San Diego Divorce Attorney Blog

A recent decision from the Fourth District Court of Appeals in San Diego, In re I.A., et al, affirmed a trial court decision to remove two children from their home after the children allegedly witnessed one or more incidents of domestic violence between their parents involving weapons. The mother had appealed the trial court's order, challenging the sufficiency of the evidence.

The case began with a petition by the San Diego County Health and Human Services Agency on behalf of two children, identified as 4 year-old I.A. and 2 year-old N.A. The petition alleged that the children were at "substantial risk of serious physical harm" due to domestic violence between their parents, identified as M.G., their mother, and Ivan A., their father. The parents were apparently divorced but living together for financial reasons. The Agency alleged that the parents had an argument in the presence of the children in which Ivan threatened to hurt M.G., after which M.G. used a cup to hit Ivan on the head, making his nose bleed, and cut him on the arm and chest with a box cutter. Police arrested M.G. and charged her with assault with a deadly weapon, but Ivan declined to request a protective order and helped pay her bail.

The Agency took the children to a children's center and later placed them with nonrelative extended family. I.A., the older of the two children, told the social worker assigned to the case that he had witnessed arguments and incidents of violence between his parents, including attempts by Ivan to choke M.G., but he denied seeing the box cutter attack. While the parents' accounts of the fight conflicted in many ways, the main aggressor was found to the the mother, M.G. She reportedly expressed remorse and agreed to work services that would reunite her with the children.

After a hearing that included testimony from social workers and child care workers assigned to the case and who had worked with the parents and the children, the court concluded that domestic violence had occurred. It ordered the children placed with the nonrelative extended family member and ordered the parents to engage in reunification services. M.G. appealed, contending that the evidence did not support the court's findings of domestic violence or risk to the children.

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A San Diego area woman was ordered by a family court judge to pay $1,000 per month in spousal support to her ex-husband, who is currently serving a six-year prison sentence for abusing her. While this may seem contradictory, both the criminal conviction and the award of spousal support follow the letter of two separate areas of the law. Whether they follow the spirit of the law may be another question entirely. The woman appealed the order, arguing in part that her ex-husband has no expenses while incarcerated. The judge agreed and reversed the order, but the ex-husband will be within his legal rights to ask for spousal support again upon his release.

The divorce of Crystal Harris and Shawn Harris, filed in 2007, became final in 2010 after twelve years of marriage. That same year, Shawn Harris went on trial for an alleged incident of sexual assault in 2008, part of a years-long pattern of abuse. Crystal Harris had used a hidden recorder to obtain evidence of abuse. A jury convicted Shawn Harris of forced oral copulation, but additional charges of spousal rape by force and sodomy resulted in a hung jury. He received a sentence of six years' imprisonment and will be eligible for release in 2014.

Crystal Harris works as a financial analyst, earning around $110,000 per year. Shawn Harris worked as a car salesman, but Crystal Harris had supported him since the birth of their first child in 2002. Under those circumstances, California law permits a judge to award spousal support to the spouse earning less money. The judge awarded him $1,000 per month in spousal support and ordered Crystal Harris to pay $47,000 towards his legal fees.

The statute allows an award of up to $3,000 per month in the Harris' circumstances, but it also gives a judge discretion to reduce or eliminate the amount of the award when the receiving spouse has been convicted of domestic violence. The only time a judge is prohibited from awarding spousal support at all is when the spouse has been convicted of the attempted murder of the other spouse. The judge lowered the support amount to $1,000 because of the conviction, which Crystal Harris called the "rape discount."

