Child Custody For Parents With History Of Substance Abuse

Posted by: Gerald A. Maggio, Esq.

Top Orange County divorce lawyers; The Maggio Law FirmOne of the important grounds on which parents can lose custody battles is having a history of substance abuse. Parents who struggle with substance abuse often have a strained relationship with their children and it plays a major part in family court proceedings.  If a court finds a parent guilty of alcohol or drug abuse, it can affect custody.  In serious cases, Child  Protective Services (CPS) can also intervene and remove the children from the addict parent. In some cases, the parents are arrested and charged with child neglect.

Effect on custody

During a divorce proceeding, the California courts will determine different types of custody for the parents. The list includes physical, legal and joint custody. A parent who has had a history of drug abuse may find it difficult to win custody battles. If the court finds that the parent has done rehab and has stayed away from drugs for a long time, it may grant custody of the children to such a parent. If the parent is still involved in substance abuse, the court takes away the parents right over the children.

Custody disputes

California courts generally want parents to create custody agreements either on their own or through mediators. If parents are unable to come up with a custody agreement, the court steps in to resolve the matter. The very first thing that the court will look at before drawing a custody agreement is the welfare of the child. If the court finds that the children are not comfortable living with their parents, it will look into the family history of each parent. Special emphasis is put on sexual assault and drug abuse. If the court finds evidence of drug abuse in the family, it will consider it as part of custody dispute.

Effect on visitation

Parents who stay under the influence of alcohol and drugs may find it difficult to spend time with their children. Visiting hours are usually a common thing in custody and most parents are granted a certain amount of time that they can spend with their children. The court won’t usually grant visitation hours to parents with substance abuse history and even if it does, it will be a supervised visit.

Getting divorced in California can be complicated.  Download our free eBook, 18 Important Things to Know About California Divorce to educate yourself on the process.  

Divorcing A Physically Abusive Spouse

Posted by: Gerald A. Maggio, Esq.

domestic violence attorneys Orange County; The Maggio Law FirmObtaining a divorce from a physically abusive spouse can be an extremely difficult affair for those on the receiving end. You need courage, sacrifice, and strong legal representation. It also needs a willing mind to navigate through challenging circumstances for a better life both for the spouse and children. It is extremely difficult to divorce an abusive husband in marriages that have lasted a long time. This is because the husband generally in these kinds of cases control the household finances.

Not a simple process

A few people will advise you to simply walk away from a life of hell. Do not listen to them. Your pain will be decipherable to only those who themselves have felt the pain. At the Maggio Law Firm, we know exactly what you are going through. We have in-depth knowledge of such cases and have successfully concluded the same in our clients’ favor.

Defining abuse under California law

Abuse is a broad term. It is inclusive of attempting to cause or intentionally causing bodily injury, placing persons in a reasonable apprehension of any imminent or immediate mortal bodily injury or engaging in any behavior as described by section 6320 of the Family Code. This code includes molesting, striking, threatening, battering, telephoning, attacking, stalking, sexually assaulting and harassing as per Section 653m of Penal Code and destruction of personal property, contacting either indirectly or directly, through mail or any other medium, or coming within a particular distance, or disturbing the other party’s peace and as per the court’s discretion, other named household or family members.

Situational domestic violence

Family law lawyers and judges use the situational domestic violence term when they refer to a domestic violence which is a component of a one off incident and not pattern of abuse. It is frequently linked with external factors which result in an usually non-abusive husband to behave badly with his children or his wife. A number of circumstances could result in such an outcome. However, in a majority of cases, these are caused by wife’s infidelity, when husband’s infidelity has been discovered, or the husband addicted to alcohol or drugs or even the decision of the wife to leave husband and to file for divorce which subsequently angers the husband.

Handling situational domestic violence

These kinds of problems are best handled by applying for domestic violence restraining order. The wife, with her lawyer’s assistance, requests the court for both permanent and temporary restraining orders.

Getting divorced in California can be complicated.  Download our free eBook, 18 Important Things to Know About California Divorce to educate yourself on the process.  

Understanding Supervised Visitation

Posted by: Gerald A. Maggio, Esq.

child custody attorneys in Orange CountyThe State of California stipulates that all child custody related arrangements with reference to parental divorce cases would incorporate the best interest of the child. As per the specific situation, the court of law will decide a settlement which would imply that either both or one of the parents will be granted the shared or single custody of the child respectively. In addition to the child custody, the judge may decide the visitation arrangements for the child which would order the child to have contact with one parent only in the presence of neutral third party. The aforementioned arrangement is termed as supervised visitation. In such a settlement, the court has the right to specify the duration and time of visitation. In some cases, the judge might further allot the third party supervision to specific persons and list out the places where the visitation can take place.

