Monthly Archives

July 2018

Jul 27
0

Moving Away With Your Child

By | Child Custody & Visitation, Move-away | No Comments

Generally, when one parent desires to relocate to another city, county, state or country with their child, he or she needs to obtain the consent of the other parent. If the non-moving parent does not consent, the moving parent can request a move-away order from the court.

MOVE AWAY REQUEST WHEN ONE PARENT HAS SOLE OR PRIMARY CUSTODY

Generally, a parent who has sole or primary physical custody has a presumptive right to move away with a child. That is, he or she does not have to prove to the court the move is necessary.

However, the non-custodial parent has the right to challenge the custodial parent’s desire to move away. If the non-custodial parent challenges the move, that parent must prove to the court it would be detrimental to the child if the custodial parent were allowed to relocate.

If the non-custodial parent is able to show the relocation is not in the child’s best interest, he or she may then request a change in custody.

MOVE AWAY REQUEST WHEN BOTH PARENTS SHARE JOINT CUSTODY

If the parents share joint physical custody, the moving parent must show the court the move is in the child’s best interest—if the other parent opposes the move.

FACTORS THE COURT CONSIDERS IN A MOVE-AWAY REQUEST

The factors the court considers in determining whether the relocation is in a child’s best interest or if the child would suffer detriment from the relocation (and in turn, whether custody should be modified) are as follows:

  1. Child’s age
  2. Child’s relationship with both parents
  3. Distance of the move
  4. Reasons for the proposed move
  5. Extent to which the parents are sharing custody
  6. Child’s interest in stability and continuity in the custodial arrangement
  7. Wishes of the child (if they are mature enough for such an inquiry to be appropriate)
  8. Relationship between the parents:
  9. Their ability to communicate and cooperate effectively; and
  10. The willingness to put their child’s interest ahead of their own.

In a move-away case, it is important for a parent requesting the move-away to frame the request in a way that will show the move away is in the child’s best interest and will not frustrate the non-custodial parent’s relationship with their child.

When opposing a move-away request, the parent would need to show the move would be detrimental to their child (e.g., the move would frustrate his or her ability to have frequent and continuing contact with the child).

FREE CONSULTATION

Move-away cases are among the most complex of all family law matters, and the consequences of a court’s ruling can have a profound impact on both the parents and child.

Whether you are the moving or non-moving parent, contact us today for a free confidential phone consultation so we can explain the process and explain your options.

Jul 27
0

How to Protect Yourself from an Abusive Partner

By | Domestic Violence | No Comments

CALL 9-1-1 IN CASE OF AN EMERGENCY

In an emergency situation, do not hesitate to call “9-1-1” to request immediate assistance from law enforcement. If the circumstances permit it, law enforcement can issue an Emergency Protective Order (referred to as “EPO”).

The EPO is not a long-term order for protection, but it will allow you some time to then submit a request to the Family Court for further protection. A domestic violence abuser can be prosecuted by the District Attorney’s Office, but such action is separate and apart from the relief you can seek in Family Court. 

FAMILY LAW REMEDY FOR DOMESTIC VIOLENCE

The family law remedy for acts of abuse is a Domestic Violence Restraining Order (referred to as “DVRO”). A family law judge can issue a DVRO based on acts of:

·      Physical violence

·      Threats of violence

·      Sexual assault

·      Destruction of personal property

·      Harassment

Harassment comes in many forms such as emotional and verbal abuse, disturbing your peace, stalking and even excessive phone calls, emails and/or text messages.

YOU MUST MAKE AN AFFIRMATIVE REQUEST TO THE COURT FOR A DVRO

A victim of domestic violence must submit an application to the Family Court in order to request protection. You can submit a request to the court for a DVRO with or without notice to the abuser. Notice is favorable, but not required (as notice to the abuser could place the victim in further danger).  

NO FILING FEE

 The Court does not charge a filing fee for a DVRO application or a response, if one is filed. If you intend to subpoena witnesses to come to the court hearing, statutory and/or expert witness fees will apply, unless waived by the Court.

WHAT IS YOUR RELATIONSHIP TO YOUR ABUSER?

Abuse is considered domestic violence when a certain relationship exists (or used to exist) between the victim and the abuser.

A DVRO would be the appropriate remedy when the victim and abuser are, or have been, in an intimate relationship such as:

·      Marriage

·      Domestic partnership

·      Dating or used to date

·      Living or used to live together

·      Have a child together

A DVRO would also be the appropriate remedy is when it involves a relationship with a parent, grandparent, grandchild, sibling, stepparent or an in-law (although an in-law must be through your current marriage and not a prior marriage).