Continue reading "California Woman Ordered to Pay Spousal Support to Abusive Ex" »

Approximately on November 1, 2011, a video of a father spanking his daughter, with his belt, became viral on the Internet. This video is shown below, although I caution you that this video is violent and disturbing. Since hundreds of thousands of viewers have already seen this video, I'm not disclosing anything that is private. The topic of spanking, or violent discipline--when will it lead to the loss of child custody rights? Caution: This video is disturbing so I recommend that you watch a few seconds just to understand the nature of the punishment.
As a San Diego Certified Family Law Specialist lawyer, my office handles many child custody cases. Many will read this posting and wonder, up to this point, why I am using the word "spanking" when the video displays, in my opinion, an angry, violent beating. However the question in law is when does any of this type of behavior lead to a loss of custody rights. This issue was raised by journalist Tim Sakahara in an online news story posted on HawaiiNewsNow. The mom died in an accident and the father is raising the child. The mom was the daughter of "Dog" Chapman (TV show--Dog, the Bounty Hunter). The father's child custody rights are at risk by virtue of an incident brought before the family court where the father is alleged to have beaten the child with a belt.

California child custody law involves terms of "joint custody", "legal custody", "physical custody" and other rights known as "visitation" rights. Visitation may be ordered as supervised visitation when the court believes that a parent is a danger to the child. My office brought a motion against a father who took a belt to his son leaving a visible mark on the child's arm which appeared to be a perfect impression of the belt buckle of the belt which the father used. My office is aware of the many legal cases and statutes which support a motion to take custody away from an abusive parent.

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Foster children, almost by definition, have faced more than their fair share of obstacles and difficulties. Whatever circumstances brought them into the foster care system, someone in a position of authority had to make a determination that those circumstances merited removing them from their homes and placing them somewhere else. It is therefore upsetting to learn that foster children in California and around the country are becoming the victims of identity theft in ever greater numbers, as reported recently in the California Bar Journal. Often because of the uncertain situation in which they live, foster children make an attractive target for unscrupulous identity thieves. California divorce attorneys who might have to deal with situations of abuse or neglect of children must understand the risks these children face.

Children usually land in foster care after a report of abuse or neglect leads to an investigation by state or local child protection agencies. Case workers may recommend removal of the child or children, who may then be placed with relatives or with families approved by the state as foster homes. In some instances, children may go to a facility such as a hospital or group home. While the removal may prove to truly be in the child's best interest, it often leaves the child emotionally, and as it turns out financially, vulnerable. Identity thieves may prey on them for their pristine credit scores.

An investigation led by the California Office of Privacy Protection in Los Angeles County looked at older children in the foster system to determine the extent of the problem and develop processes to repair damage and prevent future harm. State and county officials ran credit checks on 2,110 youths aged 16 to 17 in the foster system. Generally speaking, children should not have credit histories. They found that five percent of the group, 104 children, had credit problems. They identified 247 accounts opened in these children's names, with some resulting from simple errors and others from outright identity theft. They found an average account balance of $1,811, and in one case a child had a $217,000 home mortgage outstanding. The officials were able to clear all of the problem accounts.

Studies on identity theft have yielded widely varied results. A study by a security firm that deal with identity theft issues found possible identity fraud in 140,000 children out of a total of 172,000 enrolled in their program. Another firm found 10.2 percent of the children enrolled had suspicious outstanding credit balances.

Continue reading "California Foster Children Deal With Identity Theft" »

In a well researched and written article in examiner.com, writer Bonnie Russell's focus is the San Diego Mayoral race; however her article raises relevant issues regarding the Family Law Court, District Attorney's Office, domestic violence cases, new technology to protect victims and a growing number of family members and children killed while public servants reportedly fail to take family violence seriously. This is a significant accusation and one needs to read the entire article with all of the links to appreciate the expressed point of view.

With a La Jolla divorce law office I know that I am operating at a distance, along with my clientele, from the reality of family law and domestic violence from the view at street level. As a San Diego Certified Family Law Specialist attorney my cases involve high income support issues, business and income valuations, custody and move away custody (including International move away custody) cases. Ms. Russell's article raises the question of whether law enforcement treats an allegation of violence differently if the perpetrator and victim are in a family law child custody case. Does our government take family crime less seriously than other types of crime? However, every family law office, including mine, has encountered cases involving threats and actions of alarming family violence.

