Ready or Not… It’s the holidays! As the festive season moves into high gear, many people start to feel as though they are operating in low gear trying to get everything done. Yours has not been a typical year.  Whether the transitions you’re facing were by choice or not, there still are all the new adjustments to be made, and you may be experiencing a sense of loss as well. All of this accompanied by your regular (or even increased) workload could be creating a state of surmounting stress. To compound things a bit more, stress requires a great deal of psychological and physical energy.  Therefore, very possibly you are experiencing a present lag in motivation to deal with the holiday’s altogether.  I would like to make the suggestion to you to “keep it simple” this year.  Here are some possible tips to help see you through.

California legislators have recently made it clear that the court has the power to order parents to undergo drug and alcohol testing. Newly enacted Family Code, Section 3041.5, authorizes family law courts to order drug and alcohol testing for any parent involved in a custody dispute if it is found, by a preponderance of evidence, that the parent uses illegal drugs or abuses alcohol habitually or continually (or frequently, in the case of controlled substances). Either parent (or both parents) can be ordered to pay for the drug testing. A positive result, by itself, cannot be grounds for a custody ruling against the party. The tested party will be entitled to a hearing to contest the results.

Written By Donald P. Schweitzer

Have you ever wondered if someone living in your neighborhood could be a potential threat to your safety or the safety of a family member? To help California citizens locate this very information, Megan's Law was passed on August 24, 2004 and signed by the Governor on September 24, 2004. It required that the California Department of Justice create a website, by July 1, 2005, providing the public with internet access to detailed information on registered sex offenders. The site includes the names, addresses, and pictures of those who have been convicted of specified crimes, as well as their descriptions, criminal history (except unrelated crimes), and other relevant information. It is not required that the victim or the offender's employer be identified. Megan's Law is named after a young girl from New Jersey, Megan Kanka, who, at the age of seven, was raped and killed by a known child molester who had moved across the street from the family without their knowledge. In light of the death of their daughter, her family sought to have local communities warned about sex offenders in the area. All states now have some form of Megan's Law. The law is not intended to punish the offender, but rather to protect members of our local communities and their children. To view the website go to: http://www.meganslaw.ca.gov/homepage.htm

Written By Maria Schweitzer

A fundamental element of many children's rearing is their relationship with their grandparents. This relationship is often encouraged by parents who seek to develop that vital connection. It is not highly uncommon that a situation arises in which the bond of grandparent and grandchild is not desired by a custodial parent. In such cases grandparents may petition for a court order granting child custody and visitation.

Grandparents' rights to court-ordered visitation with their grandchildren are generally outlined in the California Family Code. More specific principles regarding grandparents' rights to child custody and visitation are discussed in California and United States Supreme Court decisions: Butler v. Harris (2004) 34 Cal.4th 210, 17 Cal.Rptr.3d 842 and Troxel v. Granville (2000) 530 U.S. 57, 120 S.Ct. 2054.

In an effort to make an appropriate and fair determination, the court may grant reasonable visitation to grandparents if it finds that there is a preexisting relationship between the grandparent and the grandchild that has engendered a bond such that visitation is in the best interest of the child. The court will balance the best interests of the child in having visitation with the grandparents against the right of the parents to exercise their fundamental parental authority concerning care, custody, and control of the child. Butler, supra, (2004) 34 Cal.4th 210, 17 Cal.Rptr.3d 842. Ordinarily, when a parent adequately cares for a child, and therefore is considered to be a fit parent, the court presumes that the parent acts in the best interest of the child, which shifts the burden onto the grandparents to prove otherwise. In the absence of evidence showing a parent to be unfit, or acting contrary to child's best interest, "[T]here will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of his or her child." Troxel, supra, (2000) 530 U.S. 57 at pp. 68-69, 120 S.Ct. 2054. The judge will not simply substitute the parent's judgment with a judgment of his own, since a fit parent is presumed to properly care for a child and continually act in the child's best interest.

