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Understanding and Preparing for a Move-Away Case

A Move Away case is one where a parent seeks to relocate to some other geographic area with a child they share with a parent who will remain local. Recently, there has been a dramatic increase in requests for consultations and representation in move-away cases. Some of the requests are due to the simple desire to leave California and reside in another state. Others have job opportunities in another state, or would like to be closer to family. We’ve also received requests from parents who would like to oppose the move-away request by the other parent. Whatever the case may be, understanding the intricacies and legalities of move-away cases is paramount to prevailing in such a case and often that is concurrently doing what is best for the child.

What is a move-away case?

A move-away is a particular type of custody case where two parents have a dispute or disagreement about what's going to happen with their kid(s) when either parent is going to relocate and there is an existing custodial arrangement. For example, they've got a schedule, maybe the parties have been separated for a couple years, or even a few months, but they have an existing de facto or status quo custodial relationship. The arrangement, or custodial relationship, could be 50/50, it could be 80/20. Or it may not be a percentage of time, but something like a set number of days during the week, and alternating weekends. When the kids are typically younger in age it is optimal, from a psychological developmental perspective, for a shared arrangement to grant more time to the parent who has more capability to be home and care for them (if such a circumstance exists).

Whatever the very legitimate and appropriate reason for the existing arrangements, whether by court order or not, the court will make a decision, or the parties have made a decision, that the existing arrangement is in the best interest of the child. A move-away case is a significant undertaking that happens with some frequency--And that frequency is increasing with today’s societal mobility, economic uncertainty, the ability to find more “virtual” employment opportunities, new relationships being formed from long distance, and ever changing migration patterns.

There is an abundance of law from the state of California, that relates to how the court should handle these cases, so that they're handled consistently the same. Yet the tactics and strategies exist that increase the probability of success, whether seeking to relocate with the child(ren), or opposing such a move.

How does a move-away case differ from a visitation case?

Custody time (also called “time-share”) is a plan for how the parents will share time with the children. This may also be referred to as “custody time” or “visitation” or the like. It is a shorthand way to refer to the amount of time a child is with each respective parent. Such court orders vary, depending on the best interest of the children, the situation of the parents, and other factors. If the case is more about minimal schedule changes, it's not a custody case. It's what we call a time-share type case. These cases are typically easier to resolve because we're not talking about a dramatic change in a custodial arrangement.

What many parents fail to understand…

The foundation for every custodial arrangement is what is in the best interest of the children, which includes relocation. So often, parents talk about “my time,” and they use the word “my kids”. They assert that they are entitled to “their rights”. Those parents are incorrect, and will face tremendous challenges if they are involved in litigation. Custody matters will always be about what's best for the children. The law starts from a presumption that frequent and continuous contact with both parents is what is best for the children. Many people confuse that to be a presumption that this naturally equates to a 50/50 arrangement. This is simply not true. There are so many factors involved in determining what is best for the child, outside of the parents’ opinions. The decision needs to be carefully made by the court in order to avoid having detrimental effect on the children, or impede the other parent's ongoing relationship and access to the child.

Some things courts will consider when determining move-away requests:

  • Which parent (if either) has an actual, or de facto, primary custodial relationship prior to the requested move
  • The good faith reason for the move (ex. job opportunity) -not designed to simply get away form the ex spouse (this is in turn mitigated if there is a history of Domestic Violence)
  • Distance of the move being considered/requested and the logistical issues raised include travel time, cost, etc.
  • The child’s age can be a large factor in the judge’s decision as it may be more difficult for younger children who haven’t had proper time to develop parent/child relationships-or older children who while more physiologically and psychologically developed and bonded have concurrently formed strong bonds with friends, schools, extended family, etc.
  • Any history of violence within the household(s)
  • The current and historical relationship between the parents
  • Ability to maintain proper medical treatment at both locations
  • The parents’ ability to Co-Parent or a lack of willingness to do so
  • The “best interest” of the child
  • The child’s preference and feelings about the move (depending upon the age)
  • An overall assessment of the “detriment” of the move. This issue was given overriding importance in the most recent California Supreme court case on this subject. In such cases, even where a permanent custody order is in place, the custodial parent’s right to relocate with a child remains subject to the changed circumstance rule. (In re Marriage of LaMusga (2004) 32 Cal.4th 1072) 1088-1089 (LaMusga).

It is important to note the individual elements referenced above are not necessarily equal, nor determinative. The court will look at the totality of the circumstances in assessing the best interest and detriment.

Here in Southern California, a classic example of a move-away could be any distance greater than 30 miles, say Orange County to Riverside County. While this doesn’t seem like a huge distance, commute time needs to be taken into consideration. The freeways are often heavy with traffic and while the distance isn’t tremendous, the time it takes to travel between the two areas could frequently be over two hours on any given weekday. The commute is going to impede a parent from being able to spend enough quality time with the children. More importantly, how is that drive going to affect that child? Is it going to affect the ability of a parent to pick up on Friday evening? This kind of move would also potentially mean a change in school districts and various other factors.

