ACTUAL FACT PATTERN OF CLIENT PRESENTED AT A KERN COUNTY LAW FIRM: My wife and I have been married for 25 years. We have 3 teenage children. My wife has never worked and has been an alcoholic for most of the years of the marriage. My wife was recently arrested for a DUI at 11:00 in the morning. My kids are embarrassed by their mother’s conduct and I told my wife that I wanted a divorce. She went to an attorney and we worked out a settlement agreement in which she and the kids would stay in the home. I would move out and get an apartment and would pay the mortgage, child support and spousal support. My wife and I would share custody of the children. My wife and I signed an agreement at her lawyer’s office and I thought the matter was settled until I came home and talked with my kids. They began laughing about the fact that their mother had obtained a restraining order against me because she claimed domestic violence. I have never hit my wife ever, and I never knew there was a restraining order against me. I never got an attorney because I didn’t believe that I needed a lawyer since my wife and I had agreed to all the important things. I told my kids that I was going to get a lawyer to tell me what was going on.
RESPONSIVE RECOMMENDATIONS OF TEACHBLADE TO THE ATTORNEYS: The parties were married so there is an online record of all pleadings filed in a dissolution action in all California courts. For example, if the matter occurred in Kern County, you’d go to the Kern County Superior Court’s website and click on the court location of the court that has jurisdiction over the case based on where the parties reside. If the case number is unknown, then the name of one of the parties should bring up information on the case. Most counties have free access to cases online, except Los Angeles, which is so huge a database, that persons wanting to access court records must pay a small fee.
(If the case is a paternity case, then information about the proceeding isn’t accessible unless the government (Child Support Services) is a party to the action.)
Verify that a TRO was in fact filed and that there is a hearing date to determine whether or not the TRO will become a 5 year restraining order. As a working Paralegal, you should become fairly familiar with the California Family Code if you’re working in an office that practices family law. California Family Code Section 3044(a) states that if a party (petitioner or respondent in a divorce action) is convicted of domestic violence within 5 years of filing for a divorce, then that party is presumed to be unfit to parent minor children. A Court finding of domestic violence in a hearing for a permanent TRO is the functional equivalent of a “conviction” under California Family Code Section 3044(a); and will therefore deprive the party of custody of minor children.
If the father in this case is convicted of domestic violence, then he would not get custody of his children, albeit he’s the best parent to parent, given that the mother is a chronic alcoholic (Family Code Section 3044(a).) This is a common tactic to deprive one parent of custody and thereby ensure a continuous, uninterrupted revenue stream of child support to the custodial parent, as well as spousal support. You can almost back into the fact that this is the likely tactic, given the fact that the mother is a known alcoholic and would be resistant to finding gainful employment because of self-imposed incapacitation. Hence, the incapacitated mother’s need — for a continuous, “uninterrupted” revenue stream for several years (while the children are still minors) plus spousal support.
Unlike child support, spousal support is based on a “needs” basis and “an ability to pay” basis. The conjunction “and” means that both elements must be present in order for the rule about spousal support, to apply. The wife will get spousal support because there’s a “need” (even if self-imposed incapacitation) and there’s an “ability to pay”. However, a “vocational counselor” can testify about the level of education the wife needs to become marketable, after she’s rehabilitated from alcoholism. There should be a court order requested to order the wife into alcohol rehab because not only is she currently incapable of working, more importantly, she’s incapable of parenting minor children and are the worst kind of detriment.
Obtaining a copy of the TRO from the other attorney is critical. Then file a “written” response and supporting declaration to the wife’s TRO and serve the wife’s attorney by mail. Also advise her attorney that you will be personally serving the wife with a Notice of Deposition the morning of the hearing; and will be asking the judge to keep the TRO in place, but to hold the matter of a 5-year restraining order in abeyance by continuing the TRO hearing, pending the outcome of the deposition that will be noticed immediately. (The purpose of a deposition is to have the wife answer “under oath” questions that will determine whether or not she’s telling the truth about domestic violence. If possible, have the deposition “videotaped” so that the court will see the physical demeanor of the wife answering questions under oath. The wife knows that if she is caught in a lie, then she has committed perjury and could face jail time, as well as the costs associated with bringing the deposition to prove her TRO is false.) Even the best alcoholics couldn’t withstand such scrutiny under oath; is an element of surprise to both the wife and her counsel so early in the game; and the wife will likely ask her attorney to withdraw the fraudulent TRO if she cannot prove domestic violence. Moreover, an alcoholic who is arrested at 11:00 in the morning will have a difficult time maintaining her composure under oath and would make for a poor witness. Hence, why the deposition is the weapon of choice at this juncture.
