This article will review an interesting recent California family law case, Featherstone v. Martinez, a summary of which can be found here. The entirety of the case can be accessed here: 

In this case Featherstone (the court refers to her as “Mother”) was the parent of a child who was under six months old at the time. Mother sought sole primary physical and legal custody on the basis that Father traveled a lot for work and was only in town a few days a month. Mother wanted visitation in her home, for only a few hours and with advance notice. Father wanted overnight visits at least hours and overnight visitation. 

The case becomes interesting with the court’s comments that were later found to be biased. Mother was representing herself and the court made statements such as:  “I know how hard it is. You gave birth to the child. You held the child. You’ve taken care of this child. It’s hard to conceptualize that he is every bit of the parent that you are, especially in this case because he’s been there from birth…so here’s the law: If everything is equal, you’re supposed to be sharing 50/50. Not six hours. 50/50.”

Mother retained an attorney and filed a disqualification motion on the basis of judicial bias. As the litigation proceeded, issues arose where the court took umbrage with Mother’s request to record the Zoom visits between Father and child and the court believed the disqualification motion was untimely and procedurally deficient. The Court sanctioned Mother $10,000 and sanctioned her attorney $10,000. 

The Court of Appeals held that both sanctions were improper. The sanction against the attorney was an error because the code section it was based on does not allow a sanction against a party’s attorney. The sanction against the mother was unwarranted because the court cannot sanction a party for taking litigation positions to which the court disagrees. Further, Mother had a right to believe that the judge was biased and file a motion to seek redress. 

TAKEAWAYS FROM THIS CASE

If you feel the court is biased, you have a right to make the appropriate motion. 

An attorney cannot be sanctioned with the legal basis of Section 271 

• Quote from the case: “Section 271 provides that a family court may impose an award of attorney fees and costs `in the nature of a sanction’ where the conduct of a party or attorney `frustrates the policy of the law to promote settlement of litigation and, where possible, to reduce the cost of litigation by encouraging cooperation between the parties and attorneys.”

Mother appeared at first hearing unrepresented and perhaps may have had a better outcome had she been represented from the start of the case. 

• Part of the basis for the improper sanction was that Mother’s disqualification motion was untimely. She waited until she had an attorney and then there was a delay in the attorney receiving the transcript.
• In some cases, having counsel from the beginning can help you prepare the case properly from the onset of the litigation, rather than having to fix problems later.  

Contact an Experienced Family Law Firm

At the Law Office of David Knecht, we have extensive experience in family law. Whether your divorce case is at the beginning, or whether you have tried another firm without success or whether your case has been going for years, we are here to help. We will leverage our many years of experience to provide you with knowledgeable and passionate representation. Contact us at 707-451-4502. 

A widely publicized estate planning case that is ongoing is the disputed estate of Lisa Marie Presley. As reported in the New York Times, Lisa Marie Presley (daughter of Elvis Presley), who was only 54 years old, died suddenly. Within a week Priscilla Presley (Lisa’s mother), went to court to challenge the validity of documents that result in Riley Keough (Lisa’s daughter) is the trustee.  In this article, we provide an update on the news of this case and additional best practice takeaways. Full story here: 

In a previous article, we summarized some basic estate planning principles that can be learned from this high profile case. Namely, 1) detail matter in estate planning, so ensure that documents are accurate, 2) if proper notice is required by the terms of a trust or will, then effectuating that notice is critical, and 3) keeping estate planning documents up to date is important because circumstances can change over time, with deaths, marriages, children born, changes in assets, etc.  

RadarOnline publicized that Riley Keough had changed the locks to the private portion of Graceland that was reserved for family use. The LA Times debunked this rumor by reporting that Graceland reps denied the rumors and issued a statement that read: “No locks at Graceland have been changed since Lisa Marie’s passing.“

A recent development in this case is the Lisa Marie’s ex-husband, Michael Lockwood, is seeking to represent their 14 year old twin daughters in an upcoming hearing for the trust. He asked a judge to appoint him guardian ad litem, giving him authority to speak on behalf of the daughters.

