California Family Law Blog

Monterey County Attorney Discusses Child Custody Investigations

In the event that separated parents cannot agree on a custody and visitation schedule with their children, even after going through court assisted mediation, the parties will likely participate in a child custody investigation. Each county in California has different names and different procedures for these investigations. In some counties they may be called Assessments and in others they are called Evaluations. In some counties they are performed through an agency of the court called Family Court Services while in others they are performed by private psychologists hired by the parties.

In any event these custody investigations are a critical part of determining a long-term custody and visitation order. In fact these investigations are so important that a state bill was introduced in 2007 to address an issue that is often raised in these investigations which is a controversial theory called Parental Alienation Syndrome. This theory describes behavior where one parent turns their child against the other parent. Under California law if alienation is proven the alienating parent can lose custody of the child even if they have been the child’s primary caretaker since birth. The custodial parent must support a relationship between the child and the other parent.

The reason that this theory is so controversial is that the psychological community and child custody investigators are split in regards to whether this type of alienation is even possible. Even those who believe it is a legitimate syndrome are concerned about the negative impact on a child when it is incorrectly found in a case. The text of 2007 version of the bill AB 612 would have explicitly banned the use of Parental Alienation Syndrome, or just the term alienation from use in evaluations. It also aimed to minimize the use of custody evaluations. The family law section of the state bar and several psychologists groups banded together to oppose the bill. In the 2008 version of the bill the wording is much vaguer stating evaluators will be forced to conform to "standards generally accepted by the medical, psychiatric, legal, and psychological communities." The bill does not specifically mention Parental Alienation Syndrome.

If you are concerned about alienation issues in your case or other issues related to a child custody investigation then please contact our office for a free consultation. Our team of Family Law Attorneys can assist you with all aspects of child custody and visitation whether it is part of a divorce action or a paternity matter. We have attorneys in Monterey, Fremont and San Jose who can assist you with all aspects of your family law cases.

San Jose Divorce Attorney Discusses Internet Postings and Custody Battles

It is understandable that people going through a divorce will want to vent their frustrations about their soon to be ex spouse to friends and family. However, in the electronic age it may also be too easy to voice that frustration to the world through the Internet. It is important to remember that anything you say that is disparaging about your ex can come back to hurt you in court, especially in a custody battle.

Tricia Walsh Smith has garnered national attention after she uploaded a video on YouTube where she aired the dirty laundry of her husband in the middle of their divorce proceedings. An Internet search will also find blogs where people are venting their frustrations about their separated spouses. Some of these Internet postings have led to civil suits alleging defamation by the spouse who is being written about. You can also guarantee that these types of postings will be brought into the family court as evidence in the event of a custody dispute.

In California the Court will consider which parent is more likely to facilitate contact with the non-custodial parent when deciding which parent should have primary custody. If one parent is more likely to disparage the other parent or try to alienate the child from the other parent that person could lose custody of the child. Therefore these public Internet postings could be used as evidence that the person public attacking the other parent would not facilitate a close relationship between the child and the other parent. That may in fact not be true, because the poster may never say the things that are posted in front of the child but the evidence could be very damaging because if it comes down to credibility the poster will have seriously damaged their credibility in the eyes of a Judge.

Our team of experienced family law attorneys are very knowledgeable about custody and visitation disputes and would be happy to speak with you for a free consultation in this area or in any other family law matter. We have offices in Monterey, San Jose, and Fremont where we would be happy to meet with you at your convenience.

San Jose Family Law Attorney Discusses Pamela Anderson’s Request for an Annulment Against Rick Salomon.

Former “Baywatch” star, Pamela Anderson, has filed court documents seeking to have her third marriage to Rick Salomon annulled on the grounds of fraud. The two were married on October 6, 2007 at the Mirage Hotel in Law Vegas, where Anderson had been performing alongside magician Hans Klok. Salomon is a professional poker player, best known for making a sex videotape with then-girlfriend Paris Hilton and was previously married to actress, Shannen Doherty. During an earlier appearance on “The Ellen Degeneres Show,” Anderson described how she had fallen in love with Salomon after they worked out a deal over a $250,000.00 gambling debt she had amassed. Specifically, Anderson stated she “paid off a poker debt with sexual favors” and fell in love.

