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It is widely accepted that two primary catalysts leading to divorce between married couples are a lack of communication and financial duress. Even after seeking and applying proper counseling and therapy, divorce may be the only logical solution for couples undergoing such stressful times. It is especially crucial that ensuring proper communication and emphasizing diligent financial awareness are so critical during the divorce process. For it is very easy for the house and home -which you both fought so hard for- to crumble like a house of cards if the proceedings are not handled properly. When a couple first purchases a home together there is no doubt that love, hope and dreams are emblazoned into the very essence of the walls within. If it was a couples’ first home then it was probably a “Starter Home” and growing equity in the property over time was of utmost concern. If the divorcing couple had already obtained their “Dream Home” then children, family events and the plans for retirement had likely already been drafted and secured. Either way the home belonging to the couple has great value and the future of it must be steered wisely. Anger, guilt and sorrow often prompt people to make quick and reckless judgments. Many times divorcing couples decide to sell their home and split the equity within it, rather than hold onto it and bear the painful memories of broken dreams. More times than not though, these same people regret this decision a year or two down the road, upon realization that all of their hard earned equity was lost through the cost of the sale or (even worse) that any future potential equity has been eliminated. When children are added to the equation, it is even more important to act rationally, so as to assure that a proper legacy or estate is drawn up to pass property onto heirs. The individual finances of the divorcing couple should be evaluated to ascertain if either party can financially bear the cost of home ownership on their own. If it is possible, then an overall future outlook of the projected appreciation in the home, neighborhood growth and family needs (e.g. school, church, medical, etc.); should be estimated to determine if the home is indeed a good investment. If all things are considered and points towards one party keeping the home, then a refinance to liquidate equity and buy out the other party’s share would indeed be prudent. If not, then a sale of the home may be the only viable option. The need for divorcing couples to thoroughly and properly evaluate their individual finances, and weigh the true value of home ownership cannot be stressed enough. By doing this, both parties can be assured that all decisions have been based upon logic, reason and financial clarity rather than stemming from emotional attachments. Failing to do so may unfortunately result in years of even more regret and sorrow than is truly necessary, due to the loss of hard earned investment equity and future plans of leaving a legacy for your children. After all, nothing is worse than realizing that you may have caused yourself even more financial duress due to a lack of communication when those may have been the very reasons for the divorce in the first place. Written by Scott Yonehiro, CMPS
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There is nothing more important to parents than the well being of their children. The thought of having one’s children taken from them is emotionally crippling. In realization of the importance of the parent-child relationship, our legal system requires a hearing before allowing the custodial parent to change residences in a way that will significantly decrease the amount of time the non-custodial parent has with the child. This hearing is commonly known as a “Request to Move-Away.” At this hearing the non-custodial parent is afforded their due process right to challenge the move-away.
However, what if the non-custodial parent was not allowed any hearing and the other parent took the child to another state without providing any notice? This would be kidnapping, right? It depends. There is a current wrinkle within the Uniform Child Custody Jurisdiction Enforcement Act (“UCCJEA”) that allows this action in some instances.
The Situation
First, let me set the scene. An unmarried couple resides in California with their 3 month-old newborn child. Mother who is the primary breadwinner gets a job in Chicago and all three decide to move to the Windy City.
After five months in Chicago, Dad decides it is too cold and wants to move back to California. Mother has already made a commitment to her employer in Chicago and wants to stay. She wants her child to stay with her in Chicago. The couple argues and the next day Dad takes the child to California without telling Mother.
When Dad reaches California he files a Paternity action and also files a Domestic Violence action because he felt threatened during his argument with Mother.
When Mother learns that Dad has taken their child without informing her, she calls the police, files a Paternity action in Chicago and gets a Court Order that Dad return to Chicago with the child.
The Legal Processes
At this point, there are conflicting Court Orders. The Courts have to decide which Court has jurisdiction and which Order will stand. The law governing jurisdiction over this issue is UCCJEA. Under UCCJEA, the home state of the child has jurisdiction. The home state of the child is the state in which the child has resided for the past six months continuously.
