Sonoma County Lawyer Blog

While yesterday in court the judge disagreed with me, in my opinion California law does not make this a prerequisite.

One component of the uniform guideline formula is the "H" factor, which represents the "approximate percentage of time that the high earner has or will have primary physical responsibility for the children compared to the other parent." Thus, the only relevant argument for the higher wage earner to make is that he, or she, has primary responsibility during the time at issue

The courts have considered cases of disabled adult children in a care home, children in school or daycare, and even a child in boarding school held in each that it is proper to credit the custodial parent with the parenting time. The courts focus on "primary physical responsibility" not actual physical custody or presence - adult disabled child in care home (In re Marriage of Drake (1997) 53 Cal. App. 4th 1139, 1160).

Daycare-"It is the custodial spouse who, after all, has the burden of finding, arranging and fronting the money for appropriate day care, who must deliver and pick up the child, and whose workday will be interrupted if there are any medical or other emergencies" (In re Marriage of Whealon, 53 Cal. App. 4th 132.)

In summary, according to In re Marriage of DaSilva, (2004) 119 Cal. App. 4th 1030, if a parent desires credit for time the child is not physically with him or her, then the parent has the burden of producing admissible evidence demonstrating he or she is primarily responsible for that child during those challenged times. Relevant factors include: (1) who pays for transportation or who transports the child; (2) who is designated to respond to medical or other emergencies; (3) who is responsible for paying tuition (if any) or incidental school expenses; and (4) who participates in school activities, fundraisers, or other school-related functions.

In short, just because your child does not live with you does not necessarily mean you can't get child support. However, I may need to file a Writ to get this point across.

The Law Offices of James V. Sansone assists individuals in child custody disputes and other family law issues throughout the North Bay area of California, including Sonoma County, Mendocino County, Lake County, Santa Rosa, Napa, Petaluma, Cotati, Rohnert Park, Sebastopol, Healdsburg, Sonoma, Kenwood, Glen Ellen, Windsor, Bodega Bay, Ukiah, Willits, Clearlake, Lakeport and Kelseyville.

Many people I speak to feel that justice is not done in state court. Their concern is not that the state courts don't work hard and try, it's simply a lack of resources and a heavy case load. So, is there a legal remedy for this in federal court, the 9th Circuit has held NO.

In, E.T. v. Cantil-Sakauye, the court held that a federal court properly abstained from considering foster children's claims challenging the "crushing and unlawful caseloads" of state dependency courts where the remedy sought would necessarily require that the court intrude upon the state's administration of its court system.

E.T. and several other minor foster children filed suit on behalf of themselves and a proposed class of some 5,100 others in Sacramento County. They alleged that "crushing and unlawful caseloads" frustrated the ability of local dependency courts to fairly and adequately hear their cases, and likewise stymied the ability of court-appointed counsel to provide them effective assistance.

The court of appeals observed that pursuant to federal constitutional limitations on the federal government, federal courts may not entertain actions that seek to impose an ongoing federal audit of state proceedings.

Continue reading "Is There A Remedy For The CA State Court's Excessive Case Load" »

In a previous blog post I wrote about the process of terminating a parent's Parental Rights.

To summarize, A proceeding under Family Code Section 7800 et seq. may be brought if the child has been left in any of following circumstances:

1) Without provision for identification by his or her parent or parents; or

2) By both parents or by his or her sole parent in the care and custody of another person without any provision for support or without communication from the parent or parents for six months; or

3) By one parent in the care and custody of the other parent without any provision for support or without communication from the absent parent for a period of one year.

A common defense to termination is that the parent whose rights are to be terminated has a sufficient bond with the child which would make termination not in the best interest of the child or children. However, now it appears that regular monitored visits are insufficient to establish a parent-child relationship.

