Restraining Order

A California Court of Appeals recently held that a restraining order cannot be issued under the Domestic Violence Prevention Act unless there was abusive conduct that placed victim in reasonable apprehension of injury. In S.M. v. E.P. No., D055230, proof of badgering without physical violence is not enough for the court to issue a restraining order. Without physical confrontation, it would be difficult for words to place one in reasonable apprehension of imminent serious bodily injury. While the trial court granted the restraining order, it was declared improper on appeal.

Pursuant to California Family Code §§ 6300 and 6306, a restraining order may only be issued to prevent a recurrence of domestic violence if there is reasonable proof of past abuse. Courts issue restraining orders to protect a person from physical pain, injury, and threats of physical pain or injury. These may be issued against a family member, a member of the household, or a stalker.

Domestic violence, more specifically, pertains to abuse perpetrated between a person and their spouse, cohabitant, person in a past intimate relationship, or one’s child. CFC § 6211. But for an act to qualify as abuse, one must intentionally or recklessly cause or attempt to cause bodily harm, commit sexual assault, or place a person in reasonably apprehension of imminent serious bodily harm. CFC § 6203. Words alone, however, would rarely give rise to a domestic violence claim.

Additionally, if a restraining order is issued before or in the midst of a child custody dispute, then it may prevent the recipient of that order from gaining custody. CFC § 3044.

Though the law may seem organized and straight-forward on its face, this is rarely the case. Family law is a complex area and it takes someone with intimate knowledge of the law and experience navigating local courts to get you the best possible result in your case. It is vitally important for you to hire an experienced Southern California Family Law Attorney to make your case. With over 30 years of experience, Wallin & Klarich have handled thousands of family law cases. We know that your family and children are important to you and we feel the same way. Call us at (888) 749-7428 begin_of_the_skype_highlighting              (888) 749-7428      end_of_the_skype_highlighting or contact us on our website at www.wkfamilylaw.com. We will be there when you call.

A minor can request a domestic violence restraining order against an adult or another minor. There is no age requirement for filing a domestic violence restraining order in California. Under specified circumstances, a minor may appear in Domestic Violence Prevention Act (DVPA) proceedings without counsel and without a guardian ad litem. However, a minor under age 12 seeking or opposing protective orders can only appear in court if they are accompanied by a guardian ad litem or counsel. A minor who is at least age 12 may appear in court without counsel, a guardian or guardian ad litem for the purpose of requesting or opposing a restraining order.

In order to file for a domestic violence restraining order, there must be a certain type of relationship in order for the restraining order to be valid under the Domestic Violence Prevention Act. The Act indicates that those entitled to protection include the following: a spouse, cohabitant, dating/engagement relationship, coparent, child, and blood relatives. Therefore, for example, a minor child can file a restraining order against another family member, step parent, etc.

In order to be successful in obtaining a domestic violence restraining order, it is important to base the request on who actually suffered the harm. Therefore, if the minor suffered the harm, the minor has to be listed as the person requesting the restraining order. The reasoning behind this is because a parent cannot file for a restraining order on behalf of their child unless the parent also suffered some injury of harassment, violence, etc. that would enable them to get the restraining order.

The Domestic Violence Prevention Act is very complicated. If you or a loved one has a family law issue, it is important that you talk to an experienced Southern California family law attorney. At Wallin & Klarich, our attorneys have over 30 years in handling all types of family law matters. Our attorneys will assist you in requesting your restraining order to make sure that the request is done properly. If the request is not proper, the court will deny the restraining order and you will not be protected by the law. Our attorneys will fight to get you the best possible result in your case. Call us today at (888) 749-7428 or visit us on our website at www.wklaw.com. We will be there when you call.

In another post, we discussed the first tip that you should follow when preparing to work with a lawyer for your child custody and/or visitation issue in court. Let’s go on to the second tip.

Second, remember that if you want to criticize the other parent about some aspect of his or her parenting, make sure you can prove that you are doing well in that aspect of parenting. It does not help much to point to the other parent’s deficiencies when you yourself are deficient. If you feel like you both have room for improvement, go ahead and say so. Offer suggestions on how you can both improve.

It is understandable that you are very emotional when it comes to your situation. On the other hand, the judge will appreciate your position more if you approach your situation objectively and fairly. Judges can frequently hold it against you if you decide to try to pull some punches. Judges will often try to figure out which party is acting fairly and appropriately, and which party is causing all the problems. You always want to take the high road. You certainly do not want the judge to think you’re the one making things difficult.

