Family Law Frequently Asked Questions

QUESTION 1: My ex is behind on paying me child support. Can I prevent him from seeing the kids until he pays me?

ANSWER: No. Visitation is also for the benefit of the children. They have a right to see him and have a relationship with him, even if he isn't paying child support. Preventing visitation hurts the children.

QUESTION 2: I think my new wife lets her ex get away with too much. She's is usually late picking up and returning the kids, and she's always changing the schedule. Should I have a talk with her and set her straight?

ANSWER: If you ever take advice from anyone on any subject, now is the time. Stay the hell out of it. Be supportive of your spouse and let her deal with her ex. They are her kids, not yours. Instead of appreciating your efforts, (and I am sure you mean well), she may resent them and the ex is sure to resent an outsider's interference and assume your wife put you up to it and take it out on the kids. The kids are the ones who will suffer in the long run. Maybe, there really wasn't a problem that needed fixing in the first place. I always tell my divorce clients after the divorce is over, there are two times in the future when you are likely to have problems with visitation even if it is running smoothly now. One is when you have a new significant other and the other time is when the other side has one. So seldom can the new one resist the urge to tweek the arrangement. It is usually done with the best of intentions but with unfavorable results. Bottom line is leave it alone unless you are asked to help.

QUESTION 3: . At what age can a child decide where they want to live?

ANSWER: California law does not specify any particular age at which the child gets to decide. Why would you want to empower a child to beat you up emotionally in order to get their way? "If you wont let me go away with my friends this weekend, I will go and live with dad." Judges hope parents will be in control and the kids will do what they are told. Judges don't want runaways and if the child is mature enough to make rational decisions and for the right reasons, their wishes will be considered. It is a case by case thing.

QUESTION 4: My 8 year old daughter doesn't like to go to her father for visitation. She says it is boring there and she misses her friends. She really cries when she has to go. Do I have to make her go? It breaks my heart to make her go when she is so unhappy.

ANSWER: This one is a real test of the maturity of both parents. You should sit down with father, outside the presence of the child, and tell him what is going on. See if he has any ideas about solving the problem. Remember, if you start suggesting things, you are sending a message that he is lacking in parenting skills, which will be resented. Father needs to learn how to make it fun for the child to be with him so that she will want to go. Mother needs to encourage the child to go and have her ready to go. If the problem persists and Father doesn't seem to be getting the message, then you may have to take him back to court to order him and the child into counseling to solve the problem. The child will have a better chance in life if she has a good relationship with both parents.

QUESTION 5: My ex is always late with my support payments. I have to call him and remind him to send me a check. What can I do about it?

ANSWER: An order for a wage assignment is easy to get now. It is an order from the court for his employer to take the money out of his pay check and pay you directly. The money will be sent on the company's payroll schedule, not necessarily on the schedule the court ordered, but at least you wont have to go thru the demeaning process of calling and asking for the money. If your ex is self employed or working under the table, a wage assignment order may not do any good. If the payment history is bad enough, you may be able to get an order for him to deposit money in advance.

QUESTION 6: I am the father of our two children and I have custody. Their mother refuses to pay me child support because I make a very good salary. She says I don't need her money. Shouldn't she have to pay something?

ANSWER: Probably yes. Both parents have a legal obligation to support their children. In an extreme case, the parent with custody may still have to pay support to the other parent so they will be able to afford a place to have visitation with the children, but this is very rare.

QUESTION 7: How is the amount of child support determined?

ANSWER: California requires the use of a formula that takes into account quite a number of factors, not all of which apply to every case. A computer is used to make the calculations. The most important factors are the number of children, each parent's income and the amount of time the children spend with each parent. A court has little authority to deviate from the formula.

QUESTION 8: I have custody of our daughter. She graduates from high school this year. Can I make her father continue to pay child support so she can afford to go to college? ANSWER: No. Child support orders terminate when the child is 18 and out of high school or up to 19 as long as the child is attending high school full time. Hopefully, father will want the child to go to college also and be willing to pay part of the cost.

QUESTION 9: I had a child but I wasn't married to the father. He refuses to help me financially because he wanted me to have an abortion and I refused. What can I do?

ANSWER: First, you have to file a Paternity case to establish legally that he is the father. Then, you can get a child support order the same as if you had been married. You also have to deal with the issues of custody and visitation. Don't delay. The order cannot be made retroactive beyond the date of filing the papers in court.

QUESTION 10: My ex-wife is living with a guy. Can I stop paying her spousal support?

ANSWER: Maybe. Cohabitation, as opposed to having a roommate, creates a presumption of a reduced need for support. The court will probably lower the support order if not cut it off completely.

QUESTION 11: My ex and I have different religions. Can I force my ex to raise the child in my religion?

ANSWER: No. The court will allow both of you to expose the child to both religions and then the child can choose when they get older, which, if either, they want to continue.

QUESTION 12: My ex has moved his girlfriend into his house. I don't want our kids anywhere near her. She is the reason we broke up. Can I stop him from having the kids there if she is there?

ANSWER: No Not unless you can show some potential harm to the children from her. The fact that she broke up you marriage is not sufficient.

QUESTION 13: Our sons's marriage failed and our ex-daughter-in-law has custody of our grandchildren. We were very close to our grandchildren and now we seldom see them. Can we get a court order so that we can have visitation?

ANSWER: Seldom. You have to fit into very narrow categories in order to have the standing to even ask. After that, the court will have to make a finding that it is in the best interests of the children to have visitation with you. Your heartache is not a factor.