Feb. 8, 2012 -- NO SECRET COURTS. Los Angeles judge Michael Nash has opened juvenile court to the public. This is extremely important and should be emulated by other courts. In juvenile court parent-child bonds are severed, and children are adopted out so their birth parents no longer even know the child's name or location. What could be more important? The public needs to be able to ensure that this is done fairly. At present federal bonus money which pays only for adoptions, not for reunified families, have skewed the system. There is no way to change a system which operates with complete secrecy. No American courts should be secret. Open and public trials. Feb. 1, 2012---SCANSNAP is a great tool if you have a divorce with a lot of documents. It will scan one- and two-sided documents, and it's easy to render the pdf file searchable. You can't buy it at an office supply store. You have to go to Fujitsu's website and order it at a cost of something like $450. It is well worth it. Jan. 30, 2012--California’s 6th Dist. Court of Appeal confirmed that if a motion is in proper form, it MUST be filed and cannot be rejected: “If a document is presented to the clerk's office for filing in a form that complies with the rules of court, the clerk's office has a ministerial duty to file it. Even if the document contains defects, the clerk's office should file it and notify the party that the defect should be corrected.” Voit v. Superior Court (2011) 201 Cal.App.4th 1285, 1287. This case was discussed at a seminar last Friday. When this quote from the decision was read aloud, the room erupted in applause: “It is difficult enough to practice law without having the clerk's office as an adversary.” What does it say about the court system that this quote would cause lawyers from 4 different counties to applaud? Hmmm. Jan. 2012---How to divide property when home has a negative equity, is underwater. Calif. State Bar Ass’n “Family Law News” at the end of 2011 addressed the huge problem that occurs if the court awards a high-value asset (stocks worth $480k) to one spouse and awards a home with equal negative equity of $480k so the property given to that souse has a zero net value, and the other spouse also gets zero property. After that the one who received the house lets it go into foreclosure, and he keeps the stock account. There’s no jurisdiction to modify a property award, so one gets $480k, and one gets $0. Under the present circumstances of the housing market, judges are beginning to reserve jurisdiction over an underwater home to make sure that the receiving spouse doesn’t let a home received at a negative value go into foreclosure. This also raises the question of whether an underwater home should be judged to have a negative value or should be valued at zero. These are new and very difficult issues. Jan. 2012---Due process under the 14th Amendment to the US Constitution has 2 aspects---substantive and procedural. The issue of substantive due process is: Is the court's decision so wholly irrational that it is beyond the bounds of reason. An example of this, as to which I once filed in the US Supreme Court, occurs when the court finds mother attempted to alienate the child, and this was so horrible that she should lose contact with the child. It is not rational that trying to cut off one parent from the child is so terrible that the remedy is actually to cut off the other parent from contact with the child. But to be a violation of substantive due process, it must be something very extreme. The issue of procedural due process involves whether a person had notice, an opportunity to present evidence and a fundamentally fair hearing, including the right to subpoena and present witnesses. Often in custody cases one parent will sneak in and get an order without notice to the other, changing custody; when the trial arrives, the judge leaves the child in the home in which it was placed without notice and without a full hearing on the grounds that stability is good for a child. This is basing custody on an order made without procedural due process, and these problems frequently arise. The Elkins Task Force in California addressed some of the due process problems, but orders made without notice can result in major constitutional deprivations.

An Ol' Fahioned Trial

I'm just back from doing a custody trial in No. Carolina. Wow, was it different from California!!! There weren't any experts. Now, a lot of times we have problems with psychologists. But in doing this old fashioned trial in NC, I found out there's also a problem when you don't use experts. There was no testimony about problems at either house. The parties have been separated for years and don't go into each other's houses, so neither could testify about what goes on in the other's house as that would be speculation and hearsay. Nor could they testify to what the children said, as that's hearsay. So under the rules of evidence we found ourselves without testimony about what goes on in the two homes. We had friends who'd seen mom's parenting and/or seen problems with a child. And each parent could say his/her house was fine. But as to the key issue---what negatives there might be about either home---there was no testimony. It left me thinking that maybe (capable, ethical) psychologists would have a place in a custody trial.
Wednesday, February 8, 2006 @ 8:45 pm - Robin Yeamans