Here’s where it gets complicated…

Once the relocation is defined as a move-away, things can get really, really complicated. Sometimes the status quo may not contain a court order that grants parents the ability to relocate. Some attorneys who craft judgments (and some people without attorneys) don't put all of the necessary language outlined in their judgments into their court orders, relative to custody. As is such, it may be possible that a parent could move and then change visitation later on. It's also possible that doing so could have negative consequences. This is one reason why it is critical that you have a discussion with a competent family law attorney to talk about your options, in your case.

What if there isn’t a court order in place for custody?

The following is a hypothetical situation: Two parents are unmarried and they're already living apart. There is no court order in place for custody of their child. One parent decides that they want to relocate with their child. They decide that they're going to go ahead and move to New York without consulting an attorney.

Guess what is likely to happen in this instance.... The other parent (more likely than not) is going to run into court and ask for an emergency order to have that parent, either not relocate with the child or immediately return the child. The parent who has already moved to New York, has probably settled in, secured employment and has started their new life. However, the court can effectively change the custodial arrangement because the first parent acted improperly and failed to do things the right way.

It's imperative to get a plan in place and follow the plan. The commonly used colloquialism that sometimes “It’s better to ask for forgiveness rather than permission” may work--or may lead to disastrous consequences.

How does a parent looking to move away get permission if they need it?

First, they will need to create a paper trail and reach out to the other party stating intent to move. Ask them what their thoughts are on the matter. It may be received well, it may not. Regardless, communicating the intent, (or possible intent,) in writing is always the first step. If they don't ask and just rush to court, then the court is going to think badly of that person for not asking or trying to work it out with the other parent. This is true whether the parents have court orders or not. Someone who is still in an intact relationship and simply takes off in the middle of the night with the child to a far away place is equally subject to an adverse consequence. While a history of Domestic Violence may mitigate this, it may not eliminate it.

A key point to keep in mind is that the court has no authority to tell a parent that they cannot move. Every adult in the United States has an absolute, unrestricted right to travel. The government cannot say that a parent can't move; that they have to stay here and take care of the children. In fact, what the court does when they engage in a move-away, is start with the presumption that the move is happening. They make orders based upon that expectation. The order will either be that the children move with the parent who is relocating, or that they stay with the non-moving parent. Then arrangements for visitation will be made accordingly.

Move-away cases are not a quick and easy process

Whether or not there is a custody order in place, a plan is needed. After step one, it might be time to file the move-away request with the court. If it is a full on move-away case, it's probably going to take quite some time to get the hearing on it and get it done. That means going to court, certainly doing mediation at court, possibly doing a custodial evaluation, setting the matter for an evidentiary hearing with witnesses and cross examination, dealing with cancellations and postponements that are rabid in the court system, particularly with COVID, and finally, having the hearing and getting a court ruling. And even if the parties get a court ruling, thee law of California mandates that the parent is not allowed to move for 30 days after that ruling. This can really drag out and parents really need to plan for the long haul.

How long does it take to resolve a move-away case?

This depends on the courthouse. If the case is being processed within the public court system, then parents at the mercy of the court. There may be shutdowns because of COVID. It may also take awhile if a psychological evaluation, referred to as a “730 Evaluation,"  is required. There may be a trial set for three days on a move-away case, and then some other case bumps it, and it gets postponed for another two or three months. A short time period might be six to nine months, while a long time period might be a year and a half or more, because of how the legal system works. This is why it is important to get started with the process as soon the parent thinks that they will be moving. Parents should always make a plan and seek legal counsel before they accept a job out of state, buy plane tickets, or hire movers. Then again, bad advice can set you back both in time and in the ultimate likelihood of success.

No two move-away cases are alike...

Please remember, every move-away case, like every custody case, is different. There are unique aspects of each and every one. The one thing that always remains the same is that ultimately, this is about what's best for the children. If the parents have a good co parenting arrangement, that can serve as a basic foundation for resolving things amicably. However, parents should only do so after consulting with competent counsel.

If you are contemplating a move and want to do things the right way, please reach out to us as soon as possible. Our team has extensive experience with move-away cases and we can help you plan for this impactful life change in a way that keeps your children the priority and offers the best possible outcome for your family.

PLEASE NOTE:

The material and information contained on this website is for general information purposes only and is not intended to be legal advice. It does not create an attorney/client relationship in any way, shape or form. The Custody Queens, a division of Holstrom, Block and Parke, are attorneys at law, licensed to practice in the state of California and have based the information presented on US laws. All cases are different and nothing in this content is intended to suggest any particular result for your matter. Custody Queens has no control over and accepts no liability in respect of materials, products or services available on any website which is not under the control of Custody Queens. Certain links in this website may lead to websites which are not under the control of Custody Queens, or Holstrom, Block and Parke, APLC. When you activate these website links, you will leave the Custody Queens website. Therefore, we have no control over and accept no liability in respect of the materials, products or services available on the third party websites, which are not under control of Custody Queens. There is no substitute for seeking out advice from a competent Family Law professional and you should always consult with an attorney before you rely on this information.

