Orders Enforceable by Contempt in Divorce Proceedings

Articles by Carina Castañeda 14 July 2014

To hold a person in contempt, the order must be in writing and must also be definitive; otherwise it lacks the certainty required to punish through a proceeding regarded as criminal or quasi criminal. What is “contempt of court?” When a party is ordered to do something and fails to do it, the other party can file a Contempt of Court Order to Show Cause. 

The Judge then determines if the party is in contempt of a court order. If a party is found in contempt, the Judge will sentence as appropriate. The punishment can include, fine, community service and imprisonment. The “accused” is afforded constitutional guarantees, including the right to remain silent and a right to a jury trial.  

However, the federal right to a jury trial applies if the court punishes multiple charges of civil contempt with a jail term longer than six months. Thus, if the court is empowered with the option of imposing a sentence longer than six months, it must permit the defendant to have a trial by jury.

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U.S. Supreme Court: Search Warrant Needed to Search Cell Phones

Articles by Carina Castañeda 29 June 2014

The U.S. Supreme court decided the question whether law enforcement officers can search a cell phones without a warrant after an arrest, as they can with address books and wallets? I wrote an article about this case and here is a brief synopsis of the facts of the case. 

On January 21, 2014, The U.S. Supreme Court heard oral arguments in Navarette v. California  to decide the following issue: “Does the Fourth Amendment (right against unreasonable search and seizure), require an officer who receives an anonymous tip regarding a drunk or reckless driver to corroborate dangerous driving before stopping the vehicle?” 

This California case involved a Mendocino County 911 dispatcher in August 2008 who received a call from another county dispatcher reporting that a silver Ford truck had run another car off the road. The car occupants had anonymously reported that the truck ran them off the road. A police officer saw the truck, pulled it over, searched it, and found four large bags of marijuana and arrested Jose and Lorenzo Navarette for marijuana transportation, possession, and sale. 

The Navarettes filed a motion to suppress evidence of the marijuana, arguing that the anonymous tip was not sufficient to justify the stop because the officer did not independently corroborated the alleged illegal activity (reckless driving). The magistrate denied the motion, and on the appeal, the California Court of Appeal held that the officer had reasonable suspicion to stop the vehicle.  

The U.S. Supreme Court granted certiorari to decide whether an anonymous tip must be corroborated in order to create a reasonable suspicion of criminal activity.  In a landmark decision issued on June 25, 2014, a unanimous court clarified long-standing questions about constitutional protections in the computer age. This decision potentially shifted the debate over cyber-rights in the modern society. 

Chief Justice John Roberts reasoned that except in extraordinary circumstances such as child abduction or a ticking time bomb, the Fourth Amendment’s guarantee against unreasonable search and seizures required police officers to get a warrant prior to examining a cell phone after an arrest. The normally restrained Justice Roberts broadened the idea of privacy in that he states the difference between a wallet and a cell phone is as great as that between “a ride on a horseback” and “a flight to the moon.” 

The mini-computers we carry in our pockets can collect in one place “the sum of an individual’s private life,” Roberts wrote, and now clearly we have a greater expectation of privacy. The fact that new technology makes private life portable makes it no “less worthy of the protection for which the Founders fought.” By invoking the vision of the founders of the country clearly shows the Justices embraced the strong vision of digital privacy.

As we all know and more of our personal and private lives become “portable,” the issue of whether the Fourth Amendment protections will continue to be potent tools against intrusion remains.  The lower courts are now considering whether data collection by the National Security agency violates privacy protections.  While this case addresses only Fourth Amendment which applies to government searches, this ruling sets the tone for coming legal battles over commercial and workplace privacy issues.

Any questions, please feel free to contact me directly at 310-601-7144 or email me at .

Child Visitation Law

Articles by Carina Castañeda 23 June 2014

In making a child custody order between parents, the court must also grant the other (noncustodial parent) “reasonable visitation rights” unless it is shown that visitation would be “detrimental to the best interest of the child” [CA. Family Code (FC) § 3100(a)] 

Because of the importance placed on “frequent and continuing contact” with both parents, an order withholding a parent’s visitation privileges can only be issued upon a finding that any form of visitation would be detrimental to the child.

The court has broad discretion in defining a parent’s “reasonable visitation” rights and establishing a visitation schedule. Subject to a few statutory limitations, the basic tenet is the child’s best interest.

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Child Abduction – Violation of Custody or Visitation Right

Articles by Carina Castañeda 15 June 2014

It is a crime when you take or conceal a child and maliciously deprive another person of his/her right to custody or right to visit that child. In California, Penal Code (PC) Section 278.5 is the controlling law. This offense may be charged as either a misdemeanor or a felony, in the latter case subjecting you to up to three years in the state prison.

Penal Code Section 278.5 prohibits abducting a child in violation of a custody order or visitation right.  You violate this law when you maliciously take, entice away, keep, withhold or conceal a child from one of the child’s lawful custodians. That is, someone who retains physical care, custody and control of the child or from someone who, at the time of your actions, had a right of visitation with the child.

Although this charge is related to Penal Code Section 278 (child abduction laws), Penal Code Section 278.5 differs in three ways.

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How A Criminal Domestic Violence Case Impacts Child Custody/Visitation in Family court

Articles by Carina Castañeda 09 June 2014

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 he 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 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.

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