Although the issue of grandparents' child custody and visitation can be exceptionally complicated, in sum, if a child's best interests are genuinely and definitively at stake, the court will likely grant grandparents' request for child custody and visitation.

Written By Suren Stepanyan

+http://www.ideapractices.org/In 1990, Congress reauthorized the Education for All Handicapped Children Act of 1975 as the "Individuals with Disabilities Education Act" or commonly referred to as IDEA. Under IDEA, states accept federal oversight of the delivery of educational services to children with disabilities as a condition of receiving federal funding. Prior to the Act, parents were forced to seek assistance for their children outside the public school arena, oftentimes at great expense and inconvenience to the families.
There has been a steady increase in the number of children who have been classified as disabled. This growth trend highlights the importance of the need to continue to improve services to meet the needs of these children and to provide equal access to educational opportunities. IDEA requires states to provide a free appropriate public education (FAPE) in the least restrictive environment (LRE). IDEA recognizes that, to the extent possible, children with disabilities are entitled to the same educational experience as their non-disabled peers. IDEA further recognizes that the expenses associated with providing for the special needs of children with disabilities are a public responsibility. Therefore, the centerpiece of the law is the FAPE concept. Generally, FAPE means that children with disabilities are entitled to a publicly financed education that is appropriate to their age and abilities.
When IDEA was originally enacted in 1975, Congress recognized that many children with disabilities were unnecessarily separated from their peers and educated in alternative environments. The general goal is to allow children with disabilities to be educated with their peers in the regular classroom to the extent possible. IDEA recognizes that there is an array of placements that meet the general requirements of providing FAPE in the least restrictive environment. LRE may change from child to child, school to school, and district to district. In developing the IEP (Individual Education Plan), the key document developed by the parent and his or her child's teachers and related services personnel that lays out how the child receives a free appropriate public education in LRE, parents and the local educational agency are empowered to reach appropriate decisions about what constitutes LRE for the individual child, including placements that may be more or less restrictive in order to maximize the child's benefit from special education and related services.
In 1997, amendments were made to IDEA that promote the inclusion of children with disabilities in general early childhood education settings. When students with disabilities are educated in neighborhood schools, in general education classrooms, according to their appropriate age and grade level, this is known as inclusion, also sometimes referred to as mainstreaming. A common theme throughout the various interpretations of "inclusion" is that rather than requiring children to fit into a preexisting system (or school, or classroom), the environment should adjust to meet the needs of the children. The classroom teacher (or teachers, if a team teaching approach is utilized) utilizes a variety of instructional methods, such as cooperative learning and peer instructional methods so that all the students are actively engaged in classroom activities. The teacher is also provided support by special education professionals and collaborates with them to modify curriculum and make any other accommodations required so that the child with disabilities can benefit socially and/or educationally, according to their individualized goals.
Even though IDEA does not mandate regular class placement for every disabled student, IDEA assumes that the first placement option considered for each student by the student's placement team, which must include the parent, is the school the child would attend if not disabled, with appropriate supplementary aids and services to facilitate such placement. Thus, before a disabled child can be placed outside of the regular educational environment, the full range of supplementary aids and services that, if provided, would facilitate the student's placement in the regular classroom setting, must be considered. In recent years, the term "inclusion" has become quite popular and has replaced the term mainstreaming. The education of students with disabilities in schools that continue to develop inclusive practices is becoming a world-movement.
The inclusion movement has created quite a controversy, confusion, and misinformation among special educators. One of the misconceptions is that the new law, IDEA 1997, mandates inclusion. Increasingly professionals and non-professionals alike state, "Inclusion is law." However, it is important to note that the term "inclusion" is not even mentioned in the Individuals with Disabilities Education Act. IDEA 1997 does mandate the inclusion of a regular education teacher on the IEP committee and it requires students with disabilities to participate in the general curriculum and in statewide assessment; however, the law also states that disabled children will have "access to the general curriculum to the maximum extent possible" and "whenever appropriate." restrictive environment.
Not every child can be included in a regular education classroom. IDEA states that general education is not appropriate if the nature or severity of the disability impacts the student's ability to benefit from the placement.
Where best to educate a disabled child has emerged as one of the perennial questions of education. To include or not to include should be answered based on the individual needs and abilities of the child. A hard-and-fast rule that all children will be mainstreamed irrespective of their needs and abilities and the best interests of the other students without doing an analysis runs counter to IDEA. Written by Brenna Stearns

The process of a divorce, which can last months and in many cases years, can be a painful and exhausting experience which can leave one drained, and stressed at the same time.

