joint-custody

What is meant by joint legal custody

Family Code ‘3083, with reference to the order of preferred joint legal custody

states as follows:

“In making an order of joint legal custody, the court shall specify the circumstances under which the consent of both parents is required to be obtained in order to exercise legal control of the child and the consequences of the failure to obtain mutual consent. In all other circumstances, either parent acting alone may exercise legal control of the child An order of joint legal custody shall not be construed to permit an action that is inconsistent with the physical custody order unless the action is expressly authorized by the court.”

 

In essence and in substance, that code section states that if no one specifies the particular of what joint legal custody will mean, there is a “default.” The default status provides that either parent may make the decisions with reference to the health, education or welfare of minor child. Either parent could consent to cosmetic surgery for the minor child, change a child’s school, or even change the child’s name.

Any parent who is seeking joint legal custody should consider specifying the areas which require mutual agreement including the following:

1.         Enrollment or termination of attendance in any public or private school.

2.         Participation in regularly occurring extracurricular activities.

3.         Non emergency medical, dental and orthodontic, other than routine exams

4.         Participation in mental health counseling, therapy or treatment.

5.         Change in area of a child=s residence

6.         Issuance of a driver=s license.

7.         Issuance of a passport

8.     Body piercing, tattoos and extraordinary hair cuts

9.         Signing contracts on behalf of the child (for theatrical services. etc.).

10.      Nominated as a guardian ad litem (to litigate on behalf of the minor child)

Legal custody has statutory liabilities to be aware of even if a parent with joint legal custody does not share physical custody. Civil Code ‘1714.1 provides that a parent in custody and control or a minor is liable up to $10,000.00 in damages resulting from acts of the minor which cause death, physical injury or property damage.  Education Code ‘48904 provides for a parent’s liability for a child’s willful misconduct or vandalism of school property up to an amount of $7,500.00.  Penal Code ‘490.5(b) provides that “a parent having custody or control of a minor” is jointly and severely liable with the minor for shoplifting or theft of books from a library.  lf both parents have authorized a minor to acquire a driver’s license, both parents may share some responsibility with reference to that minor in the event the minor has an accident.

Non-custodial parents should be aware of Family Code ‘3025 subsection (1):

“Notwithstanding any other provisions of law, access to records and information pertaining to a minor child, including but not limited to medical, dental and school records, shall not be denied because such parent is not the child’s custodial parent.”

A non-custodial parent has an absolute right to be made aware of and to acquire information regarding the minor child’s medical and school pursuits. The non-custodial parent need not accept a statement from, for example, the child’s physician or school administrator, that “I’m sorry, we cannot give you this information because you do not have legal custody.@

I hope this gives you a better understanding of what a joint legal custody really means.

 

Tara-McGuinnessTara McGuinness is a member of A Better Divorce, a Certified Family Law Specialist and has years of experience helping clients in Torrance / Palos Verdes in all areas of family law including California divorce, prenuptial agreements, trusts and estates. Our firm is conveniently located next to the Del Amo Mall in Torrance, California and is one of the most trusted family law firms in the South Bay community.

Collaborative Divorce

Planning Opportunities

This is the forth in a multi-part series by Christopher M. MooreRead Part 1 (PENALTY-FREE DISTRIBUTIONS FROM RETIREMENT PLANS BEFORE AGE 59½ : A WINDOW OF OPPORTUNITY),  Part 2 (Retirement Plan Interests as Community Property) and Part 3 (Taxation of Retirement Plan Withdrawals)

Planning Opportunities

The two common opportunities for planning afforded by Code §72(t) are those relating to distribution pursuant to a QDRO and periodic distributions from an IRA. Any amount may be distributed in a lump sum directly from a qualified retirement plan (other than an IRA) to the non-employee spouse before age 59½, without imposition of the penalty tax. Where an IRA is involved, the benefits may still be withdrawn as periodic payments under Code 872(t,)(2)(A)(iv).

Where the retirement plan in question is something other than an IRA, therefore, the non-employee spouse may receive part or all of his or her share in a lump sum. if that option is available under the plan, at ordinary Income tax rates, without the imposition of the 10 percent penalty tax. even if the recipient spouse is under age 59½, This can be a source of cash for the purchase of a residence or other assets.

