August 29, 2013

Child Custody Dispute Continues After U.S. Supreme Court Makes Its Ruling

watch-children-1415869-m.jpgLate this past spring, the U.S. Supreme Court ruled, in a 5-4 decision, that an American Indian child should not have been taken from her adoptive parents, a white couple with whom she had been living for the first 27 months of her life. The main issue in the case concerned an interpretation of a federal law intended to keep Indian families intact. The Supreme Court found that the law did not apply to this situation because the biological father relinquished his parental rights even before his daughter was born.

While this decision did not emanate from the courts in San Diego, the U.S. Supreme Court's decision would govern any case in the country under similar facts. This case presents a complicated child custody dispute, involving state and federal laws. Most child custody cases are chock full of serious issues and demands by the parents involved. It is vitally important to contact an experienced family law attorney to help navigate the local laws and court procedures.

Once the child was born, her biological mother agreed to allow a couple from South Carolina to adopt her daughter. Four months later, her biological father changed his mind and sought custody, arguing that he was not aware that the child's mother was planning to place her up for adoption. Citing the National Indian Welfare Act, the South Carolina Supreme Court ruled in favor of the biological father, awarding him custody of the child even though the couple was already in the process of adopting her. However, once the U.S. Supreme Court reversed the decision, the South Carolina Court ordered a family court judge to approve the child's adoption by the couple. The adoption was finalized on July 31.

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August 22, 2013

August is Child Support Awareness Month: Some Helpful Tips for San Diego Parents

man-woman-heart-5-1056041-m.jpgCalifornia Department of Child Support Services ("DCSS") reminds parents that August is Child Support Awareness Month. The DCSS supports programs to help parents be successful in supporting their children.

In California, child support is the amount of money that a court orders a parent or both parents to pay each month to help fund the support of the child (or children) and the child's living expenses. The state provides a formula (also known as a "guideline") for determining how much child support should be paid. It is important to understand that if the parents cannot come to an agreement on the amount of child support, the judge is authorized to decide the amount based on the guideline calculation.

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August 15, 2013

Music Mogul Usher's Ex-Wife Loses Emergency Motion for Custody of Their Children

happy-family-1389105-m.jpgAccording to widely publicized reports, Usher's ex-wife, Tameka Foster Raymond, filed an emergency custody motion with an Atlanta court seeking temporary custody of the couple's two children after their son almost drowned in a swimming pool. Just last year, Usher won primary custody of the kids after a bitter court dispute during which Foster Raymond made accusations that Usher was an absentee father. This past May, Foster Raymond filed for a custody modification, which had not been heard by the court prior to the swimming pool accident.

Parents who face child custody issues typically bring their case before a local family court. Anyone going through a custody dispute is encouraged to contact a local San Diego family law attorney who will work to achieve the best possible outcome for your family under the circumstances.

Despite the fact that Usher's five year-old son almost drowned while in the care of his aunt (at the direction of Usher), the court ruled that it did not amount to an emergency or crisis situation requiring that his two children be taken from him. The judge characterized the incident as "an awful accident," adding that no one person could have handled the situation better. The judge described the aunt as "a capable caregiver." In addition to this ruling, the court advised Usher to keep his ex-wife informed about his whereabouts and who is taking care of their children.

There are many factors to consider in any child custody case, especially one that involves a request for modification or an emergency custody motion. Under California procedure, once a judge issues a custody and visitation order, one or both parents may seek to alter the arrangement for various reasons. If both parents agree to the change, they may do so by changing the court order through an agreement. But if they cannot agree, one parent will be required to file papers with the court requesting a change (known as a "modification") of the current child custody order.

In order to modify a custody order, one must show that there has been a "change in circumstances" since the final order was rendered. Essentially, this would mean that there has been a significant change requiring a new custody and visitation arrangement in order to serve the best interests of the children. It is considered best for children to have consistent and stable child custody arrangements.

It is unclear whether Foster Raymond will have any success in her efforts to modify the custody order in Atlanta. We do know, however, that her emergency motion for temporary custody failed. Although this case did not take place in the San Diego court system, in most states, child custody orders will only be modified if the change would be in the best interests of the children. In any child custody proceeding, an experienced family law attorney who is familiar with the local rules and procedures will be able to provide the best possible approach to your family's case.

