Judge Hyman
Just Beat It

While it appears that the majority of the media are now more interested in the medical aspects of Michael Jackson’s death than the custody of his children, the child custody litigation aspects are far from over.

The media have been concentrating on the potential litigation in the probate court.  However, it is very possible that litigation could also be filed in family court and possibly in dependency (abuse and neglect) court as well.

In California, as well in every state in the US, custody decisions are based upon the “best interest” of the child or children.  Decisions are not based upon the best interests of the adults involved.

True, the law in all states gives a statutory preference for biological parents and the request/suggestions of the deceased parent.  However, the requests are not binding on a judge.

The potential for multiple filings in different divisions of the court and possibly in different counties makes it very likely that this dispute will not be over very soon.

This blog discusses the potential “what if” child custody possibilities using a hypothetical case.

Mother and father are divorced in Orange County California.  Their case is long over with the parties having stipulated to a parenting plan.  Mother has not been very involved in the lives of the children for the past several years.

At the time of his death, father is presently living in Los Angeles County but also has an estate in Ventura County.  He dies with a will that expresses his desire that his children be parented by his mother and requests that the court order that she be their guardian.

It is possible for probate cases to be filed in Los Angeles and Ventura with respect to the property issues of probate as well as the guardianship appointment.  A motion might be brought requesting the cases be joined in one county for the conservation of resource issues, both with respect to the property and guardianship as well as the court.

The biological mother/ ex-wife may bring a motion and request for a parenting order in the county where the family court last issued a parenting order.  It is possible that the father’s mother may petition to be allowed intervene as a party of interest given the preference request made in the father’s will.  Mostly likely a court will make an order allowing the intervention.

Which court’s order is most likely to prevail, assuming that both probate and family court issue orders that are not in agreement?

It depends!  Where the first cause of action was filed might be controlling or which court issued the first order might be the controlling feature.

If the family court and probate court actions are located in the same county, then a court rule may very well dictate the case procedure with respect to the division, and judge having jurisdiction.  While remaining in two separate files, both would usually be given to the family law court.

If cases are in two different counties, hopefully the two judges would speak to each other and decide which court should continue with the case.  I am unaware of any case law that requires one court to give jurisdiction to the other court.

The family court usually has better resources for the assessment of child custody issues.  While the probate court does have probate examiners who make recommendations to the court regarding the approval of guardianships, they are not the most trained in this area.  Also, most guardianships last for short periods of time with the ultimate goal being the dismissal of the guardianship and for the child to return to the family.

If a complaint is made about the safety of a child, it is possible that the dependency court might become involved.  While the law may be unclear regarding jurisdiction between probate and family court; there is no question that the dependency court has the power to issue appropriate orders that will trump any orders issued by another court.

The dependency system also has experts that are able to advise the court regarding parenting plans and unlike the family court and probate court, the dependency court is able to provide families needed resources along with court orders requiring parties to complete programs or to possibly have parental rights terminated.

What is clear from the above hypothetical is that the law needs to be reformed to better serve children with necessary investigations by qualified personal as well as quality evidenced based programs to help unify families if that is safely possible.

Matchmaker Matchmaker Make Me a Match

The recent Supreme Court nominee hearings of Judge Sonia Sotomayor have given the public the impression that the Senate Judiciary Committee minority party is looking more for a perfect partner in a marriage-like relationship rather than a new Associate Justice of the Supreme Court.
As the nominee herself has suggested, “judges can’t rely on what’s in their heart.”  Further, her intent has been to inspire students “…about the value that life experiences have … to the process of judging”. She has recognized that her speeches have contributed to the many misunderstandings surrounding how others may perceive her judicial style.
So is Judge Sotomayor likely to participate in judicial activism?  Assume that judicial activism results from judicial decision making not based upon the facts being fairly applied to the law but rather a purposeful effort to pervert the facts and/or the law to reach a result favorable to a judge’s bias on a particular subject matter.
Many media commemorators have missed the mark when reviewing the evidence used in this important evaluation of what her future judicial decision making style might actually be.
Judicial activism is far more likely to happen at the trial court level than by an appellate court for several obvious reasons having to do with numbers.  Whether at the circuit court level or at the Supreme Court, a justice is one of either a three judge panel or one of nine Supreme Court Justices.  Even if the circuit court reviews a case by the entire circuit court bench, a judge is one of many.
Granted, in the case of a split decision, say five justices to four, a particular judge can make a huge difference.  Yes, this issue is likely to happen, given the current composition of the Supreme Court, in cases that liberals and conservatives view as the most serious ones; abortion, death penalty, gun possession, employment law, and state’s rights.
A judge, whether on the federal or state court trial bench, is in the best position to do mischief if so disposed.  Judges have the greatest discretion in the area of fact finding.  If a case is appealed to an appellate court, a judge generally will be reversed only if a judge abused discretion during the decision making process.  For example, a judge makes a finding against a party based upon faulty reasoning or violating a principal of law or insufficient evidence to support a decision.
By viewing Judge Sotomayor’s record as a trial judge, the Senate Judiciary Committee is in the best place to examine what appellate courts had to say about her decision making when she was alone, without another judge’s support for her decisions.
Did she abuse her decision making by not following the law; did she sentence at the higher or lower end resulting in a reversal?  Did she favor men over women or persons of color over white parties? If she had a death penalty case at the district court level, not only what was her ruling, but given her discussion of the facts and the law was there evidence of a desire to favor pro or anti death penalty supporters. 
As Judge Sotomayor said during her answers to questions posed to her, every person has strong feelings about certain issues based upon their life experiences and exposures to certain situations. If a judge was a prosecutor or defense attorney in a former life,  can any feelings or views held be set aside and then that person fairly evaluate the facts and apply those facts to the law? This is the question central to the conformation process that needs to be asked and answered.
Is a “skin head” or gang member accused of a horrible crime going to get a fair shake when public opinion is unfavorable?
We ask potential jurors similar questions every day in our courts.  Can they set-aside any biases that they might have against a party and decide the case fairly.  In the end it is the answer to this question that is the most important and should be central to the Committee’s inquiry process rather than the efforts being made to micro inspect decisions or speeches for the occasional mispoken word.