Where the retirement plan in question is an IRA or the plan proceeds have already been rolled into an IRA, the spouse still has the opportunity to receive periodic payments free of the additional tax. These payments will vary depending on the age of the spouse and may require an actuary to calculate them, but there is some flexibility in setting periodic distributions so that greater or lesser amounts may be taken if desired. Once periodic payments are begun, they may apparently be later changed or stopped. Because only periodic payments may be made from IRA’s and lump-sum withdrawals may be made from other retirement plans, any decision as to a lump-sum distribution should be made before rolling the non-participant spouse’s interest into an IRA.

The opportunity to withdraw retirement plan benefits without penalty appears particularly attractive with today’s relatively flat tax rates, which may make it possible to withdraw large amounts from a plan during a particular year at ordinary income tax rates without increasing the tax rates.

The availability of retirement plan funds without penalty increases the options available to the parties and also, of course, creates new arguments for the parties. The spouse who is still working and not receiving benefits from the plan, for example, may argue that the ability to reach retirement plan benefits without penalty should be considered as a basis for reduced support to the non-participant spouse.

The exceptions discussed above will not apply to every case, and in many cases where they do apply, the parties may decide not to take early distributions. Distributions, once taken, are still taxable, and there is a strong inducement to allow assets, whenever possible, to remain in the plan to grow and compound at tax-deferred rates.

Whatever the facts of a particular case, however, if there are retirement plan interests and either spouse is under age 59½ counsel may wish to consider taking advantage of the window of opportunity afforded by the exceptions to the penalty tax on premature distributions found in Code §72(t).

Chris-Moore2Christopher M. Moore is a certified family law specialist, a fellow of the American Academy of Matrimonial Lawyers and a member of A Better Divorce, having specialized in family law for many years. Those years as a litigator have taught him that Collaborative Practice is the best way to resolve a divorce. A collaborative case is always faster, costs less and is less stressful than a conventional case where the parties face court congestion, delays and an adversarial, often hostile, relationship. Click here for more information about Chris and his firm.

Retirement2

Taxation of Retirement Plan Withdrawals

This is the third in a multi-part series by Christopher M. MooreRead Part 1 (PENALTY-FREE DISTRIBUTIONS FROM RETIREMENT PLANS BEFORE AGE 59½ : A WINDOW OF OPPORTUNITY) and Part 2 (Retirement Plan Interests as Community Property)

The rules governing the taxation of retirement plan withdrawals may be summarized as follows:

  1. All such withdrawals are ordinary income for federal and state income tax purposes.
  2. An “additional” or penalty tax of 10 percent applies to distributions from qualified retirement plans to recipients under age 59½. Internal Revenue Code §72(t).
  3. The combined state and federal income tax, taking into account the deductibility of state income tax on the federal return, is approximately 34.8 percent in California. When the 10 percent penalty tax is added, the effective combined rate approaches 45 percent. In cases where the marginal federal tax rate is 33 percent rather than 28 percent, the combined tax rate, including the penalty tax, can approach 50 percent, The penalty tax, which is not deductible on either the federal or state tax return, can make withdrawals before age 59½ prohibitively expensive.

Fortunately, Code §72(t) contains two little-known exceptions to the application of the penalty tax which may provide relief to the party who finds it necessary to make a premature distribution from a retirement plan in connection with a marital dissolution proceeding.

Code §72(5)(1) actually provides five exceptions to the general rule that if any taxpayer receives any amount from a qualified retirement plan, the penalty tax shall be imposed:

  1. Distributions made after the distributee attains age 59½ Code §72(5)(2)(A)(i).
  2. A series of substantially equal periodic payments made at least annually for the life or life expectancy of the distributee. Code §72(t)(2)(A)(iv).
  3. Distributions which do not exceed the allowable deduction for the distributee’s medical expenses under Internal Revenue Code §213. Code §72(t)(2)(B).
  4. Certain distributions from ESOP’s. Code §72(t)(2) (C).
  5. Any distribution to an alternate payee pursuant to a QDRO. This exception, however, does not apply to distributions from an IRA. Subsection (3)(B) of Code §72(t) provides that periodic payments from qualified plans must begin after separation.