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August 8, 2013

Bill Pending in California Would Grant Sperm Donor Child Custody Rights Under Certain Circumstances

667713_-paper_family-.jpgFamilies come in all shapes and sizes. Thanks to technological advances and breakthroughs in medical science, families can now emanate from non-traditional methods. For whatever the reason, people may choose to become parents through alternative means, such as artificial insemination, in-vitro fertilization and adoption, among others. But with each procedure comes a whole host of legal and practical concerns to weigh and consider, including who is entitled to custody rights should a dispute arise. A local San Diego family law attorney can help parents anticipate and resolve any legal issues concerning child custody matters, with a focus on obtaining the best possible arrangement for you.

In widely publicized reports, the actor Jason Patric's custody dispute with former girlfriend, Danielle Schreiber, has inspired sperm-donor rights legislation in California. In 2009, Patric donated sperm as part of a fertility treatment that resulted in Schreiber becoming pregnant. He wants to help raise the child (who is now three years-old), but has encountered legal obstacles in attempting to gain partial custody.

State Senator Jerry Hill (D-San Mateo) introduced a bill that would allow courts to grant parental rights to sperm donors under such circumstances where the biological father has shown that he always intended to parent, did, in fact, parent - with the mother's consent - and never waived his parental rights. A Los Angeles Times article indicates that Patric and Schreiber disagree on the nature of their relationship and the extent to which Patric was involved in the child's life.

Critics of the legislation reportedly are concerned that the bill could "open the door to litigation by sperm donors" and lead to "male dominance." But others suggest that opponents of the bill do not fully understand the legislation, and in fact, may be doing a disservice to women and children. Many believe that the bill has been narrowly drafted, in that it only protects the relationship between a father and child when the father has assumed that role, acted as his child's father, and helped raise and care for him or her, with the mother's previous consent.

An overwhelming number of babies are born to unmarried mothers: statistics compiled by the Children's Defense Fund indicate that a baby is born to an unmarried mother every 19 seconds in the United States. Of course not all of these mothers conceived their babies via the help of a sperm donor, but for those that have, the legislation seeks to protect a child's ability to maintain a relationship with his or her father, if the child was conceived by artificial reproductive technology to unmarried parents.

Child custody cases are of supreme importance to the parents and children involved, as the outcome will likely impact the rest of their lives. Disputes over physical and legal custody have the potential to escalate, as both parents typically want to remain fully involved in their children's lives. In order to ensure that your rights and interests are protected to the greatest extent possible, it is important to consult with an experienced family law attorney as soon as a child custody matter arises.

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July 25, 2013

Husband Accused of Fatally Beating Wife After She Asked for Divorce - to Stand Trial

975584_broken_heart.jpgIn a San Diego courtroom, a judge recently ordered an Iraqi-American man to stand trial for killing his wife after she allegedly asked for a divorce. According to an article in the U-T San Diego news, the 32-year-old victim was fatally beaten in her California home. When the incident first happened, authorities believed that the murder was a hate crime because they discovered a note in the home that read: "Go back to your country, you terrorist." Naturally, the hateful message drew international attention and condemnation. But as the investigation continued, evidence revealed that her 49-year-old husband was unable to accept that his wife wanted a divorce and had allegedly reacted in a violent manner. Authorities ultimately arrested the man and charged him with a domestic violence murder.

At the pretrial hearing, the couple's 18-year-old daughter testified that she had gone with her mother to the courthouse to obtain divorce papers. She further mentioned that her parent's long-standing problems had deteriorated in 2012, and when her mother told her father that she wanted a divorce, he laughed. According to a recent news article, a judge in El Cajon ordered the husband to stand trial for the murder of his wife.

Domestic violence is a serious matter. In legal terms, it is the unlawful infliction of injury on the person of another. The victim may be a current or former spouse, a partner or a child. California domestic violence laws prohibit the use of physical force or threats to traumatize household members. Some of the common crimes of domestic violence include 1) corporal injury to a spouse or cohabitant; 2) domestic battery on an intimate partner, 3) child abuse and endangerment, and 4) stalking and criminal threats.

Under the law, acts of domestic violence include, 1) hitting or striking another person; 2) exerting force or violence, 3) cruel or inhuman punishment, 4) physical, emotional, or sexual abuse, 5) conveying criminal threats of harm, and 6) neglect or endangerment of another's health or safety. In some cases, the risk of domestic violence increases when a woman tells her spouse that she wants a divorce.

