How Can I Fix My Current Custody Situation?

Generally in California, the counties provide family law mediators at little to no cost to litigants; you are not forced to use the service, and can usually obtain your own services by paying for the service.
Usually, the parties agree that they will not use the mediation services of the court and will obtain a private mediation person or group that has such a mediator.

Many of the mediators that work for the court system have seen many cases, and because they are human, they may make mistakes. That is not to say a private mediator can't also make a mistake. The mediator's job is to do the evaluation and then make a "recommendation" to the court. The recommendation is NOT an order.  The court is NOT required to "adopt" the mediation, and the parties are NOT required to accept the mediation recommendation themselves.

Thus, the recommendation, if not accepted by at least one of the parties, can result in a trial.

In about 75% of cases (not an exact percentage) judges will tend to adopt the recommendation of the mediator.

But as stated, if a party objects to that recommendation being adopted, a trial can be held, OR it's possible the parties can work out something different. Some recommendations may have clauses which give review dates in the future, others may not.  If in your jurisdiction, you know you do not want the court mediator(s), then you must tell the court that you wish to have private mediator services, and should discuss that in advance with the other party.

In high conflict cases, mediation may be the tip of the iceberg...extremely high conflict cases are not usually solved by using a mediator no matter what recommendation is given, the parties will continue to not get along and will have issues.

 It is this attorney's belief that in some high conflict cases where neither party is represented, the judges simply assume that minor's counsel can fix the problem.  This is not necessarily true for all cases, especially when there has been one sided action (criminal, quasi-criminal, mental illness, imprisonment/other facts which cause one party not to work, and etc.)  In these cases, it can be that no amount of minor's counsel will be solving anything.

Attorney has seen plenty of high conflict cases over the years.  

If you feel you need help on your case that might involve unsettled issues, call attorney 916-794-5557. There is no charge for the consultation. 

The Published DV Case From Sacramento

Please bear with us---before we get to the published case from Sacramento, which was not our case, but shows what we often talk about,  thank you...................

WOO HOO!! Just won another DV in an unusual case in Northern CA,  where the female had two pets in her custody and got sued for having them, or taking them,  by the ex live in--who lives at other end of the USA...
         We helped her file the DV as she had prior DV case in another state, and asked that pets be under the protection order.

Despite our doubts, the Court awarded her the order for 5 years (not 3) and she thus has DV protection as to the pets. Meanwhile, the ex is actually suing to gain something out of the pets, there is nothing to gain actually. And even though he hired an "animal law attorney" from another state, all we can say is, good luck on that one.
      They might as well have flushed that case down the toilet. (Attorney herein does animal law and for longer than most attorneys that know animal law...)
Second DV case-- just settled another DV case!! It does happen from time to time!!! [If we did not settle we would have won the case anyway...facts were in our favor....]
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Below is a published case from Sacramento involving domestic violence from 2018


https://cases.justia.com/california/court-of-appeal/2018-c082857.pdf?ts=1519675297


....[D]uring a child custody hearing a year later in June 2012, Judge Kevin Culhane found that Riley still failed to comprehend the nature and gravity of his conduct.

 According to Judge Culhane, Riley involved a number of third parties, including his family members, in private parenting issues.

The court found that Riley was the source of threatening e-mails Rybolt received from Riley’s sister and that his family members had followed her and copied private parenting documents. “Such controlling and intrusive conduct,” in the court’s view, “[wa]s fundamentally inconsistent with any finding that the [Family Code section 3044]6 presumption ha[d] been rebutted.”



(the photo above is not the victim, this is photoshop)

[J]udge Culhane further found that, “[m]ost fundamentally the evidence demonstrates an ongoing course of conduct whereby father attempts to blame multiple third parties, includ[ing] mother, mother[’]s boyfriend, other parties, the co-parent counselor, the former lawyer, mediator, and others for the continuance of father[’]s own activities.” Riley had also “drawn the child into these disputes on a number of occasions.”

