Wednesday, December 29, 2010

ABUSED SPOUSE: You can sue for damages

Domestic violence wreaks emotional and physical havoc on the victim and the other innocent family members. While its clear that in a family law case the victim can procure protective orders from the court, victims of abuse may be unaware that they also have a right to sue in civil courts for their emotional and physical damages.

Just because you are in a marriage or partnership does not rule out your right to seek money damages in the civil courts for the abuse. Besides seeking recovery for wage losses and medical treatment, the victim can ask for damages for pain and suffering. Children that are direct victims or witnesses to abuse are also entitled to recovery for their physical and/or emotional damages.

The most recent California case in point decided November 2010 is Boblitt v. Boblitt (11/30/10) 3 Civ C061307 (Robie) 2010 WL 4851085.

Before their marriage and the very day that wife moved in with husband he began verbally abusing her. Verbal abuse escalated to physical abuse. Husband broke wife's jaw.. The abuse did not end when they were married in late 1989, but continued up to and beyond wife's divorce filing in 2004.

In 2007, wife filed a separate tort action against husband, seeking damages for domestic violence, assault and battery, breach of fiduciary obligations, and intentional and negligent infliction of emotional distress. Wife's claims of domestic violence were also raised in the divorce action. In the divorce, wife asked for lost wages and other economic help.

In the family law trial court decision, the judge noted that he was remedying detrimental effect of husband's actions on wife's finances by awarding eight months of spousal support, conditioned on no contact between parties. Wife's request for award of funds for past and future medical bills, counseling, and pain and suffering was denied by the family law judge who noted that such an award would be inappropriate. After moving unsuccessfully for new trial, W appealed.

Wife filed a separate civil tort action and in response to that lawsuit husband moved for judgment on the pleadings in wife's tort action, claiming that because of the family law ruling and award of support to wife, all causes of action could have been or were tried in parties divorce case(including domestic violence and wife's request for reimbursement of medical bills, and for pain and suffering), which barred their re-litigation.

Wife replied in the civil case that tort action was not precluded because the family law judgment was not final (an appeal was still pending) and domestic violence issues were not litigated in the family court.

The civil litigation trial judge granted husbands motion dismissed wife's tort action.

Wife filed an appeal to the dismissal and the California Court of Appeal reversed the lower court, agreeing with wife and found that: (1) Wife has not waived her arguments because they present questions of law and are not based on disputed facts; (2) Wife’s domestic violence claims are not precluded because they are not based on same primary right (the wife's spousal-support request is not based on primary right to be free from personal injury.)

Even though the family law judge awarded money to the wife as a backdrop to her request for compensation due to husband's abusive conduct, wife still had a right in tort law to seek right of compensation and recovery from husband for her damages.

Victims of domestic violence are entitled to the full protection the law affords in criminial, family law and civil courts. Each court has a different remedy so its important to ensure you are protecting your legal rights by getting legal representation from an attorney skilled in handling these difficult and dangerous cases.

Thursday, November 18, 2010


Psychiatric experts assess parental alienation
Published October 01, 2010
Associated Press

NEW YORK – The American Psychiatric Association has a hot potato on its hands as it updates its catalog of mental disorders — whether to include parental alienation, a disputed term conveying how a child's relationship with one estranged parent can be poisoned by the other.

There's broad agreement that this sometimes occurs, usually triggered by a divorce and child-custody dispute. But there's bitter debate over whether the phenomenon should be formally classified as a mental health syndrome — a question now before the psychiatric association as it prepares the first complete revision since 1994 of its Diagnostic and Statistical Manual of Mental Disorders.

"We're gotten an enormous amount of mail — more than any other issue," said Dr. Darrel Regier, vice chair of the task force drafting the manual. "The passions on both sides of this are exceptional."

On one side of the debate, which has raged since the 1980s, are feminists, advocates for battered women and others who consider "parental alienation syndrome" to be an unproven and potentially dangerous concept useful to men trying to deflect attention from their abusive behavior.

"This is a fabricated notion — there's no science to support it," said Joan Meier, a professor at the George Washington University Law School who has written extensively on domestic violence and child custody.

On the other side are legions of firm believers in the existence of a syndrome, including hundreds gathering for a conference on the topic this weekend in New York. They say that recognition of parental alienation in the psychiatrists' manual would lead to fairer outcomes in family courts and enable more children of divorce to get treatment so they could reconcile with an estranged parent.

"This is a problem that causes horrible outcomes for children. ... All the arguments I've heard against it are trivial," said Dr. William Bernet, a psychiatry professor at the Vanderbilt University School of Medicine.

Bernet is among the speakers at this weekend's conference, which organizers bill as the largest ever on parental alienation. He will be describing his efforts as lead author of the proposal submitted to the psychiatric association to recognize parental alienation either as a "mental disorder" or a "relational problem."

The psychiatric association first published its manual of diagnostic disorders, known as the DSM, in 1952. The last major revision was published in 1994 and updated in 2000, and the fifth edition — DSM-5 — is due for publication in May 2013.

Work groups in various fields have been reviewing numerous proposals for additions to the 283 disorders in the current edition. Parental alienation remains on a list of proposals that are subject to further review, though it did not pass muster with the work group dealing with childhood and adolescent disorders.

"There is not sufficient scientific evidence to warrant its inclusion in the DSM," Regier said in a statement.

In an interview, Regier — who directs the APA's research division — said the proposal technically remains alive pending final presentations by the end of 2011. But he described chances for inclusion of parental alienation as "slim" — given that it has not been selected for field trials that normally would be a prerequisite for official recognition.

Bernet said it was "flatly ridiculous" for the APA to contend there is not enough information available to warrant including parental alienation in the DSM. He cited legal developments and new research in numerous foreign countries.

