San Diego Divorce Attorney Blog

Fortunately for San Diego residents, California has one of the strictest laws on gun rights with respect to orders of protection. This is welcoming news to people, mostly women, who have been the victims of domestic violence. According to a New York Times article, some states do not require gun owners to relinquish their firearms, despite the issuance of an order of protection. Advocates cite constitutionally protected rights to bear arms, even in the face of a domestic violence court order. If you are involved in a domestic violence situation, it is imperative that you contact a local, experienced family law attorney to help you protect your safety and your rights.

California domestic violence laws prohibit the use of physical force or threats to traumatize household members. The laws also take into account that victims of domestic violence can include anyone with whom the alleged perpetrator shares a relationship. This may include dates, fiancées, roommates, children, current and former spouses, and biological parents of a child. Statistics show that, more often than not, when a woman dies in a domestic violence encounter, it is by the use of a gun. Advocates for victim's rights argue that the need to protect a woman's life should trump the right to bear arms.

Pursuant to California law, judges are mandated to order the surrender of firearms in virtually every domestic violence order. There is evidence that laws of this kind are making an impact: according to a 2010 study, there has been a 19 percent reduction in intimate partner homicides. In California, anyone who is served with a temporary restraining order has just 24 hours to hand over any weapons to law enforcement or they may sell the items to a licensed gun dealer.

Although these efforts are commendable, enforcement still remains an issue. In response to these concerns, the state set up a pilot program in 2006 to increase enforcement in San Mateo and Butte Counties. In 2010, when the state experienced fiscal problems, the program's funding was taken away. But San Mateo pursued other means of financing because, as far as they were concerned, their program was saving lives.

According to the head of the major crimes unit in San Mateo County, they have not had a firearm-related domestic violence homicide in the past three years. Just last year alone, they received 324 firearms by virtue of surrender or seizure from 81 people out of more than 800 protective orders. Under the program, each day a detective reviews a handful of protective orders and will follow up on the ones that make some reference to guns by going out and serving restraining orders and attempting to collect the firearms at that moment.

Threats and the use of firearms are not the only forms of domestic violence. Other examples of the infliction of a "corporal injury" on another may be accomplished through striking or hitting, exerting force or violence, cruel or inhumane punishment, physical, emotional, or sexual abuse, communicating criminal threats of harm, and neglect or endangerment of health or safety.

Anyone who is the victim of domestic violence should contact the appropriate authorities and seek the assistance of an experienced attorney to help you protect your safety and your rights.

Continue reading "California Law Requires The Surrender of Firearms for Virtually All Domestic Violence Court Orders" »

Just last month, an appeals court in New York sided with a wife who had been on the losing end of a prenuptial agreement -- and essentially threw it out. While the laws in New York do not govern marriages that take place San Diego, the unexpected decision is sending shockwaves through the Family Law community at large. Divorce attorneys throughout the country are talking about the decision, and many believe that a solidly drafted prenup will still hold up in court, despite the surprising decision. If you are contemplating marriage and believe a prenup is the right agreement for your situation, it is imperative, now more than ever, that you consult an experienced, local attorney to draft the agreement.

According to a Wall Street Journal article, four days before their wedding, Peter Petrakis asked his soon-to-be wife, Elizabeth Cioffi, to sign a prenuptial agreement. He gave her an ultimatum - if she didn't sign the document, he would call off the wedding that was already paid for by Elizabeth's father. She agreed to sign, but only after Peter promised to tear up the agreement once they had children. He also promised to put her name on the deed to the house. These last two provisions were not included in the prenup.

After having two sons and one daughter, Elizabeth claimed that Peter reneged on his end of the bargain. Under the prenup, Elizabeth is entitled to $25,000 a year. She argued in court that Peter fraudulently induced her to sign the agreement just days before their wedding. The court agreed, even though Peter's promise was not part of the prenup. It is reported that Peter will appeal the decision to the highest court in the state.

