Answers to some common questions about child custody in California.

If you’re gearing up for a custody battle, you probably have many questions about your rights and the law. We’ve compiled answers to some of the most commonly asked questions here, but be sure to consult with an experienced child custody attorney like Torrence L. Howell for advice and information tailored to your specific situation.

Who can have custody rights?

In California, any individual who has demonstrated a close relationship to a child can potentially seek custody or visitation rights. If the judge decides that the loss of the relationship would be detrimental to the child, they may award custody or at least visitation. The most common scenario is for the biological parents of the child to share custody, but same-sex partners, sperm or egg donors, grandparents, and other relatives could potentially also have custody rights. In California more than two parties can share custody.

What’s the difference between physical and legal custody?

Physical custody is the right to have the child physically with you and in your care. Legal custody is the right to participate in important life decisions affecting the child, such as where they will attend school, what medical care they will get, etc.

What kinds of issues impact child custody decisions?

In California, all child custody decisions are based on the best interests of the child, and this is assumed to be regular contact with both parents, unless some special circumstance makes this unwise. Some issues that may result in visitation being granted to a parent instead of custody include:

• Substance abuse issues
• History of domestic violence
• Poor mental and physical health
• Inability to provide a stable home environment
• Incarceration

Can my child pick which parent they went to live with?

Older children are allowed and even encouraged to share their feelings about which parent they would prefer to live with. However, a minor child is not considered the best judge of their own best interests, and the court will always refer to that standard when awarding custody, even if it goes against the child’s desire.

Do I have to go to court to create a custody agreement?

You do not have to bring your case to trial in order to get a custody agreement. In fact, it is considered better for all involved when parents can come to a fair custody agreement on their own. You will still have to get your agreement signed by a judge.

What do I do if my ex won’t honor my rights?

If your ex is attempting to deny you access to your child, you can contact your local police department for help enforcing the custody or visitation order. If your ex still resists, you will have to take action through the courts.

Don’t risk your business getting destroyed to pay off your spouse in a divorce!

Whether you started your business before marriage, or you and your spouse started it together, under California law your spouse will likely end up entitled to 50 percent of the value of the business if you divorce. This means you will either have to live with your spouse as an equal business partner for the rest of your life, or else buy them out. Unless, that is, you have utilized some of the following strategies to protect your business.

Prenuptial Agreements

For individuals who bring a business into the marriage, it is wise to draft a prenup that specifies how the business will be handled in the event of a divorce. You need to make sure that you get the prenup in writing and have witnesses that can testify it was signed willingly by both parties. Unfortunately, prenups are not ironclad and your spouse may be able to override it in a divorce battle, especially if the asset division is extremely lopsided.

Postnuptial Agreements

If you neglected to create a prenup before marriage, you can use a postnuptial agreement for the same purpose. Postnups are hard to enforce if one spouse decides to disregard them, but they are better than nothing.

Lockout Agreements

You can also consider including provisions in your partnership, shareholder, or LLC agreement that will give your business partners the right to purchase your ex’s share of the business to prevent that person from gaining a controlling interest in the business.

Pay Yourself a Competitive Salary

If you put all your profits back into the business rather than paying yourself a competitive salary, your spouse might be able to argue that they deserve a greater portion of the value of the business to compensate for the income that would have otherwise benefited the household.

Don’t Involve Your Spouse in the Business

The more work your spouse does for the business, the more likely they are to claim they deserve a greater portion of its value. If your spouse must be involved, pay them a fair salary for their work.

Paying Off Your Spouse

If your spouse does end up getting a portion of your business in your divorce, and you don’t want to work with them, you need to pay them off. Hopefully you will be able to liquidate personal assets in order to do this, rather than business assets. You should also consider a property settlement note. If your ex is open to a long-term payout with interest, this will give you more time to pay them off and help protect your business from a sudden shock.

Individuals accused of homicide can no longer claim “gay panic” as a defense for their actions.

At the end of September, Governor Jerry Brown signed a new law that finally takes an outdated, prejudicially-based defense option off the books in California. Defendants will no longer be able to use the idea of a “panic response” to encountering a gay, lesbian, bisexual, or transgendered person as a means of pleading a murder charge down to manslaughter.

The “gay panic” defense has been used in many high-profile cases over the years. For example, it was used in the 1995 murder trial of Jonathan Schmitz, who killed his friend Scott Amedure after Amedure revealed sexual feelings for Schmitz during the Jenny Jones TV show. It was also used in 1998 to defend the men who killed Wyoming university student Mathew Shepard due to his sexual orientation. In both cases, the defense argued that the men who committed the murders did so in the course of a “panic response” to the victims’ sexuality.

