Recent Blog Posts in August 2009

QUESTION:  Is overtime a factor in considering child support?

Q.  Can you please help.  I understand a Moore-Marsden analysis needs to be performed on my house in my pending divorce, but my attorney can't explain it to me. 

Frederic:

Here is an illustration of how the calculation works.  Please see my FAQ on Moore Marsden generally.  As you can see, it is complicated. 

You will need to get some further data: we need to the payoff balances on the date of marriage; the date of the transmutation (when your wife went on title), the date of separation, and the date of trial - which is the final valuation date - once it is set. 

If the transmutation is set aside (based upon a presumption of undue influence that your Wife violated FC section 721(b) which she has the burden of rebutting by establishing a fair consideration for the title change) - it will be a straight Moore-Marsden plus Family Code section 2640 or Epstein reimbursements for certain post DOS expenses.  Therefore, one scenario is:

Assuming                                                                $   54,875     DP and                                                                                6,836     
pre-marital principal reduction (you will need
the actual pay-off information)                                      25,125     pre-marital appreciation (which you can establish with you own
testimony based upon your opinion of value as an
owner) and                                                                (20,197)     principal reduction from the DOM to the DOS (again you will want
to have the actual pay-offs on the alternate dates
but am going with your given assumptions here)
then:                                                                         $54,875 [DP] PLUS $89,803
[SP Loan of $110,000 minus $20,197 CP payments]
= $144,678 DIVIDED BY $164,875 [purchase price]
= 's a 87.75 SP Interest

and                                                

$20,197 divided by $164,875="12.25%" CP interest

NEXT                                                                 $54,875 [DP]
                                                                                   6,836                                   
---  (plus post DOS loan payments which I don't
see broken out so assume zero here)                         $61,711 PLUS                                                                         25,125  (premarital appreciation) PLUS                                                                       315,900     [87.75% of post-DOM appreciation to present assuming $550,000 today
and not the $500,000 equals $550,000 less 164,875
less $25,125="$360,000]" - appreciation percentage of H's SP interest ='s $402,736 (H's SP share)

COMMUNITY:  $20,197 plus 12.25% of 360,000=" $44,100"
plus 20,197="$64,297" TOTAL CP INTEREST BEFORE REIMBURSEMENTS
divided by 2 = $32,148 equalization to W

EXCEPT at a minimum you get FC section 2640 reimbursements for the special assessments meaning deduct one-half of the $11,597 paid out from her equalization.

i would have to do another analysis assuming a valid transmutation.

I hope this helps more than confuses!

Q.  Can the primary physical custodian move away to another city even though my children attended 4 schools in 5 years?

The primary custodian cannot move away if you can convince the Riverside judge that the child/children will suffer a detriment from the move, which is independent of the interference with your custodial time share.  Is any therapist, mediator, child appointed attorney, or evaluator looking at this case?  A 13 year old child is old enough to express a meaningful preference under Family Code section 3042, and you need to get these wishes to the court.  The court evidently is uncomfortable with the move.  You need to ask one or all of these folks be appointed, and you need to ask that legal and physical custody be awarded to the two of you jointly, or solely to you in the alternative.  Please see what I have written here as it may help guide you:

http://www.thurmanarnold.com/Practice-Areas/Relocation-and-Move-Away.aspx

Q.  My Neice has a 1yr old son. She is always gone on drugs and alcohol. Her mother is basically in control of the boy. She cares for him 24/7, takes him to doctors...my niece doesn't seem to care for him. I told my sister in law she needs to get custody of her grandchild ASAP. She is afraid if she calls they will take him away from her. He is in a loving home, has own room and all the care he needs. We would take him but I have 2 boys myself, no room. I know he would be in the "system" until she legally adopts him...what do we do?

Q.  My girlfriend is having our baby in September, but I don't know if I am the dad.  I really care about her but a friend told me that I need to be careful because if I go to the hospital with her, I have to pay support no matter what.  Is this true?  What is she files a paternity action?