A deposition is part of Discovery and normally withheld until all other less expensive discovery tools have been exhausted. However, the foregoing instance is when “taking a deposition” comes to the front of the discovery tools arsenal, because, again, a court finding of domestic violence in a TRO hearing is a “conviction” that will prevent the husband from having any physical custody of his minor children and will thereby ensure that the incapacitated wife retains custody, or the children are displaced, if the mother is ordered into alcohol rehab.
Left unaddressed, the husband will have a conviction against him; and will not obtain a chance at custody of his minor children until he has gone through a long, exhaustive series of anger management courses and parenting classes. All this would result because the TRO wasn’t challenged in the first place. If any domestic violence did in fact occur over 10 years ago, then it would become irrelevant for the purposes of deciding whether a TRO should be extended for 5 years, in that TROs apply to “current” acts of domestic violence upon which the TRO is grounded. In either case, the TRO must be challenged with taking the deposition of the accusing party, especially if the husband swears he never touched her.
The husband had not intended to file a written Response to the wife’s Petition for Dissolution of Marriage. However, under the present circumstances, he should respond to protect his interests; and allow his attorney to negotiate any settlements.
On the day of the TRO hearing, the wife’s attorney advised the court that the wife was withdrawing her TRO and the deposition hearing became a moot issue.
QUESTION POSTED AT ASKINGLAW.COM: “I recently started a job through a staffing agency and on the third day at the job site, was told I had to leave because the staffing agency said I failed the criminal background check. I went to the KBI (Kansas B.I.) website and found no record for myself, as well as nothing on my DMV. The report that the staffing agency’s Background Check service sent me claimed I was arrested in 2003 for battery and served time. I’ve never been arrested for anything, so I dug into what was going on. Apparently there was someone with similar name and D.O.B. as myself with a criminal history, but obviously it wasn’t me. They are currently looking into my “dispute”, but I want to know what legal course of action I have for being falsely accused of a crime and being kicked off the job site until the matter is resolved because of it. So far I have only lost 4 days of work, but that adds up, not to mention everyone at that job now thinks I am a criminal.”
RESPONSE OF TEACHBLADE: You don’t stand a snowball’s chance in Hades of suing the government for this mistake. They are immune from prosecution for mistakes. It’s a shame that it had to be your name; but it should be resolved in your favor and can be explained away. When the matter is cleared up, you should be given the opportunity to be reinstated; and if they don’t verbally do so, then file an appeal of your dismissal. If that is the case, then you need a labor law attorney.
QUESTION POSTED AT ASKINGLAW.COM. “Hi, If I did $40,000 in cash advances on credit cards and eventually defaulted on the debt would I risk jail time or would I only suffer financial repercussions such as bad credit, liens, garnishments, etc. ?”
RESPONSE OF TEACHBLADE: The former collector who initially responded is correct. If fraud is not an issue, then there’s no crime. There is no longer any debtor prisons. If you are thinking of discharging this debt in bankruptcy, and haven’t used the credit cards within the last 90 days before filing for bankruptcy, you should be fine. There’s always the possibility that one of the creditors in your bankruptcy will file an adversary proceeding for a complaint to determine the non-dischargeability of the debt, based on fraud. Just make sure there’s no fraud issue. (For example, if someone recently received a credit card for $10,000, went out last week and ran up $10,000 and this week wants to discharge the debt in bankruptcy, then the creditor has a viable claim of fraud, because in the short timeframe of events, the debtor had no intention of attempting to repay the debt. The trustee wants to see “aged” debt, not last week’s debt.