3 Basic Facts You Need to Know about Custody in California

That you love your kids is a given, so if you are considering a divorce, you are probably wondering what will happen to your children and how will the divorce impact your parenting.  This article will discuss three basic facts about custody, which will help you plan for the future.

What is legal custody and what is physical custody?

  • Custody is the legal rights and responsibilities of the parents or caretakers. Visitation is how and when each parent spends time with each child. Either parent can have sole custody of the child, or the parents can share the custody.
  • Legal custody involves the right to make decisions on behalf of your children relating to school, health care, etc.  Physical custody refers to where the kids actually live.
  • It is common for sole physical custody to be granted to one parent and then visitation to the other. For legal custody, the preference if for the parents to share legal custody.  Joint legal custody can be tricky because it means that the parents must share in the making the important decisions for their children.

What are some common schedules?

  • Schedules can vary as per the best interest of the child, but some that are commonly used are as follows:
    • For joint physical custody, common schedules include one week per each parent, 2-2-3 schedules where a parent has Mon/Tues, the other parent has Wed/Thursday and the first parent has Friday, Sat Sun.  
    • For sole custody, weekend visits from Friday-Sunday with one or two weekday visits.

Can the court favor one gender over another?

  • No, the judge cannot favor one gender over another.
  • The standard question in any analysis is what is in the best interest of the children.
  • Judges have discretion, which allows for gray areas and wiggle room.
  • Bonding is an important factor in child custody cases, and goes to the emotional attachment a child and parent have.  

 

5 Best Practices to Help Your Children Cope with Divorce

Divorce doesn’t mean your children have to suffer. You can help your children cope with the changes that inevitably come with divorce. This article will focus on what you can do, independently of the other parent, to help your children navigate the divorce and successfully adjust.

  • Speak respectfully about the other parent.

Although divorce is often an adversarial process with the ex-spouse, your children will be benefited by your protecting them from the battle. Speak respectfully of the other parent. Try to avoid venting to your children about what the other parent is wrong. This can place the child in an uncomfortable position of feeling forced to take sides.

  • Clearly communicate with the other parent and your children.

Clear communication is key to setting expectations. If you are organized, plan things out, and convey meaningful and firm messages then everyone will benefit.  When a parent assumes various schedules, meeting places or other expectations, then the situation is ripe for misunderstandings and inconvenience. Often text or email communication can prevent problems.

  • Express love to your children every day.

Your kids are going through a hard time and need you now more than ever.  Remember to tell them every day that you love them. Try to show them through your actions that they are important to you and you care about them. Be supportive. Listen to their concerns and comfort them when they are sad.

  • Allow your children to grieve.

For some children, losing the one family unit can feel like a death, and they need time and space to grieve the loss.  Understand that they may go through the grief cycle of denial, anger, bargaining, depression and acceptance. Seek to understand the emotions and be supportive.

  • Keep calm and put your children first.

There will likely be many instances of anger, annoyance and frustration with your ex-spouse. Find a friend or a counselor to confide in. Remember that you are always setting an example for your children, so be the person that you want them to become.

The changes in your family can be an opportunity to show your children fortitude, sacrifice, leadership, forgiveness, communication and love.  Many parents who achieve the best outcomes for their children during the divorce process do so because they set goals for how to handle the ex-spouse appropriately and they achieve a reliable, safe space for their children to thrive in.  

5 Amazing DUI Defenses

Think your DUI is hopeless?  Think again! This article will explore five major categories of defense tactics that you can discuss with your public defender or private attorney.

  • Asserting your Fourth Amendment Right in relation to the Stop.  

The Fourth Amendment to the Constitution protects you from unreasonable search and seizure. With a DUI, this often comes into play when the officer pulls you over for a traffic stop. The officer needs to have reasonable suspicion that you are committing a crime (a traffic offense counts as a crime for this purpose). The officer must have probable cause to arrest you.  A defense based on the stop or the arrest is one of the most common and effective ways to fight a DUI, and an attorney can help you apply the law to the specific facts of your case.

