You know what’s best for your children. Unfortunately, when it comes to divorce and child custody battles, things get messy and sometimes a judge ends up stepping in to help decide what’s best for the children. When determining custody, or considering changes to current custody arrangements, there are two general principles California courts follow:

1. The health, safety, and welfare of the children are the Court of California’s primary concern.
2. The courts of California believe that children benefit from frequent and continuing contact with both parents.

However, within the parameters of these two principles, there are a variety of factors that judges consider when deciding custody cases. Below are judge considerations when determining custody rights.

 

What the judge will not consider:

Your Gender

In California there is no presumption that a mother is entitled to the custody of her child. They look at whom the primary caregiver is, the overall health of the child, and the best interests of the child moving forward, but the sex of the parent does not matter. In fact, often the state of California presumes that joint custody is often the best solution for children.

 

What the judge will consider:

Your relationship with your children from birth to present date

The judge will want to know which parent has been the child’s primary caregiver—who picks the child up from school, who takes the child to the doctor and deals with special health concerns, and who primarily provides for the child. The judge will also look at the amount and quality of time each parent spends with each child. They will also consider if there have been extreme instances of fighting or contention between a parent and a child.

Previous or current status quo

If there is a predetermined custody schedule that you and your partner have been following that has been working for the children, courts will often look to that status quo as the basis for any ongoing orders. If your current arrangement has been working well, the court will want a good reason why the status quo should be changed.
Since the Courts of California agree the continuing contact with both parents is generally the best solution, courts will also consider which parent is more likely to encourage a positive relationship between the other parent and the children. Parents trying to interfere with a child’s relationship with their other parental figure are generally viewed unfavorably.

 If there is any evidence of abuse or neglect

Your child’s safety is the most important factor in California. Evidence of abuse or neglect between a parent and child will almost always result in an unfavorable decision for that parent. The court of California will never intentionally place a child in a home environment that is unsafe or unsuitable.

 Additional factors that determine a parent is unsafe or unsuitable

If a parent has ever been convicted of rape, murder or sexual abuse, the parent will generally be found unsafe. If a parent has ever been found guilty of abuse between their spouse, children, or any other individual, the court would prefer not to grant custody to that parent.

 Drug, alcohol or substance abuse problems

If a parent has struggled or is currently struggling with a drinking or substance abuse problem and have developed habits that inhibit their ability to properly care for their children, they may have a harder time gaining custody. The courts generally look at drug convictions from the past five years, and/or evidence of frequent drug use before making a decision about custody.

 Preferences of the child

The court of California usually acknowledges the parental preference of children who are considered mature enough to make sound decisions, usually around ages 12-14 and older. However, the court will consider the opinion of children who are younger than in certain circumstances.

If you have or are looking into opening a custody case, contact David Knecht Law to find out more about custody laws and rights. Mr. Knecht can help you find the path leading to the most efficient and fair resolution of your case.

Marijuana is a hot and heavily debated topic. With all the changes, discussion about changes, and differing laws between states, citizens often become confused about what the real laws in their state really are.  If you are a California citizen wondering whether marijuana is legal for you, the answer is not as simple as you might think.

Medicinal marijuana was legalized in California in 1996, but recreational use of marijuana is still prohibited by both state and federal law. And there are still some restrictions for those who legally use medicinal marijuana.

Can I possess marijuana?

It is a crime to possess more than one ounce of marijuana, unless you are a legal medical marijuana user (meaning you have a prescription from a licensed physician) or you are the primary caregiver of a legal medical marijuana user. If you have less than one ounce of marijuana in your possession, and you do not have a prescription, you could be fined. Possessing more than one ounce of marijuana carries higher penalties depending on the quantity. Possessing marijuana while driving can result in additional fines. If you have marijuana in your possession while you are in a school zone, depending on the quantity and type of marijuana, you could get up to three years in jail.

Can I grow marijuana?

You must either be a legal medical marijuana user or primary caregiver to legally plant, grow, harvest, dry, or process any part of the marijuana plant. If you are not either of these, you could face up to three years in jail.

Can I sell marijuana?

