The use of emerging technologies to perpetrate stalking and domestic violence is on the rise. Facebook stalking is now a commonly used term. We’ve all read the news about GPS transmitters being placed on cars by stalkers, and email hacking – as reported by our clients – is now a fairly regular occurrence. Our office has even seen parties placing spyware on one another’s computers to track emails and passwords.

Some of these activities are illegal and can be stopped with restraining orders; others reside in that blurry gray area where enforcement can be a real challenge. Either way, it’s important to be aware of how to protect yourself, and if necessary how to collect the evidence you will need if you want a restraining order.

The following are our tips for how to prevent mishandling of your digital identity.

First and foremost, be sure your computer is not corrupted with malware or spyware. Modern spyware can track every single stroke on your keyboard and easily capture passwords, emails, and credit card information. We regularly advise our clients to open up new email accounts, but if you unwittingly have a key-stroke logger on your computer, it doesn’t matter how many accounts you have – they’re all compromised. There are spyware sweepers available online, but your best bet is to hire an IT professional to conduct the sweep for you.

Second, don’t give your stalker any information to feed upon. Don’t post your personal information online – it never goes away. Be absolutely sure your social networking privacy settings (meaning Facebook, etc.) are set to the most strict and preclusive available. If you believe you are at risk of stalking, never allow social networking services to track your location. Remember that many stalkers will pose as your friends and then have access to your friends-only information. You may need to delete your social networking services entirely if you believe you are at risk.

Third, never, ever, interact with your stalker. This only fuels the problem and clouds the question of whether you are the victim. Instead, document and report. Screen-capture anything that happens online. Save your emails. Tell your friends immediately when something happens so that you have a witness. Videotape. Record. Keep text messages and voicemails. And especially if you are in danger, call the police immediately every time you are stalked or harassed.

Once you have a body of evidence that shows a pattern of behavior, contact an experienced attorney and the police to report what has occurred. An effective lawyer can give you this and more advice, and can help you to obtain a restraining order. We handle quite a few of these cases in our office, so feel free to give us a call if you need any help.

Today’s post comes from our intrepid paralegal, Karin Buckley. Karin has an immense amount of experience working with teens, having taught high school for many years prior to becoming a paralegal. I hope you enjoy reading her quirky yet insightful advice as much as we did.

Perhaps you and your co-parent divorced years ago, or perhaps the break is more recent; regardless, if your children are teens, it’s time for you and the other parent to reevaluate your co-parenting style. What worked when your children were younger may no longer be realistic or even wise now that they’re older. That’s the problem with children, they grow up; the child who once worshipped you as a minor deity is now completely exasperated with your every move. Worse, they become wilier as they get older and if they haven’t yet discovered the benefits of having parents who are separated or divorced, they’ll soon get the gist of how to manipulate the situation to their advantages.

So what’s a parent to do? Here’s a quick primer on how to ensure your teenager doesn’t get the better of you or their other parent.

1) Safety in Numbers – If you don’t already, you need to start using your co-parent as a team member. You’re going to be a team of two, an underdog team, but if you stick together, you can prevail against the acne-faced monster you’ve collectively created. Make sure your teenager knows that neither parent is going to give a “Yea” or “Nay” without first consulting with the other parent. This consultation needs to happen outside of the teenager’s presence. Do not allow your teenager to enter negotiations with you individually. Set up a conference call if necessary, but don’t allow your teen to force you into giving an off-the-cuff answer to his or her request.

2) No Means No – Consistency is key. If you tell your child no, you need your co-parent to back you up. Your child knows the divide-and-conquer strategy. Get the upper hand – once you and your co-parent have issued your executive decision, the discussion is over. This is not to say that your teen won’t keep trying, but you no longer have to respond; the verdict has already been recorded.

