Articles Posted in Court System

Under Family law section 7122 The emancipation of a minor can be issued under the State of California enabling a person over the age of 14 years old in the State to the Freedom contract and live a life as an adult who had just turned 18.  The emancipation basically speeds up the legal age of emancipation under the law to the age of 14. Emancipation of a minor is basically a legal process that requires that a minor be financially independent of their parents.  This process is not an easy one as to prove financial independence a person must have a source of income separate and apart from their parents.  It cannot be an illegal means of earning financial support as well.  Often this seems to be the difficult means by which minors are kept from emancipating from their parents. In addition, the minor must have either consent from the parents to gain independence from them or living a life that in the best interests of the Judge would make the Court decide in their favor.

The Courts also look to see if the minor was living separate and apart from their parents at the time of the petition to emancipate. Living separate and apart does not mean living with a boyfriend or some friends house.  Living separate and apart means that they are financially independent and on their own without their parents financial support.  They also cannot be supported by some illicit means by someone else.  They must be independent as in on their own two feet.

Once they gain their independence with the Court they can apply to the Department of Motor Vehicles for their own licence that will declare them independent.  In addition, the emancipated minor is held out as an adult for many purposes such as medical, dental and psychiatric care without the parents becoming liable.  Furthermore, they can buy, sell, lease, encumber, exchange, or transfer an interest in real or personal property including buying and selling shares of stock. In addition, the minor loses all legal right to support by the parents.  And visa versa the parents cannot earn anything from the minor nor do they have any control of the minor.

Often parties find themselves involved in a long term relationships and acquire a lot of real and personal property together.  They cannot file divorce petition with the court and go to Family Court however, they may seek an alternative approach and head to Civil Court to resolve all there property issues.  If the parties head to Civil Court the law that would apply is that of Contracts.  There can be several different methods to prove a case under Marvin v Marvin case law.  There are express contracts and there are implied contracts.

The Family Law Code does not apply therefore the parties must head to court and find other means to go to Court and resolve all property disputes.  One such way is through a legal term call “quantum meruit.” This can be considered an implied contract.  To prove that quantum meruit exists the parties must prove that Action there were reasonable services rendered during the relationship.  Often it is argued there must be sexual relationship involved to recover under quantum meruit but the Courts have stated that it is not necessary as long as the person gave certain services to the other party during the relationship.  Once it is proven that the party gave services to the other party the Court must then look at what services and support the other party returned in favor such as the reasonable value of support received. Courts have gone further to explain that the parties need not have lived together however, in order to prove a case in Court based on a Implied or Express contract there would be no consideration found if the parties did not live together.

The act of Consideration is the key element to proving a Marvin case in the state of California.  Because often there is no consideration and the party seeking monetary compensation for living with the other party will fail in court. A big hang up the party will find in Court is that just because they had meretricious relationship it does not mean that they can get compensation for that alone.  That means that sexual relationships alone cannot be the single factor for going to Court to get a financial reward in a Marvin case.  There has to be some sort of services rendered in the relationship to warrant a financial payment as a result.

Just recently I came upon a case where in I represented a client in a child custody dispute in Family Law Court.  Once we got to the Court for our Custody Hearing the Judge informed me and my client that since he was an American Indian all Custody disputes had to be heard through the Indian Nation that he was from. Herein lies the division between the American Indian jurisdiction within the Family Court judicial system.  The Indian Child Welfare Act determines the jurisdiction of which court system will hear cases regarding custody disputes in the judicial system. Anytime custody of an American Indian Child is at issue in the California Judicial System the Indian Child Welfare Act comes into play.

