March 2012 Archives

Paternity and Child Support - What San Diego Dads Should Know

March 27, 2012

Under California family law statutes, paternity can be established in a number of ways depending on the relationship between the father and mother. Through the combination of statute-mandated presumptions and DNA testing, determinations regarding paternity made by the court can have a significant impact on child custody and child support.

An unmarried father must sign a paternity declaration in order for his name to appear on a child's birth certificate. The paternity declaration is significant because it creates both support obligations and parental rights for the father. In San Diego, there is a rebuttable presumption that a man who accepts a child into his home and openly holds that child out to be his own is the child's biological father. This presumption is rebuttable through the use of blood tests to determine paternity. If no blood tests are conducted and introduced into paternity proceedings, the man is presumed to be the child's father.

A child conceived during a martial relationship in which the wife is cohabitating with the husband is presumed to be a child of the marriage. In other words, the mother's husband is presumptively the child's father. If the husband is sterile or impotent, the marital presumption will not apply. This presumption may be overcome through the use of blood or DNA testing to determine paternity. The presumed father must petition for court-ordered blood testing within two years of the child's birth. Therefore, unless a motion is filed within the two-year statute of limitations and blood testing establishes the husband is not the father, the mother's husband is conclusively presumed to be the father. The presumption will still apply even if another man is proven to be the biological father of the child.

The marital and non-marital paternity presumptions can have harsh consequences regarding a father's parental rights. Considering that the husband of a child's mother is presumed to be the child's father and that in non-marital relationships a man must live with and hold a child out to be his own in order to be presumed the father, a child conceived out of an affair can create a devastating situation for the biological father. In a California family law case, Dawn D. v. Jerry K. (1998) 17 Cal.4th 932, this scenario became a reality. In this case, Dawn D. intended to divorce her husband when she began living with another man named Jerry K. Shortly after moving in with Jerry K. Dawn D. became pregnant. Just three months into her pregnancy, Dawn D. returned to her husband and rekindled their marriage. As a result of this case, the biological father, Jerry K. was unable to assert his parental rights to his child.

The paternity presumptions can have surprising consequences in terms of child support obligations as well. A presumed father is obligated to pay child support where support is ordered. If a presumed father makes child support payments for the child's minority and later learns he is not the biological father, he has no recourse for the 18 years of child support payments made. Further, if a presumed father conclusively proves through DNA testing that he is not the biological father of a child BUT has missed the two-year statute of limitations, he will be on the hook for child support payments for the remainder of the child's minority.

California family law cases operate under the best interest of the child standard. Most family court rulings attempt to further that interest as the paramount concern. Many argue that paternity presumptions are outdated, unnecessary and detrimental to the best interest of the child. Because science has advanced and paternity can be determined so accurately and efficiently, these advocates contend that DNA testing should be conducted in each paternity case in order to ensure the child's biological father is shouldered with the responsibilities and is able to enjoy his parental rights.

Please contact us if you are considering a divorce from your spouse, a legal separation, or have questions regarding custody and/or paternity. San Diego Family Law Attorney Nancy J. Bickford is the only board-certified divorce lawyer representing clients in San Diego who also holds an MBA and a CPA. Don't settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.

Celebrity Conservatorship Cases

March 22, 2012

Frequently conservatorship issues arise in California family law cases. On Tuesday March 20, 2012, Francesca Hilton, daughter of superstar Zsa Zsa Gabor, asked the court to grant a conservatorship over her ninety-five year old mother. Hilton claims that her mother's husband is mishandling her finances and possibly tampering with her medical treatment. In an effort to protect her mother's estate and health, Hilton requested that the court give her power over her mother's finances and medical care. If the court decides not to appoint Hilton as her mother's conservator, Hilton's attorney stated that she would be willing to allow a third party to do the job. In response to her accusations, Gabor's husband has alleged that Hilton is filing for conservatorship in an effort to get her mother's money. A hearing has been scheduled on May 2, 2012 to litigate the conservatorship.