Next Week: Planning Opportunities

Chris-Moore2Christopher M. Moore is a certified family law specialist, a fellow of the American Academy of Matrimonial Lawyers and a member of A Better Divorce, having specialized in family law for many years. Those years as a litigator have taught him that Collaborative Practice is the best way to resolve a divorce. A collaborative case is always faster, costs less and is less stressful than a conventional case where the parties face court congestion, delays and an adversarial, often hostile, relationship. Click here for more information about Chris and his firm.

retirement-taxes

Retirement Plan Interests as Community Property

This is the second in a multi-part series byChristopher M. Moore. Read Part 1 (PENALTY-FREE DISTRIBUTIONS FROM RETIREMENT PLANS BEFORE AGE 59½ : A WINDOW OF OPPORTUNITY) here.

Retirement plan interests are community property to the extent that the benefits are earned or accrued during the marriage.There are two judicially-approved ways to divide the community interest in a retirement plan. The first method is to reserve jurisdiction over the plan interest and divide each payment between the spouses based on the respective community and separate interests, as and when each payment is received. The second is to value the plan interest actuarially, award assets of equivalent value to the non-employee spouse, and award the entire plan interest to the employee spouse. In re Marriage of Brown, 15 Cal.3d 838 (1976).

As noted above, REA allows the non-employee spouse to withdraw a portion of the employee spouse’s retirement plan account pursuant to a QDRO.

Next Week: Taxation of Retirement Plan Withdrawals

Chris-Moore2Christopher M. Moore is a certified family law specialist, a fellow of the American Academy of Matrimonial Lawyers and a member of A Better Divorce, having specialized in family law for many years. Those years as a litigator have taught him that Collaborative Practice is the best way to resolve a divorce. A collaborative case is always faster, costs less and is less stressful than a conventional case where the parties face court congestion, delays and an adversarial, often hostile, relationship. Click here for more information about Chris and his firm.

money-retirement

Penalty-Free Distributions from Retirement Plans Before Age 59 1/2: A Window of Opportunity

This is the first in a multi-part series by Christopher M. Moore

It’s an all-too familiar scene. The parties are nearing the end of their dissolution proceeding. The case is settled and the assets are ready to be divided, but there is little cash. The cost of setting up two households in place of one and the payment of spousal support have created a chronic cash shortage. Unpaid bills have accumulated. One spouse needs a new home, another must buy a new car to replace the 1970 gas-guzzler that finally gave up the ghost. Attorneys’ fees and costs must be paid. The sale of the family residence produces some cash, but not enough. There are retirement plan accounts, but the parties are under 59½ and the tax cost of withdrawing the money, particularly after the 10 percent penalty tax is added, are prohibitive.

Is there a way a spouse can tap these retirement plan assets without penalty before age 59½? It appears there may be.

Family law practitioners are familiar with the Retirement Equity Act of 1984 (“REA”), which allows the non-employee spouse to receive part of the employee spouse’s retirement plan interest pursuant to a Qualified Domestic Relations Order (“QDRO”). These benefits can be paid directly to the non-employee spouse or rolled over into an individual retirement account (“IRA”) in the spouse’s name. Benefits received directly by the spouse are taxable as ordinary income. Benefits rolled over into an IRA by the spouse maintain their tax-deferred status until withdrawn.

It is also well known that withdrawals from a qualified retirement plan prior to age 59½ are subject to a 10 percent penalty tax. Internal Revenue Code §72(t). There are two exceptions, however, to the general rule imposing the penalty tax on pre-age 59½ distributions. These exceptions can provide valuable planning opportunities in situations where there are significant retirement plan benefits and the non-employee spouse is under age 59½.

Retirement Plan Interests as Community Property

Retirement plan interests are community property to the extent that the benefits are earned or accrued during the marriage. There are two judicially-approved ways to divide the community interest in a retirement plan. The first method is to reserve jurisdiction over the plan interest and divide each payment between the spouses based on the respective community and separate interests, as and when each payment is received. The second is to value the plan interest actuarially, award assets of equivalent value to the non-employee spouse, and award the entire plan interest to the employee spouse. In re Marriage of Brown, 15 Cal.3d 838 (1976).

