Divorce

Divorce

Saturday, December 1, 2018

Best Attorney? What You Want May or May Not Work for Your Case

The correct word is probably more like "appropriate", since each case has the claimed facts, and each side has some type of emotional deal that goes with it.

Family law attorneys may focus on divorces, but child custody does not require a divorce in the first place?  Whether married or unmarried, the issue of kids is common, and the issues involving kids is also commonly a point of problematic issues.




While many attorneys can handle custody issues, and financial issues, and legal issues, there really is not one type of person,  attorney wise, that will be the best fit for all clients. Having knowledge of procedure in family law is a given, but pretty much the way family law attorneys handle divorces and cases can vary.  Some may like to focus on mediation and settlement, and that's pretty much what they do.

It does not take a litigator to focus on settlement. It does not take a real fighter to focus on mediation.


So for those who wish to settle everything, and they can actually agree to work out something, that's great. Should they have to pay $3k, $5k; or even $60k, $200k, or close, to work it out? Maybe, if there are serious numbers in the portfolio, many issues with properties, and tax issues. Or large businesses and valuations (let's say a dentist wants to sell the practice; or doctor wants to divide the practice,etc.) Would that require an attorney or a tax person? Could be both but seems more like tax to me.....

However, for the not so rich  people who don't get along and couldn't work out a plan if you paid both of them, and for any couple that has long been fighting about various issues, of which money might only be one small issue, it may not be the mediator type attorney that can work anything out.
In many cases, clients will not back down for varying reasons, and some of those reasons are definitely valid? and why not? Maybe they are actually being ripped off? Maybe one party has no parenting skills whatsoever? Maybe one parent is on drugs?


What attorney commonly sees, is that one parent is really off base in his or her attitude toward the kids, or whatever they are fighting about, and the other parent will not give in-- and often times, rightly so...  On the other hand, sometimes one person is dead set on some type of action he or she wants, and will not let that go (say, one wants to keep a house but the other wants it..) Or, commonly seen, is that one parent is the better caretaker of kids but is always working, leaving the not so good parent taking care of the kids--but doing a terrible job?

Then there could be domestic violence issues and not any money issues? OR one or both parents have their own issues inherent to their personalities, and that will fuel more fighting.

For the most part, the non financial workouts are often much more difficult emotionally, and the financial ones can be maddening rather than depressing.  You don't usually need litigation for financial workouts if people can agree upon numbers or certain assets. Sometimes there will be fighting because no one will agree on actual numbers, thus there is no agreement on who gets what.

There could be deceit or huge discrepancies used in the financial holdings, in which case tracing would be used and investigators or CPAs if needed. Litigation might have to be used if there is fraud or something close. It could be that spousal support would be an issue as one side claims he/she doesn't make the amount the other side claims?     



Normally -- fraud doesn't just get mediated away? There is a lot written in the family code concerning finances because historically, some people have chosen to try and swindle the spouse; therefore, litigation is usually required. Large dealership sales, acquisitions and larger transfers can be very big litigation issues, especially if they were done without oversight.


As for the children and custody fights, sometimes both parents have some fairly common beliefs and not every parent is wrong. Sometimes a mediator can decide what is in the best interest of the kids, but other times we have seen some decisions that are not exactly what we would call fair...



It might be when some people look for attorneys, they really want a fighter and not a weak advocate. It is true that some attorneys are not able to actually litigate because they really have little skill at trial advocacy. Others may have better skills at settling issues, because they can find some common ground to parcel out to each side.  In choosing an advocate, each client probably needs to feel confident to some degree, that whatever type of action they are trying to get--that the attorney can actually do that action for them.  

The best way for an attorney to find out whether they are suited to a case is to ask a lot of specific questions.  It takes more time, but in the long run it will help the client, and the attorney can better perform the duties required. Hopefully that would lead to success for the client's case!

Monday, November 19, 2018

How Can I Fix My Custody Order?

This is one of the most commonly seen issues around. And apparently this is the case throughout the entire state of California.  Further, it is extremely common now to find parents and family with various afflictions, including mental, emotional, behavioral, etc.  In turn, this obviously will affect the kids, extended family, and more.

