Family Law Archives - Page 18 of 35 - Lonich Patton Ehrlich Policastri

Grandparents Have Rights Too: Grandparent Visitation

November 11, 2016/in Family Law /by Mitchell Ehrlich

The relationship between a grandparent and a grandchild can be one of great happiness and importance for both the grandparent and grandchild. However, sometimes events such as divorce or a parent’s death may strain loving relationships between grandparents and their grandchildren. As a result, the grandchild’s parent(s) may block any further contact with grandparents. However, all 50 states now have some type of grandparent visitation law that allow grandparents to ask the court to give them the legal right to maintain their relationships with their grandchildren.

In California, a statute grants visitation rights to grandparents only when they have a preexisting relationship with their grandchild “that has engendered a bond such that visitation is in the best interest of the child.” Cal. Fam. Code § 3104. In addition, the statute directs the court to balance the interest of the child in visitation with his or her grandparent against the right of the parents to exercise their parental authority. Id. Finally, the statute provides a rebuttable presumption that grandparent visitation is not in the best interest of the child if the parent objects.

However, in a recent case, Stuard v. Stuard, the Third District found that even though Family Code section 3104 provides a rebuttable presumption that grandparent visitation is not in the best interest of the child if the parent objects, the parent’s right is not absolute. Stuard v. Stuard (2016) 244 Cal. App. 4th 768. According to the Stuard court, the law “reflects a legitimate state interest in preserving an already existing grandparent-grandchild relationship that is threatened but in the best interest of the grandchild to safeguard.” In other words, even though there may be rebuttable presumption, it may be overcome. The grandparents will need to show in some detail what it is that they add to the grandchildren’s lives, not just a general statement that they have a close relationship with the children and that continuing that relationship is in the best interest of the child.

In a time when families are constantly changing, grandparent visitation laws have become increasingly significant. If you have any questions about grandparent visitation and would like to speak to an attorney, please contact Lonich Patton Erlich Policastri for further information. Keep in mind that each individual situation is unique and results discussed in this post are not a guarantee of future results. While this post may include legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.

Smith/Ostler Order: Accounting for Bonus Income’s Impact on Support Payments

October 19, 2016/2 Comments/in Family Law /by Virginia Lively

When calculating spousal or child support, courts look to a wage earner’s monthly income to determine an appropriate support amount. However, what if the wage earner spouse or parent receives bonus income in the years after the initial support order is entered? Support orders can be altered, but the process involves a court room, lawyers, and more legal fees. In re Marriage of Ostler & Smith offers an alternative answer—the Smith/Ostler order.

A Smith/Ostler order takes into account a spouse or parent’s unearned or prospective income, detailing when and how any future, additional earnings should be incorporated into a support order. However, because bonus income is prospective only, it may never be realized. Calculating support based off an unknown and/or unguaranteed dollar amount can underestimate or inflate a support order. Therefore, to account for the speculative nature of bonus payments, courts deal in percentages.

For example, in the seminal In re Marriage of Ostler & Smith case, the court awarded Wife 15 percent of Husband’s future cash bonuses. If Husband received a bonus, he would give 15 percent of whatever amount he earned to Wife, but if Husband did not receive any cash bonuses, he would not pay additional support. Importantly, the original support order would remain intact, and the parties would not need to argue over how much of the bonus income the supported spouse should be paid—the court order took care of those details and created a more easily administered support order.

In addition to cash bonuses, a Smith/Ostler order can account for future stock option income. For example, in In re Marriage of Kerr, Wife and Husband, while married, improved their standard of living by exercising stock options that had increased in value. Subsequently, during divorce proceedings, the court award Wife, through a Smith/Ostler order, a percentage of Husband’s income from any future exercise of those same stock options.

However, In re Marriage of Kerr presented an exceptional case where an additional measure besides a percentage amount was necessary to ensure that Husband’s spousal support order was not inflated. The value of Husband’s stock had increased exponentially after he divorced Wife. A specified percentage of the stock’s value would have increased Husband’s payments to a point that far exceeded the marital standard of living he shared with Wife. Thus, the court concluded that under special circumstances, such as the case at hand, use of a Smith/Ostler order is permissible only if the court caps the amount of future income a spouse can receive at a number proportionate to the martial standard of living.

If you are considering a divorce or legal separation and would like more information about how either action may affect your finances, please contact the experienced family law attorneys at Lonich Patton Erlich Policastri. We can help you understand and manage any spousal or child support issues that may arise.

