Friday, September 30, 2011

QDROs - Division of Pensions FAQs

1. What is a Qualified Domestic Relations Order?

2. What is a Domestic Relations Order?

3. Must a Domestic Relations Order be issued by a state court?

4. Who can be an Alternate Payee?

5. What information must a domestic relations order contain to qualify as a QDRO under ERISA?

6. Are there other requirements that a domestic relations order must meet to be a QDRO?

7. May a QDRO be part of the divorce decree or property settlement?

8. Must a domestic relations order be issued as part of a divorce proceeding to be a QDRO?

9. Will a domestic relations order fail to be a QDRO solely because of the timing of issuance?

10. May a QDRO provide for payment to the guardian of an alternate payee?

11. Can a QDRO cover more than one plan?

12. Must all QDROs have the same provisions?

13. Who determines whether an order is a QDRO?

14. Who is the administrator of the plan?

For more on Retirement Plans

© 2011 Warren R. Shiell. Warren R Shiell is a Los Angeles Divorce and Family Law attorney. All rights reserved. The information contained in this blog/website is an "Advertisement." It is for informational purposes only and shall not constitute legal advice. Nothing in this Website shall be deemed to create an Attorney-Client relationship. An Attorney-Client relationship shall only be created when this office agrees to represent a Client and a Client signs a written retainer agreement.

For more information visit www.la-familylaw.com

Contact a Los Angeles Divorce Attorney at Law Offices of Warren R. Shiell

Call for a free consultation now 310.247.9913.

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Divorce May Make You Sick

NEW YORK, July 28, 2009 CBS News

Study Finds Divorced and Widowed Adults Have 20 Percent More Chronic Conditions than Married People

Psychologist Jeff Gardere spoke to Julie Chen about the damaging mental stress that may result from divorce.

(CBS) Can divorce make you sick?

Yes, according to a new study that finds divorce and widowhood have a lingering, detrimental impact on health -- even after remarriage.

The study, scheduled to be published in the September issue of the Journal of Health and Social Behavior, analyzes data from nearly 9,000 adults nationwide, ages 51 to 61, and finds those who had been divorced or widowed suffered 20 percent more chronic health conditions, such as heart disease, diabetes or cancer, than individuals who were currently married.

Dr. Catherine Birndorf, associate professor of psychiatry at New York Presbyterian Hospital-Weill Cornell Medical Center told CBS News, "With a divorce or with disruption in a family like that,(it) can lead to depression, anxiety, other kinds of psychological illnesses."

Researchers have known for years that marriage is good for your health, but they've been less clear on how you'll do if you lose your spouse to divorce or death.

The study also suggests that divorce can be so traumatic that not even tying the knot again is enough to reverse the physical and mental toll.

So does this mean spouses should stick together even when the going gets really tough?

Birndorf said, "If someone's in a bad marriage, I would want to try and help them figure out how to make it better. But I wouldn't rule out the idea that it may need to end in divorce versus staying together for the sake of health."

In fact, Dr. Jeff Gardere, a clinical psychologist, said on "The Early Show" Tuesday, if you're in a "toxic" relationship that involves physical or mental abuse or in a relationship where you just can't get along, it's best to get out of it because the health benefits of divorce are much better than staying in a bad situation.

However, if you are thinking of getting a divorce, Gardere said you should have a doctor on hand.

Why?

"We're finding that divorce is so traumatic on the system, on your mind, on your body, that it's important that you consult your physician or even talk to a mental health professional about the stress that you're going through so that you don't become sick," he said.

The study also showed the benefits of being married versus unmarried, according to Gardere. Men seem to reap the benefits of being married much more than women in terms of emotional and physical health, while women do better financially because of marriage.

Gardere said that's because women tend to tell their husbands to take care of themselves on an ongoing basis, so they take the advice and care for their health.

"Early Show" co-anchor Julie Chen remarked men don't like to be nagged that way.

Gardere responded, "(Men) don't like to be nagged, but I think if you keep pushing them in the right direction, and tell them it is about love and about staying healthy, so that they can have a good marriage and raise their families, that guys after a while tend to listen."

But what about remarrying? Is it worth it?

Gardere says yes.

"We're finding that it is such a trauma to the system being in that divorce or being widowed that it does take years to come back even if you are married, but the advice we seem to be giving is go ahead and remarry because you can get better in time."

© 2011 Warren R. Shiell. Warren R Shiell is a Los Angeles Divorce and Family Law attorney. All rights reserved. The information contained in this blog/website is an "Advertisement." It is for informational purposes only and shall not constitute legal advice. Nothing in this Website shall be deemed to create an Attorney-Client relationship. An Attorney-Client relationship shall only be created when this office agrees to represent a Client and a Client signs a written retainer agreement.