One of the worst things that attorney sees, and is always surprised each time--is finding that less than half of clients seen-- actually get on some type of program for their mental or emotional issues.

If that was done, it would lessen the effects that travel down to the kids. But when the parent's try and take care of their own issues, rather than pretending they do not exist,  it becomes much easier to work with the kids, whether they have any issues or not.

Another very very common scenario is for each parent to blame the other parent. Of course some of that is likely true, but not every set of parents can actually do "co-parenting" ....and attorney believes that parents with issues mentioned above, may not work well in "co-parenting" set ups.




Attorney believes that "co-parenting" assumes that there are not major issues with the parents. But when there are some huge issues with a parent (or both)-- it is highly unlikely that co-parenting will work smoothly simply because the very nature of cooperation is assumed, and quite obviously parents themselves who have issues are not likely to stick with cooperation.

 If such parents can prove they can do it, that is one thing, but inevitably usually what happens is, one parent starts taking advantage of the other parent. In other words, there are many parents that believe they should stay together for the sake of the kids.

 What they don't realize is the harm they do to the kids when they do not parent the kids successfully?

"Fixing" your custody order might require a re-work of whatever you have in order to FIX it!

Tuesday, October 30, 2018

Attorney C. Chan = The Fixer of Bad Cases!

Attorney has seen many, many cases that never had to get to the point that they are at--IF at least one client had changed some key methods. But it is to be expected that clients can't always fix their cases since they are wound up in the turmoil... right?

From attorney's outside view....fixing most cases is possible. It may not be fast. But it is likely doable over time. Also attorney finds that clients must sometimes modify their own actions and that of the kids as well. Apparently attorney herein is not alone when realizing that the FIXER name is known even by other attorneys, for example.... attorney just saw this online, and it is exactly the view of attorney herein........ at https://njfamilylaw.foxrothschild.com/2018/10/articles/general-new-jersey-family-law-news-updates/when-you-cant-find-a-better-man-five-tips-to-consider-when-preparing-for-divorce/

  1. Find the right “Fixer”:  The divorce process can be beyond overwhelming for countless reasons.  When searching for a divorce attorney, consider not just looking for someone who is experienced in family law.  Also consider retaining an attorney who you feel comfortable talking to.  Who you can trust.  Who you can confide in and discuss certain aspects of your life and your marriage that you may not ordinarily feel comfortable speaking about with anyone else.  Who is responsive and reliable.  Who can ultimately advocate for you in the way that you believe best serves your interests and those of your children.  Who will listen to you and be mindful of what you are looking to achieve.

 ------------------------------------------

There is no point to keep doing the same mistakes over 
and over and expecting a different result?

Therefore if the thing that needs changing just happens to be under your authority, then that's likely where the change needs to be made.  Judges get tried of hearing the same old stuff every day in court.  Pretty soon they are on auto pilot and send everyone to mediation.  But mediation doesn't change people.  

BE VERY VERY AWARE: MEDIATION IS A PROCESS BUT IT IS NOT NECESSARILY A SOLUTION IN MANY CASES. THERE ARE MANY DIFFICULT SITUATIONS THAT WE HAVE SEEN, WHICH SIMPLY CANNOT BE "MEDIATED" AWAY FOR A RESULT.

Judges should not be allowing defendants who are under Criminal Protective Orders to have custody of kids that they have abused....but that is what we are seeing?




Change cannot take place unless someone or something makes a change--it likely won't happen by itself. So in mediation, judges just read what the mediators have written down. When and if the clients don't follow what they are to do, we see repeated issues over and over and over.  Clearly the parties MUST implement some change somewhere.

So the biggest problems are usually that all of the parties:
1.  Don't want to change their behavior
2.  Don't want to jump through hoops
3.  Don't want to have to do anything that is inconvenient
4.  Don't want anyone telling them what to do.

It's pretty simple that if your other spouse or live in, is a difficult personality, takes meds for behavioral issues, or has been diagnosed with A B or C,  your case will take more work. Not every child should be raised primarily with a parent that has NO parenting skills at all.

But sometimes we have to make the best out of a bad situation. And sometimes that may mean we will be required to jump through a few hoops also. For most parents, this is doable. For some parents that have mental issues/or blocks, they will refuse to do whatever it is.  In those cases, the parent that won't comply will inevitably suffer in the long run. Because it isn't about you so much, as whether your behavior will or will not affect the kid or kids to a large degree.

