Whether it is a criminal proceeding for a defendant charged with a crime involving domestic abuse or a hearing in family law court for a domestic violence restraining order, alleged victims and abusers are now testifying remotely, from the “comfort” of their own home.

Judge Middleton interrupted Defendant Harris, “Mr. Harris, I advise, don’t say anything else. Take the cigarette out of your mouth. The hearing is adjourned. Your bond is canceled.”

“This is an issue we didn’t have when we were at live court,” Judge Middleton said. “It’s the first time I ever had anybody sitting in the next room potentially intimidating a witness,” Judge Middleton continued.

Defendant Coby Harris, who was charged as a habitual offender, faces a charge of assault with the intent to create great bodily harm, a felony that carries up to 10 years in prison with an enhanced sentence of up to 15 years in prison.

The video has struck a nerve with domestic violence survivors for how it exposes the complexities of abuse, but it also shines a spotlight on problems arising in this post-pandemic virtual access to justice.

Are Virtual Domestic Violence Court Hearings Unfair for Alleged Abusers Too?

Another sad reality is that baseless requests for domestic violence restraining orders are filed all the time in California family court. Pro per litigants often file a request for a domestic violence restraining order (DVRO) in an attempt to win a custody battle or obtain exclusive possession of a residence based on allegations of conduct which do not amount to abuse under California family law.

It is also not uncommon for a couple to have a fight and break-up, only to reconcile get back together. If a DVRO was filed during that fight/break-up, it could very well be that the hearing occurs after the parties have reconciled. In such a circumstance, the parties may indeed appear at the virtual domestic violence court hearing from the same location.

If we start assuming that any time this occurs the responding party is engaging in intimidation to influence the petitioning party, we are essentially saying that you can never reconcile with your significant other if they have filed a DVRO against you because that will be per se evidence that you are abusive because you are engaging in witness intimidation. We would in effect be shifting the burden of proof from the petitioning party in a DVRO to the responding party.

Are There Benefits to Virtual Domestic Violence Court Hearings?

The benefits of holding these hearings virtually in this regard are very clear. It is more convenient for witnesses to log in to the hearing from home or work and go about their day until it is their turn to testify. A post-it note over the alleged abuser’s face can even make testifying easier.

California’s domestic violence procedures are complex and trying to navigate them without help of a California family lawyer can be frustrating. If you have questions about restraining orders, contact our accomplished and dedicated lawyers by calling (909) 944-8284 or (213) 247-4747 or contact us online for a free consultation with our experienced family law attorney, Ronald Talkov, who can guide you through the court process in a prompt and clear manner.

The post Virtual Domestic Violence Court Hearings – Dangerous for Victims of Abuse in CA? appeared first on Custody Lawyer Riverside.

When you are served with a Request for Domestic Violence Restraining Order (DVRO), a million thoughts go through your head. Depending on the circumstances, you may have suspected this was coming or you may be completely caught off-guard. You may feel angry, betrayed, confused, or even scared.

After the shock wears off and you start considering what you should do next, you may decide to file a response, hire a restraining order attorney, or just show up at the hearing.

There is no one right answer about how to proceed when you have been served with a DVRO, but there is one thing you should never do: agree to a restraining order.

Why You Should Never Agree to a Restraining Order in California if You Have Kids (Family Code 3044)

Family law attorneys are almost universally in favor of parties reaching agreements and settlements. So why would one of us make a blanket statement that you should never agree to something filed against you? Keep reading.

Family Code Section 3044 – Only Agree to a Restraining Order if You Want to Lose Custody of Your Children in California

What would be so bad about a restraining order? I don’t want to see her anyway!

No matter what the outcome of the restraining order is, you probably aren’t going to be best friends with the protected party after the hearing. The prospect of being restrained from seeing or talking to him or her may sound like a relief after all of this! Oftentimes, the protected party does not even request orders relating to child custody in the DVRO, so this has nothing to do with the kids, right? Wrong. If you agree to a restraining order, you are voluntarily triggering the domestic violence finding and presumption of Family Code 3044.

Family Code § 3044(a) provides:

Upon a finding by the court that a party seeking custody of a child has perpetrated domestic violence within the previous five years against the other party seeking custody of the child… there is a rebuttable presumption that an award of sole or joint physical or legal custody of a child to a person who has perpetrated domestic violence is detrimental to the best interest of the child, pursuant to Sections 3011 and 3020. This presumption may only be rebutted by a preponderance of the evidence.

A “finding” of domestic violence is made when the restrained party chooses not to oppose the DVRO and agrees to the restraining order.

Under Section 3044, a finding of domestic violence against the other parent carries with it a rebuttable presumption that an award of sole or joint physical or legal custody of a child to the abuser (i.e. the parent who agreed to the restraining order) is detrimental to the best interest of the child. This means that a father or mother can lose custody of their child simply by agreeing to a restraining order.

This is because when it comes to child custody, the public policy of the State of California is to ensure the health, safety, and welfare of children. According to the legislature, it is detrimental to a child if domestic violence is perpetrated in the child’s home.

Family law judges are required to grant reasonable visitation rights to parents unless visitation would not be in the child’s best interests. It is not in a child’s best interests to be exposed to domestic violence, so the court can protect the child by, for example, ordering supervised visitation (meaning a third party must supervise all visits between the child and the restrained parent) or banning overnight visits.

I Would Not Have Agreed to a Restraining Order if I Had Known About the Family Code 3044 Presumption

Essentially, this argument boils down to this: I entered into this agreement based on a mistake of law. Specifically, I did not know about the 3044 presumption, and if I had known about it, I would not have agreed to have a restraining order placed against me.

In fact, the argument that a party responding to a domestic violence restraining order should be entitled to notice of the 3044 presumption at the time of the restraining order hearing is such a great argument that it has made its way up to the California Court of Appeal.

In Sabbah v. Sabbah (2007) 151 Cal.App.4th 818, Ramadan Sabbah challenged the trial court’s denial of both his new trial motion and his application under Code of Civil Procedure § 473(b) for relief from a restraining order against him. He contended, among other things, that the trial court erred by failing to give him notice under Family Code section 3044 that a domestic violence finding against him would adversely affect him in custody determinations.

