San Francisco Family Law Blog

With the rise of bankruptcy filings (specifically Chapter 7 and Chapter 13) there are more and more cases of divorce with bankruptcy issues. This article is a good overview of a small sample of the issues. If you need additional information about bankruptcy, please feel free to contact our sister-firm the Law Offices of M. Tilden Moschetti or visit its blog.

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Bankruptcy During Divorce
by Sherrie Bennett
(from lawyers.com)

If you think you're headed for divorce and have a lot of debt between the two of you, it might make sense to file for bankruptcy before starting a legal divorce proceeding. Filing bankruptcy first can simplify the divorce by clearing out some of your debt. This can make it easier to negotiate how the remaining debts should be divided, and protect you from your soon-to-be-ex's bankruptcy filing down the road.

Also, you and your spouse might want to consider filing a joint bankruptcy before the divorce. Not only will this make the final division of any remaining debts even easier, but filing a joint bankruptcy is cheaper than filing two separate ones.

In either event, bankruptcies and divorces have serious impacts on each other, especially with respect to your property and personal finances.
Effect of Bankruptcy on Divorce

When one or both spouses file bankruptcy, all the community property, that is, property that was bought or acquired during the course of the marriage, becomes a part of the bankruptcy estate and is available to pay debts. The bankruptcy estate is simply all of your property that you own at the time the bankruptcy is filed.

When you or your spouse file a bankruptcy, an automatic stay immediately prevents creditors from collecting on most debts. But the automatic stay doesn't prevent you from asking a divorce court to order your spouse to pay child support or alimony.

Once a bankruptcy court decides property is "exempt," that is, it is not part of the bankruptcy estate and so it is not available to be sold to pay debts, a divorce court can then divide that property. Property exemptions are defined not only by federal law (the "Bankruptcy Code"), but also by the laws of the state in which the bankruptcy is filed.

Some examples of federal exemptions include:

* A specified dollar amount for real property that is for his or her residence, and
* A specified dollar amount for one motor vehicle, such as your primary car

Property Settlements and Bankruptcy

Negotiating a property settlement in the midst of bankruptcy is complicated. Debts related to a property settlement are presumed to be "nondischargeable" in bankruptcy, meaning that the person who files bankruptcy can't have those debts wiped out and must still be responsible for them. But the bankruptcy court will wipe out those debts if the person filing for bankruptcy can show:

* That he or she can't pay the debt and still take care of him or herself and any dependents, or
* That wiping out the debt would result in a benefit to the person filing the bankruptcy that outweighs any harm done to his or her former spouse or child by nonpayment

So if you think your spouse is contemplating bankruptcy after your divorce is final, you'll want to word your property settlement in such a way that your soon-to-be-ex's obligation looks and acts as much as possible like a support obligation instead of a property settlement. That is so simply because support obligations are more difficult to have discharged.

How do bankruptcy courts decide what's support and what's property settlement? It varies greatly by state, but courts have based their decisions on such questions as:

* Does the obligation terminate or reduce with the occurrence of certain events, like remarriage or a child turning 18?
* Is the obligation in installments or a lump sum?
* Are there minor children?
* What is the relative health and education of the parties?
* Was there a need for support at the time of the divorce?

If your bankruptcy hasn't been filed yet, these distinctions and problems probably won't effect you. For many bankruptcies filed on or after October 17, 2005, any obligation between former spouses can't be dischargedin bankruptcy. So, a spouse with an alimony and/or child support obligation can't have that obligation discharged in bankruptcy if the bankruptcy petition was filed on or after October 17, 2005.
Property Liens

One way to protect yourself in a divorce negotiation if you think your spouse may be contemplating bankruptcy in the future is to take a security lien as a backup to debts your spouse is to pay you after the divorce. The lien should be on property your spouse is to be awarded in the divorce, preferably property that means a lot to your spouse. That way, if your spouse later asks the bankruptcy court to discharge the debt he or she is supposed to pay, you can seize the property to pay the debt.
Indemnity Clauses

Another precaution in the face of a soon-to-be-ex-spouse talking about bankruptcy is to have a "hold harmless" or "indemnity" clause written into the divorce decree, requiring your spouse to pay certain debts or repay you if a creditor makes you pay the debt. If your ex-spouse later files bankruptcy, you can go to bankruptcy court and ask the judge to enforce the indemnity agreement. While an indemnity agreement won't guarantee you'll get paid, it's one more factor for the bankruptcy judge to consider.