This case is indicative that the courts are not wavering on protecting domestic violence victims.

  It is in the DV victim's best interest to obtain a litigator that can best protect those rights.  If you need help, call today. Waiting can ruin your case as has been seen in the past for those who do not listen to good advice.

Temporary Spousal v Ongoing Support

There is a Major Difference Between Temporary Spousal and Ongoing Spousal...do you Need to Win your Case?!

Basically, temporary spousal support is done by using the Dissomaster program; ongoing or sometimes called permanent spousal support, is not done by using the Dissomaster, and requires the Court to use certain factors in deciding just how much should, if at all, be paid.  Because there are 14 factors to be considered, it is pretty obvious that an attorney who has experience in figuring out how to best defend the paying client-- this is what you would need if you are the "paying" client.  In most cases, it will be the husband or the spouse that earned more during the marriage.

Conversely, the person who is attempting to get or keep the ongoing spousal will need an attorney who can prove that the client basically needs the support, and that it is warranted under the circumstances.  These days, many people are living far past retirement age, and many people will be working or are forced to work past retirement age. This could have some interesting ramifications on spousal support, because many more women who may not have worked in the past, are now working. Because the family code expects that each person (wife or husband) post separation, is to make efforts to become self supporting if not already doing so, this means that the stay at home person must make those efforts to become gainfully employed.

Attorney herein has had plenty of cases both for the worker spouse, or the non worker spouse. Also because attorney is basically a defense attorney, it is much easier to raise defenses in many areas from a logistical view, factual view, and legal view. In part, this may be why attorney has such a high win rate in contested cases.  

If you have a difficult case, attorney encourages you to call for your free consultation!

Do You Want to Win Your Case?

Attorney herein always sizes up each fact pattern of all cases, because unless you have a definite slam-dunk case (you likely wouldn't need an attorney) but many cases are NOT as slam dunk as we like?  Therefore, it makes sense that to win a case, not only must we have some law on our side, but we must be the better presenter, have the better argument, or be more persuasive than the average Joe, PLUS, be able to give client the confidence showing it can be done.

The client must believe in the attorney for the best result, and  issues below indicate there might be spousal support (alimony); so as an example, let's say we were concerned with the "Modifiability" of the spousal support, or the NONMODIFIABLE spousal support order; or of the modifiability of such support orders in another state? Or it could be the BASIS for modification, and if there was a material change of circumstances...Yes there is case law on all these issues at the appellate level.  Therefore, even if new case law comes up on the subject, it may or may not affect your case. That is why we do legal research to make sure nothing has changed in the law that might affect our facts.

Family Codes such as FC3603, 3651(c)(d), 4333, 4335, 4336, 4336(a)(b)(c), 3591(e),3590,3591(a)(b)(c),4909(f) and far more, can pertain to many cases involving modifiability of spousal support, basis for modification, and material change in circumstances.

                                         CASE EXAMPLE INVOLVING FEES/SUPPORT

As just a personal example, attorney's client was over age 65 and he was retired; the wife was also retired. In our attempt to be awarded attorney fees, we also requested spousal support because the wife made about 3x  the income of what the client made, BUT the client had a pending "TRO DV" in another county that was not yet litigated, and the court allowed the wife's attorney to keep the TRO issue open for at least a year?  Now most attorneys would instantly tell you-- your client ain't gonna get fees or support because of the pending TRO DV in another county? [Pending does not mean conviction obviously!] 
Under the law,  the court can consider not awarding spousal to someone who has a conviction under a TRO DV...However, the client here, had a pending TRO DV case,  and nothing had moved forward on it? FC4320(m)

Attorney herein believed that attorney might be awarded a small amount of  legal fees, but not likely the spousal support.  Surprisingly,  the Court awarded the client spousal support, after the opposing attorney went off (in front of at least 30 attending attorneys) and claimed that attorney herein "did not know Family law?!"  LOL Biggest joke ever, the opposing attorney should be retired because he's a know it all that just lost the case because he couldn't keep his mouth shut?

