Wednesday, September 23, 2020

Parental Negligence.....Issues re Child Endangerment

When the child "fell" into a gorilla enclosure at the zoo in Ohio, most animal activists were more concerned for the gorilla having to be killed than for the child's part, many found fault with the mother for failure to properly supervise her kids.

Had the child been killed, it is fairly obvious that the zoo would have to pay out, but does that mean the parent had no duty to supervise? Of course not--all parents have a duty to ensure the kids' safety.
We think this person we saw online, expressed it best:

"Let me get this straight... if you turn your back on your child in a zoo, who tells you he wants to go into a gorilla cage, and he goes in, causing the gorilla to be put down there is no negligence...but parents all over the country are being charged for negligence for allowing their kids to play alone a a park, ride their bikes around the neighborhood, or play in their own front yards without an adult there to supervise (in NO case where the child was harmed).... our society sucks!!"

The criminal filing of child endangerment is likely different in every state.  However, it's safe to say that the zoo's design probably never dreamed a kid could do what this kid did. Was that negligence even though it had never happened in X number of years?  It could be.  

California Penal Code 273a PC punishes acts of child endangerment . . .

 Simply put, the crime of California child endangerment occurs when someone:
  • Causes or permits a child to suffer unjustifiable physical pain or mental suffering,
  • Willfully causes or permits a child in their care to be injured, or
  • Willfully causes or permits a child to be placed in a dangerous situation.1

Unlike the California crime of child abuse, a child endangerment conviction does not require that any child suffer an actual injury.2 
Therefore, it is easy (and unfortunately quite common) for innocent people to face prosecution under California child endangerment laws.
For you to be guilty of child endangerment, all of these facts must be true:
    1. You did ONE of the following:
a. willfully inflicted unjustifiable physical pain or mental suffering on a child,
b. willfully caused or permitted a child to suffer unjustifiable physical pain or mental suffering,
c. caused or permitted a child in your care or custody to be injured, or
d. caused or permitted a child in your custody to be placed in a dangerous situation;
    1. You were criminally negligent (if the allegation is that you did (b), (c), or (d) above); AND
    2. You did not act while reasonably disciplining the child.
In addition, if you are charged with wobbler child endangerment under Penal Code 273a(a) PC . . . instead of misdemeanor child endangerment under Penal Code 273a(b) PC . . . then the prosecutor must also prove that:
  1. You acted under circumstances that were likely to produce great bodily harm or death.
  2. You did not act while reasonably disciplining the child.

Tuesday, March 19, 2019

California Penal Code 647(J)(4) Divorce, Facebook, and the Alleged Xact Rated Photos?

Divorcing spouses should know, it is possible 
to sue the ex spouse for tort damages such as 
emotional distress;   this is seen in some cases 
where false accusations of molestation have been 
levied, or other egregious tort violations.

Note: Attorney believes it is not a good idea to take alleged adult-porn photos of oneself, when you plan to post it and do or did post it online,whether you do it yourself or not, because it only takes ONE bad incident to make this into a problem.... which could have been avoided if you simply do not do it? 

     For that matter, think carefully about being photographed for any compromising situation..too drunk, in pic with drugs......Just think of the ramifications it could have on your kids, and the friends of your kids, and anyone else that found out? Attorney is assuming you do not want to be a porn star, (but judging from what we have seen in years past, apparently more than several people really do want to be x rated stars) so if you do, then ignore this advice.)  As an example, the girl with hat on at left, would not likely be considered a porn photo.                                 

California lawmakers recently amended the state’s disorderly conduct law to criminalize some forms of "revenge porn" (SB 255) and resulting in CA PC 647(J)(4).

 Under the new law, it is a crime to photograph or otherwise take private, nude photos of another person and distribute the photos in a way that is intended to and does cause emotional distress; and revenge porn is punished more severely if the victim is a minor or if the defendant has previously been convicted. Critics have charged that the California law does not go far enough in helping victims, because it does not protect them from subsequent distribution of sexual self-portraits.
 "On its face this sounds good; but, upon closer examination there are many loopholes in the statute, such as it excludes: “selfies” (the law requires someone else to have recorded the image); redistributors (the laws only applies to the person who took the photograph or recording, not others who may then redistribute the image, as often done by websites);  and hackers (those who obtain these images through hacking a computer).  