As you can see, the issues of going through divorce and bankruptcy at the same time are confusing at best, and highly damaging at worst. If you find yourself in this position, it makes sense to find a bankruptcy lawyer who can help you with all the issues.

Posted by Tilden Moschetti at 10:06 AM | Permalink

This is a wonderful article that hits the nail on the head. Divorce is too often a miserable experience for husbands, wives, and kids. While it is certainly an emotional time, the situation can be made so much better by working together to make the vast changes in lives.

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Happily divorced ever after
By Maureen Salamon
CNN.com

(LifeWire) -- After her divorce three years ago, Lori Hilliard was filled with rage, pain and sadness -- until a few simple words from Mister Rogers put things into perspective.
Some ex-spouses forge new relationships that look more like friendship and aim to bury the rancor of the past.

Some ex-spouses forge new relationships that look more like friendship and aim to bury the rancor of the past.

The mother of four came across a book that featured a quote from the gentle host of TV's "Mister Rogers' Neighborhood": "So in all that you do, in all of your life, I wish you the strength and the grace to make the choices which will allow you and your neighbor to become the best of whoever you are."

"When I read that quote, something in my heart just shifted and I knew what my divorce was going to be," says Hilliard, 44, an occupational therapist for children with disabilities.

Today, she and her former husband, Timothy, 43, co-parent their children in a relationship they both say works better than their marriage ever did.

"It has been so powerful for my kids to see a functional relationship out of this. We're making the most of it," she says.

Timothy Hilliard, who lives near Lori in Lehigh, Utah, and communicates constantly with her to juggle the care of their children, including a son with Down syndrome, agrees.

"Our relationship basically runs just the way it did when we were married, except without the sex and the arguing. I can tell you, I don't miss the arguing," the marketing executive says.
Don't Miss

* Will I ever trust again?

For many parents, divorce is an arduous, exhausting ordeal. But it doesn't have to be. Some forge brand-new relationships that look more like friendship and aim to bury the rancor of the past.

Allies or animosity?

New York City matrimonial lawyer Nancy Chemtob says about 80 percent of divorcing couples her firm represents are parents, to whom she stresses the benefits of remaining allies even if they cannot remain married.

"It's really in everyone's best interests," says Chemtob, a founding partner of the firm Chemtob Moss Forman and Talbert. "As much animosity as there is, when they realize their common interest... it's going to make everyone's lives easier."

Of course, "happily divorced ever after" is simply not possible for everyone. Chemtob notes that one spouse's fury over the other's marriage-busting infidelity can prevent harmony from ever taking root. And sometimes a divorcing couple just can't break the discord that has simmered over years or decades.

Bonnie Russell and her ex-husband, Mark Barber, tried to stay friends after their 1990 split, but agree that their efforts failed.

"Initially it was an OK divorce," says Russell, a freelance publicist in her 50s from Del Mar, California, who was married to Barber for about four years. "But when I went for more custody, it turned into a horrible divorce."

"We tried to visit; we tried to be civil," says Barber, a 56-year-old lawyer in San Diego who ended up with full custody of the couple's only child, a daughter, who is now 20. "But this is not a success story."

Trial and error

When custody isn't an issue, ex-spouses often try to maintain a relationship focused on one of the few things they may still agree on: their offspring. Russell Wild, 52, of Allentown, Pennsylvania, says he and his former wife, Susan, 51, never lost sight of their commitment to their two children, ages 15 and 12.

The Wilds, married for 22 years, divorced in 2003 and two years later co-wrote "The Unofficial Guide to Getting a Divorce."

"We had seen many attempts at amicable divorce fail among family and friends," says Russell Wild, 52, a financial planner. "We knew it wasn't going to be easy. Married people fight, divorced people fight . . . you just can't let it take control of you and destroy you."

When it comes to raising their children, Wild and his ex-wife strive for consistency. "(We) are a single government, and the kids know that," says Wild. "We always back each other up."

If Travis Hill's career choice is any indication, such Herculean efforts by divorcing parents can pay off. Hill, 32, believes he became a psychotherapist because of how well his mother and father handled their split 14 years ago.

"They were very good at distinguishing the problems in their relationship from their concerns about us kids," says Hill, of Germantown, Tennessee, who now has a wife and young daughter. After the divorce, Hill's father continued to share Christmas Day with his family, as well as some weekends and other holidays. "Now that grandkids are in the picture, because my parents were able to stay on friendly terms, it's much easier."