Lastly, please remember that each individual situation is unique, and results discussed in this post are not a guarantee of future results. While this post may detail general legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.

Sources:

In re Marriage of Ostler & Smith (1990) 223 Cal.App.3d 33

In re Marriage of Kerr (1999) 77 Cal.App.4th 87

Mediation: Taking control of your divorce

October 10, 2016/in Family Law /by David Patton

The underuse of the mediation process seems to be largely attributable to the fact that many people are unaware of what a mediation session is and how beneficial it can actually be. In family disputes, mediation can be extremely rewarding, saving parties time, money and sanity.

The rules of mediation: you create them

In mediation, parties are not bound by many of the rules that govern judges’ decision making. As a result, parties can reach solutions that might not otherwise be available from a court. For example, if there is a dispute over child support or child custody, rather than having a judge decide the amount of support or amount of visitation based on guidelines and factors required by statute, parties are free to negotiate an amount or time deemed reasonable to both.

The outcomes: you decide them

In mediation, you are free to discuss with your spouse what is important to both of you and try to reach a mutually acceptable agreement. It differs from litigation in that parties avoid the uncertainty, time and stress associated with going to trial. Parties are able to hear and understand the other’s point of view and with the guidance of a mediator, this enables parties to reach a middle ground . Because the mediator does not have the authority to make decisions, it is ultimately the parties making their OWN decisions over their OWN lives.

However, a good mediator should have some family law experience and be able to offer practical guidance to the parties. A mediator with family law experience can offer parties insight as to what might and might not be granted in court, ensuring that no request is unreasonable or disadvantageous to the other spouse. This can make the mediation session much more productive.

Progress: in the mediation room and beyond

Lastly, even if you don’t settle all your divorce issues, chances are you did resolve some. Even having resolved one issue is progress. Further, the tenants of mediation promote cooperation and communication. Thus because parties are provided the opportunity to resolve their own case, mediation tends to reduce hostility and preserve ongoing relationships.

While divorce mediation works in many situations, it is not always appropriate. Litigation is often the best option in situations where there is domestic violence, one party refuses to cooperate in making required disclosures, or communication between the parties is impossible. If you have any questions about divorce mediation and would like to speak to an attorney, please contact Lonich Patton Erlich Policastri for further information. Keep in mind that each individual situation is unique and results discussed in this post are not a guarantee of future results. While this post may include legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.

Understanding the Spousal Fiduciary Duty

September 9, 2016/in Family Law /by Gretchen Boger

Marriage prompts a lot of change—last names, bank accounts, estate plans, housing—but one of the most important changes that arrives once you say “I do” is a fiduciary duty to your new spouse. Fiduciary duty may sound like a term reserved for the boardroom, but a broad fiduciary relationship exists between married spouses as well.

At the most basic level and as prescribed by California Family Code § 721, spouses possess a duty of “the highest good faith and fair dealing,” and “neither spouse shall take any unfair advantage of the other.” Further, the spousal fiduciary duty includes “the same rights and duties of nonmarital business partners” as outlined in the California Corporations Code. Although the Corporations Code uses business-centric language, the Family Code incorporates partner-based duties and applies them to spouses. Thus, spousal fiduciary duties include: 1) allowing access to transaction books, 2) providing full and true information about any community property, and 3) an accounting of any benefit derived from any community property transaction by one spouse without consent of the other spouse. Additionally, spouses owe each other a duty of loyalty—spouses must refrain from dealing with each other as an adverse interest and must refrain from competing with each other—and a duty of care.

Returning to the Family Code, Section 1100 details the fiduciary duties that accompany the control and management of community property. Of note is subsection (b): “a spouse may not make a gift of community personal property for less than fair and reasonable valuable, without the written consent of the other spouse.” In other words, even when giving a community fund-purchased gift to his/her children, a spouse needs the written consent of the non-purchasing spouse. Typically, a nonconsenting spouse is unlikely to challenge holiday and birthday gifts given to his/her own children, but that spouse does have the legal ability to void the gift and receive compensation for its value—an issue usually raised during a separation or divorce proceeding.

Importantly, even after spouses separate or file for divorce, they still owe a fiduciary duty to one another—until all assets and liabilities have been officially divided, spouses must act with respect to each other and fully disclose all material facts and information regarding community property or debts.