 The new law also creates disputes about agreements about privacy, and measuring sufficient intent to cause serious emotional distress.  A wonderful discussion about the statute itself can be found in Eric Goldman’s article written for Forbes."

...and more... " [t]he California Domestic Violence Prevention Act has probably always provided protection...  The reason I state “revenge porn” probably has always been protected against in family law is because the act of distributing these private images probably constitutes harassment and in California engaging in harassing activities can subject a person to restraining orders."  
"By viewing this behavior as harassment, we potentially avoid having to address the loopholes left by the criminal statute; and we avoid seeking redress through a very difficult criminal system.  In other words, even if someone took a “selfie” and then an angry ex gains possession of the “selfie”, posts the “selfie” on line or distributes it via email, this could constitute harassment."  

"Therefore, in this example, while there may be no crime (because a “selfie” is excluded under the new criminal statute because it is not taken by another person), the victim of such public exposure may still find protection in the family courts.  As for those situations where another person takes the photograph or recording and distributes such images, while that may be a crime if all of the elements of the statute are met, may also be restrained under the family law statutes."

This excerpt below is from attorney Don Schweitzer, Esq. out of Pasadena, talking about issues such as Facebook, revenge porn, the law on same, and who owns photos..........

In January, the "Revenge Porn" law, which falls under the California Penal Code 647 (J), was amended in California to include that prosecutors no longer have to prove intent when pursuing against the unlawful distribution of intimate images. 

This is great news for the spouse worried about the archives stored in a once-shared computer hard drive, but the questions most divorcees want to know are:
I want to own all the images and videos. Aren't they technically mine, since I'm in them? 
Here's the truth: At least in the state of California, there is no specific code or case law that presently speaks on the property rights of photographs or videos. In fact, currently, photos and videos, regardless of how risqué the content, are handled no differently then when parties are dividing up photos and videos of their children. 
Typically, the person who has possession of the photos and videos ends up as the rightful owner after the divorce. In some cases the person who has possession of the archives will be asked for duplications, which can be at the financial responsibility of the other party. The California family code has no provision mandating that a court order of intimate photos be turned over to other party. If it gives you piece of mind to have copies of the images, then it is doable, but to seek sole ownership would be at the discretion of the court to award it.
What if I seek and destroy the 'evidence' prior to filing for divorce?
Don't do it! Photos and videos are treated as "property" in a divorce case, so intentional removal, destruction or manipulation of any and all property is a violation. As embarrassing as the topic may be, your best protection is to talk with your lawyer about the photos and videos, and elaborate on any concerns or intent involving your ex-spouse. The more information your lawyer knows, the better he/ she can be equipped to create a plan to make sure your emotional distress doesn't escalate during the divorce process.
Speaking of "property," does this mean that I have partial ownership over my spouse's social media accounts? What rights do I have if I want my soon-to-be ex to remove photos of our children and myself?
Currently there is no code or case law that mandates ownership or property of social media accounts, and the family courts have limited discretion when parties disagree about the type of content one party is posting on social media. Generally speaking, it's best for both parties to keep their profiles "private" and adhere to the many guidelines and tips on how to keep your children safe on social media. 
The Family Court would only be concerned if the photos posted to an account were detrimental to the health and safety of the child otherwise, freedom of speech rules. 

