Recent Blog Posts in 2007

When a child is born, there are many crucial decisions to make.  Fortunately, most of these choices are reoccurring throughout a child’s life, allowing parents to try different approaches for resolution and “trouble-shoot” to obtain the best results for their families.  Other decisions, such as choosing a child’s legal last name, are almost always made immediately following birth and marked with a sense of finality.

So what is a parent to do when the surname that they have chosen (or acquiesced to) is no longer appropriate for their son or daughter?  Is there any legal way to alter this initial choice once it has been made?

Thankfully, California family courts will entertain a parent’s request to alter their child’s surname.  Like any other request for relief concerning children, however, the court will be very concerned with any impact such a change may have on the minor.        

The family court uses the “best interests” of the child standard to evaluate whether a child’s surname should be altered.  This means exactly what common sense tells us the phrase should mean—what is “best”, or most beneficial, for the child on an emotional, psychological, and social level.
 

There is no presumption, despite traditional or historical thinking, that the father has any kind of “primary right” to have a child bear his surname.  A parent’s concerns and interests are not relevant to the court’s determination—unless, of course, these concerns overlap with a child’s best interests.
 

There are several specific factors a court should consider when determining whether a proposed name change is in the best interests of the children. They are as follows:

1. The length of time the child has used a particular surname.  Here, the court is interested in how old the child is and how familiar they are with their last name.  If they are in school, and have become accustomed to their name being used by others, this may weigh against a name alteration.  Nonetheless, children are often resilient and able to adapt to change more easily than adults.  Obviously, the younger a child is, the stronger the argument would be that they have no particular connection to their last name.

2. The effect of a name change on the strength of the mother-child/father child relationship.  The court is interested in whether the name change would impact the mother-child relationship in any particular way—negatively, positively, or neither.  A parent should explain to the court that their proposed name change would help to strengthen their relationship without harming the other parent’s bond with the minor.  For example, if you had raised your child for four years while the other parent was entirely out of the picture, you would argue that changing your child’s last name to your own would help him/her to identify with you and your family, and feel as if he/she belonged to that family unit.  Similarly, because there had never been a bond forged between your child and their other parent, you could argue that removing the absentee parent’s name could not weaken a relationship that does not exist in any meaningful way.

3. Whether the child is in a new family unit bearing a different surname.  This particular factor will only apply to some families who have recently grown and acquired new surnames.  For example, if you have recently gotten married and given birth to a child, it is likely that you, your new child, and your significant other would all have the same last name.  If you have a child from a previous relationship, who bears a different last name, this difference may be a source of difficulty for that child.  As a result, this situation provides the court with a compelling reason to alter that child’s name to coincide with that of his/her newfamily unit.

4. The embarrassment or discomfort the child might experience if he bears a different name.  Because children have a desire to be like their parents and identify with them on all levels, a parent may want to point out any difficulties that different last names (between mother/father and child) pose for their child.  These kinds of problems may come about when the child starts school and/or extracurricular activities and becomes aware of their last name as an identifying factor.

5. The balance of the symbolic role of the surname against the importance of maintaining the biological father-child relationship.  A surname should be a source of pride for a child, and represent his or her family heritage.  This is not the case when a child’s surname is connected to a biological stranger—or a parent that has been absent from his/her child’s life for a significant period of time.  Therefore, it is important to show the court that the proposed name you advocate has a symbolic meaning to your child that outweighs the minor’s need to be connected (via their last name) to their biological father. 

To sum up, the younger your child is when you attempt a name change, the stronger your case is likely to be.  Also, ensure that there are compelling reasons why the change would be best for your child and attempt to keep your concerns and wants out of the picture.
Also, a parent should attempt to discuss the name change with the other parent first, since the court will most likely allow consenting parents to choose a last name they both find appropriate for their child.  It doesn’t hurt to ask, since the other parent may agree with your proposal.

Written by Kayla Horacek

If you need to know the value of a piece of real estate anywhere from a month ago to a decade ago, it can be done. I’ll show you how it can be done, how it can benefit you, and how an appraiser arrives at value even long after you have sold and moved away. As an experienced appraiser in Southern California with over 20 years experience I would like to share my real estate experience with you.

What is a historical appraisal? Really all appraisals are just a snap-shot of time. Most appraisals are for current market value. So the very day the appraiser comes out and inspects the property the value is valid on that date only and could become no longer valid the very next day. There could be an economic or natural disaster that could change the value overnight. With a historical appraisal the effective date is what the property was worth on that required date, anywhere from last month to 10 or more years ago.