Whether it's dealing with the numerous court appearances, difficult negotiations, or arranging custody with an unreasonable ex, taking time to clear your mind and relieve tension will be important for you to endure and succeed through the process.

Here are 5 ideas to calm your mind and recharge your soul.

1. Get Physical - Get off the couch and get your body moving. Doing an activity you enjoy is the key to keeping consistency. Try hiking, roller-skating, or riding a bike. If you're daring, and physically fit, try a physical activity you enjoyed as a teenager! Make sure to clear any physical activity with your doctor if you haven't been active in a while.
2. Take up a new hobby like painting, writing, or dancing. Signing up for a class can help you get started. Many community colleges offer no-credit classes at reasonable rates for a variety interest. Our local college offers classes like fencing, belly-dancing, 2 day film school, and poetry writing.
3. Join a Social or Sports group. Meeting new people is good for the soul and is a way to create a fresh start. Sporting groups such as softball or volleyball leagues can provide both a social and physical outlet. Check the internet or your church for groups that meet in your area.
4. Volunteer. Helping other people in need can give you some perspective on your own situation and will help you create positive energy in a way that is useful to you and the people you assist. www.Volunteermatch.org can direct you to organizations in your area that need volunteers.
5. Practice Yoga. The practice of yoga has a both a physical and mental benefit. You'll spend so much time focusing on your balance, breathing, and holding your pose, your mind won't have the chance to wander. There are many types of yoga classes, so try out a few before you commit to any one type to decide which you prefer. Some are more heavily focused on the meditative aspect such as kundalini, while others focus more on the physical form, such as hatha (my personal favorite). Also, different instructors offer differing levels of difficulty. Regular practice is important to really reaping the benefits.

Whatever you choose, consistency is the key to success. Don't try to overdo it either, just pick one thing and go all out. With your mind occupied on a fun activity, you won't have time to obsess over the minutia of your divorce. Written by Maria Schweitzer

The image of the housewife waving a rolling pin, or frying pan over her head while chasing her husband is one usually depicted in cartoons. An image we typically find funny. The reality is that domestic violence against men happens. It happens more than we think, and there is just nothing funny about it. What's worse is that many men who fall victim to domestic abuse are frequently suspected of, and sometimes even arrested and charged with domestic abuse against their spouse when they act in self defense or in some cases when the man has done absolutely nothing.

Visualize this real-life scenario: a woman for whatever reason becomes angry at her husband or live-in, significant other and she confronts the man with a verbal assault. When the conversation heats up, and doesn't go exactly as she had planned, she slaps, or throws something at the man. She continues to try to physically assault the man, and in an effort to stop injury to himself and to her, he grabs her hand. A red mark develops on her wrist and even a bruise. She calls 911 to report an assault against her, but she conveniently leaves out the part where she started the fight by hitting him. The police respond and because most police department's policy require an arrest to be made, they arrest the man. After all, it was the woman who called 911. She is the one with the bruise. He must have assaulted her, right?

The police and prosecutors don't care if the man's professional, personal and financial well being is at risk. The police are there to make an arrest and the prosecutors are there to make sure someone gets charged and convicted? The tremendous amount of awareness of domestic violence against women calls for such action, but what about the cases where the man is the real victim.

The question is, why don't men report domestic violence more often? Mostly, because they find it embarrassing. Men typically think that they will not be believed and that they may even be ridiculed by other men. Also, physical injuries inflicted by women are typically not as great as injuries inflicted by men, and may not even be noticed by the man or the police until long after the incident occurs. Finally, it has taken women years of awareness to encourage women to report domestic violence. Very little has been done to encourage men to report abuse.

