Saturday, June 13, 2020

DOMESTIC VIOLENCE CRIMES, DV TRO CASES, AND CUSTODY--HOW IS IT AFFECTED



Domestic Violence Crimes Examples............. Most of the ones immediately below, can possibly
cause you to be charged criminally, it likely would depend on the exact circumstances and the possibility that you already have a criminal record..............
 The enumerated Penal Codes below are found on the Shouse criminal law site online, these are NOT all that one could be convicted of, but just a named few.............

  • 3.1. Penal Code 273.5, corporal injury to a spouse or inhabitant
  • 3.2. Penal Code 243(e)(1), domestic battery
  • 3.3. Penal Code 273d, child abuse
  • 3.4. Penal Code 273a, child endangerment
  • 3.5. Penal Code 270, child neglect/failure to provide care
  •  Penal Code 653.2, posting harmful information on the internet
  • Penal Code 653.2 PC – Electronic communication device; prohibited distribution or publication of personal identifying information; definitions. (“(a) Every person who, with intent to place another person in reasonable fear for his or her safety, or the safety of the other person's immediate family, by means of an electronic communication device, and without consent of the other person, and for the purpose of imminently causing that other person unwanted physical contact, injury, or harassment, by a third party, electronically distributes, publishes, e-mails, hyperlinks, or makes available for downloading, personal identifying information, including, but not limited to, a digital image of another person, or an electronic message of a harassing nature about another person, which would be likely to incite or produce that unlawful action, is guilty of a misdemeanor punishable by up to one year in a county jail, by a fine of not more than one thousand dollars ($1,000), or by both that fine and imprisonment. 
  • (b) For purposes of this section, “electronic communication device” includes, but is not limited to, telephones, cell phones, computers, Internet Web pages or sites, Internet phones, hybrid cellular/Internet/wireless devices, personal digital assistants (PDAs) , video recorders, fax machines, or pagers. “Electronic communication” has the same meaning as the term is defined in Section 2510(12) of Title 18 of the United States Code. 
  • (c) For purposes of this section, the following terms apply: (1) “Harassment” means a knowing and willful course of conduct directed at a specific person that a reasonable person would consider as seriously alarming, seriously annoying, seriously tormenting, or seriously terrorizing the person and that serves no legitimate purpose. (2) “Of a harassing nature” means of a nature that a reasonable person would consider as seriously alarming, seriously annoying, seriously tormenting, or seriously terrorizing of the person and that serves no legitimate purpose.”)

Domestic violence TROs are not exceptionally difficult to obtain, and Judges know this.
 Many parents actually make up facts just to get the DV TRO in the first place?
        Obviously things like child abuse, elder abuse, child endangerment and neglect might actually cause you to lose your kids, or worse; however, many domestic violence issues involve things such as posting private material, on the Internet; such conduct might not necessarily get you into jail, but it would not be something judges like to see?

 Looking at the DV TRO forms, one can obviously see that MANY things can rise to the level of "domestic violence"...

IF YOU HAVE A DOMESTIC VIOLENCE TRO CASE AND YOU DON'T BELIEVE YOU
CAN OBTAIN A TRO, CONTACT US. WE WILL BE HAPPY TO GIVE AN OPINION.

BE AWARE THAT IF A CRIMINAL PROTECTIVE ORDER IS GRANTED, WHICH IS DONE BY THE DISTRICT ATTORNEY'S OFFICE, THIS WILL LIKELY MEAN CRIMINAL CHARGES HAVE BEEN FILED. IN MANY CASES, THE DISTRICT ATTORNEY DOES NOT FILE CHARGES, HOWEVER THERE ARE ENOUGH WHICH ARE FILED, WHICH CAN ESSENTIALLY RUIN YOUR CAREER.

MAVERICK PARALEGAL SERVICES NOR CAL AFFORDABLE HELP

Oct 19, 2019 - We can provide assistance with family law issues such as motions for modification, raise or lower support, change your current visitation ...

