Archive for December, 2014

California Divorce Blog–Child Custody Move Away

December 7, 2014

I am often asked if a parent who has primary custody, or even Sole Legal Custody and Sole Physical Custody, may Move Away with the child without a Court Order. Generally, the answer is NO. Parties should seek Court Approval of the Move Away before moving with the child. The adverse consequence could include losing custody of your child.

By statute, a parent with sole physical custody of the children has the presumptive right to change the children’s residence, subject to the court’s power to restrain a removal that would “prejudice the rights or welfare” of the children. (See Family Code Section 7501(a); Marriage of Burgess; Marriage of LaMusga; F.T. v. L.J.–Parent does not have presumptive right to relocate with children unless awarded custody by way of “final judicial custody determination.)
But the custodial parent has no more than a presumptive right to relocate with the children, and this is true even if he or she has also been awarded sole legal custody. A sole physical and legal custody order does not terminate the other parent’s parental rights or due process interest in parenting; the noncustodial parent still has standing to oppose the relocation and to seek and obtain a custody modification based on a proper showing of detriment and changed circumstances. (Marriage of Brown).
If you are entertaining the thought of moving away with your Children you should first consult a Lawyer. Also, if your child’s parent is requesting to move away with your children you should first discuss with an attorney. I am often called the week before a scheduled move and asked whether it is permissible to move away with children without a court order. Please understand that it can take generally between two to six months to obtain a Move Away order assuming the parent seeking the move away is successful.
Please call Attorney Keith F. Simpson today to discuss your Family Law case at (310) 297-9090. The Law Offices of Keith F. Simpson, A Professional Corporation, are located in Manhattan Beach, California. You may also visit the website at http://www.simpsonlaw.net to e-mail Attorney Keith F. Simpson today.
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California Divorce Blog–Community Property Epstein Credits and Watts Charges

December 4, 2014

Division of Community Property can be a complicated subject when dealing with issues regarding real property (real estate). For example, if parties separate and one party remains in the family house and the other party moves out but continues making the mortgage payment, how does the court handle this issue?

The Court will charge the spouse living in the family residence a form of rent which is reimbursement for value of post separation use of community property called “Watts Charges”.  Just as a spouse may have a reimbursement claim against the community for postseparation separate property payments on a community debt, the community may have a reimbursement claim for the value of one spouse’s exclusive use of community property between the date of separation and the date on which the community no longer has an interest in the property—so-called “Watts charges.” (Marriage of Watts (1985) 171 CA3d 366, 374, 217 CR 301, 306)—trial court has authority to order reimbursement to community for spouse’s postseparation exclusive use of community asset; (Marriage of Bell (1996) 49 CA4th 300, 311, 56 CR2d 623, 630—judgment reversed because (among other things) trial court neither ordered reimbursement to community for spouse’s postseparation exclusive use of CP residence nor explained why reimbursement not ordered; and see Marriage of Falcone & Fuke (2012) 203 CA4th 964, 978-979, 138 CR3d 44,59-60—where asset not owned outright by community but is being financed, spouse in possession may satisfy duty to compensate community by making monthly finance payments from his or her separate property (so-called “Epstein credits”]

A typical scenario occurs after separation where one spouse is making payments on a community property home in which the other spouse is given the right of exclusive possession pending sale and a division of the proceeds. To effect a net overall equal division, the trial court may properly award the paying spouse Epstein credits for his or her SP payments on the house and charge the occupant spouse with the full Watts postseparation use value. In effect, the “Epstein credits” are paid from the community and the “Watts charges” are paid to the community, which should yield an equal sharing ofEpstein credits by both spouses and an equal bearing of Watts charges by both spouses. (Marriage of Jeffries (1991) 228 CA3d 548, 553, 278 CR 830, 833).

If your divorce case involves the division of real property, you should contact Attorney Keith F. Simpson today. California real estate is typically the most valuable asset held by a married couple. It is important to maximize the return on your real property investment by seeking all reimbursements and credits owed to you.  Attorney Keith F. Simpson is located in Manhattan Beach, California. You may contact the Law Offices of Keith F. Simpson at http://www.simpsonlaw.net or call at (310) 297-9090.

