San Diego Divorce Attorney Blog

The U.S. House of Representatives passed the Violence Against Women Act (VAWA) on February 28, 2013, ending months of wrangling over various expanded terms included in the reauthorization of the law passed by the Senate. First enacted in 1994, VAWA provides federal funding to support investigation and prosecution of violent crimes against women, including domestic violence, and by allowing civil claims by victims of violent crimes. The reauthorized version, which will now go to the president for his signature, includes expanded protections for Native American, immigrant, and LGBT populations.

Domestic violence is a tragic and unnecessary occurrence in divorce. A simple search on the web of words like "divorce" will quickly lead to news stories of domestic violence incidents, some fatal. While domestic violence can affect anyone, the common perception is of men or husbands as the perpetrators. We condemn all domestic violence, and we support efforts at prevention and support of victims.

Then-Senator Joseph Biden drafted the original VAWA bill. It passed both houses of Congress with bipartisan support, and was signed into law by President Clinton on September 13, 1994. Congress has reauthorized it twice before this year, in 2000 and 2005. The White House claimed earlier this year that domestic violence rates decreased by sixty-seven percent between 1993 and 2010, and that more victims are willing to report assaults. VAWA created the Office on Violence Against Women (OVW) in the Department of Justice, which assists communities in creating policies and programs to combat "domestic violence, dating violence, sexual assault, and stalking." It also administers grant programs that support local governments, nonprofit and community organizations, and schools that are developing programs to assist victims and improve law enforcement.

Continue reading "U.S. Congress Passes Renewal, Expansion of Violence Against Women Act" »

A husband appealed pendente lite orders terminating spousal support and declining to modify child support in a divorce matter. In re Marriage of Freitas, No. D060281, slip op. (Cal. App. 4th, Oct. 3, 2012). The trial court entered orders awarding child support to the wife and spousal support to the husband. It later declined to modify the child support order, holding that a recent precedent decision prohibited it from doing so, but it terminated the wife's child support obligation, citing the husband's prior conviction for domestic violence. On appeal, the husband argued that both decisions constituted error. The appellate court affirmed the spousal support order and remanded the child support order.

Christine and Kevin Freitas separated in March 2010 after more than eighteen years of marriage. The couple have two children, who were thirteen and nine at the time of the separation. The wife filed for divorce in April 2010. The husband filed an order to show cause (OSC) that August requesting spousal support and child support. The wife opposed a spousal support order, informing the court that the husband had an October 2006 conviction for battery against her, and that in July 2010, the court entered a domestic violence restraining order against the husband. After a hearing on the OSC in October 2010, the court awarded the husband $800 per month in spousal support while the divorce was pending, and awarded the wife $7 per month in child support. The court reserved jurisdiction to modify the support awards for September and October, giving the husband until January 4, 2011 to present additional evidence of her income.

Continue reading "Modification of Spousal and Child Support Orders During Pending Divorce Litigation Reviewed by California Appellate Court" »

A mother appealed a juvenile court's declaration of dependency over her eleven year-old daughter in In re Destiny S. The court had taken her daughter from her custody and placed her with a family member. It entered an order finding that the daughter was at risk of physical harm, citing the daughter's school tardiness during the previous year and the mother's history of drug use. The appellate court reversed the trial court's ruling, finding that the evidence did not support any risk of "serious physical harm."

The Department of Children and Family Services (DCFS) received a report in September 2011 that an unknown individual was sexually abusing eleven year-old Destiny S. After an investigation, DFCS determined that the allegation was "unfounded." Destiny's mother, Rosemarie H., admitted to DFCS investigators that she smoked marijuana every week, and that she had previously used methamphetamine. DFCS petitioned the court to declare Destiny a dependent because of Rosemarie's drug use. It cited § 300(b) of the California Welfare and Institutions Code, which gives the juvenile court jurisdiction over a child when the court finds "substantial risk" of "physical harm or illness" because a parent is unwilling or unable to provide proper supervision. The court placed Destiny in the custody of her maternal grandmother when her mother tested positive for methamphetamine use.