Victims of domestic violence need to be protected, whether they are women or men. Police and prosecutors need to understand that men can just as easily fall prey to domestic violence. Before just simply arresting and charging the man, the police need to do a thorough investigation the prosecutors need to consider both sides of the story and the corroborating evidence before jumping to a conclusion that may end up victimizing the real victim. Written by Maria Schweitzer

Criminal defense attorney Don Schweitzer provides legal commentary on the Michael Jackson molestation case involving the cross examination of the alleged victim and the corroboration of the boy's credibility. Part 3 of 3

Click HERE to watch the video.

Criminal defense attorney Don Schweitzer provides legal commentary on the Michael Jackson molestation case involving the cross examination of the alleged victim and the corroboration of the boy's credibility. Part 2 of 3

Click HERE to watch the video.

Criminal defense attorney Don Schweitzer provides legal commentary on the Michael Jackson molestation case involving the cross examination of the alleged victim and the corroboration of the boy's credibility. Part 1 of 3

Click HERE to watch the video.

While I would by no means consider myself an expert in this area, I have unfortunately had a lot of experience dealing with a dysfunctional ex. Here are a few things to consider when working out custody issues with a difficult person.

1. Utilize visitation monitors. Having a third party diffuses hostility. Transfers are set up at public locations, and bad behavior is not tolerated.
2. Pick and choose your battles. Not every issue is worth going to court. Sometimes conceding in one area may give way to the other party conceding to another issue at the same time or down the road.
3. Don't allow the difficult person to engage you in an argument. Many people simply enjoy being difficult to keep up the fight, which feeds their dysfunctionality. Don't fall prey to their game.
4. Let an attorney do the talking for you. Allowing a professional to communicate on your behalf is best. They can present your points to the other party in a rational, concise and clear manner.
5. Seek therapy. You're going to need it if the other person continues to be difficult at every turn. Written by Maria Schweitzer

The truth is most family law lawyers don't have a firm grasp on the tax consequences of divorce. One reason we went to law school instead of to medical school was because we didn't want to take the extra math classes. Instead, hoping to leverage our talents for writing, negotiating and public speaking we decided to enter into one of the most litigation intensive specialties within the law.

Still, these lawyers can provide effective representation for their clients. The reason is that most opposing attorneys are of the same mindset. This mindset is; "I am a family law attorney and if my client needs tax advice they should seek the advice of a tax professional." This is good advice, but seldom clients actually abide by it.

The tax consequences of a divorce can have a tremendous impact on the actual (as opposed to stated) value each side receives in a property division or support order. This leaves those lawyers with an understanding of tax law in a superior bargaining position. The following article will discuss a couple areas where family law and tax law intersect.

Support Orders

The bargaining chips here are the exemptions and filing status. Exemptions are a tax deduction so they are a benefit for the spouse receiving them. Two ground rules to keep in mind is that a custody split should never be 50/50, (because neither party will get the exemption) and the court can't order parties to take a particular filing status.

The advantages of taking certain tax positions can be analyzed by the DissoMaster software. Once the exact benefits to both sides are calculated, the negotiating begins. Generally, the tax deductions should be negotiated towards allocating them to the higher earning spouse. In that way both spouses collectively pay fewer taxes. Another result is that the higher wage earning spouse has a higher net income which will result in a larger order of support to the receiving spouse. All of this is, of course, is negotiable and can even be conditioned on certain events. For example, an agreement might have a provision that Wife sign the IRS form allocating the exemption to husband by January 15th each year, provided that she receive increased spousal support of a certain amount. These tax aspects can have a major impact on a client's future finances and should be a point of negotiation.