Finally, I heard my ex is slamming me on his Facebook account, calling me names and airing our dirty laundry as his status posts. I don't have access because his account is "private" and we are no longer "friends," but mutual friends have sent me screen shots of his posts. Can he do that?
Typically a family court will not issue an order for removal of the social slamming; however, the family court will take into consideration any and all copies of text messages, Facebook screenshots, tweets and the like when evaluating child custody requests. So while the court can't tell you what not to post, I strongly advise to play nicely because any information leaked can be used against you.
Even if children are not in the picture, the fact is any type of intent of emotional distress or harassment will be considered during a divorce process. Berating or speaking negatively about your soon-to-be ex--whether it is in person, online or via phone or text message--is still considered evidence. And how you react is also duly noted. My advice for all clients when a new emotional stone is turned is to walk away, call your lawyer, then react together. This allows for the best, legally sound outcome in your favor.
Don Schweitzer is founder and partner of The Law Offices of Donald P. Schweitzer, based in Pasadena, Calif. As a Certified Family Law Specialist and former District Attorney, he has extensive background in domestic violence, divorce and child custody issues. Prior to becoming an attorney, Mr. Schweitzer was a Police Officer for approximately 10 years. As a faculty instructor at the National Business Institute, Schweitzer teaches continuing legal education classes on the topic of ethics and advanced courses on family law. He is an active member of the Pasadena Bar Association, the Los Angeles County Bar Association, American Bar Association, and the California State Bar; and a recent contributor to Los Angeles Lawyer.


Sunday, September 23, 2018

FL2640 Tracing and Property Having Little to No Equity?

If a couple has been in a relationship for over 20 years let's say, and substantial assets have been acquired but one party really doesn't know what the other party has done with all of the assets...or, both parties brought assets into the relationship to being with, then due to inheritance, improvements, and new business startups, or new investments acquired and sold or traded, the waters become quite muddied, and resorting out all of the transactions over many years can be very daunting.

Attorney herein used to be in an office in San Diego with a Special Master who was always working on forensic issues. Commonly, a CPA would be used but is not required unless complex tax transactions were seen for many issues. When coupled with non disclosure, these financial issues can generate some very high expenses. Many of the cases in the appeals courts can focus on the tracing of assets and division.

BUT----Even though not an extremely high stakes case, (not in millions, but at least $100,000)---- attorney has seen one case locally where at the family law trial, which attorney was not involved with (both parties were pro se) ---- the judge actually claimed to understand FL Code 2640, [see link below] but failed to generate the order after the trial which would explain how judge implemented his decision.  In the decision after trial, judge actually ignored the code, failed to award the one party (who had the 2640 claim) her $100,000 proven cash down payment which should have been taken off the top PRIOR to any division of community property--and simply gave the other party the real property which had value, but was under water. and there went the client's $100,000 cash down payment, AND the residence,  because Judge never allowed her the credit to begin with.

Although CA case law appears to find that real property with a traceable FL2640 claim will usually go to the one who put down the separately property cash, especially if equity is lower than when acquired, and the community has not really made any headway in lowering the principle, this judge ignored the down payment cash by the one party and seemingly claimed that because there was no equity at trial, then he could just award it to the other party, because he has discretion???

Obviously IF this was true, then any judge could ignore FL2640 (as this judge seems to have done)  and just give away thousands of dollars of cash down payments, even though admittedly fully proven and traceable, and then award both the residence and any equity (even if little or none) to the other party, while ignoring the mandate that the traceable, proven cash that wife put down, SHALL be taken off the top FIRST,  because Judge wanted to exercise discretion (so he claims........)  Rather clearly, we don't think this was even discretionary, since when counsel on later motion queried "What about client's $100,000 proven cash down payment in separate property", Judge replied "That's a good question."

So as can be seen, one needs to have a court reporter at a trial, especially if one has a lot of cash at stake. And hiring an attorney for the trial is a good idea especially when you stand to lose your $100,000 because Judge can't apply the code correctly?

Sunday, April 30, 2017

Woman in Court denied Jail "Pants" and Feminine Hygiene, See Video



BUT IN SOUTH KOREA..............
NO, this has nothing to do with law. Thank God.....

  ...glad some people get to have fun while
                                                                                     working!!!  LOL

Tuesday, February 14, 2017

Problem with "Domestic Violence" Temporary Restraining Orders.........Call Attorney Now!