Evidence presented at a hearing in January 2012, which was not contradicted, showed that Destiny was a "healthy, happy preteen," that she had a good relationship with her mother, and that her mother took good care of her. Destiny stated that she wanted to live with her mother. The principal of Destiny's school said that she attended school and had no discipline problems, and that the tardiness problems of the previous year had not continued. The mother had three months of negative drug tests. The juvenile court nevertheless concluded that Destiny faced the risk of substantial physical harm in her mother's custody, based on her history of school tardiness and her mother's drug use.

Continue reading "Parent's Drug Use, Tardiness to School are Insufficient to Show Risk of Imminent Harm to a Child in a Dependency Proceeding" »

San Diego County has one of the highest rates of domestic violence in California, based on calls to law enforcement. It also has a wealth of resources available to victims of domestic violence and people who fear they may become victims. California's family laws provide some resources and remedies in cases where domestic violence is a factor, including protective orders, but these are generally only available through the courts. Everyone should be aware of resources like hotlines, shelters, and law enforcement programs that may be able to help in an emergency.

"Domestic violence" is generally defined as force, or the threat of imminent force, against an adult member of a person's household. This could include a spouse or former spouse, a dating partner, the other parent of a person's child, or some other adult relative by blood or marriage. The gender of neither an alleged assailant nor an alleged victim is relevant to the legal definition of domestic violence.

A review of five years of data, ending with 2010, on calls made to law enforcement throughout California revealed that, out of the ten largest counties in the state, San Diego County had the second highest volume of domestic violence calls in four of the five years. Only Fresno County had a higher rate. A spokesperson for the District Attorney's Office suggested, in a report by the San Diego Union-Tribune, that programs supporting domestic violence victims might result in a higher volume of calls, encouraging reporting of incidents by people who might not otherwise feel safe to do so.

Continue reading "Domestic Violence and Divorce Cases in San Diego" »

The California Supreme Court affirmed an adjudication of dependency for two children in Los Angeles Co. Dep't of Children and Family Svcs. v. William C. A father had appealed the adjudication of dependency of his two surviving children based on a section of the dependency statute, California Welfare and Institutions Code § 300(f), that allows a dependency adjudication when a parent is found to be responsible, through abuse or neglect, of the death of another child. The Supreme Court held that the statute did not require a finding of criminal negligence, nor did it require proof of a present risk to the surviving children.

According to the court's opinion, William C. and Kimberly G. were the parents of three children: Ethan, Valerie, and Jesus. The parents separated in the spring of 2009, and the children lived with William in William's mother's home. On June 17, 2009, William noticed that Valerie's arm was injured, apparently due to falling off of a bed. He intended to take her to the hospital, but did not have a child safety seat in the car he was driving. Instead, Valerie, who was about two years old, sat in William's sister's lap while William drove. A car collided with William's car, and Valerie sustained fatal injuries. Although William was reportedly not at fault in the accident itself, he faced criminal charges for child endangerment. He reportedly admitted to transporting a young child without a safety seat and paid a $100 fine.

The Los Angeles County Department of Children and Family Services (the "Department") responded to a report of the neglect of Ethan and Jesus about a week later. The Department claimed the children "were dirty and seemed unsupervised." Opinion of the Court at 5. The Department said that it also learned that Kimberly had a history of mental health problems and cognitive impairments, and had an alleged pattern of domestic violence against William. Kimberly's family, meanwhile, alleged that William's family severely neglected the children.

Continue reading "California Supreme Court Affirms Adjudication of Dependency of Two Children Due to Sibling's Death in a Car Accident: Los Angeles Co. Dep't of Children and Family Svcs. v. William C" »

A San Diego father appealed a superior court ruling in a juvenile dependency case that denied him reunification with his two sons. The Fourth District Court of Appeals reviewed In re A.G., et al and affirmed the superior court's ruling. It held that California law required the superior court, given the circumstances of the case, to deny services to the father, and that the father failed to meet his burden of proof that reunification would be in his sons' best interests.