3) Hate is Just Another Four-Letter Word – Your teenager hates you? Congratulations! That probably means you’re doing a wonderful job. There is nothing more dangerous than the parent who believes that he or she needs to be their children’s friends. Think about it – do your friends treat you like a walking ATM? Borrow your car and bring it home with an empty tank? Ignore you at the dinner table? If you need another friend, join a book club.

4) Bad Cop/Bad Cop – When telling your child “No,” don’t give into temptation and throw your co-parent under the bus. Blaming the other parent is never a good idea. Remember, you are working as a team to raise a responsible adult who has limits. See Item 1.

5) Pretend Your Child has a Choice – Practice issuing decisions such as: “Your mother and I have decided that we can’t let you go to the Girls Gone Wild Spring Break in Cancun. However, we did see that the Sisters of Perpetual Sorrow are sponsoring a Spring Break Habitat for Humanity trip in Arkansas, so we’ve signed your up for that instead; of course, you could still go with your father/mother on that camping trip to Yosemite.”

There’s no “I” in parent, so work together with your co-parent. If you do, you can create an adult with whom other people enjoying spending time, and not someone who is going to appear on Cops.

If you find yourself in a difficult co-parenting situation, please feel free to contact our offices at your convenience. As child custody lawyers, much of our work deals with creating realistic co-parenting solutions. We’re happy to help.

There is a rumor that embattled former senator and presidential contender John Edwards is going to marry his one-time mistress, Rielle Hunter.  Edwards is accused of conspiring to violate campaign finance laws by using approximately $1 million from campaign donors to cover up his affair and the child he fathered with Rielle Hunter.  If Edwards does marry Hunter, she would not be required to testify against him at the trial if she did not want to, and some theorists believe this is the only reason he wants to marry Ms. Hunter.  This is due to the testimonial privilege between spouses.  If this matter were a divorce, however, the privilege against spouses testifying against each other would not apply.

The spousal testimonial privilege can be a very powerful bar to testimony.  The privilege has two parts.  There is a privilege not to testify against one’s spouse and a privilege not to be called as a witness against one’s spouse.  A married person has a privilege not to testify against his or her spouse in any proceeding.  Additionally, a married person whose spouse is a party to the case has a privilege not to be called as a witness by an adverse party without the prior express consent of the spouse having the privilege.

The spousal testimonial privilege does not apply in divorce cases.  Spouses are often at odds regarding the way child custody and visitation should be decided or how assets
should be divided.  Anything a spouse says can be used against them in Court when disputing these issues.  One spouse admitting to hiding assets in a Swiss bank account, for example, cannot claim a privilege against having his wife testify against him when she wants to be compensated for losing access to the money.  People are wise not to say anything around their spouses that could later open the door to an unfavorable court action.

There are multiple ways that a spouse can communicate with their other half – in person, on the phone, email, text messages, etc.  During the family law litigation process, all
of these forms of communication and more can be discovered and used as evidence at trial.  Either spouse can get on the stand and state word for word what her spouse told her through any form of communication.  The other spouse is powerless to keep her quiet.

It is incredibly important to have excellent legal counsel to manage not only the formal process of a divorce, but also the communication between the parties.  In the Bay Area, a person is wise to engage the best San Francisco divorce lawyer available to help navigate these dangerous waters.

Jessica Simpson and Kobe Bryant have been in the news recently, both because of their respective prenups. I thought I would take a moment to reflect on the nature of celebrity marriage contracts, and what this can tell us about the marriages of mere mortals.

To recap in case you’ve missed the news, Kobe Bryant’s wife has just filed for divorce, and there’s no prenup. Kobe’s wealth is estimated to be around $150 Million. Assuming the entire fortune was earned during marriage, it’s all community property, meaning Vanessa is entitled to half of it. Moreover, because Kobe continues to earn an income, and because Vanessa will likely gain custody of the children, Bryant could end up paying spousal and child support on top of losing half his net worth. Not to mention the attorney’s fees he’s going to pay.