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Tips For Creating A Holiday Parenting Plan or Order

It's the most wonderful time of the year...it’s also the busiest and can be the most stressful time for families with parents who are separated or divorced, and have to figure out how to make sure that the children spend time with both parents. Creating a holiday schedule doesn’t have to be a source of stress for parents and children. In fact, the purpose of having a schedule or court order in place ahead of time is to alleviate frustration, confusion and chaos. These things enable both parents to plan for their major holidays respectively, while ensuring that the children have adequate time with each parent and the sense of security that comes with having a well communicated, mutually agreed upon plan. Children have so many expectations and emotions tied to holidays, due to the traditions and memories created. No child wants to spend the holidays, after a separation or divorce, listening to parents argue, being put in the middle of parental squabbles, or being made to feel guilty for spending time with one parent over the other parent. Parents should work together to mitigate anxiety and negative emotions for their children, while preparing them for new traditions and schedule changes in a way that reassures them that the holidays will still be memorable and a positive experience. The Custody Queens have some valuable tips for parents who want to navigate the holiday season as peacefully as possible by creating a plan that works for everyone, especially the children.

  1. Plan ahead. Do not wait until the last minute to start a conversation with the other parent. This needs to be well thought out and planned for in advance of the holiday so that plans can be communicated with the children.
  2. Be specific in crafting court Orders, but remain open to flexibility in practice. Having a specific court Order can help manage expectations and mitigate stress. On the other hand, remember life happens and being flexible with the other parent can be more practical and help foster a genuine co-parenting relationship.
  3. Accept that holidays will generally be split. This is really a conversation about how to arrange the time. Some suggestions on how to do this are:
    1. Alternating holidays (i.e. In odd years one parent has Christmas Eve and the other parent has Christmas day. In even years, the parents switch days.)
    2. Split the day between both parents (i.e. The first half of Thanksgiving Day is spent with one parent, the second half of Thanksgiving Day is spent with the other)
    3. Schedule the holiday twice. As parents, we can observe holidays on alternative days. For example, often separated parents observe their child’s birthday on a different day so that both parents get to celebrate. What child doesn’t want two birthdays?!
  4. Address travel. Will arrangements be needed for transportation and what time will need to be allotted for this? Who will be making these arrangements and paying travel expenses?
  5. Keep the children out of it. Even if you disagree, do not bring your children into the dispute—children want to celebrate holidays, not inherit your stress.
  6. Itemize which holidays need to be addressed in the Order. Some families celebrate only major holidays; others celebrate additional days/school break days/etc…Consider the type of schedule you have. If you exercise joint physical custody, do you really need to recognize all non-major holidays? The answer is sometimes yes. However, consider that with a joint physical arrangement, exercising non-major holidays does not provide you with additional time—it provides you with adjusted time that may cause unnecessary disruptions to an otherwise consistent schedule.
  7. Be efficient. Consider negotiating/agreeing on the entire year’s holiday/special day schedule at the same time. There is inevitably going to be more passion related to the holiday which is right in front of you (i.e. Christmas Eve or Christmas Day). Rather than having 8-9 different negotiations every time a holiday is approaching, just sit down, and agree on whatever split works best for your family for the entire year. If you don’t have your preferred schedule for this year, ask to reverse the schedule on alternating years so that it is consistent and your children get the opportunity to experience each holiday with both sides of the family.
  8. Special requests. If the other side has a request, do not refuse it just for the sake of refusal. Consider asking for an accommodation on your own special requests when negotiating.
  9. Identify your family’s unique needs. If you have them, include them in the plan or Order.

Now is the time to get your plan or orders in place to ensure that everyone has a peaceful holiday. For more tips on thriving during the holiday season, please read our blog post on Tips for Co-parenting Around The Holidays. With good communication, a willingness to compromise and proper planning, your holiday can be a lot less stressful and a lot more merry. Be sure to follow us on social media for daily posts and more.

PLEASE NOTE:

The material and information contained on this website is for general information purposes only and is not intended to be legal advice. It does not create an attorney/client relationship in any way, shape or form. The Custody Queens, a division of Holstrom, Block and Parke, are attorneys at law, licensed to practice in the state of California and have based the information presented on US laws. All cases are different and nothing in this content is intended to suggest any particular result for your matter. Custody Queens has no control over and accepts no liability in respect of materials, products or services available on any website which is not under the control of Custody Queens. Certain links in this website may lead to websites which are not under the control of Custody Queens, or Holstrom, Block and Parke, APLC. When you activate these website links, you will leave the Custody Queens website. Therefore, we have no control over and accept no liability in respect of the materials, products or services available on the third party websites, which are not under control of Custody Queens. There is no substitute for seeking out advice from a competent Family Law professional and you should always consult with an attorney before you rely on this information.

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In the News: Read Kristen Holstrom’s Profile in VoyageLA

Custody Queens founder and managing attorney Kristen Holstrom was profiled by VoyageLA, the flagship publication of Voyage Group Magazines, a lifestyle publication with an editorial focus on independent entrepreneurs, artists, and local institutions that make our cities exciting to live in.

VoyageLA: Kristen, can you briefly walk us through your story – how you started and how you got to where you are today.

KH: I knew that I wanted to be an attorney since I was about 12 years old. I started out pretending to be my father’s secretary... Read the full profile in Voyage LA

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Proud to Be Here: My Journey Into Family Law

My journey to becoming an attorney was never easy, nor was it what most people would consider typical or ideal. Like so many others who decided to go to law school, I wanted to choose a career where I could genuinely make a difference in people’s lives.