With the prenup decision under her belt, Elizabeth plans to initiate divorce proceedings and will seek half of her husband's assets, estimated at $20 million. Some divorce attorneys have speculated that this decision could be quoted in every case going forward. Others are not sure whether the ruling will establish precedent or if it will be considered a singular decision, applicable only to the facts in this case.

California law requires parties to wait seven days from the day they first see the prenup before signing the document. And as we discussed in an earlier blog post, two important rules governing prenups dictate that the agreement must be in writing and must be fair. "Fair" means that the parties are expected to disclose all relevant financial information, a party must not coerce the other party to sign, and both parties must fully understand what they are signing. As we have seen from the decision in New York, the court agreed that the prenup was not fairly executed, as Elizabeth relied on her husband's verbal promises to tear up the agreement after they had children.

In order to avoid, or at least minimize, unexpected arguments concerning the validity of a prenup, parties are strongly encouraged to contact a local, experienced family law attorney for guidance through this complicated process.

Continue reading "Appellate Court Voids Prenup on Basis of Fraud" »

A group of prospective adoptive parents from around the United States, including California, learned that they may be able to adopt the children they have grown to know and love after multiple years of waiting. The government of Kyrgyzstan in central Asia announced that it has amended its Family Code to allow international adoptions, after blocking the American families several times. International adoption has been a popular procedure among Americans in recent years. California law also provides several methods for adopting within the state or the U.S.

Kyrgyzstan suspended all international adoptions in 2008 due to multiple allegations of fraud in its social services programs. At that time, American families were waiting for final approval to adopt sixty-five Kyrgyz children. Those families, now known as the "Kyrgyz 65," have continued to wait for more than five years. During that time, Kyrgyzstan experienced a revolution in 2010 and a civil war between the country's Kyrgyz majority and Uzbek minority groups. A few of the Americans gave up during that time, and a few of the children were adopted domestically.

The Kyrgyz government lifted the ban on international adoptions in 2011, allowing some of the adoptions to go through. It reinstated a ban on most of the remaining adoptions in progress in 2012, pending further corruption investigations. Many international adoptions rely on the Hague Adoption Convention, which sets international standards for adoptions between countries, including safeguards of children's welfare and protections against fraud, corruption, and abuse. The U.S. signed the Hague Convention in 1994, shortly after its creation, and it gained the full force of law here in April 2008. Kyrgyzstan has not signed the Hague Convention, but many of its reforms since freezing international adoptions are purportedly intended to bring the country's system in line with the Convention. As of February 26, 2013, the country has lifted the ban.

Continue reading "International Adoptions in California May Begin Again from Central Asia" »

A Florida man who decided to take his wife's last name discovered that the state's Department of Motor Vehicles (DMV) suspected him of fraud as a result. Florida, along with most U.S. states, only provides a simple method for women to change their names upon marriage. A few states, including California, allow spouses of any gender to take the other spouse's name. While a wife taking her husband's name is a longstanding tradition, many couples are finding other options.

According to Reuters, Lazaro Dinh, née Sopena, married Hanh Dinh in 2011. In an "act of love," he decided to take her last name to preserve her family's name. His wife, who is originally from Vietnam, reportedly lived in refugee camps with her sisters, spending seven years separated from their father, before immigrating to the United States in 1990.

After the wedding, Dinh was able to obtain a new driver's license from the Florida DMV by showing his marriage certificate to a clerk and paying a fee. This is the procedure followed by newlywed women all over the country. He also obtained a passport showing his married name. In December 2012, over a year after the wedding, Dinh reportedly received a letter from the DMV, addressed to Lazaro Dinh, that accused him of fraud. It stated that the DMV would suspend his license within weeks.

Dinh called the main DMV office in Tallahassee and spoke to an official who told him he should go through the non-marital name change process. This requires a petition to a court with a $400 filing fee. The DMV official allegedly told Dinh that the marital name change process "only works for women." At a hearing on January 14, the DMV issued a Final Order holding that his license suspension for "fraud" was proper. Dinh is appealing the order, but remains unable to drive.