As an example, a couple with kids  where one parent has serious issues and is not suitable as the
primary parent, will continue to battle the other parent for years in trying to keep his/her domain over the kids.

Obviously this person should not be primary custodial nor should he/she even have the kids overnight--that's when we start to have some really large damage with the kids... and to prevent that from being a vicious circle, someone has to step in.

Minor's counsel is NOT always the answer, and attorney has seen that minor's counsel is often given cases that will not change. Reason being, not all parents should be using "co-parenting".  Attorney has seen some pretty bad cases and co-parenting simply doesn't work well in really bad cases.  If you have that situation, call attorney--she may be able to restructure your case.


Wednesday, October 24, 2018

Pet "Custody" Law New in 2019 in California!

We suppose the pet "custody" issue was just a matter of time in California, due in part to animal activists, HOWEVER, before everyone runs to gain "custody" of a pet, be forewarned that under normal laws, animals are still considered property.

Animal activists have, in the states,  long tried to give animals-- "human" status...a case in point being, the whale lawsuit at Sea World, and the current case where activists are suing to have a horse be able to sue the former owner for abuse. If the status of animals was changed to having the same rights as humans, all hell would break loose in the USA with activists running to court to sue for many animals incessantly and relentlessly. It would essentially cause the tort system to grind to a halt in short order.

Attorney herein can easily make this statement, as attorney has worked in animal law field for many years, and is extremely aware of what animal activists do. In fact, attorney was actually attacked by an animal activist in the federal courthouse (Eastern District) while working on a national case involving illegal seizure of horses. The horses were NOT abused. The activist that was trying to attack attorney was guilty of many things, but was promoting misrepresentation to the media. The case was moved to Los Angeles and in the end the activist failed to show for trial, lost the non profit, the free 600 acre ranch lease, and everything else. Activist was also sued by bank attorney who used the non profit to take the animals improperly.


So for the 2019 "custody" law, which attorney briefly reviewed--it appears if an issue with a pet is disputed as to which person should be taking the pet, then we have the question-- who is to be awarded the animal? Generally, a judge is not likely equipped to decide WHO should keep care of an animal in general. HOWEVER-- under the NEW PET LAW FOR 2019, California judges will have authority to consider subjective factors and help find a resolution to the quandary.

Example of science related article on humans/pets https://www.sciencedirect.com/science/article/pii/S0148296307002214

Supposedly, attorney imagines that inquiry might revolve around acquisition of the animal-- was it a gift to one person? Is it actually the pet of one of the kids? Is it licensed to only one person?  Is the animal only bonded to one person? Does one person take care of the vet visits, training, feeding, etc? Has there been any alleged domestic violence in the home?  Has the animal been injured or abused by a party? Is the animal being used as a tool to further another objective? Was the animal subjected to harm previously? Does the animal have dangerous propensities?  Bitten people? Allowed to run at large?  [*pets are specifically named in the California DV TRO forms, and any actual abuse to animals by one party should be noted on the form where applicable]

Attorney has seen/read  many animal cases, and researched a large amount of animal cases-- there is unlikely an attorney in the local county that has done more animal law cases or worked with experts on such cases.  Additionally, attorney prevailed on a post seizure hearing in Hollywood CA, which is not only rare, but virtually unheard of....

Having a background in animal law gives attorney a decided positive background for nearly any animal case. 

Attorney has worked closely with the expert (who helped the amicus parties)  in the First Amendment case of U.S. v Stevens, 559 U.S.460 (2010) --   a national landmark Supreme Court case involving a dog owner being sued under a statute which punished harm to animals when they are used in so called crush videos-- which was completely inapplicable to the issue at hand [which was the sale of  videos covering the history of dog fighting]... ( the statute used re the videos, was related to a fetish of a sexual nature involving animals being crushed by a female wearing high heel shoes; that law was completely unrelated to the case they prosecuted.....that statute was a product of the Humane Society of the United States, which has been found guilty of racketeering in the case involving the Barnum and Bailey circus which activist kept going for 14 long years....) 

