and estate planning to traffic violations and landlord/tenant disputes.

How to Go About Child Custody the Right Way

In general, “child custody” refers to all the important decisions regarding the raising of a child, including his or her health, education and welfare. Custody is generally divided into two parts: (a) legal custody (the decision-making part) and (b) physical custody, as in who is responsible for the child’s physical well-being. Unless the parents share joint custody (equal time with each parent), a decision must be made as to who will serve as primary custodian and who gets time-allotted periods of physical custody (also referred to as “visitation”).

In California, generally, estranged couples have several options concerning child custody:

  • Resolve things between themselves and/or through their attorneys.
  • Work out a parenting plan through private mediation.
  • Devise a solution using court-sponsored mediation services (e.g. Family Court Services).

Private mediation involves the use of a third-party counselor or professional mediator to help work out a parenting plan acceptable to both parties.

In disputed custody cases where a case has been filed in court, the courts offer a free mediation service through Family Court Services (FCS), where parties meet with a child custody mediator, without lawyers. If, despite everyone’s best efforts, no agreement is reached, the mediator makes a recommendation to the court as to what he/she believes the parties’ parenting plan should entail and each party will have an opportunity to dispute or agree to the terms presented before the court adopts a parenting plan for the parties.

In my opinion, private mediation may be the most successful option, provided the two parties can afford to pay both attorney and third-party mediator fees. Whichever option you choose, keep these suggestions in mind:

  • Document everything. The more you can document about who said what, at what time, and what happened when, the stronger your case for custody will be. Simply saying, “Well, he said he would pick her up after school every day” isn’t the same as having a detailed log where you noted this statement at the time it was made and the dates and times that he failed to abide by said statement. When it comes to documentation in a custody dispute, there’s no such thing as overkill.
  • Don’t lash out. Losing your temper or shouting at the other party during custody discussions/mediation only demonstrates to the mediator that you’re quick-tempered and unable to control your feelings. This will inevitably detract from what you most want to convey—your love and concern for the child.
  • Avoid the negative. It will only hurt your case if you continually emphasize what a bad parent your spouse is. What really counts is letting the mediator know what you bring to the table—such things as a flexible work schedule, a nurturing home environment, a solid support system of family and friends. The old saying, “You catch more flies with honey,” really applies in this situation.

Finally, please remember that when child custody is in dispute, what matters most is protecting and caring for the children involved, not whatever is best or most convenient for the parents.

Are you in need of legal counseling for a child custody dispute? The Law Offices of Ian S. Topf offer free consultation in a variety of issues, ranging from family law, estate planning, bankruptcy, and DUIs and landlord/tenant disputes.