Ultimately, most spouses don’t actually keep (or legally, even have to keep) detailed transaction books in the manner expected of business partners, nor do most spouses actually ask for formal consent before making routine purchases, but it is important to note that unilateral transactions could be used as ammunition in a separation or divorce proceeding. Therefore, if you are pondering a large purchase or gift, it is wise to document the process, seek the written consent of your spouse, and/or use your own separate property to make the purchase.

If you would like more information about the fiduciary duty you owe to your spouse, please contact the experienced family law attorneys at Lonich Patton Erlich Policastri. From pre-nuptial agreements to divorce proceedings, we can help you understand how the spousal fiduciary duty plays a role in your marriage.

Lastly, please remember that each individual situation is unique, and results discussed in this post are not a guarantee of future results. While this post may detail general legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.

Sources:

California Family Code § 721

California Family Code § 1100

How SB 1255 (the “anti-Davis legislation”) Will Impact Your “Date of Separation”

August 29, 2016/3 Comments/in Family Law /by Mitchell Ehrlich

Currently divorcing spouses or couples considering divorce better consult a lawyer soon—a newly enacted statute has changed the method by which California courts determine a married couple’s “date of separation.” On July 25, 2016, the governor of California, Jerry Brown, signed SB 1255 (aka the “anti-Davis legislation”), a bill which amends California Family Code § 771 and adds section 70 to the Family Code. As a result, the existing standard that governs a married couple’s “date of separation” has been changed. Previously, Family Code § 771 instructed that spouses were not separated until they were “living separate and apart”—a phrase which courts interpreted to mean “living in separate residences.” With the passing of SB 1255 though, spouses may now be considered “separated” even if they share a common residence.

A couple’s legal “date of separation” is important because it determines the point at which a spouse’s earnings and accumulations are no longer considered “community property” and instead, are considered a spouse’s own “separate property.” In turn, the difference between community and separate property is important because absent a written agreement stating otherwise, all community property must be evenly divided between divorcing spouses.

SB 1255’s nickname—the “anti-Davis legislation”—came about because of the case its creation abrogates: In re Marriage of Davis. In July 2015, the Davis court held that “living in separate residences ‘is an indispensable threshold requirement’ for a finding that spouses are ‘living separate and apart,’” or in other words, for determining a “date of separation.” However, the Davis court didn’t create new law—it merely affirmed what it believed was the California legislature’s intention when it coined the phrase “living separate and apart” many years ago.

To ascertain the legislature’s intent, the Davis court had to do go back 146 years to 1870 when the phrase was first used in a statute that protected the rights of married women. Similarly to section 771, the 1870 Act did not define “living separate and apart.” However, according to the Davis court, section four of the 1870 Act suggests that the legislature intended for the phrase to require separate residences: a wife, who was “living separate and apart” from her husband and wished to sell her real property without joining her husband, had to record a declaration that included a description of “her own place of residence” and a statement that “she is a married woman, living separate and apart from her husband.”

Additionally, when the California legislature repealed a number of Family Code sections in 1969, it created a new statute (section 5118) that reproduced the 1870 Act language. Once again though, the legislature provided no specific definition of “living separate and apart.” The Davis court reasoned that the legislature’s continued use of the phrase—without defining it—expressed its satisfaction with earlier judicial interpretation of the language.

Further, the Davis court also relied on a notable 2002 case—In re Marriage of Norviel—which concluded that “living apart physically is an indispensable threshold requirement to separation, whether or not it is sufficient, by itself, to establish separation.” Therefore, relying on legislative history and case law, the Davis court affirmed the Norviel holding—spouses had to live in separate residences before they could be considered separated.

While the Norviel and Davis courts may have correctly discerned the original meaning of “living separate and apart,” our modern legislature took issue with their holdings and in response, passed SB 1255. The bill expressly abrogates Norviel and Davis, and rather than provide a specific definition for “living separate and apart,” the legislature did away with the phrase all together. Instead, section 771 (the modern statute that contained the disputed language) now uses the phrase “after the date of separation” to determine when a spouse’s accumulations and earnings transition from “community” to “separate” property. In turn, newly added section 70 defines “date of separation” as a “complete and final break” that is evidenced by two factors: 1) a spouse has expressed his or her intent to end the marriage to the other spouse, and 2) the conduct of the spouse is consistent with his or her intent to end the marriage. Further, section 70 requires that a court look at all “relevant evidence” when making the above determination.

