Family Law Archives - Lonich Patton Ehrlich Policastri

A domestic abuse victim raisted her hand out in front of her face as a motion to stop

How The Pandemic Is Increasing The Rate of Domestic Abuse

February 10, 2021/0 Comments/in Family Law, In the Community /by Lonich Patton Ehrlich Policastri

Domestic violence (DV) and intimate partner violence (IPV) are deeply ingrained issues in our society that affect millions of people every year. On average, there are 20,000+ calls to domestic abuse helplines nationwide on a daily basis*. Adults aren’t the only victims of these assaults. 1 in 15 children is exposed to intimate partner violence annually**.

With the pandemic in full swing, and mandatory quarantines going into effect in 2020 and now 2021, experts have seen a rise in domestic abuse and IPV. In March, when the first stay-at-home orders were put into place, victims of IPV and DV were forced to stay at home with their abusers. While we’ve all been facing our own struggles these past 10 months, victims of abuse have been living in a state of perpetual fear and unsafety. Not only have they been facing the stress of potentially catching a fatal virus, but they have also been dealing with daily abuse from partners, family members, or other close relationships that they share a home with.

What is Considered Domestic Abuse?

Domestic abuse and IPV, while similar, are two different things. Intimate partner violence is violence at the hands of a romantic partner/ significant other. Domestic violence has a broader definition. DV can be at the hands of anyone in the household – family members, partners, friends, even children.

A domestic abuse victim leans her head against her fisted hands in worry

Domestic abuse can take many forms. It can be physical, mental, emotional, or sexual. It can include sexual assault, stalking, threats, verbal abuse, physical violence, and more.

How is the Pandemic Worsening Domestic Abuse?

Domestic abuse affects communities for a myriad of reasons. It commonly affects lower-income communities the most. Lower-income communities experience more everyday stressors than those who have financial security, especially during the pandemic.

Many low-income parents are essential workers. They are exposed to the virus at a higher rate due to their jobs, and being essential means that they can’t be home to care for their children who are now out of school due to Covid-19. Lack of childcare and financial instability can add tension to an already overwhelmed household.

In many cases, victims of IVP depend on their abuser for income and living arrangements. Abusers often make it difficult for their partners to hold a job or have any independent source of income. This is so they can keep their partner dependent and thus trapped in the abusive situation. It is a power play. For victims who are not allowed to have a job, and thus are stuck at home all day caring for the house and children, they are also vulnerable to more frequent attacks from a partner and violence becomes more frequent. Because they do not have their own income, they are unable to afford to leave the dangerous situation.

At home, learning is stressful for parents and children alike. Now that kids are forced to get an education from home, discrepancies in opportunities have become more visible. Many lower-income families do not have a stable internet connection and many don’t have internet at all. It’s not uncommon for lower-income families to not even own a computer for their children to use. With public libraries closed and schools closed, this creates a disadvantage for those children.

The stressors from lack of childcare and the difficulty of virtual & remote education have led to an increase in domestic child abuse.

How To Get Help

If you or a loved one is trapped in a home where domestic abuse is occurring, you need to reach out to local shelters and helplines. Setting up a safety plan during quarantine is key for escaping the dangers of your home situation. It’s hard to take steps towards leaving abusive partners because we often love them very much. But abuse is never acceptable no matter how much you love your abuser and no one ever deserves to be abused no matter what your abuser tells you.

If you live in San Jose or Santa Clara and want to take legal action, set up a free consultation with our domestic violence attorneys. We are discreet and compassionate. Our attorneys can help you set up a restraining order or can help you gain custody of your children if they are experiencing violence from someone in your household. You can contact us here to set up a consultation or to learn more about domestic abuse, read this.

What’s the Difference Between An Annulment And A Divorce?

January 27, 2021/0 Comments/in Family Law /by Lonich Patton Ehrlich Policastri

Relationships are complicated, which explains why so many people are afraid of marriage. It’s a big decision and it can be difficult if one party decides they want out of the marriage. If you did enter into a marriage, and you or your partner have realized you want out, you have options. There’s divorce, annulment, and in some cases, legal separation. But what’s the difference between an annulment and a divorce? How do you know which is right for you and your spouse?