As noted above, REA allows the non-employee spouse to withdraw a portion of the employee spouse’s retirement plan account pursuant to a QDRO.

Chris-Moore2Christopher M. Moore is a certified family law specialist, a fellow of the American Academy of Matrimonial Lawyers and a member of A Better Divorce, having specialized in family law for many years. Those years as a litigator have taught him that Collaborative Practice is the best way to resolve a divorce. A collaborative case is always faster, costs less and is less stressful than a conventional case where the parties face court congestion, delays and an adversarial, often hostile, relationship. Click here for more information about Chris and his firm.

the phantom returns

What is Forensic Accounting?

Forensic, according to the Webster’s Dictionary, means

  • “belonging to, used in or suitable to courts of judicature or to public discussion and debate”
  • “pertaining to or employed in legal proceedings or argumentation.”

Accounting, as defined by The Random House Dictionary, is “the system of organizing, maintaining … the financial records of a company or an individual.”

Forensic Accounting, then, is the practice of accounting in support of litigation. A Forensic Accountant provides an accounting analysis suitable to the court that will form the basis for discussion, debate and ultimately judicial decision. A Forensic Accountant utilizes specialized accounting skills to conduct an investigation into the actual earnings and income stream of individuals and businesses. A benefit of employing a Forensic Accountant is for his or her ability to communicate financial information clearly and concisely in a courtroom setting.

After a Forensic Accountant is retained for a marital dissolution case, he or she typically would:

  • Assist the attorney in defining the accounting matters
  • Assist the attorney with discovery requests
  • Summarize and analyze financial data and transactions
  • Prepare reports and declarations
  • Perform complex business valuations under family law rules
  • Attend depositions to support opposing witness examination
  • Assist in settlement negotiations
  • Assess tax aspects of proposed settlements
  • Assess issues for trial
  • Prepare court exhibits for trial
  • Testify as an expert witness in trial, if necessary
  • Support attorney in witness cross examination at trial
  • Review judgment for accuracy of findings

Ron-Anfuso2Ron J. Anfuso, CPA, ABV, CFF, CDFA, FABFA is a Forensic Accountant and expert witness in the Los Angeles area. He has over 19 years experience in the valuation, financial, accounting and tax aspects of marital dissolution matters, which includes conducting business valuations, gross cash flow analyses, and tracings, as well as performing Moore/Marsden and other dissolution-related accounting calculations. He is also a founding member of A Better Divorce, and has prepared over 40 collaborative law cases.

family-happy-children

Collaborative Divorce: Your Children’s Best Interest First

THE CHILD SPECIALIST AND THE COACH

 

There are significant differences between thetraditional adversary system of evaluations and therole of the child specialist and coach.

 

  1. The information from the child specialist is given to the persons who need it the most, the parents. Like a mediation session for child custody, the child specialist interviews the child or children, and shares impressions with the parents first.

 

  1. There are no depositions; there is no cross examination. The child specialist doesn’t have to spend countless hours on tests and interviews in anticipation of being questioned later. It’s like the physician who conducts extra tests and procedures, not because the patient needs it, but because not to do so could expose the physician to malpractice law suits.

 

  1. There is no written report that can be read years later by the children. Much damage is done when allegations, affairs, abuses are, “reduced to writing;” actually, writing allegations and critical impressions doesn’t usually reduce the harm. Many things contribute to a divorce and children seldom benefit when they hear the worse about their parents.

 

  1. Child specialists are able to actually help parents. Unlike like the evaluators who like judges at an Olympic ice skating event don’t develop relationships with the skaters, child specialists are seen as consultants, as helpers, to parents.

 

  1. Parents don’t sue Child Specialists or report them to the licensing boards. Private child custody evaluators and even the old Psychiatric Office, formerly based at the Superior Court of Los Angeles, have been sued. Complaints by unhappy litigants are being submitted to the state board that licenses mental health professionals. There have been no law suits or complaints to the licensing boards about coaches or child specialists in collaborative law.

Learn more about Collaborative Divorce

David-Kuroda2David Kuroda is the former Division Chief, Family Court Services, Superior Court of Los Angeles and directed the Mediation and Conciliation Service, the first and largest court mediation program in the nation.