Keith:

California law encourages hospitals to get a signed Voluntary Declaration of Paternity ("VDOP") from the male who appears to be a parent at a time when a mother gives birth.  This is something that is presented to proud fathers at the time of a child's birth, along with information about legal obligations, and that they are asked to sign.  There may be alot of guilt and confusion going on at this time.  Hopefully there is simply pride.

The public policy is that the State wants to identify biological fathers early on, and to encourage them to step up to the plate both financially and in terms of providing emotional parenting to children.  It is also assumed the male who shows up for the birth is most likely the bio dad, and that the parties know it.  Obviously, it is not always true and sometimes a man does not turn out to be the actual father.  Sometimes he believes he is, and sometimes he is told he is.

Children need their biological parents; this is critically important.  Any bio parent who shirks his responsibility out of financial or emotional selfishness lacks integrity, and their decision has serious consequences on other lives that a true parent will recognize and regret one day, unless they are a sociopath or lack any conscience.

BUT the signing of a VDOP has serious important legal consequences.  It is equivalent to a Judgment of Paternity, which may only be set aside for a limited time.  While children deserve parents, whether a man that has sex with a mother before a child is born should be determined based only upon that, and their sense of moral responsibility, and therefore to be adjudged a responsible parent also raises integrity and fairness questions in favor of the alleged parent.  While California law on this subject means well, and may statistically result in the proper outcome more times than not, in my view innocent men who turn out not to be biological parents have rights too.  The law says so too, and the question becomes whether you or not you waive your rights to object in a timely fashion.

So, please understand, if you sign a voluntary declaration of paternity next month, you may be adjudicated the legal father of this child regardless whether you are the bio parent.  That has privileges and it has burdens.  You will have the privilege (assuming the mother does not challenge you before two years after the child's birth) of being a "legal parent" whatever the DNA turns out to be, including rights to custody, visitation, companionship, etc..  You will also have the legal financial burdens which I describe under my support obligations FAQ's.  For a long, long time, and even possibly forever. 

Family Code section 7573 establishes the effect of a VDOP.  Section 7575 allows you to rescind that declaration but only if you do so within 60 days after birth of the child.  Otherwise, after birth, you have a 2 year window to seek paternity DNA testing and an order that you are not, in fact, the bio-dad.  The court has discretion to find you are the de facto parent even if you are not bio-dad, however, so even if DNA is conclusive and you are not otherwise the father - absent another man ready, willing, and able to step up, you may find yourself stuck.

These are weighty matters.  In my experience, and in most judge's experiences, woman know who the dad is.  Still, there are many reasons why a mother might lie - even including trying to insure that some bad person is never adjudicated the dad.  I would never judge your girlfriend and have no opinion on what your status truly is.

So, do what your heart tells you you are the dad, fine.  But consider getting DNA testing immediately before you, or the child and you, form any attachments and that way there will never be any question - nor any need to hire me to dispute paternity! 

Best of luck and, hopefully, congratulations!

TWA

I am a mom in San Diego County.  There are court orders out of El Cajon for joint legal custody and sole physical to me.  The old orders said I could move anywhere within San Diego County.  I just changed our son's school to north county San Diego.  I want to remarry, and have been living with my fiance for 4 years.  I believe the schools are better here.  Now our son's father is trying to force me to keep our son in the old school south of here, or to take custody.  He says the school our son was in is better.  I would have to drive 70 miles for school drop off and pickup.

I have no money for attorney fees because my last lawyer had only a year's experience, and she upset the judge and now I am out $10,000.  We have a hearing in 3 days.  Please help.

Mellissa

Attorney Fees Question/Assuming There Are Any Further Hearings

You are requesting attorney's fees because the issues involved are some of the most complex in this area of the law (parent relocation), and you are entitled to be on a parity with Mr. Tr xxx, who has been able to retain competent counsel. 