The appellant, Hugo G., is the presumed father of four children, two sons and two daughters. The San Diego County Health and Human Services Agency (HHS) filed dependency petitions for all four children in October 2011. At that time, the two sons were eight and three years old, and the daughters were eleven years and nine months old, respectively. The dependency petition alleged that Hugo sexually abused the older daughter, A.G., in January 2010. HHS asserted jurisdiction over the other three children on the grounds that a sibling had been abused.

An amended petition, filed by HHS in November 2011, alleged that Hugo physically abused A.G. and the two sons beginning in September 2010. The court denied Hugo's request for reunification services, including a child abuse class, but ordered them for the children's mother. Hugo appealed the superior court's denial of reunification services only as to the two sons.

Continue reading "Reunification with Children Denied for California Father Because of Abuse Allegations" »

Prosecutors in Los Angeles decided recently not to file charges against actress Lisa Robin Kelly over an alleged incident of domestic violence in April. Kelly was arrested after her roommate, John Michas, accused her of assaulting him. The media alternately describes Michas as her roommate and her boyfriend. Kelly is best known from the television series "That '70s Show" as the main character's older sister, Laurie Forman. Her case spotlights the difficulties in both alleging and defending against allegations of domestic violence.

Police arrested Kelly shortly after midnight on Saturday, March 31, 2012, after Michas told police that she had assaulted him. The arrest was reportedly based on suspicion of corporal injury to a spouse, a felony offense under California law. Kelly went free on $50,000 bond.

California defines "corporal injury to a spouse" as willfully inflicting "corporal injury resulting in a traumatic condition" on a spouse or "cohabitant," a former spouse or cohabitant, or the parent of the accused's child. Cohabitation does not require marriage or the appearance of marriage in order to qualify under the statute. Punishment can include two to four years in state prison or one year in county jail, as well as a fine of up to $6,000.

Continue reading "Actress Will Not Face Charges for Alleged Domestic Violence" »

A bill pending in the California Legislature intends to close a loophole that sometimes causes abused spouses to owe maintenance payments to their abusers. Under the bill, people convicted of certain criminal offenses committed against a spouse would be precluded from obtaining benefits, such as spousal maintenance or attorney's fees, from the abused spouse in a divorce case. The law would also amend the California Family Code to award one hundred percent of the community estate to a spouse who is the victim of a "violent sexual felony" committed by the other spouse. The Family Code currently awards one hundred percent of the community estate to one spouse when the other spouse is convicted of either the attempted murder or solicitation of the murder of that spouse.

The bill, filed in the state Assembly as AB 1522, passed the Judiciary Committee on a 7-1 vote on March 20. The bill was introduced by Assemblywoman Toni Atkins, D-San Diego, and it has the support of the San Diego District Attorney, the California District Attorneys' Association, and the San Diego Board of Supervisors.

A San Diego case, previously reported in this San Diego Divorce Attorney Blog, inspired the bill. Crystal Harris, a San Diego financial analyst, was ordered by the judge in her divorce case to pay $3,000 per month to her ex-husband in spousal maintenance. This was despite the fact that her ex-husband, Shawn Harris, is serving a six-year prison sentence for sexually assaulting her. The judge reduced the spousal maintenance amount to $1,000 per month because of the domestic violence allegations. On appeal, the order of spousal maintenance was reversed, based in large part on Crystal Harris' argument that Shawn Harris has no expenses while in prison. Under current law, he could ask the court for spousal maintenance again when he is released. His release is scheduled for 2014 if he serves his entire sentence.