Much has been said about CALIFORNIA "domestic violence" TROs........but what this attorney believes, is that the current way they are handed out like candy on Halloween and then reissued automatically when requested is simply ridiculous in many cases. Especially if the other spouse is a good, medium, or legendary liar.

Because most of the "DV" TROs are requested by females (against males)--- many judges just rubber stamp them, even when there is no proof of any alleged violence TO BEGIN WITH.

  An ALLEGATION of "domestic violence" is all that is required.  In general, an ALLEGATION of violence does not mean there was any violence, but since the "DV" TROs are not criminal (if you violate the TRO it will be a potential criminal charge) but the TRO itself  will be registered on CLETS  (see fn#1 below)-- it kind of amounts to it being criminal in effect.  "DV" TROs can cause people to NOT be hired in the workplace, even if one was not charged or convicted of any violence in criminal court.  * [see **below, for what could happen IF it is found or believed that you DID violate the "DV" TRO--and charges in criminal court transpire....]

The ALLEGATION alone, if not contested, can have huge, long lasting, completely devastating effects  in any custody issue, period.  Especially if one party has an attorney and the other party does not have an attorney, the one without the attorney may simply give up, and end up losing visitation.

Attorney has seen this happen in many, many cases.  Conversely, attorney has seen parents unjustifiably accused by "DV" TROs, and then end up prevailing, but it can take a long time and a lot of work, especially if one has a vindictive ex spouse or partner.

---> //FN#1 re CLETS:  restraining order coming from the civil courts is the CLETS restraining order. CLETS is an acronym standing for California Law Enforcement Telecommunication System. A CA CLETS order is a restraining order that is issued by a family law judge, lodged in the CLETS database and allows the police to arrest the abuser if the abuser violates that order. 

SO....the best thing to do if accused of any "DV" TRO

 is to immediately get legal help so that you

 don't go down like a sinking ship

 before you even get started.  

The last thing most people need is a "DV" TRO on their record, even if they are not guilty of it--- it carries both a stigma (you beat up people or try to hurt them, etc), that you are not fit to watch or babysit children (age  of kids will matter but especially babies)  and you will be stuck with what is known as supervised visitation which you will likely not be able to afford, or will not want to afford.  Further, the wait list is very long unless you plan to use a private agency which is quite expensive.

Waiting Will Harm You.


Attorney is A  LITIGATOR,  familiar with representing defendants on DV TRO allegations in criminal court.  

Examples (as seen online...)
  • The protective order states that you must not contact your ex-boyfriend, yet you continue to send him e-mails and texts
  • The restraining order states that you may not use force or violence upon your wife, yet you grab her and threaten to break her legs if she doesn't seek to have the order terminated
  • The protective order states that you may not own or possess any firearms during the length of the order, yet you fail to relinquish your gun to the proper authorities
  • The restraining order states that you must stay away from your family home, yet you slash your wife's tires while her car is in the driveway
Possible legal defenses apply to a PC 273.6 charge.  Some of these include:
  • the judge didn't legally issue the protective order (this only happens infrequently)
  • you didn't know about the restraining order (maybe you were never served)
  • you didn't intentionally violate the order  (perhaps it was an accidental situation)
  • you were falsely accused of violating the protective order  (you have a legendary liar for an ex spouse?)
A new case, June 2016 was published for CA which indicates that no NEW allegations of DV conduct is required in order to "renew" a  DV  TRO. Perez v Torres-Hernandez, First Appellate District CA.