Specifically, tell the Court your request is also made under authority of Alan T.S., Jr. (4/2/09) 172 Cal.App.4^th 238 and In re Marriage of Keech (1999) 75 Cal.App.4^th 860.  Tell the Court that you are in pro per but do not want to be, but that obligation of supporting the child from this marriage plus the financial burden of your other handicapped child, makes it impossible for you to obtain legal representation without an order that Mr. Txxxx pay these fees.

1)      Establish that the final, current order, is for joint legal and sole physical custody to you.  Mr. Txxxx  rights are for visitation only, but not custody, absent a modification of the current orders upon a showing by him of a material change of circumstances.  Your move and the child’s new school is not presumptively, without more, a sufficient change of circumstances to warrant a change of custody even assuming he asked for it (I don’t know if he has).

2)      As the parent entitled to the day to day supervisory control of the child per FC section 3007 (defines sole custody), you had a presumptive right to relocate.  This is the same right codified in FC section 7501.  You have custody; dad has visitation rights.  (Btw, his visitation rights are not being negatively impacted by the move, by his own admission, since his objection only involves relative school ratings).

3)      As to the joint legal custody label, this only grants each of you the rights under FC section 3003 (decisions regarding health, education and welfare) during your respective custody and visitation times.  FC section 3083.  It is does not obligate you and he to agree on schooling absent a court order saying you had to first, per 3083, and it must be specific and mention “schooling” (I assume this is not the case).

4)      Even though you were not required to do it, you gave dad notice per FC section 3024 that you were moving north and changing the child’s schooling.  F’s atty intimidated you into filing a motion for permission to make the move, when they probably were the one’s obligated to file a motion to restrain the change, and so you have acted in good faith.  This is particularly true given the court order from (the ealier date) stating you can relocate anywhere within San Diego County.

5)      It is very important if their responsive declaration did not check the change of custody box, and if their paperwork only asks to restrict the change in schools – you need to be sure you are right about this before making the argument -- BUT if they are not seeking a modification of custody, then you have the right to move [7501] and change schools [3003/3083] and there should be no need for any further hearings and your application must be granted.

6)      Next, ONLY IF THEY’HE REQUESTED A CHANGE OF CUSTODY, then the next analysis is:  That this is not a de facto joint parenting agreement.  This not a Burgess footnote 12 case (which requires a “de novo” best interests of the child hearing only where there is true parenting agreement).  Here the timeshare numbers become important – you want him as low as reasonably possible without sounding incredible.  This is a straight Burgess situation, and therefore you have the presumptive right to move and you do not need to show that the your move was “necessary” or even in good faith, except with the added benefit to you that Burgess involved temporary orders and so the court had to do a best interest of the child analysis, while your case involves “permanent” orders and so that is not a ground for an evidentiary hearing (best interests was previously decided in your favor and the question will be not be reviewed again absent Dad showing a change of circumstances).

7)      Changing schools is not an adequate CoC as recently held by the California Supreme Court in Brown and Yana (2006) 37 Cal..4th 947.  There, like you, a parent with sole physical custody sought to move a much greater distance from the dad – Las Vegas.  Dad’s objection was that the schools in LV were inferior.  He wanted an evidentiary hearing before the move would be allowed, and he sought a change of custody to himself if Mom moved anyway.  The trial court correctly refused to allow an evidentiary hearing because the Father had failed to allege sufficient facts showing a detriment to the child by simply claiming the relative merits of schools.  Courts won’t step into that qualitative battle.  Instead, F needs to show that you are attempting to frustrate contact, which clearly is not the case, or some other “detriment” in his responsive declaration.  His failure to do so means he is not entitled to an evidentiary hearing.

8)      Since he is not entitled to an evidentiary hearing, even though a mediation is appropriate in the next month, it would be improper for this court to issue any orders that restrain your son’s ability to start school on 8/20/09 as planned.

9)      Father has failed to meet his burden.  You need attorney fees to retain competent counsel for any further hearings.

10)    Finally, under FC section 3044 there is a rebuttable presumption that dad is not a fit person to be a joint custodial parent because of the DV orders.

Best of luck on this.  If you get a court order for attorney fees, hire someone!

Thurman Arnold