This statutory change was spurred on by Senator John Moorlach (R-Costa Mesa), the author of SB 1255. He believed it was necessary to change the Family Code language because many spouses wish to separate legally in order to protect their personal finances, but also, wish to continue sharing a residence in order to save costs during their divorce. Thus, SB 1255 should better reflect the reality of modern divorce experiences.

While the amended Family Code sections do provide clarity and allow couples more post-separation flexibility, it is important to note that SB 1255 may not be the end of legal disputes about separation dates—in the coming years, case law will further refine section 70. Additionally, couples in the process of a divorce should not let SB 1255 pass by them unnoticed because when the new law goes into effect on January 1, 2017, it may retroactively apply to any cases pending on that date, but this issue still needs to be resolved and addressed by the Family Courts in California. Look for another blog post on this topic specifically. However, consulting now with your attorney to develop a “date of separation” strategy is in your best interest.

If you are considering a legal separation or divorce, please contact the experienced family law attorneys at Lonich Patton Erlich Policastri—we can help you navigate the effects of SB 1255 and answer any questions you may have about how the new law will impact your divorce. The sooner you understand how SB 1255 will affect your current or impending legal plans, the better you can prepare for the new rule when it goes into to effect on January 1, 2017.

Lastly, please remember that each individual situation is unique, and results discussed in this post are not a guarantee of future results. While this post may detail general legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.

Sources:

2016 Cal. Legis. Serv. Ch. 114 (S.B. 1255)

In re Marriage of Davis (2015) 61 Cal.4th 846

In re Marriage of Norviel (2002) 102.Cal.App.4th 1152

The More the Merrier?: When a Child Can Have More than Two Legal Parents

August 5, 2016/in Family Law /by Riley Pennington

Traditionally, when multiple parties would claim to be a child’s parent, a court could only recognize two of those claims. However, family matters are rarely so simple, and a recent California case has reaffirmed what subsection (c) of Family Code Section 7611 provides: “[i]n an appropriate action, a court may find that more than two persons with a claim to parentage under this division are parents if the court finds that recognizing only two parents would be detrimental to the child.” “Detrimental to the child” is determined by (but not limited to) the “harm of removing child from stable placement with a parent who fulfills that child’s physical and emotional needs and has done so for a substantial period of time.” Importantly, a finding of detriment does not require that a court find any other parentage claimant to be unfit.

In April 2016, the California Court of Appeal for the Sixth District elaborated on Section 7611. In Martinez v. Vaziri, the petitioner was the child’s biological uncle, the respondent was the child’s mother, and the child’s father was the petitioner’s half-brother. Petitioner and Mother had been in a long-term relationship when Mother conceived a child. However, DNA testing revealed that the child was fathered by Petitioner’s half-brother. Father abandoned Mother during her pregnancy, and since the child’s birth, he has been in-and-out of jail.

Aware that he was not the father, Petitioner raised the child as his own—he accompanied Mother to her doctor’s appointments, was present at the child’s birth, and lived with and cared for the child during her first six months of life. Even after he moved out of Mother and Child’s home, Petitioner continued to see Child three days and two to three nights a week. Eventually, Petitioner initiated proceedings to establish legal parentage.

Although the trial court denied Petitioner’s parentage claim, the Court of Appeal remanded the case for reconsideration of detriment to the child in light of its interpretation of “stable placement.” The trial court had concluded that even though Petitioner established himself as the presumed parent of Child, there was no threat of Child’s “stable placement” being upended because Petitioner had already spent substantial time apart from Child while he attended a drug rehabilitation program.

The Court of Appeal found the trial court’s interpretation of “stable placement” to be lacking and remarked that the phrase is in reference to a parent’s physical and emotional attention to a child’s need. Therefore, the critical distinction is not the living situation, but rather, whether a parent-child relationship has been established, and whether the claimant has demonstrated a commitment to the child.

Thus, as Martinez v. Vaziri demonstrates, a child is not limited to two parents. If a third claimant can prove a sincere and stable commitment to a child (a still demanding standard), a court has the ability to protect the alternative parent-child relationship—without penalizing the child’s other biological or presumed parents.

Establishing parentage is important for both parents and children; however, multiple parentage claimants can complicate the process. If you have questions about the parentage of your child or are interested in establishing legal parentage, please contact the experienced family law attorneys at Lonich Patton Erlich Policastri to help you sort through your and your child’s rights.

Lastly, please remember that each individual situation is unique, and results discussed in this post are not a guarantee of future results. While this post may detail general legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.