His proposal defines parental alienation disorder as "a mental condition in which a child, usually one whose parents are engaged in a high conflict divorce, allies himself or herself strongly with one parent, and rejects a relationship with the other parent, without legitimate justification."
The weekend conference at the Mount Sinai School of Medicine is the brainchild of Joseph Goldberg, who is based near Toronto and in 2008 founded an organization called the Canadian Symposium for Parental Alienation Syndrome.

Goldberg runs a consulting service for lawyers and parents litigating issues related to parental alienation. In his online biography, he says he "fought one of the most brutal case of parental alienation in Palm Beach County history" during a child-custody dispute with his ex-wife in Florida that extended from 2003 to 2006.

"This touches lives of more people than anyone imagines," Goldberg said by telephone from Canada. "It's not just about a child turned against a parent, through hatred. This affects grandparents, aunts and uncles, cousins, friends — all of them thrown out when a child rejects a parent."

Some of Goldberg's allies doubt the psychiatric association is ready to include parental alienation in its manual. New York-based psychologist Amy Baker, who has written a book about parental alienation, suggested the association might "play it safe" and decline to recognize it for fear of provoking feminist groups. However, Goldberg is hopeful.

"There's a long way to go over the next few years before they make a final decision," he said. "There will be enormous pressure. ...I think it will be difficult for the APA not to include it."

Parental alienation surged onto the pop-culture radar screen a few years ago as a consequence of the bitter divorce and child custody battle involving actors Alec Baldwin and Kim Basinger. Baldwin was harshly criticized by some feminist groups for citing parental alienation syndrome as a source of his estrangement with his daughter.

The concept is a source of confusion and division in the legal profession, as some lawyers try to evoke parental alienation and others challenge that tactic.

Texas Supreme Court Justice Debra Lerhmann, chair of the American Bar Association's family law section, said the issue of possible alienation can be raised in child custody proceedings whether or not any such phenomenon is classified as a disorder by health professionals.
"Anyone who's in this business knows there are situations where that in fact is happening — and sometimes it's alleged but is not happening," she said. "Even if it's not in the manual, relevant evidence can still be brought in."

Meier, the George Washington law professor, has urged judges to be cautious in how they allow the topic to be raised in cases where one estranged parent is accused by the other of abuse.
"You've got to assess the abuse first, without poisoning it with a claim of alienation," Meier said. "Only after abuse is ruled out do you then move on to the question of alienation."

Elizabeth Kates, a Pompano Beach, Fla., lawyer who deals often with child custody cases, is skeptical of the role parental alienation can play in such disputes: "It's a very easy claim to make ... but the problem arises when it's used in court to obscure the investigation of whether there's been abuse."

She said the initial impetus for recognition of parental alienation syndrome came in large part from the fathers' rights movement, but suggested much of the momentum now comes from psychologists, consultants and others who could profit if the concept had a more formal status in family court disputes.

"It's monetary," Kates said. "These psychologists and therapists make huge money doing the evaluations and therapies."


Homeowners in foreclosure case could see loan modifications

By Julie Schmit and Stephanie Armour

More homeowners may get home loan modifications under a potential settlement being discussed between banks and state investigatorsprobing improper foreclosures, but big hurdles remain, real estate experts say.

The 50 state attorneys general are investigating whether loan servicers used faulty documents to justify tens of thousands of foreclosures. News of preliminary settlement talks between banks and the investigators broke earlier this week, but Iowa Attorney General Tom Miller, who's heading the probe, says any settlement may be months away.

To get more loans modified, lawmakers and regulators will have to find ways to appease mortgage investors, who lose money if a loan's principal is reduced. Many modifications now involve lower interest rates or longer repayment periods. Such issues are likely to be discussed Thursday at the second congressional hearing this week on the nation's foreclosure crisis.

The slow pace of loan modifications has been widely noted. In the second quarter, companies that service loans initiated 273,419 modifications, according to the Comptroller of the Currency. That was up 18% from the first quarter. Loan modifications in the second quarter represented 13% of seriously delinquent borrowers. Increasing modifications is expected to be a big part of any settlement, if one is reached. But issues that'll have to be overcome are likely to include:


Many times, homeowners pursue loan modifications while a foreclosure against them moves forward. This so-called dual-track process is required by many mortgage investors and is an industrywide practice, according to written testimony that is expected to be delivered Thursday by Rebecca Mairone, Bank of America' s default-servicing executive. She says the bank wants "to be a partner" with the state attorneys general to change that industry practice.
Ending it completely would require buy-in from investors. They want the best possible return in the shortest amount of time so that homes don't deteriorate and lose more market value, says Anthony Sanders, professor of finance at George Mason University. What's more, there can be numerous investors in a pool of mortgages. Reaching agreement with them all will be difficult, says Robert Hager, a lawyer in Reno who represents homeowners.


When a homeowner defaults, banks often tack on extra costs for late fees or required insurance to protect the lender. Those costs can be very high, says Diane Thompson at the National Consumer Law Center. Because banks recover fees upon foreclosure, they may have more incentive to foreclose than to modify a loan, she says.


When a borrower seeks a loan modification, a different lender holding a second lien on the property frequently blocks it, because its interest could be wiped out or diminished. If a loan is modified, the first lien holder who may take a loss will want the second lien holder to take one, too, says Adam Levitin, associate law professor at Georgetown University. He says banks don't want to write down those losses.

Tuesday, July 27, 2010

Bankruptcy can save your house from foreclosure

Bankruptcy can save your house from foreclosureBy Les Christie, staff writerJuly 24, 2010: 10:58 AM ET
NEW YORK ( -- Slick TV commercials and online ads tell delinquent borrowers that they can save their homes by filing for personal bankruptcy. But is it true -- or just too good to be true?True!