Wallin & Klarich has more than 30 years of experience in family law. Our child custody Orange County attorneys know from long experience what works in a divorce case, and are prepared to fight to get you the best possible outcome. With 16 attorneys in 33 offices throughout Southern California, we can be there when you need us — wherever you are. If you’re thinking of hiring an attorney for a mediated divorce, call us today at 1-888-749-7428 for a consultation, or fill out the online case evaluation form to the right.

This is just the second of five tips, visit our blog again to continue reading Part 3.

An interesting story out of Massachusetts, posted on bostonherald.com, discusses the case of an artificially inseminated woman who was trying to force a Newton sperm bank to reveal the identity of her twin daughters’ father so she can sue him for child support. The woman, identified in court papers only as Jane Doe, was contesting a Probate and Family Court Judge’s dismissal of the original motion which was filed in 2006.

The father in this case, was a medical student at the time he donated sperm. The agreement he entered into with the sperm bank claimed his identity would be held “in strictest confidence.” The donor signed an agreement with the Newton center agreeing he would never try and find any children he may have sired. In return the center would protect his identity.

The woman is also seeking the identity of the man for another reason. She claims that she needs his latest medical records because of ailments the appellate court says “she claims her daughters have developed.” Those sicknesses include ectodermal dysplasia, which adversely affects the growth of hair and nails and can prevent children from sweating, making them intolerant to heat and fever.

Not all child support claims are this complicated. This instance is clearly a rare situation, but the complexities and importance of standard child support arrangements are very real, and affect millions of people throughout the U.S. The Orange County child support attorneys at Wallin & Klarich represent custodial and non-custodial spouses in all areas of child support law, helping to insure that your children get the financial support they need, renegotiating existing support orders, and establishing paternity.

Our attorneys have handled hundreds of divorces, child support and custody cases at Wallin & Klarich. We know parents in a child support case have a difficult job to do in balancing their personal and financial needs with the best interests of their children. We’re dedicated to helping smooth this transition for our clients and seeking the best possible outcome for your child support dispute. With sixteen attorneys in five Southern California counties, we can be there when you need us, wherever you are. For a consultation with an experienced family law attorney, call Wallin & Klarich today at 1-888-749-7428.

Source:http://www.bostonherald.com/news/regional/view/20090930appeals_court_denies_case_to_id_sperm_donor/srvc=home&position=recent

Kelly Rutherford and her estranged husband, Giersch, have been involved in a custody battle over their two children. It is reported that Rutherford alleges that Giersch has been randomly showing up and threatening her, her mother and her nanny and scaring them, so much so that the nanny became upset and quit. Media reports indicate that it is alleged that Giersch has also shown up at restaurants and blocks Rutherford so she is unable to leave. On October 15, 2009 the court will hear evidence from both Rutherford and Giersch to determine if a restraining order is necessary.

The court can grant a restraining order on the basis of stalking and harassment, even without any physical violence or threat of violence. If the court believes Rutherford and the children need the protection of the court, the restraining order can be granted for a period of three to five years.

Restraining orders in California are on your permanent records and can affect you negatively for the rest of your life. Whether you are requesting a restraining order or are fighting a restraining order, it is a very serious matter and parties should seek the assistance of an experience family law attorney.

Wallin & Klarich has more than 30 years of experience in family law. Our attorneys know from long experience what works in a divorce case, and are prepared to fight to get you the best possible outcome. With 16 attorneys in 33 offices throughout Southern California, we can be there when you need us — wherever you are. If you’re thinking of hiring an attorney for an immediate divorce, call us today at 1-888-749-7428 for a consultation, or fill out the online case evaluation form to the right.

An article on examiner.com discusses the plight of victims with California domestic violence restraining orders that are finding that those restraining order documents are doing little in preventing their stalkers from tracking and harassing them online. By targeting blogs and social networking sites, these restrainees are able to continue to harass their victims, with little recourse for courts or authorities.

With the amazing popularity and worldwide commonality of the Internet, social networking sites, and blogs, it has become very easy for even those with limited computer experience to track the comings and goings of web surfers, using things like online hit counters and website statistic portals. However, prosecutors are reluctant to prosecute batterers for monitoring victim’s blogs and web sites claiming that the World Wide Web is public domain and that blogs and web sites are not protected.