Property Division

This is an area where a basic understanding of tax law is crucial to obtaining a fair result for the client. Family law courts have two fundamental rules here:

1) The court does not take tax consequences into account when determining value
a. Example: If you are awarded the family residence and plan on selling it after the divorce, the court will not reduce the value it puts on the house just because you will have to pay taxes on the gain from the residence

2) Pursuant to IRC 1041, property transfers subject to a divorce are not taxed
a. Example: If you sell your interest in the family home to your spouse, you will not be taxed

California community property law states that each spouse shall get an equal share of the community property. This can be more complex than it seems. As an example, let's say that we are awarding stock to Wife with a fair market value of $200,000 and we are awarding husband cash from the community bank account equaling $200,000. While this might seem equal, it probably is not. The stocks are subject to taxes, either a loss or a gain. If Wife has to pay taxes on $100,000 of the stocks when she sells them, she has gotten the short end of the stick.

Calculating Loss or Gain

The loss or gain for tax purposes on any property is equal to the selling price minus the basis. Basis is the purchase price of the asset, plus improvements, plus fix up costs, minus depreciation and deferrals. Obviously it can get complicated trying to figure out all these factors, so attorneys need their clients to take an active role in providing this information.

The situation gets even more complex when dealing with pensions. Pensions have early withdrawal penalties and other serious tax implications for divisions.

Also, a loss or gain may be avoided entirely with some estate planning. For example; if the spouse was awarded the residence and lived in the residence until his or her death, then the basis for whomever he or she willed it to, would be the fair market value at the time of the transfer.

Solutions

How can you split everything equally when you are comparing apples and oranges? One way would be to take the King Solomon approach and divide everything in half, giving each side half an orange and half an apple. Sell the house and divide the proceeds. Each spouse takes half the stocks. If the pension or IRAs are unequal, roll some over from wife's IRA to husband's IRA or vice versa to make them of equal value.

However, the best course of action for clients is to hire an attorney that has a basic understanding of the tax implications of divorce. Clients can test prospective attorneys in this regard with a few preliminary questions during the initial consultation. An attorney with this basic understanding can save clients lots of headaches down the road. Written by Tony Fricano

The fact that domestic violence causes physical injuries, dysfunctional families, and broken relationships is well known. However, unless you have been paying close attention to the legal developments related to this topic, you are probably unaware that there has been a radical change in the way our legal system deals with domestic violence.

Ever since our society's attitude toward domestic violence began to change, numerous laws have been enacted every year that specifically address domestic violence within our state and our federal statutes. As a result, the consequences of committing or being accused of committing domestic violence are also growing. The following list illustrates some of the severe consequences associated with domestic violence cases:

1) Enhanced jail or prison time, fines, the completion of a fifty-two week batterer's treatment class, and the issuance of a criminal protective order.

Our criminal justice system now deals with domestic violence as a unique offense. Domestic violence is no longer treated as a simple battery. Consequently, our system imposes enhanced and specialized sentences for these offenses.

2) The loss of employment opportunities.

One of the most serious consequences of domestic violence is the stigma that is attached to these crimes. With a conviction of domestic violence on one's record, it can be very difficult to obtain employment in certain types of occupations, especially jobs within government.

3) The denial or revocation of a state license to engage in a particular type of business.

An allegation of having committed domestic violence can also make it difficult for a person to obtain or maintain a state issued license, such as a license to sell real estate or a license to work in or operate a care facility.

4) The issuance of a criminal and/or family law restraining order.

Restraining orders are issued by criminal and family courts routinely where there are allegations of domestic violence. An obvious consequence to these orders is the loss of liberty, to the extent the order forbids the restrained party from going to certain locations.

5) The loss of the right to possess firearms.

When a restraining order is issued, it is automatic that the offender shall be restrained from owning or possessing a firearm. This restriction is particularly burdensome to people with occupations that require the possession of handguns.

6) The loss of immigration status.

A conviction for domestic violence can result in the loss of a person's immigration status. This loss of immigration status will occur, even if a person convinces the court to allow him or her to withdraw a plea of guilty upon successful completion of an anger management program.

7) An increase in the amount of spousal support paid.

The occurrence of domestic violence in a relationship is one of many factors the court must consider when ordering spousal support. Consequently, a perpetrator of domestic violence is more likely to be ordered to pay additional spousal support.