Bankruptcy can bring foreclosure proceedings to a halt, end harassment from debt collectors, and give borrowers time to make up missed payments and reorganize their finances. In some cases, bankruptcy can also help mortgage borrowers save their homes permanently.
It's not, however, going to help every troubled homeowner. If, for example, the homeowner's biggest problem is not enough money, bankruptcy is not going to solve that.
"It's the best tool there is for people behind in payments but who have ongoing income," according to Binghamton, N.Y., attorney Peter Orville, "those who had been making payments and who could be making payments again."

Halting the process

The first thing a bankruptcy filing accomplishes is to stop the foreclosure process. Lenders can't foreclose or even try to collect debt until permitted to do so by the court.
But first, you have to decide what type of bankruptcy to file for. There are, basically, two types to choose from: Chapter 7 and Chapter 13.
A Chapter 7 bankruptcy delays foreclosure. but eventually it usually results in the liquidation of most assets, according to attorney Stephen Elias, author of "The Foreclosure Survival Guide." Borrowers almost always lose their homes in a Chapter 7.

Some bankruptcy attorneys, like New York-based David Pankin, prefer Chapter 7 because it gets rid of all unsecured debt, leaving only secured debt, such as mortgages, exempt. In this scenario, borrowers still owe their mortgage payments but they can likely afford to make them because all the other debts have been discharged.
But for most experts, Chapter 13 is usually more effective at helping people keep their homes. It gives them time to repair their finances, usually three to five years, during which the court agrees to an income-based budget with monthly payments made to trustees.

The trustees pay the bills, first paying off the secured debt. After that, the trustee pays off unsecured debt, starting with back income taxes.
Next in line comes unsecured debt like credit cards and medical bills. By then, there's usually little cash left and these bills are paid at less than the full rate, often as little as five cents on the dollar.
Borrowers, if they kept up on their payments, can emerge from bankruptcy with their homes still in their possessions.
One thing courts cannot do is "cram down" loan balances on primary residences. That is, reduce mortgage debt to what the home is worth. Neither can they lower interest rates, in most cases, nor lengthen the term of the loans.They can, however, "strip off" second mortgages, like home equity loans or lines of credit, when home values fall below the first mortgage balances, according to Elias.
"This allows the judge to get rid of the second mortgage," he said. "If there's not enough equity to secure the second, it becomes unsecured debt."

That can be a huge advantage for borrowers. Homeowners may have, for example, a $200,000 first mortgage balance and another $50,000 on a home equity loan. If the home value has dropped to less than $200,000, the judge could rule that all $50,000 of the second is unsecured. Then, it can be paid off at the same pennies-on-the dollar as other unsecured debt.
But there are other downsides. Bankruptcy can lop as much as 240 points off credit scores. And bankruptcies can remain on credit reports for 10 years, said Pamela Simmons, a California real estate attorney, while all other black marks disappear after seven years or less.

Fending off deficiencies

There is also a potential tax advantage to filing for bankruptcy rather than going to foreclosure, according to Simmons. When a home is repossessed and the lender forgives the portion of the mortgage balance above its market value, a tax liability can be triggered. Any difference between what people borrow and what they repay is considered income.
Congress is temporarily allowing that unpaid debt to be forgiven -- but only for money specifically spent on the home purchase or on home improvement.

Millions of people, however, refinanced mortgages or took out home equity loans and used the money to fund vacations, pay college tuition, buy cars or boats or simply to live the good life. That money is taxable.

Simmons had a recent client who was allowing his lender to foreclose on him and called her about the timing, asking whether he had to vacate by the day of the auction.
In passing, she asked him how much he owed on the house. He said he bought it for a million but had taken out another $2 million, most of which had not been spent on the house. When she told him he would owe taxes on it both to Uncle Sam and the State of California, he was dismayed She rushed him into her office and they did the paperwork so he could file for bankruptcy.
"If they discharge that deficiency in bankruptcy, you don't owe tax on it," said Simmons.

Bankruptcy can save your house from foreclosure

Monday, July 12, 2010

Teach Your Teen Paycheck Savvy by Linda Stern

A great article authored by Linda Stern of CNN Money:

Teach Your Teen Paycheck Savvy

(Money Magazine) -- Congrats! Your kid landed a summer job in this tight, tight economy.
Now, of course, he'll have that $7.25 an hour burning a hole in his pocket. That's where you step in: "Parents have a real opportunity to help teens learn to manage that first paycheck," says Mari Adam, a Boca Raton, Fla., financial adviser. "I can't think of a better learning experience." Share some solid financial strategies with your teen now, and your child may even have some cash left over come September.

Have The Tax Talk

Better explain the harsh realities of gross vs. net before your teen gets any big ideas about what she'll spend her wages on. She may not yet understand that taxes will be withheld from every paycheck. So sit down with your child to go over that first pay stub, explaining how and why taxes are taken out, as well as the difference between income taxes (which most teens are likely to get back when they file tax returns) and FICA taxes (which they won't). "This will be a real shock to them," says Adam.

Take It To The Bank

Help your kid open two bank accounts -- one savings, one checking. Spend time together comparing fees and rates online, looking specifically for a no-fee checking account meant for teenagers. You'll have to co-sign the accounts, but it's worth it so your kid can start learning to use an ATM card and keep his balance in the black. (Just don't forget to mention the exorbitant costs of using another bank's ATM.)

Your child may balk at an analog check register but might enjoy tracking expenses online via To motivate him, explain about the $30 overdraft fees the bank will rapidly bestow if he messes up budget calculations. And remind him that at minimum wage, it would take most of a day's work to recoup that expense.

Share The Savings Secret

Deferred gratification is an important lesson. Your teen may not be inspired to stash cash for retirement but may be swayed to the savings habit with a near-term goal, like an iPod Touch or a limo for homecoming. Help her do the math so that she'll know how much to set aside per paycheck to afford her prize by summer's end. Show her how to have that automatically transferred from checking to savings every pay period. As an incentive, offer to match your child's contributions.