No, you cannot sell marijuana, and you cannot have marijuana in your possession with the intent to sell. You can be charged with the “intent to sell” if you have a large amount of marijuana, the presence of items used to measure or divide marijuana (baggies, scales, etc.), marijuana divided into multiple containers, cash, weapons, or simply if the arresting officer believes the marijuana was for sale.

Can I transport marijuana?

If you are a legal medical marijuana user or primary caregiver, you may transport marijuana as long as it is for the patient’s personal use and it is an amount reasonably related to the patient’s current medical needs. If you don’t have a prescription, it is illegal to transport, import, furnish, administer, give away, or offer marijuana. It is also illegal to attempt to do any of these things.

If you have questions about marijuana, contact David Knecht at davidknechtlaw.com.

What is an advance healthcare directive?

An advance healthcare directive is a living will coupled with a power of attorney.

A living will is a legal document that expresses an individual’s desires about what healthcare and treatment the individual would like to receive should he or she become incapacitated and unable to communicate due to an injury or illness. A power of attorney gives an individual the right to make medical decisions on your behalf.

What does an advance healthcare directive do?

As the default medical action is to keep the incapacitated individual on life support, an advance healthcare directive typically limits or eliminates life support.

Who makes medical decisions for me if I don’t have an advance healthcare directive?

Medical decisions, for those who cannot make their own decisions, are usually made by a close relative—a spouse, parents, adult children, siblings, etc. The problem arises when there is a disagreement among these people about how you should be cared for. An advance healthcare directive eliminates the need for arguments and disagreements in your family since you’ve already made an undisputable decision.

Another major benefit of an advance healthcare directive is that it keeps loved ones from having to make extremely difficult, and possibly divisive, decisions on your behalf.

Should I have an advance healthcare directive?

Making decisions about what type of medical treatment you would like to receive in a situation that calls for an advance healthcare directive is a very personal decision that has a direct impact on those closest to you. Concerns about quality of life, possibility of regaining consciousness, and the financial, physical, and emotional burden on loved ones are all factors that should be weighed in making a decision about an advance healthcare directive.

Can I change my mind once I have an advance healthcare directive?

Yes. You can easily change or even revoke an advance healthcare directive prior to becoming incapacitated. Simply contact the attorney or website that helped you create your advance healthcare directive.

How do I get an advance healthcare directive?

There are two primary ways to get an advance healthcare directive: You can either contact an experienced estate planning attorney who will work with you to create the document you want, or there are a number of online resources that provide the necessary documents that you can fill out on your own.

For help with an advance healthcare directive or other estate planning needs, contact David Knecht, davidknechtlaw.com.

A trust is a legal arrangement that gives a third party (the “trustee”) the right to hold assets for the grantor.

 

What does a trust do?

A trust holds assets until a specified event occurs (usually death), at which time those assets can be distributed according to the grantor’s specific instructions.

 

What are the benefits of a trust?

One of the greatest benefits of a trust is that, unlike a will, a trust allows the grantor to distribute his or her assets without probate (the legal process that establishes the validity of a will). Not having to go through probate saves time, court fees, and could save money on estate taxes.

Trusts may also allow greater control over the distribution of one’s assets than using a will. Trusts are also kept private, so if the grantor doesn’t want his or her assets to be made publicly known, then a trust is an attractive alternative to a will. A trust can also manage assets if they are given to someone who is unable to manage them on his or her own (minor children, or inexperienced or incapacitated individuals, for example).

 

What types of trusts are there?

There are many different types of trusts: marital trusts, bypass trusts, charitable trusts, and generation-skipping trusts to name a few. However, one of the key distinctions between the types of trusts is whether they are revocable or irrevocable.

• Revocable trusts (sometimes called a “living trust”) are still under the control of the grantor. This means the grantor can make changes or revoke the trust during his or her lifetime. This type of trust still has the benefit of maybe helping to bypass some of the requirements of probate, but estate taxes will probably still have to be paid.
• Irrevocable trusts essentially transfer ownership of the assets to another person or entity. The idea is that you can potentially bypass probate and estate taxes. This type of trust is more effective at avoiding estate taxes, but the grantor loses control over the assets and cannot modify or revoke the trust.