However, in this hypo the child has not resided in either state for six months. In this situation the Courts must contact each other to determine which Court has jurisdiction. The Courts make this decision between themselves without counsel allowed to listen in or offer argument. Sometimes the Court will consider moving papers that argue as to which state is the appropriate forum. For the most part though, these decisions are made without a hearing and with each Court having very little knowledge of the facts. If there is a hearing on this issue it is usually futile as it occurs after the Courts have contacted each other and reached a consensus. The Problem
This initial determination of which state has jurisdiction is a tremendously important issue within the case. If California claims jurisdiction, the child shall remain in California with Dad until the Court’s final determination, which could take longer than a year. Mother will be forced to travel to California to litigate the case and her time with her child will be tremendously reduced. A parent can go from seeing their child every day to seeing their child once every few months.
The impact lasts longer than a few months however. Once a Court declares jurisdiction, the parent from the other state is at a great disadvantage in terms of gaining primary custody in the future.
In the hypo above, I also mentioned that Dad alleged domestic violence. An allegation of domestic violence is one of the loopholes that parents that run away with their child use to achieve jurisdiction in a different state. Domestic violence is a very serious problem and should be treated as such. However, in these cases I have seen these accusations used strategically. Any false claim of domestic violence is a tremendous set-back for those that actually suffer domestic violence. The law should build in a penalty that takes into account the damaging consequences of any false allegations.
Author Commentary
The domestic violence exclusion to the UCCJEA law promotes false accusations. If someone is being abused they should call the police and report it within the state that it occurred. All the witnesses, evidence and the acts occurred within that state. That state is best able to try the case and prosecute the offender. It is ridiculous that someone should have to defend themselves in California for acts that occurred in Chicago. Even if California does not have jurisdiction over criminal charges, the accused must still defend themselves as the Court will make orders affecting the visitation with their children based on these charges.
I think it is very easy to vision how this process might deny someone their due process rights. In this instance the Courts are essentially granting a move-away without granting either party a chance to present their case.
To counter this, the Courts will point out that they do allow a hearing on the issue. My response is: What use is a hearing if the issue has already been decided? Often times, once the two Courts reach a determination as to which one should have jurisdiction, the other Court will decline jurisdiction. Thus, if the California Court and Chicago Court reach a consensus, the Chicago Court will agree to decline jurisdiction. Consequently, by the time this “hearing” is scheduled, Mother has no valid arguments to present. She cannot argue that Chicago is the appropriate forum as it has already declined jurisdiction during its conversation with the California Court. Effectively, the issue has been decided without a hearing and without an opportunity to present evidence.
I realize the situation before the Courts is a difficult one, as there are limited resources and logistical problems with coordinating a hearing on the issue in two different Courts. It is my opinion though that the inequities of the current method justify the costs and additional effort required to ensure that both party’s due process rights are protected. Written By Antonio J. Fricano
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Kim Kardashian, a popular socialite, claims she intends on filing a lawsuit to try to stop the DVD release of a three-year-old sex tape featuring her and actor-rapper Ray J, whom she was dating at the time the video was made. Vivid Entertainment shelled out $1 million to an undisclosed third party for the tape and is planning to add Kim Kardashian Superstar to the homemade adult entertainment canon in the near future, despite objections over the deal’s legality. Ms. Kardashian is reported to have said that she feels hurt and betrayed, but will not point a finger at the people responsible for releasing the tape. For the following three reasons, we should be at least suspicious of Ms. Kardashian’s assertion that she is not behind the release of the video: 1) Ms. Kardashian is about to promote a major line of clothing for Christopher Brian Apparel. She will model and design some of the street-wear line clothing in Christopher Stokes' multimillion dollar ad campaign. Having a little name recognition like a sex video certainly cannot hurt Ms. Kardashian’s opportunity of promoting her goods (the clothing line). 2) To date, Ms. Kardashian has not filed any type of lawsuit. If Ms. Kardashian truly intends on stopping the release of the video, she would have filed a request for a temporary injunction with the Los Angeles Superior court by now. 3) Ms. Kardashian is the daughter of the infamous Robert Kardashian, who taught her everything he knew about hanging around celebrities and cashing in when the time was right. You will recall, Robert Kardashian was a member of OJ's "Dream-Team." Really folks, why would anyone in their right mind agree to taping themselves having sex? You have to expect at some point that videos or pictures will end up on the internet. Unless of course, that is what you intend to happen. Written by Donald P. Schweitzer Click HERE to watch the video
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 While on Nancy Grace, criminal defense attorney Don Schweitzer provides legal commentary on Paris Hilton. Click HERE to watch the video.