Growing up in a Filipino family, I was (of course) encouraged to become a nurse. I could help others, have a stable job, and still make a difference. However, I always knew that nursing wasn't a career that I wanted to pursue. I was consistently hospitalized when I was younger due to my chronic asthma and have a fear of blood and needles. Hospitals are the last place I want to ever want to step foot in.

I was raised by a single mother and saw everyday how hard she constantly worked in order to send me to private schools in Los Angeles and essentially give me everything she wasn’t able to have in the Philippines. During my childhood, I wondered where my father was, why he never cared to be in our lives, or why, at the very least, he couldn’t assist us financially. It didn’t take long for me to realize that I could not rely on my father in any aspect to be there for my mom and I. That was a fact I easily accepted, because at the end of every day, my mom was I all I needed to be happy and succeed. When you have a generally small family, they are the most important aspect of your life and you would do anything and everything for them. It wasn’t difficult for me to decide that I wanted a career that involved supporting families in every possible way.

Family Law? Are You Sure About That?

When I decided I wanted to pursue family law, I was immediately met with questions and comments such as, “Are you sure about that?” “Family law is so stressful.” However, there is something about family law that sets it apart from different practice areas. You meet clients at the most vulnerable time in their lives and their only recourse is to seek help from the courts. I have worked in various civil litigation firms and assisted on cases with million dollar settlements. Yet no matter how much money we were able to obtain for a client, at the end of the day, it always came down to a single paycheck. Family law is real, personal, and at times messy, but you have the opportunity to help clients who truly need legal advice and change their lives for the better.

As much as I studied during Bar exam prep and so wanted to be “One and Done,” I struggled with passing the Bar. There were times where I questioned whether I made the right career choice. However, I was raised to never give up on my goals, chose to be resilient during times of trial and adversity and constantly reminded myself of why I decided to go to law school in the first place and certain events during my family law internship.

For the first two years of law school, I interned for the San Diego Volunteer Law Project dealing specifically with child custody and domestic violence cases. I spent at least three days a week at the Family Law Courthouse and assisted those who could not afford an attorney and other legal services. I witnessed first-hand how so many people were overwhelmed by the legal system and only wanted to find stability and peace in their lives. Each person I met had a different story and not one day during my internship was the same. I was determined to do anything I possibly could to help those who were experiencing the most trying and difficult times in their lives, whether it was simply assisting in completing confusing forms or drafting declarations that fully articulated how they felt, the unfortunate events that families and children had to endure, and what they wanted from the court.

Changing Lives for the Better

I will never forget one particular client who made a significant impact on my decision to practice family law. One client was faced with father’s move-away request to Mexico, and wanted to ensure that her child would stay in California, and safe from an abusive father. I spent an entire morning just speaking with her and getting all of the facts of her case to draft her declaration. The court ultimately denied the move-away request and the child would remain in California with her mother. I continued to see our client in the courthouse throughout the year due to modifications of custody and support, and every time I saw her the following year, she remembered me and thanked me for helping her. Every time, without fail, she was genuinely grateful for what we had done for her and her family; and for that, I could not have imagined a better position to be in.

Working at Holstrom, Block and Parke as a Custody Queens attorney gave me the opportunity to work with and learn from the best, most knowledgeable, and empathetic family law attorneys. The attorneys always plan multiple steps ahead of a case, consider every possible outcome, and are blatantly honest with clients during a time when they need it the most. From my first interview with Kristen Hostrom to simply being in the office, it is abundantly clear how passionate each attorney is about their clients and how they genuinely want the best outcome for their families.

I recently observed my fellow attorney Samantha McBride in court for a contentious custody case that involved a father’s false allegations of child alienation against her out-of-state client. Sam zealously advocated for her client, thoroughly explained the parties’ prior history of co-parenting without a court order, and utilized her extensive knowledge of the law and Family Code to show that it was in the child’s best interest to remain with her client out of state. At the end of a multi-day evidentiary hearing, the court ruled in Sam’s client’s favor, awarding her primary physical custody of the child. We walked out of the courtroom and I was fortunate to witness tears of joy and the abundance of gratitude Sam’s client had for her. At that moment, I immediately thought back to my experience as a legal intern in San Diego and felt privileged to have seen Sam attain the best outcome for her client.

Needless to say, working at HBP, especially with both Kristen and Samantha, solidified my decision to practice family law. I’m extremely grateful and fortunate to be working with a group of people who sincerely care about all of their clients and tirelessly work day in and day out to get the best possible outcome for their families.

About the Author

Custody Queens attorney Melannie Suba was admitted to practice law in California on July 14, 2020. She received a Juris Doctorate from Thomas Jefferson Law School in San Diego, and takes pride in delivering accessible legal services to clients, and has experience working on cases involving child custody, divorce, and domestic violence restraining orders.

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What Will Happen to Naya Rivera’s Son and Her Estate?

Actress Naya Rivera, best known for her work on the TV series Glee, has been presumed dead by local authorities after an apparent boating accident at Lake Piru in Ventura County. Like many celebrity deaths, this tragedy is a good reminder that tomorrow is never guaranteed. 

