WHO GETS THE DOG?

Posted February 16, 2018 in Family Law by Virginia Lively.

Blog

February 16, 2018
WHO GETS THE DOG?
Read more »

 

To many couples, their dog is more than a pet or piece of property, but is a member of the family. When couples make the decision to get a divorce, the issue of who gets the dog can be a deeply emotional one. Will the couple share custody, have sole custody with visitation, split the pets, or have one party get sole custody with no visitation rights? While the couple may consider the dog a member of the family, California courts look at the fury friend as personal property, much like a car or TV. This means who gets the dog is based on community personal property laws, and factors like who takes care of the dog, who remembers to feed him/her, or take him/her for walks will only be marginally considered. Instead, the Court is going to consider things like the date of purchase, whether a gift was intended, and what monetary value is associated with the dog. From a legal perspective, this is the same inquiry you would go through when determining who gets the furniture, but from the owner’s perspective, this is going to feel like actually splitting the “baby” in half. So how is the law going to “divide” Fido?

The first question is whether the dog is community or separate property. The court will look at when the dog was acquired. This means when the dog was purchased or, if you’re a true animal lover, when your pet was adopted. If the dog was purchased or adopted by one person prior to marriage, then the dog is that spouse’s separate property, and will remain with the original owner.

If the dog was adopted or purchased during the marriage, the next question is why was it? Was the dog purchased together, to be both parties’ pet, or was it purchased by one person as a gift to the other? If the dog was purchased/adopted during marriage, then the dog is community property, and the Court will need to award the dog to one party over the other. If however, the dog was a gift, the issue of transmutation arises. Transmutation is the change in character of property during the marriage. To be a valid transmutation, you generally need a writing with an express declaration of the property that is made, joined in, consented to, or accepted by the spouse whose interest in the property is adversely affected. There is an exception to the signed writing requirement; if the gift is an interspousal gift of clothing, wearing apparel, jewelry, or other tangible articles of a personal nature that is used solely or principally by the spouse to whom the gift is made, and the gift is not substantial in value taking into account the financial circumstances of the marriage (Cal. Fam. Code section 852).

If the dog was acquired during the marriage and is considered community property, the Court will need to determine which spouse to award the dog to. Although dogs are still primarily looked at as personal property, there is a growing tendency among judges to determine ownership of the dog based on the interests of the pet. California Family Code Section 6320 allows the judge to issue a protective order granting exclusive care, possession or control of a domestic animal to one spouse if there is a showing of good cause that there is a risk of the other spouse harming the animal. Judges are beginning to consider what is best for the pet, rather than just looking at them as property. The judge may consider if there are kids and which spouse will be awarded their custody, who has the financial ability to care for the animal, who the dog is attached to, and if one party will be dangerous to the animal.

While the court will determine where the dog will go in the event the parties cannot agree, it is important to know that you can determine who gets the dog outside of court, as you would any other personal property, in a settlement agreement. This means you can determine who gets custody of the dog, set a visitation schedule, decide who is responsible for transporting the dog, who will pay for vet visits, food, and other needs, etc. Further, the rules discussed above do not just apply to dogs, but will apply to any other furry or winged friends at issue.

If you are seeking information or counsel regarding divorce, division of assets, or, more specifically, who will get the pet in the event of divorce, please contact one of the experienced attorneys at Lonich & Patton – we offer free half-hour consultations.

Lastly, please remember that each individual situation is unique, and results discussed in this post are not a guarantee of future results.  While this post may detail general legal issues, it is not legal advice.  Use of this site does not create an attorney-client relationship.

This article has no comment.

Share |

WHAT HAPPENS IF YOU DISOBEY A COURT ORDER TO VACCINATE YOUR CHILD?

Posted February 9, 2018 in Family Law by Gina Policastri.

For many parents, the topic of vaccinations is a very personal one. There are strong stances on both sides of the vaccination divide, with some believing that vaccinations should be mandatory, and others believing that the decision to vaccinate should be their own. While the issue most commonly arises between parents and educational institutions, it is becoming more common for it to arise between separated parents. Although California has yet to decide a case involving violation of a court order for vaccinations, a recent Michigan case sheds some light on how California might rule on this issue.

In general, California has strict vaccination laws. California, along with the other 49 states, requires that school-age children be vaccinated against childhood diseases as a condition to attending school and day care programs. While some states do recognize your right to not vaccinate on religious grounds, and others recognize your right to not vaccinate on moral or philosophical grounds, California is not one of those states. The only permitted exemptions in California are for valid medical reasons. According to the National Vaccine Information Center, to qualify under a medical exemption, a parent or guardian must submit a written statement from a licensed physician (M.D. or D.O.) which confirms that the physical condition or medical circumstances of the child is such that the required immunization is not indicated, states which vaccines are being exempted, whether the medical exemption is permanent or temporary, and the expiration date, if the exemption is temporary.