--- By the way, do not donate your money to the Humane Society of the United States---they are basically fleecing the public and spend more on telemarketers than helping animals; case in point, during Hurricane Katrina, they "raised" about $30million from their TV ads for the animals--and could only account for about $7million when audited. Need I say more???

Holding: A federal statute that criminalizes depictions of animal cruelty in videotapes and other commercial media is unconstitutional. Judgment: Affirmed, 8-1, ...
Apr 20, 2010 - The government may not ban depictions of animal cruelty for commercial gain because this law is overly broad under the First Amendment in ...
Apr 20, 2010 - Syllabus. NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the ...
Stevens was prosecuted for selling videos depicting dog fights. Stevens claimed that § 48 violates his First Amendment right to free speech and is therefore ...

Apr 20, 2010 - UNITED STATES vSTEVENS. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR. THE THIRD CIRCUIT. No. 08–769.

Attorney's Tiger Team Approach, Yes Even in Family Law



A tiger team is a known professional method of breaking down a problem into smaller segments to isolate all possible issues; for example, in software engineering, it is common to use tiger teams. In scientific issues and spacecraft (where it kind of originated) it is par for the course.


When difficult family law issues arise, it is basically the same method except science kind of goes to the mental issues, and the remaining problems can be a mix.  We don't expect clients to handle the legal issues obviously. Past mistakes or errors in cases are more common in cases where the parties have never solved anything, but continue to battle year after year. After viewing many cases where nothing has seemingly changed over the years for the better, sometimes clients will refuse to do things differently for various reasons.


However, it has been attorney's experience that in breaking down the issues, most attorneys focus only on the legal problems. While that certainly is the course of action for the attorney, many other elements of the case will come into play. Having a wide background of experience in dealing with many types of individuals, attorney has found that certain types of people will focus on certain issues only, while ignoring other problems completely. It has also been noted that ignoring some issues can cut off solutions that may actually exist.  This is somewhat difficult to diagnose until one has enough experience in the field, but like a car mechanic, we basically know what to look for.

A root cause of failure is often due to the parties making decisions
 based upon improper assumptions or beliefs.

Particularly because attorney has much experience as defense counsel, this brings an additional element into the case which is often helpful. Many family law attorneys have never been practicing defense attorneys.  There is a difference. And there is a difference in setting up a defense as well.

Clients that have been wrongfully accused of anything will benefit in hiring an attorney who has done defense work, criminal defense and similar situations. It would be similar to hiring an insurance defense attorney, many of whom can be difficult to work with.. LOL and that was the point here.

**http://www.pavlak.net/MTT.pdf 
       by A Pavlak - ‎2004 - ‎Related articles
Dec 21, 2004 - TEAM PROBLEM-SOLVING FOR THE 21 CENTURY. ST ... to earth. NASA's sensational success made Tiger Teams part of our lexicon and a popular ....                                                                                                      modern tiger teams- Dr. Alex Pavlak

Thursday, October 11, 2018

Pitbull Litigator-- If the Hat Fits?

https://buttecountyfamilylawlawyer.blogspot.com/2016/11/they-dont-call-attorney-pitbull.html

Attorney Chan is well qualified to speak on the issues involving the dogs commonly known as "pitbulls" "APBTs" (American Pitbull Terriers) or just "pitbulls" (generic classification for which there is not necessarily known genetic markers or proof that such dog is actually descended from APBT actual line, and there is no genetic link necessarily...dog might just look like one?)

Why is that?     


The "why is that" ---  is because attorney Chan has long studied the issues, starting in 2003, and litigated in state and federal courts over issues involving the dogs and the dog breed laws which often "ban" such dogs. Most of this litigation involves federal law, rational basis, and criminal cases, civil cases and local laws. In addition, attorney has done dog rescue for over seven years and is readily familiar with animal shelters and related penal code (for example PC597, PC597.1,etc) which focuses on alleged "abuse"and has handled criminal cases involving animal laws as well.

Attorney is likely one of the few attorneys outside of  San Francisco, Los Angeles and San Diego, that has first hand knowledge and data on canine issues involving certain breeds, restrictions in the sales of dogs, and the abuses by certain non profits claiming to be "rescues." Non profits do not pay taxes. Yet some BUY animals including dogs, from auctions and then resell them, claiming they are rescued? For example, a claimed rescue group paid over $7k (yes, seven thousand) for one dog that was pregnant, then they SOLD 3 of the pups for over $4,000 EACH. Importing alleged "rescue"dogs has resulted in new strains of virulent disease not seen in the USA prior.