Calif. judges have limited power to issue mutual restraining orders

In Monterroso v. Moran on Jan. 11, 2006, the 2nd Appellate District held that unless a judge makes detailed findings required by Family Code section 6305, the judge may not issue a mutual restraining order. The Family Code requires that for a mutual order the trial judge must find that both parties acted as aggressors and neither acted primarily in self-defense. Further, even though the woman in this case agreed to the mutual restraining order, she was able to challenge her agreement on appeal. (Don't you try that. If you want to object on appeal, in at least 99% of cases you must object to the trial judge.) The Court of Appeal held in part: Domestic violence is a grievous problem in today's world, and its victims often have few places to turn. The courts must be sensitive to allegations of domestic violence, root out the truth in each case, and protect victims when possible. Victims should be guided through our judicial system, not herded. . . . . " Victims of domestic violence who have not engaged in an act of violence are confused, humiliated, and degraded by orders restraining them from such conduct." Some witnesses "reported that mutual restraining orders give victims the message that they are being blamed." According to the committee, " perhaps a potentially volatile courtroom situation is diffused somewhat by issuing orders against both parties, but respect for the law is undermined." Today we do little more than require that trial courts follow the letter of the law set forth in section 6305. In so doing, we exhort them to recognize that an improvidently issued mutual restraining order may adversely impact victims of domestic violence and continue their victimization.
Saturday, January 21, 2006 @ 12:22 am - Robin Yeamans

No More Actions for Sole Parentage

New appellate decision: Parents can't agree one parent will give up all rights to child and no longer have a child support obligation. The California Family Code provides: § 7802. Proceeding for declaration of freedom from parental custody and control A proceeding may be brought under this part for the purpose of having a minor child declared free from the custody and control of either or both parents. § 7803. Effect of declaration of freedom A declaration of freedom from parental custody and control pursuant to this part terminates all parental rights and responsibilities with regard to the child. This used to mean that the parents could agree that a parent would give up their rights, and the no loner had to support the child. The other parent would have sole custody of the minor. Jan. 13, 2006 in Kristine M. v. David P. the First Appellate District held there cannot be an agreement giving up one's parental rights/obligations unless an adoption is about to occur. Because of the state's public policy, a child cannot be left with one legal parent. Why? This is part of the effort to enforce welfare repayment. If mom (or dad) goes on welfare, the state goes after dad to make him pay it back. The Court of Appeal is making sure that dad doesn't get off the hook for welfare repayment. This is certainly a change from the law as it used to be (although the appellate court doesn't say so).
Saturday, January 21, 2006 @ 12:14 am - Robin Yeamans

Psychologists and Judge Komar

Psychologists Have Long History of Destroying Families in San Jose Presiding Judge Jack Komar issued his "Protocol For Change" Jan. ‘00 which not only smashed the special master system but also attempted to break the cronyism and lack of professionalism that had existed: E. Outside Custody Evaluators/Assessors ….The court will maintain a list of qualified outside mental health evaluators, with appropriate specialties, who may be appointed in Family Law matters. Any qualified mental health professional who meets the standards established by the court may be placed on the court's list and appointed in particular cases. The Court will ensure that each such evaluator is qualified to perform such evaluations,…. Evaluators will be appointed from the list based upon the professional's specialties but also taking into consideration some reasonable rotation so that all approved evaluators will have an equal opportunity to assist the court. The Court will undertake, in conjunction with other agencies, to provide training in custody evaluations, the ethical obligations inherent in custody evaluations, conflicts of interest, rules regarding ex parte communication, and as well as statewide standards and rules of court. Custody evaluators and assessors will be under an obligation of full disclosure to the court and the parties regarding prior relationships and/or other factors constituting a conflict. … Absent a stipulation between the parties, the appointment of a custody evaluator/assessor will only be made following a hearing at which the parties will be given an opportunity to object to the referral for evaluation/assessment and the identity of the evaluator. By stipulation, such appointments may be made at Early Resolution Conferences. The Komar Protocol was hugely successful.
Thursday, January 19, 2006 @ 7:24 pm - Robin Yeamans

High Conflict or Domestic Violence

Of course, not all abusers or violent people are male. (My Clip Art package only had a down female and a soccer player that I could use for this, sorry; not meant to stereotype.) The point is that the Law of the State of California is very clear that domestic violence and abuse are relevant to custody, and when a judge calls domestic violence "high conflict," the judge is making both parties equal---contrary to state law. This month's "Family Law News," official publication of the State Bar of California Family Law Section (Issue 4 2005, vol. 27, No. 4) has an articles titled "High-Conflict Divorce and the Personalities That Drive Them (beginning at page 7). I regard this article as absurd and contrary to law, encouraging judges to treat both the abused spouse and the abuser the same. It leads to thinking that equates the victim lying on the floor with the batterer. Whether the batterer is male or female, the state's law should be applied. The Batterer as Parent by Bancroft and Silverman discusses ways in which a parent being violent to a spouse is also reflected in the person's parenting. That is consistent with California State Law, not to mention common sense and experience.
Sunday, January 15, 2006 @ 5:33 pm - Robin Yeamans