The list of recognized medical exemptions in California is very narrow. You may find it at the National Vaccine Information Center website. It includes Autoimmune Conditions, Hyper immune conditions, Immune cancers, Immune deficiencies, Genetic SNP’s associated with increased vaccine reaction risk, and vaccine reactions. However, the state will not provide an exemption for ADD, behavior issues, psychiatric diseases, Asperger’s, Autism, neurologic diseases, hypertension, heart disease, liver disease, kidney disease, or adult onset diabetes.

Similarly, California’s contempt statutes contemplate strict compliance with a court order. Under California Civil Procedure Code sections 1218 and 1219, a party subject to a valid court order who, with knowledge of the order and the ability to comply, fails to comply with the terms of the order, is subject to a contempt adjudication and statutory contempt penalties. Under California Penal Code section 166, contempt of court refers to any behavior that is disrespectful to the court process, including but not limited to, willfully disobeying a court order. The consequences of this may include jail time and/or fines.

The recent Michigan case involved a mother who was ordered, through a custody agreement, to maintain the child’s vaccinations. Despite this, the mother told the judge that she was personally opposed to vaccinating her son, and thus would not comply with the court order. This resulted in the mother being held in contempt of court, and the judge ordering her to spend 7 days in jail. The issue at hand was not specifically focused on the child being vaccinated or not, but rather on the mother’s willful disobedience of a clear order to maintain her child’s vaccinations.

The issue of complying with a court order is one that California is clear on. As such, if you are ordered by a court to maintain your child’s vaccinations, you must comply, or risk being held in contempt. However, in the event you are held in contempt of court, you do maintain your due process protections in the contempt proceeding. Contempt proceedings are criminal in nature, which means you have the right to notice, the opportunity to be heard, the right to counsel, the criminal burden of proof (beyond a reasonable doubt), and in some cases, the right to a jury trial.

If you have an issue concerning your rights regarding vaccinations, compliance with court orders, or contempt of court, please contact one of the experienced attorneys at Lonich & Patton. We offer a free half-hour consultations.

Lastly, please remember that each individual situation is unique, and results discussed in this post are not a guarantee of future results. While this post may detail general legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.

This article has no comment.

Share |

Filing for Divorce After a Temporary Restraining Order

Posted November 3, 2017 in Family Law by Michael Lonich.

For many people in abusive marriages, the question is not whether to file for divorce or stick it out in a violent marriage.  The question is how to file for divorce while remaining physically and financially safe from retaliatory spousal abuse. Audrina Patridge faced this exact question.  Until recently, Audrina was stuck in an abusive marriage where she faced an aggressive, controlling, and physically threatening spouse.  It is reported that Audrina wanted to file for divorce but she was scared that if she did, her husband, Corey Bohan, would retaliate with physical harm to Audrina, their one-year old daughter, or Audrina’s family members.  Like others in similar situations, Audrina was scared to file for divorce without additional protection.  Fortunately, the Family Court can provide additional protections for people in Audrina’s situation.  That additional protection comes in the form of a Domestic Violence Temporary Restraining Order (DVTRO). On September 18, 2017, Audrina was granted a DVTRO against Corey.  Audrina sought the restraining order as a protective measure for herself and her family members while she initiated divorce proceedings against Corey.

A DVTRO provides the abused spouse immediate, but temporary protection from the alleged abuser.  There are numerous protections available under a DVTRO, protections that go far beyond simply keeping the alleged abuser away from the abused spouse.  Additional available protections include, but are not limited to, child custody and support, an order for the alleged abuser to move out of the residence, orders that specify which spouse must pay debts, and property control.  The myriad protections available under a DVTRO address the reality of domestic violence situations; the abused individual needs to protect their physical and financial safety, as well as that of their children, or other family members, including pets.  For Audrina, the DVTRO enabled her to file for divorce with the confidence that she and her family would be safe from threats or acts of violence from Corey.  With the DVTRO in place, Audrina filed her petition for divorce on September 20, 2017.

When a DVTRO is issued precedent to or simultaneously with a petition for divorce, the terms of the DVTRO necessarily become the status quo at the start of the divorce proceeding.  Thus, it is important that an abused spouse obtain a DVTRO with as many protections as are applicable to their unique situation, as those terms will likely remain in place, regardless of the outcome of the domestic violence proceeding. By example, if the abused spouse requested a “move out” order and/or exclusive use and possession of the family residence, the alleged abuser will have to find alternate housing, and often, the alleged abuser will have to do so even after the DVTRO expires.  When child custody orders originate from a DVTRO, the Court will modify custody orders only in rare instances, and typically it will only do so after numerous court appearances, and/or other ancillary interventions that take place over many months, e.g., the alleged abuser having professionally supervised visitation, parenting/anti-abuse classes, etc.  In light of the above, it is critical that individuals who need a DVTRO to enable them to safely initiate divorce proceedings, consult with an attorney to carefully draft their DVTRO.

For more information about obtaining a DVTRO and/or a divorce in California, please contact our attorneys at Lonich & Patton.  Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results.  While this post may include legal issues, it is not legal advice.  Use of this site does not create an attorney-client relationship.

This article has no comment.