A person contemplating divorce may resist initiating the process for fear that once the spouse is informed of the decision, he could exhibit violent behavior. But there are ways to seek protection in advance. In California, family courts can grant spouses a temporary restraining order to prevent the perpetrator from approaching the home for a certain period of time. A permanent restraining order would require that the perpetrator remain at least 100 yards away from the home for up to five years and prohibits any contact whatsoever with the victim. There is a certain amount of proof or evidence one would need to provide in order to receive the order of protection.

In the case discussed above, it does not appear that the wife/mother sought any protection from the San Diego court system. If a person is considering divorce and has any concerns about a potentially dangerous situation involving another, it is important to get help as soon as possible. A local family law attorney could help to protect your safety and your rights.

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July 18, 2013

Celebrity Chef Nigella Lawson and Charles Saatchi Seeking "Swift and Amicable" Divorce

1108079_monthly_fee_5.jpgMost couples from San Diego enter into marriage with the expectation that they will be married for the rest of their lives. Over the ensuing years, married couples often have families, acquire property, incur debts, and share interests and experiences. Essentially, they share a life together - as intended. So when a couple makes the difficult decision to divorce, there are many issues and "loose ends" to tie up and settle. In an ideal world, the process would run smoothly, efficiently and with little or no strife. If you find yourself contemplating divorce, it is important to contact an experienced family law attorney who is fully knowledgeable in the local laws and court procedures and can help you navigate the process with as much ease as possible.

It seems that Nigella Lawson and her soon-to-be ex-husband are working toward the goal of a quick and easy divorce. According to a news article, the couple - each of whom is reported to be worth millions - intend to have an "undefended" divorce, and neither is expected to make a financial claim against the other. Media outlets have speculated that some widely publicized photographs of Saatchi with his hands around Lawson's throat during an argument may have led to the filing for divorce.

Saatchi said he was disappointed that his wife failed to make a public statement to explain that he opposes violence and never physically abused Lawson in any way. Another news source said Saatchi described the incident as a "playful tiff." But police reportedly issued Saatchi a "caution" after he allegedly admitted to the assault. After the extensive media coverage of the compromising photographs, it is no wonder the couple would like to expedite the divorce process as quickly and amicably as possible.

In California, when spouses seek to divorce, there are many issues to resolve, and working with an experienced family law attorney is one way to move matters along efficiently. Parties have to consider and address many matters, such as the division of marital property (identification and valuation), child custody and visitation (if the couple has children), and spousal and child support. In some instances, the law dictates how to handle and calculate these items. For instance, California law provides a set schedule for determining child support based on income. Parties have to keep in mind, though, that income can include finances received from a variety of sources, not simply a weekly paycheck. As for spousal support, there is no set schedule in San Diego County. Rather, judges rely mainly on court opinions, court orders and case law dating back decades.

Some additional issues to consider (to name a few): how long will you receive spousal or child support payments; who will be responsible for a child's medical insurance and expenses; who will pay for college; what if a custodial parent moves out of state; what is in "the best interest of a child" and who makes that decision? In order to obtain the best settlement for a client, the family law attorney will need to be experienced, prepared and fully apprised of the relevant procedures and local laws.

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July 11, 2013

Same Sex Couples Find Divorce a Long and Costly Process

1267479_broken_heart_pic.jpgJust last month, the United States Supreme Court paved the way for federal recognition of same sex marriages, by striking down Section III of the Defense of Marriage Act ("DOMA"). But while gay couples in San Diego and throughout California have found some welcome relief from the obstacles to getting married, many are reporting great difficulties when trying to get a divorce. Deciding to divorce is no easy decision. Irrespective of whether the couple is heterosexual or of the same sex, the ensuing process is typically fraught with high emotions and complicated procedures. An experienced family law attorney can help to anticipate the difficult moments and seek to protect your rights every step of the way.

According to a recent Huffington Post article, gay couples have reported that when seeking a divorce, courthouse staff do not know what to do. At least one person interviewed indicated that the extra paperwork alone delayed the divorce for an entire year. Of course, with lengthy delays one may typically expect to find an increase in costs and fees. Part of the confusion seems to be related to the issue of geography. If a gay couple is living in a state that does not recognize same sex marriage, in all likelihood one of the parties will have to move to a state that does, in order to dissolve the marriage.