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 Criminal defense attorney provides legal commentary on Paris Hilton while on The Line Up. Click HERE to watch the video.
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 Criminal defense attorney provides legal commentary on Paris Hilton while on Showbiz Tonight. Click HERE to watch the video.
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Imagine the terror felt by the parents of two toddlers who accidentally drowned in a pond near their home while in the care of an 18 year old babysitter. The toddlers supposedly wandered away from their home in Waterford, Pennsylvania while the babysitter was asleep. The babysitter told the police that she put the children down for a nap and then she took a nap in another room at the same time. While she was asleep, 20-month-old Jenna Walker and 2-year-old Maggie Kovski supposedly walked out of the house and then walked for another 100 yards before they found their way into a man made pond behind the house. What is wrong with this picture? First, it is hard to imagine how two little-bitty toddlers exited the house together, and then walked at least 100 yards together to the pond. How could they have wandered that far away? In addition, what was the babysitter doing by taking a nap in the first place? How long was she asleep? A solid investigation of this case will require the police to review all phone records that the babysitter had made during the time she was babysitting and interview any and all people who she may have been interacting with, as well as neighbors who could have seen people coming and going to the house. Hopefully the investigators will take their time with this investigation. Can the babysitter be charged with criminal gross negligence? Not likely, at least with the facts as reported by the babysitter. In California, as in most jurisdictions, criminal negligence requires “gross negligence.” Gross negligence involves more than ordinary carelessness, inattention, or mistake in judgment. A person acts with gross negligence when: 1) A person acts in a reckless way that creates a high risk of death or great bodily injury; and 2) A reasonable person would have known that acting in that way would create such a risk. When people fall asleep while in the presence of children they are supposed to be caring for, it is not an inherently reckless act. After all, wouldn’t all parents be guilty of this offense when they fall asleep at night after putting their children to sleep? We need to learn from the mistakes made by the parents of these two precious children. In a day when it is necessary for both parents to work, we have become more and more dependant upon other people to watch after our children. In this regard, it would be prudent for parents to consider the following four suggestions: 1) Hire a babysitter with experience and who has references; 2) Make sure the babysitter you hire is given explicit instructions on what is expected, e.g., in this case the babysitter should have been told that she was not permitted to take naps while on the job; 3) Install video surveillance equipment within your home so that you can monitor the babysitter and your kids at all times from work. It has become much more affordable to install this type of equipment and we now have the ability to utilize our desk top computer as a monitors; 4) Make unexpected visits to the house throughout the week, so that the babysitter never knows when to let down his or her guard. In order to make the visits feel less threatening to the babysitter, you may consider dropping off snacks for the children and the babysitter when you visit; 5) When your child is old enough, consider placing him or her into a licensed daycare center for a portion of the day. Many children thrive at daycare, and it shortens the amount of time they have to spend with a babysitter. As most people who care for toddlers will agree, watching little kids for prolonged periods of time can be extremely taxing. By shortening the amount of time your child has with the babysitter will enhance your ability to manage the babysitter’s conduct. Written By Donald P. Schweitzer Click HERE to watch the video.
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