The Law Offices of Stephen E. Penner
Family Law and Estate Planning in Santa Barbara County

Legal Advice

Questions? We have the answers...



Q: Can I name my fiancée as my baby's father in the birth certificate if I'm separated from my husband and going through divorce?

A: In California there is a presumption that your husband is the legal father of your child. That being said, you can rebut this presumption by having your fiancée sign a Voluntary Declaration of Paternity at the hospital. Your fiancée can then be named as the child's biological father and will be afforded all of the rights and responsibilities of the child under California law.

Q: What will happen if I don't go to court? I put a restraining order on my baby's father. While I did that restraining order, I also said that the only violent behavior was his pulling my hair, so they put that I have full custody of my baby and I was wondering if I don't show up to court [...]

A: You need to show up in court to ensure that the restraining order is not dismissed. The only way to have the temporary restraining order made permanent is through a restraining order hearing. You should attend the hearing. 

Q: If still married can he form a domestic partnership? He is married and has been separated for 3 years, living and working in California - she is in OREGON. Can he form a domestic partnership?

A: California Family Code Section 297(b)(1) clearly states that a person can enter into a domestic partnership so long as they are not "married to someone else or a member of another domestic partnership with someone else that has not been terminated, dissolved, or adjudged a nullity." If one party is still legally married, he/she cannot enter into a domestic partnership. 

Q: Will I have to pay out my wife in divorce if I keep a home out-of-state owned prior to marriage?

A: Property characterization issues are very complex. There are several things that must be considered when determining whether the home will be considered entirely your separate property, your separate property with a community interest, or whether the home will be transmuted to community property. Have you ever deposited the rents into a community account? Were the mortgage payments, management fees, and/or HOA fees paid out of a community account? Did you claim the property on your joint tax returns? If so, it is likely that your wife will be entitled to receive a portion of the equity in the residence.

Q: Do I have to give the non-custodial parent visitation anytime they ask for it? I have been the custodial (primary residence) parent for 7 years. There has been no change in circumstances, but the non-custodial parent wants joint custody. I homeschool the children and work only while they are gone for visitation [...]

A: Unless there has been a significant change in circumstances which would warrant a change in custody, and a showing could be made that such a change would be in the best interests of your children, then it is unlikely that a court would modify custody and/or visitation. Your only obligation is to abide by any existing court orders and ensure that your children have frequent and continuing contact with the non-custodial parent (NCP).

If you have concerns about the NCP's living situation, you may want to address these issues with the court. It is not in the best interests of the children to be locked out of the house and/or exposed to domestic disputes.

I suggest you contact an experienced family law attorney in your area to discuss this matter further.

Q: Do I have to tell the father of my child where I am living if we have joint custody but it doesn't specify that on the file? We signed papers a year ago but then got back together, and he just started enforcing them last week. He tells me I can't live with a roommate, or he will take her away from me. He is a very angry person, very manipulative, and I am terrified if him [...[

A: Custody, visitation, and support can be modified if there is a change in circumstances that would render a modification of existing orders to be in the best interests of the child. 

I suggest consulting with an experienced family law attorney in your area to discuss this matter further.

Q: Court fee for summary dissolution is $435 for each spouse or $435 for both the spouses? Regarding simple/summary dissolution, the fee to be charged by the court is $435 for each spouse (i.e., $870 for the summary dissolution process) or just $435 for both the spouses (i.e., $435 for the whole process)?

A: There is only one $435 fee for filing the joint petition for summary dissolution.

Q: Rules on moving with a child/visitation question. I have full custody with reasonable visitation listed in the order. There is no calendar in the paperwork that states when the visitation is to commence. What qualifies as reasonable? Also, if I were to move out of the area, how far can I move legally? [...]

A: Move-Away cases can become very complex. Generally, you will have to ask the court's permission to move with the child if you and the other parent cannot agree to your move. Visitation and child support will likely have to be modified as a result of the intended move-away.

Also, you should consult with an experienced family law attorney about removing any ambiguities in your current custody and visitation orders. "Reasonable" is a very ambiguous term, and it is likely that you and the other parent will disagree as to what "reasonable" visitation entails.

Q: While filing summary dissolution forms, what should I write as the date of separation? I have never applied to court for separation. Is the date of separation referring to the date when my spouse and I started living separately? (although we didn't go to court to get a legal separation). Or should I leave the field empty?

A: The date of separation is the date that you and your spouse decided to end your marital relationship with no intention of reconciling. It does not matter that you did not obtain legal separation from the court; this is not necessary. Do not leave the date blank. The date of separation is very important for property division, spousal support, etc.

Q: Do you have to serve a restraining order in person or can you mail it? What is the process in regard to a restraining order? My ex claims they filed a restraining order, but refuses to give any information.

A: A temporary restraining order can be ordered by the court "ex-parte," without notice to you. You will be personally served with a copy of the Notice of Hearing and Temporary Restraining Order, if they were granted.