ALTERNATIVE REMEDIES FOR ACTS OF VIOLENCE

If your relationship does not fit within one of the categories above, the appropriate remedy may instead be a Civil Harassment Restraining Order, Dependent Adult Restraining Order, Elder Abuse Restraining Order or Workplace Violence Restraining Order.

Orange Coast Family Law specializes in Domestic Violence Restraining Orders only. If you are unsure about whether your relationship falls within one of those that qualify for a DVRO, contact us to inquire.

THE COURT HEARING PROCESS

At the initial court appearance, there is not an actual court hearing where testimony is taken. The judge will generally make a ruling to grant or deny a request for a DVRO based on the documentation submitted.

The court is looking to see if there is “reasonable proof of a past act or acts of abuse”. While it is helpful to have documentary evidence in support of your request for protection (such as a police report, pictures or text messages), it is not required. The judge can make a ruling based on a victim’s testimony or declaration alone.

If the judge denies your request for a DVRO at the initial stage of the process, the judge is required to state the reasons for doing so in the order. If orders are made (in the form of aTemporary Restraining Order, also referred to as a “TRO”), in part or in full, you will receive those court orders, in a certified form, on the day the orders are made.

You should keep a copy of your TRO with you at all times and extra copies at home, in your car, at work, and at your child’s daycare or school. You should also provide a copy to your local law enforcement agency.

After the initial stage of the DVRO process, the court will set a return court hearing date within a 21-day time window.

There are statutory timelines that apply to service of the TRO if the responding party was not in court and served with the TRO by the courtroom deputy. Law enforcement can assist in meeting the service requirement. Alternatively, you can use a process server or have someone you know (who is age 18 or older) assist with this step.

TYPES OF ORDERS INCLUDED IN A TEMPORARY RESTRAINING ORDER (“TRO”)

The types of orders the court can include in a TRO are the following:

1.     Stay-away orders (from you, your residence, school, place of work, etc.) The court can extend the stay-away orders to family or household members specifically named in the order.

2.     Move-out order. The court can order one party to move out of the common dwelling.

3.     Order for rights to a mobile device and wireless phone account. The court can direct a cell phone provider to transfer the responsibility for the bill and the right to the telephone number to the requesting party to protect from cancellation of the phone account by the abuser.

4.     Order to turnover firearms. An abuser who is under such an order cannot own, possess, purchase, attempt to purchase or receive a firearm or ammunition for the duration of the order.

5.     Personal conduct order. The court can order an abuser to not “molest, attack, strike, stalk, threaten, assault (sexually or otherwise), batter, harass, telephone, destroy the personal property of, contact (either directly or indirectly, by mail or otherwise), come within a specified distance of, or disturb the peace of the other party.”

6.     Order to record unlawful communications.

7.     Order regarding care and possession of an animal. 

8.     Order for maintenance of insurance coverage.

9.     Property control orders. This includes use, control and possession of named items of property.

10.  Property restraint orders. This is only an option if the two parties are married or registered domestic partners.

11.  Debt payment orders.

12.  Child custody and visitation orders. These orders can include supervised visitation orders or a “no visitation” order until the next court hearing.

The following orders can be requested in your application for a DVRO, but will not be ordered until after a noticed hearing (meaning after the abuser has been served and provided with an opportunity to appear and respond at the return court hearing):

  • Child support
  •  Spousal support
  • Attorney’s fees and costs
  • Batterer Intervention Program

THE EVIDENTIARY HEARING

The evidentiary hearing is basically the return hearing date on your DVRO application. The judge will revisit your application, review any response filed, consider updates either through testimony or a further written declaration, hear from witnesses and receive exhibits relevant to the proceeding. Documentary evidence is not required, but extremely helpful to the judge in corroborating the allegations made.

Lack of documentary evidence should not deter you from seeking a DVRO if you need protection. The judge will hear, review and consider the facts on a case-by-case basis.

A “permanent” (until expiration or further order of the court) DVRO can be issued for a period of up to 5 years.

FREE CONSULTATION

The process for requesting a DVRO or responding to one can be overwhelming and paperwork intensive. We are experienced in dealing with domestic violence issues and can help ease an already very stressful and scary process.

Contact us for a free, confidential phone consultation to discuss the process in further detail. We can also provide you with referrals to domestic violence shelters if needed.

Jul 23
5

Divorcing a Narcissist

By | Divorce | No Comments

Narcissism is a psychological disorder that can create an emotionally abusive and toxic environment and cause devastating effects on a marriage.

