LAW AND ORDER: THE LEGAL SYSTEM
Although family law and criminal law are two very distinct areas of the law, they frequently overlap creating challenges for lawyers who specialize in just one area. When a family law case involves elements of criminal law such as domestic violence, child abuse, restraining orders, alcohol (DUI) or drug offenses, the case becomes exponentially more complicated for the family law practitioner.
Since I have been a District Attorney in Los Angeles County for ten years with extensive experience in family violence and DUI/Drug criminal cases along with prosecution of child support cases, I have now twenty-one years experience in both the family and criminal law arena.
Often the multitude of orders in the family courts and criminal courts need to be consistent since conflicting orders will detrimentally affect your client and parties involved (including the children). Cases may proceed simultaneously in different courts and through different attorneys exposing the challenges of which orders take precedence. Note as well the different burden of proof since family law is in the civil arena while criminal law poses the paramount burden of proof of beyond a reasonable doubt.
I have written about the importance of how criminal charges such as child abuse, domestic violence, drug related arrests by a defendant involved a divorce case must be litigated to its full extent in order to prevent negative consequences to his/her divorce case. A conviction of a violation of a restraining order, drug possession and use, or child abuse/neglect for example, would be considered by the family court judges in determining custody, visitation and spousal support.
All states, including the District of Columbia (“DC”) have statutes that require the courts to consider domestic violence committed by one parent against the other in resolving custody or visitation disputes between parties. Additionally, in all states and DC, individuals who have experienced domestic violence have civil and criminal remedies to protect themselves from further orders.
In many states, when the police encounter a domestic violence situation, one of the two parties involved in the dispute is required or requested to leave the home. In about one-third of the states, police officers are also authorized or required to remove guns when they arrive at the scene of a domestic violence incident without further investigation or court intervention.
In some states, the police can give the victim an emergency protective order (EPO). An EPO is a short-term protection order typically given to a victim by the police or a judge. This permits the victim to file the necessary paperwork in family court for a permanent restraining/protective order.
Any drug or alcohol related arrests and conviction impacts the court’s ruling as to which parent should have legal and physical custody of the child. In determining what is the best interest of the child, the judge will review a parent’s history of drug and alcohol use/abuse and impose certain conditions for visitation or even impose no visitation.
As for any reports of child abuse and/or neglect, the Department of Children Services will also become involved and depending on the police findings and agency recommendation, a criminal case will be filed. The family law judge will then make a finding of whether a parent (defendant in the criminal case) has any visitation or custody rights.
I have represented many clients in both arena and have even taken the criminal cases to trial since I know the dire consequences to my client’s divorce/family law case if a conviction results. A false allegation of domestic violence, child abuse, drug use is not uncommon while a divorce is ongoing so it is critical that a client who faces both a criminal charge and an ongoing divorce is represented adequately in both arenas.
With Memorial Day and the summer season coming soon, many should be aware of DUI checkpoints. Generally, probable cause to stop and question the driver-—observing a traffic violation, defect in the vehicle or driving pattern that indicates the driver may be under the influence of alcohol, narcotics or both. However DUI sobriety checkpoints is an exception to this rule and courts have upheld the power of the police to conduct systematic traffic stops.
To pass constitutional muster under both federal and state laws specific guidelines are outlined in cases such as Ingersoll v. Palmer in California. If the police do not follow the protocol described such as in Ingersoll, the checkpoint is not lawful, and any evidence gathered during arrest may not be admissible in court. Without the evidence collected at the scene, most cases will be dismissed.
The California Supreme Court identified eight factors that minimize the intrusiveness on the individual being stopped, while balancing the needs of the society to keep the “drunk” drivers off the road.
(1) Supervisors Decide: The establishment and location of sobriety checkpoints must be decided by supervisory police officers, not officers in the field. This is important in order to reduce the potential for arbitrary and random enforcement.