In his 18 years with the Superior Court, he was responsible for the district courts, the PACT and Contemnors’ Programs, Divorce Seminars, and Visitation Monitors. Under his leadership, the service set high standards for the mediation service and other innovative programs serving children and families of divorce.

He has served on numerous committees with the Judicial Council, Los Angeles County Bar Executive Committee, Family Law Section, and has collaborated on numerous programs with the bar associations of the South Bay, Beverly Hills, San Fernando Valley, and Long Beach. He’s the past vice-president of A Better Divorce: A group of collaborative professionals; he also serves as vice-president of the California Social Welfare Archives., on he advisory board of the Los Angeles Collaborative Family Law Association, and was honored with the Lifetime Achievement Award by the National Association of Social Workers (NASW) California Chapter and with the George Nickel Award by the California Social Welfare Archives, USC.

In addition to directing the program, he has personally provided mediation services to over 7,000 families from the working poor to the wealthy and famous, including high profile cases and movie producers. Virtually all parents, whatever their backgrounds, love their children, and with some guidance, have been able to work together, even after divorce. Mr. Kuroda has provided training for graduate students from USC, and has taught professionals child custody mediation.

hand-shake

Collaborative Divorce: Learn How to Stay Out of Court

COLLABORATIVE DIVORCE – UNIQUE ROLES FOR MENTAL HEALTH AND FINANCIAL PROFESSIONALS – THE COACH – THE CHILD SPECIALIST

A key event in the emergence of Collaborative Divorce in Los Angeles was held in Dept. 2 on October, 2001. Judge Aviva Bobb hosted the program, co-sponsored by the South Bay and Los Angeles County Bar Associations. Over 100 attendees heard Pauline Tesler and Nancy Ross describe the newest way of getting divorced. Attorneys along with mental health, and financial professionals have continued to formed collaborative practice groups. In 2010 there were six and now there are twelve groups in Los Angeles County:

 

A Better Divorce, abetterdivorce.com, a South Bay group

Affordable Divorce Solutions

Alliance for Family Centered Divorce

Alternatives – A Collaborative Divorce Team, alternative-divorce.com

Association of Collaborative Divorce Professionals

Los Angeles Collaborative Family Law Association (LACFLA), lacfla.com

Los Angeles Westside Collaborative Divorce Professionals (LAWCDP), lawcdp.org

Pasadena Affordable Divorce

Pasadena Collaborative Divorce, pasadenacollaborativedivorce.com

San Fernando Valley Collaborative Professionals

The Coalition for Collaborative Divorce, nocourtdivorce.com

A new group is forming in Marina del Rey

 

In 2006, the inaugural statewide conference was held in Sonoma, and “Collaborative Practice – California” (CP-Cal) was established. In 2007, in Pasadena, the southern California conference was held at the Westin Hotel. CP-Cal, (cpcal.com) has been developing ways of expanding the practice of collaborative divorce by coordinating the efforts of the California groups. Past presidents, Kimberly Davidson and Kathleen O’Connor, have provided important leadership. The International Association of Collaborative Professionals (IACP) held its Annual IACP Forum in San Francisco, October 27-30, 2011. Collaborativepractice.com. The most recent CP-Cal conference was held last month at the Claremont Hotel. Chief Justice Tani Cantil-Sakauye was one of the speakers. The next Southern California Collaborative Practice California conference is held at the Manhattan Beach Marriott Hotel, April 26-28, 2013, this weekend.
In 2008, for the very first time, Collaborative Divorce training was held in Los Angeles by professionals from Southern California. The two-day program for Collaborative Family Law Interdisciplinary Training was taught by members of LACFLA, Los Angeles Collaborative Family Law Association. Fred Glassman, president of LACFLA, was responsible for this exciting program. Most of the practitioners of collaborative divorce have been trained outside the state; many have traveled to Arizona and other states for the training. Trainers had been brought in from other states for the previous programs. Now there are enough experienced and qualified professionals in Los Angeles County; LACFLA sponsored the training with a faculty of local practitioners. The training was repeated again last year. The next training is scheduled for early 2014. Completion of the training qualifies attendees for membership in LACLFA and IACP. Visitlacfla.org.

LACFLA will be working with the Loyola Law School and will be providing a class in Collaborative Practice later this year. It will be one of the first law schools that will be providing instruction in this innovative way of getting divorced.