Striving for the 'good divorce'

The pros of such an arrangement are numerous, according to Hill: from nurturing children's mental health and emotional resilience to smoothing extended family ties.

But "ultimately, it's still a divorce," he says. "Divorce is not a happy thing ... and you still have to go through the pain of what a divorce is."

Attorney Chemtob offers these tips for exes to help make a "good divorce" possible:

• Put your kids first: "The most important thing to children is that they still have a relationship with both of their parents," she says.

• Don't be petty: Make sure every discussion isn't a rehash of why you got divorced. "It's not about winning a fight anymore."

• Be inclusive: "If you'd include a friend who has nowhere to go on Thanksgiving or birthdays, why not include your ex-spouse?"

Posted by Tilden Moschetti at 10:42 AM | Permalink | Comments (0)

I thought this was a good article on how to make marriages work.

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The science of a long marriage

SARAH HAMPSON
From Thursday's Globe and Mail
October 2, 2008 at 9:10 AM EDT

Want to have a long marriage like Paul Newman and Joanne Woodward did?

Well, the right thing to say to your wife in the midst of an argument could be as simple as this: "Honey, let's not get upset. When our brains age, we'll become more adoring companions."

Alternatively, you could say, "Just think of all the emotional-attachment synapses we'll be laying down in our brains if we make it to our 25th anniversary."

Who knows? You, too, could have a 50-year happy marriage like Mr. Newman, the Hollywood legend whose greatness behind the scenes received just as many accolades, if not more, than his acting career when he died last week at the age of 83.

He is iconic for his husband-hood in an age when marriage is increasingly seen as a rite of temporary and convenient passage - one you glide through and leave as you might a party you'd thought you'd enjoy - not just in the Los Angeles hotbed of sex, beauty and ambition, but in the culture at large.

Mr. Newman rarely discussed his marriage. To Playboy magazine, he once explained his marital fidelity by saying he didn't need to go out for hamburger when he had steak at home.

But usually, he would politely say "I don't like to discuss that" when interviewers pressed for the secrets of his long, happy marriage.

But now, there is scientific and psychological insight into the benefits of long-term marriage, and the reasons why marriages that survive often become better as they age. In the long run, marriage is a state of being that suits, even enhances, human biology, experts say.

"There are biological changes that occur in aging in the so-called 'blue spot' of the brain, an area that has to do with anger, aggression, anxiety. That area literally loses neurons as we age," which means those emotions are less acute, explains Maggie Scarf, a therapist and author of several books including September Songs: The Good News About Marriage in the Later Years.

Ms. Scarf uses this and other research to explain the surprising evidence she found in interviews with couples aged 50 to 75 that sticking out a marriage, even a contentious one, brings a level of happiness that few of the participants could have predicted earlier on.

"There was still a source of annoyance and irritation. It was just that it was handled in a different way. The intensity of their conflict never reached the rage stage."

It's a comforting thought: We may be wired to fall in love, but we are also de-wired to get along in our dotage.

There is also a psychological shift among older couples that makes marriage easier and better, she says. "As people age, there is an unconscious or maybe conscious motivation to move toward the 'positivity effect,' " she says, citing medical research from Stanford University in California. "People realize that more years of their life have passed than are ahead. Time is like an oil supply that is running out, and as it runs out it becomes more valuable, and people think about how to use that time in a way that makes them happy."

Ms. Scarf is not advocating that people stay in marriages that are truly miserable. "There are real reasons why people divorce," she acknowledges. But she thinks that couples need to know the benefits in store if they ride out the bad patches.

"Marriage is a journey, and things turn around," says Ms. Scarf, a wife of 55 years, mother of three children, and grandmother of eight. She and her husband haven't "floated here on a cloud of bliss" she says of the long marriage that gives her pleasure and meaning.

Divorce is in vogue, which may make couples contemplate it without enough consideration, she says. "I don't think couples in long-term happy marriages have a voice, and they should have one, because the voices of the divorced people are much noisier."

The cultural obsession with romantic love as opposed to the opportunities - and biology - of long-term commitment also encourages divorce, says Mark O'Connell, a marriage therapist and psychology professor at Harvard Medical School who wrote The Marriage Benefit: The Surprising Rewards of Staying Together.

"There is the biology of falling in love, but there is also a biology of long-term attachment," he said in an interview. "If you look at research, it is clear that there are increased activities in pleasure and addiction centres in people's brains when they are falling in love, and down the road there is increased activity in the centres that have to do with long-term memory and long-term learning - the kinds of places that have to do with the laying down of enduring attachment.

