Divorce

Divorce

Thursday, May 30, 2019

Parents, Marijuana Use and Custody in California

Could you lose custody of your children due to smoking marijuana?

[This post has over 1,851 views so apparently parents are concerned!]




Most county employed mediators have standard provisions that parents should adhere from smoking in presence of children, or sometimes even when the kids are under the control of that specific parent. Further, even if smoking is allowed in certain areas, many mediators don't want kids near second hand smoke, period. EVEN if it's inside the house in another room...EVEN if it's anywhere near where the kids might be, play, or access? Like outside?  **Note: in one mediation case, a mediator told a client that because MJ smoking is legal, to drop the issue...quite frankly, the actual smoking or use of the drug (even where legal) is not necessarily proper inside, where kids are, or in cars and other certain places? or where kids have any type of respiratory issue/other ailments? In any event, despite the mediator, it is NOT a good idea for MJ to be used around kids, period. Don't care if it's legal.

The "smoking" will generally cover most forms of tobacco and possibly edibles.... (cigar, cigarette, vape, medical MJ, etc...)  And many times, smoking by third parties in the home may not be a good idea due to secondhand smoke. VAPING is almost worst because it is becoming well known, that the nicotine involved, is fused with scents (i.e. cherry,etc) that the teens are running to buy/try?   https://vaping360.com/how-old-to-vape/

In Butte County, a jury has previously returned a guilty verdict over an issue of whether medical marijuana is a defense (to child endangerment charges)--- the long contested case of  Daisy Bram, where allegedly, the lesser count of misdemeanor child endangerment was found (as opposed to child endangerment likely to cause great bodily harm)... Judge Glusman ruled that no valid evidence was presented as to the certified use of medicinal marijuana and thus it was not available as a defense. Ms. Bram was not represented by counsel, which obviously hindered her defense.

http://reason.com/blog/2014/03/07/daisy-bram-a-witness-in-federal-case-aga

Child Endangerment in California...

Under Penal Code section 273a  there is a possibility of criminal prosecution whenever a child is under your care or custody and you:
  • Willfully permit the child to suffer;
  • Inflict unjustifiable physical or mental pain upon any child; or
  • Willfully endanger the health of a child.
If the prosecuting agency in your county believes that you are “endangering the health of your child” by smoking marijuana or growing it in a home where your children reside, you may face criminal charges....

These charges may be filed as a misdemeanor or as a felony. Of course, if the court order stated that any type of smoking or use of same is not allowed while child is under your care, a violation might be a contempt charge potentially, if the other spouse or another was to bring that claim forward?
If convicted of felony child endangerment, you could be sentenced to up to six years in prison and ordered to pay a maximum $10,000 fine. A misdemeanor conviction is punishable by up to one year in county jail, up to a $1,000 fine, or both.


Why is Alcohol Allowed But Not MJ?


Generally, no courts like the idea of alcohol, tobacco, marijuana, edibles, cigarettes, cigars, etc. when it comes to kids. Although there are tons of rules regarding drunk driving, there are not tons of rules for intoxication at home due to getting high on drugs, including legal marijuana and the like. While the hearsay out there is that MJ will be used, consumed and grown by large business, including beer companies, and that the feds will be changing those laws, it is a possibility, but we wouldn't bet your life on it happening super soon. The banks and other super duty corporations always want to benefit themselves first. BUT if they manage to do it, we can be assured that they will have already thought of safer ways to tone down common marijuana so that it would be as common as alcohol, and treated closer to the way alcohol is regulated.

OTOH, the presence of nicotine in the vaping formulas which are targeting teens (and apparently succeeding)-- is something that relies on curiosity and being popular, because "everyone" is trying it. However one is supposed to be 21 to be "vaping"....well, we are sure that plenty of people are ignoring that there law?? LOL
Parents that are smoking or vaping, your kids are watching you.

Note:  //The courts generally do not favor the smoking of MJ, even if it is medically prescribed. People with chronic anxiety often resort to marijuana use, or prescription meds. The meds only do so much, the overly anxious client will still be overly anxious, but somewhat better than with no meds at all.//
NOTE: JUST BECAUSE MARIJUANA HAS BEEN LEGALIZED TO SOME EXTENT, DOES NOT MEAN THAT OTHER MEANS OF USING MJ ARE LEGAL; FOR EXAMPLE, "SHATTER" IS NOT LEGAL? Using a huge commercial sized bong to ingest shatter is not legal? and certainly doing it with minor children in home is simply insane?  It becomes expensive to prove that one parent is an addict, especially on drugs which can be legal. Obviously that is due to fact that the parent who formerly witnessed such actions, is not living in home where it is presently being done?

https://www.childrenscolorado.org/conditions-and-advice/marijuana-what-parents-need-to-know/safety/  [Extremely informative...]  *Includes Signs of Accidental Exposure to Edibles

https://buttecountyfamilylawlawyer.blogspot.com/  Another site by attorney C. Chan
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Friday, May 17, 2019

Mandated Mediation in Custody and Visitation Cases

    In most cases, the parents are required to go to a mandated mediation session where a mediator
will conduct an assessment of the situation overall-- in most cases the parents have not reached an agreement on visitation.  If they did reach an agreement, the mediator might add additional provisions.

