Grandparent Visitation

A grandparent can ask the court for reasonable visitation with a grandchild. 

To give a grandparent reasonable visitation with a grandchild, the court must find: (1) a pre-existing relationship between grandparent and grandchild that has “engendered a bond.”  This means that there is such a bond between grandparent and grandchild that visitation is in best interest of the grandchild; and (2) Balance the best interest of the child in having visitation with a grandparent with the rights of the parents to make decisions about their child.

In general, grandparents cannot file for visitation rights while the grandchild’s parents are married. 

But there are exceptions, like: (a) The parents are living separately; (b) A parent’s whereabouts are unknown (and have been for at least a month); (c) One of the parents joins the grandparent’s petition for visitation; (d) The child does not live with either of his or her parents; or (e) The grandchild has been adopted by a stepparent.

Under Fam C §3104, there is a rebuttable presumption that grandparent visitation is not in a child's best interest if the child's natural or adoptive parents agree that the grandparent should not have visitation rights.  However, The rebuttable presumption in Fam C §3104(e) against grandparent visitation may be overcome by a finding that the best interest of the child is supported by such visitation, even over the wishes of two fit parents. Such a finding does not violate a parent's federal or state substantive due process rights. Stuard v Stuard (2016) 244 CA4th 768, 786 (parenting prerogative is broad but not unlimited, and does not extend to denying child's best interests in preserving important and continuing relationship with grandparents to whom she was very close).

Can the Family Court require Drug Testing?

Experienced family law attorneys in San Francisco will tell their clients that the Court can require drug testing if there is proof of substance abuse.  A recent 2016 case in California found that it is not a violation of Fam C §3041.5 to require a parent to submit to drug testing indefinitely as a condition of increased and eventual unmonitored visitation, and to order that a positive or missed drug or alcohol test would trigger a return to limited monitored visitation. Heidi S. v David H. (2016) 1 CA5th 1150.  

If you are interested in learning more, you can contact me at Amanda@gordonfamilylaw.com for more information.

What is Family Code 2640

Family Code section 2640 provides that in the event of a Family Law Action, contributions from separate property to the acquisition or improvement of community property, or the other party’s separate property, will be reimbursed to the contributing party without interest or adjustment for change in value.   

What is a Postmarital Agreement?

A Postmarital Agreement, sometimes called a Postnuptial Agreement, is an agreement created by a couple during their marriage for many of the same reasons that an engaged couple creates a Premarital Agreement: to govern their financial lives during the marriage and to determine what will happen in terms of property division and spousal support if they should divorce.   

Requirements

There is an additional enforceability hurdle for couples wishing to enter into a Postmarital Agreement: as spouses, they are subject to a set of fiduciary duties that do not exist for fiancés.   This includes the duty not to take financial advantage of the other spouse.  Because a Postmarital Agreement usually includes some circumventing of community property law, the Agreement is going to be subject to a presumption that one spouse is taking advantage of the other.

So while Postmarital Agreements do not appear to be expressly governed by California Family Law section 1600, case law has confirmed that the same rationale applies when enforcing them:  each party must sign “freely, voluntarily and intelligently.”  

In order to avoid the presumption of unfair advantage, most professionals believe that it is imperative that both spouses be represented by attorneys and that all steps be taken to show that both spouses signed the agreement freely, voluntarily and with full knowledge of rights he or she could be giving up. 

If you are interested in a pre or post nuptial agreement, you can contact me at Amanda@gordonfamilylaw.com for more information.

Can I deduct my travel expenses from child support?

Yes, parents who travel to visit with their children can deduct their travel expenses from child support under Family Code 4062. Travel expenses for visitation are one of the discretionary items that may be added to statutory formula support as additional support for the children.

In order to ask for a deviation from guideline support, a court may deviate from the statewide child support guideline if it finds that application of the formula would be unjust or inappropriate due to special circumstances in the particular case. Fam C §4057(b)(5).

While Family Code 4062 does not define what is meant by the term "travel expense, the Court in Marriage of Fini (1994) 26 CA4th 1033, determined that because the expenses are typically incurred by the noncustodial payer of support, this expense should actually be considered a "negative add-on," which has the effect of reducing child support. 26 CA4th at 1039 n5. The court in Marriage of Gigliotti (1995) 33 CA4th 518, 529, disagreed with the court in Marriage of Fini, finding that the court does not authorize a "negative add-on," only "additions to the guideline formula amount because of expenses set out in [§]4062."  

While many child support issues can be handled by parties themselves, if you are requesting a deviation from guideline such as the one authorized by 4016(b), you should consult with a family law attorney. You can contact me at Amanda@gordonfamilylaw.com for more information.