By its very nature, this defense defined gay, lesbian, or transgender sexual identities as something unnatural, to be feared and punished. It also seemed to imply that these individuals were “asking for” mistreatment simply by being themselves.

Considering that California has long been at the forefront of protecting gay rights, it is actually somewhat strange that this “gay panic” defense has taken so long to get struck from the books. California was the first state to outlaw the use of “conversion therapy” to try to “fix” gay children, and it was also among the first states to begin the fight for gay marriage. Today California’s entire family code is gender-neutral, to be more inclusive of same-sex partners.

Many gay rights advocates hope that California’s rejection of the “gay panic” defense will serve as an example for other states to follow in eliminating prejudicial laws from their own books.

There are still plenty of defense options that a criminal defense attorney could explore when trying a murder or manslaughter case. Each piece of evidence presented by the prosecution must be closely scrutinized, and the defense may even hire its own investigators to look for more evidence. Police procedure is also a ripe area for investigation as the failure to obtain evidence through legal means would result in that evidence getting thrown out of court.

As an experienced defense attorney, you can rely on Torrence L. Howell to be extremely conscientious in building your case, even when the alleged crime is minor.

Recent high-profile child abuse case revives question as to where to draw the line between discipline and abuse.

Minnesota Vikings running back Adrian Peterson made headlines and sparked debate when he was arrested on charges of child abuse for allegedly hitting his 4-year-old son with a switch.

At first the Vikings seemed fairly sympathetic towards Peterson, who was initially reinstated after missing just one game. However, in the wake of public outcry against such a soft response, the Vikings have since placed Peterson on the exempt list, effectively banning him from play until the resolution of his case.

It’s hardly surprising that people are having wildly different reactions to this case. For many Americans, corporal punishment, including spanking, whipping, and hitting with switches, is a traditional and acceptable form of discipline, while for others it seems like abuse.

Attitudes have been changing about corporal punishment in recent years, with 70 percent of Americans thinking spanking is acceptable in 2012 compared to 84 percent in 1986, according to data from the University of Chicago’s General Social Survey. However, spanking continues to be more popular among certain groups. For example, African-Americans are 11 percentage points more likely to view spanking as acceptable than whites. Born again Christians lead other religious groups by 15 percentage points, while southerners lead other regions by 17 percentage points.

Demographics in California make our state somewhat less inclined to view spanking as favorably as other states. However, state law does permit for “reasonable disciplinary action” to be carried out upon children. According to child abuse experts in the state capital, spanking which is done with an open hand striking the buttocks is legal unless other extenuating circumstances apply.

The Los Angeles County Department of Children and Family Services offers some advice for helping to determine if a given instance of corporal punishment is actually child abuse. According to their website, discipline should be thought of as a reasonable punishment that is done to help the child change their behavior. It should be done in the “calmness of conviction” when the child has violated a clear rule, not arbitrarily or in anger. Indeed, abuse is more likely to be done to satisfy the needs and emotions of the parent rather than for the good of the child.

If the corporal punishment leaves a physical injury such as a bruise, or was done specially to terrorize and emotionally torment a child, it could be argued that it was child abuse.

Considering the potential ambiguities of the law here, it is absolutely critical to retain an experienced attorney if you are ever charged with child abuse.

Even if you don’t marry, you can still take steps to protect your rights to your children and your assets.

According to data recently released by the Census Bureau, the marriage rate in the US is at the lowest it has ever been since 1920. The first-time inclusion of same-sex couples in the marriage rate, though politically and socially significant, has not helped raise the marriage rate statistic.

The Pew Research Center crunched the numbers on the census data and found that the marriage rate among American 18 and over was at 50.3 percent in 2013, the lowest ever in 93 years. In the first year data was available, 1920, the rate was 65 percent, and at its highest point the rate was 72.2 in 1960.

Since the marriage rate looks at couples that are currently married, rising divorce rates since the 1960s could certainly be contributing to the new low. However, the trend towards many couples not getting married at all could also be a major factor.

There is no such thing as a common law marriage in the state of California. This means that unmarried couples who may live together for decades, pool all their assets, and even have children together will have no legal recourse for disentangling their lives if they ever decide to separate.

Fortunately, there are some things you can do right now to help prepare for the day when you and your long time partner might separate.

First of all, have a plan for your children. The law already provides for child custody orders to be granted to unmarried parents. It will make the separation easier if you establish paternity for your children now. This is as simple as having the father sign a form.

Next, consider how any property or assets may be divided. For married couples, any income received, as well as any property or assets purchased with that income, will be considered joint communal property. This means each spouse is entitled to half of it. When couples are not married, this doesn’t apply. It may be a good idea to keep your earnings in separate accounts to ensure each individual gets their own money back after separation.