The article explains that:

“Batterers are receiving what can best be described as a 21st Century free pass until law makers and victim advocates help to improve stalking and restraining order statutory language and guidelines to include the words “electronic monitoring of blogs and web sites” as violations and part of stalking statutory language.”

As our technology and the ways in which we communicate continue to evolve, it is important for our courts and legal system to keep pace. An experienced California restraining orders attorney at Wallin & Klarich can help insure that all issues and fears are addressed by the filing of your restraining order. Our attorneys can help the courts understand if you have special circumstances surrounding your case, insuring the best possible result for any legal action you decide to take.

Whether you need to file a restraining order or defend yourself against a restraining order, contact Wallin & Klarich Family Law to discuss your case. Call 1-888-749-7428 today for an evaluation.

An article published on the website mmafighting.com details the arrest of UFC welterweight Anthony Johnson who is facing misdemeanor charges for an alleged altercation with an ex-girlfriend on June 27. Johnson has been charged with domestic violence, battery, death threats and destroying a phone to prevent the report of a crime.

Johnson has a trial date set for July 17 in his case. The arrest occurred after Johnson forced himself into his ex-girlfriend’s house to check on his dogs. An altercation followed that left both parties with scratches and bruises.

Domestic violence charges are all too common in our society today. The Riley Center, a shelter for the abused, estimates that every 9 seconds, a woman is battered in the U.S. It also estimates that Domestic Violence occurs in 60% of marriages and is the most under reported crime. With so many men and women falling victim to domestic violence, it is no surprise that Los Angeles restraining order requests and domestic violence charges are a constant occurance.

The skilled California domestic violence attorneys at Wallin & Klarich can help you protect yourself from your abuser. We can file a restraining order on your behalf, appearing for you in court, allowing you to avoid facing your abuser face to face. Our attorneys also have experience defending those with domestic violence charges against them. We will build your defense, clear your name and defend your rights. Whatever your situation may be, we have the solution. Call Wallin & Klarich Family Law for sound advice, peace of mind, legal guidance and a free, completely confidential consultation at 1-888-749-7428.

In In Re Marriage of Nadkarni, 2009 DJDAR 7158, the court found that the Husband’s accessing his former wife’s private email account constituted abuse under the domestic violence prevention act.

An application for a restraining order must allege “abuse” under the Domestic Violence Prevention Act. California Family Code Section 6320 states that “disturbing the peace of the other party” falls within the meaning of “abuse.”

In this case the former husband submitted a declaration to the court accusing former wife of leaving the children alone while she was in India. Former husband attached copies of emails between former wife and other parties, which he acquired when he accessed former wife’s personal and business account. Former husband claims that he only accessed former wife’s email account to verify that he had not missed any email messages to him about visitation or the children. However, some of the emails former husband attached to his application were from former wife’s family law attorney and the children. Former husband also stated in his declaration that the emails he found also included statements that former wife had instructed the children to lie to former husband about their whereabouts. There were also emails, which with Child Protective Services regarding an investigation, wherein former wife falsely stated that she had arranged for her brother to watch the children when she was away. Former husband claimed that his only intent with the emails was to use them in future court proceedings. Even though former husband was able to gain access to former wife’s email accounts, she claimed that she had never given him permission to use the email account nor had she given him the password.

In this case, not only did former husband access emails, he was able to find out former wife’s calendar and schedule and communicated her schedule to third parties. Former wife feared for her safety because former husband knew her schedule and that she would be at certain social events and was afraid because former husband had physically abused her in the past.

The trial court dismissed former wife’s application to extend the restraining order protecting former wife under the Domestic Violence Prevention Act protecting former wife from such abuse. The Appellate Court reversed and remanded and stated that the phrase means “conduct that destroys the mental or emotional calm of the other party.” Based on the present facts, the court held that former husband had in fact accessed, read and publicly disclosed former wife’s confidential emails. Due to former husband’s behavior he caused former wife to suffer shock and embarrassment, which destroyed her mental and emotional calm. Therefore, the court held that former wife’s application to extend the restraining order sufficiently showed “abuse” within the meaning of the Domestic Violence Prevention Act.