News of problems in the union surfaced in December of last year when Anderson first filed a petition for dissolution of marriage, citing “irreconcilable differences” as the reason behind the split. However, just as quickly as the news happened, Anderson ended the divorce speculation by claiming the two were “working things out,” in a posting on her website. In her court papers for the annulment, Anderson requested that a retired judge handle the annulment proceedings; a common practice in celebrity split-ups as it keeps matters out of the court. Rumors are circling that Anderson may be pregnant with Salomon’s child. This is the third marriage for both parties; Anderson having been married to Motley Crue drummer Tommy Lee, with whom she has two children, and singer Kid Rock.

If you or someone you know has questions about spousal support or other aspects of family law such as the divorce process, child support, or child custody and visitation, please contact Sagaria Law. Our team of family law attorneys can answer any such questions you may have and assist you through the process. We represent clients from Santa Clara County, Alameda County, Monterey County, San Mateo County, and surrounding areas. Contact our office today to schedule your free consultation to speak with one of our attorneys.

San Jose Family Lawyer Talk about Reasonable Visitation

When parties divorce with children involved, one of the biggest problems is the visitation schedule of the children. Ideally, the court wants both parents to spend equal time with the children. However, between school and work, the parents rarely can find an equal time share schedule. In some cases, when parents are on good terms, the parents may agree to a “reasonable visitation” schedule and not have any set days or exchange times.

Under a reasonable visitation schedule, the parents are basically agreeing that they will communicate with each other regarding schedules and try to ensure that each parent gets to spend quality time with the children. A reasonable visitation schedule would ensure that each parent sees the children frequently and with solid quality time. For example, each parent will get to see the children for a whole weekend and alternating holidays. Another example of a reasonable visitation plan is the right of first refusal, where the other parent has the option to care for the children if the first parent has to go away on a trip before a baby sitter is called.

However, there is no set standard as to what is a reasonable visitation plan. They will vary between each set of parents and each set of situations. Instead, it is easier to spot an “unreasonable visitation” plan. The following example was actually offered as a reasonable visitation. (Names and minute details have been changed to protect the innocent.)

Father may care for child on the second weekend of each month from Friday 7:00 P.M. and Sunday 7:00 P.M. Exchanges of the child will be at a café where a third a party will meet the father with the child. The third party may request a password from father at the time of drop off and the father may request the same at the time of pickup. The password is “lightening.” If father is more than 15 minutes late to receive the child, then visitation is cancelled. If father is more than 15 minutes late to return the child then the police will be called and father forfeits his visitations forever. Father is to say his good byes to the child prior to bringing the child to the café. Father is to give the child to the third party and walk away. Father is not to hinder the third party’s interaction with the child.

The actual offer continued on with even more specific restrictions down to the type of snacks and blankets to use with the child but were left out in case the reader believed this offer was too ludicrous to be real. However, this offer was actually made as a good faith attempt for reasonable visitation. Unless this father was a serial felon, this is not reasonable visitation. This example is extreme but it is a good example of when reasonable visitation is not going to be possible.

If you are having problems coming up with a visitation plan, please give Sagaria Law a call to schedule a consultation with one of their attorneys

San Jose Family Attorney Discusses Mediation

In California parents are required to attend child custody and visitation mediation if they cannot agree on a timeshare schedule for their children after they separate. It is important to know the procedures for mediation in the county where you case is being litigated. In some counties parents can attend mediation with their attorneys while in other counties attorneys are not allowed. It is especially crucial to know the procedures for mediation when your attorney cannot attend with you. Some counties are recommending counties while others are not.

In the recommending counties if the parents cannot agree on a visitation schedule then the mediator will make a recommendation to the Judge. The parties will first be assisted by the mediator to see if an agreement can be reached but if that fails then the mediator will make a recommendation. This is important to remember because the parent will be judged during the process. If one parent is uncooperative or does not come across well the mediator will be considering that when making the recommendation.