  • Attacking the Accuracy of the Field Sobriety Tests.

The officer likely performed the field sobriety tests near the street where he pulled you over, and the conditions may have interfered with the accuracy of the testing processes.  Was there heavy traffic that distracted you or made the tests unsafe? Were weather conditions in play that may have impacted your abilities? Was the lighting poor or in your eyes? Was the ground uneven or dangerous? Were there other environmental hazards or distractions that may have impacted your ability to perform on the field sobriety tests? Aside from the environmental factors, the officer’s explanation and execution of the field sobriety tests can also be used to challenge the results.  Did he explain the tests fully and accurately, and were they administered as they were supposed to be? Attacking the accuracy of the field sobriety tests is a very common, but can be a useful way to defend you.

  • Undermining the equipment and methods used in testing.

In any test involving equipment, the equipment must be functioning properly and used properly in order to achieve a reliable result.  For example, if a breath test was administered, you can question whether the equipment was in good, working condition and whether the officer was properly trained to use it. If you can undermine the fact-finder’s confidence in the testing, then you can draw into question whether the results can be relied upon. Along those same lines, you can question the method of the testing.  For example, when did the testing take place? Was it contemporaneous to the driving or much later? The method of testing is as important as the reliability of the equipment itself.

  • Chain of Custody.

Any evidence used in a criminal case has to pass muster when it comes to the chain of custody, which means the prosecution has to be able to trace where the evidence has been from the time it was taken into custody. For example, when police officers take a blood sample in a DUI case or seize evidence of drugs, the evidence will be packaged with a form and each person who comes in contact with the evidence should be noted on the form. If there has been a break down in that procedure, then you can claim that the evidence has been contaminated or tampered with and therefore the evidence is unreliable.

  • Necessity, Duress, Entrapment, Involuntary Intoxication.

The affirmative defenses are not as commonly used because they require circumstances that are somewhat unusual.  If your case falls into this “oddball” group of categories, the affirmative defenses may well suit you. The necessity defense is where you drove under the influence for a greater good – for example, to race someone to the hospital to save a life. Duress is when you are forced to drive under the influence under threat of your life of safety, such as if you drove while intoxicated because someone threatened to kill you if you didn’t.  Entrapment very rarely arises or if it does, it would be difficult to prove, but an example would be where the police officer requests that the person drive while intoxicated to “set the trap” to arrest that person Involuntary would be where someone was given drugs or alcohol without their knowledge or consent.

 

Wet Reckless and DUI in California

Have you heard about friends or family getting a DUI charge reduced to a Wet Reckless?  This will tell you what it means, when it’s done, and how it can help you.

What is a “Wet Reckless”?

A “wet reckless” is a nickname for a charge of reckless driving involving alcohol or drugs.  It is a common reduced charged from a plea bargain.

Will the prosecutor agree to a Wet Reckless?

There are no hard and fast rules as to when a prosecutor will agree to a Wet Reckless plea bargain, but your chances are higher depending on your BAC and whether there are evidence problems in the prosecution’s case against you.

What are the advantages of a Wet Reckless plea bargain?

    • Shorter max penalty:  The maximum jail time is shorter, so if you violate probation then you face a shorter max jail penalty.
  • Shorter minimum penalty: If this is your second or third DUI within a ten year period, then certain mandatory jail sentences will apply. If you enter a plea to wet reckless instead of DUI, then the conviction only requires five days in jail regardless of your prior history.
  • Shorter probation period.  Wet reckless often has a shorter probation period than a typical DUI.
  • DUI School:  You’ll likely have a shorter DUI school with wet reckless than DUI.  
  • Fines:  Penalty assessments that are lower for Wet Reckless than DUI may make the total cost of a Wet Reckless less expensive than a DUI.
  • License advantages:  A wet reckless plea may help out on the license suspension from the court, but there is also the DMV license suspension – so it may or may not impact your driver’s license.