What’s An Annulment?

Many people recognize the term annulment from silly sitcoms about last-minute Las Vegas weddings that the co-stars don’t remember the next morning. In reality, annulments are a very useful, very valid tool that serves a much more serious purpose. An annulment doesn’t just end a marriage, it completely nullifies it. If you get an annulment, it cancels a marriage out and acts as though the marriage never happened or existed. It allows for both parties to remarry post annulment. It’s a clean slate.

Not everyone can get an annulment, however. There are rules that dictate which couples are eligible. For example, if one spouse lies or withholds information from their spouse upon marriage, the other spouse can file for an annulment based on misrepresentation. Some other reasons for an annulment include:

If one party was presently married to another at the time of the wedding. This is also known as bigamy.
If one or both spouses were underage at the time of the marriage.
If one spouse was forced or coerced into the marriage.
If the spouse(s) were mentally ill or unwell at the time of the marriage.
If one or both parties were on drugs or alcohol, thus impairing their judgment, at the time of the wedding.
If the relationship between the parties is incestuous and therefore illegal by law.
Impotency in a spouse or inability to perform sexually can also result in an annulment.

You can get help understanding these rules and stipulations by hiring an experienced annulment attorney. It can be hard to navigate an annulment on your own, so, having an expert can be beneficial.

What’s A Divorce?

A divorce is a legal dissolution of a marriage. It goes a step further than legal separation and has stricter requirements. In California, parties must have lived in the state for at least 6 months before they can get a divorce. Couples can choose legal separation over divorce.

A person returns a ring to their ex spouse after learning what's the difference between an annulment and a divorce

Like an annulment, ex-spouses can remarry after a divorce. However, unlike an annulment, the divorce isn’t wiped from the record. A divorce means the marriage still existed and you must go through the procedures of dividing up property and assets and determining alimony and child support payments. California is a no-fault divorce state, which means that neither spouse is blamed for the end of the marriage. This usually follows with assets being divided 50/50. Spouses may need to obtain legal representation to help ensure the assets are divided equitably rather than equally.

If you have questions about whether or not you are eligible for an annulment or a divorce, or are still curious what’s the difference between an annulment and a divorce, contact an experienced annulment attorney. Lonich Patton Ehrlich Policastri has over 100 collective years of experience in family law. Set up a free 30-minute consultation here to find out if you and your spouse are eligible for an annulment.

How is Property Divided in a Divorce?

January 13, 2021/0 Comments/in Family Law /by Lonich Patton Ehrlich Policastri

Going through a divorce is devastating, and the headache of trying to understand the intricacies of divorce law and how it applies to your specific circumstances can be a nightmare. If you find yourself wondering, “How is property divided in a divorce?” then you are not alone.

The first piece of advice for people facing a divorce settlement is to research your specific state law or reach out to an asset division lawyer who can help you understand how family law property division is settled in your state.

How is Property Divided in a Divorce in California

The state of California practices the principle of “community property” during divorce proceedings. This means that all property accumulated by the spouses during the marriage is considered community property, and thus must be divided relatively equally between the spouses.

While some spouses are able to negotiate the division of property without the help of an asset division lawyer, property divisions are not considered legal without the approval of a judge who needs to validate the legality of the final separation agreement.

Unfortunately, divorce can bring forth hostility even after previously happy marriages. Often couples find that they cannot agree on how to separate their assets, and require the help of lawyers who specialize in family law property division. Both sides will present their case, and a judge will determine a division of property that is fair and relatively equitable. Cases in which the spouses have children together, tend to further complicate the divorce as determining a child custody arrangement can be a contentious issue.

Joint Property Versus Separate Property

During divorce litigation, a judge will need to determine which assets are joint property (community property) and which property is considered separate. Separate property includes:

Property that either spouse possessed before the marriage
Inheritances or gifts that either spouse was granted both prior to or during the marriage
Possessions that were acquired after the sale of personal property as mentioned above
Interest, dividends, or earnings on separate property
Property that was acquired by either spouse during the period between the official separation of the spouses and their finalized divorce

Shared property may become joint property if both spouses share payments on the property, as in a house, or if both spouses contribute to the worth of a property, as in a bank account. Nuances like these make an asset division lawyer highly recommended in high-asset divorce proceedings.