Ramadan Sabbah argued that Section 3044(f) mandates that parties be informed of the presumption, providing: “In any custody or restraining order proceeding in which a party has alleged that the other party has perpetrated domestic violence in accordance with the terms of this section, the court shall inform the parties of the existence of this section and shall give them a copy of this section prior to any custody mediation in the case.”

Is the California Family Court Required to Inform Parties of the Existence of Section 3044 at the Restraining Order Hearing?

Finding that Section 3044(f) is ambiguous on the issue of the timing of the mandate on the court to inform the parties of existence of Section 3044, the Sabbah court turned to the history of Section 3044(f) and the legislative intent in its enaction.

When Section 3044(f) was discussed by The Senate Judicial Committee on April 21, 2003, the Committee made the following remarks about its purpose: “[C]ustody mediators generally do not tell their clients about the statutory presumption against custody for perpetrators of domestic violence. Since mediation often involves encouraging divorcing parents to agree to joint parenting, the author asserts that ‘many battered victims and their children are not benefiting from the policy behind [the law].’ [¶] Accordingly, this bill would require the court, in any custody or restraining order proceeding in which one parent has alleged that the other has committed domestic violence, to inform the parties about the rebuttable presumption against granting custody to perpetrators of domestic violence, and to provide them with a copy of the applicable statutes before any custody mediation occurs.” (Sen. Com. on Judiciary, Analysis of Sen. Bill No. 265 (2003–2004 Reg. Sess.) as amended April 21, 2003, pp. 6–7.)

Accordingly, the court made the following finding:

[S]ection 3044(f) requires a court in ‘any custody or restraining order proceeding’ involving domestic violence accusations to provide the statutory notice to the parties before they enter into custody mediation. (Sabbah v. Sabbah (2007) 151 Cal.App.4th 818, 825.)

It logically follows that under the California Family Code, the court is NOT required to provide statutory notice of the 3044 presumption to the parties at the time of the hearing on the restraining order, such notice is only required prior to child custody mediation.

So what does the Sabbah case mean for a respondent in a California domestic violence restraining order case thinking about stipulating to the requested orders? Do not agree to have a restraining order placed against you, there are very serious ramifications and no one is required to tell you about them.

California’s domestic violence laws are complex, but they play an integral role in custody matters. Whether you are the victim of domestic violence, or you have been falsely accused of it, you need a law firm that understands the impact it will have in your case. To talk to a child custody lawyer, call Custody Lawyer Riverside at (844) 4-TALKOV (825568) or contact us online for a free consultation about your case.

The post Family Code 3044 – No One Will Tell You About This Devastating Consequence of Agreeing to a Restraining Order in CA appeared first on Custody Lawyer Riverside.

Truth be told, not every California law having to do with child custody regularly comes up in family court. Like any other body of law, California child custody law consists of a handful of highly litigated sections nestled between a whole slew of oft forgotten, rarely disputed rules and codes.

Complete List of the Most Important Child Custody Laws in CA

Going through all of California child custody jurisprudence to learn what you need to know isn’t feasible for most litigants in a custody battle, but it is important to know which rules and code sections regularly come up in family court if you are engaged in a custody battle or think you may be soon. Here is a complete list of the most important child custody laws in California.

Checklist of CA Family Code Sections and Rules You Need to Know About Before Your Custody Hearing in Family Court

• Joint Custody Defined – Family Code § 3002

The general term “joint custody” means both legal and physical custody.

• Joint Legal Custody Defined – Family Code § 3003

Joint legal custody means that both parents have an equal right to make important parental decisions.

• Joint Physical Custody Defined – Family Code § 3004

Joint physical custody means that both parents have significant periods of physical custody. This section also mandates orders for joint physical custody to provide a child with frequent and continuing contact with both parents.

• Sole Legal Custody Defined – Family Code § 3006

Sole legal custody means that one parent has the right to make decisions concerning the child’s health, education, and welfare without consulting the other parent or obtaining their prior agreement.

• Sole Physical Custody Defined – Family Code § 3007

Sole physical custody means that the child resides with one parent, and visits the other parent.

• Parents are Equally Entitled to Child Custody – Family Code § 3010

Without court orders saying otherwise, both legal parents are equally entitled to custody of their child. See Family Code § 7611 for information regarding father’s rights and presumed fathers.

• Best Interests of the Child Standard – Family Code § 3011

This section is the starting analysis for any custody dispute.

• Children Have the Right to be Safe and Free From Abuse – Family Code § 3020

Another highly litigated custody statute, Section 3020 states the fundamental policy of the law to ensure that children have frequent and continuing contact with both parents after the parents have ended their relationship, and to encourage parents to share the rights and responsibilities of child rearing.

• Statement of Reasons for Custody Decision – Family Code § 3022.3

An often ignored provision by child custody lawyers and self-represented parties, following a trial to determine the custody of a child, either parent can request the court issue a statement of decision explaining the factual and legal basis for its decision.

• Notice to Other Parent of Relocation of Child – Family Code § 3024

This a standard provision in most custody mediation recommendations, and should be included in any child custody stipulation.

• Parental Access to Medical and School Records – Family Code § 3025

Parents cannot be denied access to a child’s medical, dental, and school records because they do not have custody of their child.

• Allegations of Child Abuse – Family Code § 3027

Section 3027 empowers courts to make orders to protect children where abuse is alleged, and to cause an investigation to be undertaken by welfare service (not evaluator).

• Sanctions for False Allegations of Abuse – Family Code § 3027.1

If a court determines, based on the investigation described in Section 3027 or other evidence presented to it, that an accusation of child abuse or neglect made during a child custody proceeding is false and the person making the accusation knew it to be false at the time it was made, the court may impose reasonable money sanctions.

• Order of Preference for Child Custody – Family Code § 3040

Section 3040 provides the order of preference for custody of children: first to parents, and second to qualified third-parties.

• Custody of Children to Non-Parents – Family Code § 3041

Section 3041 provides that before making an order granting custody to a nonparent, over the objection of a parent, the court must make a finding that granting custody to a parent would be detrimental to the child and that granting custody to the nonparent is required to serve the best interest of the child, by clear and convincing evidence. Section 3041 is most commonly invoked by adult siblings and grandparents, but it could include any unrelated person.

• Orders for Drug Testing – Family Code § 3041.5

Family Code section 3041.5 sets forth when a family court can order drug testing.

• Preference of Child in Custody Dispute – Family Code § 3042

This is a critical statute that provides a child has a right to speak to the court under certain circumstances and authorizes courts to hear directly from a child in certain situations.