Rivera, 33, and her ex-husband, actor Ryan Dorsey, share custody of their 4-year-old boy, who was found alone on a pontoon boat following his mother’s disappearance. Because of the joint custody situation, there is likely no issue around the physical guardianship and Dorsey will gain full custody. It would be a different story if Rivera had sole custody, however.

Moving forward, should Rivera's siblings and parents wish to be in her son's life and Dorsey raises objection or denies them visitation, Rivera's family can petition the court for visitation, subject to Family Code § 3102. 

What happens to Rivera's estate is less clear without any knowledge of her estate plan. If proper planning was not done, there might be a need for guardianship of the estate, assuming she left everything to her children, or worse, died intestate (without a will).

In 2018, Rivera sold her home in Los Feliz for $3.55 million and is worth an estimated $5 million according to Celebrity Net Worth. She also owns a Los Angeles-based children’s clothing line called Jojo and Izzy.

It is not yet known whether Rivera had a Will or Trust, or any other estate planning documents in place. If someone dies intestate and leaves an inheritance to minor child, that child cannot legally manage the property on their own. Instead, someone else must step in and manage those assets on their behalf until the child is old enough.

Ideally, Rivera would have set up a Living Trust by which her estate avoids a long, costly probate process. In this scenario, since her son is a minor, she would have named a trustee or a fiduciary to manage her assets until her son is old enough to receive them in a manner outlined in her estate plan.

Tragically, many young successful people fail to contemplate their mortality and plan for their loved ones. We certainly hope that she had the foresight to create a plan to care for her young son in the event of her passing. 

Our estate planning attorneys at Sandoval Legacy Group can help you learn more about how a Will and Trust can help your family avoid legal quagmires resulting from unexpected death. 

By Custody Queens attorneys Kristen Holstrom

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The Other Pandemic: Domestic Violence and Social Isolation

Law enforcement officials and victims’ advocacy groups are describing domestic violence as “the other pandemic” during the coronavirus outbreak. The new normal we are experiencing—home confinement, loss of employment, financial stress, and other factors, have exacerbated tensions and anxiety levels for all of us.

Research and historical patterns show that situations like these lead to domestic violence, especially among couples with patterns of abuse in the past.

The effects are quantifiable. In Orange County, domestic violence calls have increased 25% when compared with the same period in March and April last year, Sheriff Don Barnes said at a news conference in April. Family dispute and child custody dispute calls increased to 24% and 30%, respectively.

 

 

Across the region, advocacy groups are mounting efforts to protect victims of abuse due to the increased risk posed by the pandemic. Organizations such as Laura’s House in Orange County and Riverside County Coalition for Alternatives to Domestic Violence have remained open during the crisis, conducting counseling and hotline services via telephone and Zoom video conferencing.

 

Pandemic further isolates those suffering from abuse

Social distancing measures pose additional problems for those suffering from domestic violence, including and especially children. The usual points of contact that detect when a child is being abused—doctors, teachers, childcare professionals, family and friends, are cut off from the victims.

Home isolation, although necessary to stop the spread of the pandemic, gives more power to the abuser. It becomes situation of control, and it is difficult for victims to get help or escape. Under these conditions, victims of domestic violence are often too scared to call the police. For law enforcement officials, if calls stop coming in, it is a recognized sign of trouble.

Agencies have started to act in response. In Los Angeles County, the district attorney has launched the “Behind Closed Doors” program to address a decreased number of calls. The campaign directs delivery personnel, home repair workers, neighbors, family and friends to immediately text or call 911 if they believe someone needs help.

Every situation involves a different set of circumstances. Often, leaving an abusive relationship presents many difficult challenges. Fear is pervasive. The victim may be afraid of what might happen if she or he leaves. She or he may have nowhere else to go. There is a fear of retaliation if she or he is found reaching out to networks of support. What if they don’t believe her or him? She or he might doubt that anyone can truly offer protection.

 

 

There are endless factors that keep someone in a abusive relationship. Cultural expectations, financial depression, fear for their children’s safety—the pressure seems insurmountable to the point that someone who is experiencing an emotionally or psychologically abusive relationship might downplay it, rationalize it as normal, or simply be too afraid to leave.

Historically, domestic violence survivors rely on teachers, friends, medical professionals and others in the community to report crimes and offer support to finally break the cycle. Right now, for many individuals experiencing abuse in a co-habitation environment, those critical means of support are cut off. This is why the pandemic and social distancing poses a huge challenge.

 

What Constitutes Domestic Violence?

Family law attorneys help individuals escape from domestic violence by utilizing protections written into the law for victims of abuse. When attorneys first consult with clients, there is often a misconception that domestic violence only means physical abuse. Many do not realize that abuse and domestic violence takes many forms.  For example, if your abuser threatens to disseminate sensitive information about you, that potentially falls under domestic violence as well.

Other examples of behavior that may be considered domestic violence include:

  • Accesses your e-mail, computer or cell phone without your consent.
  • Stalks, harasses, or breaks into your space.
  • Isolates you from friends and family as a means of control.
  • Restricts movements, taking keys, preventing from leaving the house.
  • Tracks your location without consent, following you.
  • Punches holes in the wall; throws or breaks things in anger, kicks down doors.
  • Threatens you or the children with physical or emotional harm.
  • Sends harassing/threatening text messages or emails, disseminating private information.
  • Leaves threatening voice mail messages or texts.