Affordable Paralegal Sacto/Roseville 916.877.5297 For Butte County call ... Sacto, Chico/Oroville 45% In some cases we may be able to provide Limited Scope Attorney Services  See this link for information on how it works, it may be right for your case..... .https://www.courts.ca.gov/1085.htm





Monday, January 20, 2020

Limited Scope Services May Help Your Case-Learn About It Now!

There are many cases that could likely benefit from Limited Scope Services, which basically means that an attorney will help on certain issue or issues only, and not the entire case. California courts already have the form for this in Family Law.




But, there are many times when limited-scope may not be a good choice, like when:
  • Your case has a lot of technical issues or is very time-sensitive. You can read about some of these cases by clicking “Types of cases where lawyers are necessary”.
  • You do not have the time to put into educating yourself and effectively handling many of the tasks that you need to do.
  • There is a lot of stake in your case, so if you lose, you could lose your home, lose rights to see your children, or owe a lot of money.
In making decisions about these issues, remember that the lawyer has the education and experience to work on the more technical parts of your case, guide you throughout the court process, and spot important legal issues that you may not see on your own.
You and the limited-scope lawyer will be working as a team, but it is your case. If you and the lawyer cannot agree on who should take on which parts of the case, or on decisions that need to be made in your case, you should listen to what the lawyer says.  If the lawyer feels strongly that the course you want to take is not in your best interests, listen carefully to the reasons why he or she is recommending you do something differently.
Read much more at link below, as Limited Scope Services May Help Your case, and hopefully you won't suffer as much.

https://www.courts.ca.gov/1085.htm

Thursday, December 26, 2019

Placer, Sacramento, Antelope and More.....


FAMILY LAW, CIVIL, MEDIATION, DISPUTED TIME SHARE WITH KIDS, AND MUCH,MUCH MORE!!
Custody hearings, mediation, and Requests for Orders, DV TRO cases,etc. we usually can help with.

FATHERS' RIGHTS, Dads that have gotten bad deals in mediation--yes--we have experience in all types of mediation which is court ordered....

NOT married, and ignored in custody hearings by not being served?  YES, we can help with these issues as well!









Tuesday, December 10, 2019

Difficult Family Law Issues--Contested Motions and Hearings


GET HELP BEFORE IT'S TOO LATE-- LOOK AT THIS STORY SO IT WON'T HAPPEN TO YOU!!!

Litigants in family law for California represent at least 70% or more of the caseload in
Family law hearings. Judges routinely become weary of handling these cases, as many
litigants are not able to clearly state or argue their cases.

 In particular, community asset
cases may detrimentally suffer.  We have seen one case north of Sacramento, end up in
a disaster where the wife had a $100,000 down payment (cash) on a house she paid about
$240,000 for.....this was a separate property.


Wife made payments even while married so she started out with a high equity. At time of
divorce her equity was zero and the house had a value of possibly $165k. The judge (who
was a commissioner GAVE THE HOUSE AWAY TO THE HUSBAND and forced the wife
to sign over the title??? 
Not only is this improper, what should have been done was to
allow the wife to seek (a) time to (b) obtain special financing or (c) to modify the loan or
to (d) borrow or restructure or (e) take possession of house and rent out all the rooms.

In NO CASE should the HUSBAND have been granted the house outright. A challenge
post judgment was made and Judge denied it, claiming that Wife was saying that Judge
was "wrong" (which he was) and Judge claimed he could do this because he could "equalize"
the financial situation as he saw fit. Although judges have discretion on this, they do NOT
have discretion to simply give away a property at that time without offering a potential
solution first. All family law specialists know this, and that would not have happened if
the client had been represented.

A claim for separate property reimbursement which normally would come off the top
of any property that it can be traced to (community usually) is the first step--but the property
usually must have equity. However since real estate equity will obviously vary and change
by the seasons, normally we do not just GIVE IT AWAY to the other party.

