Fido and the Famliy Law Case

I just read this article on a legal proceeding in Los Angeles regarding a fight over "ownership" of a dog.  In this case, the parties are not related, but you would be surprised at how often, and with how much vigor, parties in a family law proceeding will fight over who gets to keep the family pets.

While the issue is complex, since pets are not considered by the courts to be anything other than property, the main issue is the emotional attachment that the parties feel towards their pets.  I know for me, my pets aren't property, they are my furry children.  They care when I don't feel well, are happy to see me, and want my attention. 

Because there is no "title" to who owns a pet (usually), the courts have long had difficulty with this issue and there is no easy resolution to the problem.  Needless to say, from a financial standpoint, it is often cheaper to not engage in a protracted legal battle over the family pets.  That said, as with the people in the above article, how much would you spend to keep your loved one with you?

Can I Move Away?

The following is a question posted by a real family law party regarding move away.  My response follows:


Question: Can I legally move 90 miles away if I have joint custody of my son and am the custodial parent?
Question Detail: I must take a job in Orange county and move from San Diego County. I have joint custody of my son and am the custodial parent . Can I move 90 miles away legally? I have offered my ex-husband that I would drive my son to him and/or meet him half way. He refuses.

Response: The answer lies in your current order.  If it says that the child must remain in San Diego County, then you will need to seek a modification of the order in order to move to Orange County.

When seeking the right to move away, the terms of your current order are generally controlling.  Since a move away case can take a significant amount of time, it is advised to pursue the right to move away as soon as you recognize that you will need to move, rather than waiting until the last minute. 

Questions from the Public

From time to time, I receive anonymous questions regarding family law matters through a website I belong to called LawQA.com.  As many of these questions may be of general interest, I thought I would post the questions, along with my response, for your viewing pleasure.  Below are some questions posted by real prospective clients.  My response follow their question.

Question: How much of custody can I get if I hired a lawyer?
Question Detail: I have a 5-year-old son. Been divorce for 5 years. I have 50% physical and 40% decision. His mom left him at 6 month old on the sidewalk of my aunt's house in the car seat and left for a month with out calling. At the time I got 80% but then I got a female lawyer and she made me feel bad and I give his mom 50% custody (worst mistake ever). Now she wants me to pay child support. I have my son Thursday through Sunday, and even some Tuesdays, which is her time. Most of the time he is with me even on her days because she has other things to do. But now I'm getting married and his mother wants to put me in child support. She won't buy him any clothes, shoes or even make him food, his 14-year-old brother is the one who cooks for him not her. He started in school so I got him a tutor that I pay for and he goes on my time but when she keeps him she won't take him and now he may do kindergarten again. She doesn't help him with his homework or have a set schedule for him. I gave her my house when we divorced but he doesn't even have his room set for his age, it is still the same way as I left it 5 years ago. I have my own house and he as his own room with me. I help him with reading and school and he is under a set schedule at my home, but i feel she is being careless with my son. Can i get sole custody if I hired a lawyer or at least get the 80% I had last year?

Response: No attorney can guarantee you any percentage of time or decision making authority, however an experienced family law attorney can assist you with obtaining the best order for your child.

Question: As a father, can I keep my son until I file for split custody?
Question Detail: I have my son for the first time in five months. There is no custody court order for my son. The mother just allowed me visitation for the first time in five months.

Response: You should seek orders from the court on an emergency basis, rather than just keeping your son until orders are sought on a regular motion.  While each parent is entitled to the child in the absence of custodial orders, keeping your child from the other parent is as bad as what happened to you. 
 

Car Seats-It's The Law

Recently, a Los Angeles County case was ruled on by the California Supreme Court.  The case stems from a situation where the parents of several children suffered a terrible, and likely preventable tragedy, resulting in the death of an 18 month old girl.  The parents did not have a child safety seat when  transporting the baby (the baby was sitting in the lap of her Aunt) and their car was hit by another driver who ran a stop sign.