"But we have this idea that the early falling in love is this intense, passionate biological experience, and that the rest of it is just sort of social convention that we have to deal with as a compromise."

Self-help books that suggest ways for couples to "get back to earlier passion" are unrealistic, says Dr. O'Connell, a husband of 24 years and father of three children. "If we have a model of love that says we should be happy all the time, people are disappointed. But they can't live like that because that's not the way love works."

One of the greatest opportunities of marriage is the ability to understand yourself, he adds. Contrary to popular belief - that divorce is the crucible to self-actualization - it is marriage that is a potential gateway to true self-expression.

"In a marriage, people get into places with each other that are often going to be reflections of [the] most pained and difficult and vulnerable parts of themselves, the places that they most need to wrestle with individually," he explains. "People work on their marriages to get along, but there is a lot of potential for personal growth. So, in fact, divorce can be the antithesis of self-expression, and is, in fact, self-denial."

Posted by Tilden Moschetti at 10:26 AM | Permalink | Comments (0)

Unfortunately, I have had a lot of experience litigating domestic violence issues. What is critical to understand, and this article makes very clear, is that a restraining order does not guarantee safety. They are helpful, but not complete protection.

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Restraining orders no guarantee of safety
By Robert Salonga and Malaika Fraley
Contra Costa Times
Article Launched: 09/27/2008 06:16:40 PM PDT

Margarita Sandoval was diligent about meeting all the conditions to uphold the restraining order she filed against her husband.

When he twice violated the order with threatening phone calls, she told police. When he came to see her and violently tried to coerce her into relinquishing the financial claims tying up their divorce proceedings, she called police again, and officers arrested him.

But Felix Sandoval made bail before charges could be filed, and within two months he went after his wife in an armed rampage, slaying a relative and police officer before police killed him.

The outcome was a tragic reminder of the limitations of a domestic violence restraining order. Law enforcement and advocates for victims of domestic violence maintain the court orders are effective as long as victims know they need to do more than just have the document in hand.

"It's not a force field," Antioch police Lt. Leonard Orman said. "But it is a tool for us and the public. Instead of telling people to leave, (with an order) we can arrest somebody."

More than 1,500 domestic violence restraining orders were filed in Contra Costa County in 2007, according to Bay Area Legal Aid. California law distinguishes a domestic violence restraining order from a civil order by the existence of a relationship between the parties.

Just a modest portion are prosecuted. From April to June this year, the District Attorney's Office received 90 complaints of restraining order violations, which led to prosecution in 35 cases. Charges for just over a third of violations is typical for the office, Contra Costa County District Attorney Robert Kochly said.

To successfully try a restraining-order violator, Kochly said prosecutors need a documented pattern of abuse and noncompliance or corroborating evidence such as witnesses, property damage or injuries. Without this, he said, the complaint risks being viewed as a "he said-she said" instance, not enough to secure a conviction.

Victims also risk compromising an order by letting violations go unreported, or contacting the restrained person in the spirit of reconciliation. Reporting every instance is important, Orman said.

"What we find a lot of times is that people want to enforce them at their pleasure," he said. "That takes away the power (the order) holds."

Two recent homicides in Contra Costa County illustrated how a restraining order — or any court order — falls short against a determined offender.

On Aug. 7 in Bay Point, Javier-Francisco Valladolid, 38, went to the home where his wife was staying and killed a relative, 34-year-old Graciela Guitierrez, and his 4-year-old son before fatally shooting himself.

Guitierrez was watching Valladolid's children while his estranged wife, Maria Elena Ventura Guitierrez, was in court trying to formalize a temporary restraining order.

Then on Sept. 6, Felix Sandoval, 49, stormed a Martinez hair salon looking for his wife and ended up in a nearby apartment. There he shot and killed her cousin, 44-year-old Catalina Torres. In a gunbattle with police, Sandoval fatally shot veteran Martinez police Sgt. Paul Starzyk, whose final act was to fire the bullet that fatally wounded the gunman, saving five other people inside the apartment.

In the Sandoval case, Kochly said a complaint from an assault that preceded the slayings had not yet been forwarded to his office. Police have said they were awaiting toxicology tests based on the suspicion that Felix Sandoval was high on methamphetamine in that incident. Besides coming within 100 yards of his wife, he also had violated the restraining order by possessing ammunition.

