Articles 15 September 2014
Having criminally prosecuted individuals failing to pay child support, I have extensive experience in this specialized area of family law. As many individuals who are paying child support are well aware, the laws in this area are highly regulated and public policy supports active collection of the money for the care of a minor child. The reach of the government is very broad. For example, they can garnish your wages, intercept tax refunds, lottery winnings and failure to pay can mean negative reports on your credit and non-renewal of your passport. Many assume that back due child support payments (“arrears”) are dischargeable in bankruptcy court. This is not true. This debt is due until paid in full or a waiver (for non-assigned arrears only).
The laws support the strong policy that a parent’s first and principal obligation is to support his/her minor children. Each parent has equal responsibility to support the child. The court has the authority to order either or both parents to pay any amount necessary for the support and education of their child.
The state has a mandatory uniform child support guideline to determine the amount of child support. The court cannot deviate from this guideline amount unless it finds ordering a different amount than the guideline amount is in the child’s best interest or the application of the guideline is unjust for reasons enumerated in the Family Code. The reasons, however, are very limited, giving the court very little discretion.
Articles 07 September 2014
Not every defendant who faces criminal charges will proceed to trial or a plea. Many cases end up being dismissed by either the prosecutor or the court. The critical task for an effective criminal defense attorney is to determine whether there are grounds for a case to be dismissed before a plea or trial.
Some grounds for dismissal include: lack of probable cause to arrest, an illegal stop or search, lack of evidence to prove the defendant committed the crime, unavailable witness who is necessary to prove the defendant committed the crime or loss of evidence necessary to prove the defendant committed the crime.
Probable cause of arrest: In order to arrest a person, the police must have probable cause to believe the person committed a crime. The officer must have a reasonable belief based on objective factual circumstances that the person robbed the store. For example, after the liquor store robbery, a witness describes the person to the police wearing a red jacket with a dragon emblem. If the officer sees a person matching this description running away a block from the store, he likely has probable cause to arrest.
Articles 02 September 2014
“Arrears” means past due support. Arrears are created when a child support order is made and there have periods of time in which payments were paid partially or not at all. If you owe arrears, you may be able to reduce the arrears (and interests) significantly. Arrears owed to the local child support agency for welfare may only be negotiated downward if certain requirements are met.
I recently had a client whose passport was not renewed due to a high balance owed to the mother for back due child support and the government. If you owe money directly to the custodial parent, (i.e. non-welfare monies), the arrears cannot be reduced by the local child support agency unless the custodial parent participates and consents to the settlement.
The government is provided under the law, broad enforcement powers to enforce and collect court ordered child support. Due to this, my client could not go abroad for work and needed to zero out his arrears before the Department of Homeland Security would renew his passport. I worked with all the parties involved: the custodial parent, the child support agency, its attorney and my client to reach a payment agreed by both the mother and the government.
Articles 24 August 2014
Some custody basics are joint legal custody means that both parents shall share the right and the responsibility to make the decisions relating to the health, education, and welfare of a child. Joint physical custody means that each of the parents shall have significant periods of physical custody and in a manner to assure that a child has frequent and continuing contact with both parents.
Joint custody is presumed to be in the best interests of the minor child. In making an order of joint legal custody, the court shall specify the circumstances under which the consent of both parents is required and the consequences of the failure to obtain mutual consent. In all other circumstances, either parent acting alone may exercise legal control of the child.
Sole legal custody means that one parent shall have the right and the responsibility to make the decisions relating to the health, education, and welfare of a child. Sole physical custody means that a child shall reside with and be under the supervision of one parent, subject to the power of the court to order visitation.
Articles 11 August 2014
In making a child custody order between parents, the court must also grant the other (noncustodial parent) “reasonable visitation rights” unless it is shown that visitation would be “detrimental to the best interest of the child” [CA. Family Code (FC) § 3100(a)]
Because of the importance placed on “frequent and continuing contact” with both parents, an order withholding a parent’s visitation privileges can only be issued upon a finding that any form of visitation would be detrimental to the child.
The court has broad discretion in defining a parent’s “reasonable visitation” rights and establishing a visitation schedule. Subject to a few statutory limitations, the basic tenet is the child’s best interest.
In all cases, the clear policy is to assure the child’s health, safety and welfare and to the extent possible for “frequent and continuing contact with both parents.” The continuing contact can be restrained by looking at factors cited in CA. FC 3011. Aside from this, the court considers the practical facts of the case, child’s age, maturity, special needs, the parent’s proximity to the each other and if appropriate, the child’s preference.