While conservatorships are relatively common for older adults like Zsa Zsa Gabor, it is not often that a conservatorship is granted over a young and healthy adult. Recently Jamie Spears' conservatorship over his daughter's estate has been the subject of celebrity gossip. Pop icon Britney Spears was declared mentally incompetent in 2007 when her father became the conservator over her affairs. Britney's team has been accused of using the conservatorship as a form of protection for Spears. Many lawsuits have been filed against Britney and/or her affiliates and, considering she is mentally incompetent, she has not been forced to participate in the litigation including depositions. The conservatorship has also had consequences for Spears' personal life and career including the sale of her home, the postponement of her wedding, and a new contract to act as a judge on The X Factor.

A conservatorship is a court proceeding to appoint a person to manage the financial affairs and/or personal well-being of another person who is either mentally or physically unable to manage his or her own finances or personal care. A conservator can be either a person or an organization. Often a family member, close friend, or hired professional is appointed as conservator over the conservatee's estate or medical care.

A San Diego court may order different conservatorships depending on the facts of a particular case. The court can grant a conservatorship of the person. This conservatorship is appropriate when the conservatee has a severe physical disability and is unable to provide for his or her basic needs. In a case where the conservatee is not mentally competent to handle his or her finances including both debt and income, the court can grant a conservatorship of the estate. The court has the authority, as it did in the Spears case, to grant a conservatorship of the person and the estate. This combination approach grants the conservator control over both the health and finances of the conservatee.

A conservatorship is a complex proceeding that often requires many court hearings and attorneys. The conservator has great power over the life and estate of the conservatee; however, he or she is also charged with many responsibilities. The conservator is responsible for keeping detailed records of his or her decisions and actions along with filing updates with the court on a regular basis. This court supervision provides extra protection for the incompetent or disabled conservatee. Additional safeguards are in place regarding real property. In order to ensure that the conservator makes responsible decisions, especially regarding significant assets, the court may require the conservator to seek court approval before the sale of real property. This additional step may also be necessary in order to carry out a decision to take the conservatee off life-sustaining support. In the Spears conservatorship case, Jamie Spears was unable to sell Britney's LA mansion without prior court approval. This type of constraint is common in most conservatorship cases.

San Diego Grandparents, Could You Get Custody?

March 16, 2012

Recently, in Corpus Christi, Texas two grandmothers were awarded custody of their one-year-old granddaughter, Gabby. The child's mother, Victoria Valdez, was only 16-years-old when she tragically died from severe head injuries caused by a car accident on New Year's Day. The child's 18-year-old father, Gabriel Padron, was driving the car when the accident occurred and is suspected of driving under the influence of alcohol. Although he admits to drinking prior to the crash, he denies being drunk while driving his vehicle. No arrest has been made and charges have yet to be filed; however, he has been accused of intoxication manslaughter. Toxicology results are still pending.

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During the custody case, Gabby's aunt testified that Padron was a dangerous domestic violence perpetrator and was unsafe for Gabby to be around. Valdez's sister further testified that the victim refused to leave Padron out of fear. During the trial, witnesses testified about both grandparents' role in Gabby's life prior to the accident and what accommodations Gabby would have in their custody. These witnesses described the baby's room, clothes, crib, and toys in each home. As part of a temporary custody agreement, the paternal and maternal grandmothers will share custody and Gabby will continue to reside with her paternal grandmother who cared for her immediately following the accident. Gabby's father was only given weekend visitation.

In San Diego, generally, following the death of a custodial parent, the surviving parent is entitled to sole legal custody. However, other relatives such as aunts, uncles, or grandparents may fight to obtain custody of the child. These relatives may file a guardianship or dependency action, or in the case of grandparents, a motion for grandparent visitation. If the relatives are successful in showing it is not in the child's best interest to remain with the surviving parent, they may be awarded custody. In the Texas case, family members testified about the father's violent behavior and suspected drunk driving and eventually were granted temporary custody of the minor child.