Avoid Micromanaging

Blowing that first paycheck on shoes that will be out of style before the next check arrives is a rite of passage, isn't it? It's also a "very good lesson," says Rob Gordon, a Coconut Grove, Fla., financial adviser. So let kids have space to make spending decisions, even if they'll end up with buyer's remorse.
There's nothing like having wasted your own hard- earned cash to make you more careful with your money next time.

Teach your teen paycheck savvy

Thursday, July 1, 2010

Great Co-Parenting Tips to Consider

Every once in a while, I find an article that can stand alone as being a great reference on a particular topic. I felt the artilce about family therapist Terry Real by ABC news writer Suzan Clarke would be a great read for those parents trying to find the right course on co-parenting. Here is the aticle:

How to Co-Parent Successfully When Your Relationship Is Over

Kids Benefit When You Get Over Your Anger for Your Ex, Terry Real Says
Terry Real offers parents dealing with difficult divorces parenting advice.
Celebrity couples are raising their children together, even though their own relationships are on the rocks. So can people raise kids together after a breakup?

Family therapist Terry Real appeared on "Good Morning America" to talk about the concept of co-parenting.

He answered some questions and offered advice for parents who are experiencing -- or who have experienced --a bad breakup.

Terry Real's Co-Parenting Tips

Think of divorce from a child's perspective. What's the worst thing about a parent moving away, aside from the hurt that causes? For a child, that is having to constantly move his or her things to one parent's house or the other, Real said. To effectively co-parent, both parents need to live near to each other so children don't have to travel too much or too far.

Establish a routine for the children. The children are already traumatized by the breakup of the family, so they need stability in their lives. Have the same rules in both houses, Real said. That means if a child can't watch TV in one parent's house after 9 p.m., that rule should apply in the other house.

Minimize differences in wealth. In a divorce situation, the spouse with the most money needs to be generous and ensure that the living arrangements in both houses are similar. It's not an act of generosity to your ex, but to your children, Real said. Large discrepancies in lifestyle create bad dynamics, because children may flock to the wealthier household, or they may feel guilty about the less wealthy one.

Don't be too friendly. Be clear that you are divorced. If you both show up at the kids' events, that's to be expected. But there is a difference between showing up at the same soccer game and getting together for dinner -- or sleeping over. Don't send mixed messages to your children, Real said.

If you truly dislike your ex, you have to get over it. Even if you had a terrible marital relationship, you can still rise to the occasion as co-parents, Real said. He urged parents not to overshare about their ex-spouse's faults to the children. Co-parents should treat each other as business partners.

Don't Vent in Front of the Kids

If parents are worried about issues of abuse or mistreatment, they should take those concerns directly to the other parent first, and go to the lawyers afterward.
Don't expect the relationship to improve after the divorce, he said. The issues that led to the split may still be there.
Don't vent your anger in front of the children. Save it for a friend or your therapist. Recognize that the co-parenting relationship is a marathon and not a sprint, and that you remain bonded for life through your children.

Monday, June 28, 2010

Child Custody: Consequences of Interference with Custodial Time

One of the most important aspects of successful parenting after a separation or divorce is ensuring that the children have quality and uninterrupted time with both parents. Quality time encompasses the development of a meaningful time share that is honored by both parents. Unfortunately, there are times a parent fails to understand their role as ambassador for their children: a parent may behave in inappropriate and harmful ways by frustrating the parenting time with the other parent and say and do things that negatively influence the child and damage the relationship between the child and the other parent.

The family law courts have zero tolerance for this kind of bad behavior. Over the last few decades, the courts have addressed parental alienation and time share frustration in a number of ways. Since the court recognizes the extreme importance that the child maintain a good and nurturing relationship with both parents, the court will issue orders to preserve that relationship.

Co-parenting counseling, counseling with the child and parent and other therapeutic interventions may be the best course to correct the situation. The family law judge has the power to issue these and other tailor made orders for the protection of the child and the preservation of child's relationship to the parents.

If the offending parent persists in this emotionally damaging conduct, More extreme measures can be implemented by the court which can include restricting the offending parent's time with the child and restraining orders on the parent's conduct.

In re Marriage of Hartmann (6/23/10) 2 Civ B215917, Div 6 (Gilbert) 2010 WL 2510383 is a recent published California family law opinion of how the court interprets inappropriate conduct and how to address the behavior in this case with restraining orders.

In this case the father asked the court to issue an order restraining mom from, among other things, “ ‘interfering with [father's] custodial time.’” In support of his request, father claimed that mom told the children “every detail of the trial,” after which the children told him that they believed that “he won because he lied on the stand,” that he sought joint custody so that he’d pay lower child support, and that he and mom could ignore the family law custody and school placement orders.

At hearing on these issues, both parents presented evidence. When the hearing ended,the trial court concluded that mom alienated the children from father by word, deed, and demeanor. Accordingly, the judge granted father's request for a restraining order. At a later hearing father filed a contempt, asserting that mom persisted in interfering with his custody time. Father claims that mom refused to tell him where one of his children was, and mom continued to talk to the children about attending boarding school when the court issued an earlier order allowing them to attend public school.

Mom moved to vacate father's restraining order, claiming that the order not to "interfere" with father's time was vague and ambiguous.The court denied her motion and again ordered mom restrained from interfering with father's custody time. Mom appealed and the appellate court held that the term “interfere” is not ambiguous and that the restraining order did not violate mom's right of free speech because other California family law cases establish that the family law court has the authority to restrict a parent's speech in order to protect children.

If a parent is denying visitation, saying harmful things to the children and /or in other ways frustrating the parent child relationship, the family law judge has the power to take action. Knowing what to say as well as when and how to present your custody issues to the court will control the outcome of the court's orders. For these reasons, it is critical that you have a skilled family law attorney on your side assisting you on bringing your case before the court.