California Divorce Blog–Alcoholism and the Alcoholic

December 2, 2014

Addiction issues are often the root cause of divorce. When a person is addicted to a substance they are not the same person. Unfortunately, this causes the entire family to suffer.  If you are an alcoholic, or are married to an alcoholic, you should be aware of the potential impact upon your divorce case.

The Court may consider the history of drug abuse when determining Child Custody.  In determining the child’s best interest, trial courts also must consider either parent’s “habitual or continual” alcohol abuse, their “habitual or continual” illegal use of controlled substances, or their “habitual or continual” abuse of prescribed controlled substances (as defined in California Health & Safety Code Section 11000 et seq.; See California Family Code Section 3011(d)).

Before considering allegations of a parent’s drug oralcohol abuse, the court may require “independent corroboration”—such as written reports from law enforcement agencies, courts, probation departments, social welfare agencies, medical and rehabilitation facilities, or other organizations providing drug and alcohol abuse services. (See California Family Code Section 3011(d)).

Under strict statutory conditions, the court may order any person seeking custody or visitation to undergo testing for the use of illegal controlled substances (as defined in California Health & Safety Code Section 11000 et seq.) or alcohol; and may order either or both parties to pay the costs of such testing. (California Family Code Section 3041.5)
(The statutory conditions are intended to address the constitutional concerns noted in prior case law that interpreted the then-existing Family Code as not authorizing compelled drug/alcohol testing in custody litigation (Wainwright v. Super.Ct. (Sinkler) (2000) 84 CA4th 262, 266-269, 100 CR2d 749, 752-754). 
If alcoholism or addiction issues are present in your Divorce case, it is important to seek immediate legal representation. The alcoholism may significantly impact the issue of child custody, child support and/or spousal support.  Please call Attorney Keith F. Simpson today to further discuss your legal matter at (310) 297-9090. You may also e-mail Keith Simpson at http://www.simpsonlaw.net. Thank you for reading this blog.

California Divorce Blog–Domestic Violence

December 1, 2014

I often handle family law matters involving the issue of Domestic Violence Restraining Orders. Domestic Violence can have a detrimental impact upon everyone involved in the case. The victim is often traumatized and scarred both physically and emotionally. Also, a finding of Domestic Violence can cause the perpetrator to have significantly reduced child custody and also cause a higher spousal support order.

Upon a finding by the court that the person seeking custody has perpetrated domestic violence against the other party, the child or the child’s siblings within the past five years, there is a rebuttable presumption that a sole or joint physical or legal custody award to the perpetrator would be detrimental to the child’s best interest. This presumption may be rebutted by a preponderance of the evidence. (See California Family Code Section 3044(a).

For purposes of Family Code Section 3044, a person has “perpetrated domestic violence” when the court finds that he or she (i) intentionally or recklessly caused or attempted to cause bodily injury or sexual assault; (ii) placed a person in reasonable apprehension of imminent serious bodily injury to that person or another; or (iii) engaged in any behavior involving (but not limited to) threatening, striking, harassing, destroying personal property or disturbing the peace of another, for which a Family Code Section 6320 ex parte order could issue to protect the other party seeking custody of the child or to protect the child and child’s siblings.  (See Family Code Section 3044(c))

Domestic violence is a very serious matter. The NFL started an advertising campaign this year after the Ravens football team released running back Ray Rice for Domestic Violence against his then fiancé. In a Family Law matter, the issue of Domestic Violence usually significantly impacts the outcome of a case. For the Perpetrator of Domestic Violence, it can cause mandated Supervised Visitation, loss of custodial time with his or her children and/or loss of custodial time all together. For the victim, it can cause emotional scars which last a lifetime.

If you are involved in a Domestic Violence matter, please call Attorney Keith F. Simpson today to discuss your case at (310) 297-9090. Keith Simpson is a Manhattan Beach lawyer with the Law Offices of Keith F. Simpson, A Professional Corporation. You may also contact Keith Simpson at http://www.simpsonlaw.net and send an e-mail. Thank you for reading my blog.