For more information visit www.la-familylaw.com

Family Home in Divorce Part II

By Warren R. Shiell

The following information is specific to California.

What are the options for dividing the house?

There are three options if you are trying to reach a settlement:

(a) One spouse buys out the community interest share of the other spouse;
(b) The house is sold and the proceeds are divided; and
(c) The house remains in joint names for a limited period of time and is then sold to the other spouse or is put on the market.

During economic downturns when house prices are depressed couples increasingly turn to the last option.

But there is a catch. If you litigate, option (c) is called a deferred sale order (or a “Duke Order”) and the Court can only order a deferred sale in very limited circumstances where it is in lieu of child support and economically feasible. FN3.

Must the house be sold?

If the home is only asset of value in the marriage, the house may have to be sold unless one spouse is able to raise sufficient funds to buy out the other. Otherwise there are several ways to buy out a spouse’s interest in the family home.


1. One party may be able to buy the other out if they can re-finance and qualify for a new mortgage on their own using their own income. The selling spouse should never agree to remain on the mortgage.


2. If refinancing does not generate sufficient income, the selling spouse may be persuaded to accept an installment note secured by a deed of trust on the home. This is generally a bad idea. A spouse who cannot afford an immediate buy out upon divorce, in the long run is probably not going to pay all the costs associated with maintaining a home and pay back the installment loan.


3. Another option is buying out all or some of the community interest in the house with a release of spousal support. You will need to consult with an attorney and a tax specialist to determine the present and after tax value of the total support payments that are being exchanged.


4. It may also be possible to borrow from a retirement plan to finance the buy out. Again you should consult with a pension and tax specialist to discuss the costs of borrowing from your retirement plan. You may have to pay income taxes on the withdrawal and 10% early withdrawal penalties. You should also find out whether such a loan qualifies for mortgage interest deduction on your taxes. FN4


5. If there are other assets in the marriage, one spouse may elect to keep the house and the other may keep assets of equal value. For example, if the equity in the house is $200,000 and the value of pensions is $200,000 one spouse may keep the house and the other may keep the pensions. This is discussed in more detail below.

(read more on our website)

© 2011 Warren R. Shiell. Warren R Shiell is a Los Angeles Divorce and Family Law attorney. All rights reserved. The information contained in this blog/website is an "Advertisement." It is for informational purposes only and shall not constitute legal advice. Nothing in this Website shall be deemed to create an Attorney-Client relationship. An Attorney-Client relationship shall only be created when this office agrees to represent a Client and a Client signs a written retainer agreement.

For more information visit www.la-familylaw.com

Contact a Los Angeles Divorce Attorney at Law Offices of Warren R. Shiell

Call for a free consultation now 310.247.9913.

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Thursday, September 29, 2011

Can registered domestic partners or same-sex spouses whose marriage is recognized under state law file federal tax returns using a married filing joi

According to an IRS publication: No. Registered domestic partners cannot file using a married filing separately or jointly filing status, because they are not spouses as defined by federal law. Likewise, same-sex partners who are married under state law may not file using a married filing separately or jointly filing status because federal law does not treat same-sex partners as spouses.

Family Home in Divorce Part I

By Warren R Shiell

The following information is specific to California.

In many divorces, the biggest financial question is who gets the family home. Should the wife get it, should the husband, or should they sell it and split the proceeds? And if they sell it how should the proceeds be divided.

Many times, the wife has an emotional tie to the home and she wants to keep it. This is where she raised their children and decorated and entertained. But she needs to consider whether she can afford to keep the home. If she keeps the house she is getting an illiquid asset that does not buy groceries for her children or create any income.

The first issue that must be considered is who owns the house. Is it entirely community property that should be split equally or does one spouse have a claim to a greater share.

Who owns the house?

Often the family home is the most important asset that a family owns. In a divorce the first question that a couple must consider is who owns the family home. Is it entirely community property that should be divided equally or does one spouse have a separate property interest that would result in an unequal division.

In California, there is a presumption that property acquired during the marriage is community property and each spouse is entitled to an equal share upon divorce. However, in the case of the family home this presumption may not apply if title is not in joint names. For example, if a house is purchased during the marriage but only one spouse’s name is on the title that spouse may be able to claim that the entire property is their separate property and that they do not have to share it with the other spouse. FN1. This can lead to very unfair results if the mortgage was paid during the marriage with community earnings or the downpayment was made with community savings. To avoid this result the disadvantaged spouse has to prove that there was a breach of a fiduciary duty and the Court should treat the house as community. If you are ever in this situation you need to immediately consult with an experienced family lawyer. Further, if your credit is bad and your spouse ever tries to convince you that the only way to get a mortgage is to put title in their name you should immediately consult with an attorney.