• Rules for Child Testimony Regarding Parental Preference – California Rules of Court, Rule 5.250

This rule sets forth the procedures and restrictions on how the court can hear and admit the testimony of a child in a custody case.

• Presumptions Against Custody for Domestic Violence Perpetrator – Family Code § 3044

Family Code section 3044 creates a presumption that a parent who has committed domestic violence within the last 5 years should not have joint or sole legal or physical custody of a child, and that such custody would be detrimental to child.

• Temporary Custody and Right to Hearing Within 20 Days – Family Code § 3062

This section empowers courts to issue and/or extend emergency or ex parte, temporary custody orders in limited situations.

• Limits on Ex Parte Change of Custody Orders – Family Code § 3064

Courts are not supposed to make ex parte orders modifying custody except when there is evidence of immediate harm to a child, or that the child will be removed from the State.

• Presumption When Parents Agree to Joint Custody Orders – Family Code § 3080

There is a presumption that joint custody is in the best interests of a child where the parents have agreed to joint custody in open court.

• Stepparent Visitation – Family Code § 3101

This section provides that the court may grant reasonable visitation to a stepparent, if visitation by the stepparent is in the best interest of the child.

• Grandparent Visitation Orders – Family Code § 3103

This section provides that the court may grant reasonable visitation to a grandparent of a child of a party to the proceeding if visitation by the grandparent is in the best interest of the child.

• Child Custody Evaluation Reports – Family Code § 3111

Family Code section 3111 empowers courts to appoint a person to conduct a limited or general child custody evaluation which is then reported back to the court, and to the parties.

• Appointment of Minor’s Counsel – Family Code § 3150

Section 3150 authorizes courts to appoint private counsel to represent the interests of the child in a custody.

• Separate Custody Counseling Where History of DV or Abuse – Family Code § 3192

A parent who has been the victim of domestic violence by the other parent may meet separately with the child custody mediator.

• California UCCJEA – Family Code § 3402

The UCCJEA is the Uniform Child Custody Jurisdiction Enforcement Act. It is intended to prevent inconsistent orders in different states and to resolve the question of which state should have jurisdiction over the parents and children.

• California Temporary Emergency Jurisdiction under UCCJEA – Family Code § 3424

California courts can assert emergency jurisdiction over parents and children prior to the ultimate UCCJEA issues being resolved.

• Right of Parent to Change Residence of Child (Move-Away) – Family Code § 7501

This is the basic rule that came out of the case In re Marriage of Burgess (1996) 13 Cal.4th 25. This section creates a presumption that parents are entitled to change the residence of a child where such relocation will not prejudice the rights of the other parent or the welfare of the child.

• No Ex Parte Communication with Child Custody Evaluators – California Rules of Court, Rule 5.235

This rule prohibits ex parte communication between lawyers, or parties, with custody evaluators.

An experienced family law attorney at Custody Lawyer Riverside has the knowledge to help you reach a resolution of your custody and visitation legal issues. Whether reaching a child custody agreement is your goal, or you want a knowledgeable child custody lawyer to fight for you, contact the attorneys at Custody Lawyer Riverside for help.

The post Complete List of Important Child Custody Laws in CA [Must Know California Family Code Sections] appeared first on Custody Lawyer Riverside.

Finding a family law attorney for your child custody case is not hard. Finding the right family law attorney for you and your child custody can be a bit trickier.

Just because Google says a particular custody attorney is the “best child custody lawyer near me” doesn’t mean that attorney will be a great match for you. Choosing the right family law lawyer for your case is not necessarily about finding the most expensive attorney in town or the most popular attorney according to Yelp.

Tips and Tricks to Choose the Best Family Law Attorney for Your Custody Case

The right family lawyer can make a real difference both in the outcome of your custody case and how you make it through the very emotional process. You want a trusting relationship. You want a lawyer who is serious about your case and listens to your needs.

Here is a basic guide to help you find the best family law attorney for you and your custody case.

Tip #1 – Do Your Homework

Generally, online search tools will group and recommend attorneys by practice area and location. Once you have found a few family law attorneys in your area, check out their websites. Is the website tasteful and helpful? Does the attorney look professional?

While online reviews do not provide a complete picture of an attorney’s reputation, they can be helpful to provide insight into other people’s experiences with that attorney. Making sure the attorneys you plan to meet with have a clean disciplinary record is a crucial step in the process of vetting potential family law lawyers.

Once you have narrowed down a list of family attorneys, meet with each of them (this can be done over the phone or by Zoom), and talk with them about your case to make sure you feel comfortable with the family lawyer you ultimately choose to represent you in your custody case.

Tip #2 – Ask Yourself: “Do I Like This Lawyer?”

One size does not fit all! You don’t get along with every single person on the planet, so it’s no surprise that you probably won’t feel comfortable with every family attorney you meet.

Does your personality mesh with the attorney’s? No matter how experienced a lawyer is, if you do not get along, your case will be more difficult.

You must be able to get along with your lawyer. The initial consultation is as much about deciding if you can have a working relationship with your attorney as it is finding out about how California custody law applies to your case. If the lawyer you are meeting with is abrasive, distracted, disorganized, or acts in any other way that does not give you confidence, consider how you will feel later on in the case if you choose this lawyer. This is especially true if you cannot reach a stipulation for joint custody and end up in family court.

Questions to ask yourself before retaining a family law attorney:

Does the attorney answer my questions completely and in terms that I can easily understand?

Does he or she really listen to me?

Does the attorney appear, speak, and behave in a professional, courteous, and intelligent manner?

Does the attorney demonstrate a sincere interest in helping me with my case?

Can the attorney articulate a strategy to help me resolve my case in the most advantageous way? Does he or she explain the pros and cons of various options?

Do I feel I can work well with this attorney?

Every attorney has a different style and personality. It’s important to meet with a few attorneys (this can be done over the phone or by zoom), and talk with them about your case to make sure you feel comfortable with the family lawyer you ultimately choose to represent you in your child custody case.

Tip #3 – Pick a Lawyer, Not a Law Firm

The most important relationship is not between the law firm and the client, but between the lawyer and the client.

Just because a law firm has extensive experience in family law and a good reputation, does not mean that every attorney at the firm has that experience and reputation.

