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.

  1. 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.

  1. 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
  1. 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.

  1. 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.

 

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.

  1. 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.

  1. 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.

Dating and Divorce:  Can Dating Impact Your Divorce in California?

If you are in limbo during the sixth month waiting period for a California divorce, you may be wondering if you can start dating again.  This article will discuss the ramifications dating may or may not have on your California divorce.

California is a no fault state, so dating will not impact your ability to get a divorce.

In California, you do not need to prove that one party did something “wrong” in order to file for divorce. Divorces are generally filed for “irreconcilable differences,” so if whether you are dating or not dating during the marriage or separation period is irrelevant to your divorce.

Dating could impact spousal support if you are living with the new boyfriend/girlfriend.

Section 4323 of the Family Code states: Except as otherwise agreed by the parties in writing, there is a rebuttable presumption, affecting the burden of proof, of decreased need for spousal support if the supported party is cohabitating with a nonmarital partner.

This does not mean that living with your new boyfriend/girlfriend will for sure impact the spousal support.  With a rebuttable presumption, you can present evidence to show that your need for spousal support is not reduced by the cohabitation. For example, if you showed that the new partner did not provide any of the money used for the cohabitation, then that may be sufficient to overcome the presumption.  The facts will vary depending on your circumstances, so consult with an attorney about your case, but the point of this section is to make you aware that living with someone new could impact your spousal support so that you can research the issue further.

Dating could impact custody.

The court will be looking at the best interest of the child to determine custody, so the person that you are dating could potentially impact that analysis in many ways:

  • Will the person you are dating be involved in child care?
  • Does the person you are dating have any criminal history?
  • Does the person that you are dating have history with your ex such that your ex may be able to argue that the person is a bad influence on the child?

The choice of whether to begin making friends or romantic connections before your divorce is final is one that faces many couples going through a divorce.  Although dating may not impact your case itself directly, you should certainly consider all the collateral ways in which a new relationship may affect you and make an informed decision about how to incorporate someone new into your life.

 

 

 

5 Strategies for a Successful Financial Divorce Settlement

You are probably new to the divorce process, so you may be at a loss on how to successfully negotiate the financial side of your divorce settlement.  This article will highlight five of the most important strategies for success in sorting out the money side.

  1. Be prepared to change your mind and don’t draw lines in the sand with the other party until you know what’s for certain the best course of action for you. Over the course of a separation and divorce process, one or both parties often have a change of perspective on what’s the best course of action.  For example, initially a party may want to keep the home or sell the home. Often expectations of custody arrangement play into this, where on parent may want to keep the home to keep the stability for the children in terms of schools, neighbors, activity programs, etc.  As the terms of child custody become clearer, you may find it more advantageous to sell the home or rent it, or your original plan may end up being the best.  Your goal is to look after the best interest of yourself and your children, so it’s often best to avoid drawing lines or going to battle until you know for sure what you want. You don’t want to pen yourself into a decision that ends up being disadvantageous.
  1. Look into the tax consequences and financing realities of each decision course. Initially couples tend to gravitate to simple solutions:  sell the house, sell the business, have one spouse buy the other out, etc.  This may be the best for you, but it may not.  Talk to a professional about the tax implications of each course of action.  For example, if you have to liquidate tax deferred investments in order to finance a buy out, then it may not be in your best interest to do so.  If selling a business at this juncture will significantly impact its value, maybe that is not the right decision. Talk to the experts and open your mind to solutions that may initially be more complicated, but may pay big over the long haul.
  1. Be conservative and avoid making big decisions until your divorce is finalized. Negotiating the finances is emotional and stressful for all parties involved, and it is typically a very bad time to make huge changes in your life. Avoid changing or quitting a job during this time if possible. Keep the status quo as much as possible financially. Don’t do anything to destroy value in any of your assets or to hide income or assets from the other spouse. 
  1. Try to settle quickly and efficiently. Some cases cannot be settled and in those instances you should feel entitled to enforce your rights.  However, in many instances a negotiated settlement saves money for both parties.  To the extent you can, take your emotions out of the picture and look at the numbers.  Educate yourself as soon as possible on the options and the ramifications of each option. The more you can take the lead in finding meeting ground that is favorable to you and acceptable to the other party, the faster your finances will be settled and you can move forward.  Typically neither party will benefit from dragging the process out. 
  1. Consult the right people. You will get a lot of advice from family, friends and coworkers. Listen to that advice and take it for what it is worth. However, take the time to consult people with experience and knowledge. The final decision is always in your hands, but the right professionals can give you the information necessary to make good decisions.

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.

 

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.