(2) Field Officers Discretion Limited: A neutral mathematical formula, such as every sixth driver etc. is used in determined in who to stop. Again with the purpose that field officers do not get to stop any driver he/she chooses.
(3) Safety Conditions Installed: In order to minimize risk of danger to motorists and police, proper lighting, warning signs and signals must be clearly visible. Clearly identifiable official vehicles and personnel must be present.
(4) Reasonable Location: The sites chosen should be those which will be most effective in actually stopping drunk drivers. They must provide documentation and history that at or near the location, high incidents of alcohol-related accidents and arrests have occurred.
(5) Time and Duration: Police are expected to use reasonable and good judgment in determining the duration of the checkpoints. The goal is to insure effectiveness of the operation coupled with the safety of the general public.
(6) Indicia of Roadblock: It should be established with high visibility, including warning lights, flashing lights, adequate lighting, police vehicles and the presence of uniformed officers. Not only are these factors important for safety reasons, but advance warning is necessary to reassure motorists the stop is officially authorized.
(7) Length and Nature of Detention: Only long enough for the officer to question the driver briefly and to look for signs of intoxication, such as alcohol on the breath, slurred speech, bloodshot eyes. If no impairment exists, the driver should be permitted to drive on without further delay. If the officer observes signs of impairment, the driver will be directed to a separate area for further investigation and the general principles of detention and arrest would apply.
(8) Advanced Publicity: There must be notice to the public prior. The thought is that, it limits intrusion on a
We all have read and seen pictures of what appears to be injuries to Johnny Depp’s spouse, Amber Heard. A petition for dissolution has been filed by Ms. Heard to terminate her marriage to Mr. Depp and appears to be requesting also financial issues, including but not limited to, spousal support and asset division. She also filed a request for a restraining order based on her alleged fear and prior physical and mental violence caused by Mr. Depp.
Although many attorneys use the “guideline” dissomaster computer program to calculate temporary spousal support, the dissomaster computation is merely a starting point. The court is required by law to consider all factors set forth in California Family Code (FC) 4320.
FC 4320(i) states in full that “documented evident of any history of domestic violence, as defined in Section 6211, between the parties, including but not limited to, consideration of emotional distress resulting from domestic violence perpetrated against the supported party, and consideration of any history of violence against the supporting party by the supported party.”
FC 4320(m) states in full that “the criminal conviction of an abusive spouse and the elimination of the award in accordance with FC section 4325.”
FC 4320(n): states in full that the court can consider, “any other factors the court determines are just and equitable.”
There is no open and current criminal case against Mr. Depp. But as we see in the tabloids and media outlets, Ms. Heard’s attorney or representatives are “putting” out there photos of her bruises, broken glasses at the scene, etc. and the Los Angeles City and County prosecutors may take a second or even a first “look” into this case. Note, however, that even though Ms. Heard did call the police at one of the incidents, the police indicated there was “no crime” and never pursued any domestic violence arrest of Mr. Depp.
Why are these allegations of domestic violence—both physical and emotional acts surfacing? As already stated above, the court is required to review all filed or non-filed acts of domestic violence, including emotional impact on the supported spouse.
She was granted a temporary restraining order and a permanent order hearing should have been scheduled. It is at this time that the court will decide whether a restraining order, usually lasting 3 years will be instituted.
Disproving domestic violence is not easy and fighting a protective order or a restraining order against you requires a skilled trial attorney. The standard of proof in the civil case (family law) is preponderance of evidence and the criminal case is beyond a reasonable doubt.
The orders are the same in both the family and criminal courts. The terms of staying away from the
I just dealt with a case dealing with the victim of a very serious crime (attempted murder). The initial bail in this amount was $100,000 but after discussing the case with the victim and his wife, this amount was too low. I immediately worked with the victim and his wife to contact the District Attorney and the law enforcement agencies to insure that the appropriate charge (initially assault with a firearm to be revised to attempted murder/murder), increase bail from 100k to 2million dollars and to get a criminal restraining order for both husband and wife. After advising them to gather additional evidence and provide to the police agency, a search warrant was executed. This was all done in 2 days since the defendant was going to be arraigned in “48” hours since he was in custody.