Seek out a relationship with an individual attorney in a firm as your lawyer. Ask the lawyer you meet with this question: “Will you be handling my case?”

If you have a good rapport with the lawyer you have your consultation with, but will ultimately not be working with that lawyer, you might want to ask to meet with the associate who will be handling your case.

Tip #4 – Don’t Choose a Family Law Attorney Based Solely on the Recommendation of a Friend

You may have friends or family who might have already gone through a custody case and might want to offer you legal advice or recommend an attorney, but they won’t necessarily know what is best for you.

If you have a friend who can’t say enough great things about his or her California custody attorney, you should absolutely research that attorney and schedule a consult with them; but don’t rely solely on the recommendation of a friend! A recommended attorney may have been perfect for your friend’s custody case, but that does not mean they are perfect for you or your case.

While friends and family are a great source for emotional support, they are not legal professionals.

Take the recommendation of a friend as the starting point of the process, not the end of it.

Ultimately, you will be the one to have to live with the results of your custody case, so it is important to be in charge of choosing the best family law attorney for yourself. A father or mother can lose custody of their child if they make certain mistakes during their custody case, so having an attorney you can trust to help you avoid those mistakes is imperative.

California’s family law procedures are complex and trying to navigate them without help of a skilled family lawyer can be frustrating. If you have questions about child custody, contact a family law attorney who can guide you through the court process in a prompt and clear manner.

The post 4 Secrets for Choosing a Custody Lawyer [How to Choose an Attorney for CA Child Custody Case] appeared first on Custody Lawyer Riverside.

Many people confuse adoption and guardianship because they share some similar characteristics. Most important of these is that both processes have the same goal: providing a stable environment for a child.

Adoptive parents and legal guardians are both responsible for meeting the basic needs of the child, loving and supporting them, making sure they are fed and clothed, etc.

Adoption and guardianship are both legal arrangements for the care and custody of children, but there are some important differences between adoption and guardianship of a child.

The biggest difference between adoption and guardianship may be the time period for which the arrangement is effective; while adoption permanently places a child with a new family, guardianship is usually a temporary arrangement that places the child with a close friend or family member.

What is the Difference Between Adoption and Guardianship of a Child in California?

It is important to remember that both of these processes can be complex, and the specifics will vary based on the specific circumstances of each case. Only an experienced adoption attorney can advise you based on your specific situation, however, we have compiled an outline of the differences between adoption and guardianship to help you understand the basics.

Adoption of a Child in California

Adoption is the legal process of establishing a legal parent-child relationship when the adopting parent is not the child’s biological or birth parent. Adoptions can occur through relinquishment, termination of parental rights, or consent to adoption by a birth parent. Adoption severs the previous legal parent-child relationship and creates a new legal parent-child relationship between the child and adoptive parent.

Once the adoption process is final, the adoptive parent(s) have all the legal rights, duties, and responsibilities of any other biological or natural parent. That new parent-child relationship is permanent and is exactly the same as that of a birth family under the law, complete with a new birth certificate.

Guardianship of a Child in California

Guardianship is a temporary caregiving situation for a child when a person is responsible for the care and well-being of a child and has the legal authority to consent on behalf of a child. Legal guardianships can give guardians custody of a child until they are 18 years old; however, the child’s parents maintain their parental rights. However, courts overturn guardianship only if it is determined the guardian is no longer capable of caring for the child or maintaining their safety.

A legal guardian cannot pass along their own inheritance to the child in their custody unless a special provision is made in their will.

A legal guardian may be a grandparent, foster parent, aunt or uncle, sibling, friend of the family, step-parent, or someone else who knows the child. Being appointed as a guardian gives that guardian all the rights and responsibilities that a biological parent would have.

Generally, a guardian can only be appointed for a minor (child under 18 years of age).

Legal Guardians vs. Adoptive Parents

Both adoptive parents and legal guardians can provide the care, support and stability a child needs. However, the effects of each legal arrangement vary significantly.

In a guardianship, the court gives the guardian legal custody of a child, but the guardian does not adopt the child. The guardianship may last until the child turns eighteen (18) years old or the court may terminate the guardianship and return the child to the parents or appoint a new guardian. When someone becomes a child’s legal guardian, the biological parents retain their parental rights and can request visitation with their child.

The guardianship can be terminated when the parent’s situation improves and the biological parent shows they can care for their child. The court can also oversee the appointed guardian by supervising the guardianship, as well.

However, in an adoption, the parents lose parental rights to the child forever. They don’t have rights to visitation or to have any type of relationship with the child. Parents can’t get those rights back and adoptive families aren’t supervised by the courts.

Because of these differences, there are different scenarios in which each arrangement is the appropriate solution for a child.

Adopting as a Legal Guardian in California

If you currently have legal guardianship of a child you care about, you may be interested in establishing a more permanent parent-child relationship with him or her. You may be wondering if you can adopt the child you have a guardianship over. A person who is a legal guardian can apply to adopt the child under guardianship.

One or both of the child’s biological parents can sign an independent adoption consent or an agency relinquishment if the parent agrees with the adoption plan.

If one or both of the parents object to the adoption, the guardian can request that the family court involuntarily terminate parental rights for abandonment, conviction of a serious felony or other good cause.

In California, termination of parental rights also may be granted if the child has been out of the parents’ custody for two or more years, and the court finds that the adoption is in the best interest of the child.

In every case, the guardian must obtain a home study according to the type of adoption (independent or agency) being pursued.

If the non-consenting parent contests the termination, the adoptive family must hire and pay for private legal counsel to pursue the matter.

California’s family law procedures are complex and trying to navigate them without help of a California family lawyer can be frustrating. If you have questions about family law procedures, contact our accomplished and dedicated family law and probate lawyers by calling (909) 944-8284 or (213) 247-4747 or contact us online for a free consultation.

The post The 5 Differences Between Adoption and Guardianship in California appeared first on Custody Lawyer Riverside.

What is a Guardianship of a Child?

A probate guardianship is a court proceeding in which a guardian is appointed by the probate court to protect the person or estate of a minor. California Probate Code §1510. California uses “guardianship” to refer to both personal and financial decisions in regard to a minor while “conservatorship” is used when the person in question is an adult.

Guardianship of the Person

In a guardianship of the person, the probate court appoints a person or persons to have custody of a minor. A probate guardian of the person is responsible for:

1. determining where the minor lives;
2. supervising the minor’s conduct;
3. making sure the minor attends school; and
4. making sure the minor receives medical care.