Current law provides that all children under age 8 or are shorter than 4'9" must be secured in a safety seat in the back seat of the car.  This law, which took effect on January 1, 2012, is a significant change from the prior law, which only required a booster seat if the child was under 6 years of age or less than 60 pounds.  Under either law, this child was not properly seated in the vehicle (lap sitting is never permitted).  What is worse for these parents is that, on top of losing their baby, Los Angeles County Child Protective Services (CPS)removed the other two children from the parents' care due to their demonstrated neglect.  The California Supreme Court upheld the LA County CPS's action in removing the children,

Justice Marvin R. Baxter, writing for the court (who ruled unanmously for LA County CPS), said "when a parent's or guardian's negligence has led to the tragedy of a child's death, the dependency court should have the power to intervene… even if the parent's lethal carelessness cannot necessarily be characterized as sufficiently 'gross,' reckless, or culpable to be labeled 'criminal.' "

This should be a warning to all parents.  The law is clear and unambiguous.  If your child is under age 8, then they need to be in a car seat in the back seat of the car, unless they are taller than 4'9" (in which case they may be restrained by only a seat belt but must still be in the back seat).  Failure to follow this law can result in death or removal of your child from your car.  The risk just isn't worth it. 

Appellate Court Ruling on DOMA

Today, the Appellate Court for the 1st Circuit (Massachusetts) ruled that certain provisions of the federal Defense of Marriage Act (DOMA) violated the US Constitution's Equal Protection Clause ().  While this is clearly a victory for advocates of marriage equality, it is not the absolute victory that they might have hoped for.  Essentially, this court, led by two conservatives and one moderate, ruled that where a state made same sex marriages legal, such as in Massachusetts, it is a violation of the Equal Protection Clause of the US Constitution to deny those couples federal rights, such as the right to file joint tax returns (and the financial benefit that confers) and social security survivor benefits.

Because the appellate ruling was specifically limited to situations where a state has made same sex marriage legal (currently six states: Connecticut, Iowa, Massachusetts, New Hampshire, New York, and Vermont, plus Washington DC), this ruling has narrow applicability.  It does, however, set a president for the possible overturning of the law in its entirety.

Until the US Supreme Court ultimately rules on this case (which is likely to be appealed by foes of marriage equality) and the recent 9th Circuit ruling on California's Prop 8, the law in this area will continue to be foggy but groups on both sides of this issue continue to hope that the ultimate ruling with favor their position.

Court Budget Crisis and You

Due to unprecedented budget cuts as a result of the economic downturn, the various courts have been forced to adopt plans to reduce expenses.  In Ventura County, the court has decided to close the East County Courthouse for Family Law services, effective June 25, 2012.  As a result, all cases previously assigned to Simi Valley will be reassigned to Ventura as Commissioner Johnson (currently assigned to Simi Valley) will return to the Ventura Courthouse.

Additionally, the court has released notice that they are discontinuing case review conferences and the case plan designation program.  These two items were implemented several years ago to help cases (frequently self-represented parties) move their case toward a resolution by ensuring that the next step is undertaken by the parties.

During this period of staffing and budget cuts, the services of an experienced family law attorney can be essential in keeping your case moving forward and not falling through the cracks. 

Why should I have a will or trust?

Estate planning is not something that most people think about when they are young.  After all, young people don't often have children, perhaps aren't married, and have not yet accumulated much in the way of assets.  But as people age, they often continue to put off this important action.

In California, you are not required by law to prepare a will or trust to determine how to dispose of your property.  The California Probate Code, Section 240, provides a mechanism for distribution of your assets in the absence of an estate planning document.  However, the distribution set forth in the Probate code may not be what you want to have happen with your property.  In order to avoid the court for making decisions for you, a will or trust is needed, as this document (or documents) instructs the court (or in the case of a trust, instructs the trustee) to distribute your assets according to your specific direction.

No matter your age, it is important to take control of your assets and determine your own estate plan.  Leaving this to a court can often bring about unwanted results.

Can A Married Person file for Bankruptcy without their spouse?

A recent potential client contacted me and asked this very question.  The short answer is yes, you aren't required to file a joint petition if you are married.  One spouse can file while the other remain outside the proceedings.  However, doing so may not be in the parties' best interests.

By filing without your spouse, any community debts will be discharged as to the filing spouse (if they qualify) but they will remain enforceable against the non-filing spouse.  As a result, creditors can and often do come after the non-filing spouse to collect the debt owed.