Attorney laughs every day at that incident, and is now good friends with the client for years. OH--and this isn't legal jargon--but attorney herein has a down to earth friendly, social personality, and is not overly bookish or serious. Attorney does research technology regularly.  Must be from working with so many male contractors over the years! We really don't need overly serious attitudes for every aspect of divorce. Really.

Do You Have a Non-Winnable Case?

There are some instances which present facts that are, realistically speaking, not winnable.
At least not at first.

If your case is not difficult, then it likely to be one where you can win something, as opposed to nothing. Some difficult cases are not really something you can win, and will be forced to settle. Other cases could be settled but the clients don't necessarily want to do that.

The difference between what the client wants and what the client can get is one thing. However, attorney herein will often get what the client wants simply because attorney will not give up when there is a possibility of changing something important.

What attorney has seen in various cases, is that many people don't want to settle their cases and don't want to lose either. Some of the more difficult cases usually involve fighting over time share of kids, and then the division of property.  While it doesn't usually make a lot of sense to go too far overboard, it is true that some things can be won, but it may depend on the costs. Also, some clients just want to roll over the other party just "because"----???

Regardless of client's choices or desires, attorney has worked on some of the most difficult cases ever imagined over the years, including civil and criminal litigation, and cases in the news, newspapers (family law --and criminal law--when there were printed newspapers!), and precedential decision at SPB (on sexual harassment) plus federal litigation both in California and Denver, Colorado. Additionally attorney is well versed in animal law and litigation on various animal law issues.

If you have a difficult case, feel free to call attorney Chan at  916.794-5777. One of the few attorneys known for taking the cases other attorneys won't touch!

Spousal Support "Exempted" in Bankruptcy?

SO..when is spousal support  "exempted"  in Bankruptcy?  How about under CCP 703.140?

.......... What if the "MSA was purportedly ambiguous?"

.......... What if the court thinks the MSA lists the spousal support--- but                        it's really not spousal?

.......... What if the alleged support was not reasonably necessary for such                      support?

-------> Must the Court look beyond the labels provided for in the Marital Settlement Agreement?

An evidentiary hearing in Bankruptcy Court is very interesting. (See ftp://38.98.2.146/DKupetzArticle.pdf )
...............["While there are significant differences between adversary proceedings and contested matters, the similarities between them are greater than appellant assumes. 
In a contested matter, there is no summons and complaint, pleading rules are relaxed, counterclaims and third-parties practice does not apply, and most pre-trial procedure is either foreshortened or dispensed with in the interest of time and simplicity.

 ...Nevertheless, . . . discovery is available, testimony regarding contested material factual disputes must be taken in the same manner as in an adversary proceeding, and the court must make findings of fact and conclusions of law before entering an order that has the status of a judgment." ]

In this particular case, the Trustee objected to the purported spousal support exemption under the CCP code cited above.  Also noted, Trustee mentioned that the item was purportedly concealed before, but that was not  made very clear.

Both parties had attorneys, both parties had attorneys during the MSA process, and the wife had expert. Wife stood to lose about $200,000. and yes,
she did lose it.

...[T]he court initially noted that nearly all cases regarding whether an award is in the nature of spousal support are in the context of nondischargeability under § 523(a)(5), as opposed to an exemption, which was "a different situation." Hr'g Tr. (Jan. 20, 2012) 88:2.      Nevertheless, the court proceeded to discuss In re Combs, a nondischargeability case, and the factors a court can consider in determining whether an award in a divorce decree is in the nature of spousal support or a property settlement. 

     In considering the Combs factors, the court concluded that the Met Life Account was not spousal support; it was a division of property, and therefore not exempt under CCP § 703.140(b)(10)(D). 