After asking how is property divided in a divorce, a couple signs corresponding documents that will divide their property.

Determining the Value of Property

Once the shared and joint property are differentiated, the division property process begins. Joint property is not always physically split down the middle but is often awarded as whole parts. For example, while one spouse may be able to keep the more expensive car, the other may be granted the higher checking account or an equalization payment.

Debt Ownership

Community debt is a complex issue beyond the sample of this blog, however, it is highly advised to assign debts to one spouse instead of sharing the ownership of the debt. This is to prevent one person’s credit from being negatively affected if the other is unable to make payments. Divorce litigators often offset an imbalance of property division by granting the debt ownership to the spouse who was granted more personal property. While one spouse may receive the higher checking account that same spouse may also have to assume the sole responsibility of paying off the credit card debt.

Family Law Property Division in San Jose

If you are facing a contentious divorce, it is vital to invest in an asset division lawyer to help you protect your personal property and ensure that you are not being taken advantage of. LPEP is a reputable high-asset family law firm that specializes in representing high-net-worth individuals. Schedule a 30-minute consultation today so that you may understand how we can help you. To learn more about property division, read this.

A certified family law specialist sits at a table in front of a large sunny window

What Is A Board Certified Family Law Specialist?

December 30, 2020/0 Comments/in Family Law /by Riley Pennington

Family law litigation is one of the most emotional, stressful, and challenging litigation to experience. When fighting for the rights of your family, it is important to hire a certified family law specialist. While other non-specialized lawyers could represent you, they do not have the special training, experience, and qualifications to give you the best representation.

What Does It Take to Become a Certified Family Law Specialist?

In order to become a certified family law specialist, lawyers must pass an additional examination when taking the bar. Additionally, they must provide references and demonstrate experience in the field after passing the exam. The specialization qualification is not permanent, meaning that lawyers need to complete additional training every three years.

Only specialists have the experience and training to understand the specific nuances of family law practice that is pivotal in family law litigation. While many lawyers may practice family law, not all of the lawyers who practice have the proper family law specialist certification. When selecting your lawyer, it is essential to pay attention to this differentiating factor as it could significantly affect the outcome of your case.

What Does a Certified Family Law Specialist Specialize In?

Family law lawyers who are certified family law specialists are reputable lawyers who focus on providing services for the broad category of family law litigation. Practice areas include cases involving:

State guardianship
Child custody
Visitation
Divorce
Annulment
Domestic violence
Alimony
Child support payments
Adoption
State child protection

As cases involving children and divorce can be highly emotional and contentious, it is all the more recommended to hire family law attorneys who have specialized certification. This certification guarantees that they have the experience and references to provide strong representation. Additionally, it implies that the lawyers will have the experience to treat sensitive matters with the care and respect that the family law litigation deserves.

A parent holds a toddler up on the beach as they plan to discuss custody with a certified family law specialist

How LPEP Can Help You

The Family Law Group at Lonich Patton Ehrlich Policastri boasts a team of reputable Certified Family Law Specialists. The powerful combination represents some of the best talents in the Bay Area and is known for providing first-rate representation in complex family law litigation.

In addition to providing strong family law litigation, our team also encompasses experienced attorneys in estate law. The crossover between family and estate law is common with high-asset and complex family law cases, and it is important to have lawyers experienced in both fields. This makes our team more dynamic, more passionate, and more dedicated to protecting your rights.

We also have close partnerships with accountants, business evaluators, mental health professionals, and real estate appraisers. Our breadth of knowledge and access to outside resources gives us leverage over smaller firms. We use this leverage to put forth the strongest family law litigation in San Jose.

LPEP is a reputable law firm with a team of dedicated certified family law specialists and family law lawyers. We focus on providing litigation to complex family law litigation and are especially experienced with cases involving business owners, foreign nationals, and cases with high-assets.

At LPEP, we understand that complex cases are often highly more contentious and require the best representation. We are one of the largest family law firms in San Jose, which means that we have ample resources to provide you with the strongest litigation. Set up a free 30-minute consultation with a board certified family law specialist at our firm today.