When does a court grant supervised visitation?

There are several cases wherein a court will require the parent to carry out supervised visitation with their child, such as:

  • In cases where a parent would like to address some specific issues with the child
  • In order to recreate a bonding with a long absent parent
  • To facilitate an introduction between the parent and child in cases wherein there was a nonexistent relationship between the two.
  • In cases wherein there is a history of domestic violence or physical abuse
  • In cases where there is a threat of parental abduction

Who is a supervised visitation provider?

A supervised visitation provider can be anyone ranging from a neutral family member, a friend or even a professional. It is the provider’s duty to oversee all the visitations cautiously and ensure that all the separate parties involved in the process are kept safe and free of any harm. The provider is obliged to stay around during all the visits and also keep a close track of what is being discussed and how the child is responding to it. Since it is his job to ensure everything goes on smoothly for the child, the provider is supposed to report the parent’s misbehavior or child abuse to the court. He further has the right to interrupt or even put an end to the visit if required.

The supervised visitation providers may be broadly classified into two categories, namely non-professional and professional providers. While non-professional providers are somewhat related to your family or friend circle and are not paid, the professional providers charge a fee for their services.

Getting divorced in California can be complicated.  Download our free eBook, 18 Important Things to Know About California Divorce to educate yourself on the process.  

Child Custody in Domestic Violence Cases

Posted by: Gerald A. Maggio, Esq.

Top Orange County divorce lawyers; The Maggio Law FirmThe definition of domestic abuse is not limited to physical harm; it consists of sexual assault, harassment, threats, stalking, and physical injury. Violence can continue and, in many cases, increase upon separation. Domestic violence allegations play a significant role in child custody hearings. The “moral presumption” in such cases does not allow the abuser to become the primary guardian of the child/children. However, the legal presumption is open to examining the case put forth by both parents.

The top priority of California’s legislature in custody cases is the health, safety, and welfare of the children. When deciding custody the court examines evidence which substantiates the incidence of abuse in the relationship, such as police records, reports from child protective services, or other court orders. If the allegations are proven to be true, then the abusive parent is not awarded either sole or joint custody by means of a “rebuttal presumption” applied by the court pursuant to Family Code section 3044.

The presumption can be overturned if the abusive parent (perpetrator) has successfully completed a batterer’s program, is on probation or parole, has not committed further acts of violence, or proves the children are best-taken care of under them. The victim of abuse can seek a temporary restraining order citing domestic abuse affecting the partner’s custody and visitation rights.

When the children have been subjected to extreme neglect or cruelty, the court has the right to terminate the physical and legal custody of the abusive parent. In such cases, the judgment is permanent and cannot be overturned. The parent loses all rights to their children.

Fabrications are quite common in domestic violence and child custody cases. In the latter, a parent may allege abuse to tip the scales in their favor and gain guardianship of the child. If the accused parent does not contest these allegations then the court will deem them true. It becomes even more difficult if the accused has a history of domestic violence. Therefore, the accused may lose joint child custody or any kind of contact with the children.

Child custody battles take a toll on the parents as well as children involved in them. Whether you are a victim of domestic violence or a concerned parent fighting for the welfare of your children, it is paramount to consider legal aid from a qualified family law attorney. Similarly, if you are at the receiving end of a false accusation of violence which can affect your custody case negatively, you need strong legal assistance to prove your innocence.

Getting divorced in California can be complicated.  Download our free eBook, 18 Important Things to Know About California Divorce to educate yourself on the process.

Divorce When There Is Domestic Violence Involved

Posted by: Gerald A. Maggio, Esq.

restraining order attorney Orange County; The Maggio Law FirmDomestic abuse is one of the most common reasons for a divorce. It involves mistreatment of one partner by the other, generally bordering towards violence. Physically harming a person (sexual assault, hitting etc.) or mental and emotional harassment (causing fear with threats of abuse, isolating partner from other people, stalking etc.) are all forms of domestic abuse. Even though one usually hears of women getting exploited in a relationship in such a manner, it isn’t necessarily true in all cases. Men can be victims of domestic abuse as well, and bringing their cases to light is a lot more difficult, since a lot of people aren’t willing to believe their side of the story. Also, in a lot of these cases, children are forcefully involved in the violence, and they may grow up to become abusive.

Not the easiest thing to do

Wanting to leave an abusive relationship may seem like the most obvious choice, but people who have faced such situations, know that it isn’t always the easiest thing to do. People who have already been using violence may start hurting their partner even more, using threats and more violence to keep them from trying to run off. In some cases they may resort to emotional blackmailing when talks about a separation comes up.