According to the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, narcissism is defined as a “pervasive pattern of grandiosity (in fantasy or behavior), need for admiration, and lack of empathy… as indicated by five (or more) of the following:

1.        Has a grandiose sense of self-importance.
2.        Is preoccupied with fantasies of unlimited success, power, brilliance, beauty, or ideal love.
3.        Believes that he or she is “special” and unique and can only be understood by, or should associate with, other special or high status people (or institutions).
4.        Requires excessive admiration.
5.        Has a sense of entitlement.
6.        Is interpersonally exploitative (i.e., takes advantage of others to achieve his or her own ends).
7.        Lacks empathy: is unwilling to recognize or identify with the feelings and needs of others.
8.        Is often envious of others or believes that others are envious of him or her.
9.        Shows arrogant, haughty behaviors or attitudes.”

Narcissist spouses believe their marriage revolves around them and expect their spouse to plan his or her life around their needs.

They are extremely controlling and manipulate situations to their advantage. Any indication of losing control makes them feel insecure, and they are prone to anger or violent outbursts when things do not go their way. Challenging their authority bruises their ego, so they become angry when met with opposition and are hypersensitive to criticism.

Abusive behavior also goes hand-in-hand with narcissists. While they may not always be physically violent, narcissists can be verbally and emotionally abusive as well as exceedingly controlling.

Because of the difficulty in curing narcissism (since narcissists do not believe they have a disorder), you can choose to remain in a marriage revolving around a narcissist’s needs and wants—or you can choose to divorce your narcissist spouse and take back control of your life.

DIVORCING A NARCISSIST

What happens when you decide you no longer want to be married to a narcissistic spouse? The hopes of obtaining an amicable divorce are unfortunately slim to none because a narcissist will most likely make the divorce process as difficult and contentious as possible.

Because narcissists are self-centered and unable to empathize or accept responsibility, they will put the blame on the other spouse for their marital problems and will perceive themselves as the victim (even while bullying the other spouse). Since a narcissist believes he or she is never wrong—it will always be the other spouse’s fault or shortcoming as to why there has been a breakdown in the marriage.

HIGH-CONFLICT DIVORCE

Divorce in general can be a contentious process. When you attempt to divorce a narcissist, the proceeding tends to get quite heated. This is because a narcissist spouse will attempt to manipulate every issue to his or her advantage and will view any action by the other spouse as a challenge against his or her authority.

It is common for a narcissist to engage in the following conduct to escalate conflict or frustrate the divorce process:

1.     Refuse to engage in negotiation to settle the issues.
2.     Fail to comply with agreements and/or court orders or listen to the judge and/or their attorney because they believe they are above the law.
3.     Withhold financial information and documents.
4.     Attempt to hide their assets.
5.     Refuse to pay support.
6.     Use their children as emotional pawns.
7.     Increase litigation costs with delaying tactics.

It is also common for a narcissist to issue threats such as:

1.        If you move forward with this divorce, you and the kids will be out on the streets.
2.        I’ll make sure you never get the kids.
3.        I’ll stop working and you’ll be the one paying me support.
4.        I’ll fight you with everything I have, even if it means going broke.

In short, a narcissist spouse will not act reasonably, do what is best for the children, volunteer information, attempt to settle the issues amicably or comply with orders. Instead, narcissists will make the process as difficult as possible because they believe themselves to be the one who’s been wronged.

FREE CONSULTATION

Divorcing a narcissistic spouse takes patience and perseverance. We are experienced in dealing with narcissist spouses and have helped many clients whose spouses have exhibited high narcissistic traits.

We understand how a narcissistic spouse operates, so we can help you protect your rights, guide you in how to communicate with your narcissistic spouse in a more productive way and keep your emotions under control and request court orders on your behalf that minimize opportunities for manipulation by the narcissist spouse.

Contact us today for a free, confidential phone consultation so we can discuss your situation and advise you about the options available to you.

Jul 23
1

How to Deal with an Alienating Parent

By | Child Custody & Visitation | 2 Comments

When a family unit breaks apart or deteriorates over time, children often suffer as a result. Emotions can run high between parents in a divided family with children feeling torn in their emotions to not disappoint either parent by choosing sides. Most parents would say with confidence their child is the most important person in their life, yet many lose sight of that fact during a divorce or break-up of a relationship. The pain of rejection, betrayal or failure can consume a parent and cause backlash towards the other parent—through their child.

WHAT IS ALIENATION?