Finally, consider how your income will change after separating from your partner. If you have children and they live with you, your ex will probably have to provide child support, but they will be under no obligation to pay spousal support to you as they would if you had been married. So think very carefully before you decide to give up your career to support a partner you are not married to.

Learn what factors a judge may consider when deciding to award spousal support in a divorce case.

During a marriage, two spouses pool their efforts to maintain their household and care for one another and their children. While having two working spouses is more and more common, in many cases one spouse stops working for at least a few years in order to raise children. This can put that spouse at a disadvantage career-wise, and they may deserve compensation for their sacrifice in the form of spousal support. There are many different factors that inform the spousal support order that may be incorporated into your divorce decree. Often, divorcing couples are able to reach an agreement regarding support or alimony on their own. Divorce attorneys may help with the negotiation process to help ensure the agreement the divorcing spouses present to the court is fair and accounts for both spouses’ rights, but a judge will still have to sign off on it. Here are some of the main factors that a judge has to consider when creating a spousal support order.

Supported Spouse’s Earning Capacity

If the spouse requesting support has the ability to support themselves after the divorce, the judge may be reluctant to order permanent alimony. They may instead order transitional alimony to help the unemployed or underemployed spouse support themselves until they get a new job. In order to assess the supported spouse’s ability to support themselves the judge will look at their marketable skills, the state of the current job market for those skills, and the extent to which their contributions to the marriage (such as staying home to raise children or care for the home) affected their career.

Length of the Marriage

The law provides for spousal support to be ordered for any length of time the judge deems appropriate. Typically, judges have seen half the length of the marriage as a reasonable amount of time for support to last. One exception is for marriages lasting 10 years or more. In such cases, judges often issue spousal support orders with no end dates.

Domestic Violence

Finally, a judge must consider any history of domestic violence between the two divorcing spouses. If the supported spouse was the victim, the judge might consider their emotional distress as a reason to award support. If the supported spouse was the abuser, the judge could reduce or even deny support, especially if there was a conviction for domestic violence.

California lawmakers will consider 4 proposals to update the Family Code when they come back from summer recess.

There is no denying that the “traditional” family has been drastically redefined in California and in America as a whole. Recently, steps were taken to update at least one aspect of the California Family Code to reflect this reality when the definition of marriage was revised to contain gender-neutral language. However it appears there is still much work to be done to make sure family law covers all the needs of modern families. Here are 4 family law bills that legislators will consider when they come back from summer break.

Sperm Donors & Surrogates: Following a high-profile case involving a sperm-donating actor and his former girlfriend, the issue of rights for sperm donors and surrogates got thrown into the spotlight. Previously it was assumed that sperm donors, egg donors, and surrogates would not want parental rights and responsibilities and this was specified in the law. Now, proposed bill AB2344 seeks to create methods for donors to clarify their wishes.

Birth Certificate Update: Currently, California birth certificates have a spot for the mother and the father of the child. AB 1951 would change this so that the certificates only ask for the names of two parents. This would provide a gender-neutral option to accommodate same-sex couples.

Rights for Adult Children: The power struggle between Casey Kasem’s new wife and his children during the last months of his life turned into a virtual media circus, with first the radio icon and then his remains allegedly going missing. In response to this high-profile case and other factors, AB2034 has been introduced to allow adult children to petition for visitation rights that would enable them to see their parents, even over the objections of the parents’ spouses or caretakers.

Grandparents Rights: Grandparents are allowed to petition for visitation rights when they have a strong emotional bond with their grandchildren and the loss of this bond would be detrimental to the children’s well-being. Typically, grandparents rights are sought in connection with a divorce, but AB 1628 would make it easier for grandparents to secure visitation rights when parents are still married if one parent is incarcerated or institutionalized.

If you have questions about existing family law, or about how proposed changes may affect your family situation, please do not hesitate to contact The Law Office of Torrence L. Howell. Free consultations are available.

Immigrant advocacy groups are suing the US government for not ensuring children facing deportment have legal representation.

The right to legal counsel and representation is a cornerstone of American justice. The 6^th amendment guarantees this right for federal criminal proceedings, setting a precedent that has made its way into popular consciousness and resulted in many Americans believing that vulnerable individuals should always be provided with competent counsel that can advise them of their rights.

On Wednesday, July 9, a group of immigrant rights advocates put this belief into practice by filing a class-action lawsuit against the US government in a Seattle federal court. The suit accuses agencies including the Department of Justice, the Department of Homeland Security, and the Office of Refugee Resettlement of violating due process by allowing some children to go through the complicated immigration legal system without legal counsel.

Immigration cases are heard in civil court, not criminal court, so technically the 6^th Amendment does not apply. However, the advocacy groups bringing the suit argue that because children lack the intellectual and emotional capacity to fully understand the civil proceeding and its impact on their future, it is not right for them to go through it alone.