Under California Family Code section 3104, a grandparent of a minor child may petition the court for visitation rights. The court may grant reasonable visitation if the court does the following: (1) finds that a grandparent-grandchild relationship existed prior to the action and that it is in the best interest of the child to visit with the grandparent, and (2) carefully balances the parent's right to exercise his or her authority and deny visitation against the interest of the child in having visitation with the grandparent. It is important to note that this type of petition may not be filed while the grandchild's parents are married unless one or more of the following exceptions apply:

(1) The parents are living separate and apart on a permanent or indefinite basis;
(2) One parent has been missing for more than one month and the other parent has no knowledge of his or her whereabouts;
(3) One of the parents joins the grandparent in his or her petition;
(4) The child is not currently living with either parent; or
(5) A stepparent has adopted the child.

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Grandparents may have an uphill battle convincing the court it is in the child's best interest for the grandparent to have visitation. In California, there is a rebuttable presumption that grandparent visitation is not in the child's best interest if the parents agree that visitation rights should not be granted.

Please contact us if you questions regarding child custody, visitation or support. San Diego Family Law Attorney Nancy J. Bickford is the only board-certified divorce lawyer in San Diego representing clients who also holds an MBA and a CPA. Don't settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.

The Gambling Spouse

Although most people can gamble on a recreational basis, millions suffer negative consequences in their lives from problem gambling. According to the National Council on Problem Gambling about two to three percent of adults experience gambling-related problems each year. These problem gamblers have an uncontrollable urge to gamble and cannot stop gambling despite the negative consequences that result from their gambling. These negative consequences are frequently financial problems that impact the gamblers personal life, family relations, educational endeavors and/or employment.

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Sometimes the gambling and problems stemming from the gambling becomes so bad that the non-gambling spouse files for divorce. When this occurs, the non-gambling spouse usually reports that the gambling spouse gambled away a significant amount of community property assets and that there are outstanding gambling debts. However, the non-gambling spouse may not be liable for the outstanding gambling debts.

Generally, all assets and debts incurred during marriage are considered community property. Family Code §2625 makes an exception to the general rule stating that, "All separate debts, including those debts incurred by a spouse during marriage and before the date of separation that were not incurred for the benefit of the community, shall be confirmed without offset to the spouse who incurred the debt."

This Family Code section provides the court with the ability to assign gambling debts to the gambling spouse. This is one of the few insteances where a court has the discretion to make an equitable division based on fault rather than an equal division of debt.

In the case In re Marriage of Cairo, Wife was able to prove that debt incurred during marriage on credit cards in Husband's name was for Husband's gambling. The Trial Court characterized the credit cards in Wife's name as a community property obligation and the credit cards in Husband's as his separate property obligation. The Court of Appeal affirmed relying on the predecessor to Family Code §2625, which also stated that debts not incurred for the benefit of the community can be assigned without offset to the spouse who incurred the debt.

On the other hand, if the gambling spouse wins big when gambling with community property assets, then those gambling proceeds could be considered community property assets and equally divided between the parties.

In the case In re Marriage of Shelton, after separation Husband gambled $10,000 of community property monies at a casino in Nevada, won $22,000 and bought Ferrari for $32,000. Husband claimed that $22,000 of the value of the car was his separate property. The Trial Court disagreed and characterized as the car as community property. The Court of Appeal affirmed holding that the character of the gambling proceeds follow the character of their source. In this case the source of the monies used to gamble were community property, therefore, the gambling winnings were also community property. The Court of Appeal rejected Husband's argument that the winnings were his separate property post-separation earnings because gambling is primarily a game of chance where the skill component is small.

In the case In re Marriage of Wall, Wife used her post-separation earnings (or support payments) to buy an Irish Sweepstakes ticket and won $120,000. Although Husband claimed the winnings were community property, the Trial Court disagreed and awarded the winnings to Wife as her separate property. The Court of Appeal affirmed. Unlike the Shelton case, in this case the source of the monies used to buy the Sweepstakes ticket was Wife's separate property. Therefore, the Sweepstakes winnings were also her separate property.

Continue reading "The Gambling Spouse " »

San Diego Pets, the New Custody Battle

March 9, 2012

It is not surprising that many California couples decide to adopt pets. But what happens to those pets when the couple decides to seek a divorce? Across the country custody battles over family pets are increasing. Although pets are not technically the couple's children, they can become a core part of the family that neither spouse is willing to part with. If the couple does have children, the judge is likely to order the pet to stay with the child.