In addition to the complicated matter of geography and varying state laws (or lack thereof), there is the question of when a gay couple's relationship started. Because of the changes that have taken place (and continue to occur) throughout the country, courts have not yet reached a consensus about when a gay couple's legal bond begins. Such ambiguity will surely lead to confusion over when, where and how to obtain a divorce, should it come to that.

Furthermore, the article suggests that a same sex divorce costs twice as much as one involving a heterosexual couple. And if the gay couple also has children, they will find the costs could be tripled. Unfortunately, it seems that it may take some time for states to enact laws that protect same sex couples who seek to divorce, affording them the same rights and privileges as heterosexual couples experience at that stage of their marriage.

Another person interviewed for the article suggested that couples, those specifically who live in states where same sex marriage is recognized, should consider preparing a pre- or post-nuptial agreement in an effort to protect their rights as much as possible. There is no guarantee, however, that the agreement will be enforceable. At this point in time, there seems to be an inconsistency in the way courts have approached and handled divorce proceedings involving gay couples.

In California, registered domestic partners have some options under the law. There is a way to enter into a summary dissolution, should the couple together meet all of the requirements. But it is likely that the laws will be evolving in California and throughout the country. An experienced, local family law attorney can help you to navigate the changing divorce landscape with confidence and ease.

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July 4, 2013

California Supreme Court Rules Pre-Marital Military Service Credit Not Community Property

1193021_dark_dollar_2.jpgCalifornia is a community property state. This mean that in places like San Diego, and in cities throughout the state, all assets (as well as debts) that have been accumulated during the course of a marriage should be divided equally in divorce. Identifying marital property and properly assigning value to such items is not always a simple task. There are times when the courts have to get involved to determine the extent of community versus separate property, and how it should be divided. Laws pertaining to the division of property upon divorce can vary from state to state. It is important to contact an experienced, local family law attorney who can protect and maximize your rights to a fair and just settlement.

In California, it is established law that retirement benefits attributable to service rendered during a marriage are considered community property, divisible equally in divorce. But as we can see in the recently decided Supreme Court decision discussed below, the matter concerning the extent or limitation of community property is not necessarily clear.

In this case, a husband rendered his military service before the marriage from 1982 to 1986. He began working as a firefighter in 1989. The Fire Authority participated in the California Public Employees‟ Retirement System (CalPERS), which afforded husband the option to purchase up to four years of service credit towards his retirement benefits for his military service. The couple married in May, 1992. During the marriage, husband exercised his right to four years' worth of retirement credit for his premarital military services. Husband paid for the additional credit at least partially with community property funds.

At issue before the court was how much, if any, of the value of the four additional years of credit is community property. In determining whether retirement benefits are separate or community property, the court looked at the husband's marital status when the services on which the benefits are based were rendered. The court agreed with the trial court's conclusion that because the husband's military service was rendered before the marriage, the four years of additional credit are the husband‟s separate property. The trial court ruling compensated the wife for her share of the community's interest in the property. The Supreme Court affirmed the decision, holding that the court acted within its discretion in awarding the wife one-half of the amount (plus interest) that the community spent to obtain the credit.

Identification, valuation and division of marital versus separate property can be complicated, and often is the cause of many unexpected disputes between divorcing spouses. Here are some items to consider: 1) will retirement accounts be part of community property; 2) are there business accounts; 3) has one spouse tried to hide assets in anticipation of divorce; 4) will a house be valued at purchase price or current fair-market value; and 5) are there joint loans that you will continue to be liable for after the settlement is reached?

Identifying all marital and personal property as part of a San Diego divorce case is critical to winning what rightfully belongs to you and securing the quality-of-life and financial well-being for you and your family.

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June 27, 2013

"Putative Spouse's" State of Mind As To Validity of the Marriage Is Applicable Under California Statute

1164097_couple_in_love_3.jpgWhile not a common occurrence, people do get married with the false impression that the marriage is valid and recognizable under state law. This can occur when one of the parties has been married before and did not officially and legally dissolve the union. As one can imagine, such a situation can present all sorts of problems down the road. Divorcing spouses in San Diego are encouraged to consult with an experienced family law attorney who can handle the process with confidence and ease.