Don’t get too excited about a Wet Reckless because it still packs a punch in many ways:

    • Insurance Company: The insurance company will likely still ding your record with the Wet Reckless.
    • Repeat Offender:  If you get another DUI within ten years after your Wet Reckless, you’ll still be considered a repeat offender, even though Wet Reckless is different than a DUI.
  • License Suspension: The DMV can still take your license.  

 

 

Common Questions About Your Divorce in California

This article will examine some of questions that are commonly asked about the divorce process in California.  It will help you get a broad overview of the process and understand what to expect.

Do I have to wait 6 months to get divorced in California?

Yes, although the waiting period can be challenging for couples, six months is the minimum and its common for the divorce process to take longer than six months.

Can I remarry during the waiting period?

No, unfortunately you can’t remarry while you are waiting for the divorce to be finalized.

Why is date of separation important?

The separation date is important in determining what property is community property (must be split) and separate property.

Should I sell or mortgage the house while we are separated?

You’ll want to hold off on making major changes to assets or debts during the separation/divorce process.

Does it matter what state we live in?

Yes, in order to file for divorce in California you or your spouse must have lived in California for at least six months.  You also need to have lived in the county for at least three months.

What are some of the important factors for determining temporary child support?

Important factors in determining child support are each parent’s income and the amount of time each parent takes care of the child.  

Do I need to wait to get spousal support?

Spousal support can be granted with an Order to Show Cause early in the divorce process, so you do not need to wait until the divorce process has progressed for temporary spousal support.

What’s the general timeline of important steps in the divorce process?

  • The first step is a Petition with the Court and serving the Petition on the other spouse.  This marks the beginning of the waiting period.
  • The next step is responding to the Petition and perhaps an order to Show Cause if certain disputes are involved.
  • Hearings or mediation can be scheduled to resolve certain issues.
  • Dividing property is a step that will happen somewhere along the process. As part of this, discovery and disclosure of assets and obligations will be conducted.
  • Settlement Agreements occur where you and your spouse are able to reach an consensus.

While this is not a complete list, it gives an overview of some of the steps in the divorce process and helps you understand important questions relating to your divorce. For answers to specific questions you may have, consult with an attorney who has experience in family law to guide you through the sometimes intricate divorce process.

 

3 Tips on How to Create a Perfect Parenting Plan for Your Children

A parenting plan is required in every divorce case because it establishes the rules for physical and legal custody for the children.  If you and the other parent can agree, then it is a stipulated plan, or if you cannot agree then the court can establish a parenting plan for you.  You can tailor the parenting plan to the needs of your family, and this article will help you think through some important points you will want to include in the plan.

What are important issues for physical custody you should think through in creating the plan?

  • When will visitation occur
  • How will children be exchanged
  • Holidays, school breaks, special events
  • Accommodations for a parent’s illness or travel
  • Parent wants to relocate
  • Extracurricular activities and lessons
  • Resolving disputes
  • Phone/email/social media access with other parent
  • Military or other prolonged absence
  • Discipline or punishment methods
  • Children’s clothes and other belongings and how they are exchanged
  • Cancelations and delays

What are important issues for legal custody you should think through in creating a plan?

  • Religious attendance
  • Immunizations
  • Medications
  • What school will the children attend
  • Babysitting/Daycare arrangements
  • Emergency care

What needs are specific to your child that should be considered?

  • How old is each child
  • What routines would work best for your child’s personality
  • How do the school schedules of each child fit with the plan
  • What will give your child a sense of security and routine

A parenting plan can be unique and tailored to your children or it can be more general.  If you have questions or need help in formulating a great parenting plan, we here at http://www.davidknechtlaw.com/ can help!