California Probate Code §§ 2351, 2352, 2353.

The primary factor governing the choice of a guardian of the person is “the best interests of the child.” California Family Code §§3020, 3040(a).

How Long Does a Guardianship Last in CA?

Guardianship of the person, estate, or both lasts until a minor’s 18th birthday, unless the court terminates it earlier. California Probate Code §1600(a).

Guardianship of the person also terminates automatically when the minor is adopted or emancipated. California Probate Code §1600(b);California Family Code §7002.

Further, the guardianship may be terminated when the guardianship is no longer in the minor’s best interest California Probate Code §1601.

What is a Temporary Guardianship?

A temporary guardianship is appointed in urgent situations and the temporary guardian serves until the a final determination on a petition for appointment of a guardian. California Probate Code §§1310(b), 2250(a).

A temporary guardianship cannot be requested until a general petition for appointment of a guardian has been filed. California Probate Code §2250(a).

Powers and Duties of a Temporary Guardian of a Child in CA

A temporary guardian has the powers necessary to provide for the temporary care, maintenance, and support of the minor, and to protect their property from loss or injury. California Probate Code §2252.

Temporary Guardian of the Person

A “temporary guardian or temporary conservator has only those powers and duties of a guardian or conservator that are necessary to provide for the temporary care, maintenance, and support of the ward or conservatee and that are necessary to conserve and protect the property of the ward or conservatee from loss or injury.”

California Probate Code §2252(a). 

Unless otherwise ordered by the court, a temporary guardian of the person has the same authority as a general guardian to consent to medical treatment on behalf of the minor. California Probate Code §§2354, 2252(b)(1).

Termination of Temporary Guardianship

Unless the court orders an extension or a shortening of time under California Probate Code §2257(b), the powers of a temporary guardian terminate on the earlier of:

“(1) The time the temporary guardian or conservator acquires notice that a guardian or conservator is appointed and qualified.

(2) Thirty days after the appointment of the temporary guardian or temporary conservator or such earlier time as the court may specify in the order of appointment.”

California Probate Code §2257(a).

A temporary guardianship will also terminate:

1. at the death of the minor;
2. at the attainment of majority by the minor;
3. when the court finds that the guardianship is no longer necessary or it is in the best interest of the minor to terminate it;
4. when the minor is adopted or emancipated a temporary guardianship of the person terminates.

California Probate Code §§1600, 1601.

Notice Requirement for Temporary Guardianship

At least 5 days before the hearing, the petition and notice of hearing must be personally delivered to:

1. the minor if over 12 years of age;
2. the parents of the minor;
3. any person who has a valid visitation order with the minor at the time the petition is filed.

California Probate Code §2250(e). 

When is a Guardianship Needed?

Typically a guardianship is sought: to prevent the abuse or neglect of a minor child, when a child’s parents cannot be found, or the child has been living with a nonparent adult.

Filing a Guardianship Petition in California

Under California Probate Code §1510(a), any relative or “other person on behalf of the minor” may file the petition.

If the minor is 12 years of age or older, he or she may be the petitioner. California Probate Code  §1510(a).

Setting Petition Hearing and Notice for Guardianship of a Child

When the petition is filed the clerk sets a hearing date.

Generally, the minor if age 12 or over, the minor’s parents, spouse, other relatives within the second degree (children, grandparents, brothers, sisters), and certain public agencies are entitled to notice. California Probate Code §1511.

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Theoretically, California family law treats mothers and fathers equally, with no preference for gender when making determinations of child custody. This, however, is simply not the case when an unborn baby is at issue.

What Custody Rights Does a Father of an Unborn Child Have During Pregnancy?

Under California law, mothers don’t have to do anything to establish their rights to their child. The law is different for fathers.

Fathers must first establish their parental rights (i.e. father’s rights), before they are entitled to make any decisions or have any say in the life of their child, or unborn child.

However, if you are concerned about the health and safety of your unborn child for reasons of drug or alcohol abuse or domestic violence issues, it is important to contact Child Protective Services or the police for help. Although you have limited rights while your child is unborn, you may be successful in protecting your unborn child once the state investigates your allegations.

Can the Father of an Unborn Child Get Legal Rights Before the Baby Is Born?

Custody laws in California do not apply to unborn children. An unborn baby obviously cannot be anywhere other than the mother’s womb, so the mother technically has “custody” of the unborn child by default of biology.

There are steps a father, or someone who believes he may be the father, can take to protect his parental and custodial rights prior to birth of a baby, however. Examples of these steps are as follows:

1. Sign a Voluntary Declaration of Paternity and submit it to the Department of Child Support Services through the Parentage Opportunity Program (POP).
2. File a Petition to Establish Parental Relationship in the family court.
3. Request genetic testing to prove that you are the father of the child. This can be done via court order or agreement of the parties.

Child custody orders can, of course, be issued as soon as the child is born, enabling a father to have parenting time with the baby from the get-go.

• Find out more about Parenting Plans for Babies here.

Can the Family Court Prevent a Pregnant Woman From Moving Out of State at the Request of the Father of the Unborn Child?

As the father of an unborn child, your rights are limited. An unborn baby obviously cannot be anywhere other than the mother’s womb, so child custody and parenting time don’t apply until the baby is born.

That being said, fathers of unborn babies do have some rights prior to the birth. So can a father prevent the pregnant mother of his child from moving out of California?

In short, no.

In the United States, adults have a constitutional right to travel freely (i.e. move away) and the family court cannot impede that right unless another countervailing state interest is at stake – in this case, presumably the best interests of a child.  However, because a court cannot adjudicate custody of an unborn baby, and a court cannot discriminate against woman because of pregnancy, no law prohibits a pregnant woman from moving out of the state where the father resides to another state.

It is not up to fathers to dictate where pregnant women live. Everyone has the fundamental right to make the decision of where to reside for him – or herself.

Obviously, a pregnant woman cannot help but dictate the geographic itinerary of the unborn child that, by biological necessity, goes where she goes. That doesn’t mean the mother wins the custody battle in the end, but it does mean she cannot be penalized for moving to another state before the baby is born.

Under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), the state with jurisdiction over a child under 6 months old is the state in which the child was born.