What is the purpose of a historical appraisal? Many and varied reasons. Many accountants and financial planners need to determine the value of property held in estate when the owner dies. This is known as a “Date of Death” appraisal. The IRS will want a professional appraisal in the file to document the value as of that date. Attorneys use the historical appraisal to determine what assets belong to which party. For example let’s say a single person bought a home in 1985 but met and married current spouse in 1995 and separated in 2005. It would be important to know the fair market value on those dates for fair and equitable dissolution. The same would be true of business partners in a property or even family members that pooled financial resources but need to move on.

Are there limitations to what can be done? You would think if you had sold the property years ago and moved away that it could not be done. That’s not true. I recently appraised a property 10 years back, that at the time it was only 1/2 the size, was before the swimming pool, and the owner sold and moved out long ago. In this case an exterior “drive-by” appraisal was called for and the house was valued based on the previous size, minus the pool and without bothering the new owner. In this case both opposing appraisals came in very close to each other and settlement was that much easier.

A historical appraisal sometimes involves similar principles of New Construction Appraisals where only specifications on paper exist and the appraiser determines the value as if completed to your plans and specs. This is sometimes referred to as a Feasibility Study and used to determine if what you plan on building is worth what you expect it to be worth and what adjustments in the build will increase or decrease value.

In these more complicated retro-active or historical appraisals it is important to find an appraiser with years of experience in that market area. An appraiser with sufficient experience may have insight in this area before, during and after changes that have occurred over the last 20 years in that target market. Additionally there are certain appraisal formats that are acceptable for use and others that are in direct OREA violation.

Lastly in historic appraisals, the use of comparable data must all fall before the effective date of the appraisal. If your effective date is 1-17-94 all sales comparables must fall before that date, none after. If for example you needed to know the value of a property sometime around the Northridge earthquake, using sale comps before or after would have tremendous impact on that value.

If the appraisal is for court work we may be called on the witness stand to testify to our report and defend it against the opposing attorney and his witness. There are additional fees for this type of testimony. As a professional appraiser it’s my responsibility to be the best possible resource for my client.

Written by

Clifford Diamond, CREA

Potential buyers and investors have given considerable thought to both housing prices and interest rates recently for two reasons:  First, they have been intrigued by comments from national economists about the statistics supplied by the Department of Housing an Urban Development that showed a 10.2 percent drop in the rate of new single-family home sales between July 2006 and July 2007.  Second, mortgage money for many homes will be more difficult (and possibly more expensive) to obtain, given the sub prime fallout and reports that borrowers in the “jumbo” category (loan amounts greater than $417,000) were facing increased scrutiny.

The idea of “saving my money until home prices come down” has probably become a contradiction in terms, at least for the foreseeable future.  Yes, housing is cyclical but it usually does not go backward for very long, if at all.  The additional money you save now probably will not offset the potential appreciation or the fatter monthly payment that could result if interest rates rise.

While on Studio B, criminal defense attorney Don Schweitzer discusses the legal consequences that Hulk Hogan's son, Nick, should face after he lost control of his Toyota Supra while racing and seriously injuring his passenger.

Kevin Federline's legal team subpoenas Promises, the drug rehabilitation center where Britney Spears was treated, in an attempt to gain custody of their two children. How can Britney's stay in rehab influence the outcome of the custody battle? Family law attorney Don Schweitzer answers this question on Showbiz Tonight.

A star student headed to a boy scout meeting never shows up. While on Nancy Grace, criminal defense attorney Don Schweitzer provides legal commentary on this case.

While on Fox & Friends, criminal defense attorney Don Schweitzer provides legal commentary on Nicole Richie's eighty-two minute jail sentence and on the light sentence given to Lindsay Lohan for her DUI.

Click HERE to watch the video.

O.J. Simpson appears to have dug his own grave by freely speaking to the police and to the press about the details of his “sting operation,” which we all know was an armed robbery.  When a person speaks to the police or to the press without the assistance of an attorney, he or she will normally hurt whatever defenses may apply to a case.  But I, for one, will not underestimate O.J.’s ability to dodge, duck, and run ram shod over law enforcement agencies.  It was O.J., after all, who was found not guilty of a brutal double murder in a case where there was ten times the amount of evidence that is normally required to convict.

Let us not forget it was O.J. who Johnny Cochran once characterized as the smartest criminal defendant he ever represented.  And it is O.J. who was a criminal long before he ever stepped on a football field, i.e., he has a lifetime of experience beating the police at their own game.

Has theLas Vegas Police Department finally tackled O.J., when no other law enforcement agency within the country has been able to do so?  Again, I am not that confident.  In my mind this case is less provable than the double homicide, given that the victims in this case have shady backgrounds and at least one of them appears to have second thoughts about cooperating with the prosecution of O.J..  The media has also had a feeding frenzy on some of the key witnesses to the case which always causes problems for the prosecution.