Unusual DUI Defenses

Do not give up just because you have been charged with a DUI.  There may be a myriad of defenses that you can use to inspire reasonable doubt as to the elements that the prosecution must prove to convict you. In a previous article, we discussed some of the Best Common Defenses and Arguments for a DUI.  Here we examine a few ideas to get you thinking outside the box if your case has rare or unusual circumstances. An attorney will be able to evaluate your individual circumstances to spot any defenses that might be successful.

Were you actually “driving”?

In some cases, the police officer didn’t see you driving, so a defense to the DUI may lie in rebutting the circumstantial evidence that you were driving.

  • Did you deny driving?
  • Were there other people in the car?
  • Was the car discovered when it was legally parked?

Watch out here, though, because if the officer observed even a slight movement of the vehicle, then that counts as driving.  Also, watch for circumstantial evidence that that prosecution may use to show that you were driving – i.e. your car was warm, the keys were in the ignition, or close proximity to an accident.

Were you under the influence when driving?

In some instances, such as a hit and run collision or single vehicle collision, the police officer may not have caught up to you at the time of the incident.  If you were drinking right after the alleged incident, then this can call into question whether you were actually under the influence at the time you were driving.  Along similar lines, if your BAC was under the legal limit, but rose to a higher value after you were no longer driving, then this could be another point of defense that you were not under the influence when actually driving.

Do you have any special medical or physical conditions that may have impacted the testing?

Think about any challenges that apply to you specifically.  Do you have a condition that may have affected the blood or breath testing?  Do you have a physical condition that would have impaired your ability on the field sobriety testing?  Was there anything usual about the environmental conditions where the tests were administered?

Police conduct?

In some cases, police misconduct can provide a valuable defense in a case.  Were statements made to indicate racial profiling for the stop? Did the police act improperly in the way that the tests were conducted? Was there anything amiss in the way evidence was handled?

Extenuating circumstances?

Were you forced to drive by some emergency?  Were you given the alcohol or drugs without your consent or awareness?  Although extenuating circumstances may or may not provide a defense to the charge, they can be important argument points in making the case for a plea bargain with the prosecutor.

 

Best DUI Arguments and Defenses

Although each case varies, this article will cover some of the best DUI arguments and defenses to consider when analyzing your DUI charge

Motion to Suppress Evidence

If your attorney files a Motion to Suppress Evidence and it is granted, then that evidence can’t be used against you by the prosecutor.  This is often used in the context of the traffic stop, where the motion argues that the officer didn’t have reasonable suspicion to stop you.  If successful, this can be a powerful arrow in your DUI defense arsenal.

Legitimate Reasons for the Signs of Intoxication

Are there legitimate reasons for the signs that the officer observed, which are circumstantial evidence against you?  For example, do you have dry eyes that cause redness? Do you have a speech impediment that causes slurred speech? Could your symptoms be explained by fatigue?  Plausible explanations for the symptoms can be a good argument to oppose the evidence of intoxication.

Field Sobriety Tests

There are many ways to attack the field sobriety test evidence:  Do you have a physical limitation or are you taking medications that inhibit your ability to successfully complete?  Were they adequately explained and administered by the officer? Were there environmental factors such as weather, traffic, or the surface where the tests were performed that could impact the testing?

Faulty Testing

Here again, there are many ways to attack the reliability of blood or breath testing.  Was the device working? Were there medications or medical conditions that could have impacted the testing? Was the testing done properly? Was the evidence placed in a proper chain of custody?

* Acid Reflux Defense – this is a subset argument that alleges that acid reflux (a medical condition) can cause the BAC reading to be falsely higher

* Rising BAC level – a valuable subset argument to testing is the rising BAC defense, which alleges that the BAC rose between the time the defendant was driving and when the test was administered.  

    This is not an exhaustive list of DUI defenses, as the possibilities are as individual and unique as the particular facts of your case.  This list explains some of the commonly utilized defenses to help you and your attorney begin building a proper defense strategy.