If you ever see this situation, make sure either 

you or whoever has 

the predicament does NOT

allow any commissioner or Judge to just

give away that property to the other person!!!!

Saturday, December 7, 2019

Help with Family Law Issues and Documents

We can provide assistance with family law issues such as motions for modification, raise or lower support, change your current visitation situation, or possibly Domestic Violence issues.  All of our work is attorney-supervised.

For more information on attorney, see https://affordablefamilylawattorneychico.blogspot.com/  Attorney has worked in family law for
many years and has helped many clients on their cases. This includes cases from Sacramento, Chico, Roseville and Placer County, Elk Grove and more.


Monday, August 26, 2019

When Custody is Given to an Abuser.....Research Cases

FVAP Custody Case Law  http://fvaplaw.org/custody-case-law/

Below is a list of FVAP’s published cases regarding child custody. These cases are binding legal precedent in all trial courts in California, and can be used to support domestic violence-related cases in trial court. But please note: This is not a comprehensive list. Rather, it is a list of FVAP’s published successful custody appellate cases since 2012.
Laws often change. Reviewing this list is not a suitable substitute for legal research specific to your case. Additional legal research should be done before citing any case law in trial court. While a decision below may be used to support your (or your client’s) case in court, it may not be the best decision to use in your particular case, and/or there may be additional cases that you should cite. This list does not constitute legal advice, and does not create an attorney-client relationship between you and FVAP.
To read a decision, click on the case name. See our Legal Resource Library for toolkits, tip sheets, court templates, and other custody resources for survivors.

When custody is granted to an abuser:

In re the Marriage of Fajota (2014) 230 Cal.App.4th 1487.  The Court of Appeal ruled that the trial court made two mistakes (twice “abused its discretion”) by awarding joint legal custody without applying Family Code section 3044, which says courts should almost never award joint legal custody to a parent who has committed domestic abuse against the other parent in the past five years, because it would be detrimental to a child’s best interest. This presumption against awarding joint custody applies when there has been a finding of abuse, even if a request for restraining order has been denied. Until the abuser rebuts (overcomes) the presumption against awarding joint custody, the presumption must be applied every time a court considers custody, even if the custody order will only be temporary. (FVAP litigated this appeal, which the court published.)
Jaime G. v. H.L. (2018) 25 Cal.App.5th 794  Under California law there is a presumption against awarding any custody to a domestic abuser. This means the court must give the survivor sole legal and physical custody, unless the abuser shows the presumption has been overcome, or “rebutted.”  When deciding whether the presumption has been rebutted, the court must consider 7-factors which are designed to help the trial court consider the effects of domestic violence and whether it will reoccur.  The presumption and rebuttal factors are found in California Family Code section 3044.  The 7 rebuttal factors are: best interest of the child(ren), successful completion of a batterer’s intervention program, successful completion of alcohol or drug counseling – if appropriate, successful completion of a parenting class – if appropriate, whether the perpetrator is on probation or parole and complying with the terms and conditions, whether the perpetrator is under a restraining order and has complied with the terms and conditions, and whether the perpetrator has committed any further acts of domestic violence.
The opinion in Jaime G. establishes that a trial court cannot award any type of custody to a domestic abuser without first making findings in writing or on the record (orally) about each of the seven-factors.  It is not enough just to find that joint custody is in the best interest of the child, the first factor.

When there is a recent restraining order against the abusive parent:

Christina L. v. Chauncey B. (2014) 229 Cal.App.4th 731. The Court of Appeal ruled that the trial court is obligated to apply the Family Code section 3044 in cases when there was a recent restraining order issued against a parent. Code 3044 is the “rebuttable presumption” against granting custody to an abuser, which says a trial court should err on the side of not giving child custody to a parent who was found to have committed domestic abuse. (FVAP litigated this appeal and obtained publication.)