But he made bail in under two hours, and would have remained free even if immediately charged, Kochly said.

"I don't believe there was anything that could have been done to have incapacitated him," Kochly said. "Certainly there is no piece of paper that can guarantee protection from someone intent on causing harm — not by a long shot."

Susun Kim, managing attorney for the Contra Costa regional office of Bay Area Legal Aid, agreed with Kochly.

"If a person is so deranged, so desperate that he's willing to kill his children and his spouse, what order will this person listen to?" Kim asked.

Kim said domestic violence victims need to view the killings with the proper perspective — they're extremely rare — and realize that the overall benefits of filing for a restraining order greatly outweigh the chances of tragedy.

"It happens very rarely," Kim said. "I've been doing this 11 years, representing domestic violence survivors, and none of my clients have ever been hurt or killed."

Most people served with a restraining order comply, said Concord police Detective Rick Rivera, one of two investigators dedicated to a monthly domestic violence caseload of about 100 in the county's largest city. About 10 percent of restraining order violations in Concord are committed by chronic offenders, Lt. Andrew Gartner said.

"(A restraining order) ends the behavior for a lot of people," Rivera said. "Once they're served, they realize, 'It's no longer between me and my partner. It's between me and the state.'"

Furthermore, Kim said, domestic violence victims are empowered by the educational process entailed in filing.

"They learn how to protect themselves," Kim said. "It also changes the power dynamics of the relationship."

That sense of power can fuel the persistence needed to get violators prosecuted.

"Victims should never grow tired of reporting violations of restraining orders. Multiple reports show a pattern of disregard for the judge's orders and can be combined later to further justify the seriousness of the matter and the state of mind of the offender," Gartner said.

Even so, Silvia Torres-Limón, who lost her sister, Catalina Torres, to one of the extreme, rare cases, wants to see harsher punishment to stop particularly violent offenders.

"It's better to be too severe than to be regretful," she said.

In the absence of stiffer penalties — violations are classified as misdemeanors, though officers can make arrests based on observed evidence of assault or abuse — Kim said her agency is working with county police departments to standardize response practices, so that instances of family violence are consistently and thoroughly investigated and reach the District Attorney's Office. Concord's domestic violence team, led by Rivera, Detective Greg Pardella and two civilian family violence victim advocates, is one model for that effort.

Meanwhile, law enforcement agencies say they're working earnestly to ensure the orders are enforced. They note that while the system's shortcomings never fail to garner attention, the successes are difficult to quantify.

"It's one of those immeasurable things," Orman said. "How do you know about the ones that worked?"

Posted by Tilden Moschetti at 10:31 AM | Permalink

FIVE THINGS YOU MUST KNOW ABOUT DOMESTIC PARTNERSHIPS

Are you considering registering as Domestic Partners? If you are, it's important that you know that there are several legal implications that come along with your new status, including how you file your tax returns.

1) Both parties need to fill out the Declaration of Domestic Partnership, available at http://www.sos.ca.gov/dpregistry/dp_formsfees.htm. In order to qualify as Domestic Partners, the couple needs either to be of the same sex, or opposite sex couples must include at least one person who is over 62 and meets the eligibility requirements of the Social Security Act. For more details, check out the Declaration of Domestic Partnership form.

2) Once you're officially an RDP, you must file your tax returns in California as Married/RDP Filing jointly, Married/RDP filing separate, or if requirements are met, Head of Household. For Federal purposes, RDP's must file as single of Head of Household if requirements are met.

3) And, since you and your domestic partner will be filing different returns between the IRS and the State of California, you may face additional time and expense as a result. Also, when combining tax returns for an RDP in California, certain items (e.g., capital losses, Section 179 expense deduction) may be limited.

4) The termination of an RDP is similar to a divorce should you need to end the partnership. Once the RDP is registered, the ability to file as a single person in California no longer exists. The RDP is not terminated until the court issues a final decree, and if support is awarded, it may be taxable income to one party and a deduction to the other.

5) The bottom line is that declaring your relationship as an RDP has real legal ramifications and demands serious investigation.

Posted by Tilden Moschetti at 3:56 PM | Permalink

How homeowner's exemption is handled in a divorce
Mary Southall
Marin Independent Journal

Q: My husband and I own a Marin home, but we are divorcing. With my own money I bought a nearby Marin home and moved there, while my husband remains in the family home to fix it up prior to sale. My question has to do with my property taxes: Do I qualify for the homeowner's exemption on my new home, since as a married couple we qualified for the homeowner's exemption on our family home, and we still own it?