 

4 Potential Consequences of Your Second DUI

If you are facing your second DUI, you are probably somewhat familiar with the process and the punishments. Don’t give up on your case, as you may have defenses and arguments that can get the charges dismissed or reduced. This article is to give you an idea of what consequences you are facing if your defenses are not successful to help you understand the worst case scenario, and it assumes you are 21 or over.  

Driving Consequences

  • Suspended License:  The DMV will automatically suspend your license for a year on a second DUI. You could have your licenses suspended for up to 2 years. The court suspension is two years, which can be run concurrently with the DMV suspension. It’s possible to apply for a restricted license after three months of DMV suspension.  
    • You need to request a hearing with the DMV within 10 days if you want to dispute the DMV suspension.
  • Interlock Device:  The judge can order you to get an interlock device on your vehicle, which measures your breath alcohol every time you drive.
  • SR-22 Insurance. If you don’t win the DMV hearing or don’t dispute it, and your license is suspended, you will need to get a special type of automobile insurance called SR-22 insurance for three years.

Court Ordered Counseling and Probation

  • 18 Month Programs:  If this is your second conviction in 10 years, you will likely be ordered to complete an 18 month program.  For a third offense, you would typically be looking at a 30 month program. You may also be ordered to attend AA, or Mother’s Against Drunk Driving (MADD) or other programs.
  • Probation: Probation is typically 3-5 years.

Jail Time – Max is 1 year

  • Jail Time:  Minimum of 96 hours in county jail, and maximum of one year jail time.

Financial Consequences

  • Fines, penalties and costs. The court at its discretion will impose a fine of between $1800- $2700. Additionally, you will likely incur costs of defense attorney, costs for counseling, interlock device, and SR-22 insurance. The total cost can be very expensive, but consult with your attorney for an estimate of total costs.

 

How to Know if Your Assets Are Being Split Fairly In Divorce

Whether you are just considering a divorce, starting the process or right in the middle of it, at some point you are going to wonder if you are getting a fair shake. An attorney can look at your particular assets and debts and tell you the best plan for you, but this article will provide general information about the landscape of asset division in California and educate you to ask the right questions about the facts of your case.

  • Why do I need to care about community property vs. separate property?

In general, California law requires community property to be split between the spouses 50/50, whereas separate property may be retained solely by the spouse who owns the separate property.  

  • What is Community Property?

California Family Code provides the general definition of community property:  “Except as otherwise provided by statute, all property, real or personal, wherever situation, acquired by a married person during the marriage while domiciled in this state is community property.”

  • What is Separate Property?

California Family Code defines separate property in several sections, but the section that is broadest is as follows:  Separate property of a married person includes the following: 1) all property owned by the person before marriage, 2) all property acquired by the person after marriage by gift, bequest, devise or descent, 3) the rents, issues, and profits of the property described in this section.

  • Commingled funds make characterization challenging:

Commingling is where both separate property and community property have been combined in such a way that the character of the property isn’t clearly apparent upon first analysis. For example:

  • Down payment or loan money for the purchase of a home came from a gift to only one spouse, but community property funds have been used to pay mortgage.
  • A premarital bank account from one spouse is used by both spouses after the marriage, so it contains both pre-marriage separate property and community property funds.  

These are just a few examples of the myriad of ways that funds can be commingled. The process of sorting these out through tracing, etc. is beyond the scope of this article, but advice from an experienced family law attorney can assist in identifying and proving the proper character of commingled assets.

  • Determining the value of assets?

A key issue in fair division of assets is assessing the value of an asset. This can be challenging for some assets, but thinking through how the value of each item will be assessed is an important step in making sure you are getting a fair division.  

  • Don’t forget about debts.

The focus of this article has been assets, but don’t forget to calculate in the value of your debts. For example, a mortgage on real property, school loans, and credit card debt should never be left out of the analysis.

This is just the tip of the iceberg to get you thinking through issues relating to identifying community property and assessing its value.  The division of money and time with the children are the two most important issues facing many couples in divorce, so a thorough analysis of these issues by an experienced family law attorney will help you understand the law and achieve a fair resolution.