The reasoning behind the Federal Governments deference to the American Indian Tribal system is very clear because “an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies and that an alarmingly high percentage of such children are placed in non-Indian foster and adoptive homes and institutions; and …… the States, exercising their recognized jurisdiction over Indian child custody proceedings through administrative and judicial bodies, have often failed to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families.”
25 U.S.C.A. § 1901 was enacted by the Federal government in  to preserve the family unit with the American Indian. Over the years the American Indian family has slowly eroded as a result of modern times and the loss of children to other outside the Indian Tribe relationships.  Therefore, the United States Government has made it their purpose to preserve the sanctity of the American Indian Family by enacting legislation such as The Indian Child Welfare Act to give the Indian Tribes the right to hear also custody disputes involving members of their tribe.  That does not mean that they can refuse to hear the child custody case if they wish.

Jesse James’ child custody battle, which originated in Orange County, has been moved to Texas, where the star lives. At the time of the original filing, jurisdiction was established in Orange County family law court because Lindemulder was living in Costa Mesa and James was living in Sunset Beach.

Last week, Orange County Superior Court Judge David Belz, issued the order.

For about a year now, James has been fighting to have his legal matter moved to a court in Hays County, Texas, which is closer to where he lives in Austin with his 7-year-old daughter Sunny.

Diandra Douglas suffered another legal setback this month in her effort to claim a share of ex-husband Michael’s earnings from the film Wall Street 2: Money Never Sleeps. When last we left Diandra and the legal system, her attorneys were arguing before a New York court that Michael Douglas’ earnings from the sequel to his Oscar-winning performance in 1987’s Wall Street are subject to California’s community property laws, despite the couple having been divorced for more than a decade.

According to the celebrity-watching website Monsters and Critics, however, a Manhattan judge “rejected her request to overturn his original ruling (of) last year.” In doing so he reaffirmed his original opinion that if Diandra’s case is to be heard at all it should be in California, where the couple’s divorce was finalized back in 2000. The website quotes Diandra’s attorneys vowing to appeal the decision.

As I noted when originally discussing this case last year, Diandra’s claim does not amount to a demand for a California post-settlement modification. It turns instead on an essentially philosophical question: what, artistically speaking, is the relationship of a sequel to its original? The original Wall Street film was made during the Douglas’ marriage. Therefore, under California’s community property laws, Diandra is entitled to a piece of any ongoing income Michael makes from the film: residuals and royalties, for example.

We often hear or read about short-lived celebrity Los Angeles and Orange County divorces. Here is one with a novel twist: according to a variety of celebrity-watching publications, Maxwell Drummy recently filed divorce papers in a Los Angeles family court seeking to end his marriage to Peaches Geldof fully two years after the couple split up. The delay is particularly eyebrow-raising since there are indications the marriage was little more than a publicity stunt from Day One. There is no word on whether the couple have a California prenuptial agreement.

The website Monsters and Critics notes that the couple wed in Las Vegas in 2008 only ten days after they met. They publicly split barely six months later. Drummy is a French rock musician. Geldof, a model, is the daughter of rock star and humanitarian aide impresario Sir Bob Geldof. Both Geldof and Drummy have long since moved on to other partners, according to Monsters and Critics, leaving some to wonder why they were making no effort to dissolve a marriage that neither showed any interest in salvaging.

The answer may be that there was never much substance to their union in the first place. Monsters and Critics noted that Drummy has recently termed the entire marriage a “publicity stunt,” saying he has Geldof “on my personal payroll… she’s my friend for money. She also orchestrates publicity stunts for me.”

A divorced California couple now living in Tennessee may well serve as the best living examples of the importance of getting the right sort of legal advice when embarking on a divorce, be it here in Orange County or elsewhere.

According to the Memphis Daily News, Shem and Danielle Malmquist were married for less than five months, but have now spent six years battling each other in court. The paper reports that the couple “met in California and had one child before moving to Memphis and getting married the same day Shem Malmquist got a divorce from his second wife.” A few months later Danielle gave birth to the couple’s second child. A month after that Shem filed for divorce.