A: The answer is "maybe yes." According to information provided by the Marin County Assessor's Office: "Since March 7, 1973, a married woman has the right to retain her own legal residence in the state of California notwithstanding the legal residence or domicile of her spouse." To qualify for the exemption, the home must be her principal residence.

Allow me to add that the above sentence was quoted from a document that is 40 pages long. Hence it can safely be assumed that there will be dozens of exceptions to the rule. Please consult the Marin County Assessor's Office. The mailing address is 3501 Civic Center Drive, Suite 208, San Rafael, CA 94903; the e-mail address is assessor@co.marin.ca.us; and the phone number is 499-7215.

Also, it is up to the taxpayer to notify the assessor's office of any changes in status, and an exemption might hinge on its timeliness.

Posted by Tilden Moschetti at 10:47 AM | Permalink | Comments (0)

I thought this was an interesting article. California is one of the states mentioned that does not use the term divorce, rather dissolution. We also abandoned alimony in favor of spousal support.

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Let's Leave 'Marriage' at the Altar
By Nancy D. Polikoff, Washington Post

The bill in the Maryland General Assembly that would eliminate the term "marriage" for all and replace it with domestic partnership deserves serious consideration ["Bill Would End Civil Marriage, Create Domestic Partnerships," Metro, Feb. 5]. More than semantics are at stake.

Marriage has a long history of exclusion: slaves, interracial couples and same-sex couples have been denied it. For centuries, marriage eliminated a woman's separate legal identity, subjugated her to her husband, and determined whether her children were full citizens or "illegitimate." Many people consider marriage to be moored to religious doctrine, so Sen. Jamie B. Raskin's argument for turning it into a solely religious institution is sound.

There's precedent for breaking with past family law terminology. About a dozen states no longer have "divorce." Instead couples end their legal relationship through a process called dissolution. Divorce was historically a nasty business, with one "innocent" spouse, the other at "fault" and both subject to social stigma. "Dissolution" is less value-laden and contentious. It is also a term associated with ending partnerships, so the choice of "partnership" to signify the commitment that two people make to each other is consistent with the modern trend.

Similarly, numerous states have eliminated "alimony." For centuries its definition was sex-specific; only men could pay alimony and only women could receive it. Even after modern reform made alimony gender-neutral, the old connotation of a man's lifelong obligation to support his wife remained. So new terms such as "maintenance" or "support" replaced "alimony," signifying a shift in thinking. Some states have also abandoned the terms "custody" and "visitation" when referring to the post-dissolution placement of children, preferring "parenting time" or "parental responsibility." The old words implied that one parent "won" control of the children and the other "lost." The new words remove the implication that one parent matters more than the other.

Those who enter domestic partnerships in Maryland would be free to say they are married, just as those who dissolve their unions in California, Florida, Connecticut and the other states with dissolutions probably say they are divorced. The state does not police people's vocabulary. It does, however, signify modern ideals through official nomenclature. For that, the state should use the language of partnership and leave marriage to religion.

Posted by Tilden Moschetti at 11:50 AM | Permalink

C.A.: Clarifies Scope of Statutory TRO in Parentage Cases

By STEVEN M. ELLIS, Staff Writer

The standard restraining order issued in parentage cases prohibiting a parent from removing a child from the state without the other party’s consent or a court order does not require a parent to bring a nonresident child into the state, the Fourth District Court of Appeal ruled Friday.

Div. One held that San Diego Superior Court Judge David Oberholtzer did not err when he issued a temporary custody order allowing a Colorado woman who filed custody proceedings in California to continue living in Colorado with her child, rather than return to California, because Family Code Sec. 7700 raises no presumption that a parent residing in another state with a child at the time he or she seeks assistance of a California family court must return the child.

The issue arose after the woman, who had previously lived with the child’s father—her boyfriend—in San Diego, moved to Colorado with the child when the relationship deteriorated. One month after leaving, she filed a petition in the San Diego Superior Court to establish that the man was the child’s father, and requested that the court determine custody and visitation, and appropriate child support.

No Agreement

The parties were unable to reach an agreement as to a custody sharing plan through mediation, so Oberholtzer adopted the mediator’s recommendation that the child reside primarily with the mother. He entered a judgment of paternity establishing the man as the child’s father, and temporary custody orders allowing the child to remain in Colorado and granting the father visitation.

