It's that time of year again. It's a time for food, family, and of course, holiday shopping. However, it's also that time of year where many parents disagree about who "gets" the children during the holidays.

Every year during the merry months of November and December, you'll see attorneys frantically running into family court with ex parte motions (emergency motions) asking Judicial Officers to intervene and decide which parent gets to spend a holiday with their child. This is truly one of the most unpleasant events in any family law Judge or attorneys' career. So, if you are a parent who is contemplating this course of action, I'd strongly suggest you keep reading.

Before you instruct your attorney to run into court, know that most courts will refuse to consider ex parte motions brought forward simply because parents are unable to agree on something. Just recently, I was forewarned by a Judicial Officer that she was not going to make any exceptions for holiday visitation schedules. This is because Courts want to discourage litigants from filing these motions and encourage co-parenting.

Ex parte motions on custody matters are statutorily permitted only where there is an emergency, such as risk of imminent harm or child abduction. While emotionally difficult, not spending Christmas morning with your child to open gifts is not an emergency. As you can imagine, this legality is quite difficult to communicate to a parent who wants nothing more in World than to share the holidays with their child. However, you should know that courts disfavor such motions because they deal with such highly personal issues. How can a court make both parties happy? In the rare case that the court intervenes, both parties often walk away feeling unhappy with the decision; a lose-lose scenario.

Before you file your ex parte motion, I suggest that you take some time to consider my three tips below:

1. Whose interest are you really serving? Are you looking out for yourself or for your child? We know that you want to be with your child 24/7, but the reality is that children love and need both sides of their family. A shared holiday schedule is essential in making your child feel secure and loved.

2. Put on your 'good parenting' hat. The best way to demonstrate to the court that you are mature and responsible is to share custody. This will require concessions on both sides so that your child's needs and interests are placed before your own.

3. Have a little empathy. Place the emotional turmoil aside and try to empathize with the other parent. As much as it hurts to even fathom being without your child on a holiday, understand that the other parent is probably having the exact same feelings.

My message to you is that the best gift you can give your child is to cooperate and share the holidays with the other parent. A little peace during this holiday season will go a long way in maintaining stability and making your child feel loved!

Written by: Donald P. Schweitzer

The ability to take down a deadbeat dad seems to get easier with every appellate court decision in California. In Marriage of Alter (2009) 171 Cal.App.4th 718, the court decimated the type of dead beat dad that many of us previously believed were bullet proof.

The type of deadbeat I'm talking about is the father who sits at the pool all day working on his tan, while his children live with mom in a one bedroom apartment on the wrong side of the tracks. The type of guy who drives a fancy car, takes nice trips, and lives in a large house, while paying little to no child support, because the only money he receives is a recurring gift from his parents, which was once considered to be non income for the purpose of calculating child support.

In Alter, the man of the hour was named Jack. Jack was divorced to a woman named Cindie. Jack and Cindie had two children named Samantha and Alexandra. A couple of years after their divorce, Jack and Cindie found themselves back in court, dealing with a motion that Jack filed for modification of his child support obligation. During the hearing, Cindie argued that Jack's claim to have little to no income was bogus, since she knew that Jack's mother had given him a regular stipend for years.

To the trial judge, Jack admitted that his mother covered many of his expenses. She had been regularly giving him $3,000 per month for many years. For a time after the divorce, Jack lived with her, rent free. In 2005, she purchased a house and Jack moved into it. She then increased Jack's monthly stipend to $6,000, $3,000 of which Jack used to pay the rent his mother charged. Jack's mother also paid for Jack's daughter's schools, tutoring, and summer camp. Jack used his mother's credit card to buy clothes and other things for the girls. His mother paid for transportation and lodging for Jack to visit his daughters in Georgia several times a year. She gave him money from time to time when he needed it. She paid his attorney's fees in California and Georgia. And, although Jack had declined the offer, his mother had also volunteered to pay the difference between the court-ordered support and that which Jack was able to pay himself.

On appeal Jack tried to convince the court that gifts should never be considered income for the purpose of calculating child support, since the federal government does not consider gifts as income for income tax purposes. Unfortunately for Jack, the court was not persuaded with his argument. When ruling in favor of Cindie the court stated:

"We conclude that nothing in the law prohibits considering gifts to be income for purposes of child support so long as the gifts bear a reasonable relationship to the traditional concept of income as a recurrent monetary benefit... Jack has been receiving regular cash payments from his mother for over a decade. The periodic and regular nature of the payments means that the money is available to Jack for the support of his children."

Obviously this decision should be considered a big victory for a lot of custodial parents. However, a couple of cautionary notes needs to be made. First, the Alter court made it clear that not all gifts will be considered income for the purpose of calculating child support, especially if the gift is not recurring. Furthermore, the question of whether gifts should be considered income for purposes of the child support calculation is one that is left to the discretion of the trial court.

Finally, it is always possible that mommy and daddy will quit giving money to the deadbeat dad, in which case he can file a request for a downward modification of child support. Written by: Donald P. Schweitzer

The Pasadena Bar Association has announced the election of Donald P. Schweitzer as a board member for their organization. Mr. Schweitzer will begin serving on the board January 1, 2010.

Mr. Schweitzer will attend all of the board meetings, participate in the PBA's planning and events, and will vote on various propositions that are brought up at the Pasadena Bar Association meetings.

Mr. Schweitzer received this position by attending numerous Pasadena Bar Association events, helping out the board members, and his identifying himself as having a sincere desire to be an active participant.

According to Mr. Schweitzer, "At this stage of my career, I realize more than ever the contributions the local bar association makes to the community, to our legal systems, and to the individual private attorney, and I believe the work we do on behalf of the association is very important. I also enjoy the camaraderie I have with the other attorneys who serve on the board."

In addition to serving as the Secretary of the PBA, Mr. Schweitzer also holds the position of Chairman of the PBA family law section.

"I would like the Pasadena Bar Association to continue to create benefits to the private attorneys in our local community. I would also like to work with the Pasadena Bar Association in bridging the gap with our local courts."

Mr. Schweitzer is a Certified Family Law Specialist with over 15 years of trial experience. Prior to going into private practice, Mr. Schweitzer served as a Deputy District Attorney in Orange County for 8 years. Mr. Schweitzer worked in numerous units within the District Attorney's office including, Writs and Appeals, Family Support, Municipal Court, Felony Panel, Gang Target, Felony Filing, and the Sexual Assault Unit. He is a member of the American Bar Association, the California State Bar, Los Angeles Bar Association, and the Pasadena Bar Association.

Posted by: Law Offices of Donald P. Schweitzer