Alternative to Family Court: Arbitration

Arbitration is sometimes a more effective alternative to court action for family disputes. Using alternative dispute resolution approaches, such as arbitration might help resolve problems that a family court judge would otherwise handle. Instead of having to appear in court, spouses or ex-spouses may utilize the arbitration procedure. Many individuals feel that less adversarial outcomes are more likely when using arbitration.

Arbitration is a process in which a trained, neutral third party hears both sides of a dispute and then makes a binding decision on the matter. This can be an attractive option for couples who want to avoid the public nature and formalities of court proceedings. It can also be less expensive than going to trial, and it can be completed in a shorter time frame.

When Can You Use Arbitration?

Arbitration can be used for a variety of family law disputes, including but not limited to:

How Do You Agree to Use Arbitration?

In order for arbitration to be binding, both sides must agree to use this method to resolve their dispute. This can be done by signing a contract that states that you agree to arbitrate your dispute. Alternatively, you and the other party can go to an arbitration hearing without having previously agreed to arbitrate. If you do not agree with the arbitrator's decision, you can still go to court to have a judge hear your case.

Who Should Consider Arbitration or Other ADR Methods?

Several families can use arbitration and other ADR methods when looking to dissolve a dispute. A family may consider using an arbitration provision in an agreement with a spouse if:

Some couples may not be suited for arbitration because they cannot communicate or work together to decide. If a couple cannot agree on the use of arbitration, it is likely that they cannot agree on the terms of their divorce. In this case, it may be best to let a judge hear the case and decide.

Contact us if you are looking to use arbitration to resolve a family law dispute. We can help you determine if this is the best option for your situation and, if so, we can assist you in drafting an arbitration agreement or contract. We can also represent you at an arbitration hearing.

Is Residential Custody the Same as Sole Custody?

If you're a parent going through a divorce, you may wonder what kind of custody arrangement is best for your children. One option you may consider is residential custody, but you may not be sure what that entails.

So, Are Residential and Sole Custody the Same?

The short answer is no. Residential custody, also known as primary physical custody, is when the child lives with one parent most of the time. The other parent typically has visitation rights. Sole custody is when one parent has full legal and physical custody of the child.

Why would you choose residential custody over sole custody?

There are a few reasons. First, it gives the child stability and continuity in their lives. They get to stay in their home, attend the same school, and see their friends regularly.

Second, it gives both parents a chance to be involved in the child's life. Even though the child is living with one parent most of the time, the other parent still gets to spend time with them and be a part of their life.

When children have to move back and forth between two homes, it can be tough on them emotionally. Residential custody can help make the transition a little easier. It can help reduce the stress and anxiety that comes with divorce.

Change in Custody Practices

Real joint residential custody arrangements used to be common. With the arrangements, a child's time was split in half between both the parents. However, this method is used less now because it greatly disrupts a child's life. Instead, the trend is for one parent to have primary custody and the other to have visitation rights.

If you're considering residential custody of your children, you must talk to a lawyer to see if it's the right option for your family. They can help you understand the legalities and make sure that your rights are protected.

How to Make a Peaceful Transition For Your Child

If you're currently going through a divorce or are about to, you may wonder how to make the transition as smooth as possible for your children.

Here are a few tips:

Going through a divorce is tough, but following these tips can make the transition a little easier for your children.

Contact us today to learn more about residential custody and how it can work for your family. We'll be happy to answer any of your questions.

What is Sole Custody?

When you're seeking custody of your children, there's more to it than just filing papers. You need an experienced lawyer on your side to make sure you understand all the legal jargon and know the next steps to take that will be in your best interest.

There are different custody; you should know the difference in each before you go to court to fight for your parental rights and custody arrangements.

What is Joint Custody in California?

Joint custody is a common preference in a child custody case. However, there are some situations where this isn't possible. In such cases, the parents argue about who is going to obtain sole custody.

What is Sole Custody?

The term "sole custody" refers to one parent having legal and physical possession of the kid. This implies that the kid spends most of his or her time with that parent. The non-custodial parent has visitation rights, but the custodial parent makes all the major decisions about the kid's life.

Sole Custody Types:

Sole custody is usually only granted in cases of domestic violence, child abuse, or substance abuse. The court will grant sole custody to one parent if the child is determined to be in danger.

If you are fighting for sole custody, it is important to have an experienced attorney on your side.

Who Will Determine Sole Custody?

A judge will make the decision on who gets sole custody. They will look at a variety of factors to determine what is in the best interest of the child. This includes the relationship of the child with each parent, the work schedule of each parent, and the home environment of each parent.

What if Both Parents Agree on Sole Custody?