   In addition, especially in cases which are problematic, the parents are told to use "Talking Parents" which is a website that allows the conversations between the parents to actually be SEEN by the judge.....there is no cost in most cases to use this service. Parents are given instructions when they sign up for the mediation appointment.


   Most parents go into mediation blind, meaning, they have no idea of what is going to happen, so they tend to just try and argue about various issues.  This is not the best approach obviously because the mediator's job is to create a workable solution that is somewhat fair given the specific circumstances.  Many parents are very unhappy with results of mediation, this is very common.

If you have read this far, then you may be interested to know that attorney herein actually helps clients prepare for mediation. Each case is different, and attorney wants to make sure the client knows what not to do, and what is either productive conduct, positive, or helpful. Many clients have no idea that what they may do is actually harmful to their case.  This should be avoided obviously, if one is trying to get another to see their "side."  This type of situation always comes up, because if you are going to mediation obviously there is some disagreement. Attorney has been doing these types of cases for more than 20+ years and can likely even predict which parent has a better chance of getting what they want for the kids.

If you are going to mediation and have a situation which is difficult, you will definitely need help preparing for mediation. Attorney has much experience in this area,  so call today to find out if we can help you on your case!

Wednesday, May 1, 2019

TRUE: DV Convictions Can Possibly Take Abuser's Pension!!

CALIFORNIA FAMILY CODE
NO SPOUSAL SUPPORT TO ABUSIVE SPOUSE
Family Code Section 4325
(a) In any proceeding for dissolution of marriage where there is a criminal conviction for a domestic violence misdemeanor or a criminal conviction for a misdemeanor that results in a term of probation pursuant to Section 1203.097 of the Penal Code perpetrated by one spouse against the other spouse entered by the court within five years prior to the filing of the dissolution proceeding or during the course of the dissolution proceeding, there shall be a rebuttable presumption that the following shall apply:

(1) An award of spousal support to the convicted spouse from the injured spouse is prohibited.
(2) If economic circumstances warrant, the court shall order the attorney's fees and costs incurred by the parties to be paid from the community assets. The injured spouse shall not be required to pay any attorney's fees of the convicted spouse out of the injured spouse's separate property.

(3) At the request of the injured spouse, the date of separation, as defined in Section 70, shall be the date of the incident giving rise to the conviction, or earlier, if the court finds circumstances that justify an earlier date.

(b) The court may consider documented evidence of a convicted spouse's history as a victim of domestic violence, as defined in Section 6211, perpetrated by the other spouse, or any other factors the court deems just and equitable, as conditions for rebutting this presumption.

(c) The rebuttable presumption created in this section may be rebutted by a preponderance of the evidence.

(d) The court may determine, based on the facts of a particular case, that the injured spouse is entitled to up to 100 percent of the community property interest in his or her retirement and pension benefits. In determining whether and how to apportion the community property interest in the retirement and pension benefits of the injured spouse, the court shall consider all of the following factors:

(1) The misdemeanor domestic violence conviction, as well as documented evidence of other instances of domestic violence, as defined in Section 6211, between the parties or perpetrated by either party against either party's child, including, but not limited to, consideration of emotional distress resulting from domestic violence. The court shall also consider documented evidence of a convicted spouse's history as a victim of domestic violence, as defined in Section 6211, perpetrated by the other spouse.
(2) The duration of the marriage and when, based on documented evidence, incidents of domestic violence, as defined in Section 6211, occurred.
(3) The extent to which the convicted spouse's present or future earning capacity is impaired by periods of unemployment that were incurred during the marriage to permit the convicted spouse to devote time to domestic duties.
(4) The extent to which the convicted spouse contributed to the attainment of an education, training, a career position, or a license by the injured spouse.
(5) The balance of the hardships to each party.
(6) Any other factors the court determines are just and equitable.

(e) As used in this section, the following definitions apply:

(1) "Domestic violence misdemeanor" means a misdemeanor offense for an act of abuse, as described in paragraphs (1) to (3), inclusive, of subdivision (a) of Section 6203, perpetrated by one spouse against the other spouse.
(2) "Injured spouse" means the spouse who has been the subject of the domestic violence misdemeanor for which the other spouse was convicted.

(f) The changes made to this section by the bill that added this subdivision shall only apply to convictions that occur on or after January 1, 2019.

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Potential Huge Issues for Domestic Violence Cases in Regard to PENSIONS

IF there is any abuser who is violent--and yet maintains a good job--- he or she is most at risk, especially if a conviction for domestic violence happens. THIS IS VERY HUGE for anyone who already is on the edge of being convicted of domestic violence.

Attorney does work on both family law and criminal cases.  If you are in the bad position of
being accused of Domestic Violence, and you have a good job, you better not be convicted of the domestic violence.  For legal help on domestic violence, call attorney ASAP!