One huge problem that can occur with a marriage that is void from the very start is when the surviving spouse seeks damages in a wrongful death lawsuit. In a very recent case, the California Supreme Court was presented with the issue of whether a "putative spouse's" good faith belief that she was married to the decedent at the time of his death, is to be reviewed from an objective point of view or rather, a purely subjective one. That is, does it matter what the surviving spouse personally believed as to the validity of her marriage, or are the courts expected to look at what an ordinary objective person would believe.

Under California law, a wrongful death action may be brought by a decedent's putative spouse, which is defined as "the surviving spouse of a void or voidable marriage who is found by the court to have believed in good faith that the marriage to the decedent was valid."

In this case, the couple first met in 1999 while the decedent was married -- but separated. He filed for dissolution of his marriage in 2001, and started living with plaintiff at that time. In 2003, the couple filled out a license and certificate of marriage. They marked a "0" in decedent's number of pervious marriages. Plaintiff signed an affidavit verifying the accuracy of the information, despite her awareness of his previous marriage. The marriage license was issued and they married on September 27, 2003. But the decedent was still married to his (original) wife at that time.

Three years later, the decedent died in a construction site accident. Plaintiff brought a wrongful death action against defendant-company asserting that she was his putative spouse. Defendant raised an affirmative defense challenging plaintiff's standing to bring the action based on her status as putative spouse, claiming that she did not have the required "good faith belief" that her marriage was valid.

The trial court ruled granted defendant's motion for summary judgment. But the court of appeal reversed, finding that plaintiff's subjective state of mind (if the court found it to be credible) could support a finding of good faith belief, establishing putative status. The Supreme Court affirmed, holding that the statute contemplates a subjective standard that focuses on the putative spouse's state of mind to determine whether or not she had a genuine belief in the validity of the marriage. In rendering this decision, the Court pointed out that the trial court erred in applying a "reasonable person test" - requiring plaintiff's belief to be objectively reasonable.

Divorce can be difficult and complicated. An experienced family law attorney can simplify the process enabling both parties to get on with their lives as quickly and painlessly as possible.

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June 20, 2013

Media Mogul Rupert Murdoch Pursuing a Quiet and Quick Divorce

1221952_to_sign_a_contract_3.jpgDivorcing spouses in San Diego would probably prefer a quick divorce to one that endures unnecessarily. But sometimes the strong emotions and potential bitterness between the spouses tends to prolong an already arduous process. There are ways to proceed that can help minimize or at least attempt to contain the proceedings so that both parties can move on with their lives as soon as possible. Of course, one of the ideal ways to work toward that goal is to consult with and hire and experienced family law attorney who understands the local laws and divorce court procedures.

According to news reports, Rupert Murdoch is attempting to dissolve his 14-year marriage to Wendi Deng Murdoch as quickly as possible. Experts speculate that Murdoch's choice of lawyer, and a slew of pre- and post-nuptial agreements, all point to a quiet divorce, with minimal drama. The attorney Murdoch hired has a reputation for settling divorces in a quiet manner, and much the same has been said of his wife's selection of attorney, who is also known for her reputation in keeping matters out of the public eye.

One method of anticipating some of the difficulties divorcing parties may face is to settle certain matters before the marriage even begins by signing a prenuptial agreement. In many cases, the person with the greater accumulation of wealth before the marriage is often the party who suggests signing a prenuptial agreement. Both parties, however, are expected to thoroughly review the document, with the help of counsel, to ensure satisfaction of the terms before signing. Not surprisingly, the Murdochs signed a pre-nuptial agreement in 1999. Reports indicate that Wendi Murdoch was represented by her current divorce counsel during the execution of that agreement. The couple also signed two post-nuptial agreements in 2002 and 2004.

In California, the Uniform Premarital Agreement Act governs prenups and sets forth some ground rules. For one, the law requires parties to wait seven days from the day they first see the prenup before signing the document. Additionally, a prenup cannot settle issues relating to child support or child custody, and it cannot mandate obligations of either spouse in non-financial matters. The two most important rules governing prenups are that a prenup must be in writing and it must be fair. In order to help ensure the fairness of the document, both spouses are encouraged to hire their own attorneys, who will represent each person's separate interests.