Continue reading "Man Takes Wife's Name After Wedding, Is Accused of Fraud by State" »

Children in California's foster care system used to "age out" of the system automatically upon reaching the age of eighteen, abruptly ending their access to services. Young adults found themselves turned loose without necessarily having the means or the skills to thrive in the adult world. California passed the California Fostering Connections to Success Act (CFCSA) to correspond to a federal statute and allow "nonminor dependents" to continue in the foster system long enough to acquire the means to join society. A California appellate court recently considered how to apply the definition of "nonminor dependent" in the case of a child who turned eighteen while in the system. In re K.L., No. D061577, slip op. (Cal. App. 4th, Oct. 25, 2012).

The CFCSA became effective on January 1, 2012. Juvenile courts may maintain dependency over qualifying individuals who have turned eighteen but not yet turned twenty-one. The California Welfare and Institutions Code defines a "nonminor dependent" in § 11400(v) as someone who turned eighteen while in a foster care placement under county or Indian tribal jurisdiction; who was eighteen years old or younger on January 1, 2012; and who is involved in a "transitional independent living case plan."

The case before the court involved K.L., a child who turned eighteen in September 2011. The San Diego County Health and Human Services Agency (the "Agency") had filed a petition under Welfare and Institutions Code § 300(d) based on allegations that her father had sexually abused her. The Agency removed her from her father's home in September 2010, claiming that K.L.'s mother knew she was not safe in her father's home, but had moved out three months earlier. The court declared K.L. a dependent child and ordered reunification services for the mother.

Continue reading "Court Rules on Definition of a "Nonminor Dependent" Under California Law" »

The case of an Arizona man seeking a divorce from his wife has encountered difficulty based on conflicting provisions of state law. The husband in the case, Thomas Beatie, is a transgender man, having been born a woman and transitioned to male through a variety of means. He obtained legal documents stating that he is a man, and he legally married his wife. He considers himself the father of his three children, but he, rather than his wife, gave birth to them, since he still has female reproductive organs. This has created a dilemma for the judge presiding over the couple's divorce, as Arizona law does not recognize same-sex marriages, and it is not clear if the state recognizes the validity of a marriage between a transgender man and a woman.

Beatie began the process of transitioning to male in 1997, when a psychologist determined that he had "male gender identification." He underwent testosterone therapy, and had his first of a series of surgeries in 2002. Arizona law allows a person, after a sex change operation, to obtain a new birth certificate and other official documents upon written request. After the first set of surgeries, he legally became a man.

He began dating his soon-to-be ex-wife, Nancy, in 1998, and they were married in 2003. Nancy was unable to have children, so Thomas bore all three of the couple's children. He made headlines as "The Pregnant Man," giving birth to children in 2007, 2009, and 2010. The couple separated in early 2012, and filed for divorce in Maricopa County Superior Court.

Continue reading "State Laws Present Difficulties for Transgender Man in Divorce Case" »

A mother appealed a court order giving jurisdiction over her daughter to the juvenile court. She argued, in In re Maricela H., that insufficient evidence existed to support the court's finding because no evidence demonstrated that she was in any way abusive or negligent. The appellate court held that the plain language of the statute does not require actual abuse or negligence, and that the evidence supported the court's ruling. A dissenting judge held that, even with the majority's interpretation of the statute, the juvenile court's jurisdiction was unwarranted.

According to the appellate court's opinion, the mother had little to no control over her daughter, Maricela H. The girl rarely told her mother where she was going, and she abused drugs and alcohol. The mother took Maricela's son in 2010 and cared for him after Maricela gave birth to him at the age of 15. Maricela reportedly left home again on September 16, 2011 and threatened to take the baby with her. In response, the mother contacted the police and the Department of Children and Family Services (DCFS).

DFCS took the baby into custody and placed Maricela into a Pasadena group home. Maricela reportedly expressed a desire to improve, but she continued to act out and abuse drugs. After she ran away from the home on November 8, 2011, she was detained, and DCFS filed a petition under California Welfare and Institutions Code § 300 to have her declared a dependent. Her behavior reportedly improved after that incident. The court declared her a dependent under § 300(b), based on a finding that she was at risk of "serious physical harm or illness" due to her mother's "failure or inability...to adequately supervise or protect" her. The mother appealed this decision.