 

How do I get a trust?

Because of the large number of both state and federal laws regulating trusts, it is advisable to hire an experienced estate planning attorney who can navigate the legal requirements for you and help you create the best estate plan for your unique needs.

David Knecht at davidknechtlaw.com can help you with your estate planning questions and needs.

What is a Power of Attorney document?

A Power of Attorney (or “POA”) document grants legal authority for an individual (called the “agent”) to act on behalf of another individual (called the “principal”). These documents are typically used to allow the agent to make financial and medical decisions for the principal, especially if the principal has become mentally incapacitated.

 

Do I need a Power of Attorney document?

If you want to be sure that someone with your best interests at heart will be making decisions on your behalf should you ever become mentally incapacitated, then the answer is yes. While some causes of mental incapacity can be foreseen (like certain illnesses, or even old age), many cannot. A sudden car accident that results in a brain injury, for example, can render an individual incapable of making simple life decisions, let alone important medical or financial decisions. To protect yourself and your assets in the case of an accident, or any other cause of mental incapacity, it is a good idea to have a POA document.

 

What types of Power of Attorney are there?

There are several different types of POA. These are some of the more common types:

• General – A general POA gives the agent the authority to act on behalf of the principal, but only while the principal is mentally competent
• Durable – A durable POA gives the agent the authority to act on behalf of the principal, and this authority continues even if the principal becomes mentally incompetent
• Springing – A springing POA gives the agent the authority to act on behalf of the principal, but only when the principal becomes mentally incompetent, or some other specified event or circumstance occurs
• Health Care – A health care POA gives the agent the authority to make medical decisions (and only medical decisions) on behalf of the principal; it can either be durable or springing.

 

How do I get a Power of Attorney?

• The first step is to determine what type of POA you would like.
• Next, you need to decide whom you would like to be your agent. This should be a person you can trust to always act in your best interest. Often a spouse, sibling, child, or close friend is chosen.
• Then you must fill out the appropriate POA paperwork. For this paperwork to take effect, it must be signed by the agent, the principal, and either two witnesses or be acknowledged before a notary public.

 

Can I change or terminate a Power of Attorney?

Yes, you can modify or even terminate your Power of Attorney. To do so, you need to fill out a Revocation of Power of Attorney form and you must provide notice of the change or termination to your previous agent.

 

Who can help me fill out the right Power of Attorney documents?

For more information on Power of Attorney documents or for assistance in Estate Planning, contact David Knecht at davidknechtlaw.com.

Like many parents preparing to get a divorce, one question weighs heavily on your mind—How can I help my child or children get through my divorce without any harmful effects on their health and well-being?

You’ve already heard about all the negative side effects children of divorced parents can develop—depression, failure in school, delinquent behavior, premature sexually active behavior, etc.—and desperately want to go through your divorce without your children falling into these situations. You just aren’t sure how.

Below are 5 ways to help your children understand and get through your divorce without the feared consequences.

1. Create a conflict free pre-divorce environment.

The single most important factor determining how well your children will get through a divorce is now thought to be the environment in the home before the divorce. Excessive arguing between parents, depression, blame pointing, etc., before the divorce can hurt your child’s ability to cope with divorce even before the decision to divorce has been made.

To improve your children’s ability to cope with divorce, work on improving the environment in your home. Take arguments and fighting with your spouse to a place where your children cannot see or hear them. Especially don’t fight about your children in front of your children. When you fight about your children in front of them, they assume it is their fault and desperately want to remedy the situation.

2. Present your divorce as a united and loving front.

Don’t play the blame game with your partner in front of your children. Plan this conversation ahead of time and present it to your children as a well-thought out, reasonable and supported decision from both you and your partner.

Ensure that your children understand that the divorce is not their fault, that you still love them, and that they will continue to receive love from both of their parents. Children fear abandonment, so reassure your child that your divorce is not an attempt to abandon them, but rather to create a healthier environment for them. Reassure them that they are still very important to you and your spouse and that you are not making this decision to hurt them.

