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Child Custody: The Best Interest Analysis/Misconception That “Mom” Always Takes Custody

2012
03.22

There is a common misconception that custody of a child is always granted to “mom.” This is not the case, though. In California, family law issues are governed by the Family Code. The Code makes clear that custody and visitation determinations are to be made from the standpoint of the child’s best interest.
So, how does the court determine what kind of custody or visitation is in the child’s best interest? The court analyzes certain factors that the legislature has found to be important in a child custody determination. The first and most important factor considered by the court is the child’s health, safety and welfare. This factor works in conjunction with the legislature’s policy that the perpetration of child abuse or domestic violence in a household where a child resides is detrimental to the child.
The court next considers whether or not the parent or person seeking custody has had any history of physical abuse. The physical abuse need not have been against the child for whom custody is sought. Specifically, the court considers whether the parent or person seeking custody has committed physical abuse against any child that he or she is related by blood or affinity or with whom he or she has had a caretaking relationship, no matter how temporary. The court also considers whether there was physical abuse against the other parent, against a current spouse, against a cohabitant or parent of the parent or person seeking custody, or a person with whom the parent or person seeking custody has a dating or engagement relationship.
Another important factor in determining the best interest of the child is whether either parent has had a history of habitual or continual illegal use of drugs or a continual abuse of alcohol.
An appropriate custody/visitation award must also take into account the kind of contact the child previously had with each parent and whether continued contact would be in the child’s best interest. This factor is considered in conjunction with California’s codified policy that children have frequent and continuing contact with both parents after the parents have separated or dissolved their marriage, or ended their relationship.
One factor that has not been expressly stated in statutes, but which plays a significant role in the best interest assessment, is the policy goal of protecting a stable custody arrangement. The courts have repeatedly emphasized the paramount need for continuity and stability in custody arrangements and the harm that may result from disruption of established patterns of care and emotional bonds with the primary caretaker.
It is this factor that has led to the misconception that “mom” always has custody of the children. Historically, it was women that stayed home with the kids. While that may not be true today, it is still the case that more women than men are the primary caretakers of children and because the courts have put a lot of emphasis on the need for stability, the misconception was created that “mom” is always granted custody of the children. As you can see, the courts do not just focus on stability. There is a balancing of several factors and while “mom” may end up with custody of the children in many cases, other cases have found custody with “dad” to be in the best interest of the children.
Another factor the court considers is whether siblings will be separated. Custody arrangements that involve separating siblings are highly disfavored.
Still other factors may be considered, depending on the circumstances of each particular case. For a more in-depth analysis of child custody and the “best interest” factors, please see an experienced attorney in your area.

Irvine Divorce Lawyer Michele M. Charbonneau, Esq.
Irvine Divorce Lawyers Brown & Charbonneau, LLP
Orange County Divorce Lawyers Brown & Charbonneau, LLP

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No-Fault Divorce in California

2011
03.22

For more information on Divorce, visit Brown & Charbonneau, LLP online at www.bc-llp.com

Written by Michele M. Charbonneau, Esq.

What is a “No-Fault Divorce”?

California, like nearly all states, is a “no-fault divorce” state. Put simply, a no-fault divorce occurs where a spouse seeking a divorce does not have to prove any degree of wrongdoing by the other spouse when obtaining the divorce. Bad acts such as infidelity will have no bearing on the ultimate disposition of property.

The primary grounds for divorce in California is irreconcilable differences. While there are other grounds for divorce, such as fraud or incurable insanity, these are uncommon and rarely asserted.

Does spousal misconduct matter at all?

As discussed above, spousal misconduct does not factor into the divorce itself. However, varying degrees of misconduct may affect issues incident to the divorce. Such issues include spousal support, child custody and even distribution of community assets.

For example, when a court is making a custody decision, they must consider evidence of domestic violence when making an order. Domestic violence factors into a determination of spousal support as well. Family Code 4320 specifically provides for documented evidence of any history of domestic violence to be a factor used by the courts in making a spousal support order.

Also, California law holds the spousal “fiduciary duty” in high regard. Spouses have a duty of full disclosure to the other spouse of all material facts regarding community assets. Any spouse that hides or transfers assets during a divorce breaches their spousal fiduciary duty. This can result in stiff penalties, including an award of an entire piece of property.