Tuesday, May 18, 2010

California Child Custody: The Basics

California Child Custody Laws
Arlene D. Kock, Esq.

Who Gets Child Custody in California?

Like most states, the standard for child custody determinations in California is found in the Family Law Code and is designed to establish the overall best interest of the child with an emphasis on assuring the “health, safety, and welfare” of the child and “frequent and continuing contact” with both parents absent child abuse, domestic violence, or where the contact would not be in the best interest of the child as provided in the California Family Code section 3011 (See California Family Code Section 3011, 3020, 3040, 3080. Further, according to California family code section 3040, child custody should be granted in an order of preference and according to the best interest of the child.


If the child has been exposed directly or indirectly to domestic violence, then the court must design a custody plan to allow safe contact with the abusive parent. In some instances based upon the kind of abuse, the court will prohibit contact between the child and the abusive parent.

Many reasons may exist to place the child in a new custody environment or maintain the child’s current custody plan. The courts and judges are trying to steer away from the language used in the past designating one parent as a visiting parent and the other parent as the custodial parent. The way the judges and specialists in the field currently model custody definitions is to refer to both parents as having “parenting time”. This approach assists the parents in understanding that it isn't the quantity of time that is most important for the child’s well being but the quality of the time.


A common challenge for the court is to decide who will get custody of the child. Child custody may be petitioned by not only biological parents but by grandparents, stepparents, or any person who believes they can provide suitable care and guidance to the child.

According to California family code section 3040 child custody should be granted in an order of preference and according to the best interest of the child.

The court looks first to grant custody to both parents jointly or to either parent before looking to grant custody to other persons. California however does not currently establish a preference or a presumption for or against joint custody arrangements. Instead, if the parents are unable to come to an agreement on child custody and visitation it allows the California family court or California judge to make the parenting arrangement decision on a case-by-case basis according to what it believes reflects the overall best interest of the child and the specific circumstances affecting that child’s family system.

If neither parent is granted custody, then the court may look towards the person’s home in which the child has been living and the stability of that environment and then to any person deemed by the court to be able to provide appropriate care for the child. In short, the court will typically look to grant child custody first to the parents according the best interest of the child and if they are deemed unfit the court will then look to grant child custody to other persons according to the best interest of the child.


California Family Code Section 3040 states: (a) Custody should be granted in the following order of preference according to the best interest of the child as provided in Sections 3011 and 3020: (1) To both parents jointly pursuant to Chapter 4 (commencing with Section 3080) or to either parent. In making an order granting custody to either parent, the court shall consider, among other factors, which parent is more likely to allow the child frequent and continuing contact with the noncustodial parent, consistent with Section 3011 and 3020, and shall not prefer a parent as custodian because of that parent's sex. The court, in its discretion, may require the parents to submit to the court a plan for the implementation of the custody order. (2) If to neither parent, to the person or persons in whose home the child has been living in a wholesome and stable environment. (3) To any other person or persons deemed by the court to be suitable and able to provide adequate and proper care and guidance for the child. (b) This section establishes neither a preference nor a presumption for or against joint legal custody, joint physical custody, or sole custody, but allows the court and the family the widest discretion to choose a parenting plan that is in the best interest of the child.

As noted in the statute quoted above, the court shall consider, among other factors, which parent is more likely to allow the child frequent and continuing contact with the noncustodial parent.

If the judge finds that the parent with the current greater time share is sabotaging the parenting relationship of the other parent, the court may make an order to change custody to the other non-offending parent if the judge determines that this parent would be more responsible in insuring that the child has regular custodial visits.

Determining the best custodial placement of your children can be a life changing event for the children and the parents. To insure you and your children's legal rights, its always best to hire an attorney with extensive experience in this field of law.

Monday, May 3, 2010

DIVIDING DEBT: Be Sure Cover Everything in Your Judgment

When a spouse finally nears the end of the divorce process, one can typically sense completion, relief and fatigue. The last of the formal paperwork is being put together by the attorneys and everyone is postured to get the last documents filed with the court and on with their lives. However, this phase of a case can be the most critical of all: the proper completion of the judgment paperwork by the inclusion of all the assets and debts affecting the marriage.

If you overlook something in the agreement or not have the settlement language drafted in a way to thoroughly protect your legal rights, problems and resulting legal battles may lay ahead.

Lets look at a recent case entitled CMRE FINANCIAL SERVICES v Parton (4/29/10) 4 Civ DO55266: Wife was sued by a collection company for the post separation debts that husband incurred. The medical bills were listed in wife's petition for divorce and at the time of judgment, the court did not assign wife this debt.

CMRE sued both husband and wife for the debt claiming that the debt was the joint responsibility of the parties claiming that wife was still liable for the debt under Family Code 914 which holds a spouse can be held liable for the other spouses debts if they are deemed necessaries of life. Wife countered with Family Code 916(a)(2) which protects the spouse from the other persons debt if it is not assigned to the spouse in the divorce judgment.

The California Appellate court reversed the lower court decision that went against wife holding that Family Code 4302 (spouse is not liable for post-separation debt incurred for the other spouse's necessities of life unless the parties have so stipulated) and Family Code 916(a)(2) protect the wife from the debt collector's pursuit of the debt.

Better planning and draftsmanship of the judgment might have made a difference here. Adding specific language in the judgment to cement the debt as solely belonging to husband and by referencing the Family Code sections most relevant to this 3rd party debt collection problem might have made the creditor CMRE think twice about suing the wife.

Thursday, April 1, 2010

Emotional Problems Affecting Child Custody: Addictions

Parenting children in any given situation can be a difficult assignment. When the parents are faced with divorce, the parental responsibilities can take on a new and complicated dimension. If one adds to the experience of divorce a parent suffering from some form of addictive behavior, the parent-child relationship for that afflicted parent may require close supervision and limitations.