That divorce has become a model of litigiousness and contention. According to the Daily News, a recent Tennessee appeals court ruling noted that “this is not a complicated divorce case,” yet it has resulted in “unnecessarily protracted litigation.” A lower court granted the couple’s divorce in 2007, awarding Shem custody of the children. Danielle received visitation rights, a portion of Shem’s retirement savings and “transitional alimony.” But, as the appellate court notes, “as we have seen in similar divorce cases, the entry of a final decree is often seen as nothing but an invitation to move for modification.”

A bill currently being considered by the California legislature would make significant changes to the way California child dependency hearings are conducted in the state. This crucial aspect of California family law is not widely understood, and merits closer examination.

According to Capitol Weekly, a publication focused on politics and government in Sacramento, hearings in California’s dependency courts “are considered “presumptively closed” – that is, members of the public and the press are barred unless a judge feels there is a compelling reason to open a hearing up.” Dependency Courts are a special sub-set of the broader California court system that hear cases dealing with the foster care system and with California child custody issues stemming from alleged abuse and/or neglect.

As Capitol Weekly notes, “the rational for having closed courts is to protect vulnerable children.” But backers of AB 73, a bill seeking to make dependency court hearings presumptively open, take the view that public scrutiny is essential for preventing miscarriages of justice. The Weekly notes that there is no uniform national standard for openness in dependency courts – only in Oregon and Pennsylvania are dependency hearings always open – but that “the pendulum appears to be shifting towards more open courts” nationally, especially here in the western states. A recent opinion piece in the San Francisco Chronicle put forward the view that greater scrutiny of the dependency courts will provide an extra layer of insurance against ill-considered rulings.

The findings of a state audit released last week were critical of several California family law courts in the northern part of the state. According to the Sacramento Bee, the audit found that the Marin and Sacramento courts “fail to follow their own standards” when it comes to protecting the interests of children in child custody cases.

The paper reports that the State Auditor’s office launched the investigation “in response to concerns that the courts are too chummy with mediators and others who help decide child custody and visitation cases.” The paper notes that the report does not say in so many words that the shortcomings it identifies are placing children in danger.

According to the Bee, the chief judge of the Sacramento Superior Court issued a statement concurring with the majority of the report’s findings. He indicated that he has already initiated a process of changes to court procedures in response to the audit document. In Marin, the reaction was less welcoming. The paper reports that the county’s chief judge “wrote that the report’s title and chapter headlines were misleading and inflammatory.”

wilcox-fb-420x0.jpgBehold another blog post about the ramifications of Facebook-ing leading to divorce. Divorce attorneys throughout America are reporting an increase in business recently. Why? Because many social networking sites such as Facebook encourage flirtations that often led to more serious attachments. Attorney Paul Ross reported “[i]t’s not just Gen Y, The baby boomers and grey nomads are also getting in on the act … it’s also quite a regular occurrence these days that the client will have found out about an affair through Facebook.”

Further, a 2009 study of 304 students at Guelph University in Canada found that Facebook could create jealousy and suspicion owing to the ease with which people could monitor partners’ activities. Facebook could ”connect people who would not otherwise communicate”, the study found. I guess this holds true if you are connecting with people you would not otherwise “know” but meet on Facebook.

Along the same lines of the use of Facebook, our offices have also caught the opposing party in a lie through their Twitter account. Our client, Father, who lives out of State, was in California recently to attend a court hearing. Father asked Mother if he could have visitation with Child, given that he already has limited time with the Child. Mother refused, claiming that she was out of town for the weekend and had “limited” access to the internet. Father attempted to communicate with Mother over the weekend via email in an effort to informally work out other outstanding issues surrounding their custody case. Mother failed to respond to Father’s emails, again, claiming she was allegedly out of town and did not have access to the internet. On Sunday morning of that same weekend, Father searched Mother’s twitter account and discovered she was online “tweeting” quotes to her twitter account– thereby catching her in a lie! Mother did have internet access but simply refused to communicate with Father. This is clearly an example of Mother’s bad faith tactics and failure to communicate to reduce the cost of litigation.