Conclusion

Though fault is not a factor when seeking a divorce, spousal misconduct will often affect vital issues involved with the divorce. It is important to seek out an experienced family law attorney that understands these factors to help facilitate the most equitable divorce possible.

Irvine Divorce Lawyers Brown & Charbonneau, LLP

Orange County Divorce Lawyers Brown & Charbonneau, LLP

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Brown & Charbonneau, LLP Irvine Trial Attorneys

Gregory G. Brown again receives highest possible legal rating 10.0/10.0

2011
02.22

: Gregory G. Brown receives Highest Possible Legal Rating for 2011

Irvine Trial Lawyer Gregory G. Brown

Visit our website for all the details:

The Orange County Trial Lawyers at Brown & Charbonneau, LLP are pleased to announce that litigation attorney Gregory G. Brown has again received the highest possible legal rating of 10.0/10.0 by the nationwide rating professionals at AVVO for the year 2011

Irvine Trial Lawyer Gregory G. Brown

Orange County Trial Lawyers Brown & Charbonneau, LLP

Irvine Trial Lawyers Brown & Charbonneau, LLP

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Category Divorce |

Fraud and/or Misrepresentation–When does it become actionable?

2011
02.10

For more information on Fraud, visit Brown & Charbonneau, LLP online at www.bc-llp.com

Written by Michele M. Charbonneau, Esq

Fraud and/or Misrepresentation–When does it become actionable?

Often, statements made in the business setting are incorrect, less than truthful or even complete lies. A representation may be made orally, in writing or by nonverbal conduct. However, claims for fraud or misrepresentation must meet specific elements to be considered actionable.

1. Fraud Generally

Fraud is an intentional tort. For a claim to be successful on this basis, there must an element of fraudulent intent, or an intent to deceive.This intent distinguishes a statement from actionable negligent misrepresentation and from non-actionable innocent misrepresentation.

2. Intentional Misrepresentation

For a claim for intentional misrepresentation to be valid, a party must show that defendant represented that an important fact was true, that representation was actually false, defendant knew the statement was false when it was made (or made it recklessly without regard for the truth), defendant intended the party to rely on the representation, the party indeed reasonably relied on the representation and was harmed by it and that reliance was a substantial factor in causing the harm. For example, in a real estate transaction, a statement by a seller that the roofing on the house was”installed last week” when it was actually 2 years old, would be an intentional misrepresentation if buyer reasonably relied on this statement and was ultimately harmed by it.

3. Concealment

Concealment is a common scenario whereby a party to a contract intentionally conceals an important fact. To prove as such, defendant must have intentionally failed to disclose an important fact, the other party was unaware of the fact, defendant intends to deceive by concealing the fact, the party reasonably relied on the representation and was harmed by it and that reliance was a substantial factor in causing the harm. Concealment arises most frequently in situations where there is a legal or financial relationship (“fiduciary duty”) between the parties, such as business partners.

4. Negligent Misrepresentation

Misrepresentations that are not intentional may still be actionable. The elements for negligent misrepresentation are nearly the same to those for intentional misrepresentation except that for negligent misrepresentation defendant need not know a statement was false when made. Instead, although defendant may have honestly believed that the representation was true, they had no reasonable grounds for believing its truth when the statement was made. If the statements were reckless or no true belief in their validity exists, a statement will still be considered intentional misrepresentation.

5. Opinions–usually not covered

Ordinarily, a statement of opinion made by a party typically does not form a basis for actionable fraud. An opinion in this context is best describe as a person’s belief that a fact exists, a statement regarding a future event, or a judgment about quality, value or authenticity. A statement of opinion may form a basis for fraud if it is made by an expert with special knowledge, declared in a manner so as to be construed as true, there is a special relationship or trust between the parties, or some other special reason which would allow reasonable reliance on the statement as truth.

6. Conclusion

There are countless variations of fraud, misrepresentation and deceit. The nuances between the different types are often difficult to ascertain. It is important to consult with an experienced fraud/business attorney if a party feels they have been a victim of fraud.