A partner signs a domestic partnership document as their partner holds their arm

What’s A Domestic Partnership?

December 16, 2020/0 Comments/in Family Law /by Lonich Patton Ehrlich Policastri

The law surrounding a domestic partnership varies from state to state. Understanding the terms surrounding it in your state requires some specific research on your part. Our partners at Lonich Patton Ehrlich Policastri have put together a brief guide explaining what’s a domestic partnership, and the laws about it in California.

What’s A Domestic Partnership?

To understand a domestic partnership, you need to know about its history. The first registry was enacted in 1999 in California. While a partnership can be used by opposite-sex partners, it was originally meant as an option for same-sex couples who legally could not get married. Because of this, a partnership offers certain benefits that marriage offers and recognizes couples who share a domestic life together. What qualifies as a domestic partnership depends on the state in which you reside. California’s family code defines a domestic partnership as being between “two adults who have chosen to share one another’s lives in an intimate and committed relationship of mutual caring.” (1).

There are certain requirements that must be met in order to file for a partnership, also known as a civil union in some states. For a domestic partnership California requires:

Both parties must be legally single – neither party can be married to someone else or be in another domestic partnership. Any prior marriage or partnership must be dissolved or terminated.
The parties cannot be blood-related.
Both parties must be 18 years or older – there is an exception to this rule. If both parties are under 18, they can obtain a court order which allows them to enter into a partnership. This also requires the consent of the legal guardians of the two minors.
Unequivocal consent between both parties entering into the civil union – both parties have to be of sound mind and judgment to consent to the partnership.

At a certain period in time, a couple had to be over the age of 62, but a new law in 2019 granted the opportunity to all couples to have that opportunity now, including those under 18 if they acquire permission from guardians and the court.

How To File For A Partnership In California

Two partners ask an attorney what's a domestic partnership as they hold hands

While you can file on your own, it can be very beneficial to file with the help of a domestic partnership California attorney. They can walk you through the paperwork and help you fill out any information that is needed to successfully file. In California, you and your partner must fill out Form DP-1 to be approved for a partnership. The form must be signed by you and your partner, notarized and a fee must be paid to the Secretary of State in California.

Our experienced family law attorneys at Lonich Patton Ehrlich Policastry can work with you to help you file for a domestic partnership. Alternatively, if you are looking to dissolve a partnership, our attorneys can make the process as painless as possible. Get the help you need. We serve San Jose and the surrounding Bay area. We offer free virtual 30 minute consultations so that you can take the next steps towards filing or dissolving a partnership. Set up your consultation here. Learn more about domestic partnerships here.

A parent who shares joint custody with their ex hugs their child goodbye as the other parent looks on

How Far Can A Parent Move With Joint Custody

November 13, 2020/0 Comments/in Family Law /by Lonich Patton Ehrlich Policastri

When you share joint custody with your ex, the idea of a big life change such as moving can be scary. The results can be uncertain and what will happen is at the discretion of a judge. If you are the parent of a child and want to move away or if your ex wants to relocate and move the child with them, what’s next? How far you can move with your child is determined by many factors.

Joint Custody & Parental Relocation

If you are planning to relocate with your child, you should know about the process you’ll need to go through to legally relocate. There are steps that you must go through to get approved for relocating your child in the case of joint custody. The main takeaway is that the judge must find the move in the best interest of your child(ren).

When a joint custody order is already in place, parental relocation is considered a modification by the court. This means that it is a requested change to the existing order. In California, a move-away modification is necessary if a parent plans to move 50+ miles away from their local residence, although, in large, unclear areas, this can be less.

The current parental schedule will be considered when approving or disapproving the modification. The modification can be filed by the parent looking for permission to relocate, or by the remaining parent who wishes to update the custody agreement so that they don’t lose time with their child(ren). When parents share joint custody, the court has a lot more to consider in determining if the move-away can happen. The courts must decide that the move is not harmful to the child in any way in order to approve it.

