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Can I get the other parent drug tested?
Posted by: Bill Edgar
May 01, 2009
Topic: Custody and Visitation

In determing the child's best interst, the court must also consider either parent's "habitual and continual illegal use of controlled substances" or "continual use of alcohol." Family Code, Section 3011(d)

Before considering allegations of a parent's drug or alcohol abuse, the court may require independent corroboration-such as written reports from law enforcement agencies, courts, probation departments, social welfare agencies, medical and rehabilitation facilities, or other organizations providing drug and alcohol abuse services. Under strict guidelines, the court may order any person seeking custody or visitation to undergo testing for the illegal use of controlled substances or alcohol, and may order either or both of the parties to pay the cost of such testing.

First of all, there must be judicial determination based upon the preponderance of the evidence that there is a "habitual, frequent, or continual illegal use of controlled substances or the habitual or continual abuse of alcohol" by the person seeking custody or visitation orders. The determination may be basedon (but is not limited to) a conviction in the past five years for illegal use or possession of a controlled substance.

Testing Method: The court must order the "least intrusive" method of testing and must conform with the standards adopted by the United States Department of Health and Human Services for drug testing of federal employees. Presently, the federal drug-testing standards only allow for urine tests, thus the court may not order a parent to submit to a hair follicle test under Family Code, Section 3041.5. However, the court may request that a person agree to submit to a hair follicle test. Even if positive, the positive test can not be the sole grounds for an adverse custody order.

If you are requesting drug test of the other parent, a detailed statement should be included in the paperwork that you file with the court. There are many pitfalls and issues that need to be addressed with an experienced attorney. Please contact our office to discuss your legal rights and options.

Please visit http://www.edgarfamilylaw.com/

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What are automatic temporary restraining orders?
Posted by: Bill Edgar
April 08, 2009
Topic: Riverside Divorce

What are automatic temporary restraining orders? There are automatic restraining orders that go into effect in every dissolution, legal separation or annulment case. For the petitioner, these restraining orders take affect upon filing the petition and issuance of the summons. As the respondent, the restraining orders will take effect upon personal service of the petition and summons. These automatic, temporary restraining orders (ATROs) are usually found on the back of the summons.

The ATRO or automatic temporary restraining orders under domestic relation status actions are as follows:

1. Child move away. Both parties are restrained from moving the minor children from the state without prior written consent of the other party and/or order of the Court. This action does not require a child already residing out of State at the time of the petition was filed to return to California.
2. Insurance Policies: Both parties are restrained from cashing, borrowing against, canceling, transferring, disposing of, or changing the beneficiaries of any insurance coverage, including life, health, automobile, and disability, held for the benefit of the parties or the children. Essentially, you cannot cancel any insurance policies while going through the divorce process. You may get stuck with paying the cost of the bill that the insurance would have covered.
3. Property transfers and extra ordinary expenditures. Both parties are restrained from transferring income and or concealing or disposing of any property real or personal whether it be community or quasi community or separate property without the other parties written consent or Court order except in the usual course of business or for the necessities of life. Each party is to notify the other of any proposed extra ordinary expenditures at least five (5) business days before occurring those expenditures and to account to the Court for all extra ordinary expenditures after the service of summons. There are so specific guidelines for determining whether a property disposition was made in the usual course of business or for the necessities of life. This action does not preclude either party from using community or quasi community property or the parties own separate property to pay reasonable attorney's fees and costs in order to retain legal counsel in the proceedings. You should always keep a paper trail documenting the source of the attorney's fees and costs during the action. A party that cannot produce proof of the accounting may have to suffer the consequences.
4. Both parties are restrained from creating a non probate transfer or modifying a non probate transfer in the matter that effects the disposition of the property subject to written transfer without the other parties written consent or court order. A non-probate transfer with a meaning is an instrument other than a will that transfers property upon death. This includes a revocable trust, payable on death account, totton trust accounts or transfer on death registration of personal property.

It is important that you understand that these restraining orders exist and that they can have very serious consequences. It is always advisable that you speak to an attorney. Please contact us to schedule an appointment to speak with an attorney.   Bill Edgar 

Visit www.EdgarFamilyLaw.com

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The Divorce Process
Posted by: Bill Edgar
February 12, 2009
Topic: Riverside Divorce

The party filing for divorce must be a resident of the county in which they file for at least three months and a resident of California for at least six months prior to filing for divorce.  This is a jurisdictional requirement, called the residency requirement, and the court does not have the discretion to change this requirement.  A legal separation does not have the same residency requirement and is often filed when the residency requirements have not been met.   

The process begins when a Summons and Petition for Dissolution of Marriage is filed in the Superior Court.  This Summons and Petition must be personally served by someone over the age of 18 and not a party to the action.  I always advise against having any family member or friend serve the Summons and Petition.  There are alternate means of service if personal service is impossible, such as service by publication in a newspaper.  The date of service is important because it establishes the "jurisidictional date."  The quickest a person can be divorced is 6 months and 1 day from the jurisdictional date or the date of service.  This waiting period is also statutory and can not be modified.  Despite what you may hear or see advertised as a "quick divorce," this can not be changed by the court. 

We often file an Order to Show Cause at the same time as the Summons and Petition.  By filing an Order to Show Cause (OSC) a court date will be set to get temporary orders pending a settlement conference and trial.  The OSC can be filed to get child custody and visitation orders, child and spousal support orders, and property control orders.  If there is domestic violence, a restraining order should be filed immediately as well.  It is important to hire an attorney during the early stages of the divorce becuase it will dictate how the rest of the case may go.  It may difficult to undo the temporary orders once they are in place.  

The next step would the characterization and valuation of the property.  The general presumption is that any property, whether it is asset and debt, that is acquired during marriage is community property and would be divided equally.  If property is acquired prior to marriage or after the date of separation, then it would generally presumed to be separate property.  There are many nuances to these general presumptions and you should hire an attorney in order to properly evaluate and protect any of your property rights.  As part of the characterization and valuation process, discovery should be conducted to properly evaluate the property issues.

The next step would be a settlement conference.  A settlement conference may conducted with a local experienced family law attorney or a judge, and they will sit down with the parties and try to reach a negotiated settlement.  Some or all of the issues may settle at the settlement conference.  Any issues that are not settled would get set for trial.  The majority, if not all, family law trials are bench trials and not jury trials.  If a person is not satisfied with the trial results, they may be able to appeal the decision in the Court of Appeal. 

It is important that you have legal assistance throughtout the divorce process, please contact us to set an appointment to discuss your legal rights and options.  Bill Edgar

Visit www.EdgarFamilyLaw.com

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