3. Be understanding of your children’s feelings, and ensure children that they don’t need to feel okay immediately.

Feelings of shock, betrayal, grief, and hurt are often the first feelings children experience. Depending on the child, children may react to these feelings by acting out or withdrawing. Be sensitive to your children’s needs and be understanding of your child’s emotions, listen to your children and legitimize their concerns.

Don’t expect your children to feel better about a divorce within a certain time or all at the same time. Children can take up to two years or longer to adjust to a divorce. Be prepared to help your child through recovery even if their road to recovery is longer than you expected.

4. Take charge of your own emotions and stresses.

Don’t play the blame game or bash on your partner in front of or with your children. Doing this forces your children to feel as though they need to pick sides, when that is not the case.

You will need emotional support, just as your children do, to get through your divorce. However, this support cannot come from your children. Even if you have grown children who you think can handle it, they can’t and you still need to find outside support. Find friends and family who you can lean on for support so that you can be a strong basis of support for your children.

5. Focus on the Positive.

Let you children know that your family isn’t the only one going through a divorce. Explain to them that others are going through the same thing, and that others have come through the divorce stronger people.

Children can often become closer to parents because scheduled time with children often becomes planned and more meaningful. Children can also have twice the support if parents remarry.

Take your divorce as an opportunity for you to focus on your relationships with your kids. Stay involved in your children’s lives. Phone calls, letters, play dates, lunch dates, sports games, performances. Create a regular, predictable, consistent, and conflict free schedule where both parent continue to be a part of your children’s lives.

For more advice and help with your divorce, contact David Knecht at DavidKnechtLaw.com.

In many states a non-competition or non-solicitation agreement in a contract is enforceable if it is reasonable.  California, however, generally prohibits non-compete and non-solicitation agreements between an employer and its employees.

This article will answer some important questions relating to these issues.

 

1. What Makes Non-competition and Non-solicitation Agreements between an employer and employees illegal in California?

The California Business and Professions Code, Section 16600, states:  “Except as provided in this chapter, every contract by which anyone is retrained from engaging in a lawful profession, trade or business of any kind is to that extent void.”

This applies both to agreements prohibiting former employees from working for a competitor and agreements preventing former employees from soliciting customers or clients.

 

2. What are the statutory exceptions to the general rule that non-compete and non-solicit agreements are invalid?

There are three statutory exceptions to the general rule: If you are the owner of a business, a partner in the business or a member of an LLC, then you can agree not to compete against the business if it is sold or if you leave the business.

 

3. Can I contact customers after I leave?  What if I use confidential information after I leave?

Yes, generally you can contact customers on behalf of a competing business because the non-solicit provisions of your agreement are void. However, in engaging in competition against your former employer, you need to be careful not to use confidential or trade secret information.  For example, you may have had access to a customer list with confidential information about that client’s products and pricing.

If you utilize information that is arguably a trade secret of your former employer, then you run the risk of violating your agreements relating to trade secret that are separate from non-compete or non-solicit agreements. You can compete, but that doesn’t mean you can use confidential information.

 

4. What if my new employer lets me go because my old employer says I have a noncompete?

A new employer could be liable for a wrongful termination claim if they let you go based on an unenforceable noncompete. For example, in a case considered by the California Court of Appeals, Silguero v. Creteguard, Inc. (2010) 187 Cal App 4^th 60, a woman named Rosemary Silguero was terminated from her new employment based on a non-compete agreement with her previous employer.  She filed a wrongful termination claim that she was terminated for a reason that was contrary to public policy, and she won.

If you are an employee with a non-compete or non-solicitation agreement with a former employer, you may want to discuss your options with an attorney.  If you are a business that is considering how to navigate issues relating to non-compete, non-solicitation and trade secrets, you may also benefit from one on one legal advice.

Please contact David Knecht, at davidknechtlaw.com for a consultation.

According to a recent Justice Department Report (NCJ242937 at www.bjs.gov), one in every ten American drivers was pulled over for a traffic stop in 2011.  Traffic stops are one of the easiest ways for police officers to investigate other offenses.  Understanding the legality of the stop can often be the key to whether you have defenses against the other evidence of crimes that were discovered after the stop.  This article answers some questions many people have about the validity of traffic stops.