Two parent who share join custody sit angrily with their back to each other as a child frowns in between them

Many things matter when it comes to whether your child will be allowed to relocate with you, and how far you can relocate:

The accessibility of the move – this has to do with distance and expenses related to visitation by the other parent if the move is approved.
The current visitation schedule – This will take into account how much time the child spends living with each parent and the effect this time has on the child(ren).
The child’s relationship with each parent – The child’s feelings matter when approving a move-away order, but the judge will also determine what is in their best interest. They will also consider the age and needs of the child.
The support network – This considers the family and friends, and support system living nearby the child. Will there be a larger network for the child in the proposed residence or are they being taken away from a current community?
The reason behind the move – Was one parent offered a job? Are they remarrying? Or are they seeking to separate one parent from their child?
The relationship between the parents – The judge wants the parent who is the most reliable when it comes to maintaining and encouraging continual communication and contact between the child and their other parent.

You can work with a lawyer to file for a modification to your joint custody agreement. The distance you can move can only be determined by a judge. They can help you gather documents and evidence to support that the move is in the best interest of the child. They can also work with your ex to try and come to an agreement to the custody order that you both are satisfied with, which you can then take to court for approval.

If you live in San Jose, Santa Clara, or the surrounding communities, contact Lonich Patton Ehrlich Policastri for a free consultation. Our experienced attorneys offer complimentary 30-minute virtual consultations to clients. Set yours up here.

A scared woman holds her hand out in protection. She needs to learn how to get a restraining order.

What Is A Restraining Order & How To Get One

October 21, 2020/0 Comments/in Family Law, Personal /by Lonich Patton Ehrlich Policastri

Nobody should have to live in constant fear of another person. Yet physical or emotional abuse is not uncommon, and many people are often left unsure of how to protect themselves. Fortunately, there are legal processes that can protect you from having to deal with harassment, abuse, or being stalked. If you are fearful for your or your loved ones’ safety, then it is essential that you know how to get a restraining order, which is the first legal step in protecting your safety.

A restraining order(RO) is a legal order that a protected person can file against the restrained person in order to prevent them from taking harmful actions towards the protected person. The protected person may also name other people such as their children or relatives to be protected as well.

Before filing a restraining order, it is important to determine what you want the restrained person to be prohibited from doing. There are three types of restrictions that may be placed on a restrained person. A person may file for all three types of restrictions, depending on the severity of the abusive relationship.

Personal conduct orders are restraining orders that forbid the restrained person from committing acts against the protected person such as:
- Contacting, calling, or sending any type of digital communication
- Stalking or harassing
- Threatening
- Sexual assault
- Physical attacks
- Destroying the property of the protected person(s)
- Disturbing the peace of the person(s)
Stay-away orders are restraining orders that prevent the restrained person from entering within a specified physical distance of the protected person. The protected area can include places such as:
- The home and workplace of the protected person
- The protected person’s vehicle
- The protected person’s child’s daycare facility
- Other essential areas that the protected person frequents
Residence exclusion orders, also known as “kick-out” or “move-out” orders, order the restrained person to move away from the place of residence of the protected person. A residence exclusion order can only be ordered if the restrained person lives with the protected person(s).

How to Get a Restraining Order(RO)

Before filing a restraining order in California, you need to determine which type of RO you need. The type of restraining order depends on the nature of the relationship with the restrained person. You must select one of the four of the following types of restraining orders when filing.

A domestic abuse RO, which protects people who are living with or closely related to the abuser such as a spouse, parent, sibling, grandparent, or someone who the protected person is dating or has children with
A civil harassment RO, which protects people that the victim is not closely related to (an aunt or cousin) and other non-relatives such as friends, coworkers, or any other person.
An elder or dependent abuse RO, which protects adults who are dependent on the person committing abuse
A workplace violence RO, which is a restraining order that an employer can file in order to protect an employee from harm. It is important to note that only the employer can file this type of restraining order. The employee who is the victim may file a civil harassment RO.

In order to get a restraining order in California, you or your restraining order attorney must complete and file the legal court documents to begin the RO process. When you file the paperwork you should bring legal identification and any paperwork related to the restraining order such as past filings or paperwork associated with an emergency protective order.