In a separate proceeding, a judge ordered Crystal Harris to pay her ex-husband $47,000 in attorney's fees. This was based on an agreement the Harrises made before Shawn Harris' criminal case, one that Crystal Harris does not believe should have been honored given subsequent events. The total amount later came down to $26,000 when the amount of restitution owed by Shawn Harris in his criminal case was deducted from the total.

Crystal Harris testified before the Assembly Judiciary Committee in support of the bill on March 19. She says she felt "re-victimized" by the spousal maintenance and attorney's fee orders. Other supporters of the bill say it is necessary to prevent a second injustice against domestic violence victims, and to give "peace of mind" to said victims.

Continue reading "California Bill Would Prevent Convicted Abusers from Receiving Spousal Maintenance" »

Democrats in the United States Senate began a push to reauthorize the Violence Against Women Act (VAWA), along with new provisions that would expand the law's protections to additional groups of people. The proposal has proven controversial, which may not be surprising considering the contentious political atmosphere in Washington at the moment. Supporters of the law, which has found broad support in Congress in the past, argue that it is necessary to provide protection to certain vulnerable groups. Critics in the Senate have expressed general support for the new bill, but also concern over some of its provisions. Some Republicans have questioned the timing of the campaign for reauthorization, but a full debate has not yet occurred that might illuminate competing positions on the law.

VAWA became law in 1994 when President Bill Clinton signed it. It had passed Congress with broad support. The law authorized up to $1.6 billion to go towards enhancing law enforcement's ability to investigate and prosecute violent crimes against women. It made people convicted of violent crimes against women liable to their victims for restitution, and it provided victims with a form of civil relief if prosecutors opted not to prosecute their cases.

VAWA also provides funds for a variety of services to help victims of domestic violence and programs to educate the public about the issues. It supports community programs aimed at preventing violence, programs for immigrant women, crisis support services, and legal aid. The law includes provisions to help victims who have disabilities, and it provides protection for women who face eviction due to domestic violence-related incidents. VAWA has been instrumental in providing resources for people in abusive relationships who need assistance with divorce, child custody, and other legal matters.

Congress reauthorized VAWA with broad bipartisan support in 2000 and 2005. The 2000 reauthorization created the Office on Violence Against Women as part of the Department of Justice. The Office administers grants and helps develop national policies relating to domestic and dating violence and sexual assault. The statute requires reauthorization in 2012 or the law will expire.

The proposed reauthorization would expand the law's protections to immigrants, including undocumented immigrants, Native Americans, and same-sex couples. It would give Native American tribes jurisdiction to prosecute non-members who are accused of violence against tribe members. This would, according to NPR, supersede a 1978 Supreme Court ruling holding that tribal courts lack that jurisdiction, even if the alleged crime occurs on a reservation.

Continue reading "Senate Democrats Push for Reauthorization of the Violence Against Women Act" »

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.

Continue reading "Court Approves Removal of Children from San Diego Home Because of Domestic Violence" »

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" »

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 the past year, San Diego County has had 17,000 reported incidents of domestic violence. Twelve domestic violence cases resulted in murder. Both the City and County of San Diego recently announced the formation of the Domestic Violence High Risk Response Team, a collaboration between city and county law enforcement to identify cases with a high risk of extreme violence or death and to direct resources to the victim right away. Additionally, a program called Thriving, Healthy Relationships in Violent-Free Environments will handle lower-risk cases involving victims living with minor children.

San Diego seems to have had a surge in domestic violence recently. The Response Team's formation is partly a response to the October 2010 murder of 19 year-old Diana Gonzalez. Gonzalez's estranged husband, Armando Gabriel Perez, is alleged to have murdered her on the San Diego City College campus. Perez is still at large, and authorities believe he is hiding in Mexico. Gonzalez's death has become a rallying cry for many to fight against domestic violence. California Governor Jerry Brown signed a bill into law that was inspired by the Gonzalez case. The new law enhances punishments for people convicted of strangling or suffocating a spouse or partner.