Another common situation is where one spouse owns a house prior to marriage. During the marriage the title remains in that spouse’s name but the outstanding mortgage is paid with community earnings. The spouse who is not on title may still have a community property interest by virtue of the mortgage payments made with community earnings. This is commonly referred to as a “Moore-Marsden” interest based on the two cases that establish the formula for calculating the community interest. FN2. When a couple have been married a long time and substantial amounts of community earnings have paid off an existing mortgage, making improvements or the parties have re-financed, this “Moore-Marsden” interest can be substantial.

You may wonder why this situation is so different to the one above where the home is acquired during the marriage in one spouse’s name. The simple answer is that’s what the Courts have decided. If you are ever in this situation you need to immediately consult with an experienced family lawyer.

(read more on our website)

© 2011 Warren R. Shiell. Warren R Shiell is a Los Angeles Divorce and Family Law attorney. All rights reserved. The information contained in this blog/website is an "Advertisement." It is for informational purposes only and shall not constitute legal advice. Nothing in this Website shall be deemed to create an Attorney-Client relationship. An Attorney-Client relationship shall only be created when this office agrees to represent a Client and a Client signs a written retainer agreement.

For more information visit www.la-familylaw.com

Contact a Los Angeles Divorce Attorney at Law Offices of Warren R. Shiell

Call for a free consultation now 310.247.9913.

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Wednesday, September 28, 2011

Domestic Partners Taxes

How do registered domestic partners determine their gross income for 2010?

Registered domestic partners must each report half the combined community income earned by the partners. In addition to half of the community income, a partner who has income that is not community income must report that separate income.

For more information see IRS http://www.irs.gov/newsroom/article/0,,id=245869,00.html

Child Custody FAQs

1. What is "custody and visitation"?

2. What are the types of custody orders?

3. What are the types of visitation orders?

4. What is a "time-share plan" or a "parenting plan"?

5. What does the law consider when deciding custody and visitation?

6. What is "the best interest of the child"?

7. If we have joint legal custody, do we have to agree on everything?

8. If we have joint physical custody, do our children have to split their time equally between us?

9. Do grandparents have the right to visitation?

10. What is the process for getting a custody and visitation court order?

11. Can a custody and visitation order be changed?

(Read more on Child Custody)

© 2011 Warren R. Shiell. Warren R Shiell is a Los Angeles Divorce and Family Law attorney. All rights reserved. The information contained in this blog/website is an "Advertisement." It is for informational purposes only and shall not constitute legal advice. Nothing in this Website shall be deemed to create an Attorney-Client relationship. An Attorney-Client relationship shall only be created when this office agrees to represent a Client and a Client signs a written retainer agreement.

For more information visit www.la-familylaw.com

Contact a Los Angeles Divorce Attorney at Law Offices of Warren R. Shiell

Call for a free consultation now 310.247.9913.

Divorce and Money

Los Angeles Family Law Attorney

Divorce Lawyers|Attorneys Los Angeles, Beverly Hills

California Prenuptial, Prenups

Tuesday, September 27, 2011

Ending the Alimony guessing game

Alexandra Harmin in a New York Times opinion considers whether its time to revise the alimony laws in New York State and achieve consistency with the use of a mathematical formula as they do with temporary support:


"According to the Internal Revenue Service, former spouses pay around $9 billion in alimony each year. The amounts and payment schedules are usually decided by family court judges using a list of factors, including the length of the marriage, the ages and health of the spouses, their financial situations, their earning potential and their contributions to the marriage, financial and otherwise.

These criteria are sensible enough. But judges are on their own in deciding how to prioritize the various factors and how to translate them into dollar amounts, resulting in wildly inconsistent alimony awards. When asked how much alimony a lifelong homemaker married to a doctor deserved, judges in an Ohio survey estimated as little as $5,000 a year and as much as $175,000."