Victims in criminal cases are witnesses –they are not a party to a criminal case. Consequently, many victims are not aware that they should actively “participate” in their case. I had another victim to a rape case who called me after the criminal case was “dismissed.” She wanted me to help her get a restraining order in civil court since when the criminal case was dismissed, no criminal protective order was issued. To say, she was confused as to why her case was dismissed is “putting it mildly.” But it was too late for me to help her in the criminal process when the prosecuting agency has already decided it would not file the case.
The point is hiring a criminal attorney to assist victims in “dealing” with the criminal court system is essential. It is not only critical but as a victim of a crime, in California and many other states, it is your constitutional right. California Constitution article I, Section 28, section (b) has significantly expanded the rights of the victim. This is commonly referred to as “Marsy’s law.”
Victims of a crime, as defined under the California Constitution is a “person who suffers direct or threatened physical, psychological, or financial harm as a result of the commission or attempted commission of a crime or delinquent act.” The term “victim” also includes the person’s spouse, parents, children, siblings, or guardian or a legal representative, such as an attorney, of a crime victim. This victim may be deceased, a minor, or physically or psychologically incapacitated.
These rights are commonly referred to as “Marsy’s Law” which was passed by California voters in 2008 as Proposition 9, the Victims’ Bill of Rights Act of 2008. This measure amended the California Constitution to provide additional rights to victims. It became the strongest and most comprehensive Constitutional victims’ rights law in the U.S. and put California in the forefront of the national victims’ rights movement.
Dr. Henry T. Nicholas, the co-founder of Broadcom Corporation was the key backer and proponent of Marsy’s Law. Marsy’s Law was named after Dr. Nicholas’ sister, Marsalee (Marsy) Nicholas. While a student at the University of California Santa Barbara, she was stalked and killed by her ex-boyfriend in 1983. Only a week after Marsy was murdered, Dr. Nicholas’ and Marsy’s mother, Mrs. Marcella Leach, walked into a grocery store after visiting her daughter’s grave and was confronted by the accused murderer. She had no idea that he had been released on bail.
Prior to the passage of the law, the courts, the prosecutors, and law enforcement had no legal obligation to keep families of
I had two clients call me recently about why they were not provided their “Miranda” rights prior to the police asking them questions. If you are not under “arrest,” the rights are not triggered. Both clients made admissions to the alleged crimes and the analysis then proceeds to whether they were under arrest and should have been advised of their constitutional rights.
The landmark case of Miranda v. Arizona continues to evoke confusion by many individuals confronted by the police. Ernesto Miranda, a rape suspect, was arrested and taken to the police station. After two hours of questioning, he signed a written confession and was subsequently found guilty. Miranda appealed his conviction on the grounds that prior to confessing, he had not been informed of his Fifth Amendment right against self-incrimination or his Sixth Amendment right to counsel.
The United States Supreme Court overturned Mr. Miranda’s conviction finding that the coercive nature of detention in a police situation necessitates certain safeguards in order to ensure that suspects that do not intelligently waive their rights. The ruling held that when law enforcement officers take a suspect into custody with the intention of conducting an interrogation, they must advise the suspect of certain fundamental rights.
(1) The right to remain silent;
(2) Anything you say will be used against you in court;
(3) The right to have an attorney present;
(4) If you cannot afford an attorney, one will be provided at no cost to you.
This case had broad ramifications for all police officers and required them to issue these warnings when a person is placed under arrest and will be interrogated. Note also that the officers are required to make sure you understand either each right specifically or in its entirety. In practice, many officers will state, “do you understand” after each right or at the end of the warning—either way has been held to be proper.