However, there are two things about this case that may lead to a conviction.  First, this is a case in which O.J. will have multiple co-defendants.  As any prosecutor or criminal defense attorney will tell you, a defendant’s chances of beating the rap is diminished where there are co-defendants.  The biggest problem O.J.’s attorney will have is contending with other attorneys who may not be on the same page with O.J.’s defense. And there is always the strong possibility that the defendants will point their fingers at one another during the trial.

In addition, O.J. cannot pay for another dream team, Johnny Cochran and Robert Kardashian are dead, and there is a real possibility that he no longer has friends like Al Cowlings who will go to extreme lengths to help O.J. evade justice.

Stand-by, as you are about to observe, once again, a hall of fame football player and perhaps the most cunning criminal defendant in the history of this country, be the star of another trial of the century.  Whew!!

Getting your home appraised can be stressful. I would like to help take some of that stress away and help you get the most out of your appraisal experience. As an experienced appraiser in Southern California with over 20 years experience I would like you to see the assignment from our eyes.

If you’re behind on yourmortgage, don’t automatically assume that you’ll lose your house.  Quick action might allow you to keep your property.

Raise Funds:  Examine your spending to see if you can slash expenses.  “People waste lots of money on things like $3.75 lattes,” comments Randy Johnson, author of How to Save Thousands of Dollars on Your Home Mortgage.  Can you get a second job?  Swap your car for a less costly one?

Contact your lender immediately:  Lenders prefer a performing asset over a foreclosure and are frequently willing to work out a repayment plan.  You’ll need to provide a detailed financial picture and outline your strategy for staying up-to-date with our mortgage.  Here’s an example of what lenders will need:  www.housingeducation.org/edi/pdf/edi_worksheet.pdf. 

Whenever you’re asking for help from a lender, it’s suggested that you clearly illustrate what you have done, such as selling a car and meeting with debt counselor etc. to avoid future crises.  Here are some options they often consider.

Forbearance:  Lenders may let you make a lower or no payment temporarily…say for three to six months.  You’ll most likely have to make higher payments when you start paying again to bring the loan up-to-date.

Repayment:  If you’ve recovered from crisis, lenders may allow you to pay more each month for a set period to make up missed payments.

Modifications:  Lenders can reduce interest rates and extend loan terms to reduce the monthly payment.

Short refinancing:  Under a short refinance, you refinance and the original lender accepts a payoff for less than you owe.  You need to prove that the lender would lose more if the property gets foreclosed upon.

Short sale:  You can sell the property and lenders may agree to accept less than you owe.  This saves you from having a foreclosure on your credit record. 

Before accepting any deal, consult with your accountant.  Depending on the type of loan you have, you could owe taxes on forgiven debt.

Scott Wilson
President/Broker

Futura Financial Inc.
El Monte CA
626-442-1888

This past week I had to face a terrible reality: sometimes, there is no way to prevent the real danger of domestic violence.  I came to this reality after receiving a phone call from a friend of one of my clients, informing me that my client had been severely beaten by her ex-husband during an exchange of their two children in the courtyard of the Police Department.  My client is currently in intensive care and is unconscious.  I am told by her family members that her jaw is broken, her left ear was almost severed off, and she suffers from swelling of her brain.  The doctors do not know if she will regain consciousness or suffer permanent brain damage.

As you can imagine, this news was devastating to me, as I care very much for my client who I established a close relationship with during the past three years of representing her in her divorce and subsequent child custody battles.  I have been agonizing over my work on this case, wondering if I did everything I could do to protect her.

I was hired by my client three years ago.  She was previously represented by another law firm, who had obtained a permanent restraining order against my client's ex-husband.  The ex-husband and my client had been married and living together, when he tied her up and beat her while the children were in the house.  The ex-husband was arrested and he pled guilty to felony domestic violence.  This was the end of the marriage, but only the beginning of a long and drawn out custody battle.

During the marriage, the ex-husband could not keep a job, and by default, he stayed at home and watched the kids while my client worked ten hours a day to support the family.  I will spare you the details, but I can assure you that the ex-husband was not a model father.  In his attempt to gain primary custody of the children, the ex-husband argued to the court that he had a strong pre-existing relationship with the children, and it was in the children's best interests for him to continue as their primary caretaker.  As to the domestic violence charges, the ex-husband claimed that the incident was an anomaly and he had learned his lesson by taking court ordered domestic violence classes.

The child custody evaluator and the court ultimately disagreed with the ex-husband and granted my client sole legal and physical custody.  The restraining order was extended, and the ex-husband was given visitation with the children a few hours during the week. The Judge also ordered that all transfers of the children were to be in the lobby of the local police station. 

