Monthly Archives: October 2015

What Are the Consequences of False Accusations of Child Abuse during custody Proceedings?

In the reverse situation, i.e., when a parent is found guilty of child abuse, the consequences can be harsh. His or her custody rights can be limited. In extreme cases, visitation can be denied. In other cases, visitation can only take place under supervision.Money, scales of justice

But what happens when the opposite situation takes place? When one parent falsely accuses the other of child abuse, merely to gain leverage in a custody dispute?

The answer is spelled out in California Family Code section 3027.1. That section provides as follows:

3027.1.  (a) If a court determines, based on the investigation

described in Section 3027 or other evidence presented to it, that an

accusation of child abuse or neglect made during a child custody

proceeding is false and the person making the accusation knew it to

be false at the time the accusation was made, the court may impose

reasonable money sanctions, not to exceed all costs incurred by the

party accused as a direct result of defending the accusation, and

reasonable attorney’s fees incurred in recovering the sanctions,

against the person making the accusation. For the purposes of this

section, “person” includes a witness, a party, or a party’s attorney.

In lay terms, this means that a person who has been falsely accused of child abuse, and who successfully defended him or herself against said accusations, can go after the person or people who made the accusations for the cost of his or her defense, or , put differently, for his or her attorneys fees. These are known as “sanctions.”  In addition, that same person may also recover attorneys fees incurred for the cost of bringing the motion for sanctions.

The people who are usually responsible for paying the attorneys fees or sanctions include the party who made the false allegations and his or her attorney.
In order to be able to recover one’s fees, that person must have had to defend his or herself against the accusations and have won the lawsuit.

The motion for sanctions must be filed before the earliest of 60 days after the judgment exonerating him or her is served, OR 180 days from the entry of such judgement.

Several months ago, I handled a matter which fell under the perview of 3027.1, for a client who lives in another state. The opposing party, who lives in California,  accused my client of domestic violence against their child while the child was in her custody. I requested that the court order a “minor’s interview.” That is when a court appointed expert, usually a PhD psychologist, interviews the minor, and testifies in place of the minor. I felt confident making this request. After having been  in practice a number of years, one gets a sense of people. I was certain that my client had not abused her child.

Sure enough, the expert refuted all of the claims of the opposing party. The Judge dismissed the DVPA  claim for lack of substantial evidence. Per statute, I later filed a motion for attorneys fees within 60 days after the judgment was entered.  At the hearing for fees, the Judge ordered the opposing party to reimburse my client for attorneys fees she incurred in defending the allegations of domestic violence, for the fees incurred in preparing the motion for santions under 3027.1, and for travel expenses incurred in coming to California to defend the allegations.

The moral of the story is, never file claims of domestic violence in order to get leverage in a custody action. It could prove to be very costly!

 

The Goodwill Of A Professional Practice In A California Divorce

California is a Community Property State. That means that, absent certain exceptions, all doctor-dentistproperty that is acquired during marriage will be divided equally amongst the parties when the marriage is dissolved. Property that was inherited or acquired before marriage, will continue to be the separate property of the acquiring spouse. This rule applies not only to assets, but also to a business or professional practice which was set up and in operation before the parties were married. However, the community may be entitled to a credit to the extent that the value of the business increased during the time that the parties were married and living together. This means that the non working spouse of person who has an ownership interest in a professional practice, e.g., the wife of a dentist or lawyer, may be entitled to a portion of the monetary value of the practice of her spouse in a California divorce proceeding.

There are several methods which are used to determine the value of a professional practice in a California Divorce action. This article will focus on good will and when it would benefit the working and non working spouse.

Good will has been defined as the expectation of continued public patronage. It has also been defined as the expectation that old customers will continue to patronage the business or practice in the future. This is usually based upon the unique skill, reputation, and celebrity of the owner spouse. An example of good will would be a medical practice of a renowned surgeon, who has developed a reputation of getting excellent results. Courts look at the income of the earner spouse on the date of separation when determining the good will of a professional practice. This method of evaluation would benefit the non-working spouse of a professional when the parties were married for a long time, and the bulk of the practice was built up during the time that the parties were married.

Conversely, this method may not be good for a non-earner spouse who was in a short term marriage, and where the good will of the practice was established before the parties were married. For example, in Marriage of Rivers (1992) 130 Cal App 3rd 138, at page 150, a California court held that when ‘a husbands skill, experience and reputation were acquired 40 years prior to a relatively short term marriage,’ the court would not conclude that the good will of the practice was enhanced primarily as a result of community efforts.

The efforts of the working spouse, and the time frame in which those efforts were extended, are a key factor in determining which spouse will benefit from this method of valuation. The efforts of the working spouse are considered to be a community asset if extended when the parties were married. Conversely, efforts extended before the parties were married, are considered to be a separate property asset. Thus, when selecting the good will method to evaluate a professional practice, the factors to consider are the length of the marriage, the extent to which the value of the business increased during the time the parties were married, and, if the increased value is attributable to the efforts and reputation of the working spouse.