In the non-recommending counties mediation is confidential. This means the mediator will only try to assist the parents in making an agreement. If no agreement is reached the parents will not be judged by the mediator and no information from mediation is conveyed to the Judge. The parents in this scenario only have to be concerned about what they want and not how they are coming across to the mediator. However, the mediator can put pressure on parents to come to an agreement that they might not be comfortable with. Therefore it is important not to agree to something you cannot live with because if you agree the mediator can write it up as an order of the court.

Issue of child custody and visitation are complicated and so is the mediation process which is mandatory if parents cannot agree. Our team of family law attorneys is very experienced in these issues and others such as spousal support and child support. We have offices in Monterey, San Jose, and Fremont where our attorneys would be happy to meet with you for a free consultation regarding your case.

San Jose Family Attorney Discuses Visitation Issues after Separation

If you have recently separated from your spouse, or if you are considering it, one of the issues that will be of concern to you is how much you will be seeing your children. First, you should seek the cousnel of a San Jose Divorce Attorney. It is important to remember that until either party goes to court for custody and visitation orders there will be no enforceable orders regarding these issues. That means you cannot call the police to enforce any verbal agreements with the other parent. If the other parent is denying you visitation and contact with the children you should file a motion with the court as soon as possible to request access to your children. The longer you go without visiting with your children the more difficult it will be to be granted extensive visitation.

It is also important to consider how much visitation you want with the children and also how much visitation you want the other parent to have. If it becomes necessary to go to court to decide custody and visitation issues the court will generally grant orders based on the status quo. This means if you see the kids every other weekend then the court may only grant you visitation every other weekend. Therefore it is important to maintain as much contact with your children after separation if you would like to be the parent with primary custody or if you would like to have an equal parenting arrangement. If you have concerns about the other parent’s judgment and/or their parenting skills then you should not agree to them having extensive time with that parent or your concerns will not look credible in court.

If your case does require going to court because you and the other parent cannot agree then it is especially important to keep a log of visitation. That should include who has the children when, if they are returned late, and any other concerns that are noticed such as kids not being fed or bathed.

Our team of Monterey Family Law Attorneys can assist you with all aspects of child custody and visitation whether it is part of a divorce action or a paternity matter. We also have attorneys in Alameda and San Jose Counties who can assist with all aspects of your family law cases.

San Jose Family Attorney

One of the jurisdictional tests under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) in order for a California court to hear and make an initial child custody determination is the “significant connection” and “substantial evidence” test. A California court can exercise custody jurisdiction if all of the following are true: (1) No other stated has home state jurisdiction or the home state has declined to exercise its jurisdiction on the ground that California is the more appropriate forum; (2) The child and the child’s parents (or the child and at least one parent or person acting as a parent) has a significant connection with California other than mere physical presence; and (3) Substantial evidence is available in California concerning the child’s care, protection, training and personal relationships.

“Significant connection” jurisdiction is determined by looking at the evidence before the court at the time the jurisdictional determination is made and not by facts or events occurring before or at the time the action is commenced. In order to meet the jurisdictional requirement, there must be substantial forum state contacts between the child, parents and the forum state. The court construes the test narrowly and will balance whether the contacts with California are indeed significant compared against the contacts with the other forum.

If you or someone you know has questions about child custody and visitation or other aspects of family such as the divorce process or child and spousal support, please contact Sagaria Law. Our team of family law attorneys can answer any such questions you may have and assist you through the process. We represent clients from Santa Clara County, Alameda County, Monterey County, San Mateo County, and surrounding areas. Contact our office today to schedule your free consultation to speak with one of our attorneys.

ursuant to the California Family Code, the parent with physical custody of a minor child has the presumptive right to change the child’s residence. That is to say, the parent with physical custody can move away with the child and the courts will not interfere with that decision unless the move is detrimental to the child. However, this does not give a parent with sole legal and physical custody of a child an absolute right to change the child’s residence.