If both parents agree on who should have sole custody, the judge will likely approve this arrangement. It is always best if the parents can come to an agreement outside of court. This will save time and money.

Contact us today to schedule a consultation with one of our experienced child custody attorneys. We can help you fight for the custody arrangement that is best for your family.

Contempt of Court in Family Law

You've likely come across the phrase "contempt of court" on your preferred legal drama or daytime judge program. It's an important legal issue, and it's important to be aware of what it entails. When someone faces contempt, their behavior has been deemed disrespectful in court, and they have deliberately defied court orders.

In general, contempt of court is a punitive measure intended to ensure that legal procedures and judgments are followed and upheld.

In Family Law, What Does "Contempt of Court" mean?

Divorce, child support, and custody are all elements of family law. This sort of delicate issue is near-impossible to tackle unless your ex-partner fails to observe court orders. In family law, contempt is generally used to describe disobedience of court orders rather than disruptive behavior. The following are just a few examples of things that might lead to a person being held in contempt.

Penalties for "Content of Court"?

The penalty for contempt varies depending on the court and how severe the violation ends up. In some cases, the judge might suspend a jail sentence. Assuming this scenario happens, the judge can impose one of these penalties:

Can You Request an Ex-Partner to be Held in Contempt Regarding a Family Law Case?

Yes, but there is more to it. If you think the opposing party in your divorce hearing, child support, or child custody has failed to follow court orders, you can file a motion to have them held in contempt. Keep in mind that you must provide evidence that will show how your situation compares to others. Establish the existence of a lawful court order requiring the other person to comply.

Contact us if you need help with contempt of court case. Our team of professionals can assist you with filing the necessary paperwork and representing you in court. We understand how difficult it is to deal with these cases, so we'll handle everything for you while keeping you updated every step of the way. Schedule a consultation today to get started.

How to Get Dog Custody in CA

Dog Custody Lawyers Might be the Answer

Whether you're getting a divorce or simply moving out of your current home, one of the most difficult decisions to make is what to do with your dogs. In California, there are a few things to consider when it comes to the custody of dogs. 

Here's what you need to know.

What if You Can't Reach an Amicable Agreement Over the Pet(s)?

If you and your ex can't come to a peaceful agreement about who will get custody of the dog, then your next step is to head to court. 

During your hearing in court, both you and your ex will have the chance to present evidence and make your case for why you should get custody of the dog. Bring as much evidence to us during our consultation and we can help you sift through what you should bring or what we recommend you obtain. There’s not usually too much evidence involved, but sometimes it can help push the case forward a bit easier and faster.

The judge will then decide based on what they believe is in the best interest of the animal. Remember, you'll still want to dress and act professionally. After all, you are trying to convince a judge that you are the best person to care for this animal.

While going to court may seem like a hassle, it's important to remember that you're doing this for the sake of your pet. They deserve to have a happy and healthy life, and you're the one who can provide that for them. So, don't be afraid to fight for what's right. Your furry friend will thank you for it.

We Can Help Contemplate What's in the Best Interest For Everyone Involved

Custody battles, whether for children or pets, are never easy. But at the end of the day, you have to do what's best for everyone involved. If you're struggling to decide what to do with your pet, we can help. We'll take the time to get to know you and your situation so that we can make the best recommendation for you.

You may need a Dog Custody Lawyer

Give us a call today to set up a consultation. We'll help you through this tough time so that you can focus on what's really important: your dog. They deserve the very best, and we'll make sure they get it.

What is a Default Hearing?

What is a default hearing in family court?

There are some situations where one party fails or refuses to participate during the case. A situation like this is common during a domestic relations law related to other types of practices. Multiple reasons for lack of participation occur. Courts will address the lack of involvement.

What if They Refuse?

The court will still hear the case if one party refuses to participate. The opposing party needs to provide evidence that they attempted to notify the other person of the hearing date. The notice must be in writing and sent by certified mail or some other type of delivery service that provides proof that it was received. If there is not enough evidence to show that the other person was properly notified.

If you are the party that did not receive notification, you may be able to file a Motion to Dismiss for Lack of Due Process, but the only way to know for sure is during your meetings with us to go over the case in-depth.  The Motion to Dismiss for Lack of Due Process essentially asks the court to throw out the case because you were not given notice or an opportunity to participate. The court will look at whether or not you would have been able to participate if you had received notice. If the answer is no, then the court will most likely dismiss the case. However, if the answer is yes, then the court may choose to hear the case without you.