We are all aware of the contents of Miranda. It is recited on police shows everyday and many can repeat it verbatim, though often without a clear understanding of its significance. More importantly, as I have seen in my criminal cases, simply ignored, misunderstood or feared. Simply stated, many either turn a “blind eye” or disregard the best course of action for any arrestee: say nothing or seek the help of an attorney.
Keep in mind that the environment that Miranda must be invoked requires custody (arrest) and interrogation (questioning) by law enforcement officers. Hence, if they are not cops, Miranda does not apply. Moreover, statements “volunteered” by the suspect at any time; “spontaneous” statements, or providing basic personal information such as name, address, and social security does not require the advisement. I placed quotes on the words volunteer and spontaneous. As a criminal defense attorney, these types of statements are subject to analysis and should be carefully scrutinized if they are truly voluntarily or
It is approaching July 4th and as many of us know many people enjoy “blowing” things up. It maybe a “homage” to the rockets’ red glare that Americans love fireworks and prior to 1950, few states regulated them. But due to concern over injuries, enactment of laws were implemented.
Even sparklers burns at 2,000 degrees Fahrenheit and so it will severely burn and scar skin. In fact sparklers are the number one cause of reported injuries due to fireworks. The federal government regulates fireworks under the Hazardous Transportation Act and Hazardous Substances Act. But the federal government allows the states to enact their own more stringent statutes.
In California, the State Fireworks Law was enacted in 1974 (Health & Safety Code Section 12500 and following). Under this, the state classifies the items that qualify as “fireworks”, who may possess or sell them, and dictates when and where they may be set off.
Fireworks are defined as being any device containing chemical elements that do not require oxygen to burn and that produces audible, visual, mechanical or heat pyrotechnic effects for entertainment. Private citizens who are not licensed by the state to discharge explosives are strictly prohibited from possessing and/or discharging certain fireworks that state law lists as “dangerous.”
Unlike some states, California explicitly defines what are “safe and sane” fireworks. These are the fireworks that may be sold, purchased, and used by the general public, but only within very strict parameters. Only licensed retailers can sell them and they can only do so from June 28 to July 6 each year.
It is illegal to sell or give dangerous fireworks to anyone under 18 and illegal to sell or give safe and sane fireworks to anyone under 16. Most violations are misdemeanors with penalties of up to 1-year county jail and/or fine of up to $1000, excluding penalties and assessment charges. However, if you possess large quantities of dangerous fireworks and not licensed to do so, you can be charged with a felony with up to 3-years of state prison and up to $50,000 of fines, excluding restitution (i.e. fire department, victims).
Unlike people, pets do not associate the noise, flashes, and burning smell of the fireworks with celebration. Pets, as many of you know, are terrified of fireworks. In fact, July 6 is the busiest day of the year for animal shelters so keep your pet indoors. The loud noise creates panic for them and will make them break free and jump a fence to attempt to find safety. If your pet does manage to become lost, it is critical that proper identification is on them (microchip, ID tags) should be placed on them at all times.
Divorces could take years and in California, at least six months minimum would be required. If you want or need to get divorced sooner, there is a Motion for Bifurcation in which a party asks the court to terminate the marriage and restore each spouse to their single status.
In some situations, the parties’ or the judge may order a trial to be bifurcated (an issue is “tried” separately). For example, if there is no agreement on, the court may require that legal and physical custody be determined immediately and separate these issues from the rest of the divorce case.
As for getting the divorce sooner—as noted above, six months minimum is required in California from the filing of the Petition to the status of being single (being divorced). Even with a bifurcation, you cannot divorce any sooner than six months after your separation date.
Why do this? One of the most prevalent reasons are that one or both of the spouses are remarrying or if one or both of the spouses wants to file as a single person on their taxes. If your divorce case has been open for a significant period of time and no resolution seems to be near, filing for a bifurcation of marital status will allow you to return to your status as a single person but it will not resolve all the other issues that are still contested in your divorce.
