San Francisco Family Law Blog

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)

I am pretty reluctant to put this article up. But, it is a good example of a misinterpretations of the law. The article says, "a friend of mine claims that the Texas legal system is totally anti-female." Well, that may be (I don't know I don't practice in Texas), but the article goes on to say that Texas is not a community property state. Not true. It says Texas puts a cap on child support where California does not. This is a gross oversimplification that does not tell a fair story, for Californians or for Texans. Bottom line is if you want real advice, get it from a lawyer who can tell you what your rights really are.

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Don’t let him take you to Texas for a divorce
By SHARON WOODSON-BRYANT 03.JAN.08
It had been a long time since I listened to Steve Harvey’s radio show, so I had no idea that he and his wife were divorced or that I was about to unravel a juicy black soap opera to entertain me over the holidays.

There wasn’t much on TV and I decided to catch up on my reading. So I was surprised to stumble on a story about a lawsuit filed in November by Harvey’s ex-wife, Mary Harvey. She claimed that both Harvey and their long-time Houston attorney, Ricky Anderson, conspired against her during their 2005 divorce proceedings by convincing her to let Anderson represent both parties. The result, according to the lawsuit, was an unfair settlement leaving the former Mrs. Harvey out in the relative cold.

What’s more, Mary Harvey claims that one of the reasons her former husband pressured her to use Anderson as her attorney was to settle the divorce quickly and quietly in order to protect Steve Harvey’s public image. She accused the performer of trying to cover up his adultery, his poor and neglectful parenting “and physical and mental abuse of” Mary Harvey.

According to the complaint, “All of this was also done under the guise of protecting Steve Harvey’s image, who attempts to promote a packaged do-good, likable, Christian-type image in the public eye.” Among the claims, Mary Harvey was suing for breach of contract, common law fraud, professional negligence and conspiracy.

As I continued online research, I learned that Harvey had been married for 10 years and his divorce from Mary became final in December 2005. Then last July MediaTakeOut.com reported that Harvey and his fiancée Marjorie Bridges were secretly wed in a small religious ceremony in a “romantic setting” in Hawaii. The ceremony was performed by the Rev. T.D. Jakes, and was attended by the couple’s close family and friends. This marriage will be the third for both of them.

Always looking for a good plot, I began to wonder if Mary’s complaint had anything to do with the recent remarriage. I also questioned why a woman filing for a divorce would agree to use a lawyer who was also working for the husband. But what was even more puzzling was that she ended up with only $1,000 a month for herself and their son, Wynton.

According to the lawsuit, when Mary Harvey asked about child support, Anderson told her she could not legally receive more than $1,000 a month, despite the fact that community assets, including property in Texas, several bank accounts, investments and business interests are estimated at more than $10 million. In addition, Mary Harvey did not receive health insurance or continued payments from the couple’s businesses as she was promised.

Nevertheless, Anderson told Mary Harvey before signing the papers that she was getting a “great deal,” it states in the complaint. He also told her that the estate would be divided equally, but when it came time to sign the divorce papers the day the couple appeared in court, Anderson told Mary Harvey she needed to sign the papers quickly and did not give her a chance to read the documents. Afterwards, once the divorce was granted, the lawyer refused to divide up the property as he said he would do.

Still not understanding how something this unfair could happen, a friend of mine claims that the Texas legal system is totally anti-female. She said that this is why so many men try to figure out some way to file for divorce in this state instead of filing in other equitable jurisdictions. They have a cap on child support and unlike California, it is not a community property state so the woman will never get a 50-50 split. Unless they try what Mary Harvey did.

According to the Dallas Morning News online, Steve Harvey was not laughing on Dec. 12 when he had to testify during a hearing regarding a motion of contempt concerning finances and property in question from their divorce. “State District Judge Robert Dry did not make a ruling at the hearing, but did remind Mr. Harvey at one point that one possible punishment was jail time if the contempt ruling went against him. Mr. Harvey looked shocked and had a few words with his attorney before taking the stand.”

Well, guess what? Right before Christmas, according to MediaTakeOut.com, the shocking abuse lawsuit came to an end. Apparently Steve decided to open up his wallet and his ex-wife is very close to reaching a monetary settlement. There was no more joking around with him facing jail time if the judge ruled that he had contemptuously withheld vital information.

According to one person familiar with the case, Steve offered Mary approximately $10 million to settle the suit and Mary is expected to accept the offer. MediaTakeOut.com said that the insider revealed “Court documents have Steve’s net worth at around $20 million, so he’s basically offering half of everything he owns to make this lawsuit go away. ... He really wants this lawsuit, and all the nasty allegations in it, to disappear because it’s starting to hurt his image.”

I say the moral to this story is if you are having marital problems don’t let your man talk you into moving to Texas. And no matter where you live, always get your own lawyer.

Posted by Tilden Moschetti at 3:47 PM | Permalink | Comments (0)