Continue reading "Juvenile Court May Exercise Jurisdiction Over a Child Even Without Parental Negligence or Abuse - In re Maricela H." »

A couple who traveled from California to Ghana to adopt several children found themselves accused of child trafficking and imprisoned in the west African nation. Although a Ghanaian judge had reportedly approved the adoption, police arrested the couple and took the children away. After social media coverage of the arrest and detention led to intervention by U.S. authorities, the couple was released and reunited with the children. Eventually, they were reunited with the children in California. The case illustrates the importance of federal and international laws in many state adoption and child custody cases. As San Diego reportedly continues to experience high human trafficking rates, and the issue receives extensive scrutiny from law enforcement, these laws are critically important to understand.

The Associated Press reported on the arrest of Sol and Christine Moghadam in June 2012. The Irvine couple had two biological children, and they had applied to adopt four siblings from Ghana. They had traveled to Ghana to visit the children and finalize some legal procedures. A judge approved their application and named them the legal guardians of the four children, but they still needed visas from the U.S. State Department. Police reportedly arrested the couple as they were taking all six children to celebrate the judge's order. According to the AP, the police had received an anonymous phone call reporting that the Moghadams had forged the judge's signature on the legal documents, and accusing them of child trafficking.

Police put the couple in a jail cell and took the children to an orphanage, where they remained while the couple was in custody. The Moghadams were not able to contact the U.S. Embassy, but Christine reportedly still had her cell phone with her in the jail cell. She posted an account of what had happened on her Facebook page, and the story spread around the globe within twenty-four hours. U.S. officials intervened on the Moghadams' behalf, and Ghanaian police released them and their two biological children. According to a blog maintained by the Moghadams, the four Ghanaian children were reunited with them in the U.S. in September.

Continue reading "California Couple in Ghana to Adopt Children Accused of Child Trafficking and Jailed" »

A woman appealed a trial court's ruling, which held that her former partner is the child's second parent based on the Uniform Parentage Act (UPA). In her appeal in L.M. v. M.G., the woman argued that the court could not declare anyone to be the child's second parent because the child had a single-parent adoption decree. The Fourth District Court of Appeals was not persuaded and affirmed the trial court's ruling.

From 1998 to 2003, M.G. and L.M. cohabited as same-sex partners, although they never registered a domestic partnership with the state. M.G. sought to adopt a child from a woman in Tijuana, Mexico in 2000. She arranged for the woman to live in California until she gave birth, and the child was born in November 2000. M.G. officially adopted the child in October 2001, and she and L.M. shared childcare duties. L.M. told the court that, at the time of the adoption, they planned on registering as domestic partners, and L.M. planned on adopting the child as a second parent.

California allows a partner in a same-sex couple to adopt the other partner's child. The process generally matches the process of adoption of a child by a stepparent in a marriage. The California Supreme Court recognized this process, commonly known as second parent adoption, in Sharon S. v. Superior Court of San Diego County, 73 P.3d 554 (Cal. 2003).

M.G. and L.M.'s relationship ended in 2003. As a result, the two did not complete the adoption process for L.M. After their separation, the child primarily lived with M.G., but he regularly stayed overnight at L.M.'s house several times a month. L.M. said she did not commence court proceedings to establish parentage at the time on the advice of several attorneys, who noted the lack of legal precedent before the Sharon S. case and M.G.'s willingness to share custody.

Continue reading "California Court of Appeals Affirms Parental Rights of Former Same-Sex Couple" »

A bill pending in the California Legislature, SB 1476, would modify the Family Code by allowing a court to designate more than two people as legal parents of a child, if the court concludes that doing so would be in the child's best interest.