Jessica Simpson appears to be on the first chapter of a similar story. Her fiancé has apparently backed away from signing a prenup, citing his belief in true love. Like any celebrity, Jessica’s income streams are fairly complex. She is apparently worth approximately $20 Million, and in addition to earning fees for appearances, she continues to earn royalties from her licensing contract with the Camuto Group who bought her clothing brand in 2005. Absent a prenup, Jessica’s income from all of these sources could very well become community property during a marriage. The same, of course, would hold true for her fiancé’s income, assuming he has any.

When celebrities marry, the process is very much like a corporate merger. All of the various income streams need to be charted. The books need to be balanced. The liabilities disclosed. The expectations for future growth must be set, and an exit strategy mapped. Without this process, a split becomes a financial disaster. This is true of course for all marriages, it’s simply more evident with celebrities.

The procedures necessary to create a valid prenup are time consuming, confronting, and tedious. There’s no way around that fact. Nonetheless, celebrities with complex financial structures would be insane to attempt marriage without a prenup, just as a corporation would breach it’s duties to shareholders by merging without a contract.

More important than those obvious considerations, however, is the opportunity that a prenup presents to lay the groundwork for a strong marriage. This is the point that we miss in the gossip columns, and that most people forget when proposing a prenup to a partner.

Premarital agreements require couples to take a very serious look at their expectations for finances and relationship. These expectations say a lot about the marriage, they say a lot about love, and they say a lot about how the couple works through adversity. Celebrities need prenups – that goes without saying. What isn’t said often enough is that they could also use the process to avoid rather than to foreshadow divorce. And the same goes for the rest of us.

For many people, the holiday season is a time of joy and merriment. For some, however, the holidays are a time of stress, anxiety, and unfortunate family disputes.  It has been reported over the years by various news agencies that the incidences of domestic violence are greater during the holidays than the rest of the year.

These reports led us to do some investigation around the statistics and rationale behind this concerning fact, which revealed surprising results.  It turns out that very few studies have been conducted to track the correlation between domestic violence and the holidays.  According to the National Resource Center on Domestic Violence (NRCDV), most of the available reports addressing the prevalence of domestic violence during the holidays are anecdotal or opinion pieces where the dated cited often comes from an individual or one shelter’s experiences.

According to the NRCDV, one of the few reliable studies on this issue was conducted in 2005, which explored the incidence and characteristics of intimate partner violence in Idaho, a rural mountain state.  This study, titled Intimate Partner Violence Incidence and Characteristics: Idaho NIBRS 1995 to 2001 Data, analyzed seven years of National Incident-Based Reporting System (NIBRS) data to compare the incidences of intimate partner violence in Idaho, as compared to the rest of the nation.

The unexpected results of this study showed that there is a strong relationship between particular holidays and incidence reports of intimate partner violence, but not the correlation that had been predicted. According to the study, Thanksgiving, Christmas and (not so unexpectedly) Valentine’s Day had below the general trend of any ordinary non-holiday.  New Year’s Eve, New Year’s Day, Memorial Day, and the 4^th of July had higher reports of domestic violence than the normal daily average.  In particular, New Year’s Day revealed 2.7 times more incidents of domestic violence, followed by the 4^th of July.

The study’s explanation of these surprising statistics is that, historically, intimate partner violence occurs at night and on the weekends, and in places where there was greater seclusion from others who might step in on the victim’s behalf (i.e. the home).  The study also held that Intimate partner violence is also more likely on holidays when use of alcohol increases.

Another study, conducted by The National Domestic Violence Hotline (NDVH) has performed an analysis for the years 2004 through 2009, and found that the reports of domestic violence not only decrease during the holiday season, but that the decrease is dramatic.  According to the NDVH study:

-Nationwide call volume during the week of Thanksgiving decreases by about 15%, and drops by around 45% to 60% on Thanksgiving Day.

