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Discovery is now a right to family law parties, even after judgment

A great and important California law is on the books. It may not sound like much to read but in real world application it is huge. After the court issues its initial judgment, such as granting a divorce or making a child custody determination, there has been no automatic right to discovery, which is the procedure by which one party can make the other party turn over evidence such as financial records or appear at a deposition. The law had been that you had to ask the judge’s permission, and the judge could deny the request.

This changes on January 1, 2015. The new Family Code section 218 grants an AUTOMATIC right to conduct post-judgment discovery on any issues raised in the new request for orders. Further, discovery is usually cut-off 30 days prior to the date set for the first hearing, but now for family law cases the 30 days floats forward for any continuance or trial setting.

This is a great victory for justice, and to assure that our clients have a full and meaningful day in court.

Skirting the Law Making Process

March 2014 was another great example of knee-jerk lawmakers being more interested in making a statement than making a workable law.

This was the month that the Massachusetts top court threw out a conviction against Michael Robertson for taking “upskirt” photos on a train. The law only applied to nude or partially nude victims. A person wearing a skirt is neither.

So the law needed to be changed. Good idea too. But in the rush to put a new law on the books only 24 hours later, lawmakers voted to prohibit secret pictures of “sexual or intimate parts.”

Good idea there too. Unfortunately, in the rush, they failed to realize this still does not impact upskirt photography if the subject is wearing underwear.

To view this vague terminology otherwise, secret photos at the beach are also prohibited. A bikini bottom is as revealing as most underwear (or more so). Or is a bikini bottom not showing something sexual or intimate? What about dancewear?

The difference is that the person wearing a skirt in public has a reasonable expectation of interior privacy above her hem. But there is a difference between “intimate parts” vs. “intimate wear”, and the new law failed to include the latter.

In their rush, the lawmakers failed to make the necessary change, and upskirters will still get their cases tossed out of court.

Great lawyering!

Undocumented immigrant Jose Munoz, 25, believed himself an ideal candidate for President Obama’s 2012 safe-harbor initiative for illegal-entry children, in that he had been brought to the U.S. by his undocumented parents before age 16, had no criminal record and had graduated from high school (with honors, even). Since then, however, he had remained at home in Sheboygan, Wis., assisting his family, doing odd jobs and, admittedly, just playing video games and “vegging.” Living “in the shadows,” he found it almost impossible to prove the final legal criterion: that he had lived continuously in the U.S. since graduation (using government records, payroll sheets, utility bills, etc.). After initial failures to convince immigration officials, Munoz’s lawyer succeeded — by submitting Munoz’s Xbox Live records, documenting that his computer’s Wisconsin location had been accessing video games, day after day, for years. [Journal Sentinel, 3-24-2013, as reported at newsoftheweird.com]

Penalty for judicial corruption?

Our justice system faces no greater risk than corrupt judges. That is why we are shocked and saddened to learn there are still no criminal charges against Richard W. Stanford, Jr., an Orange County Superior Court judge who was removed from the bench for fixing parking tickets. While some may feel the loss of his job was punishment enough, it is not. How can it not be a crime for a judge to interfere with the administration of justice? How can corruption in a public official not be a crime? How can there be orange jumpsuits for so many pot smokers but not one tailor made for one who betrays the robes of his duty? In the private sector, should the penalty for embezzlement simply be you lose your job? How is it different where, as here, a judge stole money due to the county for traffic fines? Does it matter that he did not keep the money but gave it as a benefit to friends and family? It is worth noting that two of the tickets he allegedly fixed were for his church pastor. Well, the fact that his own pastor even made the request gives us a clue about how Judge Stanford gets his morals.

Tortfeastor of the Assumption

David Jimenez prayed regularly to a large crucifix outside the Church of St. Patrick in Newburgh, N.Y., based on his belief the crucifix was responsible for curing his wife’s cancer. He even got permission from the church to spruce up the structure, as befit its power. While clearning it, the 600-pound crucifix came loose and fell on Jimenez’s leg, which had to be amputated. Jimenez’s $3 million litigation against the archdiocese goes to trial in January.