In an initial child custody determination, the trial court uses a best interest of the child analysis and must look to all the circumstances bearing on the child’s best interest. When the move-away contest comes after a permanent child custody order is in place, the court will apply the changed circumstances rule, meaning the noncustodial parent has the substantial burden of demonstrating a material change of circumstances of a kind that renders it essential or expedient for the welfare of the child that custody be modified. Once the noncustodial parent shows detriment to the child from the proposed relocation, the court must consider all of the relevant factors in deciding whether a change in custody would be in the child’s best interests. Among the factors for the court to consider are: the child’s interest in stability and continuity in the custodial arrangement, the distance of the move, the child’s age, the child’s relationship with both parents, the relationship between the parents, the children’s wishes if they are mature enough to make that inquiry appropriate, the reasons for the proposed move, and the extent to which the parents currently are sharing custody.

If you or someone you know is facing a similar situation or simply have questions about child custody and visitaton or any other family law issue, such as child support, our team of San Jose Family Law Attorneys are here to answer your questions and assist you through the process. We represent clients from Santa Clara County, Alameda County, Monterey County, San Mateo County, and surrounding areas. Contact our office today to schedule your free consultation to speak with one of our attorneys.

Generally, in making a child custody order between parents, the court must grant the noncustodial parent reasonable visitation rights unless it is shown that visitation would be detrimental to the best interest of the child. This is because it is considered of utmost important for the minor child to have frequent and continuing contact with both parents. Detriment to a minor child’s best interest warranting a suspension or denial of parent visitation rights may be based on a finding of child abuse or domestic violence endangering the child’s health, safety or welfare. A finding of detriment warranting a denial of parental custody does not automatically warrant a denial of visitation. The public policy interest in encouraging a continuing relationship with both parents generally means that a parent denied custody should be deprived of visitation only upon a clear showing that any contact would negatively affect the minor child.

In a family code custody and visitation proceeding, California law gives the Court discretion to grant reasonable visitation rights to a nonparent having an interest in the welfare of the child. However, such nonparental visitation rights are subservient to a parent’s 14th Amendment substantive due process fundamental right to make decisions concerning the care, custody and control of their children. As such, courts may not disregard and overturn a fit custodial parent’s visitation decision whenever a third party affected by the decision files a visitation petition. At the same time, at least with regard to grandparents seeking visitation, parents’ due process right to make decisions concerning their child’s care, custody and control does not necessarily preclude a court from granting the nonparent visitation over the objection of a fit parent.

If you have any additional questions about child custody and visitation or any other family law issue, such as spousal support, child support and issues related to division of marital property, please contact Sagaria Law. Our team of family law attorneys can answer any family law questions you may have and assist you through the process. We represent clients from Santa Clara County, Alameda County, Monterey County, San Mateo County, and surrounding areas. Contact our office today to schedule your free consultation to speak with one of our attorneys.

On November 26, 2007, Britney Spears was granted visitation with her two sons with Kevin Federline on Christmas morning. Currently Federline has full custody of both Sean and Jayden and Spears has only two weekly supervised visits, one of which is overnight. At the conclusion of the closed-door hearing Los Angeles Superior Court spokesperson Allan Parachini confirmed: “There was extensive discussion and agreement on the visitation over the holiday period. It’s different from the existing [custody] schedule.”

It is unclear whether the parties were able to come to an agreement or if the Judge made the order himself. However Federline’s attorney, Mark Vincent Kaplan did state: “Kevin thinks it’s absolutely appropriate that they both get to see the kids over the holidays.”

Apparently Spears isn’t the only one who should be worried about custody though as reports claim both Spears and Federline are under investigation by DCFS regarding their parenting of the two toddlers. Spears was previously investigated twice this year by DCFS. An inside source tried to play down the report by stating that the allegations were not particularly alarming and that the department has a legal obligation to investigate all such claims.

Unfortunately child custody disputes are not unique to celebrities. Our team of San Jose Family Law Attorneys can assist you with all aspects of child custody and visitation. We also have attorneys in Alameda and Monterey Counties who can assist with all aspects of your family law cases.

Continue reading "San Jose Divorce Lawyer Comments on Britney Spears Holiday Visitation Fight" »

San Jose Family Law Attorney Comments on Boris Becker’s Closet Baby Battle

Tennis great Boris Becker is reportedly pursuing legal action to gain custody of his young daughter. The child was a result of a brief liason between Becker and the child’s mother in a restaurant closet in 1999. Becker confirmed he was the father in 2001 after a contested paternity battle.