This is not an all-encompassing list. The courts’ determination of what constitutes domestic violence is ever changing, and in some cases, expanding.  Behavior you might not consider domestic violence could very well be within the courts’ or legislatures’ definition.

 

What Does a Domestic Violence Restraining Order (DVRO) Do for You?

Depending on the nature of the case, getting a domestic violence restraining order (DVRO) can help protect someone who has been abused or threatened with abuse. A DVRO is a court order that:

  • Restrains an abuser from contacting you, your children, and your property either personally or through a third party.
  • Restrains an abuser from harassing, stalking or otherwise disturbing your peace.
  • Orders an abuser to be removed from a home that you share.
  • Gives victims temporary child custody pending formal hearing and permanent custody after the formal hearing.
  • After a formal hearing, requires the abuser to pay child support and/or spousal support
  • Prohibits the abuser from possessing a firearm or ammunition.
  • After a formal hearing, orders that the abuser to pay fees related to acts of violence, including medical and attorney fees.

How to Pursue a DVRO

Obtaining a DVRO is a multi-step process. It requires that you complete and file several forms and declarations at a California courthouse in the county where you reside. Initially, a family court judicial officer reviews the filing, and decides whether to issue a temporary DVRO pending a formal hearing on the matter.

The restraining order forms give you a chance to present why there is fear of harm or harassment. You want to be as detailed and specific as you can about instances of abuse, using dates and times if possible. Include photos of injuries, police reports, text messages—anything you can show demonstrating threats to the safety or peace of you and/or your children.

Should the judicial officer decide you are in immediate need of protection, a temporary restraining order is generally issued within one or two business days of filing. The restraining order must then be served on the person being restrained. The person serving the order must be someone other than the victim who is 18 years or older. A marshal or sheriff’s deputy will do it for free, but you must ask them.

The temporary orders create conditions that are enforceable until a DVRO hearing takes place at a later date set by the court. Until that time, the abuser must follow the rules set forth by the temporary order.

Whether or not you get a temporary order, the court will schedule a hearing for a longer lasting DVRO, called a permanent DVRO, which can last up to 5 years. At the hearing, you and your abuser will have a chance to present evidence to a family court judicial officer. You will want witnesses to the domestic violence or harassment there to testify and to present any documentary evidence, such as photographs, e-mails, text messages and the like. You will have a chance to tell the judicial officer what happened and why you are fearful of continued abuse.

 

When Is a DVRO the Route to Pursue?

When the safety for our clients and our clients’ children is at issue, we pursue DVROs. Safety is absolutely paramount, as is the right to live in peace. A DVRO is a powerful document to protect you and keep you safe.

We tell our clients it is important to have several copies of the restraining order made, file one with local law enforcement, and keep the remainder in a number of places:

  • One copy with you at all times
  • One copy in your vehicle
  • One copy in your home
  • One copy on file at a child’s school or care facility

Should the abuser violate the DVRO, contact local law enforcement and your attorney immediately.

How Can a Family Law Attorney Help Get a DVRO?

A family law attorney can help you identify persuasive evidence, prepare it for the court, and present in a way that is consistent with the law. Attorneys know what family law judicial officers look for with respect to making decisions about issuing a DVRO. They know how to cross examine your abuser in a manner that reveals their violation of your right to live in peace.

 

About the Author

Samantha K. McBride is a Custody Queens attorney focused on helping individuals experiencing domestic violence protect themselves and their children. Her areas of practice include domestic violence restraining orders (DVRO), child custody, divorce, and related family law matters.

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Coronavirus: Co-Parenting During a Pandemic

We are watching coronavirus very closely just like everyone. We are following CDC guidelines, limiting social exposure when necessary, and monitoring closures and response to the outbreak. It’s a serious situation and we are adapting to it. As the situation progresses, now is a great time to take stock about what you can do in terms of proactive co-parenting. Here are some tips to consider. Economic impacts are likely. Regarding support payment modifications, work with your ex as much as possible through this uncertainty. If you’re not on speaking terms, know that adjustments will need to go through the courts and will take some time, but you do have options to modify support back to the time your income was affected. Plan for illness and closures using your co-parenting agreement. Parenting plans outline child custody and parents’ course of action when a child gets sick or cannot attend school. Think about what you will need to do in the event of a school closure. Now is the right time to discuss with the other parent and be proactive. Keep calm and wash your hands. Children react to their parents’ emotional state. It’s important that you stay calm, cool and collected because Children sense anxiety and fear, and to some extent, the anger of their parents. Follow all the health recommendations and guidelines that the state has provided. It’s also important for your children not to feel any of the effects of the pandemic that may be going on around us. This is an excellent time to hone in on your co-parenting skills and for parents to work together as one to get through this very unusual time that we are all in. If you would prefer a phone consultation instead of coming into the office, we are happy to accommodate you. We can also instruct you about how to set up a teleconference with our team. The courts are open today, but that could change moving forward. If you have a court hearing in the near future, it is possible that COVID-19 will disrupt how courts conduct business. Currently, courts in Riverside and San Bernardino County are encouraging people to use teleconferencing options they have available. In the event of a court closure, what will likely occur is that any missed hearings will be rescheduled when regular hours resume. With that said, if you have any questions regarding your case, a potential case, a restraining order, or an emergency hearing, please contact our office and get the help and assistance that you need. *Elbow Bump* Kristen Holstrom, Custody Queens Managing Attorney

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How to Keep It Together When Shit Happens

Months before I’m set to give birth to our third baby, my family decides to adopt a puppy. She’s a sheep-a-doodle, cuter than all get-out—although very much still a puppy.