 

Men:  Who to Turn To If You Can’t Save Your Marriage and Divorce Is Imminent

Men, we know that it can be rough on you when you want to save your marriage, but you feel like there are issues that just can’t be resolved. When you reach that point, you may wonder what you should do to plan for the future.  Who should you turn to? This article will help you navigate the troubles that may come your way soon.

It’s never too early to educate yourself:  Consult an attorney who is experienced in divorce law.

Knowledge is power.  So, whether you’ve made the final decision or whether you are still in the mix of determining what to do, it’s never too early to consult with someone who can give you advice about your exact circumstances and assets. Here are some things you’ll want to discuss:

  • Children: discuss with your attorney how you can plan custody to best accommodate your work schedule and other commitments.
    • For example, what is your work schedule?  What is your spouse’s work schedule or does she primarily take care of the kids? Do you plan to move out of state?
  • Assets: Divorce is expensive for both parties because the assets will be split. Talk with your attorney about the assets you have and your preferred means of managing them in a divorce.
    • For example, do you want to sell the home or keep one spouse in it? Do you have a preference on dividing the cars?  Are there assets that have sentimental value or are meaningful to you in a way that goes beyond their monetary value?
  • Debts:  If you have school loans, car loans, credit card debt, mortgage debt, or any other kinds of debts, you need to plan for the division of these debts with your attorney.
    • Consider in advance any court costs that will be involved in the divorce, mediation fees, and legal fees.

Protect Your Mental Health and Amp up Your Physical Well-Being:  Turn to friends and family and other trusted advisors for encouragement.   

Plan for a tough time ahead. No matter how bad a marriage is, a divorce can still take a toll on both parties because it is a change. Things will be different.

  • Understand and anticipate powerful emotions.  During a divorce you may experience greater emotions of isolation, discouragement, despair, anger or bitterness.  Prepare for this by bolstering your own mental toughness.
    • Reach out to old friends. Go to lunch or the gym. Remember the good times.
    • Although you may not want to tell your family that divorce is imminent, it doesn’t hurt to contact them and renew family bonds so that those relationships are close for when you need the support.
  • Amp up your physical health. It’s common for men to forego their regular exercise or to take on bad eating habits during stressful events in their lives, and a divorce is commonly a stressful event that takes its toll on men’s health.
    • Do what works for you to keep yourself feeling good. Whether that’s setting fitness or nutrition goals, or working out with a buddy, or finding more time to be in nature, or running, etc., you need to do what works best for you personally to maintain good health.

Hard times are an inevitable part of a man’s life, and many guys will confirm that a divorce can be challenging.  If you prepare yourself with knowledge, protect your mental health, and amp up your physical well-being, you will be in a strong position to make the most out of the divorce process.

 

What Does It Mean to Establish Parentage and When Is It Necessary?

If you are having a baby, you may be wondering what you can do to protect your baby’s rights. You want your child to have all the support he or she needs from the father. Establishing parentage can be an important step for you to take if you are not married to the baby’s father. This article will walk you through some of the basics of establishing paternity and help explain why parentage is important.

  1. What is parentage? What is paternity?

When a child is born to parents who are married (or to parents in a domestic partnership after 2005), then the law presumes that the couple are the child’s parents.  If the parents are not married, then the father only has legal rights and responsibilities if parentage is established.  However, in some cases parentage will be presumed, such as “parentage by estoppel,” where the parent welcomed the child into his home and treated it as his own.

  1. Why is establishing parentage important?

If you want custody, visitation or child support orders from the court, parentage will have to be established. This can also be important in a same-sex parenting situations if the parents were not married when the mother became pregnant or when the child was born.  There are other advantages: having health and life insurance coverage from either parent, the right to inherit from either parent, the right to receive social security and veteran’s benefits, just to name a few.

  1. What if the father does not admit that he is the parent?

A court may order the alleged father, mother and child to be genetic tested in order to establish parentage.

  1. What are the consequences and rights of the parent after parentage is established?

A parent has generally the right to get custody or visitation rights related to the child, although this right may be impacted in some cases by criminal history. A parent also has a legal obligation to financially support the child, but the amount of financial support will vary depending on various factors including income, custody arrangements, etc.

  1. What are the ways to establish parentage when the child’s parents aren’t married or in a domestic partnership?
  • Signing and filing a voluntary Declaration of Paternity – this is a form that both parents voluntarily sign, which established them as the legal parents of the child. The advantage of the voluntary Declaration is that neither parent has to go to court. After the form is signed, it needs to be filed with the California Department of Child Support Services.
  • You local child support agency can bring an action to establish parentage of a child. This often happens as a matter of course when welfare is requested for the child.
  • You can bring your own court case to establish parentage, which will involve several court forms and possibly a trial. You may want to utilize the help of an attorney or an agency to navigate this process.

