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Child custody questions answered by Family law attorney Paul Staley:

Custody disputes are usually better off settled by voluntary agreement, but we know it is sometimes difficult for parties to agree to terms which ultimately leads to litigation. There are a lot of issues to consider when it comes to custody disputes, be it practical, financial or emotional. Hopefully, the answers to the following questions will give you some guidance in this area. If you have questions we didn’t answer feel free to email us to get those answers.

Why do I need a written agreement?

A custody agreement gives you the power to define the custody arrangements. If you can reach an agreement, this power is put in the hands of the court system.

Further, without a written document establishing custody and visitation rights, the agreements are subject to change at either parent’s discretion. There would be nothing to prevent either spouse from moving at any time.

What if we can’t agree?

The judicial system will make the decision. San Diego is what is called a “recommendation county.” This means that the parties MUST attend court ordered mediation and attempt to come to an agreement there. If you don’t then the mediator will make a recommendation to the Judge who will then make the decision. Judges RARELY stray far from the Mediator’s recommendation. This is why it is necessary to make a good impression on the mediator. To help prepare our clients for this, we have ALL of our clients professionally prepared.

What does the judge base the decision on?

California uses the “best interest of the child” standard. So, whatever the judge finds is best for the child will be the basis for his / her decision. This gives the court a large amount of flexibility. One question you need to ask yourself is whether or not you would like someone who doesn’t know your child to decide what is in his / her best interest?

Can my child decide who to live with?

In California, it really depends on the age and maturity level of the child as to whether their opinion matters. Even when voicing their opinion, the child isn’t the final say. It still comes down to what is found to be the best interest of the child. [/slide]

If we share custody, does anyone pay child support?

Yes.  In California, child support is based on a “guideline” formula.  The formula used is:   CS = K ÝHN — (H%)(TN).  Gibberish, we know.  Essentially, it is a formula based on timeshare, number of children, and each parties respective incomes.  The court will not order anything but guideline child support but the parties can agree to whatever they choose.  However, non-guideline support is always modifiable.  In some instances of support, the primary custodial parent will have to pay support to the other parent because of an extreme disparity in income.

Can I refuse visitation if I haven’t been paid support?

No. Support and visitation are entirely separate legal matters.

Can I date?

Yes.  However, but it may not be in your best interest.  Sometime new relationships can be tough on the children. Additionally, if your new love interest is not squeaky clean it could be used against you in custody litigation. [/slide]

What if I have had some problems as a parent?

Its never too late.  Start making changes immediately.  If you can prove that you are on the right track, there will likely be some “step-ups” in custody time in the court order.

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