Alimony in Massachusetts Gets Overhaul, With Limits

This from the New York Times (for full article) Gov. Deval Patrick on Monday signed into law new limits on alimony in Massachusetts, sharply curbing lifetime alimony payments in divorce cases and making a series of other changes to a system that critics considered outdated. Linda Lea Viken, president of the American Academy of Matrimonial Lawyers, said the law represented an about-face that could reverberate across the country. Most states, she said, do not have such specific guidelines for determining the length of alimony. “They’ve gone from the extreme of having it set in permanency to now being specific about when it terminates,” Ms. Viken said of Massachusetts. More details can be found from http://www.massalimonyreform.org/

Can a registered domestic partner itemize deductions if his or her partner claims a standard deduction?


According to a recent IRS publication:Can Yes. A registered domestic partner may itemize or claim the standard deduction regardless of whether his or her partner itemizes or claims the standard deduction. Although the law prohibits one spouse from itemizing deductions if the other spouse claims the standard deduction (section 63(c)(6)(A)), registered domestic partners are not spouses as defined by federal law and this provision does not apply to them.

Los Angeles Divorce Attorney

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How should registered domestic partners report wages, other income items, and deductions on their federal income tax returns?



According to a recent IRS publication: Registered domestic partners should report wages, other income items, and deductions according to the instructions to Form 1040, U.S. Individual Income Tax Return, and related schedules. In addition, registered domestic partners should attach the Allocation Worksheet in Table 2 of Publication 555, Community Property, to their separate returns showing how the partners computed the income, deductions, and federal income tax withholding that each reported. Each partner should write the social security number of the other partner in the “Notes” section of the worksheet. If a registered domestic partner does not attach a worksheet, he or she must attach a copy of his or her partner's Form W-2 or 1099-R (in addition to his or her own) and make a notation on the form showing the division of income and tax withholding.

Los Angeles Divorce Attorney

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Divorce Lawyers|Attorneys Los Angeles, Beverly Hills

California Prenuptial, Prenups

Questions and Answers for Registered Domestic Partners in Community Property States and Same-Sex Spouses in California

• IRS releases Questions and Answers for Same-Sex Spouses in California and Registered Domestic Partners in Community Property States: IRS Publication 555, Community Property, provides general information for taxpayers, including registered domestic partners and same-sex spouses, who reside in community property states. On September 16, 2011, the IRS released 19 Questions and Answers providing guidance for common issues.

http://www.irs.gov/newsroom/article/0,,id=245869,00.html

Monday, September 26, 2011

If a parent smokes marijuana will it affect custody?

The Courts used to take a much stricter no tolerance position on the use of custody. Nowadays, with the increasing use of medical marijuana, the Court's focus tends to be focused on the issue of whether a parents marijuana use affects parenting ability and judgment. In the case of Court of Appeals in the 2010 case of Marriage of Parr, 240 P.3d 509 (Colo.App.Div.1 2010) the Colorado Court of Appeals reversed a portion of the trial court's order upon a finding that the trial court could not require supervised parenting time for dad based solely on his marijuana use without a specific finding that dad's conduct endangered the child physically or impaired the child's emotional development as set forth in C.R.S. §14-10-129(1)(b)(I). The answer will therefore be on a case by case basis.

Friday, September 23, 2011

Can registered domestic partners or same-sex spouses whose marriage is recognized under state law file federal tax returns using a married filin

According to the IRS the answer is No. Registered domestic partners cannot file using a married filing separately or jointly filing status, because they are not spouses as defined by federal law. Likewise, same-sex partners who are married under state law may not file using a married filing separately or jointly filing status because federal law does not treat same-sex partners as spouses.

Really: Rumours that Sarah Palin's husband is considering divorce

Read this from the Telegraph in the UK:

Sarah Palin's husband 'files for divorce'
Sarah Palin with husband Todd, who is allegedly filing for divorce, according to new reports Photo: AFP/GETTY

Los Angeles Divorce Attorney

Los Angeles Family Law Attorney




UK Banks stop funding divorces

This article from the the UK that even in London – which has a reputation for being the world's 'divorce capital' – it has become very difficult to borrow to cover divorce costs, lawyers say.

Read more

Thursday, September 22, 2011

Jennifer Lopez and Marc Anthony are calling it quits

Pat Robertson Says Alzheimer's Makes Divorce OK

Read More

Source ABC News: Religious broadcaster Pat Robertson stunned "700 Club" viewers Tuesday when he said divorcing a spouse with Alzheimer's disease was justified. Robertson, chairman of the Christian Broadcasting Network and former Republican presidential candidate, said he wouldn't "put a guilt trip" on someone for divorcing a spouse with Alzheimer's disease, calling Alzheimer's itself "a kind of death."The remarks sparked outrage throughout religious and medical communities.