Let's get real people---if you are selling dogs, fine. But don't claim that doing it under a 501(c)(3) makes you a "rescue." It in fact, does the opposite.

And an update on one of the biggest dog related cases in the state, is continuing in Sacto Federal Court where the owners are suing Placer County/others,  because the non profit "humane group" acting as the animal control apparently, has been accused of illegal action. Attorney herein already knows what happened because attorney worked on the case for a year previously, before any lawsuit was filed.

Attorney herein believes the case is a civil rights case, and when coupled with PC597.1, proves that the PC597.1 code was applied improperly,*** resulting in great harm.

 [In constitutional law as to statues, one either uses the strict wording, or "as applied" to the case; in this case, they used the strict wording to create knowing harm and blatantly ignored the "as applied" which was very very obvious.] Placer County is no stranger to these type of cases. Years ago in a horse case, the owner found her horse was given away to a government employee without due process. If we get rid of due process, then this obviously means our government is way way off base.

***
  • California Court of Appeals, 4th District: "Our role in construing a statute is to ascertain the intent of the Legislature so as to effectuate the purpose of the law. (People v. Jefferson (1999) 21 Cal.4th 86, 94 [86 Cal.Rptr.2d 893, 980 P.2d 441].) Because the statutory language is generally the most reliable indicator of that intent, we look first at the words themselves, giving them their usual and ordinary meaning. (People v. Lawrence (2000) 24 Cal.4th 219, 230 [99 Cal.Rptr.2d 570, 6 P.3d 228].) 
  • We do not, however, consider the statutory language in isolation, but rather examine the entire substance of the statute in order to determine the scope and purpose of the provision, construing its words in context and harmonizing its various parts. (People v. Acosta (2002) 29 Cal.4th 105, 112 [124 Cal.Rptr.2d 435, 52 P.3d 624].)" Alford v. Superior Court(People) (2003) 29 Cal.4th 1033, 1040

Using DCSS to Do Your Support

There can be an upside to using DCSS for your support, in that it usually doesn't cost you anything to use DCSS instead of arguing in court (family law)...on the other hand, the DCSS attorney will be representing one parent's right to collect support, but is not actually there to fight for the parent, but rather to collect or help collect money for the parent that is supposedly entitled to the support.

In cases where there are various factors that attorneys know the DCSS is not that interested in helping with, it may be better to stay in family court at the beginning, if your attorney knows that DCSS will just seemingly ignore some of your assertions....

But when it comes to collecting back support and arrears, attorney does recommend that DCSS has more ability to go after the spouse or parent that has never paid.  Plus DCSS is linked to all the other support agencies in the USA? If you have a personal attorney already and want DCSS to do the collection part, your attorney will have to execute a waiver for you. In many cases, it's definitely worth doing and will take some of the work off of the family court.







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Jan 9, 2017 - One of the most often seen issues in Family Law, are the law and motion hearings on reducing support, increasing support or elimination of ...


Monday, October 8, 2018

Do You Feel Like You Have Failed?

Image result for roseville divorce attorney c chanImage result for roseville divorce attorney c chanImage result for roseville divorce attorney c chan

If so, your are not alone. Nearly all marriages that end create depressing feelings/thoughts.

Some litigants will be happy because they finally got enough nerve to split up.  Others may sometimes kind of wallow in sorrow because they are not sure what to do.  Still others may have to resort to really getting mad to get even, or try to fix something that they didn't fix before?

Divorce celebrations, party cakes, and partying in general tend to be more geared toward women.
But often men will suffer silently, and not even try to pretend they are happy.

You may not be in any of these categories. But if you need an attorney that does understand what happens to people in divorces, then call attorney today. Known for acute sense of justice coupled with excellent knowledge of people, and more affordable availability. Many, many past wins in all types of cases. Call today-- there's no charge to inquire!



















The Law Office of Melissa A. Atteberry provides mediated divorces and collaborative legal consultations in Chico, CA.