- During the holiday season from December 15 to January 1, call volume drops by around 5% to 25%, and call volume on the actual holidays (Christmas Eve and Day, New Year’s Eve and Day) drops dramatically by about 50%.

-Once the holiday season is over, there is an average 5%  increase in call volume over the next two weeks.

Despite these statistics that reported domestic violence decreases during the holidays, it is clear that the incidences do not stop occurring. If you or anyone you know is a victim of domestic violence, it is important to contact your local police and seek help of an experienced family lawyer.

In our work as divorce litigators we are seeing an extreme upsurge in the use of social networking sites as evidence in child custody cases. The trend began several years ago, and with dramatic consequences. In my first case involving Facebook, the husband presented screen shots of his wife’s newsfeed to establish that she drank too much, partied too much, and lived with an unsavory roommate. She lost custody.

We regularly advise clients to carefully guard what they post. Our tips: emphasize pictures of your kids; deemphasize pictures of you drinking; and adjust your privacy settings so that others cannot post photos of you without your permission. Nothing is more incriminating than a candid photo taken with a phone. Think Michael Phelps.

This latest development presents further complications. Judges are now ordering couples to swap passwords – this means that even strictly guarded privacy settings won’t help (here’s a link to the article). These cases are becoming more complex by the day and nuanced professional advice is more important than ever. If you believe you think that social media may play a part in your child custody case, you should contact an experienced family law attorney to help you strategize your approach. This is one issue that you don’t want to bungle.

Childhood vaccinations are in the news again. A health study by the Journal of Clinical Oncology found that oral cancers are on the rise and that HPV, a sexually transmitted disease is to blame. Experts have suggested that HPV is at the root of up to 95% of non- tobacco related oral cancer. The good news is that there is a vaccine for the virus. The bad news is that it is most effective when administered before a person becomes sexually active. Some groups argue that the vaccine promotes promiscuity.

At a recent televised Republican primary debate, Congresswoman Michelle Bachman chastised Texas governor Rick Perry for an executive order mandating that pre-teen girls get vaccinated for HPV, which is also believed to cause most cases of cervical cancer in the United States. Bachman argued that the vaccine is not known to be safe, citing an unnamed mother who purportedly told her that the HPV vaccine caused her child’s mental retardation. There was an immediate outcry that there is no evidence to show that the HPV vaccine is unsafe.

Many parents have similar concerns about other vaccines. For years, there were concerns that the MMR vaccine caused autism. Recent studies purport to disprove this, but the argument rages in many homes across the state and nation.

What happens if parents cannot agree regarding if and when to vaccinate their children? Parents with joint legal custody both have the right to make healthcare decisions for a child, and the law expects parents to confer and reach agreement. If agreement is not reached, the issue may be decided by a court. In California, the court will weigh each parent’s argument and decide whether the vaccine is in the best interest of the child. That leaves a lot of room for uncertainty regarding what the court’s decision will be, and the decision may be highly subjective.

If you have a disagreement about whether your child should be vaccinated, an experienced child custody lawyer may be able to help to resolve the issue. Don’t hesitate to contact someone before the problem boils over.

Legal fees are expensive – there is no way around that simple fact. The language in the California Family Code, however, attempts to ensure that everyone has access to legal representation during his or her divorce. An indigent party may qualify for pro-bono or reduced-fee legal services, and for a waiver of court fees. Needs-based legal assistance, however, is difficult to qualify for, leaving many people in a financial bind when affording legal services. Therefore, under appropriate circumstances, the court will order one party to pay for the fees of the other.

Under Family Code Section 2030 whether you are entitled to attorney’s fees for your divorce is based on two primary factors. First, the court looks to determine whether there is a great disparity in available financial resources between the two parties. Second, the court determines whether one party is able to afford to pay fees for both parties. If these conditions are met, the court may order an award for attorney’s fees and costs.