Sources:

1) Cal. Fam. Code § 7612(d)

2) Martinez v. Vaziri (2016) 246 Cal.App.4th

Alternative Custody Schedules: Bird’s Nest Custody

July 7, 2016/in Family Law /by David Patton

Divorce is always difficult—especially when children are involved. Consequently, there will never be a “one size fits all” approach to child custody. Traditional custody arrangements (sole, every other weekend, etc.) may work for some families, but others may benefit from an alternative schedule. Enter: bird’s nest custody. Bird’s nest custody is an alternative method of child custody where the children remain in the marital home, and it is the parents who make scheduled moves between residences. More specifically, one parent will move into the marital home (aka the “nest”) and take care of the children for a period of time while the other parent lives in his or her own individual home or stays with family and friends.

Bird’s nest custody is not right for every family, but it can be beneficial, even as a short-term, transitional solution, when the parents voluntarily consent to the arrangement and are able to communicate respectfully with one another. In return, children can acclimate to their parents’ divorce in a familiar environment, maintain accustomed to patterns of interaction with their school and friends, and be spared the emotional and logistical hassle of regular house switches. Additionally, parents who are not ready to sell the marital home–especially if the housing market is down—can hold off on that step until circumstances are more financially favorable.

Bird’s nest custody is not without a downside—namely, it is expensive. Instead of maintaining two homes, a family must maintain three homes. Parents can try to maintain only two homes by sharing the “off home” as well, but couples must be realistic about their ability to navigate the physical and emotional logistics of two shared residences. Additionally, some couples may not benefit from stalling the sale of the marital home—everything inside the house and the house itself are key pieces of a divorced couple’s property settlement. Without selling the home and its assets, reaching an agreement about the distribution of community property may be difficult.

Psychologically, issues arise for both children and parents. First, bird’s nest custody may leave children, especially young ones, confused about whether or not their parents have truly split. Second, parents may have trouble moving on if they maintain such strong ties to their marital home. Ultimately, a clean break may benefit children and parents more than the environmental stability that results from nesting.

Lastly, most real life attempts to implement bird’s nest custody are not successful. Seldom are divorced couples willing or able to make the approach work—ex-spouses do divorce for a reason! The aim of bird’s nest custody is to reduce a child’s stress, and if the approach leads to more tension and more arguments between the parents, the process will not benefit anybody in the family. Additionally, changes in an ex-spouse’s romantic status usually complicate the arrangement—even if new partners don’t mind moving between residences, rarely would a parent feel comfortable welcoming his or her ex-spouse’s new partner into the “nest.” Moreover, the situation is fairly impossible to implement if a spouse or new partner has children from a previous relationship.

Ultimately, successful implementation of bird’s nest custody requires clearing quite a few hurdles, but the approach demonstrates that alternative and creative custody arrangements do exist—families should not feel bound by traditional custody schedules.

If you are interested in learning more about bird’s nest custody or other alternative custody schedules, please contact the lawyers at Lonich Patton Erlich Policastri—an experienced family law lawyer can help parents craft the best custody arrangement for their children and themselves.

Please remember though that each situation is unique, and results discussed in this post are not a guarantee of future results. While this post may detail general legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.

Source: Michael T. Flannery, Is “Bird Nesting” in the Best Interest of Children?, 57 SMU L. Rev. 295, 297 (2004)

Going to California, The Quasi-Community Property State

June 27, 2016/in Estate Planning, Family Law /by Michael Lonich

A move to the Golden State has the potential to change the character of your property. Upon arrival in California, meeting with an experienced California estate planning attorney is a must!

Generally, there are two kinds of property systems: community property and separate property. California is one of nine community property regimes in the United States.* Presumptively, community property is all property acquired by a couple during marriage. The community property system gives each spouse a fifty percent (50%) interest in the property, among other characteristics. In California, separate property is all property owned by a person before marriage and all property acquired by gift, bequest, or devise during marriage.

California’s community property system is unique because it also recognizes “quasi-community property.” Quasi-community property includes all property, wherever situated, that would have been treated as community property had the acquiring spouse been domiciled in California at the time of acquisition. For example, if husband bought a car with funds earned during marriage, while living in Minnesota, a separate property state, the property would be the husband’s separate property. However, if husband and wife moved to California and then filed for divorce, the car would be considered quasi-community property. The reason being is that if the husband was domiciled in California at the time he had purchased the car, it would have been characterized as community property. Pursuant to California law, all property acquired during marriage, including a spouse’s earnings, is community property. Therefore, in accordance with the quasi-community property statute, each spouse would have a fifty percent (50%) interest in the car.

