Law Office Of William H. Paynter

When we talk about Custody and Visitation in a divorce, this can be a very delicate subject for both parents and the child or children. Things we need to remember and focus on are that California Courts are going to always do what is best for the children. Remember: The way you and the other parent act affects your children. Here are some tips on how to talk to each other: •Be polite, just like you would be at work. Do not use bad language or call each other names. •Stay on the subject. Don’t talk about other issues. •Focus on doing what is best for your child. •Control your emotions, just like you would do at work. If you can’t stay in control, agree to talk at another time. •Be clear and specific when you talk to the other parent. Write things down and keep businesslike records of your agreements and appointments. Do not change plans without first discussing the change with the other parent. •To be sure each parent has the same information, write down what you have talked about and send a copy to the other parent. •Keep your promises. Your children need to be able to trust and rely on you. This is very important right now. •Do not talk about custody problems if one of you is under the influence of alcohol or other drugs. •Do not talk about custody if the children are around. •When you pick up or drop off the children to the other parent, say only "hello" and "good-bye". •Do not send messages to the other parent with or through your child. •Try to talk to teachers, doctors, or other involved professionals together. This can help resolve differences of opinion about what is best for your children. •If the child is with you, you are responsible for the child’s daily care. But, do not make any important changes or decisions in the child's educational or medical care without first discussing it with the other parent. •Above all, try to work with the other parent for the good of your children. Do this for your children's happiness and success in life. They will feel more comfortable and secure and know that you both cared enough about them to make their life free of conflict. Should the Court have to get involved in custody and visitation agreement In most cases, parents can make their own agreements for custody and visitation. If you and the other parent agree on custody, the judge will probably approve your agreement. If you cannot agree, the judge will send you to mediation and a mediator will help you. I have years of experience in mediation in these matters so that when you go to court for filing the custody and visitation agreement things can go much smoother and faster if you are already in agreement. However, if even after mediation with me, If you still cannot agree, you and the other parent will appear before a Judge. If you still do not agree, you may be ordered to go through an in-depth process called custody evaluation. After the evaluation, the judge will decide your custody and visitation schedule. California law says that Judges must keep the “best interest” of your children in mind when deciding on custody. California laws have changed a lot in the last few years. Courts no longer automatically give custody to the mother instead of the father, even if your children are young. Courts cannot deny your right to custody or visitation just because you were never married to the other parent, or because you or the other parent has a physical disability, or a different, or minority lifestyle, religious belief or sexual preference. Remember: the best plan is a plan that is good for your children. Change is hard for children. Research tells us that if both parents are active in their kids’ lives and do not fight over custody and visitation schedules, the children will usually do much better. Types of custody: There are two kinds of custody: legal and physical. Legal custody Legal custody means who makes the decisions about the children’s health, education and welfare. This includes deciding where the children go to school or whether they should get braces on their teeth. If the parents share joint legal custody, both parents can ask schools and doctors for information about the children. It is important to be clear about who makes which decisions so that there is no disagreement later on. Physical custody Physical custody refers to the time the children spend with each parent on a regular basis. For example, the children may be with one parent on school days and the other on weekends plus a mid-week dinner visit. The parents can split the holidays and vacation periods. Sometimes, if the parents live near each other and they get along as parents, the children go back and forth without an exact schedule. Most parents need a schedule. Joint physical custody is a good choice for parents who can agree on a plan on their own or with a mediator’s help. It requires cooperation, flexibility and good communication between the parents. Sometimes, a judge gives both parents joint legal custody, but not joint physical custody. This means both parents have equal responsibility for important decisions in the children’s lives. But, the children live with one parent most of the time. The parent who does not have physical custody usually has scheduled time with the children. Parents should talk to a lawyer about physical and legal custody before making a final agreement.