Continue reading "Regular Monitored Visits Are Insufficient To Establish The Parent-Child Relationship Exception For Adoption" »

State statutes governing dependency proceedings are set out generally in Welf. & Inst. Code § 300 et seq. Dependency proceedings are special proceedings traditionally viewed as being governed by their own set of rules and statutes.

Because of the parents' work schedules, they left their minor child at the home of the paternal grandfather and the paternal great aunt. On a Wednesday in March 2011, the grandfather, who had been home alone with eight-month-old took her to a hospital. When she arrived, she was limp, pale, and nonresponsive. CPR was administered and she was transferred to Rady Children's Hospital, where testing "showed presence of a right subdural hematoma which was mixed density, acute or acute and chronic," and bilateral retinol hemorrhages "most consistent with subacute."

The parents told the attending physician that the child was healthy when they left her with the grandfather the previous day and they were unaware of any traumatic event. The parents reported that the grandfather told them he walked away from the child when she was lying down drinking a bottle. He heard her begin to choke and returned to her, finding her limp.

The San Diego County Health and Human Services Agency took the child into protective custody and filed a petition on her behalf under section 300, subdivision (b). The petition alleges that the child's injuries "would ordinarily not be sustained except as the result of the unreasonable or neglectful acts or omissions of the parents of the child and there is substantial risk that the child will suffer serious physical harm or illness." (See § 355.1, subd. (a).)

Continue reading "Substantial Evidence Showed That Removal From Parents' Home Was Reasonable" »

Generally in court, documentary evidence such as records, letters, bills, contracts, and similar writings have to be authenticated or identified before being admitted in evidence as genuine.

In today's society, information obtained on social networking websites is being used in court as evidence against the party who made the post.

This seemed to have begged the question, how do you properly authenticate a social networking post? That question has been answered in People vs. Valdez.

In Valdez, supra, a jury convicted Vincent Julian Valdez, Jr., of two counts of attempted murder, four counts of assault with a firearm, and two counts of street terrorism (Pen. Code, § 186.22, subd. (a)), arising from two separate drive-by shootings. Valdez asserts challenges to the sufficiency of the evidence to support his conviction of street terrorism by arguing that the trial court erroneously admitted pages from his MySpace social networking site that included his gang moniker ("Yums"), a photograph of him making a gang hand signal, and written notations including "T.L.F.," "YUM $ YUM," "T.L.F.'s '63 Impala," "T.L.F., The Most Wanted Krew by the Cops and Ladiez," and "Yums. You Don't Wanna F wit[h] this Guy."

Continue reading "Contents of MySpace Page Are Sufficient To Establish Its Authenticity" »

According to the New York Times, the startling vote came up at a City Council meeting in Topeka Kansas on Tuesday, provoked by a run-of-the-mill budget dispute over services that had spun out of control: decriminalize domestic violence.

No one could decide which branch of local government should be responsible for paying for prosecution of misdemeanor domestic violence cases.

City leaders had blamed the Shawnee County district attorney for handing off such cases to the city without warning. The district attorney, in turn, said he was forced to not prosecute any misdemeanors and to focus on felonies because the County Commission cut his budget. And county leaders accused the district attorney of using abused women as pawns to negotiate more money for his office.

Continue reading "Facing Cuts, a City Repeals Its Domestic Violence Law - Santa Rosa Family Law " »

Statewide, there was an increase in drunken driving arrests and alcohol-related fatalities this Labor Day weekend compared to last year, the California Highway Patrol reported Tuesday.

Statewide, 1,531 drunken driving arrests were made over the three-day weekend, compared to 1,521 last year.

There were also 21 fatalities in CHP jurisdiction, compared to 10 last year, the CHP said.

Drivers who had children in their vehicles at the time of their arrests can face additional criminal charges of willful cruelty or child endangerment.