Though the Justice Department has announced plans to expand legal assistance programs for individuals caught up in immigration cases, this kind of assistance is not sufficient to help children. As an attorney from the ACLU puts it, “A 10-year-old cannot make legal arguments and cannot even make reliably accurate factual statements that a court can rely on in deciding that child’s case.”

The lawsuit names 8 specific plaintiffs, including both newly arrived children and children who have been residing illegally in the US for years, and targets a variety of ongoing actions that could result in the deportation of thousands of minors.

This case serves to remind us of the importance of securing expert legal representation in any civil or criminal matter. The cost of an attorney is certainly worth shouldering, especially considering the life-altering legal decisions that could be reached in a civil or criminal case.

At the Law Offices of Torrence L. Howell, we provide superior representation for clients involved in family law disputes as well as criminal law cases. Please contact us today to schedule a free initial consultation to discuss your case and find out how our services can help you secure the best possible outcome.

Despite progress in recognition of old and out of state same-sex marriages, challenges still remain.

This month Governor Jerry Brown signed a bill into law which updates the wording of California’s marriage laws to reflect the reality of same-sex marriage in our state. The new law will also ensure that same-sex marriage licenses issued by other states are recognized in California. But despite this progress, same-sex couples still face difficulties in receiving equal treatment, as one famous case involving two gay marriage pioneers clearly shows.

In 1975, Anthony Sullivan and Richard Adams hopped on a flight from LA to Boulder, Colorado to visit a forward-thinking county clerk. The clerk gladly issued the two men Colorado Marriage License #1860 and the couple was married in front of witnesses in the First Unitarian Church of Denver. Though the clerk soon resigned, none of the 6 marriage licenses she had issued to same-sex couples were ever revoked or voided. Instead, they were simply ignored.

Adams and Sullivan tried to use their marriage license to secure a green card for Sullivan, an Australian citizen. However, their application was denied on the grounds that they had failed to prove they were really married, despite having a legal marriage license from Colorado. In the first federal lawsuit demanding recognition of same-sex marriage, the couple sued the INS, but they lost the case as well as all subsequent appeals.

By the 1980s, Sullivan was stuck in immigration limbo, unable to leave the country even for his mother’s and brother’s funerals for fear of being separated from his partner, who had already been denied residency in Australia.

Adams passed on at the end of 2012, just before the Defense of Marriage Act was struck down. Now, Sullivan has one last chance to get the green card—via a widower’s petition. Spouses of deceased citizens have two years to file a petition for a green card. Will this be enough time for Sullivan? In a few months we should know.

Meanwhile, it is important to understand that as the laws regarding same-sex marriage change, so do the interpretations and precedents available for use in family law cases. If you have had a family law issue related to a same sex marriage that has not been resolved to your satisfaction, now may be the time to try again. Please feel free to consult the Law Offices of Torrence L. Howell for advice.

Being the spouse serving papers rather than getting served can offer strategic benefits in a divorce case.

Besides the emotional gratification that can come from doing the rejecting rather than being rejected, there are some very compelling reasons why you might want to make sure you file for divorce before your spouse has a chance to. Here are a few of the key benefits that filing first can bring.

No Rush to Find the Right Attorney

Choosing the right divorce attorney is essential for getting the best possible outcome from your divorce. You need to find a seasoned professional who has a good track record of fighting effectively for their clients’ rights and securing fair divorce decrees. If you’re scrambling to respond to divorce papers your spouse has served on you, it can be difficult to really do your homework and research as many attorneys as you’d like. But if you are in control of the process and you know you are highly likely to be the party filing first, you can take your time and never risk moving forward with an attorney before you’re completely comfortable.

Time to Secure Documentation

Another important benefit of filing first is the opportunity to secure copies of all relevant financial records before your spouse has a chance to interfere with them. This can help prevent assets from getting transferred to secret accounts or otherwise “overlooked” when your spouse presents their own accounting of your marital assets and property. Be sure to gather all of the following types of documentation:

• Bank statements
• Tax returns
• Life insurance policies
• Wills and trusts
• Retirement account/pension statements
• Real estate records
• Asset inventory

Time to Settle Your Finances

A divorce proceeding will cause you to incur certain legal costs. When you are in control of the process, you can delay filing until you are sure you have the cash or credit required to cover all your expenses. If you wait for your spouse to file, you may not be so lucky. You may have to choose a subpar attorney or even go without representation.

Ability to Choose Jurisdiction

Finally, for couples who may reside separately in different states or counties, or live together but split their time between different properties, filing first may provide the opportunity to determine which jurisdiction’s laws will apply to your divorce case. If you are uncertain of the pros and cons of filing for divorce in a given location, you should definitely contact an experience divorce attorney and ask for advice.