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One reason these pet custody cases are on the rise is the dissolution of same-sex marriages or domestic partnerships. These legal unions are relatively new and the couples tend to adopt pets in lieu of or in addition to children. Unlike children, pets are a form of property in every state. In the past, pets have been divided up along with the rest of the marital property without distinction. The family courts are changing and beginning to recognize that pets are more like children than furniture. The shift may be resulting from a widespread recognition of pets as part of the family rather than mere possessions. Litigants are now passionate and unashamed to fight for custody of a pet.

When a couple divorces, the best interest of the child guides a judge's decisions on child custody and visitation. For pets, this is not the case. Since pets are a form of property, the laws regarding pets are generally aimed at benefitting the owner. The court will consider the same factors when deciding who gets custody of the pet as they would in deciding who gets custody of a television set. The court takes into consideration factors such as: whether either spouse owned the property prior to marriage or post separation, how much the property is worth, and any agreement the couple reached about who gets the property.

As California family law stands today, there is no pet visitation provision. The courts simply have the authority to award custody of the pet to one party or the other. If splitting couples wish to split time with their pets they must work out a visitation schedule together. These schedules can be negotiated with the help of lawyers and mediators. Some can be rather elaborate and include long-distance traveling for the pet, a holiday schedule, daycare expense sharing, grooming responsibilities, training, treats, food, medical care and other related decisions. Like parents who share legal custody of a child, some couples agree to share a form of legal custody of a pet. This means that both parties will have the right to make decisions regarding the health, safety, and welfare of the pet including end of life decisions.

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Another area of family law that has begun to recognize pets as family members is domestic violence. In the past, domestic violence restraining orders could not be issued to protect pets. More recently, this has become a common practice. Under California Family Code section 6320(b), "on a showing of good cause, the court may include in a protective order a grant to the petitioner of the exclusive care, possession, or control of any animal owned...the court may order the respondent to stay away from the animal and forbid the respondent from taking, transferring, encumbering, concealing, molesting, attacking...the animal." Local community organizations have also reached out to victims of domestic violence and their pets. For example, Rancho Coastal Humane Society offers shelter for the pets of these victims while they escape their abusers and seek shelter themselves. Because abusers tend to threaten harm to the animal as a tool to control their victim, these programs facilitate a victim's decision to escape and take part of the abuser's power away.

Please contact us if you are considering a divorce from your spouse, a legal separation, or have questions regarding custody. San Diego Family Law Attorney Nancy J. Bickford is the only board-certified divorce lawyer representing clients in San Diego who also holds an MBA and a CPA. Don't settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.

Camille and Kelsey Grammer Settle Their Custody Battle

March 8, 2012

After a long and embarrassingly public divorce, Beverly Hills Housewife Camille and Broadway star Kelsey Grammer reportedly end their custody battle. The couple shares two children: Jude, 7 years old, and Mason, 10 years old. It seems that Camille will have physical custody of the children since their primary residence will be with her. Kelsey will reportedly have "meaningful contact" with the children. After a 13-year marriage it appears both stars have moved on. Kelsey remarried within two weeks of finalizing his divorce. He and his new wife are expecting twins. According to Camille's statements on her show the "Real Housewives of Beverly Hills" , she is also happily in a relationship with lawyer Dimitri Charalambopoulos.

Camille filed for divorce on July 1, 2010 after learning of Kelsey's affair with a stewardess, Kayte Walsh. Kelsey was able to marry his new wife Kayte Walsh before settling all aspects of his divorce with Camille through the bifurcation process. In order to accomplish this, Kelsey asked the judge to grant a divorce decree while suspending the division of the large and complex marital estate. The estate is estimated to be worth $120 million dollars and because the couple did not have a prenuptial agreement, Camille demanded $50 million.

In San Diego, the court will agree to bifurcate a divorce case. States like New York, Texas, Arizona, and Michigan only bifurcate cases in exceptional circumstances. California is part of a minority of states that bifurcate divorce cases for almost any reason. To bifurcate a case is to split it into two parts. Generally, as in the Grammer divorce, the first issue to be litigated is marital status. By resolving marital status, each spouse becomes divorced and therefore single and able to legally remarry. The remaining issues may include disputes over property distribution, child custody and visitation, child support, and alimony.

