Posts Tagged ‘Family Law’

FAMILY LAW UPDATES

December 19, 2012

NEW LAW TARGETS CHILD ABDUCTION:  NO NEW PASSPORTS!

by Sara B. Morgan, Esq.

Under existing law, upon the institution of divorce, nullity, or legal separation proceedings, certain temporary restraining order automatically go into effect. Family Code, Section 2040.

Included amongst these orders, commonly referred to as “Automatic TRO’s” or “ATRO’s”, is a temporary restraining order precluding either party from removing any minor children from the state without prior written consent from the other party, or a court order. Family Code, Section 2040(a)(1).

The State Legislature, in an effort to target and prevent child abduction, has enacted Keisuke’s Law, also known as Senate Bill 1206. Effective January 1, 2013, the automatic temporary restraining orders under Family Code, Section 2040 will now also restrain the parties from applying for new or replacement passports for any minor children of the parties without the prior written consent of the other party, or a court order. S.B. 1206.

This legislative change may prove quite beneficial to parents involved in divorce, nullity, or legal separation proceedings, as well as the Family Law courts in California. Removal of a child is a common fear for such parents, particularly when the other party has ties abroad. Many an ex parte hearing was borne of word that a child’s passport application has been submitted. With the passage of Keisuke’s Law, the legislature may be able to give parents peace of mind while simultaneously lessening the Family Law court’s caseload.

DIVORCE: MAKE YOUR EX PAY (for attorneys fees, that is)

November 21, 2012

By Sara B. Morgan, Esq.

While helping people with their divorces, I frequently hear them say that they had put off moving forward with their split because of the cost involved. What many fail to realize is that California law may provide for a way to pay for their attorney’s fees and costs.

In Family Law matters such as divorce, legal separation, and nullity actions, the Court has the ability to order the other party to pay your attorney’s fees. According to the Family Code, the Court may “render any judgment and make orders that are appropriate concerning … [t]he award of attorney’s fees and costs.” Family Code, Section 2010(f).

There are different types of attorney’s fees and costs awards. One type is about equality, and requires the Court to ensure that each party has access to legal representation to preserve each party’s rights. Family Code, Section 2030(a)(1). The Court considers the income, needs, and ability to pay of both parties.

Another is type of award is a sanction, to punish or avoid improper behavior which frustrates the policy of the law to promote settlement of litigation, and to encourage cooperation between the parties in order to reduce the cost of litigation by encouraging cooperation between the parties and attorneys. Family Code, Section 271(a).

These types of awards can be requested upon the filing of the initial petition, or any time thereafter, including for postjudgment appellate, modification or enforcement proceedings. Family Code, Section 2030; Marriage of Green (1992) 6 Cal. App. 4th 584, 593; Bidna v. Rosen (1993) 19 Cal. App. 4th 27, 38.

So, whether you are currently involved in or considering a divorce, legal separation, or nullification, you should contact a qualified, knowledgeable attorney immediately to discuss your options. At the law firm of Heiting & Irwin, we offer free consultations to prospective clients, so there is no cost to find out if we can help you. Please call our office at (951) 682-6400.

WHEN CHILD SUPPORT & CUSTODY GET UGLY: IS IT DEFAMATION?

October 13, 2012

By Sara B. Morgan, Esq.

There is no such thing as “happy law”, especially in contested child support, custody, and visitation cases. Of course, the nature of the contested matter is expected to breed a degree of contention and aggravation between the two (or more) parties each contending for what they believe is in the best interests of the child. Unfortunately, this discord often spills over onto the surrounding family members, particularly grandparents, dragging them into the dispute. But what happens when the drama spills over into the public? Is it defamation for a parent or a grandparent to make those nasty comments about you?

A recent court decision, Chaker v. Mateo et al., says it may be free speech. In that case, Plaintiff Darren D. Chaker and his ex-girlfriend Nicole Mateo were engaged in a contentious paternity and support dispute regarding their child. Plaintiff Chaker filed the suit against Nicole and her mother, Wendy Mateo, for alleged defamatory statements posted on various internet websites. Chaker v. Mateo et al, 2012 DJDAR 13830. Some statements, posted on a consumer rating/awareness website, warned would-be consumers to steer clear of the plaintiff and his forensics business, saying he was scary and may take steroids. Other statements, posted on a social networking site, speak of the plaintiff’s poor character, referring to him as a deadbeat dad and a criminal. Ultimately, the courts determined that the child’s grandmother, Wendy Mateo, was exercising her constitutional right to free speech by expressing non-actionable, although negative, opinions about the child’s father.

If I am the victim of negative, harassing, abusive statements, what should I do? The only one-size-fits-all advice on how to respond if you find yourself in such a situation is:  TALK TO AN ATTORNEY! Although this plaintiff’s case was dismissed against the grandmother, that ruling was based on a specific set of circumstances. No two situations are alike, and there are many possible solutions to your concerns.

TALK TO AN ATTORNEY TODAY! In most legal situations, time is of the essence. The mere passage of time can harm your ability to obtain the best possible outcome for your particular circumstances. Because the law firm of Heiting & Irwin offers free consultations, there is no reason to put off calling today. We welcome your calls regarding paternity, child support, child custody and visitation, and divorce matters at (951) 682-6400.