Articles 28 February 2015
California Penal Code (PC) 273.6 makes it a crime to violate the conditions set forth in a restraining order (RO) and used sometimes interchangeably as a “protective order” (PO). This usually occurs when a judge issue a legal restraining order and you intentionally ignore the terms of the order.
Generally, a PO is a court order designed to protect a person(s) from harassment, physical abuse, stalking or threats by the named person in the order. The restrained party must stop all forms of contact—personal contact (telephone calls, texts, emails, social network sites or any type of surveillance).
There are 4 types of PO the court issues: (1) domestic violence restraining order (protect individuals from abuse suffered from a person whom he/she shares an intimate relationship with); (2) civil harassment restraining order (protect people not considered “intimate” such as neighbors, co-workers); (3) elder or dependent adult abuse protective order (protect those 65 and older and those who are between 18 and 64 who suffers from certain disabilities); (4) workplace violence restraining order (requested by an employer to protect an employee).
Articles 22 February 2015
There are many types of abuse, and a family law court shall take all of them in consideration. There are generally eight types of domestic violence/abuse: physical, intimidation, child abuse, verbal and emotional, social isolation, religious, male/female privilege (diminishing the victim’s authority and preventing him/her from contributing to the relationship and sexual abuse.
If you are in the process of divorce and there are minors involved, issues of custody and visitation will be at issue. The court will consider your domestic violence case if, in the past five years (1) a parent was convicted of domestic violence against the other parent, (2) any court has decided that one parent committed domestic violence against the other parent of the children (which means that court’s previous issuance of a restraining order in your case is relevant in your custody case).
The judge must follow the law in deciding the issues of physical and legal custody. In California, Family Code (FC) Section 3044 is the seminal rule. If the court finds that that a party seeking custody of a child has perpetrated domestic violence against the other party seeking custody of the child or against the child or the child’s siblings within the previous five years, there is a rebuttable presumption that an award of sole or joint physical or legal custody of a child to a person who has perpetrated domestic violence is detrimental to the best interest of the child.
Articles 15 February 2015
I have a client who came to me after being represented by a prior family attorney in his divorce case. After one year and having lost custody of his children, this client came in to my office asking me to take over the case. This client wanted a payment history since he will need them for trial. The attorney responded by saying “he still owes him money and to stop asking them to work for free.” Keep reading and you will see that this attorney’s response could detrimentally affect him if this client seeks the assistance of the California State Bar.
I have also had clients come in my office after they fired their prior attorney and want me to represent them in an ongoing case. Many will have no documents about their case and I will advise them to request from their prior attorney their client file. Most will ask me if they can do that. The answer is yes.
Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interest, including but not limited to surrendering papers and property to which the client is entitled. The lawyer may only retain papers relating to the client to the extent permitted by law.
Articles 08 February 2015
When parents get divorced and cannot agree who gets the children, it is up to the judge to make the ultimate decision. Prior to January 1, 2012, California Family Code Section (FC) 3042 only required the court to consider and give due weight to a child’s preference regarding custody if the child is of sufficient age and capacity. The child must also be able to form an intelligent opinion on the issue of custody.
After January 1, 2012, AB 1050 amended FC 3042 to add that the just must also consider such a child’s wishes regarding visitation. This amendment further adds that a child who is at least 14 years old must be allowed to directly address the court regarding custody and visitation. This can only be prevented if the judge finds that it would not be in the best interest of the child and in which case, the judge must states his/her reasons on the record.
The amended FC 3042 (f) adds that a child’s attorney, evaluator, mediator, or investigator (who is submitting a custody or visitation recommendation) must tell the judge if the child wants to address him/her directly or if the parents or their counsel would like to divulge the child’s wishes.