Thus, a pregnant woman who does not wish to litigate child custody in the state where the father lives appears to have the unbridled right to move anywhere else and have child custody determined in the jurisdiction where she lives at the time of the child’s birth.

Should a Father Fight for Custodial Rights of an Infant?

Studies have shown that children with actively involved fathers are:

• Less likely to experience depression;
• More likely to be successful in their education;
• More likely to have high self-esteem; and
• More likely to avoid drugs and alcohol.

While Family Code 3010 declares that a mother and father are “equally entitled to the custody of the child,” it is widely believed that mothers generally get custody more often than fathers do. Some fathers even agree to less-than-ideal parenting plans and schedules because they expect the court to favor their child’s mother.

It is absolutely possible for a mother to lose custody of her child under certain circumstances in California, so fathers should fight for their rights.

Don’t depend on the child’s mother to divide parenting time fairly between you. Fathers who want time with their child need to be proactive and prepared. They need to be ready for anything that comes up, such as meetings with the mother of the child, mediation, hearings, and even trial.

The key to establishing and keeping your parental rights is to stand up for them.

California’s family law procedures are complex and trying to navigate them without help of a California family lawyer can be frustrating. If you have questions about family law procedures, contact our accomplished and dedicated family law, divorce, and child custody lawyers by calling (909) 944-8284 or (213) 247-4747 or contact us online for a free consultation with our experienced family law attorney, Ronald Talkov, who can guide you through the court process in a prompt and clear manner.

Custody Lawyer Riverside provides family law attorneys in Los Angeles, Orange County, San Diego, San Francisco, San Bernardino, Riverside, Palm Springs, Palo Alto, San Jose, Sacramento, Fresno, Santa Barbara, Redding, Oakland, Monterey Bay, Long Beach, Walnut Creek, Santa Rosa, San Fernando Valley, San Gabriel Valley, Bakersfield, and surrounding areas.

Our knowledgeable attorneys can also help if you have questions about any of the following:

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It doesn’t matter which side of the table you are on, family law restraining orders are stressful and nerve wracking for everyone involved. They are an extremely serious matter and should not be taken lightly.

A domestic violence restraining order is a legal method of protecting people from abuse or harassment carried out by a family member, close relative, spouse or partner, or anyone who shares residence with the petitioner.

Everything You Need to Know About Successfully Requesting or Defending a Domestic Violence Restraining Order in California

In California, a restraining order prevents a person from harassing, abusing, stalking, or threatening another person. The party that is seeking the restraining order or is protected is known as the “protected person.” The other party, i.e. the party against whom the restraining order is being sought, is known as the “restrained person.”

California law recognizes four kinds of restraining orders. These include:

• domestic violence restraining orders;
• elder abuse or dependent adult abuse restraining orders;
• civil harassment restraining orders; and
• workplace violence restraining orders.

This article will primarily focus on family law domestic violence restraining orders rather than the other three types of restraining orders available in California.

What is a Domestic Violence Restraining Order [DVRO]?

A domestic violence restraining order is a family court order designed to protect a person from another named party.

A person can ask for a domestic violence restraining order if:

1. the restrained party has abused the protected party, and
2. the protected party has a close relationship with the restrained party.

A “close relationship” means that the two parties are:

• married,
• separated,
• divorced,
• domestic partners,
• dating or used to date,
• share a child together,
• live together, or
• are family members or in-laws.

A restraining order can include various provisions and restrictions, including the following:

1. Personal conduct orders. These prevent the restrained party from committing certain acts (e.g., making phone calls, harassing, threatening, destroying personal property, and assaulting the protected party).
2. Stay-away orders. These keep the restrained party a certain distance away from the protected party, or his/her children, work, home, or some other specified place.
3. Residence exclusion orders (move out orders).
4. Child support orders.
5. Spousal or partner support orders.
6. Orders to pay certain bills.
7. Pet protection orders.
8. Orders preventing the restrained party from making any changes to insurance policies.
9. Orders to release or return certain property.
10. Complete a 52-week batterer intervention program.

How Long Does a Domestic Violence Restraining Order Last in CA?

Be aware, there is a difference between a “temporary” and “permanent” restraining order. A restraining order is temporary if it is issued prior to a hearing. A permanent order is a restraining order issued as a result of a hearing.

• Temporary Restraining Order (TRO). Anyone can file for a TRO if they are the victim of violence, threats of violence, abuse, domestic abuse, or harassment. These orders are filed in the Superior Court and last between 20 to 25 days. There is no filing fee to file for a restraining order. The purpose is to offer protection to the protected party before the court has heard their full case, on an emergency ex parte basis.
• Permanent Restraining Order. These are usually only issued after a TRO and cannot be ordered unless there is an actual court hearing. Based on the evidence presented at the hearing, the court may issue a restraining order for six months, a year, three years, or five years, depending on the circumstances. The maximum length of a restraining order is five years from the court date or court hearing date upon which the order was issued.

Note that even if no other acts of abuse or violations of the order have taken place since the order was made permanent, the protected party may petition the court to renew the order. The protected party must show by a preponderance of the evidence that the protected party still has a “reasonable apprehension” of future abuse.

What if the Restrained Party Violates the Restraining Order?

Violation of a restraining order is a misdemeanor under California Penal Code 273.6.

In order to actually be prosecuted, the district attorney would need to prove the following, beyond a reasonable doubt:

1. A court lawfully issued a restraining order,
2. The defendant (restrained party) knew of the restraining order,
3. The defendant had the ability to comply with the restraining order, and
4. The defendant willfully violated the restraining order.

When it comes to the temporary restraining order (TRO), not only will violation of the temporary order almost guarantee that a permanent restraining order will be granted, violation of the order is also a crime.

Proceedings for contempt of court for violation of a domestic violence restraining order can also be brought for violation of these orders.

Can a Restrained Party Possess a Firearm in California?

Most restraining orders prohibit a restrained person from owning or possessing a firearm for as long as it is in effect. They also generally prohibit a restrained person from purchasing a gun.

A person that violates these prohibitions can face criminal charges per Penal Code 29825. However, this violation can be charged as a felony. There is a form (DV-800) that a restrained person must fill out related to firearms. It contains instructions related to appropriate places where restrained persons can turn in their firearms while the restraining order is pending.

How Do I Get a Restraining Order in CA?