The example above is just one of many that may give rise to quasi-community property. Nonetheless, it illustrates the potential effect a move to California can have upon one’s property. Moreover, each state has the authority to make its own property laws. Therefore, it is imperative that when you move to a new state, especially from a separate property state to a community property state, you visit an experienced estate planning attorney.

For more information about quasi-community property or estate planning in general, please contact the experienced estate planning attorneys at Lonich Patton Erlich Policastri for further information. The attorneys at Lonich Patton Erlich Policastri have decades of experience handling complex estate planning matters, including quasi-community property issues, and we are happy to offer you a free consultation. Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results. While this post may detail general legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.

*https://www.irs.gov/irm/part25/irm_25-018-001.html

How to Establish a Child’s Parentage

June 17, 2016/1 Comment/in Family Law /by Gina Policastri

When a child is born to a married couple, California law automatically establishes both spouses as the child’s parents. However, while nonmarital births peaked in the late 2000s, four out of every ten children are still born to unmarried women.* Additionally, nonmarital births are increasingly likely to occur in cohabiting unions. Yet, even when born to a cohabiting (but unmarried) couple, a child’s parentage is not automatically presumed—he or she will not automatically receive the same benefits that a married couple’s child will receive. As a result, it is very important that unwed parents legally establish their child’s parentage.

Establishing parentage is important for the parents and the child because it entitles all parties to a host of legal rights and privileges: child support, legal identification documents, both parents’ names on the child’s birth certificate, access to family medical records and history, health and life insurance coverage, the right to inherit, and the right to receive social security and veteran’s benefits. Additionally, once parentage is established, a court can make orders concerning the above listed rights and privileges and concerning child custody, visitation, name changes, and expense reimbursement.

The parentage of a child born to an unmarried couple can be established by either 1) a voluntary signing of a Declaration of Paternity, or 2) a court order. First, a Declaration of Paternity can be signed by both parents once the child is born. The form can be signed at the hospital or at a later date, but to become effective, it must be filed with the California Department of Child Support Services Paternity Opportunity Program. If signed and filed properly, a declaration form has the same effect as a court order.

Second, if a parent refuses to sign the declaration, an individual, with the help of a family law attorney or through a local child support agency, can go to court to establish parentage. In California, section 7611 of the Family Code provides several rebuttable presumptions of natural parent status: 1) the presumed parent and the child’s natural mother are married when the child is born, or the child is born within 300 days after the termination of a marriage, 2) before the child’s birth, the presumed parent and the child’s natural mother attempted to marry each other, 3) after the child’s birth, the presumed parent and the child’s natural mother have married or attempted to marry each other, and with consent, the presumed parent is named as the child’s parent on the birth certificate or is obligated to support the child under a written promise or court order, and 4) the presumed parent receives the child into his or her home and openly holds the child out as his or her natural child. If a court finds that one these presumptions applies, it will issue an order establishing parentage.

Additionally, section 7551 of the California Family Code provides that in civil proceedings where paternity is relevant, the court may order (of its own initiative or upon suggestion by an involved party) that the mother, child, and alleged father submit to genetic tests. As provided by section 7555 of the California Family Code, if the court finds that the ordered genetic testing establishes paternity to a certain degree verified by experts, there is rebuttable presumption of paternity, and the court may proceed with support and custody orders.

For more information about establishing a child’s parentage in California, especially if you are interested in pursuing child support and/or custody of your child, please contact the experienced family law attorneys at Lonich Patton Erlich Policastri.

Lastly, please remember that each individual situation is unique, and results discussed in this post are not a guarantee of future results. While this post may detail general legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.

Sources:

*http://www.cdc.gov/nchs/data/databriefs/db162.htm

http://www.courts.ca.gov/1201.htm

Finding Your Divorce Attorney: 3 Ways to Ensure You Hire the Right One

June 10, 2016/in Family Law /by Gretchen Boger

Hiring the right attorney has the potential to save you time, money, and peace of mind; however, this is no easy task – nor should it be. Getting a divorce is often one of the most difficult, exhausting, and emotionally draining times in a person’s life. It is of utmost importance to hire the attorney that is willing and able to be your guide and advocate through the arcane domain of divorce. Below are three ways to ensure that you are choosing the right attorney.