Applying for and obtaining a restraining order or opposing a restraining order is difficult and complicated as demonstrated above. It is important to contact a knowledgeable and experienced California family law attorney such as Wallin & Klarich to assist you in the process. Wallin & Klarich has over 30 years of experience in family law and restraining orders and has offices all over southern California. Contact a Wallin & Klarich attorney today to get the help you need by calling 888-749-7428.

Court Grants Restraining order for Husband’s Public Disclosure of His Former Wife’s Private Email

In In Re Marriage of Nadkarni, 2009 DJDAR 7158, the court found that the husband accessing his former wife’s private email account constituted abuse under the domestic violence prevention act.

An application for a restraining order in California must allege “abuse” under the Domestic Violence Prevention Act. California Family Code Section 6320 states that “disturbing the peace of the other party” falls within the meaning of “abuse.”

In this case, the former husband submitted a declaration to the court accusing former wife of leaving the children alone while she was in India. Former husband attached copies of emails between former wife and other parties, which he acquired when he accessed former wife’s personal and business account. Former husband claims that he only accessed former wife’s email account to verify that he had not missed any email messages to him about visitation or the children. However, some of the emails former husband attached to his application were from former wife’s family law attorney and the children. Former husband also stated in his declaration that the emails he found also included statements that former wife had instructed the children to lie to former husband about their whereabouts. There were also emails, which with Child Protective Services regarding an investigation, wherein former wife falsely stated that she had arranged for her brother to watch the children when she was away. Former husband claimed that his only intent with the emails was to use them in future court proceedings. Even though former husband was able to gain access to former wife’s email accounts, she claimed that she had never given him permission to use the email account nor had she given him the password.

In this case, not only did former husband access emails, he was able to find out former wife’s calendar and schedule and communicated her schedule to third parties. Former wife feared for her safety because former husband knew her schedule and that she would be at certain social events and was afraid because former husband had physically abused her in the past.

The trial court dismissed former wife’s application to extend the restraining order protecting former wife under the California Domestic Violence Prevention Act protecting former wife from such abuse. The Appellate Court reversed and remanded and stated that the phrase means “conduct that destroys the mental or emotional calm of the other party.” Based on the present facts, the court held that former husband had in fact accessed, read and publicly disclosed former wife’s confidential emails. Due to former husbands behavior he caused former wife to suffer shock and embarrassment, which destroyed her mental and emotional calm. Therefore, the court held that former wife’s application to extend the restraining order sufficiently showed “abuse” within the meaning of the Domestic Violence Prevention Act.

Applying for and obtaining a restraining order or opposing a restraining order is difficult and complicated as demonstrated above. It is important to contact a knowledgeable and skilled family law attorney in CA from Wallin & Klarich to assist you in the process. Wallin & Klarich has many years of experience in family law and restraining orders and has offices all over southern California. Contact a Wallin & Klarich attorney today to get the help you need by calling 1-888-749-7428 or visiting www.wkfamilylaw.com.

Domestic violence in California toward a spouse, domestic partner, child or any family member is illegal and is considered a serious crime. There are many different types of violence, however, and not all of them leave visible scars. Emotional abuse is every bit as real as physical abuse and the damage that it does can be long lasting and substantial.

A recent article on divorcemag.com discusses how to recognize emotional abuse in a marriage. The very real effects emotional abuse can have on individuals are cited in the article which quotes the website Thisisawar.com (an educational resource which helps people deal with illness, grief, pregnancy, debt, and other personal issues) as saying that:

“Emotional abuse can have ‘serious physical and psychological consequences for women, including severe depression, anxiety, persistent headaches, back and stomach problems.’ Other symptoms include panic attacks, irritability, emotional numbness, eating irregularities, and insomnia.”

Traits that are common among individuals who exert this control over their spouses and abuse them emotionally can include things like refusal to acknowledge the value or self-worth of others, refusal or inability to listen to reason or logic, the need to humiliate others, and extremely possessive or jealous behavior.

What makes emotional abuse even more dangerous is its tendency to be a stepping stone to physical abuse. When one spouse tries to break the cycle of emotional control and damage, the result can be an escalation to violence. The most important thing to do in any case of abuse, is to remove yourself and children from the situation and make the violence or abuse stop.

If you have been abused by a spouse, you can make claims to your house, finances and even custody of children. There are many ways you can do this through the court system, including filing for a domestic violence restraining order to protect you, your family, and those residing with you. Call a Wallin & Klarich Orange County domestic violence lawyer for a case evaluation.