Additional Resources

http://www.sos.ca.gov/business

http://www.leginfo.ca.gov/.html/bpc_table_of_contents.html

http://www.irs.gov/formspubs/inde,.html

http://www.bc-llp.com/Business-Litigation

http://www.bc-llp.com/Articles

http://www.bcllpblog.com/injury

http://on-trial.net

http://www.bc-llp.com

714.505.3000

Fraud Lawyers

Fraud Attorneys

CACI Jury Instructions

Trial Information

Trial Specialist

Category Divorce, Fiduciary Duty & Fraud |

A One Year Family Law Trial Concludes

2011
01.31

Trial started 1/10/10 and concluded 12/16/10. A complex family law trial handled by Irvine trial lawyer and Certified Trial Specialist Gregory G. Brown. Closing Briefs are now being prepared. Issues of spousal support, child support, controllable cash flow, non-working spouse, marital home, marital standard of living, etc. were all involved. Numerous experts (CPA’s, Vocational Experts, Etc.) testified for days. It wasn’t the McCourts, but sure was every bit as complicated! The results come next month and will be reported.

Category Announcements, Business Valuations, Child Support, Custody, Divorce Trials, Splitting assets, Spousal Support |

Spending Time with Orange County Judges, Trial Lawyers, Congressional Dignitaries, and others at Annual Event

2011
01.16

Irvine Family Law Lawyer Michele M. Charbonneau of Brown & Charbonneau, LLP at Orange County Trial Lawyers Association Installation & Awards Banquet in Newport Beach, CA – January 15, 2011

Category Divorce, Events |

http://www.bc-llp.com/Attorneys/Michele-M-Charbonneau.shtml

B&C Online Answers: Pot Smoking Husband Wants Custody!

2011
01.08

My sons father is taking me to court for joint custody…

He hasn’t seen our son for about a year, sells and uses pot. hasn’t paid a penny of child support. hasn’t had a job in years. and now all of a sudden he wants joint custody! should i contact law enforcement about his drug deals so that it goes on record? how can i win custody?

I would recommend you hire an experienced family/divorce attorney. The welfare of your child is paramount. Deal with any police/criminal issues with the help of your lawyer. Given the drug issues, you should contact an attorney asap.

I hope this helps.

Irvine Divorce Lawyer Michele M. Charbonneau, Esq.

Irvine Divorce Lawyers Brown & Charbonneau, LLP

Orange County Divorce Lawyers Brown & Charbonneau, LLP

http://www.bcllpblog.com/family/wp-admin/

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This answer is offered for informational purposes only. It is not offered as, and does not constitute, legal advice. The laws are somewhat different in every state. You should rely only on advice given to you during a personal consultation by a qualified and licensed attorney in your area who is thoroughly familiar with state laws and the area of practice that your issue relates.

B&C Online Answers: Can a Personal Injury Settlement be Used For Calculating Child Support?

2010
11.28

Irvine Divorce Lawyers Brown & Charbonneau, LLP

Question from Camarillo, California:

“What California code states that personal injury awards cannot be used in child support determinations?”

Response to Question:

A personal injury award is the separate property of the particular spouse. You own it all. It is not “wages” or other regular earnings. While it theoretically could be considered, it is not a factor that is inputted into the guideline support calculations. This is not the case for spousal support, however, although it too should not factor in a personal injury award. The statute covering this area is California Family Code Section 4320.

1. Calculating Child Support

The state has clear guidelines for child support. In calculating child support, California has a statewide formula (called a “guideline”) for figuring out how much child support should be paid. If parents can’t agree on child support, the judge will decide the child support amount based on the guideline calculation.

The guideline calculation depends on:
* How much money the parents earn or can earn,
* How much other income each parent receives,
* How many children these parents have together,
* How much time each parent spends with their children,
* The actual tax filing status of each parent,
* Support of children from other relationships,
* Health insurance expenses,
* Mandatory union dues,
* Mandatory retirement contributions,
* The cost of sharing daycare and uninsured health-care costs, and
* Other factors.

Child support can also include the cost of special needs like:
* Traveling for visitation from 1 parent to another,
* Educational expenses, and
* Other special needs.

To estimate how much child support the judge may order in your case, go to California Guideline Child Support Calculator This is an external link referenced below. To understand how to fill in the information, it is important to download the below referenced User Guide. If you have any comments or questions about this Child Support Calculator, email the Department of Child Support Services.