Craiglist: Man offers to pay for someone to marry ex-wife

This is an ad a man posted on Craiglist:

Nice well taken care of ex-wife. Mid 40's. Pretty and loyal. Never smoked and very little drinking. Will make someone a good companion (I know).... Will pay 10K to the man or woman who marries her in a way that stops me from having to pay her alimony.

Big thanks to Mississippi Family Law Blog.

Los Angeles Divorce


Wednesday, September 21, 2011

If my spouse purchases a house in his name during marriage because I have bad credit will it be his separate property?

Although there is a presumption that property acquired during marriage is community, there are now a number of cases that where one spouse takes title in his or her name it is to be treated as that spouses separate property. This most often comes about where one spouse has bad credit. The spouse who is not on title has a very difficult burden to prove that the property should be community because of a breach of a fiduciary duty e.g duress or they were tricked into signing. If you are in this situation you should consult with an experience family lawyer before signing any documents such as a Quitclaim deed giving your spouse sole title. There was a recent discussion of this in the unpublished opinion of the California Appeals Court in the Santana Case on August 25, 2011.

Developing a parenting plan

Developing a Parenting Plan

How can parents decide on a custody and visitation plan?
Parents who separate should have a custody and visitation or parenting plan for deciding how they will share parenting responsibilities. A custody and visitation plan must be in writing and signed by both parties and a judge to be enforceable.
What if parents cannot agree on a custody and visitation plan?
If parents cannot agree on custody and visitation on their own they may go to court and ask a judge for a temporary order. The Court will first send them to Conciliation Court where a trained mediator tries to help the parties agree. In Los Angeles conciliation services are free. An appointment can be made by calling conciliation services at (213) 974-5524.

If the parties still cannot agree, the Court will make a temporary custody and visitation order that is in the best interests of the children. The temporary order will continue until the parties can reach an agreement or until custody and visitation is resolved after a trial.

If parents cannot agree on custody and visitation, they can also ask the court to appoint a mental health expert such as a psychologist to carry out a custody evaluation. A list of custody evaluators can be found at the Los Angeles Court 's web site at www.lasuperiorcourt.org.

Developing a Plan
While it is difficult to make generalizations about the suitability of various parenting plans many experts agree that during the first years of life, it is important for young children to develop an attachment to a primary caretaker and recommend frequent but non-overnight visitation with the non-custodial parent for short periods of time. As the children grow older and are better able to develop multiple attachments longer periods of continuous overnight visitation is encouraged.

Consider the practical aspects of any plan

A first step in developing a plan is charting out the schedules of the children and both parents. This will help you make realistic choices based upon practical considerations. Take a calendar and chart out in a colored pen the activities of each of your children (e.g. when they leave and return from school/day care each day, when they go to different activities such as music lessons, when they have vacations etc.) Next, take a different colored pen and chart your activities and commitments. Include when you go to and return from work, go to meetings, go out with friends etc. With another colored pen do the same for the other parent. You should then compare both parents’ plans to see if there is any common ground.

The children’s best interests

When parents decide custody and visitation they should develop a plan around the needs and best interests of their children and not their needs. In other words, they should adjust the plan to the children, not the children to the plan. Parents should be looking at their children's need for love, emotional support and security. Parents should take into account their children's age, personality and experiences. Children will generally be better off when both parents are involved and participating in their upbringing.

Next you should consider who has historically been responsible for different commitments with the children and which parent is practically able to fulfill them in the future. Questions you should consider are:

Who do the children turn to when they have a problem or need to share their feelings?
Who does homework with the children?
What do the children do on the weekends?
Do the children spend time with relatives and who takes them?
Who takes the children to medical appointments or picks them up in when they are sick?
Who provides the children’s physical care, such as bathing, changing diapers, arranging for sitters, haircuts, feeding?
How do you and your spouse discipline the children and set structure for them?
What kind of personal attention do each of you give to the children, such as teaching problem solving, reading, playing together, sharing activities?
Who is responsible for the children’s social activities, such as arranging birthdays, play dates, trick or treating, taking class trips, games, lessons, school plays etc?


Joint Custody

For older children one of the key issues is whether a joint custody is more appropriate than an arrangement where the non-custodial parent has alternate weekends and one or two overnights during the week. The answer will be different for each family. The parent’s relationship and their level of cooperation and also the children’s preferences can be as important as how much time the children physically spend with each parent. The Family Code provides that any parental plan must encourage frequent and continuing contact although it does not specify a particular plan.

The Legal Aspects of a Plan

Any parenting plan will have to make provision for who gets "legal" custody and who gets "physical" custody of the children. These are the terms that are used in agreements.