For a spouse who is paying any kind of support (child or spousal) this is beneficial. The support is 100% deductible on income taxes, but only if you are filing as a single person and the person receiving the support must then list the payments as income on their taxes.
Even if the request is granted, you or your spouse may still need to meet certain conditions:
If one spouse maintains medical insurance, he/she must continue to do so;
If either spouse has a pension plan through their employer, the other spouse receives indemnification for the loss of death benefits;
The opposing party must be reimbursed for any tax consequences of the loss of the right to claim probate homestead or family allowance.
If you want to take advantage of a bifurcation, be sure to file the necessary paperwork as early in the year as possible and no later than November 15, of that year.
Additionally, before you can file this motion, a Preliminary Declaration of Disclosure consists of serving a completed Schedule of Assets and Debts and Income and Expense Declaration on your spouse.
The effects of a bifurcation are that your marital status will be terminated, you can remarry without having to wait for a final judgment on the remaining issues, your name can be restored to your maiden name, and you will be able to file your income taxes as single or head of household.
Professional licensing agencies may suspend or revoke a license issued for reasons enumerated in the California Business and Professions Code (BPC). For many who have criminal convictions, whether they are doctors, nurses, contractors, they will be served and must defend against an accusation that impacts their careers and livelihood. I had a client come in recently who is a pharmacist and had an underlying drug-related arrest. I did not represent him in his criminal case and he represented himself in his administrative hearing.
The outcome of the hearing meant probation for 5 years with terms that are extensive and very rigid. It is critical to hire an attorney who is experienced in direct and cross-examination, gathering evidence and highly skilled in conducting hearings. In California, the Attorney General (AG) is the representative of the various professional licensing boards. Even prior to the date of the hearings, I worked with the Supervising Deputy AG in providing her mitigating evidence such as character letters and evidentiary documents lessening the culpability of my client.
Even though an early termination of probation and a criminal expungement may not be conclusive in getting the Board to withdraw the accusation, it is an important factor that enables the judge and the board to reconsider the gravity of the charges.
If the board or its designee asks a licensee to provide criminal history information, a licensee shall respond to that request within 30 days. The licensee shall make available all documents and other records requested and shall respond with accurate information.
As a condition of renewal for a license that expires on or after April 1, 2009, a licensee who was initially licensed prior to 1/1/98, or for whom an electronic record of the submission of fingerprints no longer exists, shall furnish to the Department of Justice (DOJ) fingerprints for the purpose of conducting a criminal history record check and to undergo a state and federal level criminal offender record information search through the DOJ.
A licensee shall disclose whether, since the licensee last applied for renewal, he/she has been convicted of any violation of the law in CA. or any other state, the United States, or other country, omitting traffic infractions under $300 not involving alcohol, dangerous drugs, or controlled substances.
I have just mentioned some of the general criminal background checks that are in effect. It is critical that if you have been arrested of a crime, a review of your employee manual is necessary since reporting it to a supervisor may be mandatory. For example, for nurses, sections 2520.4 and 2520.5 of the Vocational Nursing, California Code of Regulations, both the licensee and the employer must report of any act listed in the BPC, Sections 2878, 2878.1 and 2878.5. The report shall be made to the board within a required time period a violation had occurred.
For licensed individuals, in all sorts of professions, if you have been arrested and subsequently convicted of a crime it means facing both the criminal and administrative consequences. It is important that the attorney that you hire for the administrative hearing be aware of the rehabilitation criteria. The Board has the final decision to revoke, suspend, or place the licensee on probation. Keep in mind as well that the facts of the underlying criminal case must be adequately explained to the board and the witnesses for the administrative hearings are generally the same for the administrative hearing.
Having the same criminal and administrative attorney represent the client in both venues is a benefit. I find that since I have knowledge and information about the criminal case and the reasons for the disposition and other critical information are available to me, it is more advantageous to my client. Frankly, to some of my clients, the board hearing is more stressful for them since it ultimately means their livelihood is at stake. While the criminal case if of equal importance, to many they know there is a conclusion to the criminal case. But if their license to work is taken away, it means their professional life is destroyed.