State Senator Mark Leno, D-San Francisco, introduced the bill on February 24, 2012. He says that it would amend California law to match the present reality of many families. State law allows a court to designate a person other than a child's biological parent as a legal "parent," but it explicitly limits the number of parents to two. The bill, if enacted, could impact children in families with unmarried parents, step-parents, or parents in same-sex relationships. Critics, in addition to rhetoric about changing the definition of family, contend that the bill could expose children to further stress in the event of a divorce, as custody could be split three or more ways, instead of just two.

Senator Leno's inspiration for the bill, according to Debra Saunders of the North County Times, was a child known in court documents as "M.C." M.C.'s biological parents had a brief relationship but never married. M.C.'s mother, "Melissa," married her former partner "Irene" during the brief period when same-sex marriages were legal in California. M.C.'s biological father, "Jesus," provided support for the child. Melissa later sought a divorce from Irene and started a new relationship. Melissa's new boyfriend, allegedly with Melissa's "complicity," stabbed Irene. Jesus, who by then lived in Oklahoma, sought custody of M.C. Because Irene was legally married to Melissa when M.C. was born, she was the presumed second parent under California law.

Continue reading "California Bill Would Expand Criteria for Legal Designation as Parent of a Child" »

A Tennessee woman who now resides in California must pay $150,000 in child support for the adopted child she gave up in 2010, according to a Tennessee judge's ruling. Torry Hansen made headlines when she reportedly put her adopted son on an airplane back to Russia by himself. The adoption agency filed suit against her for child support last year.

After adopting the then-7 year-old boy from Russia with the help of a Seattle-based international adoption agency, Hansen claimed that she became concerned with the child's behavior. According to Hansen's mother, the boy became violent, hitting and screaming at Hansen and threatening to kill family members. Hansen claims that her parents took him, and that they made the decision to send him back to Russia. No one ever contacted the police or the state's social services agency.

The boy arrived alone at the Moscow airport in April 2010. He reportedly had a note in his jacket pocket from Hansen, addressed to the Russian Ministry of Education, calling the boy "mentally unstable" and "violent," and claiming that he had "severe psychopathic issues/behaviors." The note accused the Russian orphanage of lying about the child's mental health. Russian officials vigorously disputed Hansen's descriptions of the boy, and the child reportedly spent six weeks in a psychiatric hospital due to emotional trauma. A Russian court ruled that Hansen's actions amounted to child neglect and abuse. The boy currently lives in a group home for children near Moscow.

Continue reading "Judge Upholds Child Support Order Against Woman Who Returned Adopted Son to Russia" »

The Supreme Court of South Dakota recently upheld a lower court's ruling terminating the parental rights of a California man, identified as M.A.S., finding that the state's efforts to reunite the child with the father were not successful and that termination is in the child's best interest. The case involved a complicated intersection of state and federal legal systems.

South Dakota's Department of Social Services (SDDSS) removed the child from the mother's home, while the father lived in California. The Golden State's Department of Social Services (CDSS) reportedly monitored the father's progress on court-ordered services. The federal Indian Child Welfare Act (ICWA) also played a role in the case because both the mother and the child are members of Montana's Fort Peck Sioux Tribe.

According to the court's ruling, SDDSS took the child, identified as P.S.E., into custody in June 2009, shortly after her first birthday. The mother identified M.A.S., who lived in California, as the father. He said that he did not know he had a child until SDDSS contacted him. The mother admitted to neglect of the child at an adjudicatory hearing, and her rights were later terminated with no appeal.

The trial court found that M.A.S. had not provided P.S.E. with "care and support", but through no fault of his own. SDDSS told the court at M.A.S.'s adjudicatory hearing that its goal was to eventually place the child with the father.

Continue reading "Court Upholds Termination of California Man's Parental Rights" »

California's family law system provides little-known remedies for parents who may not be ready to fill the role of parents. Intended to deter the abandonment of children by panicked new parents, the "Safe Surrender" program allows parents to drop off a newborn child with no risk of prosecution. While the program may have saved many children from abandonment, it has also created new problems.