Mr. Russell links her article to a web page showing domestic violence statistics and another page detailing the murder of children in domestic violence matters. The article expresses opinions as to some specific public officials that are not my opinions. However the focus of her article is that there is new technology that may protect victims of domestic violence; namely a GPs devise that warns the victim when the perpetrator has violated the restraining order by coming dangerously close to the victim. The video below explains how this device may work.

Continue reading "Child Custody and Domestic Violence Explored" »

Attorney Liz Mandarano wrote in the Huffington Post that the "worst thing" a woman can do, in a family law case, is to use the Domestic Violence Restraining Order protection law to falsely accuse the other party and to gain some of the substantial procedural advantages which are intended for the real victims of domestic abuse. She makes several points in support of her conclusion (as to "worst thing") and the focus on this post will be to report the argument that she makes. Nowhere does the article suggest that the protection that the Domestic Violence Restraining Order process brings to the victim is not needed in our society. Her argument is that the process allows significant abuse to those who act in bad faith.

Ms. Mandarano states that there is little accountability in making domestic violence accusations or allegations. The restraining order process is brought to a conclusion so quickly that there is no opportunity for discovery efforts to test the accuracy of the allegations prior to the final hearing. The restraining order may be used to gain an advantage in a child custody case. As a San Diego Certified Family Law Specialist attorney my office has filed and defended against Domestic Violence Restraining Order cases. "Discovery" is a term for legal procedures of issuing subpoenas, Inspection Demand, interrogatories and conducting depositions. Ms. Mandarano's point is well taken in that these procedures should be allowed prior to the final hearing on a Domestic Violence Restraining Order petition.

The article provides an excellent example regarding a restraining order brought against David Letterman by a woman who claimed that Mr. Letterman was talking in code on his show--speaking in a way that was intended to personally threaten this woman who brought the restraining order application into a New Mexico court. The court initially granted a temporary restraining order based on these difficult to believe allegations. Subsequently another judge denied the restraining order request.

Continue reading "Divorce Court Restraining Order Considerations" »

As a San Diego Certified Family Law Specialist attorney, I've had thousands of child custody and custody move away cases handled in my family law office. I've had to research the Charlie Sheen custody story from many different reports. Charlie Sheen is the father of twin boys with mother Brooke Mueller. They lived together until reportedly Charlie pulled a knife on Brooke in 2009. The parents lived separately and raised their two, young children, until 3/21/11 when Brooke filed for a restraining order claiming that Charlie had threatened her. (Bob and Max were 23 months old at the time of the March 1, Domestic Violence Restraining Order request.) Mail Online published a detailed story as to the restraining order and you can see the first page of the restraining order, and the story summary, here.

Brooke was successful in obtaining the temporary restraining order on 3/1/2011. However, Domestic Violence Restraining Orders, granted on a temporary basis, must be heard in court 21 days later and, at this second restraining order hearing, the court will decide whether to grant a permanent restraining order. Domestic Violence Restraining Orders grant orders intended to offer protection to the victim (for example, by a stay away order, an order to "kick out" the perpetrator from the family residence, an order that the perpetrator turn over all of his/her guns to law enforcement, etc. And the Domestic Violence Restraining Order may include a child custody and visitation order. The restraining order served on Charlie Sheen did contain a custody order as Charlie had to turn over the twins to Brooke's custody.

Almost immediately after the restraining order was filed, granted and served, Charlie's lawyers, according to a news report, vigorously pursued and obtained a child custody agreement between Charlie and Brooke. This maneuver is frequently overlooked by those less experienced in child custody litigation. Instead of waiting to litigate the child custody case in court (with witnesses, evidence, mediators, etc...) Charlie and Brooke reach an out of court agreement.

Continue reading "Charlie Sheen Child Custody Case Explained" »