*NOTE:  Most people violate DV orders by doing something dumb or stupid--but most are not extreme in nature--in other words, they don't use weapons to try and kill you or abduct the kids. However, some defendants will make repeated threats via phone, text, computer---which are counted by the courts.  Therefore, sending bad texts, bad emails, and leaving bad notes online (Facebook, etc) is simply stupid.  If you have done this, then basically you need to change your behavior.  In Butte County, even felons are not necessarily being pulled back into prison--or-- jail,  for violating a DV TRO due to the Realignment problem. If you do not know what the Realignment problem is, google it online.
If you are convicted of violating a California restraining order, the penalties vary quite a bit depending on
  1. Whether it's your first or subsequent violation, and
  2. whether the victim suffered a physical injury.
The penalties may include up to three years in the California state prison for a felony, and up to one year in a county jail for a misdemeanor.  In addition, you could face
  • court fines and penalties,
  • victim restitution for any counseling and/or medical services that the victim reasonably incurred in connection with the offense,
  • counseling services, and
  • the relinquishment of any firearms and the inability to acquire any new ones for the length of the protective order.

Attorney herein, in the past, had a client that was ALREADY convicted of PC 273.6-- BECAUSE he took a plea and did not go to trial.  Client's ex spouse was (to put it mildly--) a legendary liar. Seriously.
After obtaining the 273.6 plea, the ex wife then subsequently went after another DV TRO for 5 years. (This case is not in Butte County.) 

True to form at the trial, the ex wife's showboating attorney paraded around thinking he was Perry Mason.........just awful...........and sure enough, despite the Judge finding that it was extremely close in his decision, (because he was a new family Law Judge in part) Judge gave the ex wife the new TRO anyway.  All of the false accusations were repeated and re-hashed.  Although Client had no visitation anyway, he slowly did his supervised visitation as per the FCS recommendation.  Even now, which is over a year later, the ex wife is still withholding the kids from the father and she even moved to another city.  If father sticks with it, he can get unsupervised visits, but so far the ex wife has not even complied with the last court order.  This puts a burden on the father to take action and not remain passive.

SO-- if you want or need an attorney that can handle both Family Law issues, and even criminal charges, feel free to call attorney. Attorney does have a track record of recorded wins in cases, this is fact based.

SO-- if you want or need an attorney that can handle both
 Family Law issues,
 and  criminal charges, feel free to call attorney. 

IT  is also possible  to be charged with either cyber-stalking PC 646.9 or Penal Code 653.2 PC indirect cyber-harassment.

Cyber-stalking is the same behavior as ordinary stalking, only committed over the internet or email. In contrast, indirect cyber-harassment consists of posting harmful information about someone on the internet or in an email message, with the intent to incite other people to harass or threaten him/her in person.
Indirect electronic harassment is distinct from “direct electronic harassment” or cyberstalking under Penal Code 646.9 PC. With direct electronic harassment/cyberstalking, the defendant is the one who personally harassed or stalked the victim.3

Tuesday, January 31, 2017

CA Supreme Court Rule on "Date of Separation" Fixed by Legislature

In 2015, the CA Supreme Court had ruled that "date of separation" means that there must be physical separation of the parties (meaning someone moved out...) With the economy and other factors, spouses (often women)  ---  do not always move out because they may not be able to afford to do so. Thus the financial aspects were not considered so much in the Supreme Court.

The Legislature was apparently bombarded with huge backlash from women's groups and other advocates, including the Family Law Bar; so upon this backlash, the Legislature enacted a new Code Section which pretty much eliminated the Supreme Court ruling. 

Family Code Section 70, when adopted, January 1 2017--- will provide as follows:

(a) “Date of separation” means the date that a complete and final break in the marital relationship has occurred, as evidenced by both of the following:

(1) The spouse has expressed his or her intent to end the marriage to the other spouse.

(2) The conduct of the spouse is consistent with his or her intent to end the marriage.

(b) In determining the date of separation, the court shall take into consideration all relevant evidence.(c) It is the intent of the Legislature in enacting this section to abrogate the decisions in In re Marriage of Davis (2015) 61 Cal.4th 846 and In re Marriage of Norviel (2002) 102 Cal.App.4th 1152.

As you can see, this makes everything about the parties' supposed intent and their conduct up for grabs, and indeed "the court shall take into consideration all relevant evidence." Although California is supposedly a "no-fault" jurisdiction,  this amendment will CAUSE nearly all behaviors and activities by spouses to be fair game in establishing their intentions about continuing or ending the marriage.