Get in touch with someone who can help

No matter how tough it is though, in such situations it is best to get in touch with first a policeman and then a lawyer, immediately. A temporary restraining order can be issued against the abusive partner that prohibits him or her from coming into contact with their spouse. This way, the person can be assured safety and protection. Criminal charges can be filed against the abuser for any harassment, but the police need to be notified as soon as possible.  A detailed complaint should be prepared, stating clear facts of the marriage and the violence involved. If the abuse has been going on for a long time, the case will be more strongly presented in court. A thorough understanding of the domestic violence act can help people understand what can be expected from a court ruling. Though there are a lot of protective acts included, there are still a few limitations that one may need to keep in mind, in order to take full advantage of the law.

Getting divorced in California can be complicated.  Download our free eBook, 18 Important Things to Know About California Divorce to educate yourself on the process.

Seeking Temporary Restraining Orders During Divorce

Posted by: Gerald A. Maggio, Esq.

Orange County divorce lawyer; The Maggio Law FirmNot all divorces are an amicable parting of ways. In fact, in cases where domestic abuse either physical or emotional is involved, things can be far from pretty. Sometimes, if one spouse – usually the woman – feels that her life is endangered by continuing to live in the same home as her estranged spouse or even interact with him on any level, she may file a TRO or temporary restraining order. Here’s what you need to know about temporary restraining orders during divorce.

What does a temporary restraining order achieve?

For a victim of domestic abuse, the temporary restraining order can mean the difference between life and death. In spite of filing for a divorce,  the abusive spouse may not let up on the harassment of their soon to be ex. In fact, the very act of serving divorce papers to the abusive party may trigger another fit of rage. And there’s nothing more dangerous than a spurned lover, or in this case – spouse.

Physical abuse or emotional abuse and the TRO

A TRO applies not just to cases involving physical abuse, but also for emotional or mental abuse. Courts recognize that this can be just as damaging, and is usually sympathetic, especially when there are children involved. While it may be easier to prove instances of physical abuse by having a medical doctor or neighbor provide testimony or providing photographic evidence, you can have a similar testimony also provided by similar upstanding community members that know you and your spouse well and may have witnessed such instances of mental or emotional abuse.

How do you get a temporary restraining order?

To get a TRO, you will need to file a motion in court for approval by a judge. Once he or she signs off on the temporary restraining order, you are protected by law from being approached by your abusive partner. A TRO goes by various names including an order of protection, or an injunction.

It helps you by forcing your abusive ex to stay away from you once they are notified of the TRO. Usually, this will mean they are excluded from contacting you, your kids and other members of your immediate family, or otherwise as dictated by the terms of the TRO. It will also list out locations that are deemed taboo for the person against whom the TRO is issued. This may include your home, your place of work, the kids schools, your car, the day care facility your kids go to and so on. Violation of such an order can result in the abuser being put behind bars, should you approach the court or the cops to enforce the TRO.  Remember, if you are a victim of abuse in your marriage, you don’t necessarily have to have a separate domestic violence case in court to get a TRO.

Getting divorced in California can be complicated.  Download our free eBook, 18 Important Things to Know About California Divorce to educate yourself on the process.

Getting Temporary Family Law Orders In Orange County

Posted by: Gerald A. Maggio, Esq.

divorce lawyers in Orange County; The Maggio Law FirmDivorce is an act of legal separation that happens when couples are unable to live happily with each other. There are many reasons for an Orange County divorce to take place. The reasons can range from a lack of compatibility to unfaithfulness etc. Irrespective of the reasoning though, when couples decide to call it quits in their relationship, they seek help from the Orange County family law court. Divorce cases in family law courts can be emotionally charged with each of the couple wanting to get the best decision in their favor.

There are many tools in the California family law legal system that can be used by couples to make sure that the case is going on smoothly and that they are able to get exactly what they want. One such tool that has been used by divorcing parties is the temporary order. Temporary orders are orders where the spouses want the court to rule on matters of importance temporarily until they settle the entire case or go to trial.

How Do You Get Temporary Orders?

The request by parties to be granted temporary orders in their favor is made by filing a Request for Order with the Orange County Family Law court at the Lamoreaux Justice Center, in Orange, California.  A Request for Order (RFO) is simply put a request put forward by the spouses for the court to make certain orders in their case.

The Process of Bringing a Request for Order

For a Request for Order process to start, both parties need to file papers in the courts that highlight issues that the judge will need to pass a temporary order on and their sides of the case and the order that they believe should be ordered, and the court will schedule a hearing date for the RFO.