The court further noted that the MSA's express provision for spousal support which, under Stout, could be considered in determining whether an award in a divorce decree is support or property division, was an important factor in its decision to disallow the exemption.

The bankruptcy court entered an order sustaining Trustee's objection and disallowing Diener's exemption of the Met Life Account as spousal support under CCP § 703.140(b)(10)(D) on February 10, 2012. Diener timely appealed.
http://www.leagle.com/decision/In%20BCO%2020121128926.xml/IN%20RE%20DIENER  (read case at this link)

http://www.leagle.com/decision/In%20BCO%2020121128926.xml/IN%20RE%20DIENER

You will likely need to be an attorney to understand it, but then again, maybe not.The bottom line is-- if your client may end up in bankruptcy court to salvage assets, you better be sure that the MSA will work under bankruptcy rules and state exemptions, otherwise, as can be seen here, it can open a brand new issue never decided by a bankruptcy court before, and your client is the guinea pig.

Had the wife accepted payments of support without the need for later claiming that the award was an intended buy out for spousal (which was not apparently stated) in the MSA, perhaps she could have left that provision subject to open jurisdiction to enforce; but by taking the money all at once, and since it was not deemed spousal (which would make it taxable to wife) it appears that the Trustee realized this, because the debtor kept amending the Schedule C Exemptions. 
                                 Which is likely a red flag in our opinion....Oops......

Using "Limited Scope" Designation with Attorney..........Should You?

Many clients simply cannot afford full scope representation by hiring an attorney for every single issue in the divorce. This is understandable; however, an attorney who is willing to do only certain
issues in the case might be able to handle those issues which are important, while not representing clients on every single issue in the case.

As an example.... if you are using DCSS for child support-- you may not actually need an attorney, unless you have some issues which are not ordinary within the child support issue.

Or if you only have a TRO but expect that it might resolve with a no negative conduct, you may only need help with a custody order.

Or, let's say you have finished mediation and only want to contest the mediation recommendation--and it requires a trial; or the opposite, your spouse wants to contest the mediation report but you want to keep it as an order?

Or, let's say your ex did the calculation re spousal support, but made an error and it must be changed, but to what degree and why?

Many issues that come up during divorces are not especially difficult because the law only allows one way to do something (such as splitting an asset 50/50)  but in the cases where such things can be evaluated according to facts, circumstances, and behaviors, i.e. FC 3044, then see: https://www.courts.ca.gov/documents/3044sheetEN.pdf

Attorney has done many of these  types of cases both as Petitioner's Counsel and as Respondent's. and because attorney has been involved in criminal law cases (i.e. such as defending an alleged gang member, criminal protective orders, alleged stalker, etc.) attorney has seen both sides, pro and con. Strategy is an important part in family law, and many attorneys simply waste time and client's money.

 Attorney herein does not like to waste money on non-needed legal maneuvers; attorney has routinely worked with contractors, who are mostly men, and easily relates to those working in the trades. Primadonnas are not attorney's preferred client. Now we know most attorneys would never say this, but since millions of people these days put their personal/business data out there, such as on Facebook, attorney will never be on Facebook. Therefore, take that for what it's worth. And attorney just saw on another attorney's website, they WILL NOT TAKE YOU AS A CLIENT, if you have a DV TRO against you, or if you have had two attorneys in the past on your case, or if you are not current on support. WOW, that's rather prejudicial IMHO......

Attorney has been highly sought after for many difficult cases and has to turn down many cases due to a limited work load. Attorney's comparative fee scale is also considered the most affordable. Additionally, attorney has appeared in many different jurisdictions over the years including San Diego (Facilitator's), San Mateo, Denver CO, Sacramento Federal Court, Los Angeles Superior Court, etc. So if you believe you may need help in your case, consider calling attorney. It cannot be guaranteed that attorney can do your case however,  😊 ... attorney is not judgmental, and is friendly.