A fire station in Oceanside reported that a mother in her mid- to late-20's surrendered a newborn baby boy on Sunday, June 10. She reportedly said that she wanted to put the baby up for adoption. Firefighters described her as "heartbroken," but "calm and cooperative." She stayed at the station to complete an optional health questionnaire, which will help the state and potential adoptive parents understand the child's medical needs. Authorities took the child to a hospital for a checkup, but firefighters said he looked healthy. News media reported that this was the second baby surrendered at the Oceanside station in the past eighteen months.

California created the Safe Surrender program in 2001, reportedly in response to a growing number of infant abandonments and deaths. Governor Schwarzenegger signed a bill permanently including the program in state law in 2006. According to the California Department of Social Services, 407 infants were surrendered in the first ten years and three months of the program. Another 151 newborns were reportedly rescued after illegal abandonment.

Continue reading "Mother Surrenders Child at "Safe Surrender" Site at Oceanside Fire Station" »

The Maryland Court of Appeals, the state's highest court, ruled unanimously that a same-sex couple with a legal California marriage could obtain a divorce in Maryland. The state currently does not otherwise recognize the legality of same-sex marriages from other states. Same-sex marriage will begin in Maryland in January 2013, although that is subject to a referendum on election day in November. If the law passes the referendum, then the situation that the couple involved in this case found themselves in will be reversed, as Maryland will allow same-sex marriage while California no longer does.

The Court of Appeals considered the appeal of a trial judge's 2010 refusal to grant a divorce to two women who were married in California during the brief period when same-sex marriage was legal there. Jessica Port and Virginia Anne Cowan went from their home in Washington, D.C. to San Francisco, California in 2008 to get married. The exchanged vows in the courthouse and returned home. Two years later, they had separated but could not divorce. Port had purchased a house in Maryland, so she filed a petition there. The separation was reportedly amicable, with the two separating their belongings and even sitting next to each other in court. The judge, however, said that since Maryland law does not recognize their marriage as valid, Maryland courts cannot grant them a divorce.

Continue reading "Maryland Court Allows Divorce of Same-Sex California Couple, Does Not Allow Same-Sex Marriage" »

Facebook, the wildly popular social networking website, offers an automated service that matches users to other users it thinks the person might know. It looks at shared friends and interests and occasionally notifies a user that it has one or more friend suggestions. For a corrections officer in Seattle, this feature caused some trouble, as it matched up his new wife with the woman he married a decade ago but never divorced. Alan L. O'Neill now faces a charge of bigamy, which could get him up to a year in jail.

O'Neill, formerly known as Alan Fulk, married his first wife on April 16, 2001. The two lived together for a number of years, but they separated in 2009. Although they have lived separately ever since, they apparently never obtained a divorce. He has reportedly worked as a Pierce County, Washington corrections officer for about five years.

In 2011, O'Neill petitioned to change his last name from Fulk to O'Neill. A judge approved the name change, and shortly afterwards, on December 19, 2011, he married his second wife.

In early 2012, O'Neill's first wife was using Facebook when she received a recommendation that she become "friends" with the second wife. The two knew each other. According to the Associated Press, O'Neill's first wife was arrested in 2010 because of an "altercation" with O'Neill's then-future second wife. When the first wife viewed the other woman's Facebook page, she found pictures of her and O'Neill, dated a few weeks earlier, dressed for a wedding and cutting a wedding cake.

She reportedly called O'Neill's mother immediately after finding the pictures. The mother apparently told O'Neill, who showed up at the first wife's apartment within an hour. When asked, O'Neill confirmed that they were still married, but that he would "fix it." He asked her not to tell anyone about the two marriages. Instead, she contacted law enforcement, who searched court records to determine O'Neill's marital status. Prosecutors charged him with one count of bigamy on March 8.

All U.S. states prohibit multiple marriages through both their family and criminal codes, but states vary in how they treat the criminal side of the issue. Under just about any state's system of family law, a marriage that a person enters into while still married to someone else is void. Some states impose criminal penalties on a person who knowingly marries more than one person, while others punish both parties to a second marriage.

Continue reading "Bigamy Charge Results When Social Media Connects Man's Wife to His Other Wife" »