Additionally, the income and expenses used to determine if you qualify for filing can be effected.  If you are considering filing for bankruptcy without your spouse, it is strongly suggested that you contact an experience bankruptcy attorney regarding these and other issues before you file.

Bankruptcy Means Test

Without a doubt, the first question I am usually asked by a potential client is: do I qualify to file for bankruptcy.  Now, there are several different chapters under which a bankruptcy can be filed, but we will be focusing on the most common filing chapter; a chapter 7 (liquidation).

Bankruptcy laws are found under title 11 of the United States Code.  This section is further divided up into chapters and it is under these chapters that people determine what type of bankruptcy filing they desire to pursue.  Chapter 7 refers to liquidation of debts, meaning that all discharged debt will become non-collectable upon the discharge of the debtor from bankruptcy.

To determine whether or not a person qualifies to file for bankruptcy under chapter 7, the courts use a means test, based upon the median income of each state, to determine if a person has sufficient funds to repay the debt they have acquired.  If a person is below the median income threshold, then they automatically qualify and no further analysis is needed.  If the person's income is above the median income for their state, then a further analysis as to income versus debt is needed.  Not everyone qualifies for a chapter 7 filing, as a result.

Effective May 1, 2012, the courts have adjusted the median income for chapter 7 filers.  The median income has gone up in California, meaning that more people will now qualify to file, if they need to do so.  The increase ranges from $125.00 per month to $197.00 per month, depending upon the number of household members.  If you have been thinking about filing but are unsure if you qualify, now may be the time to pursue a bankruptcy filing.

Change of School

With summer rapidly approaching, many children will be finishing instruction at the school they now attend and "promoting" to another school, be it middle school, junior high, high school or college.  Most parents are well aware of the upcoming change, but give little thought to how it impacts their custody and visitation schedule.  In fact, the courts are almost always clogged in August and September with last minute motions for a change of the order to accommodate their vision for the schedule when their child changes school.

Now not every case requires a change.  If both parents live a short distance from each other, and the new school isn't far away, then keeping the status quo may be appropriate.  However, when two parents live in different school districts or in the same district but the area of different schools, problems often arise as to where the child will go.

Courts will give deference to who has historically made that decision and who is the primary physical custody parent, however that is not always the case.  As with all custody orders, the best interests of the child are the paramount concern of the court.  If you think that your case will require a modification of custody and visitation, now is the time to file your motion, so as to avoid a last minute rush which may anger your judge. 

The Duty to Disclose

Civil litigation is often described as a treasure hunt, in which you get the right information only if you ask the right questions.  Family law is different in that each party has an affirmative duty to provide information to the other side at the earliest stages of the case.  Family Code Section 2103 provides that "in order to provide full and accurate disclosure of all assets and liabilities in which one or both parties may have an interest, each party to a proceeding for dissolution of the marriage or legal separation of the parties shall serve on the other party a preliminary declaration of disclosure under Section 2104 and a final declaration of disclosure under Section 2105, unless service of the final declaration of disclosure is waived pursuant to Section 2105 or 2110, and shall file proof of service of each with the court."

Often, the parties see this step as a formality and give little attention to the accurate preparation of the two documents which comprise the Declarations of Disclosure: the Income and Expense Declaration and the Schedule of Assets and Debts.  Failure to accurately and thoroughly disclose the assets and the debts of the community, even if the other side knows about them, can have serious penalties for the disclosing party.  Penalties can include attorney's fees, sanctions (paid to the court) or an unequal division of property.  

The time you spend on accurately and properly gathering and disclosing the assets and debts that are known to each party can help settle a case, avoid attorney's fees and costs, and prevent you from losing your property.  It is always time well spent.  

Custody and Visitation

To many people, the term Custody and Visitation seems repetitive.  To the average family law client, custody means when they have the child in their care and visitation is when the child sees the other parent.  In the family law courts,  however, the term custody has a different meaning and, in fact, is broken up into two parts: legal custody and physical custody.

Legal custody is defined as decision making authority relating to the child's health, safety, education, and welfare.  The parties can share legal custody (joint custody) or one party can have this by themselves (sole custody).

Physical custody is defined as where the children live.  Again, parties can share legal custody (joint custody) or one party can have this by themselves (sole custody).

Visitation refers to both parents and is the timeshare between the parties.