A person in a pink shirt sits in an office with an attorney as they work on how to get a restraining order

Once the documents are complete, you must file the paperwork with the courthouse. In Santa Clara County, Domestic violence restraining orders are free, as well as civil harassment restraining orders if an act of violence has occurred. However, if no acts of violence have occurred, then there will be a fee for filing the civil harassment restraining order. If your income is low, you may want to bring pay stubs so that you may qualify for a fee waiver.

Once the paperwork is filed, a temporary restraining order may be granted until the date of the court hearing. During the court hearing, the judge will review the evidence and determine if further protection is necessary. The judge may grant protection for up to five years, at which point the protected person may file for a new restraining order.

There are incidences, however, in which the protected person is in danger and needs immediate protection. If you face an immediate threat to your safety, you may call the police to help remove the restrained person from your vicinity. The police may then file an emergency protective order which lasts for five to seven days, allowing you or your lawyer the time to file a temporary restraining order at the courthouse.

If you live in San Jose or the surrounding Bay Area and need help acquiring a domestic violence restraining order, contact one of our experienced attorneys today. We offer free 30 minute consultations. Set yours up here.

A person sits on a bed covering their face. Get help from a domestic violence attorney

How To Help A Loved One Experiencing Domestic Violence

October 7, 2020/0 Comments/in Family Law, Personal /by Lonich Patton Ehrlich Policastri

Millions of Americans are the victims of domestic abuse yearly. It’s likely that you have either faced it yourself or have a loved one who has. But what about your loved ones who are currently experiencing violence? How do you help them? If you’re noticing signs of domestic violence, or if your loved one has confided in you, there are steps you can take to help. Learn what you can do from an experienced domestic violence lawyer.

Signs of Domestic Violence

If you suspect that your friend or family member is experiencing domestic violence, there are some signs you can look for. Some are more obvious than others. You might notice…

Their partner or family member shows signs of possessiveness or a controlling nature
Their self-esteem and self-worth has taken a nosedive since entering the relationship
Their partner is excessively jealous
Their partner yells at or humiliates them frequently
They frequently have bruises or other injuries
They no longer have time to spend with friends or family, or people other than their partner (Abusers work to isolate their victims from a support system as a way of trapping them).

This is just the tip of the iceberg when it comes to warning signs of domestic abuse. If your loved one hasn’t confided in you that they are being abused, there are certain ways to handle the situation, and it must be done delicately.

Supporting Your Loved One

Your first instinct may be to get the help of the police or a domestic violence lawyer. While this is necessary in the eventual resolution of the situation, this isn’t always the right, first step. Often, many victims of domestic violence are not ready to confront the fact that they are victims. They may have a lot of shame around the situation, and abusers often make their victims feel that they are at fault for their own abuse.

Don’t begin by telling them they are being abused and how they should handle it, although this may be your first instinct. Instead, start by expressing concern in a safe, private place away from the abuser. Listen to and support your loved one, and believe what they have to say. Do not be judgemental in any way. You need to validate them and remind them that they do not deserve to be hurt and that they are not to blame. That is so important, as they may feel it is their fault. Work to build up their self-esteem by reminding them of their worth and all of their positive qualities. For them to take the first steps towards leaving the situation, they need to believe they deserve to leave. Help them rebuild a support system. Abusers work to actively isolate their victims and drive their loved ones away so as to maintain control over their victim. By encouraging and helping your loved one rebuild those connections, you are building a strong foundation to support them when they leave. Ultimately, you need to put the power in your loved one’s hands. You need to remind them that they are strong and that they call the shots. Reminding them of their power can lead to the eventual will power they need to stand up for themselves and leave an abusive situation.

Getting Help

When your friend or family member has decided that they are ready to take the next step in leaving a bad situation, you should have the resources to help them. You want to know what to do ahead of time so that you can get them out of the situation as quickly as possible and as safely as possible. You will want the number of your local domestic violence helpline. You will also need to reach out to them ahead of time to learn about resources they have to offer.