Continue reading "DUI Arrests Up Over Labor Day Weekend Which May Complicate A Child Custody Dispute" »

I was just hired by a woman who received a telephone call from her husband's wife. She contacted my office and wanted to know what effect her husband still being married would have on her marriage and how she needed to proceed to terminate the marriage. I informed her that her marriage is void and her interests would be protected under the doctrine of puntative spouse. Since her marriage was void from the beginning no legal action was necessary, but obtaining a judgment of nullity was advisable nevertheless.

A putative marriage is defined as a matrimonial union that was solemnized in due form and celebrated in good faith, but which, because of some legal infirmity, is void or voidable.

Continue reading "My Husband Is Married To Another Women, Now What? - Santa Rosa Family Law" »

I am currently handling a case where the mother took my client's child to Australia and is now not cooperating in facilitating visitation and is demanding the child remain in Australia. Lucky for my client there is the Hague Convention.

The Convention on Civil Aspects of International Child Abduction, originally made at The Hague, Netherlands became operative in the United States on in 1988. The convention establishes legal rights and procedures for the return of a child wrongfully removed to, or retained in, a country other than the child's habitual place of residence. However, it applies only to children under age of 16.

The convention aims to protect children internationally from the harmful effects of their wrongful removal or retention, and to establish procedures to ensure their prompt return to the state of their habitual residence. The dual objectives of the convention are to secure the prompt return of children who are wrongfully removed or retained, and to ensure that rights of custody and access under the law of one contracting state are effectively respected in the other contracting states. One of the paramount purposes of the convention is to restore the status quo and deter parents from crossing international borders to search for a more sympathetic court.

The Convention is in effect between the United States and the following countries:

Continue reading "My Ex Left The Country With Our Child Without My Consent! Now What? -Santa Rosa Divorce " »

A Pennsylvania man is claiming a judge violated his freedom of speech and his right to due process by ordering him to shut down thepsychoexwife.com, a blog he began in 2007 to discuss his bitter divorce and child custody battle.

Back in November 2010, I wrote a blog entry entitled Social Networking Sites Such as Facebook and MySpace Can Be Your Ex Partner's Worst Nightmare. This latest on-line blog appears to be the next step in using a person's on-line statements or persona against them.

In any case I am retained on, especially family law, the first thing I do is run an on-line search in an attempt to locate anything that can possibly be used against the opposing party. Time and time again, this has proven to be an invaluable tool I use to attack the creditability of the opposing party. As an example, I am currently involved in a child support dispute case wherein the opposing party, the mother, has an on-line employment profile where she calls herself a "liar" and declares that the cause that is most important to her is to "increase alimony two fold." Win, lose, or draw, this is a tool to attack her creditability, since a large part of her claim heavily rests on her word, I hope to show her word is worthless.

Continue reading "Divorced Dad's Blog Becomes A Test for the First Amendment " »

In the case of Turner vs. Rodgers, a father was subjected to State civil contempt proceedings for failing to pay child support to mother. The father was incarcerated for 12 months he served without paying the past due child support. The Supreme Court of South Carolina held that the father was not entitled to appointed counsel in the proceedings.

On June 20, 2011 the United States Supreme Court agreed. The United States Supreme Court vacated the Supreme Court of South Carolina's ruling, holding that the father was denied due process, although due process did not automatically require the State to provide counsel in civil contempt proceedings to an indigent parent subject to a support order who faces incarceration. The right to counsel was limited based upon the parent's ability to pay, the equality of representation between the parties, and State procedural safeguards. In the father's case, counsel was warranted since the State did not provide clear notice that the father's ability to pay was the critical question and made no findings concerning his ability to pay.

Under current Sixth Amendment precedent, the Constitution guarantees a defendant the right to counsel in criminal cases and in "criminal contempt" cases. However, there is no such precedent over "civil contempt" cases. This case, while the Court did vacate the State Court's ruling, does not change this rule.

Continue reading "Indigent Persons Subject To Civil Contempt Proceedings For Back Due Child Support Are Not Entitled To Appointment Of Counsel - Santa Rosa Family Law & Criminal Law " »

Most people I discuss this topic with are surprised to learn that the answer is yes. My office has handled several of these types of cases throughout Sonoma County and Mendocino County.