1.  Are blacks pulled over more than whites? 

Yes.  The results from a survey cited in the Justice Department Report indicate that black drivers, are in fact, stopped by police more often than white or Hispanic drivers.  (The rates were 12.8% of black drivers pulled over, versus 9.8% white and 10.4% Hispanic.)

2.  Can a police officer stop me because of my race? 

Not legally.  The Fourth Amendment to the Constitution provides protections from unreasonable search and seizure.  An officer must have probable cause to believe that a traffic violation has been committed. If a police officer were to testify the stop was based solely on race, then the stop would be invalid.  However, if an officer testifies that the stop was based on his or her observance of a traffic violation, then the stop would be valid, even if the driver believes that the officer has a bias against one race.

3.  Can I get pulled over for not wearing a seatbelt?

Yes. In California the seatbelt law is primary, meaning that it can be the basis for the stop.  In other states, seatbelt laws are secondary, meaning that the car can’t be stopped for the violation of the seatbelt law, but it is an offense that can be added on with other offenses.

4.  Does the officer have to show me the radar on a speeding?

No. There is no legal requirement for the police officer to show you any evidence when you are stopped for speeding in California.

5.  Do I have to answer a police officer?

No.  You have a right to remain silent, even if an officer has not read you your rights.  It is advisable to indicate that you are invoking your Fifth Amendment rights by saying something to the effect of, “I am not saying anything because I am revoking my right to silence.”

For more information about traffic stops or for help in defending a traffic offense or DUI, feel free to consult David Knecht, who is an experienced criminal defense attorney.  Davidknechtlaw.com.

If you are a renter, you have had questions about all the fees and deposits charged by landlords and wondered, “Can I get my security deposit back?” or “Are landlords allowed to charge application screening fees?” This article addresses many of the important questions a renter may have about lease agreements in California. For more information, contact David Knecht at davidknechtlaw.com.

1. Does the landlord have to return the application screening fee?

No. An application screening fee or new tenant processing fee that is used to check the background or the references of a prospective tenant can be non-refundable.

2. Can a landlord make a security deposit nonrefundable in California?

No, a nonrefundable deposit is technically illegal (See Civil Code Section 1950.5(m), but before you get too excited, please note that there are certain instances where a landlord may keep your deposit. A landlord can keep the security deposit if you owe rent, don’t leave it clean, damage the property, or fail to restore property (such as a key or furniture).

3. Is there a limit on the amount of the security deposit a landlord can charge in California?

Yes, there is a limit on security deposits. A landlord can charge the first month’s rent PLUS either two times the monthly rent (for unfurnished) or three times the monthly rent (for furnished). If the place has a waterbed, then these maximums are higher. For example, if your rent is $1000 per month for an unfurnished studio apartment, your landlord can charge $1000 for first month’s rent plus $2000 for the two month’s rent, for a total of $3000 in a security deposit.

4. What cities have rent control?

Some California cities have rent control ordinances that limit or prohibit rent increases. These ordinances vary by city, but they often specify rules for when rent can be increased or when a tenant can be evicted. You can often find these ordinances on the city web site. For a list of cities with rent control ordinances, go here. http://www.dca.ca.gov/publications/landlordbook/appendix2.shtml

5. What should I look for in a lease agreement?

An often neglected, but obvious, rule is that you should always read your lease agreement in full prior to signing it. If there is a term that is unacceptable to you, then you should negotiate with the landlord to remove it from the contract or decline to rent that particular property. Some of the basic items you will want to review are the following:

• Is the lease for a specific term, or is it month to month?
• What day is the rent due and how much is it?
• Am I responsible for utilities, HOA fees, etc.?
• Can I sublease to roommates or to another tenant entirely if I need to move out?
• What are the fees (look for carpet cleaning fees, pet deposit fees, key fees, cleaning fees, etc.)
• Are there any restrictions on how I can use the property? (parking, etc.)

Conclusion

As a renter, you are in the driver’s seat when reviewing a lease because a landlord wants your money, so take your time to read it carefully and understand the terms. If you have questions about a lease agreement or need representation in a housing contract dispute, contact David Knecht at davidknechtlaw.com.