In California, it is the goal of the legislature to establish orders which generally provide for close and continuous contact between both parents and the minor children.  As a result, the default custody position for the courts is joint legal and physical custody with a timeshare as close to equal as possible.  Realistically, may factors can move the needle in favor of one parent, resulting in a deviation from an equal timeshare and joint custody.  Those factors can include (but aren't limited to): domestic violence issues, criminal charges, and alcohol and drug abuse issues.

When establishing order for custody and visitation, the needs of the minor children should be strongly considered in light of the legislative intent.  By keeping that in mind, the parties can often settle this issue without court intervention.  The best custody orders are the ones the parties themselves make, rather than judicially imposed orders which leave one or both sides feeling like they got taken to the cleaners.

How Can I Serve Him/Her When I Don't Know Where He/She Lives?

A common issue that arises when parties who are long separated (often without children) ultimately decide to seek a divorce is that they may no longer know where the other side lives.  The standard rule is that in order for a lawsuit to proceed, the Respondent must receive actual notice of the pendency of the action which has been filed against them.  In simple terms, they must be personally served with a copy of the Summons and Petition for Dissolution of Marriage (and supporting documents).

When one side doesn't know whether the other lives, however, this can present a significant problem in that if the Petitioner doesn't know where the Respondent lives, how can they give them a copy of the documents, effectuating "good" service?  Luckily, alternatives do exist.

The court does provide for Service by Publication, whereby a copy of the Summons and Petition is published in a local newspaper once per week for four consecutive weeks, but in order to do this, permission from the court is required.  Before the court will give permission to serve by publication, you must show that all reasonable efforts have been made to locate the Respondent, including but not limited to, a records search of the local area (or area where they last lived) and a skip-trace (which is done by a private investigator or other type of business which provides locate services).  Proof of your attempts will be required.

The process can be a little complicated, so the services of an attorney experienced in doing this type of work can help resolve a long dormant divorce and allow for the case to be resolved.

Your relationship with your Ex

I read an article today about how ex's treat each other when children are involved and how that impacts their children's lives.  An excellent read and it provides some important information for all parents who have gone through divorce, are going through a divorce now, or are contemplating divorce in the near future:

Why I Wish My Husband Were My Ex Husband

Medical Marijuana and Custody Orders

California is a bit unique when it comes to the issue of Marijuana.  Under Federal law, possession of Marijuana for any purpose (absent a license to create clothing using hemp) is illegal.  In California, however, possession of Marijuana for medicinal purposes (dispensing and use) are permitted due to the passage of Proposition 215.  As a result, we have competing laws at the Federal and State level.  The question of "is it legal" truly depends upon who you are talking to in law enforcement.

When the issue turns to custody and visitation, the courts generally are harsh on drug users and limit or prevent visitation between a using parent and their child.  However, because medical Marijuana is legal (at least from a California perspective), applying the same standard to parents as other clearly illegal drugs would likely be a violation of the parent's rights. 

The result has been that courts, at least in Ventura County, have chosen to ignore the issue of medical Marijuana usage unless it impacts that parent's ability to care for the child during their custodial time.  While the mediators (and thus the Judges) may be willing to put language into custody and visitation orders that state that the parent cannot use or be under the influence of any illegal controlled substance or alcohol 24 hours prior to or at any time during their custodial time, they have so far appeared unwilling to create any language regarding the use of medical Marijuana.

If you are the using parent, despite the law, it would be advisable to consider whether your use impairs your ability to care for the child during your custodial times and, if so, abstain from using during that time (perhaps even volunteer to do so if you can).  If you are the other parent and are concerned about use during custodial time, you should be armed with specific facts as to how the apparently legal usage of medicinal Marijuana impacts the other parent's ability to care for the child during that parent's custodial time. 

Until such time as the US Supreme Court resolves the apparent Federal and State conflict as to laws, family law courts will likely continue to step lightly around the issue of medical Marijuana, even in custody and visitation cases.

Self Employment Income

Few support cases are more difficult that when one of the parties runs her own business.  Pinning down what a self-employed person's income is can be extremely tricky and it is almost never the amount reported on their tax return.  When dealing with a self employed party, the term "cash flow available for support" becomes important.  Many expenditures, which can legally be taken out of gross receipts, must be added back as non-taxable income when calculating support.