It is important to remember that even if a case proceeds without your involvement, you may still be held liable for any damages that are awarded to the other party. This is why it is always best to participate in your own case, even if you do not think that you will win. An attorney can help you navigate these complicated legal waters and ensure that your rights are protected.

How Default Hearings Differ from Other Hearings

Default hearings are different from other types of hearings because they require one party to provide proof that the other party was properly notified of the hearing date.   If the party does not provide this proof, the court may enter a default judgment against that party. 

Other types of hearings, such as pretrial conferences or settlement conferences, do not require either party to provide proof of notification. Instead, these hearings are simply an opportunity for the parties to discuss their case with each other and try to reach a settlement. 

If you have been served with papers for a default hearing, it is important that you take the time to understand what is required of you. Failing to do so could result in a default judgment being entered against you.

Contact us if you need help navigating a case like this. If you have any questions about default hearings or any other type of hearing, please contact us. We are here to help you through every step of the legal process. 

Who gets the house in a Divorce

In a divorce, who gets the house?

When a couple divorces in California, one of the first things they need to figure out is who will keep the house. Dividing up property can be complicated, and it's important to understand all of your options before deciding.

If you're considering divorce, here are a few things you should know about who keeps the house in a California divorce.

How California Property Division Law Works

In a divorce, the court will issue an order dividing the property and debts of the marriage. The court considers all the couple's assets and liabilities to be marital property, even if they are only in one person's name. This includes money in checking and savings accounts, retirement accounts, real estate, vehicles, businesses, investments, and belongings.

The court will also divide the couple's debts, including credit card balances, mortgages, car loans, and student loans. The court will consider both spouses' incomes and needs when dividing property and debts.

Separate VS. Community Property: What Does Your House Quality As?

In California, property acquired during the marriage is considered community property. This means that it will be divided equally between the spouses in a divorce. However, there are some exceptions. For example, if one spouse owned a house before the marriage, it may be considered separate property and not subject to division in a divorce.

Uncontested Divorce VS. Contested Divorce

An uncontested divorce is when both spouses agree on all the terms of the divorce, including how to divide property and debts and whether or not spousal support will be paid. A contested divorce is when the spouses do not agree on one or more terms of the divorce. If a couple cannot reach an agreement, they will have to go to court, and a judge will make the decisions for them.

What Happens if the House is in One Person's Name?

If the house is in one person's name, that does not mean it is automatically their separate property. The court will still look at factors like when the house was purchased and whether both spouses contributed to the mortgage, taxes, and upkeep of the property. If the house was purchased during the marriage, it is likely that the court will consider it community property and divide it equally between the spouses (and the house would be involved in dividing all community property.)

Can I Keep the House if I Have Children?

The court may award one spouse the house if there are minor children involved and it would be in the best interests of the children to remain in their home. The court may also consider other factors, such as which spouse can afford to keep the house and whether one spouse will get another property after the divorce.

Contact us if you are looking to keep your house or other assets during your divorce. We can help you understand how California law applies to your situation and what options are available to you. Call us today to speak to a legal professional.

Phillip Hoffman: What can we learn from this tragedy?

Focused on the Heroine

It has been widely publicized over the last few days, that the talented actor and director Philip Seymour Hoffman died of an apparent drug (heroin) overdose in his New York apartment three days ago on February 2nd, 2014. Like many of you, I was shocked by this, having just watched him in Money Ball a few days ago. Stories like this seem to evolve in the media. Initially, the story covered the actual events of the death. After the death was thoroughly reported, then the coverage inevitably shifted. Over the last 24 hours or so, it seems like the media has focused on the heroine part of this story. Headlines today are focused on whether or not other chemicals had been cut into the heroin found in his room, or whether the police had arrested the dealers who provided drugs to Mr. Hoffman. Other stories have focused on this story as an illustration that heroine use in our country is a bigger problem than previously realized.
Was drug abuse his coping method?

For me, the underlying story here is not the drugs. As a family law attorney, I am interested in what the context was for Philip Seymour Hoffman’s drug use (interestingly, as I researched for this article I discovered that Hoffman’s mother was a family law attorney and judge). Media reports indicate that Mr. Hoffman had recently separated from his girlfriend and the mother of his 3 children. Was there a connection between the stress of this break up his family and his drug use? Or, was the drug use the cause of the break-up? We may never know the answer for sure, but I can tell you that from my experience, the break up of a family, especially a family with children can be a tremendously stressful life event. Surprisingly so. I have seen many men who are recently separated from their wives and children be blindsided by the onset of stress that follows. They may think they are prepared for it, but they quickly find out that considering the experience and actually going through it, are two different things. I am told it is awful. I am not certain that this stress is what led Hoffman to fall off the wagon, but I do know that in general, the type of stress brought on by these sorts of traumatic life changes is the type of stress that sends people running for relief or a means to cope.
Find someone who wants to help