At the day that the actual RFO hearing is scheduled, the divorce lawyers from both sides will generally present testimony to the court and highlighting the law and make the legal arguments that they believe applies to their case for them to get a temporary order in their favor.

When it comes to the actual hearing, the burden of proof of proving his or her claim to the court is entirely on the person filing the RFO.

Types Of Temporary Orders

While the family law court can hear a number of issues, there are generally only a few matters that they will make temporary orders for. Here is a list of a few of them:

Domestic Violence And Its Effect On Child Custody

Posted by: Gerald A. Maggio, Esq.

Domestic violence Orange County attorneys; The Maggio Law FirmDomestic violence has been an unfortunate reality that is still common in Orange County and other places in the United States.  Domestic violence is one of the leading reasons for Orange County divorce and paternity cases.

Does domestic violence being proven mean that the custody will remain the same? Will it result in the restrained parent staying away from the other parent only? Most importantly, will the custody be altered? The answer to all these questions is most usually “no.” There are substantial implications of domestic violence on child custody.

In California courts, if it is found that the parent seeking custody of a child – either sole or joint – has committed domestic violence against either the child’s siblings, the child himself, or against the other parent, in the previous five years pursuant to Family Code section 3044, the courts presume that the parent guilty of this offense should not be entitled to joint or sole custody because it is presumed to not be in the child’s best interests.

This presumption has far-reaching effects and implications.  The court will believe their presumption to be true unless proven otherwise, by rebutting the legal presumption under Family Code 3044.  The burden of rebutting the legal presumption is on the parent who then has to prove why he or she is entitled to get sole or joint custody.

The court has to consider many factors after a finding of domestic violence to determine what the appropriate child custody orders should be. Some of the factors are as follows:

  1. Where does the child’s best interest lie?
  2. Did the parent complete a batterer’s program which meets the criteria of the California Penal Code?
  3. Did the parent complete a parenting class which the family court deemed necessary?
  4. Did the parent follow the restraining orders issued?
  5. Was there further domestic violence?

The issue of domestic violence and the implications of domestic violence on child custody are substantial and can affect child custody for years.  Therefore, if you have been the victim of domestic violence or you have been wrongfully accused of domestic violence, you must seek the services of a family law attorney familiar with these issues as soon as such incidents of domestic violence occur.  What you do in the very beginning of your case can have huge consequences as to how your case turns out.

How To Protect Your Kids When You Are A Victim Of Domestic Violence

Posted by: Gerald A. Maggio, Esq.

restraining order attorney Orange County; The Maggio Law FirmIf you are in an abusive relationship and have children, it is very important to distance yourself and them from your abusive partner. Distancing yourself through divorce may very well be your best option.  Even though the thought may have crossed your mind several times, it is likely time to take action. Get the courage to file for divorce, but before you do, take these steps to protect your kids and yourself:

1.     Report Abuse to the Police and Maintain Records

If your partner is violent, keep records of every incident involving him (or her) stored in a secret place. Abuse can be in the form of physical or emotional, so either record or take pictures to exhibit in court. Also, write down the time, date, and place with the description of the altercation between you and your partner. The records will come in handy when you are fighting for custody of your kids, especially if you did not previously report such incidents to the police.  Do not hesitate to call the police if you have been physically abused!

2.     Have a Safe Residence to Go To And Then File For a Restraining Order

After you have filed for divorce, you need a place where you can take your kids at least temporarily until you can take further legal action.  Consider filing a restraining order to protect you and your children, which can prevent your partner from going to your home and the children’s schools.  In a restraining order, you can request exclusive use, possession and control of the marital residence, with a kick-out order requiring your partner to vacate the marital residence.  Such orders are then enforceable by the police and the court.

3.     Seek Sole Custody of Your Children Under the Restraining Order

If your partner becomes too abusive towards you or your kids, don’t wait to file for custody; do it immediately under the request for a restraining order. The court can grant you with such restraining orders that can give you custody of your kids and orders your partner to stay away at the same time.

4.     Seek Control of Visitation Rights

If your partner has not abused the kids, he/she may be permitted to see them. However, if you are still concerned, you can ask the judge for supervised visits if they are appropriate under the circumstances of your case.  If you don’t want the kids to see their mom/dad at their residence, you can ask them to agree to meet them in public such as a restaurant, park, or even the police station.

5.     Get Legal Assistance

People struggling with emotional and physical abuse need to get out of the relationship fast.  Don’t wait to get legal help.  Seek legal assistance at the first signs of abuse. The safety of your child is what’s important here.  Consult a divorce firm to help you. If you don’t have enough money, you can always go to a shelter. The shelter will find you the legal help you need.

 
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