I have found it extremely helpful in situations like this to use a CPA to conduct both a business valuation and a cash flow analysis.  While the cost can be high (the usual retainer will start at $3,000), the evaluation they provide can have a significant impact on any case involving a self employed party. 

Notwithstanding the cost, every case in which one or more of the parties is self-employed should hire a CPA to do this work on their case.  When looking for a CPA to review the business, it is additionally important to find someone who can be classified as a forensic accountant.  This is someone who has not only valued businesses and done a cash flow analysis, but has also testified as an expert in court.  The more times they have testified in the courthouse where your case is located, the better.

Oftentimes, after the analysis is complete, I have found that settling a case becomes much easier, as each side understands the income of the other as well as the value of the business (often a key component in dividing up property).  Other than an experienced family law attorney, your case cannot have a better friend than a quality forensic accountant.

Income and Expense Declaration

In California, it is required that each party prepare, file, and serve an Income and Expense Declaration whenever they are seeking orders for support or attorney's fees.  Oftentimes, the party preparing this document creates is quickly and doesn't put a lot of thought into what figures are used.  I cannot stress how important this document is and that attention to detail is of the utmost importance.

As an attorney, I am as interested in the party's monthly expenses as I am in reported income.  For one, I can quickly determine if a party has been lying about their income by reviewing their pay stubs, their tax return, and other documents they are required to provide as part of their Income and Expense Declaration.  What can show an additional source of income is their monthly expenditures and, more specifically, who pays them.

In a recent case, the father reported that he was unemployed and had no income.  On his expense declaration, however, he reported that he paid $3,100 in monthly expenses, including over $900 per month for his truck and an additional $150 per month for a motorcycle.  All of these expenses were paid by his mother, who had supported him for years.  Because of careful attention to this detail, the court was able to impute not only minimum wage at 32 hours per week for this person, but they also imputed $1,000 per month as non-taxable income for this reoccurring monthly gift.  The end result was that the amount of support tripled for my client.

While the Income and Expense Declaration may be a short document, it is of great importance and attention should be paid to ensuring that it is completed accurately.

Help! My Judge is biased against me.

One of the most common statements I hear from prospective clients is that the Judge they have on their case is biased against them.  This usually stems from the fact that the Judge has not ruled in their favor, so of course, they must be biased, right?

This is generally not the case, however.  Our system of law provides for reasonable people to disagree as to an interpretation of laws and it is the job of a judicial officer, such as a Judge, to determine the correct intepretation.  Sometimes the ruling is in your favor, and sometimes not.  A negative ruling doesn't necessarily mean that the Judge is biased against you.  A more appropriate assessment focuses on the Judge's conduct towards you.  Is he/she polite?  Do they make rude comments?  Does the Judge seem upset that you are in their courtroom?

While most Judicial officers are impartial and committed to fairness, if your truly have a situation where a Judge is biased against you, then hiring a new attorney may allow for a change.  While you cannot normally obtain a change of judicial officer whenever you want (this is called forum shopping), hiring a new attorney will allow that attorney to file for removal of one judicial officer under California Code of Civil Procedure Section 170.6. 

If you truly believe that you are being treated unfairly, then this may be another reason to hire a new attorney.

Child Support

Often, when people have a case open with the Department of Child Support Services, they believe that this agency "represents" them.  This is sadly not the case.  The goal of this agency is to establish orders which they believe are easy to enforce.  As a result, they will not fight for the amount you may be entitled to receive.

An excellent example of this was a case I worked on yesterday.  My client was the one who opened a case against the dad, requesting child support.  Dad doesn't work but is fully supported by his mother, who gives him $3,100.00 per month to pay his bills.  The Department of Child Support was willing to impute minimum wage at 32 hours per week to dad but made no mention of the reoccurring monthly gift that dad received from his mother. 

A recent case appellate court decision states that such reoccurring monthly gifts can be considered as income for support purposes.  Because we argued that this should be included as income, my client's support was trippled from what the Department of Child Support Services had requested.  This would not have happened if my client was not represented by an attorney (she had no knowledge of this recent appellate decision).

If you have a case with the Department of Child Support Services, either seeking child support or having it sought from you, the services of an experienced Family Law Attorney can be invaluable in getting you everything you are entitled to receive.