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.

Legislation amends Family Code 297 and 2320, and add Family code 297.1 and 298.7 to remove the requirement that domestic partners have a common residence to register, permits establishment of a confidential domestic partnership, and permits same-sex spouses who married in California to petition for dissolution in California without the parties meeting regular residency requirements if neither spouse resides in a jurisdiction that will dissolve the marriage.

Continue reading "Domestic Partnership and Same-Sex Marriage Legislation Change" »

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" »

In the United States there are nine community property states: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin. Puerto Rico allows property to be owned as community property also as do several Indian jurisdictions. Alaska is an opt-in community property state; property is separate property unless both parties agree to make it community property through a community property agreement or a community property trust.

The state of California considers any property acquired during a valid marriage by a husband or wife community property. Sections 760 and 771 of the California Family Code outline the state law pertaining to community property.

IRMO Walker, Ralph and Elena married in 1993. They separated in January 2008, and, in March 2008, Elena filed a petition for legal separation. Ralph was 47 years old at the time of their separation. He had worked as a public school teacher until January 2008, when he left his employment due to a disability. Ralph has been a member of CalSTRS since 1986, and he had just under 20 years of CalSTRS service credit when he left his employment.

Ralph had applied for a CalSTRS disability allowance after the couple separated, and CalSTRS granted his application retroactive to December 2008.

In August 2009, the court entered a "STIPULATION AND ORDER" under which the parties agreed to "enter into a Domestic Relations Order (DRO) regarding Respondent's right to receive disability benefits from CalSTRS.

After several legal challenges to the characterization of this asset, the court found that his CalSTRS disability benefits were not his separate property.

Continue reading "Post-Separation Disability Benefits Are Not Community Property" »

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 " »

Community property is generally defined under current law as "all property, real or personal, wherever situated, acquired by a married person during the marriage while domiciled in [California] ...," except as otherwise provided by statute.

The concept of community property includes both assets and obligations. This is of particular significance in characterizing debts incurred by the parties, both from the standpoint of third party creditors' rights, and from the standpoint of dividing debts on marital dissolution or legal separation.

Community property has special characteristics or "incidents" that distinguish it from other types of property interests. The most important incidents include the following:

Continue reading "California Is A Community Property State, What Exactly Does That Mean? Santa Rosa Divorce " »

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" »

Payments that qualify as spousal support are deductible by the payor-spouse and includible in the income of the payee-spouse.

The law distinguishes spousal support from both child support and payments made in consequence of a division of property. The law allows alimony tax treatment only for true spousal support and attempts to define alimony in a way that conforms to general notions of what types of payments constitute alimony. Payments not meeting the objective test of the law will fail to qualify for alimony tax treatment regardless of whether they were intended by both spouses to constitute spousal support.

According to the IRS Code, to qualify as taxable spousal support the payment must meet the following elements, which include but are not limited to: (1) the payment must be made in cash. Checks and money orders payable on demand qualify, (2) the payment must be received by or on behalf of a spouse or former spouse under a "divorce or separation instrument", and (3) the payor and payee must not be members of the same household at the time the payment is made.

Continue reading "Tax Consequences Of Spousal Support - 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 " »

Continue reading "Divorce 101 - Santa Rosa Divorce Attorney Explains The Basics" »