Child custody cases in California always focuses on what is in the best interest of the child(ren). For this reason, during the courts involvement in a child custody and visitation case,the family law judge is in a role of a de facto guardian of the child's best interest.

If a parent has emotional problems or addictions that can negatively impact the child and the parents relationship, the court will take steps to ensure that the child will be properly protected when the child has contact with the problem parent.

There are various addictions that can impact the safety and well being of a child. I am including some common examples to illustrate this problem and the means by which the court might deal with the problem.

GAMBLING: Typically viewed by the courts as a financial problem one can encounter in a divorce, this addiction can negatively impact a parenting relationship. If the parent with this illness allows gambling to be a primary recreational focus, children can be exposed to adult activities during their visitation time.

For example, taking the kids to the horse races for a Sunday outing could fall into the category of inappropriate parenting choices. Other examples of being driven by a gambling addiction would be spending long hours on gambling Internet sites and devoting minimal time to the child during scheduled visitation periods.

In cases like the ones described above, the judge might schedule a tightly structured visitation plan with an order prohibiting gambling while the child is in that parent's custodial care. The court may also order professional help such as counseling for the parent as a condition for continued visitation.

SEXUAL ADDICTION: This addiction has recently received a lot of press in high profile celebrity cases. The typical method of how this addiction may impact parenting rests with the likelihood that the child may be exposed to inappropriate adult behavior or pornographic materials.

A parent leading a promiscuous lifestyle such as having multiple sex partners, swing dating,and /or sex parties runs the risk of having very limited visitation with their child if that parent's behavior and lifestyle could expose the child to the parents sexual partners.

A family law judge may severely curtail a child's contact if a parent engages in viewing pornography and adult Internet sites. The concern here rests with the chance the child could be exposed to this conduct and pornographic material.

ALCOHOL and DRUG ADDICTION: These addictions can be the most difficult to manage in a child custody case. Parents with long standing substance abuse problems can be dangerous and unreliable parents. Even if the parent truly loves and wants to spend time with their child, the timeshare may be severely limited if the parent does not maintain sobriety. The family law judge will order counseling and proper rehab for the parent and expect full compliance with the courts orders if the parent expects to have a parenting relationship with their child.

Drug testing and reporting can be ordered by the court to ensure the addicted parent is clean and sober.Sadly, some custody cases end with the sober parent having sole legal and physical custody and the addicted parent having little or no time with the child if the addicted parent fails to maintain sobriety.

To get the best custody and visitation outcome, its always important to have a qualified attorney experienced in the field of family law assist you in bringing these parenting issues before the court.

Thursday, March 4, 2010

Emotional Problems and Child Custody: Hoarding

Any custody and visitation plan designed either by the parents or the court must always take into consideration the best interests of the children. One of the most complex areas of family law involves developing the best parenting plan where one of the parents suffers emotional or psychiatric problems.

If a parent with an emotional illness is receiving proper care and is stabilized, then custody and timeshare development goes smoothly. If the afflicted parent is not receiving care for their illness ,has gone off their medications or is not cooperating in their treatment, these events may lead to problems and safety concerns affecting the children.

Wikipedia defines Compulsive hoarding (or pathological hoarding or disposophobia or the Messie mindset) as a mental disorder marked by an obsessive need to acquire (and failure to use or discard) a significant amount of possessions, even if the items are worthless, hazardous, or unsanitary. Compulsive hoarding causes significant clutter and impairment to basic living activities, including mobility, cooking, cleaning, showering, and sleeping. A person who engages in compulsive hoarding is commonly said to be a "pack rat", in reference to that animal's apparent fondness for material objects.

Hoarding directly affects the health and safety of children visiting or residing in the residence. Dealing with this disorder may be complicated by the healthy parent not wanting to create turmoil intervening particularly if the child or children are protective of the afflicted parent. An example might be where a child living with the hoarder takes on the role of parent for the hoarder and the younger children. Any effort by the noncustodial parent to remedy the health hazards in the house or remove the children from the home might be met with resistance not only by the hoarder but the children.

In these situations, it may be best for the police and child protective services (CPS) to assess the situation and to intervene for the children's welfare. If the authorities feel its justified to remove the children from the home, the non-custodial parent can work with the agency in charge to take temporary possession of the children. If the children are given emergency placement with the the non-custodial parent, then it is wise for that parent to seek emergency protective orders in the family law courts as well as acquire physical custody of the children. The judge will have the power to issue orders to remedy the problem in the hoarder's home.

After you get into the family law courts, the judge can structure whatever orders are necessary to provide for the safety and well being of the child(ren). The court will normally require review dates to see if the hoarder is receiving the psychological care they need and that proper steps are taken to make the home clean and safe for everyone.

If the hoarder refuses treatment or is unwilling to rid the house of the dangerous accumulation of debris, the custody plan may radically change where the parent with the hoarding problem may only have limited and supervised visitation with the children at a location other than the home.

Hoarding is a very complex expression of mental illness. The parent suffering this disorder may need prolonged mental health treatment and supervision to insure that the house, now cleaned, does not return to its earlier condition.

Knowing you and your children's legal rights are critical to the proper determination of how best to deal with the development of a custody and visitation plan suited for the protection of the children. For these reasons, consulting with and retaining an attorney with extensive experience in family law will greatly assist you getting help from the courts and in the management of this complex custody problem.

Wednesday, March 3, 2010

Opinion: How to Teach Kids Money Matters - AOL News

Husbands and wives are not only ones in a family system that may have conflict over money and finances. Frequently, the marital conflict has to do with how money is being spent on or by the family children. I found a great AOL news article addressing the need to teach your children at an early age proper respect for and management of money.

Here is the relevant article:">Opinion: How to Teach Kids Money Matters - AOL News

Friday, February 5, 2010

PHYSICAL CUSTODY: Use it or Lose it!

