May 2013 Archives

May 30, 2013

In Ongoing Support Battle, Lakers' Steve Nash's Ex-Wife is Barred From Relocating to California

1015486_basketball.jpgThe divorce laws in San Diego may be different from those in Arizona, according to a recent article depicting the latest drama in the unfolding Nash-Amarilla family break up. Steve Nash's ex-wife, Alejandra Amarilla, currently lives in Arizona with the couple's three children. Nash successfully convinced a judge there to deny Amarilla child support, arguing that she already received millions in the divorce settlement. Under Arizona law, no child support is required if the adjusted incomes of both parents are relatively equal. There has been some speculation that if she moves to California, Amarilla would have another opportunity to seek child support from Nash from the local courts.

In most states, "child support" consists of the amount of money that a court orders a parent or both parents to pay each month for the child's (or children's) support and living expenses. California has a statewide formula (known as a "guideline") for determining how much child support should be awarded. Parents may first attempt to agree on an appropriate amount, but if they cannot, the judge will decide the child support amount based on the guideline calculation.

The guideline calculation takes into account the following items (among others): the amount of money the parents earn or have the ability to earn; any other income each parent receives; the amount of time each parent spends with the children; the number of children the parents have together; whether the children receive any support from other relationships; each parent's tax filing status; health insurance costs; expenses associated with daycare and uninsured health-care costs; and any mandatory union fees or retirement contributions.

In the Nash divorce, Amarilla is claiming that her ex-husband will not let her move to California so that he can avoid paying child support. Nash was granted a restraining order barring Amarilla from relocating with her children to Los Angeles. According to another news article, Nash previously convinced the Arizona divorce judge that his wife didn't need child support because the divorce awarded her millions and that she also receives approximately $30,000 per month. Amarilla is appealing the ruling. She has argued that Nash makes a million dollars more than her every month, and that he should be required to spend some of that money on their children. Nash claims to be paying 90% of the children's medical, school and extracurricular activities, as well as 82% of the nanny's salary. According to reports, Nash has said that his ex-wife spends money excessively, and if he is gives her more, she will spoil the children with too many luxuries.

The worrisome part of this widely publicized divorce proceeding is the effect it will have on the children. By battling with his ex-wife over child support payments and fighting to have her remain in another state with the children is sending a disturbing message.

In California, the guideline calculation system affords a somewhat predictable measure by which parents can estimate the child support payments that will be awarded. The best course of action in any divorce case in this state is to contact an experienced family law attorney who understands the intricacies of the local court rules and procedures.

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May 23, 2013

Reduction of Court Services in California Could Pose Risks for Victims of Domestic Violence

1330873_courthouse.jpgVictims of domestic violence in San Diego could face a situation that may be even more worrisome than threats from an abusive family member - that is, the inability to receive the necessary and immediate protection via the court system. According to a recent article appearing in The Sacramento Bee, the possibility of reducing funding to state courts means that the services will be cut back or eliminated. For victims of domestic violence, this creates an unthinkable dilemma: what if the courts, due to limited hours or possibly even closures, are unable to process a request for a restraining order in a timely manner, to ensure their immediate safety and protection? Domestic violence is a serious offense, one that requires prompt attention. If you or someone you know is involved in a domestic violence situation, it is important to contact an experienced family law attorney as soon as possible.

In California, domestic violence involves abuse or threats of abuse where the people involved have been in an intimate relationship, including those who are married, domestic partners, are dating or dated in the past, or live or lived together, or have a child together. Courts will also consider the abuse or related threats to be domestic violence if the abuser and the abused person are closely related by blood or by marriage.

The abuse can be manifested in many ways, such as: physically hurting or attempting to hurt someone, either with intent or in a reckless manner; sexual assault; threats of harm that make someone reasonably afraid that they will be seriously injured; or such menacing behavior as harassing, stalking, threatening, or hitting someone; possibly even disturbing someone's peace; or destroying another's personal property. It is also important to realize that abuse extends beyond physical actions -- it includes verbal, emotional, or psychological tactics as well.

Victims of such abuse may petition a local court for a domestic violence restraining order. This is a court order that helps to protect people from abuse or threats of abuse from someone they have a close relationship with. Victims who go to court to find some protection and relief need to know they will receive a rapid response with meaningful assistance. According to the article referenced above, it was typical for a court to attempt to process a temporary restraining order on the same day it was filed. Sometimes the abused person in a potentially explosive relationship cannot wait until the next day for help. Data indicates that victims are at a greater risk of being stalked, assaulted or even killed in the weeks immediately after moving out of the home or filing for separation or divorce.

A restraining order can require that the abuser stay away from you and your children and possibly other relatives, as well as require the person to comply with child support payments and to follow any child custody and visitation orders. It can be a life-saving tool for many people. Hopefully, the lawmakers will consider the vital needs of victims who rely on the courts for practical assistance.

