The Bar Association of San Francisco recently published an article titled Who’s Your Daddy regarding the legal woes of celebrities Kim Kardashian, Kris Humphies, and Kanye West. Attorneys Ariel Sosna and Sarah Van Voorhis analyze the presumptions and implications of Kim and Kris’ ongoing battle over their 72-day marriage, and the effects it may have on Kim and Kanye’s child. The article states:
' Since the news broke about Baby Kimye (the unborn child of Kim Kardashian and Kanye West), gossip websites like TMZ have been reporting that under California law, Kim’s estranged husband Kris Humphries is the presumed father. Headlines like “Kris Humphries—And the Presumption is…He’s the Daddy!” suggest that because Kim and Kris are still married, Kris will be the legal father to Baby Kimye. In reality, a legal presumption of paternity only applies if Kim is still married to Kris when Baby Kimye is born, or if Baby Kimye is born within 300 days after the marriage is terminated by death, annulment, invalidity, or divorce (Family Code Section 7611(a)). It is likely that Baby Kimye will be born in time to have this legal presumption apply. Baby Kimye is due in June of this year, and Kim and Kris’ annulment trial has not even been calendared—trial setting is scheduled for February 15, 2013. Unless the trial happens quickly after trial setting, Kim, Kris and Kanye will have some legal hurdles to deal with when Baby Kimye is born. However, assuming they are still married, Kris will not be the “conclusive” presumed father under Family Code Section 7540, which requires the parties to not only be married but also cohabitating at the time of the child’s birth. Under Family Code Section 7611(a), however, there would be a “rebuttable” presumption that Kris is the legal father of Baby Kimye, assuming Kanye takes no action to make himself the father, such as being named the father on the birth certificate and/or signing a voluntary declaration of paternity. This seems unlikely. This begs the question: if Kim filed for divorce in October 2011, why are Kim and Kris still married? As Kim’s lawyer stated to a Los Angeles County Superior Court Judge, Kim is “handcuffed to Kris Humphries,” because Kris has reportedly delayed setting a trial for his request for an annulment. In response to Kim’s petition for a divorce back in 2011, Kris requested an annulment based upon fraud. He has reportedly spent all of 2012 propounding discovery, including taking the depositions of Kanye West and Kris Jenner, Kim’s mother. If Kris Humphries loses the annulment trial, the parties will then have to proceed with a divorce. It is highly likely that Kim and Kris will still be married when Baby Kimye is born—stay tuned! ' The likelihood that Kanye will forego signing the birth certificate is slim, considering their pregnancy is one which both parents are discussing very publicly, and is one of the most talked about events of 2013. However, reality TV never ceases to amaze, so we will all have to keep watch and see what 2013 brings for the celebrity trio.
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California Family Code Section 4055 provides a statewide uniform guideline, or formula, for determining child support obligations. Among other things, this formula takes into account each parents actual income, and the level or responsibility for the child (that is, the percentage of time the parent spends with the child). If the parents have similar incomes, the parent who spends more time with the child will usually be the one to receive the support, whereas the parent who spends less time with the child will usually be the one to pay support. Similarly, if the amount of time spent with the child is equal, but one the incomes are vastly different, the higher wage earner will usually be the one obligated to pay support to the lower wage earner.
The formula, of course, is much more complex than the situations stated above and takes into account other factors. These other factors may include: number of children, federal and state tax filing status, new-spouse income, spousal support obligations from other marriages, the cost of raising children from another relationship, mandatory retirement contributions, health care premiums, etc. The California Department of Child Support Services offers a free guideline calculator for those looking for an estimate of what their support obligation or award may be. The calculator may be found at: http://www.childsup.ca.gov/Resources/CalculateChildSupport.aspx This is a very common question in a family law action where a child, or children, are involved, and it is important to know that custody and visitation are not interchangeable terms, but are instead two legally different things.
CHILD VISITATION: Child visitation refers to parenting time. That is, the amount of time one parent spends with a child. When one speaks of a child visitation schedule or arrangement, they are referring to what days, times, and with what frequency a parent is going to spend with a child. CHILD CUSTODY: Child Custody can really be broken down into two different types: "legal" custody, and "physical" custody. Legal Custody vs. Physical Custody: Legal custody refers to the right of a parent to make decisions regarding a child's health, education, and welfare. For example, decisions about what school a child will attend, what doctors/dentists/therapists/psychologists a child will see, what extracurricular activities a child will engage in, what religion a child will study and practice, etc. Physical custody on the other hand refers to a parents right to have a child live with him or her. Sole Custody vs. Joint Custody Legal and physical custody can each further be broken down into two forms, either "sole," or "joint," custody. Some may have heard of terms like "primary custody" or "primary custodial parent." Terms like these are legal fallacies because they have no legal meaning or significance. Terms like these are usually used to make one parent feel better about not having "joint" legal, or "joint" physical, custody. However, in reality only "sole" or "joint" custody have any legal significance and therefore implications. If one has "sole" legal custody, it means he or she can make unilateral decisions regarding the child's health, education, and welfare. If parents share "joint" legal custody, it means that they must confer with one another in making decisions regarding the health, education, and welfare of a child. If one has "sole" physical custody of a child, it means that parent has a right to have the child live with them, and, sometimes more importantly, it also means that parent has the presumptive right to move away with a child. In other words, if a parent has sole physical custody of a child and wants to move to a different county/city/state, it is the other parent that bears the burden of presenting evidence of why the Court should not allow the parent with sole physical custody to take the child when they move. If on the other hand, parents share "joint" physical custody, it usually means the child spends relatively equal amounts of time with both parents; and if one parent wants to move and take the child with them, the parent requesting the move would bear the burden of presenting evidence to the Court as to why they should be allowed to take the child with them when they move. Any combination of the above custody arrangements is possible. That is, one parent could have sole physical custody of the child/ren, yet share joint legal custody, or vice versa. It is important that parents work together to create a custody arrangement, and a visitation schedule, that best suits the needs of their child/ren and their family. What are the requirements for filing a Petition for dissolution of marriage, a.k.a. "divorce?"8/21/2012 In California, there are two residency requirements that must be met before one may file a Petition for dissolution of marriage or "divorce." First, one of the parties must have been a resident of the state for at least six months; and second, one of the parties must have been a resident of the county in which they are filing for at least three months immediately preceding the filing of the Petition for dissolution of marriage. If either one of the parties meets these requirements, then either party can file a Petition for dissolution.
What if you recently moved to California, or the county, and don't yet meet the requirements but still want to start the process? One could first file a Petition for Legal Separation and then once one met the residency requirements for a dissolution of marriage, one could then amend their Petition for Legal Separation to a Petition for Dissolution of Marriage. However, the new Amended Petition would have to again be served on the other party. |
AuthorsMaria E. Crabtree, CFLS Categories
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