Real time physical custody is an important determiner on where the child should live if a parent asking the court to allow them keep custody of the child elects to move.

The key case controlling move away cases In re Marriage of Burgess (1996) 13 Cal.4th 25 held in its decision that the trial court must have a review of the custody arrangement to ascertain the best interest of the child(ern) if a joint custodial parent objects to the move away of the child to another geographical area.

Keep in mind that having the "joint physical custody" language in a court order by itself does not control whether or not the court will review the child's residential change from the backdrop of what is in the child's best interest. There must be in fact a joint custody arrangement.

In a recent unpublished case, the California Appellate Court held that where a mother had a stipulated order awarding joint legal custody and had the child primarily with her until her relocation to another state, she was not entitled to take the child with her. In this particular case, mother moved to Hawaii leaving the minor child with her 24 year old son in CA. In 2008, father filed a motion for custody of the child and mother responded that she moved to Hawaii expecting the child to relocate with her.

The trial court determined that by leaving the child with her adult son, mother abandoned her role of primary caregiver. In this case,the child had been mostly in mothers care before her departure without the child for Hawaii.

Mother unsuccessfully tried to argue that since the child had primarily lived with her since 2003, father should not be entitled to a hearing on the child's best interests and that because she primarily had the child up to her departure to Hawaii, the court had to allow the child to go with her. Mother pointed to dad's stipulation that, in fact ,the child had been primarily living with mother since 2003 to support this position!

The appellate court supported the trial courts change of custody to the father because mom gave up her position as being the primary caretaker of the child by leaving the child with her adult son.

By having the child stay with her adult son, mom could no longer claim she was the primary custodial parent and that dad was not entitled to a hearing on the child's change of custody to his care.

What all of this really means is that each formal or informal change in a parenting relationship will trigger different legal outcomes if the parents dispute the custodial placement of a child. If you are contemplating a move or even a significant change in what you believe is visitation time, it is always best to consult with an attorney experienced in this complicated area of family law to better understand you and your child's legal rights.

Thursday, January 21, 2010

Child Custody: What if the move is to block visitation?

In one of my last blogs, I covered aspects of child custody when the greater time share parent plans on moving with the children. As noted, the court must take into consideration various elements including the child's best interests in the ultimate custodial placement.

To refine this point, I call the reader's attention a recent unpublished California Appellate Court decision worth one's reflection and review. As a cautionary note, keep in mind an unpublished opinion cannot be used as a definitive legal principle, however it can be helpful in assisting the courts, attorneys and ultimately the parties on the direction certain legal precedents may be heading.

Since every family law case and custody matter is unique to that individual family, interpreting this case and for that matter any case must be tempered by the reality that each case before the court will be decided on their specific needs, not just on what happened in some other case. With all this as a backdrop, lets look at the case known as Irpp of Oliver and Gaines-Unpublished opinion of District 2, Division 8 (filed December 22, 2009)

The facts of this case are as follows: The child was born in 2004 and always lived with mother. Father had no contact with the child for the first year and a half of the child's life. Father filed a petition for paternity and in a motion requested custody, visitation and support. Mother's response to the motion claimed father abused drugs.

In a hearing May 2006, the court held that father had almost no contact with the child in spite of mother's efforts to facilitate a relationship. The court also determined that the child has special needs and that father did not have the capacity to care for his son. There also was some concern over the allegations of father's drug use.

For these reasons, the court awarded mother physical and legal custody with a detailed visitation plan for father.

In November 2006, mother petitioned the court for permission to move to Houston TX. It should be noted that mother had never lived in Houston nor did she have family in that area. Mother claimed that the move would be to a better more affordable community.

Father objected to the move claiming that the move would impair his fledgling relationship with his child and consequently the request to move to the other state should be denied.

At hearing, the trial court determined that the move was inappropriate and was denied. The court reasoned that the child would be prejudiced by a move to Texas because:" at a distance, mother's tendency to look for loopholes will increase the likelihood of diminished contact with father". The trial court also noted that the expense of travel and father's limited financial means could put father in a position where he would just give up on trying to see the child due to those economic limitations.

Mother appealed and in the unpublished opinion, the court affirmed the lower court's decision to prevent the move noting that the court must consider when a parent requests to move the following factors:

1. The children's interest in stability and continuity in the custodial relationship.

2. The distance of the move.

3. The age of the children.

4. The children's relationship with both parents.

5. The relationship between the parents and their ability to communicate and cooperate effectively and their willingness to put the children's rather than their needs first.

6. The wishes of the children if they are mature enough to express them and such an inquiry is appropriate.

7. The reasons for the proposed move

8. The extent to which the parents currently are sharing custody.

In this particular case, even though father had not really started his parenting relationship with the child, the court felt keeping the child in California was the best chance that the needs of the child on developing a relationship with his father would be met.

To conclude, child custody and move away cases are extremely complex. Each fact pattern will be assessed differently by the judge to meet the needs of each case. For these reasons, getting legal representation from a highly skilled attorney with many years experience in the field of family law increases the chances of achieving your goals in developing the best outcome for you and your children.

Wednesday, January 13, 2010

Child Custody: Can You Move With the Kids to Get a Better Job or Find a Less Expensive Community?

The economy has caused many families to reconsider their current living situations. Record numbers of home foreclosures abound giving rise to the need to find new housing and, in some instances, different and less expensive communities in which to live and work.

When a custodial parent loses their job or must move, a companion issue may present itself. How far away can you move with the children?

The law in this area (commonly refered to "move away cases" )has evolved over the years. A century ago, the man was considered the head of the household and, in that role, was given free rein to pick up and move with his children wherever he pleased. To counter that, the courts typically awarded children to the mother under the 'tender years docterine': if the child(ren) were young, the courts would tyically award sole custody of the childern to the mother.