Oberholtzer later granted shared legal custody to the couple, awarding primary physical custody to the mother and adopting a detailed visitation schedule providing for visitation to occur in San Diego and Colorado, respectively.

The father appealed, arguing that the trial court should have required the mother to return the child to California when it issued the temporary custody order, rather than allowing them to remain in Colorado. He contended that the restraining order that automatically issues under Family Code Sec. 7700 when a petition is filed required that the child be returned to California, and that the court erred in failing to issue an order to that effect.

Trial Court Upheld

Writing for the court, Justice Cynthia Aaron rejected the man’s contention and affirmed the trial court’s decision.

“As the trial court pointed out,” she wrote, “the statute does not state that a child who is already residing in another state at the time the petition is filed must be returned to California. Rather, the provision states only that a parent may not remove the child from the state, absent written permission from the other party or an order of the court, once the petition has been filed.”

Noting that the child was not in California at the time the petition was filed, Aaron said that there was no indication that the mother had removed the child from the state unlawfully because no party had petitioned the court for an order determining custody at the time.

Although California courts have jurisdiction to make custody determinations with respect to nonresident children in certain circumstances under the Uniform Child Custody Jurisdiction and Enforcement Act, Aaron wrote that there was “no reason to believe that the Legislature intended that children living elsewhere be returned to California anytime a custody proceeding has been initiated in California.”

‘Child’s Best Interest’

She concluded that, even if the court were to accept the father’s contention that Sec. 7700 created a presumption that a parent must return a nonresident child, and that failure to do so would violate the automatic temporary restraining order, “the trial court’s first concern is the child’s best interest.”

“If the trial court has the power to permit a party to remove a child from the state after a petition has been filed…,” she wrote, “the court must have the authority to determine…that a child who has previously been removed from the state need not be returned…if doing so would not be in that child’s best interest.”

Writing that the trial court “clearly believed that” under the circumstances, Aaron concluded that the order permitting the child to remain in Colorado was warranted and that Oberholtzer had not abused his discretion.

In an unpublished portion of the opinion, she also concluded that Oberholtzer applied the correct standard in issuing his custody determination, and that he did not abuse his discretion in granting the mother custody. She also wrote that the father had waived procedural errors that he claimed deprived him of a fair hearing for failure to raise them in his opening brief.

Justices Judith L. Haller and Patricia D. Benke joined Aaron in her opinion.

The case is Sarah B. v. Floyd B., 08 S.O.S. 774.

Posted by Tilden Moschetti at 10:46 AM | Permalink | Comments (0)

A decent article on restraining orders. The article has it mostly right. Any person who is in immenent fear may seek a restraining order. It begins with a request that is filed with the court. Most times, a request is granted and a temporary restraining order is issued. This needs to be served personally on the other person by someone other than the complainant. On it, there is a date of when the court hearing will be. The temporary restraining order is in effect from the moment the temporary order is served. But, it expires on the court date.

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My Boyfriend Is Really Annoying
Can I file a restraining order?
By Juliet Lapidos, slate.com
Posted Wednesday, Jan. 23, 2008, at 5:29 PM ET

Britney Spears reportedly filed a restraining order against her paparazzo boyfriend, Adnan Ghalib, after discovering that he was tipping off his agency with photo ops. Last Monday, Florida resident Rachelle Washington petitioned for a protective injunction against Patriots' wide receiver Randy Moss. Under what circumstances can you order an unwanted admirer to get the hell away from you?

Fear of imminent harm. Laws vary somewhat from state to state, but across the country it's possible to obtain a temporary restraining order by swearing, under oath, that you have reason for alarm. There's no jury, the alleged harasser need not be present, and the burden of proof is virtually nonexistent; judges issue orders on behalf of anyone with a credible complaint. ("He threatened to hit me and I'm scared" but not "It freaks me out when he stares at me.") Under these guidelines "my paparazzo boyfriend sold pictures of me" would not pass muster, so either Britney had a more substantial complaint or the latest tabloid tale is just a rumor.

Temporary injunctions have a lifespan of maybe a week or two. Exact terms depend on the situation, but a basic order requires the offending party to stay at least 500 feet away from the victim's person and property. Occasionally, judges require offenders to surrender any firearms in their possession to local law enforcement. Case in point: Randy Moss was asked to hand over any concealed weapons permits to the Broward County Sheriff's Office.