2. When can child support be changed?

You can ask for a change in your child support amount when there is a change in circumstances. For example, if you change the amount of time you spend with your child, you ask for a change in your child support.
If the judge ordered a child support amount below the guideline amount, you can ask to change that amount at any time. A change in circumstances is NOT required.
Before you decide to ask for a change in child support, it is a good idea to re-calculate the amount of child support in your case to make sure it is worth it for you to go back to court. To estimate how much child support the judge may order in your case, click below for California Guideline Child Support Calculator. To understand how to fill in the information, it is important to download the User Guide referenced below. Remember, this calculator only gives you an estimate. The amount the judge orders you to pay may be different based on information from the other parent or other factors that affect child support.

I hope this helps and wish you the best with this issue.

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Disclaimer
Since a great deal of information would need to be analyzed for a complete legal evaluation, this answer is offered for informational purposes and is not legal advice.

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B&C Online Answers – - Modification of Custody Orders.

2010
11.28

Question from San Juan Capistrano, CA

I have had sole physical and legal of my beautiful son since April 1st. He is 17 months and has lived with me since he was 6 wks. She has had around 5% visitation. Because she’ll soon graduate, she filled for sole custody. I have been a great dad and her only reason for asking for this change is that she’s graduating. I offered the court a generous visitation schedule, but what are the chances the court will change custody?

Response to Question from San Juan Capistrano, CA

Gregory Garth Brown

This attorney is licensed in California.

The Orange County Family Law Judges are regularly trying to make 50/50 orders (all else being equal). There are many factors the courts use to make the determination. The most important factor is what is in the best interests of the child. See below.

The Family Code describes the factors the Courts look at in Section 3040:

(a) Custody should be granted in the following order of
preference according to the best interest of the child as provided in
Sections 3011 and 3020:
(1) To both parents jointly pursuant to Chapter 4 (commencing with
Section 3080) or to either parent. In making an order granting
custody to either parent, the court shall consider, among other
factors, which parent is more likely to allow the child frequent and
continuing contact with the noncustodial parent, consistent with
Section 3011 and 3020, and shall not prefer a parent as custodian
because of that parent’s sex. The court, in its discretion, may
require the parents to submit to the court a plan for the
implementation of the custody order.
(2) If to neither parent, to the person or persons in whose home
the child has been living in a wholesome and stable environment.
(3) To any other person or persons deemed by the court to be
suitable and able to provide adequate and proper care and guidance
for the child.
(b) This section establishes neither a preference nor a
presumption for or against joint legal custody, joint physical
custody, or sole custody, but allows the court and the family the
widest discretion to choose a parenting plan that is in the best
interest of the child.

Section 3041 states:
(a) Before making an order granting custody to a person or
persons other than a parent, over the objection of a parent, the
court shall make a finding that granting custody to a parent would be
detrimental to the child and that granting custody to the nonparent
is required to serve the best interest of the child. Allegations that
parental custody would be detrimental to the child, other than a
statement of that ultimate fact, shall not appear in the pleadings.
The court may, in its discretion, exclude the public from the hearing
on this issue.
(b) Subject to subdivision (d), a finding that parental custody
would be detrimental to the child shall be supported by clear and
convincing evidence.
(c) As used in this section, “detriment to the child” includes the
harm of removal from a stable placement of a child with a person who
has assumed, on a day-to-day basis, the role of his or her parent,
fulfilling both the child’s physical needs and the child’s
psychological needs for care and affection, and who has assumed that
role for a substantial period of time. A finding of detriment does
not require any finding of unfitness of the parents.
(d) Notwithstanding subdivision (b), if the court finds by a
preponderance of the evidence that the person to whom custody may be
given is a person described in subdivision (c), this finding shall
constitute a finding that the custody is in the best interest of the
child and that parental custody would be detrimental to the child
absent a showing by a preponderance of the evidence to the contrary.
(e) . . .

See Family Code Section 3043.

I hope this helps and wish you the best with this situation.

If you find my answer helpful, please click the ‘thumbs-up’ tab below. Thank you.

Since a great deal of information would need to be analyzed for a complete legal evaluation, this answer is offered for informational purposes only. It is not offered as, and does not constitute, legal advice.

Irvine Divorce Lawyer Michele M. Charbonneau, Esq.

Irvine Divorce Lawyers Brown & Charbonneau, LLP

Orange County Divorce Lawyers Brown & Charbonneau, LLP

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