"Legal" custody means which parent gets to make important decisions about the children's education, religious upbringing, medical treatment and other legal decisions. If one parent gets to make these decisions they have "sole legal custody." If both parents get to make those decisions together, they have "joint legal custody." It is rare for one parent to be granted sole legal custody unless there are issues of domestic violence and substance abuse or there is a history of the parents being unable to communicate. In deciding on issues relating to legal custody, form "Joint Legal Custody Attachment" FL-341 (E) which has been approved by the Judicial Council of California is helpful. It can be found at www.courtinfo.ca.gov/forms/.

"Physical" custody means who the children live with on a daily basis. A parent has "sole" physical custody if the primary residence of the child is with that parent. The non-custodial parent then has visitation rights. The parents have "joint" physical custody if the children live with each parent for significant periods of time during the week.

A custody and visitation plan should be consistent and detailed. It should spell out who gets the children when and where in enough detail so that it is easy to understand and enforce. Important questions are who has the children in the week and on the weekends? Who transports the children for exchanges and to activities? Who gets the children on holidays and vacations? In California, the Judicial Counsel has developed forms to be used when requesting custody and visitation. The forms "Child Custody and Visitation Attachment FL-311 and "Children's Holiday Schedule Attachment” can be found at www. Courtinfo.ca.gov/forms and are helpful in developing plans.


Sample physical custody plans

Some states have developed model parenting plans that take into account what is appropriate for children of different ages and stages of development. The Oregon Judicial Department and the Supreme Court for the State of Arizona have both developed model parenting plans for Parents that suggest different parenting plan options. (see Oregon ’s plan at http://www.ojd.state.or.us/osca/cpsd/courtimprovement/familylaw/parentingplan.htm.

Arizona ’s plan at www.supreme.state.az.us/dr/Text/ModelPTPlans.htm)

The following samples are based on those parenting plans.
Parent A’s time with the child is indicated by solids.
Birth to 12 months

Mon

Tue

Wed

Thur

Fri

Sat

Sun

8am

9am

10am

11am

Noon

1pm

2pm

3pm

4pm

5pm

6pm

7pm

8pm


Sample Language:

Commencing on _________, Parent A shall have physical custody of the minor child(ren) each week on Tuesday and Thursday from 4:30 p.m. to 7:30 pm. and Saturday from 10:00 a.m. to 6:00 p.m. Parent A shall be responsible for picking up and dropping of the minor child(ren) at the residence of Parent B. Parent B shall have physical custody of the minor child(ren) at all other times not designated as Parent A’s time.

Comments:

At this young age, infants form a primary attachment to one parent and long periods of absence from the primary attachment figure may be traumatic. Parents should minimize the infant’s basic sleep, feeding and waking cycles.

Pre-schooler 3 – 5 years


Mon

Tue

Wed

Thur

Fri

Sat

Sun

Week 1

Week 2

Week 3

Week 4


The parties alternate weekends and the non-custodial parent has one or more overnights during the week.

Sample Language:
A. Commencing on ___________, Parent A shall have physical custody of the minor child(ren) alternate weekends from Friday, after the end of school/child care/camp (or at 5:30 p.m. if the child(ren) are not in school/child care/camp), when Parent A shall pick up the child(ren) from school/child care/camps, or at Parent B’s residence if the child(ren) are not in school/child care, until Monday, at the start of school/child care (or at 8:00 a.m. if the child(ren) are not in school/child care/camp), when Parent A shall drop the minor child(ren) off at school/child care/camp or at Parent B’s residence if the child(ren) are not in school/child care/camp.

B. Commencing on ____________, Parent A shall have physical custody of the minor child(ren) each week from Wednesday, after the end of school/child care camp (or at 5:30 p.m. if the child(ren) are not in school/child care/camp), when Parent A shall pick up the child(ren) from school/child care/camp, or at Parent B’s residence if the child(ren) are not in school/child care/camp, until Thursday, at the start of school/child care/camp(or at 8:00 a.m. if the child(ren) are not in school/child care/camp), when Parent A shall drop the minor child(ren) off at school/child care/camp or at Parent B’s residence if the child(ren) are not in school/child care/camp.

C. Parent B shall have physical custody of the minor child(ren) at all other times not designated as Parent A’s time.
* Instead of referring to alternate weekends, a plan can refer to 1st, 3rd and 5th weekends of the month. This generally avoids any confusion about which parents has custody on any given weekend.