 

Typical Legal Procedure for a DUI Case

                  If you have a loved one who is facing DUI charges, or if you yourself are concerned, this article will provide a general overview of the legal procedure for a DUI case from start to finish.

  1. The Driver Comes in Contact with Police. A DUI case begins when you come in contact with the police.  This typically happens because of a traffic- related incident, such as a traffic violation (speeding or weaving) or a traffic accident.
  1. The Police Notice Indications or Alcohol or Drugs. The police officer may notice a scent of alcohol in your breath or physical symptoms such as slurred speech, bloodshot eyes, etc.
  1. Tests Are Performed by Police. The next step is where the police officer builds the case against you by collecting data through field sobriety tests or chemical tests, such as a breath test or blood draw.
  1. Booked in Jail/Car Impounded. You will typically be booked in jail and your car will be impounded.
  1. Prosecutor Reviews. The Prosecutor reviews the evidence and decides whether to charge you with an offense or decline to file charges.  If you are charged with DUI, it is likely in your best interest to engage and attorney as soon as possible.
  1. Driver’s Licenses Suspension. After the arrest, your licenses is suspended for 30 days. The DMV will automatically suspend your driver’s license after the 30 days unless you request a DMV hearing within 10 days of your arrest. 
  1. Arraignment. This is your first hearing where you have an opportunity to enter a plea of guilty, not guilty or no context. Entering a not guilty plea is very common at this stage, and you should not feel forced to enter a guilty plea even if you believe you are guilty.
  1. Hearings/Plea Negotiations/Motions. You may likely come back to court several times during the course of your case to negotiate with prosecutor or present a motion. A typical motion is a Motion to Suppress, where you or your attorney argue that certain information cannot be considered as evidence in your case because it was obtained in violation of your Constitutional rights.
  1. Trial/Plea. Eventually the case will either go to trial, where you will be convicted or acquitted, or you will enter a plea, or the prosecutor may in rare instances at some point choose to dismiss the case.
  1. Sentencing. The sentencing phase is where the judge determines the appropriate consequence for your actions.  Often sentencing will involve meeting with a counselor, who will ask questions and prepare a report about you for the judge. The counselor may make recommendations to the judge regarding appropriate education or therapy. At sentencing, the judge may impose jail time, community service, and fines.

 

 

Should You Trust an Attorney with Honors and Awards?

This article will give you a helpful map of the honors and awards that you should be looking for as you consider an attorney’s resume and whether he or she is the right person for you.  This will tell you what to look for and the red flags to avoid in analyzing an attorney’s success and history.

  1. Look for Past Successes. An excellent experienced attorney will have a long history of past successes. This is likely the type of success that you want to give the most weight when comparing attorneys because success in your particular type of case is likely to be the most relevant.  Look for a “Result” tab or “Successes” tab on the attorney’s website.  This will give you an indication of the types of cases the attorney has handled.  You will also get a feel for what a successful outcome in those cases looks like to him or her.
  • A disclaimer on past successes is a good thing. Typically, an attorney will have a disclaimer that states something to the effect that a success in one case does not guarantee a success in your case.  The disclaimer itself is in indication that the attorney is honest and ethical.  An attorney who promises you a particular result should be viewed with skepticism because no two cases are ever identical.
  1. Look for Relevant Experience in Other Roles. Look for experience that is relevant to the type of case you will engaging the attorney to handle.  For example, in criminal law, an attorney who has been on both sides of the case can have a unique perspective that can be helpful to you.  For example, a defense attorney who also worked as either a prosecutor or as a police officer may know the system from the inside out.  Similarly, a family law attorney who has experience as a guardian ad litem, victim advocate, or some other role in the court may be able to draw on that broad exposure to assist you more effectively.
  • Red flag. Experience in other roles can be very effective in building an attorney’s skills, but be cautious of someone who has very recently switched to the area of law you are interested in.  An attorney whose recent experience is relevant to your case is likely more ready to represent you than one who just barely switched to your area of law.
  1. Clerkships can be prestigious and also give an attorney insight into the court system or the political system that the attorney wouldn’t otherwise gain from just practicing law alone.  Look for clerkships on an attorney’s resume, and you may give more credence to clerkships that are with judges in California or your county.
  1. Law School Awards and Honors. Awards from law school may be in the far past, but they give you an idea of the personality type of the attorney.  Look for participation in law school extra-curricular activities, such as Moot Court or Law Review or clerkships completed during law school.
  1. Law-Related Memberships, Community Awards, and Community Service. You will likely want an attorney who is well-respected in the legal profession and the community.  Look for memberships in legal organizations, because these show an interest and connection to those legal specialties or groups.  Look for community awards because these indicate that your attorney has accomplished goals that are above and beyond the norm.  Consider community service that has been done by your attorney because those may indicate a personality that is committed to helping others.