The person who wants to seek protection via a domestic violence restraining order should contact a family law attorney to help draft and complete the various forms and documents necessary to get a restraining order.

Should the party seeking protection choose to proceed without an attorney, he or she must describe why he/she is requesting protection from the restrained party in the restraining order forms before submitting them to the court.

A judge then reviews the forms and decides whether or not to issue a TRO. If issued, the order will usually last for 21 days.

Following the issuance of the TRO, the court will determine whether or not to make it a permanent restraining order after hearing evidence on the matter. Prior to this hearing, notice of it must be given to the restrained party via a process server, and proof of service must be filed.

If the evidence shows that the protected party warrants a restraining order, the court issues one for a specified period of time.

How Do I Challenge or Respond to a Restraining Order in CA?

Prior to the hearing on the restraining order, work on building a solid defense to each allegation against you. If there is evidence in your favor, including documents, pictures, or witnesses, be sure to let your attorney know right away.

Make sure that your declaration is as accurate as possible (avoid hyperbole, misstatements, assumptions, and speculation) and includes all information you want the court to know. You do not want to have evidence excluded because the other side was not given “notice” of a claim or the existence of evidence.

If the case involves children, begin gathering evidence about your involvement as a parent. You will want to work on overcoming the Family Code 3044 presumption that you should not be granted custody, as many parents try to use restraining orders strategically to gain an advantage in custody cases.

Consider taking a co-parenting (especially a high-conflict centered) class, parenting classes, and individual counseling. Being proactive about preventing future conflict can show the court that future abuse is unlikely to reoccur. You may also have character witnesses, though witnesses who actually perceived the events in question are more relevant and powerful.

Tips for the Restrained Party to a Domestic Violence Restraining Order

• Carefully Read the Restraining Order. Legal paperwork can be confusing but be sure that you always read everything very carefully. Pay special attention to the DV-110 and DV-130 forms because these are the actual order portions, depending on what stage of the process you are in. The order is valid and enforceable the moment you are served, and you may be subject to criminal charges for violating any of its terms.
• Do NOT Contact the Protected Party. Even if the contact was initiated by the protected party or was consensual, this is still a violation of the restraining order. The order does not restrain the protected party, so don’t assume the order is void or meaningless simply because the protected party contacts you. YOU are restrained, not the protected party. Take great care in avoiding any contact with the protected party. If they arrive at your location (for example, the local grocery store), you should leave that location immediately. Your children may also be listed as protected parties. If that is the case, you may be restrained from contact with the children (either partially or totally).
• Do NOT Indirectly Contact the Protected Party. Contacting the protected party using a third party is still considered “contact” and a violation of the order. Thus, using friends or relatives or even children as a messenger is a violation of the order. Even further, indirect contact includes social media. Even if they are not directly your friend, if you have mutual friends, be careful not to inadvertently make contact or third-party contact with the protected party under the restraining order.
• Be Careful About “Brief and Peaceful Contact” for Child Custody Exchanges. This “exception” to the restraining order is frequently the source of violations and false claims of violations. During the exchanges themselves, consider having a witness present or asking someone else to conduct the exchange. Also, consider exchanging at a neutral and public location, preferably with active surveillance cameras. Starbucks are often considered good exchange locations because they offer restrooms, cameras, and a time-stamped receipt in the event there is a disagreement about when a party arrived. Also consider avoiding exchanges by having them take place at schools. If you must be at the exchange, you could stay in the car and let the children walk to the other parent’s car. If there is a problem during the exchange, you can contact the police to keep the peace.
• Stay off Social Media. Anything you post on social media may find its way into court and in front of the judge. It’s advisable to avoid any discussions of court hearings on social media and avoid posting anything that could harm your case- even if you are not “friends” or otherwise directly connected with the protected party. Mutual friends and acquaintances may forward your posts.

What Should I Expect at a Restraining Order Hearing?

• Your Hearing May Not Go Forward Right Away. While domestic violence restraining orders are given statutory “priority” and are set within 21 days, they may not actually be heard right away. This can be because a continuance is granted, the court does not have enough time to hear the matter, or the matter is set for an evidentiary hearing (a family law trial where witnesses testify, and evidence is formally presented). Adequate preparation, especially for an evidentiary hearing, takes time. This is everyone’s one and only chance to present evidence on these issues, so a bit of time to gather evidence and prepare is not necessarily a bad thing. Additionally, an evidentiary hearing is a long hearing. Often the court’s calendar is impacted, necessitating a hearing set out several months.
• The Responding Party is Entitled to One Continuance. As a matter of right, the party who is responding to the restraining order can ask for a continuance. This means there is no need to show good cause (though it often exists due to the shortened time for the hearing).
  The protected party does not have the same right. Either party may be granted a continuance if they are able to show “good cause.” Good cause means that the party requesting the continuance convinces the judge that the proposed continuance is necessary or a good idea.
• Temporary Orders May Be Modified. If your hearing is going to be continued, you may have the opportunity to make a requested amendment to the restraining order. Moreover, sometimes a family law attorney can negotiate with the parties and obtain an amendment. This often comes up when the temporary order impacts the restrained party’s ability to attend school or work or exchange the children for visitation.
• Past “Bad Acts” and Acts of Abuse Are Relevant. Past acts of violence may “form an evidentiary basis” for a permanent restraining order. The court may consider “reasonable proof” of past abuse as part of its decision about whether to grant a restraining order.
• The Burden of Proof is on the Protected Party, but it is a Low Burden. By a preponderance of the evidence (meaning it is more likely than not), the protected party bears the burden to prove that the restraining order is needed to 1) the prevention of future acts of domestic violence and 2) provide the parties with a cooling off period. The preponderance standard is the lowest burden of proof standard that the court uses.
• The Prevailing Party Can Request Attorney’s Fees. The family code allows the party who prevails in a domestic violence restraining order matter to request attorney’s fees. The fees are not mandatory. The court has discretion whether to make an award and how much. If you request fees, you will have to provide the court with an Income and Expense Declaration (FL-150). The court may consider the defense that an award would cause the other party an undue financial hardship.

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If you are getting divorced or considering divorce in California – or if you are anticipating that your partner will be seeking a divorce – you should know about the mistakes that people too frequently make during the divorce process.