The primary purpose of the contempt power is to preserve the effectiveness and sustain the power of the courts. The secondary purpose is to protect and enforce the parties’ rights by compelling obedience to court orders and judgments. Examples of this would be failure to appear when subpoenaed, screaming profanities in court, and failure to obey a court order.
The judge may impose sanctions such as fines or jail for someone found guilty of contempt of court. For criminal cases, sanctions typically are a jail term and fines that are intended to punish. Probationary terms may also be imposed. As for civil contempt, sanctions may include a fine or a jail term that ends when the offending behavior ends and money damages may be awarded to the injured party.
To prove contempt the prosecutor or complainant must prove four elements: existence of a lawful order, knowledge of the order, ability to comply and the failure to comply. As referenced, my client had attorneys and an accountant to insure that effective and full compliance with court proceedings would be effectuated.
I have a case now in which the opposing party in a divorce case is facing numerous contempt charges for failing to provide financial information as ordered by the Court. The crux of the case generally falls on the factors of the “Respondent/Defendant’s” ability and willingness to comply with a court order. Another relief that could be requested is attorney fees incurred in filing an affidavit of contempt in the family court case scenario.
I have defended several clients in numerous counts of family law contempt cause of actions pertaining to financial obligations such as child support, spousal support and attorney fees (financial issues). Another area where contempt is brought forth is in violations of a visitation order or restraining orders. My most recent case is about noncompliance and overt disobedience of a court order requiring the other party to provide financial documents for “discovery.”
The four factors to be proven: valid court order, knowledge of the order, ability to comply with the order, and willfulness of conduct must all be proven beyond a reasonable doubt in both the civil and criminal arena. Since the court can impose up to five days per count of jail, a maximum of 180 days of jail would trigger the right of the Respondent/Defendant to request a jury trial.
The power to punish for contempt is broad and carries with it great responsibility to apply it judiciously and only when contempt is clearly and unequivocally shown. Defendants in criminal matters should be given every opportunity to exonerate themselves. Criminal contempt sanctions should be only utilized after the judge has determined that civil contempt remedies are inappropriate.
It is incumbent and prudent if you are the party that is attempting to get a contempt action initiated and successful that you hire an attorney that have both the experiences and expertise in both the criminal and civil arena. While in family law (civil) court is not the criminal arena, the constitutional rights afforded a criminal defendant will be required, including but not limited to, a right to an attorney, right to a speedy trial, and a right to remain silent.
It is a complex matter that will require you to get an attorney not only to decipher the pleading requirements but also to effectively win the case in trial.
I have a client that has a visitation order of a mere 5% due to a prior restraining order. He came to my office and wants to know what his options would be. Since the restraining order had expired, a modification is “necessary or proper” in the child’s best interests. Generally, a custody or visitation order may be modifiable during the child’s minority whenever the court finds a modification is “necessary or proper” and consistent with the child’s best interest.
I suggested reaching out to the opposing party’s attorney prior to filing any motion to see if a stipulation for more visitation time would be available. This not only curbs legal fees and court costs but is consistent with the duties required in family law of both parties’ to act in good faith.
The standard governing custody adjudications requires the court to review and conclude what is the child’s best interest. However, if the custody order has been deemed “final”—usually a Judgment has been filed, then a showing of “significant change of circumstances will be needed. The policy behind this is that modifications to custody or visitation create instability and security is essential to the child’s welfare.
The paramount goal is to preserve the need for continuity and stability in custody arrangements, unless some significant change in circumstance reflects a different arrangement would be in the child’s best interest. As for my client, there is no final custody order so the best interest standard is the applicable law.
Unless the order is permanent or final, the court is only required to make an initial custody determination of what custody order is consistent with insuring continuity and stability for the child. The burden of proof must be on the party requesting the change –my client.