One morning, I’m hustling out the door on my way to the courthouse. I have lunches packed for the kids; my daughter’s gymnastics bag is over my shoulder and I’m carrying her jacket for softball practice later that evening.

I smell it before I see it—a pile of puppy poop on my carpet. I’m the only one home.

What could I possibly do? I faced the situation and started scrubbing, on all fours, wearing my black suit.

Shit happens. We cannot control everything. One time, after rushing out the door to drop off my newborn at daycare after a quick diaper change, I conducted an entire client meeting without noticing a poop smudge on my forearm. That’s just mom life—nothing glamorous or sexy about it.

Moments like these are opportune times for a reality check. Here is a mantra that I use to remind myself when I need to keep it together under duress.

Repeat after me:

You are not the shit that happens to you. You are how you respond to shitty situations.

If you’re moving through a custody issue or a divorce, you are actively dealing with shit happening. It might feel like one pile after another, and it suffocates you if you let it. I am telling you right now that you have to face everything head on, otherwise it eats you alive from the inside.

Think about when you get sick. You go to a doctor and they run some tests. In the meantime, you Google your symptoms. One click leads to another, and you’re self-diagnosing yourself with something awful. The results come back and it’s treatable with antibiotics—great news, but you spent the last five days in a state of self-inflicted anxiety and unnecessary stress.

The same thing happens in a custody case. You file your motion, you hire an attorney, your attorney tells you all the pros and cons of your position, and how they align with your goals. But then as you wait for trial or a settlement, you spend months in your own head thinking about what could happen and you make yourself literally crazy.

Instead of terrifying yourself, face reality and consider what tomorrow brings coming from a child centered approach. Put yourself in a state of mind that says, I'm going to kick tomorrow's ass no matter what comes my way.

Understand that it’s inevitable that someone or something will try to knock you off your game. It’s your response that will determine your direction when it does.

In almost all of my cases, I tell my clients something that my favorite therapist instilled into my personal and professional life.

Again, repeat after me:

You can only take care of your side of the street.

When you allow someone to make you feel a certain way with what they say or what they do; if you retreat back in your own head rather than brush it off, you make the situation ten times worse than what it is.

When you focus only on your side of the street, you realize that he-said/she-said garbage has no bearing on how you respond to the issue.

It’s incredibly empowering. I am a checklist queen that calendars nearly every waking moment of my life. But with two kids (almost three!), 150 clients, and a growing law firm to run, my day changes regardless of what I have planned.

Inevitably, shit happens. I face it and I deal with it. I set priorities, and rearrange my checklist accordingly, making sure to attack each individual issue on its own, and face it head on.

The days when I do not follow my own advice are the days I am crying in the corner of my office. Which happens, but it’s OK because I always come back to my truth. It may take me a minute or a day (or five).

The important part is that I re-center myself and my priorities with a sense of kindness, reminding myself that I cannot control everything, and shit happens regardless of how prepared or successful I am. How I deal with unplanned moments is the key to my own success and happiness.

If you are heading towards a custody battle or divorce, working with a therapist is just as important as working with a family law attorney. I would be happy to point you in the right direction. Making sure you’re taking care of you and your loved ones on an emotional level while we handle your case is part of what we do. I do my best to take care of my clients in every aspect because we are in this together—and shit happens.

Hugs,
Kristen Holstrom, Custody Queens Managing Attorney

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Millennials: We Want Prenup

Millennials are getting married less frequently, but those who do are getting premarital agreements. According to a survey of the American Academy of Matrimonial Lawyers (AAML), 51% of the attorneys that participated cited an increase in the number of millennials requesting prenuptial agreements. The attorneys surveyed most commonly included “protection of separate property” (78%), “alimony/spousal maintenance” (74%), and “division of property” (68%) in the agreements that they prepared for Millennial clients. The data says Millennials are getting prenups for the same reasons that an older individual might pursue one. That is to protect their premarital assets, business stakes, and lay out their own agreements about alimony and spousal support in the event of a divorce. We can identify several generational shifts that might explain why this is happening.

  • Millennials are getting married later in life. That means they are more advanced in their careers. They are bringing more wealth and assets into a marriage. They’re also bringing a record amount of student loan debts.
  • Many millennials who seek a prenup own a small business. They are concerned with brand building, and want to protect an asset they hold close to their identity.
  • Millennials experienced divorce during childhood. They have already witnessed the financial impacts and pain of a divorce through their parents.
  • Consider also women in the workforce: In 1980, only 13% of married or cohabitating women contributed at least half of total household earnings. Today it is 31%. Both men and women are earning money and putting away money in their own retirement plans and pensions.