As a family law attorney, this story reminds me that I need to keep a good eye on my clients who I know are going through a traumatic breakup of their families. Family law attorneys will often have a front-row view of these events, and consequently, they are in a position to detect signs that their clients are not successfully coping with the changes. A good family law attorney will be more in tune with his / her clients and will be observant of how they are coping. This is why it is best to hire a family law attorney who actually cares about you and your life.
Support Systems

This also speaks to the need for a good support system. In my experience, clients who have support from family and friends tend to cope better with these types of life changes than those who don’t. In my mind’s eye I can see Hoffman alone in his New York apartment and it screams of pain and loneliness. Again, I am speculating here, but it fits a pattern. Of course, the break up of his family is clearly not the only cause here, as we know that Hoffman was a recovering addict. But these types of events never happen in a vacuum. Our lives are a confluence of causes and effects all of which combine to render the result of our lives.
Don’t hesitate

If you are dealing with difficult family law, divorce, or child custody issues, it is important that you take the proper steps to enlist the very best help available to you. Having a great family law attorney, who cares about you, and your children can be a tremendous source of support and relief from stress. If your family life is beginning to unravel, seek help early, as the stress can pile up quickly, and once we are severely stressed our judgment diminishes and we are less likely to make good decisions.

We work all angles, to get you the best deal

For purposes of a state constitutional speedy trial analysis, no presumption of prejudice arises from the delay after the filing of the complaint and before an arrest or formal accusation by indictment or information; rather, the defendant seeking dismissal must affirmatively demonstrate prejudice. However, when the issue of a violation of a statutory time limit arises before trial, prejudice will be presumed unless the prosecution successfully meets its burden of showing good cause for delay. Similarly, because statutes of limitation reflect a legislative construction of the speedy trial guarantee, courts may appropriately conclude that delays between the filing of a complaint and the arrest of a defendant which exceeds the period of limitation applicable to the charged offense are unreasonable and thus presumptively prejudicial. Thus, delays that are uncommonly long may trigger a presumption of prejudice.

It is of utmost importance the attorney working on a matter examines the necessary time periods of arrest, filing, and indictment. At Earl Carter and Associates, we work all the angles to either receive the best deal possible or have the case dismissed. In one of our cases, our client was finally brought in on a 10-year-old warrant. At the arraignment, an oral Serna motion was more than sufficient for the magistrate to dismiss the matter, a drug possession, and a sales case. It is even more important to note that if the matter of speedy trial is not raised, it is therefore waived. The professionals at Earl Carter and Associates handle business similar to this every day so you do not have to, and it has greatly benefited several of our clients.

Divorce Settlements need to be creatively Drafted

Music Mogul and American Idol Star Simon Cowell is being included in his girlfriend Lauren Silverman’s Divorce Settlement Agreement (also known as a Marital Settlement Agreement). This agreement demonstrates just how creative these things can get in order to accommodate the goals on both sides of the marriage.

Apparently, in this settlement agreement, Lauren Silverman agrees that if Simon Cowell comes near her son (not a son with Simon, but a son with her ex-husband) Simon will pay the ex-husband $50,000. Further, the settlement agreement indicates that upon 3 violations of the stay-away provision, Lauren Silverman forfeits custody of her son, to her ex-husband. As, if that weren’t interesting enough, apparently the Divorce Agreement also indicates that both sides agree to make sure that no one other than the child’s biological parents is referred to as his mom or his dad.

All of this serves to illustrate just how creative you can be in your divorce agreements. The reality is that divorces can get very complicated as children, money, property, and debt are being split up. In these situations, it is inevitable that both the husband and the wife have different goals, and agendas. In our practice, it is common to work with a husband and wife going through the divorce process and their starting points are miles apart. This is where it becomes critical to have an experienced divorce attorney who knows how to identify the goals of each side, and then is not afraid to get creative to fashion an agreement that meets the needs of both sides. The further apart that each party is from the other, the more creativity that will be necessary to find a way to satisfy each side in the divorce.

We had a recent Victorville Divorce Case in which we ended up drafting a Marital Settlement Agreement that worked out a complex schedule for each side to have ” custody” of the couple’s animals. We literally had the family dog and three cats spending time with each party to the divorce weekly with the dog going to the wife’s house on Wednesday Mornings for “play dates” with the neighbor’s dog. The bottom line is that a skilled divorce attorney who is willing and able to think creatively will be more likely to fashion a remedy that is acceptable to both sides and effectively settles the divorce.