In a civil trial, a judge or jury examines the evidence to decide whether, by a "preponderance of the evidence," the defendant should be held legally responsible for the damages alleged by the plaintiff. A trial is the plaintiff's opportunity to argue his or her case, in the hope of obtaining a judgment against the defendant. A trial also represents the defendant's chance to refute the plaintiff's case, and to offer his or her own evidence related to the dispute at issue. After both sides have presented their arguments, the judge or jury considers whether to find the defendant liable for the plaintiff's claimed damages, and if so, to what extent (i.e. the amount of money damages a defendant must pay, or some other remedy). Depending on the type of case being heard, a civil trial may not necessarily focus only on the plaintiff's allegations and the defendant's liability. For example, in most divorce cases a trial judge reaches a decision after hearing allegations from both sides of the dispute, and enters a judgment that may favor one spouse on one issue (child custody), and the other spouse as to another issue (alimony). The following overview discussion of a civil trial is presented mostly in the context of a typical"plaintiff vs. defendant" civil case. (Note: Although a trial is the most high-profile phase of the civil lawsuit process, the vast majority of civil disputes are resolved well before trial -- and in some cases before a lawsuit is even filed -- via settlement between the parties, alternative dispute resolution (ADR) processes like arbitration and mediation, or through dismissal of the case.) A complete civil trial typically consists of six main phases, each of which is described in more detail below: Choosing a Jury Opening Statements Witness Testimony and Cross-Examination Closing Arguments Jury Instruction Jury Deliberation and Verdict Choosing a Jury Except in cases that are tried only before a judge (i.e. most family court cases), one of the first steps in any civil trial is selection of a jury. During jury selection, the judge (and usually the plaintiff and the defendant through their respective attorneys) will question a pool of potential jurors generally and as to matters pertaining to the particular case -- including personal ideological predispositions or life experiences that may pertain to the case. The judge can excuse potential jurors at this stage, based on their responses to questioning. Also at this stage, both the plaintiff and the defendant may exclude a certain number of jurors through use of "peremptory challenges" and challenges "for cause." A peremptory challenge can be used to exclude a juror for any reason (even gender and ethnicity in civil cases), and a challenge for cause can be used to exclude a juror who has shown that he or she cannot be truly objective in deciding the case. Opening Statements Once a jury is selected, the first "dialogue" in a personal injury trial comes in the form of two opening statements -- one from the plaintiff's attorney, and the other from an attorney representing the defendant. No witnesses testify at this stage, and no physical evidence is ordinarily utilized. Because the plaintiff must demonstrate the defendant's legal liability based on the plaintiff's allegations, the plaintiff's opening statement is usually given first, and is often more detailed than that of the defendant. In some cases, the defendant may wait until the conclusion of the plaintiff's main case before making its own opening statement. Regardless of when opening statements are made by either side in a personal injury case, during those statements: The plaintiff presents the facts of the case and the defendant's alleged role in causing the plaintiff's damages (or reasons to find for the plaintiff) -- basically walking the jury through what the plaintiff intends to demonstrate in order to get a civil judgment against the defendant. The defendant's attorney gives the jury the defense's own interpretation of the facts, and sets the stage for rebutting the plaintiff's key evidence and presenting any "affirmative" defenses to the plaintiff's allegations (or reasons to find for the defendant). When a civil lawsuit involves multiple parties (i.e. where three individual plaintiffs sue one defendant, or one plaintiff sues two separate defendants), attorneys representing each party may give their own distinct opening arguments. COME BACK SOON FOR MORE INFORMATION ON CIVIL CASES

Mediation is a great form of trying to work out your marital issues. You receive the benefit of my personal attention and substantial experience as an experienced Divorce Attorney, because I care, and handle each case personally. I have been working with potential divorce clients for over 30 years as a Mediator. Either party can request mediation and initiate the process. Consider asking the other party before initiating this process whether they are willing to mediate the dispute. Both parties must consent to mediation for the process to move forward. This can also be a cost saving way to proceed vs. going through the court system. Things like child custody, spousal support and asset dividing, can be handled in the office and done in an equitable and less stressful manner.