The child, who is now seven, is a regular in German magazines, and was most recently in the news following a cosmetic company’s illegal use of her image to promote their products. Becker was reportedly furious with the child’s mother, and this has provided the impetus for his most recent decision. Becker also has two sons by another woman, whom he divorced in 2002.

Paternity and custody are just two of the many issues that our Santa Clara County family law attorneypaternitys can assist you with. Whether you are getting divorced, or need to establish paternity , our experienced attorneys can help you navigate the legal system, providing superior representation for all Bay Area residents. Our firm has offices in Santa Clara, Alameda and Monterey counties, and we handle cases all over the area.

Who can forget Alec Baldwin’s infamous voicemail left for his 11-year old daughter in which he is ranting and raving, calling her a “rude, thoughtless little pig” and lashing out at his ex-wife, Kim Basinger? It appears Baldwin became enraged when his daughter, Ireland, failed to take his call at a pre-arranged time, prompting him to leave her the voicemail in which he tells her he that he is tired of playing games with her and threatens to fly out to her to straighten her out. Upon hearing the message, Basinger requested a closed door emergency custody hearing at the Los Angeles family court. When the voicemail was played in court, the judge temporarily suspended Baldwin’s visitation rights.

The Basinger v. Baldwin custody battle has been waging on for years since the couple’s divorce in 2001 and is one of the nastiest in Hollywood history. Until the infamous voicemail was leaked by the press, the couple’s daughter, Ireland, had been living in Los Angeles with Basinger while Baldwin lived in New York and enjoyed regular visitation. Following the leak of Baldwin’s angry voicemail to his daughter, the actor publicly apologized but the damage had already been done with the court’s suspension of Baldwin’s visitation rights.

Following the suspension of Baldwin’s custody rights another hearing in this matter was called at which time Baldwin’s custody rights were expected to be reinstated. However, it appears that the judge overseeing the case ruled in Basinger’s favor. Although details of the closed door hearing were not revealed, Basinger’s attorney told reporters that they were “very, very pleased with the judge’s thoughtful decision and fully support what she did here today.” What this incident shows more than anything is how child custody disputes often times continue to be hotly contested following divorces as well as the damaging effects such ongoing battles have on all parties involved, especially children. This case is a prime example of what not to do during a child custody dispute which is difficult in any case but especially so when the parties are in the celebrity spotlight.

Over the past several months, those following the child custody dispute between Britney Spears and Kevin Federline would describe the troubled pop starlet’s behavior as “erratic”, at best. Now, it appears that Santa Clara County family law attorneys can add “erratic court filings” to the long list of unstable behaviors exhibited by Ms. Spears. In an apparent moment of desperation, Britney decided to file an emergency court motion on October 10 in an attempt to receive expanded visitation rights with her two boys. Since the October 1st hearing, at which she was ordered to hand over 1-year-old Jayden James and 2-year-old Sean Preston to their father until further review by the court, Spears has mysteriously managed to pass a couple of drug tests and a driver’s exam. Does this qualify her as a fit mother who deserves unmonitored overnight visits? Our San Jose child custody attorneys found the following quote by Federline’s attorney, Mark Vincent Kaplan, to be an interesting assessment of Britney’s legal savvy:
“The fact that a party, one week after a full court hearing, attempts to change the orders of the court, in the absence of an emergency or without any new facts, suggests a continued lack of respect and understanding for what an order of the court actually means.”

Continue reading "Oops! She's At It Again: Santa Clara County Child Custody Attorneys Examine the Britney Spears Emergency Custody Filing" »

Do parents always have priority over grandparents? Our Santa Clara family attorneys, who have worked with many grandparents’ rights and child custody cases, have confronted custody struggles between parents and grandparents in numerous contexts, and a highly contentious child custody case that is currently unfolding in Huntingdon, Tennessee, indicates that there is not always an easy answer to this question. For the last year and a half, Mary Winkler’s children have lived with their father’s parents, and now Mary wants them back. She has served a small jail sentence, and is now free on probation.
Her jail sentence, however, was for shooting her husband to death with a shotgun that she does not remember pulling out of the bedroom closet.

Continue reading "How Far Do Grandparents' Rights Extend?" »