A proceeding under Family Code Section 7800 et seq. may be brought if the child has been left in any of following circumstances:

1) Without provision for identification by his or her parent or parents; or

2) By both parents or by his or her sole parent in the care and custody of another person without any provision for support or without communication from the parent or parents for six months; or

3) By one parent in the care and custody of the other parent without any provision for support or without communication from the absent parent for a period of one year.

All of my cases were brought under the factual situation described in option three. There are, unfortunately, many parents who leave their child or children in the custody of the other parent and fall off the face of the earth for periods over one year and fail to provide support or communicate with their child. Under the law this is abandonment and your parental rights can be terminated.

Continue reading "Can My Parental Rights Be Involuntarily Terminated-Santa Rosa Family Law " »

Many proceedings for dissolution and legal separation end up as uncontested proceedings. This is probably the result of the fact that California is a no fault state. It may also reflect growing movements to remove the adversarial hostilities from family law proceedings, and the growing awareness that no one "wins" a family law dispute. Anyway, if the parties are able to agree on custody, support, and property issues without the necessity of a contested trial their dissolution will be "uncontested." Decreasing the number of contested proceedings reduces the strife involved in proceedings for termination of a marriage and substantially reduces the expense otherwise involved in a dissolution proceeding.

Don't be easily misled by the label "uncontested." It does not mean "free to do as you please." It often means simply that an express agreement exists, express or implied, with the other party to act within a narrow range of agreed behavior. Within that range, the other side simply will stand by and take no action. What uncontested often means is that people are able to reach settlement together outside of structured court battlegrounds; not simply that matters are not contested.

Proceedings may be uncontested if the parties stipulate, in writing or orally before the court, for settlement of the case or if the respondent has taken no steps to participate in the proceedings, and the matter must go forward in his or her total absence by default.

Continue reading "Can My Santa Rosa Divorce Be Uncontested?" »

California's public policy is to encourage finality in marital dissolutions by "providing at the outset of litigation, consistent with the financial circumstances of the parties, a parity between spouses in their ability to obtain effective legal representation." This policy recognizes the financial and emotional costs of divorce proceedings. In addition, the policy ensures that the economically disadvantaged spouse has both adequate finances to pursue the matter and access to the courts: "primary cornerstones to the concept of fundamental fairness under the law." Moreover, under California public policy, a spouse without sufficient funds should not be prevented from litigating when the other spouse is able to pay.

Family Code § 2032 mandates consideration of the parties' relative circumstances and authorizes a need-based fee award even though the applicant spouse might be able to pay his or her attorney without financial assistance. The other party's superior ability to pay may itself make a fees and costs award "just and reasonable" (see Marriage of O'Connor.)

Continue reading "Grounds For The Award Of Attorney's Fees In A Santa Rosa Divorce" »

The concept of paternity under California Law is something former Governor Arnold Schwarzenegger should pay close attention to since the ex-husband of Mildred Patricia Baena, Arnold Schwarzenegger's former housekeeper and lover, says he plans to sue the former governor of California. Rogelio Baena told a Colombian magazine on Sunday that his ex wife changed the birth certificate of her son to name Mr. Baena, not Schwarzenegger, as the now 13-year-old boy's dad. Mrs. Baena filed for divorce shortly after she gave birth to the son Schwarzenegger fathered, and Mr. Baena claims he didn't know he wasn't the boy's father until the scandal broke earlier this month.

The concept of illegitimacy was abolished in California on January 1, 1976, when the original Uniform Parentage Act ("UPA") was adopted. The current version of the Uniform Parentage Act sets forth a procedure for determining the existence or nonexistence of the parent-child relationship and replaces illegitimacy with "presumptions of paternity."

Continue reading "Arnold Schwarzenegger to Be Sued by Mistress' Ex? " »