The Murdochs of course had their own attorneys at the time of signing their agreement, which, in all likelihood, will be upheld and enforced. It has been suggested that financial matters will all be settled according to those documents. The courts in New York, where the divorce was filed in this case, are known to view prenups in a favorable light.

Many people view prenuptial agreements as only necessary for wealthy couples. But that is not necessarily the case. Anyone with any amount of assets, including people with established careers and people remarrying, should give serious consideration to a prenup. Parties who are seeking information on the benefits of a prenuptial agreement are encouraged to consult with an experienced local family law attorney.

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June 13, 2013

Finding Hidden Assets Can Be a Big Part of Divorce Proceedings

1149867_army_of_dollars_1.jpgIt would be terrific if all divorcing couples in San Diego and throughout California were open and honest about their marital finances, namely, the assets to be allocated between the spouses. Because California is a "community property" state, all marital property, debts and assets alike, should be divided equally. But estranged spouses have been known to conceal or otherwise channel marital funds into unknown repositories, in order to avoid sharing the accrued marriage wealth. If you are contemplating divorce, it is imperative that you contact a local attorney with a great deal of experience assisting clients in securing the optimal divorce settlement.

A recent Bloomberg article recounts the many ways that business owners seek to hide money, in an effort to save on paying taxes. If and when this business owner -- and his or her spouse -- decide to divorce, the owner often continues this fraud to try to "shortchange" the estranged spouse when it comes time to divide the assets. In effect, the hidden money reduces the value of the business, which is, in all likelihood, part of the marital property to be split evenly.

Spouses who are not involved in business matters are, nonetheless, typically in a unique position to know the true value of a business. After all, even though a certain number is reported as the business owner's official salary, their lifestyle and other expenses may reveal that much more money is earned than is reported. One reporter indicated that many professionals find ways to "hide" income by either understating revenue or inflating their business expenses. In divorce proceedings, many businesses coincidentally see their profits drop drastically right around the time that the married couple decides to separate. It is suggested that judges have seen this occur time and time again.

There are many other ways that a spouse may attempt to hide property during a divorce: 1) delaying raises, stock options or bonuses until after a divorce is finalized; 2) waiting until after a divorce is finalized to sign lucrative financial, business or other contracts; 3) paying a friend, relative or business partner for services not rendered; 4) skimming cash from a business or personal account; 5) hiding valuable assets, such as artwork, antiques, or hobby collections; and 6) hiding investments or cash.

Despite a spouse/business owner's attempts to hide assets from an estranged spouse, there will usually be warning signs, such as a rich lifestyle, including expensive dinners and costly social engagements.

Identification of property is critical in a divorce case. Determining what is considered a marital asset, and identifying all assets to be considered, can have a dramatic impact on your case. It is also important to be aware that one spouse may attempt to empty a joint bank account or run up huge cash advances or credit card debt in preparation for a divorce.

Unfortunately, divorce has the potential to bring out the worst in people. The best course of action is to have an experienced attorney on your side to help vigorously protect your share of the marital assets, in an effort to achieve a fair settlement.

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June 6, 2013

In a California Divorce, Who Gets Custody of the Family Pet?

1421011_kitten_and_terrier.jpgIn San Diego, and in many cities throughout the country, pets are considered property, items to be allocated between the spouses much the same way other items of value are divided. Because California is a community property state, the couples' marital assets will be divided according to a 50-50 split. In most cases, the family pet would fall within that category. But, according to an article posted on the Animal Legal Defense Fund website, courts are beginning to intermittently acknowledge that a family's relationship with their pet may not adequately be categorized as "property" to be neatly assigned at the time of divorce. For assistance deciphering the local laws and climate of the courts in your jurisdiction concerning the handling of pets in a custody case, it is important to contact a local family law attorney to help clarify your potential rights.

The Humane Society of the United States reports that in 2011, there were approximately 78.2 million owned dogs and 86.4 million owned cats in the country. The data also indicates that 39 percent of U.S. households own a dog, while 33 percent own a cat. Further, we are spending great sums of money on the health and well-being of our pets: on average, dog owners spent $248 each year on veterinary visits, while cat owners spent $219 annually for routine vet visits.