When a parent who committed domestic abuse is granted 50/50 child visitation:

Celia S. v. Hugo H. (2016) 3 Cal.App.5th 655. After years of violent abuse from her ex-husband, the trial court granted our client a restraining order. At the same time, the court granted a 50% visitation timeshare of her children, meaning both parents had the children for about half of the time. This order effectively got around the legal presumption against awarding joint custody to an abuser (Family Code 3044) by calling the arrangement “sole custody” to our client, and “visitation” with the parent who had committed abuse. The Court of Appeal disagreed with the trial court, and confirmed that a 50/50 visitation timeshare order is in fact the same thing as a joint custody order. Therefore, the Court of Appeal said, the trial court committed an “abuse of discretion” by awarding the 50/50 visitation timeshare without applying the legal presumption of Family Code 3044, which says courts should err on the side of not granting custody to a parent who was found to be abusive. This case clarifies that the Family Code 3044 legal presumption (against awarding joint custody to a parent who committed domestic abuse) remains in effect for 5 years, even if a restraining order against the abuser has expired. This is also the first published opinion to confirm that Family Code section 3011(e)(1) requires the trial court to state, in writing or on the record, its reasons for deciding that a parent who committed abuse has overcome the section 3044 presumption, and should be awarded joint custody. Thus, the appellate court’s opinion clarifies the interplay between section 3044 and section 3011. (FVAP litigated this appeal and obtained publication.) Pro bono co-counsel: Gibson Dunn & Crutcher, LLP, and Legal Aid Society of Orange County

Out-of-state findings of domestic violence in custody cases:

Ellis v. Lyons (2016) 2 Cal.App.5th 404. This is the first California case to clarify that an out-of-state court’s finding of domestic violence triggers California’s presumption against granting custody to an abuser, under Family Code section 3044. Importantly, this case also confirms that if a trial court relied, at all, on California’s preference that both parents have “frequent and continuing contact” with their children to rebut (overcome) the 3044 presumption, then the decision is automatically “infected with legal error,” and must be sent back to the trial court for a new custody hearing. This is because the preference that both parents have “frequent and continuing contact” with their children is not an allowable reason for rebutting (overcoming) the 3044 presumption, because California recognizes that domestic violence is detrimental to the health, welfare, and safety of children. (FVAP obtained publication)

Modifying out-of-state custody orders after fleeing abuse:

Keisha W. v. Marvin M. (2014) 229 Cal.App.4th 581. The Court of Appeal ruled that California trial courts can modify (have jurisdiction to modify) another state’s custody order at the request of a survivor of domestic violence who fled to California because of abuse that happened in the other state. This is because, under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), California can become the legal “home state” of a child within 6 months of the abused parent filing for a restraining order and custody order in California. (FVAP litigated this appeal and obtained publication.)

International “child abduction” by non-abusive parent:

Noergaard v. Noergaard (2015) 244 Cal.App.4th 76. The Court of Appeal ruled that, in an international child abduction case where it is alleged that the child faces “grave risk” of harm if returned to the home country, there must be a fair hearing where the trial court considers any relevant evidence about abuse when making any decisions about important issues. The trial court in this case failed to provide this fair hearing to the mother, who alleged that spousal and child abuse by the father made it unsafe for them to return to the country. The Court of Appeal overturned the trial court’s decision and confirmed that, where there is evidence that the status quo in the home country was abusive, the survivor’s and children’s speedy return to the home country should not be the goal for California courts. (FVAP filed an amicus (friend-of-the-court) brief and obtained publication)

When custody is granted to an abuser with a prohibited reason for custody rulings:

In SY v. Superior Court, 29 Cal. App 5th 324 (2018) the Court of Appeal ruled that English language fluency cannot be used as a reason to grant custody. English language fluency now joins 6 other prohibited reasons to grant custody including: race, religion, disability, sexual orientation, relative economic position, and working motherhood. FVAP’s successful work to pass California legislation, AB 2044, which went into effect on January 1, 2019, nullified many of the parts of the decision that we disagree with. (FVAP litigated this appeal and obtained publication.) Pro bono co-counsel: Horvitz & Levy, Legal Aid Society of San Diego)