Another case that helped inspire the Response Team is that of Rosa Lisowski, who had filed for divorce from her husband in 2008 after enduring years of abuse. She disappeared in March 2008. Her husband was convicted of her murder and committed suicide in jail in 2010 while awaiting sentencing. Her niece, Veronica Ramos, said that Lisowski was not aware of resources available to her and that she did not report much of the abuse she suffered.

The Response Team, led by the district attorney's office, includes local law enforcement, county officials, and nonprofit organizations. Law enforcement or medical officials will identify cases presenting a high risk for violence or homicide and will report the cases to the Response Team. The Response Team will then determine what resources are needed to provide immediate help to the victims. The Thriving, Healthy Relationships in Violent-Free Environments program will be headed by the city attorney's office and will focus on early intervention to keep situations from becoming more violent or dangerous.

Continue reading "Preventing Domestic Violence in San Diego" »

In a recent "Not To Be Published" (this case cannot be cited in legal Points and Authorities) appellate court decision, In re the Marriage of CELIA L. and ROBERT N. BURNS, a Father's appeal of a trial court decision, allowing the Mother to move away with the minor child, was dismissed. The purpose of this posting is to provide a brief analysis of this case to better understand why the motion was successful for the Mother and why the Father's effort to block the move away failed.

As a San Diego Certified Family Law Specialist lawyer, I have handled many child custody move away cases (also known as child custody relocation cases). With a La Jolla family law office, we see clients who are financially mobile. We see clients who have school or work opportunities in other parts of the country or the world. Also, it is common that when a marriage breaks up, the primary custody parent will want to move back home with his/her family in another state. The United States is a very mobile country. People have a desire or a need to move. It is our job to know when the Court is likely to allow the move or likely to deny that a parent may relocate with a child.

In the Burns case, the Father stated that when the mother left the marriage, she moved, with a child of the marriage, to another city, and that relocation was unlawful and should not have permitted by the trial court. The parties met in 2004 and married in 2005. The marriage was unsuccessful, almost from the start. Allegations of anger, domestic violence and irreconcilable differences led to the Mother filing for divorce in 2007. Amidst Order to Show Cause motions for custody and Domestic Violence Restraining Order filings, the Mother moved away with the child. Immediately we see that the Father made procedural mistakes at this early stage of the case. Possibly the Father was a self represented litigant at this stage as the court proceedings contain many over the top statements by the Father in connection with the custody case. Hyperbole and drama is not a good substitute for evidence.

Continue reading "California Child Custody Move Away Request Granted" »

The Daily Mail published a report of a wealthy California Husband, Mr. Saadian, who reportedly engaged in extramarital activities, contracted a STD (sexually transmitted disease) and passed the STD on to his Wife. This alone is not "news" as this situation occurs all the time in modern day America. What makes this case different, according to the report, is that the Wife retained a Family Law lawyer, filed for a divorce, and hired a tort lawyer then sued her Husband for sexual battery, fraud, infliction of emotional distress, among other civil tort claims.

The Saadian tort case was filed in the Los Angeles Superior Court and was tried in front of a jury. The jury came back with an award in favor of the Wife in the amount of $2.49 million. The news report states that the Wife was awarded future medical treatment, approximately $2 million for past and future pain and suffering plus punitive damages.

As a San Diego Certified Family Law Specialist attorney I am referred cases which occasionally involve a tort case inside the divorce case. Researching the law, it is clear that the ability of a spouse to sue the spouse for a marital tort has changed significantly in recent years. If you are filing for a divorce and you have been the victim of a domestic violence incident(s), or other marital torts (for example, rape, fraud, conversion, etc.) disclose this to your family law attorney so that important procedural decisions may be made as to both legal actions. More than once I have brought a civil litigation trial attorney into the divorce case so that the marital tort may be correctly handled. Keep in mind that the Saadian case went to a jury. A family law trial will never go to a jury so the civil litigation attorney may not want to join the marital tort case to the divorce case.

Continue reading "California Divorce Report: Marital Tort" »