Much has changed since the early 20th century. Family systems regularly have both parents playing a significant role in parenting the children. In 1980, the California Legislature amended the Family Code to expressly declare it to be a policy of California to "assure minor children of frequent and continuing contact with both parents".

This law ,as well as the courts recognition of the psychological benifits of children having significant relationships with both mother and father, led courts to become more protective of the rights of a non-moving parent.

So, here we are today. Where does this area of law leave a parent that must relocate to live in a less expensive community or to find a new a job?

Courts today look at a number of factors in establishing how the custodial plan should play out with a move. The court must look at the child's interest in stability and continuity in the custodial relationship as well as practical considerations such as the distence of the move, the age of the child, the child's wishes assuming the child is sufficiently mature to have an informed opinion.

If the court feels that these parenting relations can be maintained, then the move would be allowed. However, if the court felt the move was too disruptive to the child's relationship to the non moving parent, the court may rule that the children should be in the custodial care of the non moving parent.

Consequently, courts have the broadest discretion and the courts orders are effectively not appealable since great deference is given to judicial discretion by the appellate courts.

If you are planning to move or are the parent facing a motion requesting that the other parent move away with the children, you and your childrens legal rights will be determined by the judge assigned to hear your case. Therefore, it is critical that in proceeding to court, you secure the best chance possible on a favorable outcome by having a skilled family law attorney represent you in this life changing legal matter.

Monday, January 11, 2010

Willful Failure to Pay Child Support Can Be a Federal Crime

As if it wasn't enough to be financially crushed by the worst economy in decades, if you are obligated to pay child support and willfully fail to do so, you can be on the receiving end of a criminal conviction.

Times are really tough. People are losing their homes due to foreclosure and seeing their jobs vanish due to a flattened economy that remains on life support. For those people obligated to pay support and haven't, there is the additional risk that they may suffer State or Federal prosecution if they are not paying their child support.

A recently published case on point United States v Davis (12/18/09) 8 Cir No. 08-3692(Riley) 2009 WL 4877587 determined that under the Child Support Recovery Act (CSRA) the government in prosecuting a parent for failure to pay child support need not show that the defendant was able to pay the total child support arrearage and willfully failed to do so but only that the defendant was able to pay part and willfully failed to do so.

In brief, father and mother separated in 1996. This relationship was a non marital relationship. Consequently,mother filed a request to establish fathers paternity and got a court order confirming he was the father of their two children as well as an order for father to pay child support.

Father seemed to always stay one step head of any income withholding order and kept changing jobs. By 2008, father owed over $52,000.00 in unpaid support. A federal Grand Jury handed down a two count indictment against father for violating CSRA for willful failure to pay his child support obligation. At the end of his trial, father was found guilty and sentenced to 2 years in federal prison and 1 additional year of supervised parole.

Father appealed the trial court ruling and sentence.The appellate court affirmed father's conviction. On review of the trial court proceedings, the appellate court felt the evidence was sufficient to establish willfulness because the defendant father could have paid more than he actually paid.

What does this all mean? The main message sent by the court is that if you owe any amount of support and fail to pay some if not all that you owe, then you could be convicted of a crime and face serious jail time.

If you owe support and can't pay it, take steps to work directly with the child support collection services to pay something on account of the support. If you are really in bad financial shape, you have to file a motion in the proper court to ask the judge to reduce your support payments and give you time to pay any arrearages.

Even though there is a cost for a skilled family law attorney to represent you on filing a motion to reduce support and negotiate support arrearages, the investment in getting the proper legal help may make the difference between freedom or jail. .

Tuesday, January 5, 2010

Staying Together for the Sake of the Economy (not the kids)?

I just read an interesting article concerning the shift in divorce rates that may be influenced by the economy. The AOL article by Barbara Bartlien claims that divorce filings have remained roughly the same in every single state in the 2006-2008 period. She acquired this piece of information from the Center for Disease Control National Center for Health Statistical Data.

She concluded that since the population is growing that the fact the divorces remain about the same suggests a big drop off in people ending their marriages. She goes on to point out that "divorce filings have been slashed by one-third in Massachusetts, Connecticut, and New York -- northeastern states with heavy exposure to the financial industry that has been battered by today's credit debacle."

Statistics are only as good as the interpretation applied to them. Some would interpret her findings a flawed in that the measure of successful or failed marriages (primary relationships) may or may not have a direct correlation with the actual number of divorce filings.

Marriages are not the only way people form committed partnerships. Many couples have elected to opt out of marriage for one reason or another yet live together, have kids and run their lives as a committed couple. I see a number of these relationships when they end as clients coming in to establish paternity and request child support from the family law courts.

I've observed the economy expand and contract over the last three decades and in that same time period witnessed the impact these events have on the stability of marital and other primary relationships.

Quite simply, a bad economy does not make a bad relationship any better.

It true that some couples may try to stay together in rough economic times but inevitably if the couple does not invest in trying to fix the relationship (if it can be fixed) then invariably, the relationship must end.

I have spent many hundreds hours counseling prospective clients and clients in bad relationships coming apart in bad economic times. Staying together for the sake of the economy, just like the fable of staying together for the sake of the kids ultimately does not work and in fact can create more problems when you finally get to the point of ending the relationship.

If you have kids in these situations, they suffer directly from the fighting that takes place in the house. Even if the parents think they have their emotions under wraps by speaking infrequently to each other in front of the kids and sleeping in different bedrooms, the children witness this and learn the worst about how to deal with conflict in an unhealthy relationship.

Even without kids, staying together invites the escalation of conflict, damaging management of community credit and resources and the likelihood that once you finally separate and go through the legal process, the hostility driving the separating couple will translate in more attorney fees being spent on getting the case and property issues under control.

Face the facts, if you know the relationship is at an end, do the proper cost benefit analysis that includes the emotional cost to you and to any children by prolonging a relationship that must end.