by Andy Chen | Jul 2, 2023 | Family Law, New York, Statutes... and stuff
I’ve been licensed to practice law in New York since 2012. Unfortunately, I do not maintain an office in New York. This means that I cannot take clients who live in New York due to the NY Court of Appeals‘ 2015 ruling interpreting NY Judiciary Law section 470 in the case of Schoenefeld v. State of New York, et al. That appears to be changing, though. Legislation has been passed by both the New York State Senate and, as of June 7, 2023, the New York State Assembly to repeal Judicial Law Section 470. Stay tuned for updates. Because Section 470 is still in effect, I can’t practice law in the state of New York. However, what I’m going to discuss in this blog post and all my NY blog posts that follow is information any member of the public can look up for themselves. I offer no opinion on whether the particular statute or case I go over is advisable or prudent for their particular situation. My hope is that, even though my blog posts are purely factual, my post will give the enterprising reader an idea or plant a seed for further research that they would otherwise not have had. Put simply: after reading my factual post, maybe you can do more research that didn’t occur to you before and, hopefully, be better off for it. In this post on the laws of the state of New York, I’m going to talk about the residency requirements for a divorce. A residency requirement is the basic idea that in order to file for divorce in a given state...
by Andy Chen | Jun 26, 2023 | California, Family Law
If you’re involved in a California family law case of any kind where there are minor children present, there’s a good chance you’ve heard of terms such as “joint legal custody”, “joint physical custody”, etc. Terms like these are not difficult to understand, but many terms in court are used so frequently that lawyers, judges, etc. will assume their meaning is obvious. This is especially true in family court where, at least in my experience, most people are unfamiliar with the laws and procedures that are used. A huge amount of unnecessary confusion results, which is obviously not helpful to anyone getting a good outcome. In this post, therefore, I’m going to define these terms, tell you what statute sections they come from, and any practical commentary that pops to mind. Joint Legal Custody (CA Family Code Section 3003) For whatever reason, California’s Family Code doesn’t define “legal custody” or “physical custody”, but rather defines those terms with the modifier of “joint” or “sole” instead. Joint Legal Custody is defined in Section 3003 of the California Family Code as: “’Joint legal custody’ means that both parents shall share the right and the responsibility to make the decisions relating to the health, education, and welfare of a child.” I’ve bolded and underlined the terms “health, education, and welfare” because that’s fundamentally what legal custody is all about. When it comes to minor children (again, this is a child under age 18 typically), imagine something that the parent would have to give permission or authorization for regarding that child. This might be, for instance, a permission slip for the child to...
by Andy Chen | Jun 24, 2023 | California, Family Law
If you’re involved in any sort of child custody or visitation case in California, it’s just a matter of time before you encounter the “Best Interest” standard. In other words, the California courts want to do whatever will be in the “best interest” of the minor child or children in question. In my view view, though, the term “best interest” is tossed around so much that practically-speaking, it’s lost a great deal of its meaning. The vast majority of people involved in a custody and visitation case — lawyers and litigants alike — will no doubt use the term “best interest” but be unable to define what the term actually means. In this post, I’m going to provide you two definitions for the term “best interest”: (1) the formal technical definition from the California Family Code, and (2) a more practical definition which will hopefully be more useful in the real world. The Formal Definition Regardless of what you may feel personally, the only definition of “best interest” that ultimately matters is the formal technical one as specified in either California statute, California case law, or both. Discussing the case law is going to make this blog post way, way, way, way too long so I’m going to be limited to the statute only, namely Section 3011 of the California Family Code. That section says as follows: “(a) In making a determination of the best interests of the child in a proceeding described in Section 3021, the court shall, among any other factors it finds relevant and consistent with Section 3020, consider all of the following: (1) The health, safety,...
by Andy Chen | Jul 4, 2021 | California, Family Law
For your annoyance, er, amusement today, I present another blog post on California child support. Today, I’m specifically going to talk about when it’s possible under California law for the parents of a minor child to agree to an amount that’s different than what the family court computes. To begin, it’s helpful to understand what California child support consists of. I have a video on my Youtube channel where I go over the various components that go into the overall child support figure that a parent either pays or receives. Most laypeople just know the overall figure and don’t actually know what goes into computing it. This amount, of course, is computed in the comfort and peace of a courtroom. What kind of child support actually works in the real world, though, can easily be very different. If this is your situation, do you and the other parent have the ability to adjust your child support? Or do you have to live with some impractical figure that was computed by someone who may not actually know your life? The answer is yes, you and the other parent do have the ability to inject some realism into the child support amount that applies in your case. The governing law for that in California is Section 4065 of the Family Code. Section 4065 says that the parties to a case can agree to go below the guideline amount computed with the formula in Section 4055 if the two of them declare the following to be true: They are fully informed of their rights concerning child support The order is being agreed...
by Andy Chen | Jul 2, 2021 | California, Family Law
If you’re involved in a child custody or visitation case, there’s a good chance you’ve encountered the term “best interests of the child.” As a general rule, when there are minor children involved in a California family law case, courts will try their best to come up with a custody and visitation arrangement that is in the best interests of the child. The phrase “best interests” is tossed around a great deal, though, without much definition or specificity. In this post, I’m going to try and change that by, as should be no surprise, going over a California statute. I’ll toss in a little common sense at the end also. The Statute When it comes to statutes, there’s two-levels of analysis. First, the statute — Section 3011 of California’s Family Code, if you want to look it up — does contain a list of factors that courts can consider when trying to determine what is and is not in a child’s best interest. The second-level, though, is that this list is not exhaustive. In other words, the court can also consider factors other than what the statute explicitly lists. The list in Section 3011 says: The “health, safety, and welfare of the child”; Whatever history of abuse exists, if any, that is perpetrated by the party seeking custody now; ( The “nature and amount of contact with both parents”; (If this is your situation, you need to read the text of Section 3011 as well as that of Section 3046 because a lot of exceptions apply). The “habitual or continual illegal use of controlled substances,” abuse of alcohol, or...
by Andy Chen | Jun 26, 2021 | California, Family Law
In a prior post (from 2019, apparently. Didn’t realize it was that long ago), I went over the Automatic Temporary Restraining Order (i.e. the “ATROS”) that applies in California divorce cases. The governing law there was basically Section 2040 of California’s Family Code. I also have a similar post on New York’s ATROS which I also put out in 2019. In this post, I’m going to over a more minor aspect of California’s ATROS, but a very important one nonetheless: When is a California ATROS effective? The answer to that question is, conveniently, also in California’s Family Code. It would make sense if it was in a section close to Section 2040 since you would assume code sections that go over similar topics would be grouped together. You would assume that… but you’d be wrong. The governing law that answers the effectiveness question is actually Section 233 of the California Family Code. Because of course it’s in Section 233. Why would it not be? Anyway, the answer is specifically in Section 233(a), which states: “Upon filing the petition and issuance of the summons and upon personal service of the petition and summons on the respondent or upon waiver and acceptance of service by the respondent, the temporary restraining order under this part shall be in effect against the parties until the final judgment is entered or the petition is dismissed, or until further order of the court.” As usual, I’ve bolded and underlined the important part of the statute, which in this case is basically the first half. The ATROS is effective on the petitioner — in other words,...