Comments:

This plan is sometimes referred to a “Freeman” order. It may be suitable where Parent B has not been very involved in the day to day care of the child and has a busy work schedule. Three to five year olds may show increased anxiety moving between parent’s homes. This does not necessarily reflect on whether the other parent is not a good parent or does not want to be with the other parent. Depending on the maturity of the child and the practicality of the exchanges these times can be negotiated so that Parent A only has the child one or two evenings in the week and has shorter or longer weekends.

“2:2:3” Joint Physical Custody for older children


Mon

Tue

Wed

Thur

Fri

Sat

Sun

Week 1

Week 2

Week 3

Week 4


The parties alternate weekends and each parent has the children two days in the week.

Sample Language:
A. Commencing on __________, Parent A shall have physical custody of the minor child(ren) each week from Monday, at the start of school/child care/camp (or at 8:00 a.m. if the child(ren) are not in school/child care/camp), when Parent B shall drop the minor child(ren) off at school/child care/camp, or at Parent A’s residence if the child(ren) are not in school/child care/camp, subject to paragraph C below, until Wednesday, at the start of school/child care/camp (or at 8:00 a.m. if the child(ren) are not in school/child care/camp), when Parent A shall drop the minor child(ren) off at school/child care/camp or at Parent B’s residence if the child(ren) are not in school/child care/camp.

B. Commencing on __________, Parent B shall have physical custody of the minor child(ren) each week from Wednesday, at the start of school/child care/camp (or at 8:00 a.m. if the child(ren) are not in school/child care/camp), when Parent A shall drop the child(ren) off at school/child care/camp or at Parent B’s residence if the child(ren) are not in school/child care/camp, until Friday, at the start of school/child care/camp (or at 8:00 a.m. if the children are not in school/child care/camp), when Parent B shall drop the child(ren) off at school/child care/camp or at Parent A’s residence if the child(ren) are not in school/child care/camp, subject to paragraph C below.

C. The parties shall alternate physical custody of the minor child(ren) during the weekends, from Friday, at the start the start of school (or at 8:00 a.m. if the children are not in school), until their return to school on Monday (or at 8:00 a.m. if the children are not in school) when the children shall be returned to their respective school or to the receiving parent’s residence, in the event the children are not in school.

Comments:

The child spends no longer than three days/nights away from either parent.


“2:2:5:5” Joint Physical Custody For Older Children


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Week 2

Week 3

Week 4


The parties alternate two and five day periods with the children. Each parent has two consecutive midweek overnights each week and alternate the weekends.

Sample Language:

A. In Week 1, commencing ________, Parent A shall have physical custody of the minor child(ren) each week from Monday, at the start of school/child care/camp (or at 8:00 a.m. if the child(ren) are not in school/child care/camp), when Parent B shall drop the minor child(ren) off at school/child care/camp, or at Parent A’s residence if the child(ren) are not in school/child care/camp, until Wednesday, at the start of school/child care/camp (or at 8:00 a.m. if the child(ren) are not in school/child care/camp), when Parent A shall drop the minor child(ren) off at school/child care/camp or at Parent B’s residence if the child(ren) are not in school/child care/camp.

B. In Week 1 and 2, commencing ________, Parent A shall have physical custody of the minor child(ren) on Friday, after the end of school/child care/camp (or at 5:30 p.m. if the child(ren) are not in school/child care/camp), when Parent A shall pick up the child(ren) from school/child care/camps, or at Parent B’s residence if the child(ren) are not in school/child care, until the following Wednesday, at the start of school/child care (or at 8:00 a.m. if the child(ren) are not in school/child care/camp), when Parent A shall drop the minor child(ren) off at school/child care/camp or at Parent B’s residence if the child(ren) are not in school/child care/camp:

C. After the conclusion of Week 2, the two week rotation shall commence again with the physical custody schedule set forth above for Week 1.

B. Parent B shall have custody of the children at all times not designated as Parent A’s time.

Comments:
The works better for well adjusted children who have a good attachment to both parents. It allows for joint physical custody but each child is only away from the non-custodial parent for five days.

Alternating Weeks - Joint Physical Custody

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Week 2

Week 3

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Sample Language:

Commencing __________, and on alternate weeks thereafter, Parent A shall have physical custody of the minor child(ren) from Monday at the start of school/child care/camp, or from 12:00 noon if the child(ren) are not in school/child care/camp, until Parent A returns the child(ren) to school the following Monday at the commencement of school, or 12:00 noon if the child(ren) is not in school/child care/camp, when Parent A shall return the child(ren) to Parent B’s residence. Parent B shall have custody of the child(ren) at all other times.

Comments:

The children may need to have mid-week contact with the non-custodial parent. This schedule can be altered to provide for a mid-week evening or overnight with the non-custodial parent.