Parent alienation is a prevalent theme in many family law cases. Alienation by one parent can be an intentional, conscious choice and a tool used cause the other parent pain. Alienation can also result without intention.
Alienation of a child is a form of manipulation. A parent will try to manipulate the love and affection of their child through guilt, subtle comments and even purposeful, disparaging remarks about the other parent.

CAN A PARENT BE DETERRED FROM ENGAGING IN ALIENATING CONDUCT?

Child custody orders can contain provisions to deter one parent (or both) from speaking negatively about the other parent in their child’s presence.
For example, the court can make the following orders to deter one parent from alienating the other parent:

1. “The parties will not make or allow others to make negative comments about each other or about their past or present relationships, family, or friends within hearing distance of the children.”
2. “Other than age-appropriate discussion of the parenting plan and the children’s role in mediation or other court proceedings, the parties will not discuss with the children any court proceedings relating to custody or visitation (parenting time).”
3. “The parties will communicate directly with each other on matters concerning the children and may not use the children as messengers between them.”
The above three examples are found on State Judicial Council form number FL-341(D) titled: Additional Provisions – Physical Custody Attachment.

SIGNS OF PARENTAL ALIENATION

Signs of parental alienation, although not an all-encompassing list, are as follows:

1. A child’s withdrawal emotionally from a parent.
2. A child’s parroting of the negative comments spoken by one parent about the other.
3. A child being overly protective of a parent.
4. A child’s lack of desire to spend time with a parent.
5. A child’s separation anxiety at custodial exchanges.
6. A child’s inquiry about matters related to the court case and details they would not be privy to unless heard from a parent.
7. A child’s refusal to engage in parenting time or activities with a parent.
The above indicators are common in family law cases where there is parental alienation (but of course can result from other causes as well).

THE RULE OF HEARSAY UNDER CALIFORNIA LAW

From an evidentiary perspective, you must consider how to get the information about parental alienation to the judge. When you file a motion called a “Request for Order” to address custody issues (either preliminary orders or a modification of current orders) you can declare, under penalty of perjury, the details you want to share with the judge, but in doing so you may draw from the opposing party (or their attorney) an evidentiary objection based on the “hearsay rule”.
“Hearsay” is defined by California Evidence Code section 1200 as follows:
(a) “Hearsay evidence” is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated.
(b) Except as provided by law, hearsay evidence is inadmissible.
(c) This section shall be known and may be cited as the hearsay rule.
Translation: If you want to share with the judge the details of what your child told you, a declaration alone will likely not be sufficient.

APPOINTMENT OF MINOR’S COUNSEL FOR YOUR CHILD

A tool that can be used for the purpose of addressing parental alienation (and other concerns related to your child) and additionally getting the details to the judge for consideration, is something called “minor’s counsel”. Minor children are allowed to testify in a family law proceeding only under very limited circumstances and it is not common at all. Due to this reality, the judge can choose to appoint an attorney for your child (called “minor’s counsel”) to interview your child about your child’s concerns. If minor’s counsel is appointed, the attorney is for your child only and not either parent. Minor’s counsel is appointed by the court to protect the best interest of your child.
California Rules of Court, Rule 5.240 deals with appointment of counsel to represent a child in family law proceedings.

CHILD CUSTODY EVALUATIONS

Another mechanism used to address parental alienation is a child custody evaluation. California Rules of Court, Rule 5.220 deals with court-ordered child custody evaluations. The rule states, in pertinent part, the following:
Purpose: “Courts order child custody evaluations, investigations, and assessments to assist them in determining the health, safety, welfare, and best interest of children with regard to disputed custody and visitation issues. This rule governs both court-connected and private child custody evaluators appointed under Family Code section 3111, Evidence Code section 730, or Code of Civil Procedure section 2032.”
A custody evaluation provides the court with an overall assessment of the family dynamics, each parent’s ability to meet their children’s needs as well as a recommended parenting schedule that is in the children’s best interest based on the assessment.
The process of a custody evaluation includes, but is not limited to, interviews of each parent and their children by the evaluator, observations of the parents and children together, review of the case file and interview with collateral contacts (e.g., extended family, school personnel, medical providers, etc.).

FREE CONSULTATION

Parental alienation is serious and can have a lasting impact on the parent-child relationship if not addressed promptly and properly through the court process.
Consulting with an attorney about the options of minor’s counsel and a child custody evaluation will help ease your mind about the process and arm you with information necessary to prepare yourself for what lies ahead.
Contact us today for a free, confidential phone consultation so we can discuss your situation and advise you about the options available to you.