In preparation for our trial on the custody issue, I reviewed the transcript of the deposition I took of the ex-husband two years prior.  I was reminded by how disturbed the ex-husband appeared and the amount of anger he demonstrated towards my client.  There was something about his face (especially his eyes) that told me he was crazy and out of touch will reality.  During the deposition, the ex-husband blamed my client for breaking up the marriage and declared that she had baited him into committing domestic violence against her so that she could gain the upper hand in the custody battle.   

At trial, I relied heavily on the deposition transcript while cross examining the ex-husband and he eventually became unglued. The man's insanity and hostility surfaced once again.  By the end of the hearing, the Judge was able to see the real nature of the ex-husband and ordered limited visitation.  The Judge also ordered that the ex-husband attend serious counseling before his visitation could ever be expanded.

At the end of this trial, I had a weird feeling that, in spite of my best efforts and in spite of the fact that we were victorious by convincing the Court to extend the restraining orders and order that the exchanges were to take place inside the lobby of the police department, that the ex-husband still posed a danger to my client.  In view of the subsequent brutal beating the ex-husband committed upon my client, I now know that my intuition was correct.

During the beating the ex-husband repeatedly pounded my client's head against a planter, as their two children watched while sitting in their car a few feet away.  The ex-husband was eventually stopped by a bystander and he was arrested and charged with attempt murder.  The children are in the care of my client's parents, who pray that my client will recover.

Did the system fail? Could this brutal second attack have been prevented?  Was there something else I could have done? I don't know.  However, I have a few suggestions for those who have been the victims of domestic violence and who still maintain contact with the perpetrator because of child custody issues.

1)                  Trust you instincts and don't let your guard down.  If you fear that you may be the victim of domestic violence, don't be shy in seeking all the available remedies with the court.    

  2)                  Consider asking the court to order monitored visitation and that somebody else stand in for you to make the exchanges.

3)                  If possible, bring someone capable of defending you to the exchanges.

4)                  Ask the court for permission to video record the transfers so that you can report back to the court when the perpetrator crosses the line.

5)                  Consider bringing pepper spray, a taser gun, or any other weapon that you can lawfully carry to the exchanges.

6)                  Finally, consider investing in a security system for your house, including surveillance cameras.

As the above case demonstrates, the legal system does not have all the answers and cannot protect victims of domestic violence, in all cases.  In light of this reality, you must take whatever steps you can within the law to protect yourself.    

Written by Donald P. Schweitzer     

People who wish to use Internet services to meet others should seriously consider taking precautions.  Yesterday a convicted sex offender was arrested in Florida and the police have good reason to believe he had something to do with the dissapearance of a 19-year-old college student he met on the Internet. 

The student, Donna Jou, lived with her mother in Rancho Santa Margarita, and was a biology student at San Diego State University.  She was an honor student with excellent grades.  The suspect - John Steven Burgess, was a registered sex offender who lived in Los Angeles.  The two of them met on the Internet and Ms. Jou has not been seen since she was seen with Mr. Burgess on their first date.

Shortly after Ms. Jou’s disappearance, Mr. Burgess conveniently left California, leaving behind a trail of evidence that shows he probably had something to do with Ms. Jou’s disappearance.

This case illustrates how dangerous it can be to meet people on the Internet, however, before I talk about the dangers associated with Internet dating, let me state that I believe the Internet is a great method of meeting people.  Many of my clients that have trouble meeting others (especially my recently divorced clients), look to the Internet for opportunities to meet quality people.  However, given that predators are also using these Internet services, a great deal of precaution should be taken before you agree to meet face to face with somebody you met on the Internet. 

At a minimum, the following three precautionary measures should be taken when meeting somebody face to face for the first time: 

1)      If possible, conduct a background check on the person you are meeting.  There are several Internet sites that should be checked as a rule, such as the registered sex offender’s site;

2)      Do not meet with the person alone on your first date.  Bring a friend or family member with you when you meet your date for the first time; and

3)      Insist on meeting with the person in a public place.

This case also shows us that the people who argue that we should be electronically monitoring sex offenders with global tracking devices are not so crazy after all.  If these people are to be allowed to continue living within our communities, they have to be closely monitored for a significant period of time to ensure they will not re-offend.

Written by Donald P. Schweitzer

Lindsay Lohan arrested again on suspicion of DUI and possession of cocaine after allegedly engaging in a pursuit of a woman in Santa Monica. Attorney Don Schweitzer appears on Fox News and weighs in on the matter and potential consequences of Ms. Lohans actions if found guilty. See the video

While on KNBC, criminal defense attorney Don Schweitzer provides legal commentary on identity theft as a result of the improper disposal of hospital documents.

Click HERE to watch the video.

While on Studio B, criminal defense attorney Don Schweitzer provides legal commentary on the rise of gang violence in America.

Click HERE to watch the video.