A spouse in a white shirt holds their ring and cries into their hands. They're meeting with a domestic violence lawyer

You may also want to have the contact number of a domestic violence lawyer who can help in setting up a DVRO (domestic violence restraining order). They can also assist in pressing charges. You want an attorney who has extensive experience in the field of domestic violence, and who can handle the case delicately and discreetly. If your loved one is married to their abuser, a domestic violence lawyer can also aid in divorce litigation – especially if children are involved. In these matters, where there is a lot of hostility, you need an aggressive attorney who can work tirelessly to get justice for your loved one and their children, and to safely extricate them from a violent situation.

Courts tend to favor the interests of the abused spouse, and typically take accusations of abuse very seriously, especially if children are involved. If you have questions about what qualifies as domestic abuse in a court of law, and what your next steps should be in helping your friend, there are a couple resources you can use…

Domestic Abuse Intervention Services

Help a Loved One or Friend

National Domestic Violence Hotline

https://www.thehotline.org/help/help-for-friends-and-family/

LPEP Law – Domestic Violence Lawyer

https://www.lpeplaw.com/family-law/domestic-violence/

If you are based in or around San Jose, you can set up a free 30-minute consultation with one of our domestic violence attorneys here. We believe victims and actively work to create a safer, healthier life for victims and their children.

A parent in a backwards baseball cap holds their child overlooking a mountain after their parental relocation

Parental Relocation & The Stay At Home Order

September 24, 2020/0 Comments/in Family Law /by Lonich Patton Ehrlich Policastri

As we all know, divorce/separation is a highly emotional event – especially when children are mixed into the fray. Combine that with the shelter in place (SIP) order we have in Santa Clara County and things start to become extremely stressful and volatile. If you’re unsure how to win a parental relocation custody case, especially during COVID-19, this article and a parent’s previous experience in San Jose winning full custody during the pandemic, might be of help to you.

Many times during a divorce/separation, new job opportunities, economic hardships, and other various difficulties may arise. As a result, one or both parents may need to relocate to a different city or state, transporting their children along with them to the new place of residence. Even during these uncertain times, family law courts are opened for the process of new applications and court dates. And while parents can often come to an agreement based on what’s in the best interest of their child, sometimes it’s just not possible for both parties to reach a consensus. If it comes to this point, professional legal representation is highly recommended. At least for the case of Steven Agnew from San Jose, California, this was true- he won full custody of his daughter, for the time of the shelter in place (SIP) order. The main argument used by him and his attorneys was the health of his daughter, and a judge agreed with this thought.

Under California state law, a parent who has sole custody typically has the right to move with their children unless the other parent can demonstrate that it would cause harm to said children. But if parents have joint custody and one parent challenges the other parent’s relocation, the parent who wants to move must show that it will be in the best interest of the children. With all that said, custody orders and visitation guidelines are not always completely clear. In California, judges often have few guidelines to follow, so the state tries to treat each case on a unique basis. Because of this, it’s important as a parent to seek legal advice from an expert parental relocation lawyer to ensure you get the desired outcome regarding your children’s future.

A parental relocation lawyer signs a document as the sun rises behind them

International parental “move-away” issues can be especially contentious and convoluted. Our team at Lonich Patton Ehrlich Policastri takes exceptional consideration to ensure a meaningful, continued relationship between the noncustodial parent and child is preserved. If a custodial parent decides to violate any of the visitation obligations, we understand and acknowledge the civil aspects of international child abduction in respect to the Hague Convention. We have attorneys that have experience in the 9th circuit of the supreme court and are extremely prepared for any matter, no matter what complexity.

The end goal here is to ensure that the best interests of the children are served, while also making sure that both parents are able to maintain a continuing relationship with the children. We understand that a loss of contact with one parent can be detrimental to a child’s wellbeing.

Here at Lonich Patton Ehrlich Policastri, our family law attorneys have more than 100 years of combined litigation and trial experience and an extensive background working on parental relocation and move away issues. Our team also has considerable experience in handling child custody matters concerning foreign nationals. These Parental Relocation Lawyers are on standby in San Jose, ready to help you learn how to win a relocation custody case. Please contact our office to schedule your free 30-minute Parental Relocation Consultation by calling (408) 553-0801 or signing up online here. All consultations will be done virtually due to COVID-19 regulations and for the safety of our partners and our clients.