Step up Plans

A frequently encountered problem is that a plan you develop now may not necessarily be appropriate in the future. For example, a plan for young children which permits the non-custodial parent limited overnights may not be appropriate when the children are older. A court may not be willing to change the status quo simply because the children have grown up and are better able to transition between households. One way of dealing with this is to create a “step-up plan” that provides increased periods of custody to the non-custodial parent when the children reach a certain age.

Step-up plans are particularly useful in reaching settlements where there are concerns about the parenting abilities of the non-custodial parent or the psychological harm that moving between two households will have on a child. Step up plans foster a sense of trust, responsibility and reliability as the non-custodial parent and the children familiarize themselves with the new routines and new households.

Step up plans are also useful to encourage parental responsibility where there are substance abuse problems or visitation has to be monitored because a parent has endangered the child. These step up plans should be drafted to allow the non-custodial parent increased time when they have met specific goals e.g. they have remained clean and sober for six months.

Holidays

It is common for parents to alternate holidays each year with one parent having a holiday in even years and the other having it in odd years. Many holidays are celebrated on a Monday and parents elect to extend the previous weekend. However, if you have a parenting plan which provides for switching custody on alternate weekends you will have to decide whether the weekend or the holiday schedule take precedence.

Typical holidays and special days include Mothers/Fathers day, Memorial Day, children’s birthdays, July 4th, Labor Day, Halloween, Thanksgiving, Christmas Eve and Day, parent’s birthdays and family reunions. Jewish holidays may include Passover, Rosh Hashana and Yom Kippur. In deciding on issues relating to holidays, form "Children’s Holiday Schedule" FL-341 (C) which has been approved by the Judicial Council of California is helpful. It can be found at www.courtinfo.ca.gov/forms/

During the winter vacation many parents elect to divide the winter vacation. Since the midway point may or may not include Christmas Eve and Christmas Day parents may also elect to split these days.

During the summer recess many parents provide that either parent may have the children for two or three continuous weeks provided that they give each other sufficient notice in advance of their plans. If their plans conflict one parent’s choice prevails in odd years and the other parent’s choice prevails in even years.

Sample Legal Custody Plans

In deciding on issues relating to legal custody, form "Joint Legal Custody Attachment" FL-341 (E) which has been approved by the Judicial Council of California is helpful. It can be found at www.courtinfo.ca.gov/forms/ Where both parents are cooperative and are able to communicate the following joint legal custody language can be used.

Sample Language:

The parties shall have joint legal custody of the child(ren). In exercising joint legal custody, the parties shall make every reasonable effort to foster feelings of affection between themselves and the child(ren). The parties shall cooperate and consult with one another so as to reach mutual agreement on all issues affecting the health, education and welfare of the children, including but not limited to the following:

(1) Enrollment or termination in a particular private or public school/child care/summer camp;

(2) Beginning or ending the regular practice of religion;

(3) Commencement of psychiatric, psychological or other mental health counseling or therapy;
(4) Authorizing the children’s drivers’ licenses;
(5) Passport applications;
(6) Enrollment in regular extracurricular activities;
(7) Non-emergency medical or dental treatment, other than routine check-ups.

How do we modify a parenting plan if circumstances change?

Once a parenting plan has been signed by a Court, the parties can change the plan by agreement which they then submit to the Court. If they cannot agree a party can request that the Court modify the plan. If the plan is part of a final custody determination that party must prove that a change is in the best interests of the children and they may also have to show that there has been a substantial change of circumstances if the plan gave one parent primary custody.

The other parent wants to move out of state. What can I do?

In recent years several Court decisions have set forth the following rules regarding move-aways. If there has been no court order, the Court looks to the best interests of the children.If there has been a Final Court order and one parent wants to modify that order by moving out of state the legal standard depends on whether the original Court order provides for joint custody. The Courts have not specifically defined what percentage of time-sharing qualifies as joint custody. One Court decided that a plan which gave a father alternate weekend visitation and an overnight every week amounting to 30% custody was not joint custody but “liberal visitation.”

If the parents have joint custody, the court looks afresh at the situation and decides what is in the best interests of the child. However, if one parent has primary physical custody (generally more than 60%) it is much harder for the non-custodial parent to prevent the move away. They must prove that the move is being made in bad faith or would be detrimental to the welfare of the child. Only then will the Court review the best interests of the child.

However, the law in this area is far from settled and if you are negotiating a parenting plan you should ask your attorney for advice about what will happen if one parent decides to move away.
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