The process of getting divorced involves many potential challenges. Divorce is a big decision that will change the course of your life. There are many divorcing spouses who are able to work together and reach a peaceful resolution relatively quickly. But even if you and your spouse are on good terms about your separation and divorce, there are many others facing challenging legal and financial issues, contentious disputes, and difficult questions that can impact the rest of their lives.

Common Divorce Mistakes and How to Avoid Making Them

Even under the best of circumstances, divorce is not an easy process. If you proceed with caution, you can avoid some of the common divorce mistakes that can waste time, increase stress, and cost a lot of money.

Preparing yourself to avoid common mistakes is a critical part of the divorce planning process, no matter how good, bad, or ugly your relationship with your spouse is. From making rash decisions in the heat of the moment to making decisions with incomplete information, the risk for these mistakes exists at all stages of the divorce process, and they can impact all of the major aspects of your divorce, and your life.

If you are getting divorced or considering divorce in California, here are ten common divorce mistakes to avoid:

Mistake #1: Rushing the Process to Get it Over With and Save Money

The divorce process is not a time in anyone’s life they think back to with longing and nostalgia. Everyone involved is eager to get this process over with and end their marriage, often leading spouses to enter into marital settlement agreements without careful consideration. Consequently, many spouses wind up with divorce judgments they are not at peace with and regret their hasty decisions down the road.

Take your time to work out a mutually beneficial settlement. Divorce takes negotiation, which takes time. Go into your divorce knowing that this is a process and not something that happens overnight. Carefully review the terms of your stipulation with your family law attorney to ensure that everything is covered and that you understand everything you are agreeing to. Once finalized, there are some details you will never be able to change.

You might find yourself tempted by ads that offer a quick, easy, low-cost divorce. Remember, “if it sounds too good to be true, it probably is.” The divorce process is meant to be handled right the first time. You would be better off sitting down with an experienced divorce attorney who can explain the issues at hand. They can go over your case and be honest about how difficult your divorce might be. To ensure the best outcome, a complicated divorce matter should be handled correctly from the beginning and that typically means with the assistance of an attorney.

Mistake #5: Failing to Identify Your Separate Property

A common mistake many people make in a divorce is failing to identify separate assets when they are going through the divorce process. California is a community property state; and, among other things, this means that while most of the assets you and your spouse acquired during your marriage are subject to distribution in your divorce, most of the assets you acquired before your marriage are not.

In other words, they are considered separate assets that are yours to keep, and failing to identify separate assets is one of the common divorce mistakes.

Mistake #6: Failing to Understand Your Finances and Post-Separation Budget

One indisputable fact of divorce is that two households cost more to operate than one. Many divorcing spouses fail to realize that their divorce settlement must last a significant amount of time: perhaps even the rest of their lives.

How much is your retirement account worth for purposes of your divorce? What about your business? What about other assets such as vacation homes, collections, jewelry, boats, and antique vehicles? If you don’t know the true value of these assets, you will simply be guessing as to what constitutes an equitable distribution in your divorce. It is also important to understand the value of these assets so that you can develop a financial plan and budget moving forward following your divorce.

Financial planning can help people transition from a married to single lifestyle by prioritizing financial goals, developing realistic expectations, and producing sound plans for the assignment and division of financial resources.

Having a solid understanding of your present financial situation and a reasonable outlook and goals for your future is the best way to avoid divorce mistakes now and to be prepared should your circumstances change after your divorce.

Mistake #7: Assuming that Key Issues Will Resolve Themselves

You will play a central role in determining the outcome of your divorce. Going through a divorce is not a passive process, and issues do not simply resolve themselves if you delay long enough. You need to make informed decisions with your long-term best interests in mind, and you need to ensure that you are not unknowingly giving up too much in your divorce.

Delaying the necessary steps you need to take as part of the divorce process can make the situation even harder and more stressful.

Mistake #8: Hiding Assets, Information, or Documentation

Under California law, during the divorce process, marital property is to be divided “equitably.” That sounds easy enough, but if the assets are substantial and the divorcing spouses are contentious, determining who gets what can quickly become exceedingly difficult. Each spouse must be forthright and honest about the finances. It’s imperative.

If you are going through a divorce you must provide complete and accurate financial disclosures to the other party. Failing to do so can result in significant court costs and cost you more in the long run.

Mistake #9: Posting and Talking About Sensitive Information Online

It is natural to want to vent to friends and family members about your divorce. It is a tough process that is often emotionally draining.

If you can, however, resist the urge to post your thoughts, feelings, and experiences online. Posting things about your divorce or your life in general online makes it part of public record. No matter how you configure the privacy settings on your social media accounts, an attorney or private investigator will be able to access the information you post.

You may want – or need – to refrain from using social media until your divorce is finalized. Anything that you post online could be distorted, and everything that you post will be scrutinized. Even things that do not seem directly related to your divorce, such as posting pictures of the big new TV you purchased, could end up as evidence during your divorce case. In this example, your ex-spouse could use this as proof that you have the money to pay for child support or alimony.

If you have already aired grievances, you may want to consider locking down your privacy settings or temporarily deactivating some social media accounts. If you and your spouse decide to announce your divorce, discuss when to do it. A joint decision prevents unpleasant surprises.

Additionally, ask family and friends to refrain from posting anything that casts your family in a poor light.

To protect yourself, don’t post anything before or during your divorce that you don’t want the judge to see. The best way to protect yourself during a divorce case is to take a break from social media entirely until your divorce is finalized.

Mistake #10: Not Talking to a Divorce Attorney About Your Case

The risk for these mistakes exists at all stages of the divorce process, and they can impact all of the major aspects of your divorce. The most important thing to know about divorce in California is that you must have the advice and representation of a divorce attorney from the very beginning of the divorce process.

No divorce is easy, but a qualified divorce lawyer can help you avoid the divorce mistakes discussed here. After reviewing the details of your case, your attorney will be able to provide you with the precise and personalized advice and recommendations you’ll need.

Before you even file for divorce in California, you should have a well thought out strategy. The first step is to meet with an experienced family law attorney. An attorney will explain the law and clarify your rights and responsibilities so that you can avoid these common divorce mistakes.

California’s divorce procedures are complex and trying to navigate them without help of a skilled family lawyer can be frustrating. If you have questions about divorce, contact us by calling (909) 944-8284 or (213) 247-4747 or contact us online for a free consultation with our experienced family law attorney, Ronald Talkov, who can guide you through the court process in a prompt and clear manner.

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