A black and white photo of a parent holding a child's hand after getting child custody

How a Domestic Violence Restraining Order Can Affect Child Custody

September 23, 2020/0 Comments/in Family Law /by Lonich Patton Ehrlich Policastri

Dealing with a child custody arrangement is one of the most stressful experiences parents may face. When one of the people fighting for child custody or visitation rights has a domestic violence restraining order, the case is significantly more complicated and almost always requires a qualified child custody attorney to ensure that the children receive an outcome that is in their best interests.

Understanding Custody Arrangements

Before discussing how a domestic violence restraining order affects custody, it is important to understand legal terminology regarding custody. There are two types of custody:

Legal custody refers to the custodian(s) responsible for making major life decisions for the children, including choices regarding education, religion, and medical treatment.
Physical custody refers to the person who must legally provide a safe and secure home for the children.

Both types of custody can be full, in which one person is the main decision-maker or caretaker, or joint, in which two people share the legal rights regarding decision making or the responsibility of providing a home.

Understanding a Domestic Violence Restraining Order

A domestic violence restraining order (DVRO) is granted when a judge determines that a person has committed or threatened to commit abuse against someone that they have a close relationship with. This includes relationships such as:

A spouse or domestic partner
A roommate
A person that they are divorced or separated from
Someone that the person is dating or used to date
The other parent of the person’s child
Another close relative such as a sibling, parent, or grandparent

In other words, a judge issues a DVRO when they determine that someone is a threat to another person that they are close to. A person must file a DVRO against someone for a judge to legally issue it. Any DVRO can affect a child custody case, whether it is against the other parent or any of the aforementioned people. Any history of violence is reason for concern in a court’s eyes.

How Domestic Violence Restraining Orders Affect Custody

Domestic violence is different than child abuse because the victim must be older than 18 years old. However, research shows that domestic violence can negatively affect children, especially when they witness the abuse. In some cases, the emotional impact of children who experience domestic violence in their homes can be similar to those of children who are abused and neglected.

A child in a striped onsie is held up by a parent at the beach after being awarded child custody

Due to the mental and emotional effects that domestic violence has on children, judges typically will not award custody to the person with the DVRO if they determine that the domestic abuse is likely to occur again.

Parents with a DVRO are often only granted limited visitation rights, which are strict schedules or rules regarding when they can legally visit their children. Often parents may not visit the children as frequently as they wish, only can visit the children with the supervision of a third party, or are not allowed to have the children spend the night at their house.

How Someone With a DVRO May Obtain Joint or Full custody

This does not mean that a parent facing a child custody case with a DVRO should not develop a strong case. There are situations in which a judge may grant full or joint custody to a parent with a history of a DVRO. Factors that a judge considers are when the DVRO was issued, the behavior of the person since the DVRO, if the person completed all of their court-ordered programs, and the living environment of the other person fighting for custody.

In all custody cases, the interests of the child are the judge’s main priority, and it is their job to do their due diligence when assessing the parents’ fit for custodial rights. This means that even though one parent has had a DVRO issue, they may still be the best option for custodial rights. Judges do consider the length of time that has passed since the DVRO and understand that with proper treatment, some people can dramatically improve their behavior and become fit to be a caregiver.

If someone with a record of a DVRO awarded within the past five years wants full or joint custody of their children, the judge will consider the following seven factors:

What custody arrangement is in the best interest of the children?
Does this person have a record of any other domestic violence?
Has the person followed all the conditions of any restraining orders against them?
Did the person finish their year-long batterer intervention course?
If any alcohol or drug programs were mandated by the court, has the person finished them?
If any parenting classes were ordered by the court, has the person finished them?
Has the person followed all terms of their parole or probation?

The judge will use the aforementioned factors to determine custodial and visitation rights. If you are the victim of domestic violence or have a history with a DVRO, and are facing a child custody case and need advice, our lawyers at Lonich Patton Ehrlich Policastri offer free, 30-minute consultations to assess your unique needs. All consultations will be virtual due to COVID-19 in order to maintain the safety of our partners and our clients.

Our experienced trial lawyers at LPEP are some of the most reputable child custody attorneys in the San Jose and Silicon Valley areas. Schedule your free consultation online here.

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