Takeaway Lesson for Estate Planning from this Case

One lesson to be learned from this case is that there are potential estate planning strategy decisions that can be made when setting up a trust. For example, a person may consider whether a family member is the best trustee or whether a neutral non-family member might be a better choice. This case also involves a trust that was changed, and it’s the validity of those changes that are being challenged. Another strategy decision that could be considered for a party that is making a change to a trust would be to revoke the original document and rewrite it with the incorporated changes. 

Contact an Experienced Estate Planning Firm

Another lesson that can certainly be learned from the Lisa Marie Presley dispute is that even for the wealthy, estate planning can have unforeseen pitfalls and challenges. For this reason, finding an experienced law firm to assist you is essential in making sure that your wishes are effectuated after you are gone. At the Law Office of David Knecht, we want to help you create a current and accurate estate plan that will help you achieve your goals. Contact us at 707-451-4502. 

A common issue in child support and alimony cases in a California divorce is imputation of income. This article will explain the concept of imputation of income and provide an overview of some of the basics in this area of divorce law. For a deep read on these issues, go to this article, “Kids, Custody and Alimony” from the Journal of Contemporary Legal Issues.

When does imputation of income typically become an issue?

• In child support or alimony cases
• When one spouse claims that the other refuses to work or is underemployed. 
• The court has discretion to assign an income to that person consistent with their earning capacity, ability and income earning opportunities

Does imputation only apply to employment? 

• No, the imputation can also relate to assets. 
• The court can also look at income producing assets and impute a reasonable rate of return to historically non-income producing investment assets.
• For example, if money is in the bank and not earning any interest, a family law judge does have discretion to assign a reasonable rate of return to that investment. 

Is the imputed income added to the actual income?

• Typically the imputed income is not in addition to the actual income but in lieu of the actual income when it comes to employment.
• However the judge does have discretion to add the imputed income from assets to imputed income from employment.  

Is there a case that can help me understand how imputation works in a divorce case?

• An interesting case from the California Court of Appeals 2001, In Re Marriage of Cheriton,  involving imputation of income from employment and investments can be found here:  

Consult the Law Office of David Knecht

Cases that involve imputation of income from employment or assets can be complex. If you need help with child support, alimony or any other issue in a California divorce, please contact us at the  Law Office of David Knecht. We have extensive experience with estate planning and can create a customized and effective estate plan just for you. Call us at 707-451-4502.

There are some questions that come up so often related to child custody that the California Courts have actually established an FAQ page with the answers to these common issues. This article will highlight some of the questions and answers that are often asked, but the entire FAQ page can be accessed here:  

Does joint legal custody mean that we have to agree on everything?

• The definition of joint legal custody.

• Joint legal custody means that both parents share the right and responsibility to make decisions relating to the health, education and welfare of the child. 

• As per the Court FAQ’s, since both parents each have the right to make decisions, they can make them alone. However, both parents should communicate and cooperate with each other in making decisions. 

If we have joint physical custody, do parents have to spend exactly 50% of the time with each parent?

• There are several physical custody options: 1) joint, where the children live with both parents, 2) primary, where the children live with one parent most of the time and visit the other parent, and 3) sole, where the children live with only one parent and rarely visit the other parent. 

• Joint physical custody does not necessarily mean that the children must spend exactly half of their time with each parent because splitting the time with mathematical exactness can be challenging. 

Will I pay less child support if I have the children more often?

• The amount of time that the children are spending with you is a factor in calculating child support. 

• In general , the more time you have with your children, the less child support you will have to pay under the theory that you are spending more money to support the child when they are with you. HOWEVER, the child support formula is not based only on time, but also other factors, such as the other parent’s income. 

CONTACT THE LAW OFFICE OF DAVID KNECHT FOR HELP WITH A CALIFORNIA DIVORCE

Do you have questions about child custody or child support in California, or do you need help with other issues in a California divorce?  Contact the  Law Office of David Knecht. We have extensive experience with family law in California including divorce, child custody, modifications and more. Contact us at 707-451-4502 for more information.