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May 16, 2013

California's Highest Court Rules That Father's Sexual Abuse of Daughter Supports Finding That Sons Are Also Juvenile Dependents

1215912_paper_chain_in_the_dark.jpgIn San Diego, the juvenile court handles, among other issues, juvenile dependency cases. Juvenile dependency cases involve situations where there may be abuse or neglect in the home. It is the juvenile court's job to protect the children in the family. Domestic abuse aimed at children is reprehensible for many reasons, most notably because the relationship between parent and child is innately based on trust. Parents who are struggling with issues in juvenile court should consult with an experienced family law attorney who understands the local laws applicable to your case.

In a recent California Supreme Court case, In re I.J. et al., the father had custody of his five children: three boys and two girls. The Los Angeles County Department of Children and Family Services filed a petition with the juvenile court alleging that the father sexually abused one of the daughters for a period of three years. The court determined that all five children - daughters and sons -- were dependents of the juvenile court under Section 300 of California's Welfare and Institutions Code. The kids were removed from the father's home. He appealed.

While the court of appeals unanimously agreed with the juvenile court's determination that the daughters were dependents of the court, it was divided on the issue of whether the sons should also be taken away from the father's care without additional evidence. The Supreme Court granted the father's petition for review of whether the sexual abuse of one daughter supports the decision to declare the sons to be dependents of the court.

Under Section 300 of the Welfare and Institutions Code, the juvenile court is given the authority to determine when a child is to be a dependent of the court. There are many factors the court can consider, such as whether the child has suffered, or is at substantial risk of suffering serious physical harm or illness; the child has been sexually abused or there is a substantial risk that the child will be so; and whether the child's sibling has been abused or neglected and there is a substantial risk that the child will be also.

The court pointed out that there does not have to be evidence that the sibling actually be abused or neglected before the court can assume jurisdiction over the child, just that there is a substantial risk. The court thoroughly reviewed decisions within the state's appellate courts and found conflicting decisions on the matter.

The Supreme Court ultimately agreed with the decision below, holding that there was sufficient evidence to support the juvenile court's dependency ruling. In so holding, the court reiterated the lower court's characterization of the father's behavior as "aberrant in the extreme." Such behavior indicates that the parent "abandons and contravenes the parental role" - which, the court said, justifies an interruption of parental custody.

Domestic violence is the unlawful infliction of injury on another person. The victim may be a child, as in this case, a former spouse, or partner. Domestic violence cases are serious and require prompt and proper attention. Contacting a local attorney to advise you on the applicable laws and legal requirements is essential.

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May 9, 2013

California Court Ordered Mom to Pay Spousal Support to Man Who Allegedly Raped Her Daughter for Years

875412_balance.jpgIn San Diego and throughout California, the court may order one spouse to pay the other a certain amount of money each month when a couple divorces. This is called "spousal support" - or as many people know it, "alimony." In determining the amount, courts will look at a variety of intricate factors, including the length of the marriage, the standard of living throughout, the ability of each spouse to have a job, the potential impact on any children, age and health of the spouses, and their debts and property, just to name a few. There are countless considerations that only an experienced, local San Diego Family law attorney can help sort through to create the best possible spousal support plan.

Sometimes, the award of spousal support may not seem fair. According to Fox News accounts, when California mother Carol Abar married Ed Abar, her daughter was just nine-years-old. Shortly thereafter, Ed Abar began raping the child, who did not tell her mother for fear of his threats. Sixteen years later, when her daughter finally told Carol about the assaults, she promptly divorced him. During the divorce proceedings, a judge ordered Carol to pay her ex-husband $1,300 in alimony each month, despite her allegations of abuse toward her daughter. In rendering the support award, the judge allegedly told Carol that she had no proof of her husband's criminal conduct.

Carol has been paying alimony until last year, when further reports indicate that Ed Abar pleaded guilty to one of four rape charges and was sentenced to over a year in jail. At this point, a judge temporarily halted the spousal support payments, which had accrued to approximately $22,000 over the years. After serving the required sentence, Ed Abar was released and is now actually seeking an order from the court - to reinstate his alimony payments.

Keeping in mind that Abar was convicted of raping Carol's daughter, he nevertheless, asked the court for a resumption in support payments as well as $33,000 in past due support. There seems to be somewhat of a "loophole" in California law as it concerns domestic violence. For instance, in making determinations regarding the award of spousal support, courts will take into account, documented evidence of any history of domestic violence between the spouses. There is a "rebuttable presumption" against giving spousal support to an abusive spouse who has a criminal conviction for domestic violence against the other spouse.

Up until last year, California state law required a victim of spousal abuse to pay support to her attacker after a divorce. Governor Jerry Brown signed Assembly Bill 1522 to close that loophole, but there still happens to be no specific provision preventing child abusers from receiving spousal support.

It will be interesting to see whether the court orders a resumption of support payments. The way the law in California stands now, the court is not required to consider Ed Abar's repeated child abuse. Spousal support issues can be extremely complicated to sort through and, more often than not, require a full and comprehensive understanding of the local laws and procedures.

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