8) The loss of the right to collect spousal support.

In California, a person who is found to have committed domestic violence may lose his or her opportunity to collect spousal support.

9) The loss of child custody or visitation rights.

A major factor the court must consider in determining custody and visitation rights is whether or not there has been domestic violence within the relationship. Courts are particularly sensitive to this issue when considering the best interests of the minor children.

10) An automatic extension to a foreign spouse and his or her children to remain within the country and an increased obligation to support them.

In cases where foreign spouses make allegations of domestic violence against their spouses who are sponsoring them, the foreign spouse will be granted an automatic extension to his or her right to remain within our country. When this happens, the sponsored spouse's obligation to support the foreign spouse and his or her children is also extended.

11) A civil lawsuit by the victim spouse.

Victims of domestic violence can file civil suit against their abusers. These lawsuits can result in awards of large compensatory and punitive damages.

12) An unequal division of property.

California law authorizes family law courts to award a spouse the other spouse's interest in community property as payment for any damages awarded to the victim spouse pursuant to a civil lawsuit judgment.

13) A crime of moral turpitude.

Domestic violence is considered a crime of moral turpitude. Consequently, when a person has a conviction for domestic violence on his or her record, his or her credibility can be called into question when testifying.

As one can see, the price paid for committing domestic violence, or in some cases, merely being accused of it, can be quite severe. How these consequences can affect personal relationships has yet to be seen. Written by Donald P. Schweitzer

With all the celebrity divorces in the news lately and all dirty details of their private lives being dragged out on their front lawns for everyone to see, it leaves one wondering, is anyone entitled to any privacy when it comes to a divorce? Many people come to our office knowing that their divorce will be less than amicable. They know their soon-to-be-ex will most likely be dishing out the dirt (whether true or not) of their relationship and they worry that private information will be made public through court documents. They want to know if ALL of the divorce documents will be made public, and if there is any way they can get divorce records sealed.

In California, all divorce, and family law records and proceedings are considered public information. However, there are a number of provisions within the California Family Code that authorize a court to close proceedings or seal certain documents. Below are a listing and summary of applicable sections.

Section 1818 - Privacy of hearings; conferences; confidential nature of communications; closed files; inspection of papers This section in general allows all hearings, conferences and court documents to be sealed and they may only opened to inspection by written authority from a family court judge
Section 2024.6 - Authorizing a trial court to seal pleadings that contain financial information; This section deals with sealing documents which contain information regarding the parties' assets and liabilities including the location and identifying information about the assets and liabilities
Section 3025.5- Psychological evaluations of children; confidentiality; exceptions This section allows the court to seal documents relating to psychological evaluations of children, and recommendations regarding custody or visitation.
Section 3041.5- Controlled substances or alcohol abuse testing of parent seeking custody or visitation; grounds for testing; confidentiality of results; penalties for unauthorized disclosure This section provides for confidentiality of results of drug and/or alcohol testing of a parent seeking custody or visitation
Section 3177 - Confidentiality of proceedings This section relates to confidentiality of mediation proceedings
Section 3552 - State and federal income tax returns; submission to court; examination and discovery This section allows the court to seal tax returns if they are retained by the court due to their relevancy to the case.
Section 7613- Natural father of child conceived by artificial insemination; conditions This section allows the court to provide confidentiality to a man who donates his semen for use in artificial insemination of a woman who is not his wife.
Sections 7643 - Hearing or trial in closed court; papers and records; inspection This section allows the court to conduct a proceeding without the admittance of any person other than those necessary to the action or proceeding.
Section 7884- Admission to proceedings This section allows the court to deny the public access to a hearing in which termination of parental rights are being considered.
Section 9200- Inspection of documents; authorization; fee; deletion of identification of birth parents; certificate of adoption This section allows the court to provide confidentiality to the birth parents in the case of an adoption.

It is important to understand that having records sealed is not necessarily automatic, as there is a competing public right to have access to court records and proceedings. Nevertheless, it never hurts to ask! Written by Maria and Don Schweitzer