PART IV The Initial Consultation with your Divorce Attorney: What to Expect When you Don't Know What to Expect The Financially Oriented Questions: The objective of the financially oriented questions is to gain a rudimentary and preliminary understanding of your net worth, income, and expenses/lifestyle, so that I can assess the issues of property division, child support, and spousal support. You are not expected to be able to answer all of the questions, and many times clients can only answer a few of the questions. Your inability to answer questions will not impact your my ability to handle your case, only my ability to provide a more detailed, preliminary assessment of your case, which in the long run is not problematic. Relative to the support issues, not only is a person’s income relevant, but his or her ability to earn a living can be very important. Thus, the initial financial inquiry pertaining to income and earning capacity usually explores your and your spouse’s educational/licensing backgrounds, your employment histories, and your current incomes from employment and all other sources. To the extent that you can bring tax returns to your initial meeting, such documentation will enable your me to better assess your matter. Equally important to the assessment of the support issues are questions pertaining to expenses and lifestyle. My questions will be designed to gauge the magnitude of your basic monthly expenditures, but more importantly, the full nature and extent of the expense level reflective of the standard of living enjoyed by your family during the marriage. Ultimately, this information will be gathered from a review of check registers, bank statements, and credit card statements, which I will obtain during the divorce process. Such information will help me to understand what needs to be done to maintain the financial status quo while your case is pending and how much financial support will be required/payable at the conclusion of your case. Relative to property division issues, I will be attempting to construct a basic statement of net worth listing all of your assets and liabilities and the amount of each item. The questions will tend to focus on homes and related mortgages, bank accounts, brokerage accounts, retirement accounts/benefits, business interests, life insurance policies, automobiles, and credit card debts, among many other related questions. Again, some people are able to provide a fairly detailed overview of their net worth, and other people do not even know at which bank they have a checking account. While all of this information will be obtained for you by me, and carefully reviewed as your case progresses, a rough sketch at the initial meeting will enable myself to provide you with an initial assessment of how your estate may be divided. In order to render such a preliminary assessment, the I will also ask questions designed to elicit information about premarital assets, assets received as gifts, and inherited assets. Often the focus when dividing property is whether all of the property should be divided or whether some of the property is exempt from division by the court. In this area of the law there are lots of shades of gray. Thus, I may ask questions in an attempt to gather information to bolster or thwart claims related to premarital, gifted, and inherited property. These questions may focus on each spouse’s contributions to the acquisition, maintenance, and improvement of various assets, title to various assets, and the possible commingling of various assets. If you and your spouse executed any form of a prenuptial agreement or a postnuptial agreement, I will ask questions designed to assess the validity and potential enforceability of the agreement. These questions usually focus on the financial disclosure made incident to the execution of the document, when the document was signed in relation to the date of the marriage, the circumstances surrounding the execution of the document, changes in circumstances that may have occurred since the execution of the document, among numerous other related questions.

PART III The Initial Consultation with Your Divorce Attorney: What to Expect When You Don’t Know What to Expect If children were born or adopted of the marriage who have not yet graduated from high school, your prospective attorney will need to be informed. More specifically, the attorney will need to know the children’s ages, dates of birth, addresses at which the children have lived during the past five years, and all health or psychological issues confronting each child. Many attorneys will also ask you for a description of each child’s personality. Most attorneys will also ask for your assessment of your parenting skills and your spouse’s parenting skills. The more insight you can provide into each child’s personality and each parent’s parenting skills, the easier it will be for your prospective attorney to assess the numerous issues pertaining to physical custody, legal custody, and parenting time/visitation. To the extent that your children may have potential preferences as to with whom they wish to live, this angle must be explored, although it is not always of significant relevance. As part of the interview process, it is imperative that you receive an honest assessment of the legal issues pertaining to your minor children, rather than be told what you want to hear. This can only be accomplished with your complete honesty and cooperation.

PART II: The Initial Consultation with Your Divorce Attorney: What to Expect When You Don’t Know What to Expect The Name, Rank, and Serial Number Types of Questions: The first series of questions usually pertains to name, address(es), phone numbers, dates of birth, and social security numbers for you and your spouse. The reason this information is needed is so that the attorney can be prepared to file a case, if necessary, on short notice should you call back in two days, two weeks, two months, or two years. What you do not want to occur is for you to call the attorney back several weeks down the road, if and when you need immediate action, and have the attorney not be in possession of the basic information to proceed with filing papers with a court on your behalf. It is okay to provide address and telephone contact information; no one is going to call you at any telephone number or send you any mail at any address without your express permission. The next series of questions usually pertains to the details of your current marriage and any prior marriages. The attorney will need to know when you were married, by whom you were married, and where the marriage took place. Not only must this information be included in any initial paperwork filed with a court, but sometimes issues arise relative to defects in the marriage arising out of the marriage ceremony. Similarly, the attorney will need details relative to the termination of any prior marriages, whether they ended by death or divorce (primarily in order to ascertain whether there were any impediments to the current marriage which might be raised as a procedural defense). Included in the inquiry relative to prior marriages will be questions pertaining to children from prior relationships, child support still being paid or received, and spousal support still being paid or received. All of this information has a potential impact on the attorney’s assessment of your current situation. Whether you or your spouse has previously filed for a divorce from the other, or whether your spouse has consulted an attorney, are also important parts of the evaluation process. To the extent your prospective attorney has some insight as to the identity of the judge to whom the case has been assigned (if your spouse has already filed a case) or the identity of opposing counsel, the more precise the attorney can be in advising you what to expect during the process and as a potential outcome. Each judge has different tendencies, opinions, and idiosyncrasies, and every opposing counsel handles his or her cases with different degrees of sophistication and professionalism. However, in most instances, the identity of the judge and opposing counsel cannot be ascertained until a case is commenced.