Community property laws are scary

California is a community property state. Generally, property acquired during marriage is community property, subject to an equal division. Property acquired prior to marriage, or after the date of separation is presumptively separate property. But the laws are complex; assets and interests are not always easily identified, and the law is not always linear. For example, say you buy a house before marriage and start paying down the mortgage, claiming it is your separate property. You get married, and you never put your spouse on the title or the loan. Thereafter, during marriage, you start to pay down the principal owed on the loan with community funds (i.e. your income during marriage.) If you start paying the principal owed with community money, that house now has a community interest—even if it's a separate property. In essence, community property and spousal support laws get scary for anyone with assets and wealth, regardless of their age.

Make an informed decision about marriage

Simply put, Millennials are more careful about how they get married. This is not a bad thing. Divorce rates are down compared to other generations, likely a result of more mature and informed choices. If you’re committed to making a measured decision about what you’re getting into, consulting legal counsel is never a bad idea. It’s important that both individuals work with separate attorneys to create a prenuptial agreement that in each spouse’s best interest. Expect your lawyer to guide you through the procedural requirements of what is and what is not enforceable. Have an honest conversation with your fiancée and be prepared to offer your attorney direction as you move through the process. Don’t expect a talk about a prenuptial agreement to spark romance. Do think of it as coming to an agreement with somebody that you presumably love more than anyone you ever will. You're in a honeymoon phase. It's more likely that you will get a fair deal at this point than after someone initiates a divorce. - Samantha McBride is a Custody Queens attorney and a Millennial. She practices in child custody, domestic violence restraining orders, divorce, and related family law matters.

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10 Tips for Co-Parenting Around the Holidays

Holidays can be tough for parents who are separated. The emotions of the season become compounded by the emotions of the breakup; stress tends to snowball into an avalanche of conflict. If that happens, it ruins the magic of the season for everyone—especially the children. Your best hope at avoiding negativity when co-parenting around the holidays is to plan, plan, plan. While there is no such thing as a one size fits all parenting plan, reasonable minds prevail when parents agree to make the holidays about their children. If you’re newly separated, or thinking about separating, here are 10 tips that will keep you and your kids happier around the holidays. Make the holiday schedule a crucial part of your parenting plan. Creating a parenting plan is the most important part of the separation process for parents, and the holiday schedule is a high-priority item in the parenting plan. In creating one, both parents should write down all the holidays and birthdays the family celebrates. Use a school calendar and a church calendar so you don’t forget anything. Expect to share the holidays evenly. The courts recognize that holidays are meant to be shared between moms and dads. You and the other parent will come to an agreement about how you to divide up holiday time. Just like any part of a parenting plan, the best agreement is one that fits the unique schedules and circumstances of the parents. Be real about limitations. Parents that are separating often get too concerned with “winning” the time share. As parents work through mediation and CCRC (Child Custody Recommending Counseling) it’s important to have a clear picture of what each parent’s schedule allows with respect to caring for the children. We challenge our clients to adopt a child-first mindset, and prepare to defend against any power plays if other side does not take the same approach. Detailed orders reduce conflict. It’s the holidays and everyone is crunched for time and dealing with stress. Now is not the time to “wing it” with the other parent. That’s asking for a fight. Put more detail than you think you need into the holiday schedule so you have something to fall back on and keep parents on the same page.   Alternate holidays every year. One of the most common timeshare arrangements involves parents trading holidays every year. If mom had the kids Christmas Eve this year, and dad gets Christmas Day, the following year, mom and dad switch it up. Do the same for all of the holidays you’ve acknowledged in the parenting plan. Avoid splitting a holiday if you can. As a parent, I would rather celebrate New Year’s Eve or Thanksgiving every other year with my children. Cutting a holiday in half is not enjoyable for your kids. Nobody wants to leave early from one family party to arrive late at another. Behavior changes, traffic, different family dynamics—it’s just not pleasant for anyone involved. The date is just a title. Celebrate holidays with your children whenever you can, whatever your timeshare arrangement is this year. If that means celebrating a birthday a few days early, or opening presents on December 23, who cares? Christmas Day is only a title. Enjoy family time whenever you have it. Be flexible, be cool.  Is it annoying when the other parent is late dropping off your children? Absolutely. You didn’t make a detailed plan for nothing. However, there is never a reason to send a barrage of angry texts, or start screaming upon their arrival. That will only cause your child anxiety and make you look bad in court. Traffic is bad around the holidays. Delays happen. Expect it and deal with it using polite communication: When can I expect you to be on your way? End of story. Channel frustration into documentation. If one parent is consistently disrespectful of the agreed upon drop-off times, log it on a calendar kept in your home. Showing patterns of behavior is useful if you want to modify custody orders that are better in line with what the other parent can or cannot handle. Keep a journal to track digressions, and communicate with your ex with a co-parenting app. Save texts and phone calls for urgent situations. Be real about celebrating with the other parent. It’s great if your children can celebrate holidays with both parents present. But understand that is a huge step, and one that the vast majority of people are not prepared to take right away. Be real with yourself and your emotions, and know that it’s OK if you’re not ready. Kids know when parents aren't getting along, and they know when it's forced. If that's your scenario, it’s better to create two sets of new normal. By Custody Queens attorneys Kristen Holstrom and Samantha McBride

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