Archives for January 2019

Visitation Rights of Grandparents in California

Are you a grandparent who adores your grandchildren and is concerned about visitation in the event of divorce? This article will help you understand your rights as a grandparent.

Can a grandparent ask the court for visitation?

Yes, a grandparent can ask the court for reasonable visitation. In order to grant that request, a court has to evaluate two factors: 1) there has to be a bond already in existence between grandparent and grandchild, such that the visitation is in the best interest of the child, and 2) the court has to balance the best interest of the child in having visitation with the parents’ right to make decisions about their child.

Can the grandparents take action to get visitation if the parents are still married?

Generally, no, the court will not order visitation for a grandparent if the parents are still married. The exceptions to this general rule include:

Grandchild has been adopted by a stepparent
Child does not live with either parent
One of the parents joins the grandparents in their petition for visitation
A parent’s whereabouts are unknown
The parents are living separately

Where can I find more information about grandparent custody rights?

California Family Code section 3100-3105 can provide more information about grandparent custody rights. You could also consult an experienced family law firm, such as David Knecht Law.

How does a grandparent ask for visitation in court? What is the process?

A grandparent can file a petition in court to ask the court to order visitation with a grandchild. In general, the first step would be to find out if there is an existing case already open or whether the grandparent needs to start the case themselves. The next step would be to file the appropriate paperwork and serve those on the parents. Subsequently, a hearing or mediation may be scheduled. When the judge makes a decision, he or she will sign a court order.

A grandparent can add security, love, and wisdom to a grandchild’s life. If you are a grandparent who is concerned about securing the legal right to visit your loved one, contact a firm that is experienced in family law, David Knecht Law.

DUI: What to Expect When You’re Caught Under the Influence

California has two relevant laws regarding drunk driving. The first law makes it illegal to drive under the influence of alcohol. The second makes it illegal to drive with a blood alcohol concentration at or above 0.08%. Notice the important distinction here?

Driving under the influence of alcohol, as defined in the first law, has nothing to do with any measurement of blood alcohol, but only with an objective assessment of your sobriety. Imagine, for instance, someone particularly susceptible to the effects of alcohol drinks just one drink then proceeds to drive. If they were stopped by the police and the breathalyzer returned a blood alcohol reading of only 0.03%, they could still be charged under this law if something about the person’s driving gave the police probable cause to pull them over to begin with.

Conversely, under the second law, the impairment or otherwise of the person’s actual driving ability by the effects of alcohol are irrelevant to the reading itself. Another person might have been driving perfectly well, but was submitted to a breathalyzer test in a sobriety checkpoint, which returned a reading of 0.12%. This person, too, would be charged.

In practice, these two laws function as one. A person can be convicted of both offenses—sections a) and b) of Vehicle Code section 23152—but can only be punished for one, and the punishments are the same.

At the time of the incident, however, when a person has been detained under suspicion of drunk driving, there will be certain procedures that you can expect the police to follow.

Your encounter with the police will most likely begin with some questions. You should remember that you are not obliged to answer any questions that may incriminate you. This is your Fifth Amendment right. And while you will be (or should be) advised of this in the Miranda warning, it still applies at all times.

The same applies to field sobriety tests where the officer will instruct you to attempt physical tasks, such as walking in a straight line and so forth. Your participation in these tests is voluntary. The detaining officer should, but frequently will not, advise you of that fact.

At this point you should be given your choice of submitting either a breath test or a blood test. You can refuse this, too, but by carrying a drivers’ license, you gave your implied consent to giving a chemical test when required—meaning you can be tested by force.

The most important thing is to be aware of your rights at all times. When you are placed under arrest, do not say anything until you have your lawyer present. Visit our website at http://www.davidknechtlaw.com/ to find out why your first call should be to David Knecht.

Filed Under: General

Changing the Terms of Your California Divorce Decree

Circumstances change over time, and sometimes that means that the divorce decree, or Final Judgment of the Dissolution of Marriage, needs to be modified. There are two ways a divorce judgement can be changed.

Appealing the judgment to the California District Court of Appeals.

Appealing the judgment is a method that is not used as often because appeals are usually only granted If the trial court did not apply the law correctly or if the judgment was the result of one of the party’s bad faith, such as intentionally hiding assets.

Motion to Modify the Terms.

A motion to modify the terms is the more commonly used approach to change the divorce decree. Modifications are usually more likely to be successful, less expensive, and faster.

Can modifications be temporary?

Yes, modifications can be either temporary or permanent. For example, if a party has lost his or her job, the divorce judgment may be modified to change child support or alimony temporarily.

Can modifications be permanent?

Yes, modifications can not only be permanent, but they can change some or even all of the divorce decree. Examples of a permanent modification might be where one party permanently changes careers or acquires a disability or injury which permanently changes that party’s ability to pay child support or alimony. Other changes could be to child custody, where the changes accommodate the growing and changing needs of children.

Some people feel locked into the divorce decree, perhaps because they don’t realize that changes are possible or perhaps because they fear the pandora’s box that may be opened if they readdress the current terms. An experienced divorce attorney, such as David Knecht, can provide advice about how to modify your divorce decree to make it right for you.

Filed Under: Divorce Lawyer, Fairfield Lawyer, Vacaville Attorney

California Divorce: What Happens if You Want to Move Out of State With Your Children?

Your rights with respect to your children will be governed by your own specific custody situation, but this article will discuss some of the general topics relating to relocation that you can discuss with your attorney.

Can one parent relocate out of state and take the children?

In general, a parent who has sole custody of the children can move out of state, unless the other parent can show that the children will be harmed. If the parents have joint physical custody and one parent opposed the other one leaving, the parent who wants to relocate will have to show the court that the move is in the best interest of the children.

Can a parent take a vacation or trip out of the state or country with the children?

If the other parent is going to miss their visitation, you will typically need that parent’s permission to travel out of state with your children. You can also look at your order and see whether it contains restriction on travel. If so, you will need a special order to modify those terms.

Can custody decisions be made in the states of each parent, if they are not in the same state?

No, custody decisions are only made in one state. Here is some general information in what courts look at for determining the right state for the decision: if the state is the child’s home state (living in the state for the last 6 months), or if the child has significant connections to people in the state, so that it can be proven that the child’s care, personal relationships, etc. are based there, or if the child is at risk of being abused or neglected if sent back to a different state. (See the Uniform Child Custody Jurisdiction and Enforcement Act for complete information on this topic.)

Taking your child out of state in violation of the order can be serious business, so consult an attorney experienced in family law to get answers on whether you can take a trip or relocate with your family. David Knecht is an experienced family attorney who can find the answers for you.

Filed Under: Divorce Lawyer