Fraud in the conception

A well-covered story from Chinese media in October reported that Mr. Jian Feng won the equivalent of $120,000 in a lawsuit against his well-to-do wife for deceiving him and subsequently giving birth to what Feng thought was an ugly baby. Feng discovered that his wife had had cosmetic surgery — and thus was not, genetically, the beauty that he married but, in reality, plain-looking.

Microsoft deletes your legal rights

Read the slimy fine print on Microsoft’s “Important Changes” email many of you received in August 2012: “Finally, we have added a binding arbitration clause and class action waiver that affects how disputes with Microsoft will be resolved in the United States.” Put into plain English, Microsoft just changed their rules to say that if you want to sue them for anything you can expect $20,000 in legal fees, or much higher. And if they screw 50,000 people for the same thing, all 50,000 would have to fie separate lawsuits because with this wave of the wand Microsoft extinguishes our rights to sue them in one combined (class action) suit. Thanks Supreme Court of the United States!

Convicted Because Truth Lacked Credibility

Prominent novelist Michael Peterson was convicted in 2003 of beating his wife to death with a fireplace poker, but he, assisted by a former neighbor, has maintained since then that she was killed by a rogue owl. In 2008, for the first time, North Carolina state investigators acknowledged that a microscopic feather was indeed found in her hair, and in December 2011, Durham County Judge Orlando Hudson granted Peterson a new trial. Although several owl experts have declared that the wife’s head trauma was consistent with an owl attack, the judge’s decision was based instead on a finding last year that the state crime lab had mishandled evidence in 34 cases and specifically that an investigator in the Peterson case had exaggerated his credentials to the jury. (Found in Chuck Shepherd’s excellent website, www.newsoftheweird.com)

Misguided judge harms child

January 20, 2012 – Judge Susan Breall, San Francisco, has ordered that a 2 year old child not see his father until his father’s trial is over. Such “no contact” orders are common and appropriate in some cases, but is this one of them? The defendant here is the sheriff of San Francisco County. He is charged with domestic violence against his wife. It is alleged he was verbally abusive to his wife, and grabbed her arm in a manner that caused a bruise. Although his wife did not call the police and refused to press charges, the husband was criminally charged with a misdemeanor.

Leaving aside the issue between husband and wife…for it is wrong to let such matters be tried in the newspapers…the odd thing is that the judge ordered no contact between father and child until trial is done. This is an extreme measure typically reserved for very egregious offenses. Here the claim is that the two-year old was present while his parents were fighting, thus leading to a charge of child endangerment.

We are not aware of there being any other allegations of harm or potential harm to the child, other than a claimed risk of harm if he is around his mom and dad when they are together. But mom and dad are now prevented from being in contact with one another (over wife’s objection to that as well). So since mom and dad cannot be together in the presence of the child, where is the risk to the child to be alone with daddy? How long will this two year old be separated from daddy? What is the developmental harm to the child in such separation? What is the emotional pain?

It is easy for some to say that his father should have thought of that before he bruised the mother’s arm. But there are a few problems to that logic:

1) The issue is not the father’s rights but the child’s harm. He needs both parents.
2) The father is innocent until proven guilty. That is a foundational promise to all of us.
3) Even if eventually convicted of these specific charges, would that justify the child losing contact with one of his parents?

We do not know if this is how Judge Breall handles all domestic violence cases or if she is making a media example of the sheriff, but either way it seems the court has failed to put the child’s best interests ahead of all other concerns.

Without manners you can’t get far

The Boston Globe reports that bad manners are problems even for crooks.  A man who approached tellers at the Eastern Bank in South Boston on Aug. 25 eventually fled empty-handed, but only after one teller had refused his order for “all your money” (she told him she was “closed”) and another had scolded him for breaking into the front of the adjacent line and for not removing his hoodie.

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