As more and more people view their pets as part of the family, and in many cases, feel a strong emotional bond with their pets, it is no surprise that the courts have also begun to treat the custody of pets differently. As the law stands right now in California, courts would still consider a family pet to be community property, divisible at divorce. But because pets are becoming an even greater part of our lives, some courts have treated dogs like children, pondering what is in the best interest of the pets, in deciding who gets custody of them. According to one article, some courts have even awarded shared custody, visitation and support payments to the owners of the pets.

Most judges are extremely busy, with crowded dockets and serious matters to consider. Divorcing parties may be advised by their attorneys to settle the matter of pet custody ahead of time, so that their wishes can be finalized in the court order. If the parties cannot reach a mutually acceptable resolution, and a judge agrees to hear and decide the pet custody dispute, there are several factors which may be relevant: 1) whether one of the spouses owned the pet separately before getting married or whether they acquired the pet together, during the marriage; 2) who has been the primary caretaker of the pet over the years, that is, which party brought the pet to the vet, walked and fed the pet and spent the most time with the pet; 3) which spouse is the pet more attached to; and 4) if there are also children involved, which parent is going to receive primary physical custody of the children, who are most likely also attached to the family pet.

We seem to be on the cusp of some potential changes in the area of pet custody law - due to the evolving nature of our relationship with our pets and the willingness on behalf of many parties to fight for custody. But for the immediate time being, pets are considered property, to be divided between the spouses.

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May 30, 2013

In Ongoing Support Battle, Lakers' Steve Nash's Ex-Wife is Barred From Relocating to California

1015486_basketball.jpgThe divorce laws in San Diego may be different from those in Arizona, according to a recent article depicting the latest drama in the unfolding Nash-Amarilla family break up. Steve Nash's ex-wife, Alejandra Amarilla, currently lives in Arizona with the couple's three children. Nash successfully convinced a judge there to deny Amarilla child support, arguing that she already received millions in the divorce settlement. Under Arizona law, no child support is required if the adjusted incomes of both parents are relatively equal. There has been some speculation that if she moves to California, Amarilla would have another opportunity to seek child support from Nash from the local courts.

In most states, "child support" consists of the amount of money that a court orders a parent or both parents to pay each month for the child's (or children's) support and living expenses. California has a statewide formula (known as a "guideline") for determining how much child support should be awarded. Parents may first attempt to agree on an appropriate amount, but if they cannot, the judge will decide the child support amount based on the guideline calculation.

The guideline calculation takes into account the following items (among others): the amount of money the parents earn or have the ability to earn; any other income each parent receives; the amount of time each parent spends with the children; the number of children the parents have together; whether the children receive any support from other relationships; each parent's tax filing status; health insurance costs; expenses associated with daycare and uninsured health-care costs; and any mandatory union fees or retirement contributions.

In the Nash divorce, Amarilla is claiming that her ex-husband will not let her move to California so that he can avoid paying child support. Nash was granted a restraining order barring Amarilla from relocating with her children to Los Angeles. According to another news article, Nash previously convinced the Arizona divorce judge that his wife didn't need child support because the divorce awarded her millions and that she also receives approximately $30,000 per month. Amarilla is appealing the ruling. She has argued that Nash makes a million dollars more than her every month, and that he should be required to spend some of that money on their children. Nash claims to be paying 90% of the children's medical, school and extracurricular activities, as well as 82% of the nanny's salary. According to reports, Nash has said that his ex-wife spends money excessively, and if he is gives her more, she will spoil the children with too many luxuries.

The worrisome part of this widely publicized divorce proceeding is the effect it will have on the children. By battling with his ex-wife over child support payments and fighting to have her remain in another state with the children is sending a disturbing message.

In California, the guideline calculation system affords a somewhat predictable measure by which parents can estimate the child support payments that will be awarded. The best course of action in any divorce case in this state is to contact an experienced family law attorney who understands the intricacies of the local court rules and procedures.

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May 23, 2013

Reduction of Court Services in California Could Pose Risks for Victims of Domestic Violence

1330873_courthouse.jpgVictims of domestic violence in San Diego could face a situation that may be even more worrisome than threats from an abusive family member - that is, the inability to receive the necessary and immediate protection via the court system. According to a recent article appearing in The Sacramento Bee, the possibility of reducing funding to state courts means that the services will be cut back or eliminated. For victims of domestic violence, this creates an unthinkable dilemma: what if the courts, due to limited hours or possibly even closures, are unable to process a request for a restraining order in a timely manner, to ensure their immediate safety and protection? Domestic violence is a serious offense, one that requires prompt attention. If you or someone you know is involved in a domestic violence situation, it is important to contact an experienced family law attorney as soon as possible.