After the temporary injunction expires, the victim can try to extend the restraining order in court. At a hearing, both parties are present and the victim must present "clear and convincing" evidence that abuse occurred or is likely to occur. The victim testifies about the harassment she experienced, and may present police reports or dated pictures of injuries. Witnesses who overheard threats or were present during a fight may also testify. Then the accused gets a chance to mount a defense. If the judge rules in the victim's favor, he'll issue a long-term restraining order, sometimes called a "final injunction." In California, where Britney Spears resides, a post-hearing order can last up to five years.

Many states distinguish between restraining orders issued for victims of domestic violence (sometimes called a "protective order") and other kinds of abuse (a "peace order"). Procedurally, they're very similar—first a temporary injunction, then a hearing, followed by a long-term order. But protective orders can impose farther-reaching penalties—not just a "stay away" mandate but the forced payment of child support, for example—and may last longer. Furthermore, there are some technical differences in eligibility and in the definition of abuse. In Maryland, for example, protective orders may be issued against current and former spouses, roommates, relatives, or anyone with whom the victim has had a child. Abuse, in such cases, means an act that causes serious bodily harm or places the petitioner in fear of serious harm, rape, or false imprisonment. Peace orders, by contrast, are issued against those who are not intimately related to their victim, and the definition of abuse is broader: It includes stalking, destruction of property, and trespassing.

What happens if you falsify a petition? Probably nothing, since it's hard to disprove a state of mind. That is, if you claim you're scared for your life, who's to say you aren't? Technically, however, you could be charged with making a false declaration. And what happens if you violate a restraining order? You'd probably face a criminal charge, a suspended sentence contingent on good behavior, and a fine—or possibly a short stay in jail.

Posted by Tilden Moschetti at 11:57 AM | Permalink | Comments (0)

Those of you who know me or have read this blog probably have figured out I am personally pretty moderate on the issues that come up in child support (when representing clients, I put their beliefs forward on these issues, not my own). Yes, a lot of very bad situations can arise: people in very serious debt, people being put in jail, loosing licenses, etc. But, the one thing I see time and time again that people do not do which could prevent ALL of this is to file a motion for modification as soon as something happens.

The attached press release is interesting. But, I do think Mr. Pemberton is going about it the wrong way. Finishing his protest in front of Comm. Wightman's court room is abrasive and does not make his point. The Commissioner is a very good one; she knows the law well, works very hard to help people out. The Commissioner does not have a lot of discretion, however. Most child support laws are inflexible and mandatory. If Mr. Pemberton wants change then the proper place is in front of the legislature.

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MARINA DEL REY, Calif., Jan. 18 /PRNewswire/ -- Government waste has
reached epidemic proportions, Kermit Pemberton says, and the child support
system that is supposed to protect the child is draining money from both
the system and the parent paying the support. Hard working parents' lives
are being destroyed because of this national greed, and Mr. Pemberton is
tired of it.

On January 20-21, 2008, Mr. Pemberton is going to hold a hunger strike
in protest of what he perceives as overzealous agencies that are dipping
into the pockets of Americans. His protest will begin at 12:30 p.m. and end
12:30 p.m. the next day in front of Commissioner Rebecca Wightman's
courtroom in San Francisco at Civic Plaza in front of City Hall. He also
has a scheduled court date on January 23, 2008, at 1:30 p.m. in her
courtroom.

Mr. Pemberton is also going to hold a hundred parent march starting at
6 p.m. and ending at 7 p.m. on January 21, 2008. Having been abused by the
system himself, he has dedicated himself to making the public aware of the
waste of their tax dollars. Fed up with the injustices himself, Mr.
Pemberton has dedicated all his spare time to organizing activities and
creating informative websites to help citizens be informed and fight
governmental waste and excess.

To embrace what he is fighting for, the rights of the children for the
sake of the children, Mr. Pemberton will be holding a carnival with the
theme "Focus on the Kids," on Sunday, January 20th at the Civic Park in San
Francisco. Located at 350 McAlister, this public event is free and all
rides are free for the kids. We invite all the parents that are in similar
situations to come down and show their support.

As a victim of the system Mr. Pemberton says he has had his bank
account levied, his credit ruined, and his passport and driver's license
threatened. He wants the public to know that this could happen to you, too.
Thousands of dollars can potentially be spent to fight these impositions of
the government while most citizens are powerless to fight government
bureaucracy.

This man has paid more that six thousand dollars in travel expenses
alone, and his crusade does not want the average citizen to go through the
same injustices that he has gone through.

Posted by Tilden Moschetti at 9:55 AM | Permalink | Comments (0)