1. A Referral

With approximately 40% – 50% of all marriages ending in divorce, it is likely that you know someone who has gone through a divorce. While it is not always easy to admit that your union has failed, seeking advice from those who have had to go through the process can play an integral role in deciding who will represent you.

Simply asking them if they would recommend their attorney is indicative of an attorney’s capabilities. However, an attorney who was perfect for someone else may not be perfect for you, and vice versa. Therefore, confide in those who have gone through this onerous process, but be aware that each divorce is unique and each attorney-client relationship is unique, as well.

2. An Internet Search

Today a simple Google search, for example, “Bay Area Divorce Lawyers,” will return dozens of results. The results at the top of the list will most likely be the law firms that specialize in divorce in the Bay Area. Take your time when researching each law firm.

A law firm’s website should indicate its areas of specialization, the attorneys that work there, and the results that the firm gets. More often than not, the website will give examples of the kinds of cases the firm has tried. These examples are important to you. You should be asking yourself, if these examples are similar to your current situation. If so, the firm is one that you should definitely consider. A firm’s website can provide a lot insight about the firm; however, it should not, necessarily, be the determinative factor in your decision making process.

3. A Consultation

If a referral source or your research has resulted in finding an attorney that you like, you should schedule a consultation. A consultation is a time for you and the attorney to decide if working together is the right decision. There are number of things that you should consider when meeting with your potential attorney for the first time.

First, if the attorney is charging you an initial consultation fee, do not let it discourage you from scheduling the consultation. Usually, in other areas of law, when a prospective client meets with an attorney for the first time there is a free 30 minute consultation. However, divorce attorneys may charge an initial consultation fee. The reasons for the fee are to determine if clients can afford attorney’s fees and to deter clients that are “lawyer shopping.” Lawyer shopping occurs when a prospective client meets with a number of different divorce attorneys with the intention of creating a conflict of interest. As a result, any attorney who the client met with is precluded from representing that client’s spouse. One way to deter invidious behavior, such as lawyer shopping, is to charge for the meeting.

Second, the attorney-client relationship is something that should be founded upon honesty, trust, and accountability. The consultation is the appropriate time to meet and decide if working together would be in the best interests of both parties. During the consultation there is a lot of information that each party should receive before making a decision.

As the client, you should make note of the attorney’s demeanor and professionalism. Is the attorney professional, did he or she dress well, was the meeting uninterrupted, did you receive the attorney’s undivided attention, and were you treated with respect? An attorney who dresses well, is professional, and treats you with respect usually correlates to being a fine lawyer.

Third, divorce has the potential to last for years. It is important that you choose an attorney you can be around throughout the divorce. Your attorney is your advocate, and the last thing that you need is to have tension between one another. Therefore, choose someone that you can foresee yourself getting along with. This doesn’t mean your attorney needs to be your best friend, but it does need to be someone that you can work with.

Fourth, hiring an attorney who has dealt with cases similar to yours will most likely save you time and money. While divorce may seem like an ossified area of the law, results are, often times, dictated by specific factual findings and great lawyering. Having an attorney who is familiar with certain situations will increase your chances of reaching a settlement in your best interest. For example, an attorney who has dealt with unique assets and situations (horses, real property out-of-state, blended families, etc.) is more likely to reach a better result and not bill as much for researching these unique circumstances.

Finally, if you decide that the attorney is right for you, you should be ready to get the process started right away. The items that you should bring to the first consultation are: 1) any pleadings, motions, proposed settlement agreements, or any other documentation dealing with the case, 2) your most recent tax returns, 3) a preliminary schedule of assets and liabilities, and 4) your monthly income and expenses. Any other documents or paperwork that you think are relevant should be brought to the consultation, too.

On the other hand, during the consultation, the attorney will be considering whether your case should be taken. Each attorney has their own checklist for determining whether to take on a new client. Generally, an attorney considers if the case is feasible, if he or she is able to work with the client, and if there are any conflicts, among other factors.

Asking for a referral, conducting your own research, and meeting with attorneys are three proactive steps that will ensure that whomever you hire is the right attorney for you. Remember, finding the right attorney is a decision that only you should be making.

If you need any help in finding the right attorney, the Certified Family Law Specialists at Lonich Patton Erlich Policastri have decades of experience handling complex family law matters. Please contact the Certified Family Law Specialists at Lonich Patton Erlich Policastri for further information. Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results. While this post may include legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.

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