Under Family Code Section 270 and 271, courts may also award attorney’s fees or costs as a “sanction” against a party for bad behavior. In these cases, courts may only impose fees and costs on a party that the party can afford it. With sanctions, the party requesting attorney’s fees does not have to demonstrate financial need, and the payment will come out of the sanctioned party’s assets or his or her share of community property.

If you believe you qualify for an Attorney Fees award, you should contact a qualified San Francisco Divorce or Family Lawyer immediately.

Most parents in California are still under the impression that in a dispute “Mom gets the kids,” and that Dad gets “some visitation.” In reality, the California courts have changed the custody goals in recent years to rebut this old stereotype.

When it comes to custody matters, the goal of the courts – as prescribed in California Family Code Sec. 3040 – is to create a plan which is in the best interests of the children, and to aim for joint legal and joint physical custody. This often means an equal timeshare with both parents (sometimes historically referred to as a “50/50 split.”) The important implication here is that Dad has just as many rights to equal time with the children as Mom. This intention to grant both parents equal time with the children is simply what the court system believes is in the best interest of children. Judges often stress in their courtrooms the benefits to children of having both parents involved in their daily lives.

The important distinction to recognize is that the “goal” of the court system is not necessarily determinative of the final custody outcome. In a perfect world, after a couple splits up, both parents would get along like old pals, live in the same neighborhood, be responsible and conscientious parents, and raise their children together without a single disagreement. Needless to say, this is not the reality we usually see.

More often, we see custody arrangements with varying schedules, and unequal division of time between mothers and fathers. Sometimes mothers are given primary custody of the children, and other times, fathers are awarded primary custody. Fortunately, in most cases in California, the court’s custody decisions are no longer based upon biased preferences for mothers, but are based solely on the best interest of the child, which could result in any number of varying timeshare schedules.

In making custody decisions, the courts take many issues into consideration as they are evaluating each parent individually. The court takes this job very seriously, effectively putting each parent under a microscope throughout the custody process. If a court believes that both parents are equally fit to care for the child, and the geographic distance between the parents is minimal, there is a high likelihood the court will strive for an equal timeshare with both parents. Even if an initial custody order does not reflect an equal custody arrangement, the court’s goal is always to move closer to an equal timeshare schedule as time goes by.

Custody cases are far from black and white. With the diminishing stereotype that children belong only with their mothers, the courts are focusing on parents as individuals. While this may have the unintended effect of increasing an already complex litigation process, the court’s long-term goal of joint custody and equal timeshare is a reality that both parents need to understand when facing custody disputes.

The short answer is yes, but with some very strong limitations.

Family units these days are diverse – children, parents, stepparents, aunts, uncles, cousins, and grandparents are all part of the mix. In many cases, grandparents play a significant role in the daily functioning of a healthy family, and can have a tremendous impact on the lives of their grandchildren.

In light of the importance of the relationship between grandchild and grandparent, the California law does afford some visitation rights to grandparents with regards to their grandchildren. The public policy behind these rights is that it is sometimes in the best interests of children to have visitation time with their grandparents. A grandparent’s right to visitation, however, is far from unconditional.

Whether a grandparent has standing to file a petition for visitation rights is determined by the circumstances of the legal parents. A grandparent may file a petition for visitation rights if the legal parents are currently involved in a marital dissolution proceeding, or if either legal parent is deceased and the grandchild is unemancipated.

Grandparents do not have standing to file for visitation, however, if the legal parents are (1) married, (2) currently living together on a permanent basis, (3) have not been absent for more than a month without the other spouse knowing the whereabouts of the absent spouse, and (4) currently residing with the child, and the child has not been adopted by a step-parent. In these cases, a grandparent is not permitted to even file a petition for visitation rights.

Once a petition for visitation is filed by the grandparent, the general standard (like most child custody/visitation matters in California) is the best interests of the child.

A grandparent who is denied access to a grandchild should contact an experienced family law attorney to learn more about visitation rights.