In an introductory session for the Los Angeles Collaborative Family Law Association several years ago, at a gathering of over 60 members of the family law community, a highly respected psychologist admitted she had almost decided not to perform any more child custody evaluations. Despite the income, it was just too hard. Recommending parenting plans, figuring out how much time children should be with their parents, choosing between two caring parents-these are difficult issues. Many child custody evaluators are providing their services outside of court as child specialist role in Collaborative Divorce.

Collaborative Divorce is an enhancement of the Collaborative Law model. In addition to attorneys, this model includes the participation of financial and mental health professionals. In cases involving children, a child specialist assists the parties in developing a parenting plan. Coaches help with the emotional aspects of a divorce, and the financial professional representing neither party, provides information about the financial aspects of the divorce.

 

Learn more about Collaborative Divorce

David-Kuroda2David Kuroda is the former Division Chief, Family Court Services, Superior Court of Los Angeles and directed the Mediation and Conciliation Service, the first and largest court mediation program in the nation.

In his 18 years with the Superior Court, he was responsible for the district courts, the PACT and Contemnors’ Programs, Divorce Seminars, and Visitation Monitors. Under his leadership, the service set high standards for the mediation service and other innovative programs serving children and families of divorce.

He has served on numerous committees with the Judicial Council, Los Angeles County Bar Executive Committee, Family Law Section, and has collaborated on numerous programs with the bar associations of the South Bay, Beverly Hills, San Fernando Valley, and Long Beach. He’s the past vice-president of A Better Divorce: A group of collaborative professionals; he also serves as vice-president of the California Social Welfare Archives., on he advisory board of the Los Angeles Collaborative Family Law Association, and was honored with the Lifetime Achievement Award by the National Association of Social Workers (NASW) California Chapter and with the George Nickel Award by the California Social Welfare Archives, USC.

In addition to directing the program, he has personally provided mediation services to over 7,000 families from the working poor to the wealthy and famous, including high profile cases and movie producers. Virtually all parents, whatever their backgrounds, love their children, and with some guidance, have been able to work together, even after divorce. Mr. Kuroda has provided training for graduate students from USC, and has taught professionals child custody mediation.

Collaborative Divorce Resources

How to Get a Divorce – What about a Divorce Coach?

This is the fourth in a multi-part series -How to Get a Divorce- Collaborative Divorce in Difficult Economic Times- on your options in the divorce process by A Better Divorce member, Christopher M. Moore of Moore, Bryan & Schroff LLP in Torrance, California.

Divorce Coaching

In most divorce cases, emotions run high. The parties can experience feelings like anger, denial, anxiety, and depression that make it hard to reach agreement on the real issues like the financial settlement and a parenting plan for the kids. To work past these dark emotions, the lawyers will urge each party to have a coach. The coaches are mental health professionals, but don’t act as therapists for their clients; rather the coaches create a team out of the parties, the coaches and the lawyers.

Professionals who practice Collaborative Divorce have been trained to mold both sides into a team with one goal. Where issues require an outside expert, the lawyers will agree on a neutral expert such as an accountant or child specialist.

Collaborative Divorce can have its negatives. The cost of the professional team, with lawyers, coaches and possible neutral experts, may seem daunting. If collaboration fails and the case must go to litigation, there is a cost to the parties in hiring new lawyers.

Experience teaches, though, that a collaborative divorce is almost always faster, cheaper and more amicable than litigation. That each party has a

lawyer avoids the potential for abuse. The coaches reduce the parties’ anger so they can get to the negotiating table.

A strong case can be made that in these difficult economic times Collaborative Divorce offers the best route to a divorce that is fast, friendly and fair.

Chris-Moore2Christopher Moore is a member of A Better Divorce- A Collaborative Family Law Group in the South Bay area of California, a certified family law specialist, and a fellow of the American Academy of Matrimonial Lawyers. He has specialized in family law for many years. Those years as a litigator have taught him that collaborative practice is the best way to resolve a divorce. A collaborative case is always faster, costs less and is less stressful than a conventional case where the parties face court congestion, delays and an adversarial, often hostile, relationship. For more information about Christopher and his firm please click here.