A party may wish to bifurcate a case in order to remarry like Kelsey or the spouse may be motivated by tax consequences or implications. A person can file his or her taxes "single" as long as his or her marital status was terminated before the end of the year. During a divorce proceeding, the court often makes temporary orders for spousal support. Any spousal support payments are 100% deductible for the payor and must be claimed as income by the payee. This tax consequence is not implicated if the couple decides to file a joint tax return. In other instances, when the divorce is a particularly acrimonious one, bifurcation can prevent one spouse from exerting control over the other's personal life by delaying the ultimate result, divorce.

A bifurcation may be obtained by agreement of the parties. In this case, the parties stipulate that the cause may be tried as an uncontested matter. Because a divorce can take many months or even years to proceed through the California family court system, many parties seek to bifurcate their case in order to obtain some degree of finality. They will be legally divorced and able to move on with their lives while in the process of litigating other matters. Not surprisingly, Camille opposed Kelsey's motion to bifurcate the divorce proceedings. Although many speculated that Camille was simply acting as a woman scorned, she was also concerned that legally divorcing Kelsey would leave her with uncertain rights to the marital estate that had yet to be divided.

Please contact us if you are considering a divorce from your spouse, a legal separation, or have questions regarding custody. San Diego Family Law Attorney Nancy J. Bickford is the only board-certified divorce lawyer representing clients in San Diego who also holds an MBA and a CPA. Don't settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.

Texting Can have a BIG Impact on your Divorce Case

We have blogged several times about the potential problems that Facebook and other social media sites can have on a divorce. The same potential for problems also applies to the text messages you send. Although it is sometimes difficult to get text messages into evidence (meaning properly in front of a judge), once the text message is in evidence, it could change the outcome of your case!

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Unlike Facebook and other social media posts, text messages cannot be deleted or recalled. Any text that you send to your spouse, or even to a third party, can end up being used against you in a divorce. With phones now having up to 64 gigabytes of storage, or more, texts from many years ago could end up being presented as evidence to the judge in your divorce case.

• If you threaten to harm your spouse in a text, that may be the basis for a restraining order, or even criminal prosecution.

• If you call your spouse names in texts, the judge could end up with an unfavorable opinion of you.

• If you say one thing in your declaration (such as, "I do not use drugs") and text something contrary to your spouse or a third party (such as, "I can't believe how stoned I was at the party"), you will ruin your credibility with the judge.

In a recent story on NPR, Ken Altshuler, president of the American Academy of Matrimonial Lawyers, provided the following tips for keeping your texts out of court, upon which I elaborate:

• Do not text your spouse anything that you would not want a judge to see. This also applies to Facebook and other social media posts, messages or comments, emails, and even voice mail messages. It is always best to assume that any text, anything you write or any voice message you leave for your spouse will end up in front of your judge. Some examples of what not to post, blog or text about can be found here.

• If your spouse or former spouse sends you an inappropriate text, do not respond in kind because a judge will see that. The judge usually does not care who started an inappropriate exchange because the exchange is usually just a small part of the bigger picture. In one of my cases after reviewing hateful emails back and forth between the parties, the judge (slightly misquoting Mercutio's famous line from Shakespeare's Romeo and Julie), said "A pox on both your houses." When the other party blurted out, "She started it!" the judge replied, "Sir, two wrongs do not make a right - and your emails back to here were totally inappropriate, no matter who started it."

• Do not send messages that set your spouse up for an inappropriate or angry response. On the other hand, some Judges will look into who started it. You do not want your judge to find that you were the party that started it, or someone who is baiting the other side. This could ruin your credibility with the judge for the rest of your case.

• If you are worked up and want to send your spouse a message, take time to calm down before putting anything in writing. Again, if it is in writing, you must assume that your judge will eventually read it. If you are unsure about a written response to your spouse, send it to your attorney for review before sending it to your spouse.

Always remember, do not text anything to anyone that you would want the family law judge in your case to see or read.

Continue reading "Texting Can have a BIG Impact on your Divorce Case" »