Share |

How Can Parents Secure Parental Rights in Assisted Reproduction?

Posted June 5, 2017 in Family Law by Mitchell Ehrlich.

Many couples are choosing to begin the expansion of their families later rather than sooner. With this new trend, assisted reproductive technology has gained tremendous popularity in aiding individuals embark on this process.

Assisted reproduction refers to all treatments which involve handling eggs or embryos outside of the body and includes procedures such as: in vitro fertilization, intracytoplasmic sperm injection, donor egg or embryo, surrogacy, gamete intrafallopian transfer, and zygote intrafallopian transfer. As fascinating as these medical processes are, legal considerations need to be addressed when parentage is being determined.

Parentage in the law deals with the legal relationship between parents and a child. We discussed establishing a child’s parentage generally in an earlier blog post here. But the right of parentage earns a new level of complexity when done through assisted reproduction.

Many couples who engage in assisted reproduction use a donated egg or donated semen. And there can be some natural concerns that come up when you are on the side of the donation recipient. Does the donor have rights as the parents-to-be do? How do parents-to-be secure their parentage rights?

Their rights as parents can prevent the donor from seeking parental rights. However, if the sperm donor and the intended parent wants the donor to be treated as the child’s parent then there must be a written agreement stating this prior to conception. Also, if an egg donor wishes to be treated as the child’s parent the court must find satisfactory evidence that the donor and person seeking treatment meant otherwise. This may be demonstrated by the donor taking on a role of raising the child.

Parents using a surrogate may have parentage concerns too, but preparing before birth will ease these anxieties. As long as the parents-to-be sign the appropriate surrogate contracts they shall be the lawful parents of the child.

Ultimately, the ruled and laws regarding assisted reproduction and parentage rights are complex. All relationships are unique and some may not fit perfectly within the box of California law. Moreover, the scientific abilities of reproductive assistance are constantly evolving at a rapid rate. Therefore, it is important to talk with a knowledgeable attorney like those at Lonich & Patton to discuss your specific situation.

If you would like more information about assisted reproduction and parental rights, please contact the experienced family law attorneys at Lonich & Patton.

Lastly, please remember that each individual situation is unique, and results discussed in this post are not a guarantee of future results.  While this post may detail general legal issues, it is not legal advice.  Use of this site does not create an attorney-client relationship.

This article has no comment.

Share |

What Parents with a Disability Need to be Aware of in a Divorce

Posted June 1, 2017 in Family Law by Michael Lonich.

Parenting while going through a divorce is hard, but also having a disability adds a new level of complexity that makes it is easy to feel overwhelmed and deflated. This is why it is so important to have a competent lawyer who will advocate for your parentage rights effectively and with care.

The thought of having parentage rights taken away will make any parent’s heart drop. But the chances of a disabled parent facing this nightmare is almost a guarantee. According to the National Council on Disabilities the removal rates of children from disabled parents are dispiriting. For children with psychiatric disabled parents the removal rates were between 70% and 80%; parents with intellectual disabilities were 80%; and parents with physical or sensory disabilities experienced high removal rates and loss of parental rights, as well.

If you are a disabled parent facing divorce or a child custody battle, it is important to find a lawyer who is sympathetic to your situation, who understands your condition, and will be effective in their advocacy for you. This is crucial because there are many unfortunate challenges a disabled parent can face in court.

Disabled parents may experience bias or speculation regarding best interest determinants. When dealing with a child, the court’s main objective is to produce a result that is in the child’s best interest; and a parent’s disability will be considered.

There is also a “no harm” requirement when determining a child’s best interest scenario, where the court factors the mental and physical health of all individuals involved to determine if there is a potential chance for harm to occur to the child. With this requirement, there is no obligation to show that the parent’s disability is actually causing, or will cause, any harm to the child or their environment. This can clearly disfavor any parent dealing with a disability.

If you are a parent who has a disability and is facing a divorce or custody battle, securing knowledgeable and effective counsel is imperative. There are a few key characteristics you should look for your future lawyer.

Of course, a knowledgeable lawyer in family law and child custody is a must, but you also want one who will focus on your parenting abilities and strengths. Your attorney needs to understand the specifics of your diagnosis in order to better advise and understand you. By being knowledgeable on your disability’s characteristics your lawyer will be more equipped to advocate on your parenting strengths and abilities. Finally, you want to find a lawyer who apprehends the benefits and pitfalls of various parental evaluations. Overall, your lawyer should give you assurance that your parental rights are protected and that you are given a fair opportunity to raise your child.

If you are considering a divorce or legal separation and would like more information about child custody and parental disability, please contact the experienced family law attorneys at Lonich & Patton.

Lastly, please remember that each individual situation is unique, and results discussed in this post are not a guarantee of future results.  While this post may detail general legal issues, it is not legal advice.  Use of this site does not create an attorney-client relationship.

This article has no comment.

Share |
Phone:
408.553.0801
Address:
1871 The Alameda, Suite 475
San Jose, CA 95126
Email:
contact@lonichandpatton.com