In California, domestic violence involves abuse or threats of abuse where the people involved have been in an intimate relationship, including those who are married, domestic partners, are dating or dated in the past, or live or lived together, or have a child together. Courts will also consider the abuse or related threats to be domestic violence if the abuser and the abused person are closely related by blood or by marriage.

The abuse can be manifested in many ways, such as: physically hurting or attempting to hurt someone, either with intent or in a reckless manner; sexual assault; threats of harm that make someone reasonably afraid that they will be seriously injured; or such menacing behavior as harassing, stalking, threatening, or hitting someone; possibly even disturbing someone's peace; or destroying another's personal property. It is also important to realize that abuse extends beyond physical actions -- it includes verbal, emotional, or psychological tactics as well.

Victims of such abuse may petition a local court for a domestic violence restraining order. This is a court order that helps to protect people from abuse or threats of abuse from someone they have a close relationship with. Victims who go to court to find some protection and relief need to know they will receive a rapid response with meaningful assistance. According to the article referenced above, it was typical for a court to attempt to process a temporary restraining order on the same day it was filed. Sometimes the abused person in a potentially explosive relationship cannot wait until the next day for help. Data indicates that victims are at a greater risk of being stalked, assaulted or even killed in the weeks immediately after moving out of the home or filing for separation or divorce.

A restraining order can require that the abuser stay away from you and your children and possibly other relatives, as well as require the person to comply with child support payments and to follow any child custody and visitation orders. It can be a life-saving tool for many people. Hopefully, the lawmakers will consider the vital needs of victims who rely on the courts for practical assistance.

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May 16, 2013

California's Highest Court Rules That Father's Sexual Abuse of Daughter Supports Finding That Sons Are Also Juvenile Dependents

1215912_paper_chain_in_the_dark.jpgIn San Diego, the juvenile court handles, among other issues, juvenile dependency cases. Juvenile dependency cases involve situations where there may be abuse or neglect in the home. It is the juvenile court's job to protect the children in the family. Domestic abuse aimed at children is reprehensible for many reasons, most notably because the relationship between parent and child is innately based on trust. Parents who are struggling with issues in juvenile court should consult with an experienced family law attorney who understands the local laws applicable to your case.

In a recent California Supreme Court case, In re I.J. et al., the father had custody of his five children: three boys and two girls. The Los Angeles County Department of Children and Family Services filed a petition with the juvenile court alleging that the father sexually abused one of the daughters for a period of three years. The court determined that all five children - daughters and sons -- were dependents of the juvenile court under Section 300 of California's Welfare and Institutions Code. The kids were removed from the father's home. He appealed.

While the court of appeals unanimously agreed with the juvenile court's determination that the daughters were dependents of the court, it was divided on the issue of whether the sons should also be taken away from the father's care without additional evidence. The Supreme Court granted the father's petition for review of whether the sexual abuse of one daughter supports the decision to declare the sons to be dependents of the court.

Under Section 300 of the Welfare and Institutions Code, the juvenile court is given the authority to determine when a child is to be a dependent of the court. There are many factors the court can consider, such as whether the child has suffered, or is at substantial risk of suffering serious physical harm or illness; the child has been sexually abused or there is a substantial risk that the child will be so; and whether the child's sibling has been abused or neglected and there is a substantial risk that the child will be also.

The court pointed out that there does not have to be evidence that the sibling actually be abused or neglected before the court can assume jurisdiction over the child, just that there is a substantial risk. The court thoroughly reviewed decisions within the state's appellate courts and found conflicting decisions on the matter.

The Supreme Court ultimately agreed with the decision below, holding that there was sufficient evidence to support the juvenile court's dependency ruling. In so holding, the court reiterated the lower court's characterization of the father's behavior as "aberrant in the extreme." Such behavior indicates that the parent "abandons and contravenes the parental role" - which, the court said, justifies an interruption of parental custody.

Domestic violence is the unlawful infliction of injury on another person. The victim may be a child, as in this case, a former spouse, or partner. Domestic violence cases are serious and require prompt and proper attention. Contacting a local attorney to advise you on the applicable laws and legal requirements is essential.

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