Sentencing in California Domestic Violence Cases

California sentencing law provides a structured approach to sentencing.  True, there is still discretion left in the hands of the sentencing judge, but the amount of discretion depends on the particular crime and the criminal history, if any, of the defendant.
A discussion of sentencing options starts with a review of the charges.  Certain charges are probation ineligible or limited probation eligible.  For example, attempted murder is probation ineligible. The sentencing judge has little discretion as the punishment is prescribed by statute.
A charge of theft with the amount of the taking in excess of $150,000 is an example of a case where there is limited probation eligibility depending upon the defendant’s unique circumstances with consideration of the crime’s circumstances and the defendant’s criminal history.  
Charges are not required to describe the crime as domestic violence for them to qualify as a crime of domestic violence.  California first looks to the relationship between the victim and the defendant.  The “relationship test” is a broad one and includes having or having had a dating relationship.
Hypothetically, if the defendant damages the victim’s car maliciously and they have or have had a dating relationship, the crime is considered domestic violence under the California sentencing scheme.
Domestic violence cases are a class of criminal cases with very special conditions required if a defendant is granted probation. Therefore, the crime’s classification as a crime of domestic violence is of great importance.
Most domestic violence cases are misdemeanors and carry a maximum county jail sentence of up to one year.
Felony cases are made up of crimes that may be filed as felonies or misdemeanors or composed of crimes that are straight felonies and incapable of reduction to a misdemeanor.  This distinction is of significance for part of the sentencing may be a promise to reduce the crime from a felony to a misdemeanor if the defendant performs well on probation.
Misdemeanor cases are usually sentenced at the time of plea.  If granted probation, the defendant will be required to pay certain fines and fees as well as attending a domestic violence intervention that is approved by the probation department lasting one year.
In addition, the judge must order a protection order, in favor of the victim, that may allow for a complete stay-away order or for “peaceful contact” under certain conditions as the judge feels are appropriate under the circumstances.  The order may be modified at the request of the parties or the judge.  The judge is not required to make order as the parties request but must evaluate the specific situation and order what safety requires.
If the couple has children together, the judge may order that the family court custody orders, if any, be followed or may make different orders completely.  Criminal protection orders that contain child custody and visitation orders trump family court orders and must be followed.
Sentencing decisions may be reached in a number of ways.  The prosecutor may make a proposal and the defendant may accept or suggest alternatives.  Local culture determines the party making the first offer and the usual terms of the offer including jail or prison time.
Judges also make settlement suggestions and proposals.  Here again, local culture is very important for a sentence in one county might be perceived as harsh and in a different county as lenient.
Judges do not dictate the charges that the defendant will plead to.  That is the sole providence of the executive branch, the prosecution.  Therefore the judge may make a sentencing offer that the prosecution does not approve of but the defendant will be required to plead to all of the charges listed in the charging document.  The judge may not dismiss charges without the prosecution’s approval.
Judges also have an independent duty to review a settlement reached by the defendant and prosecution and may refuse to honor an agreement that the judge thinks is not in the best interest of justice.
The most important decision that is usually made during a domestic violence sentencing pertains to the amount of custody time a defendant will receive.
A felony sentence may include a prison or county jail commitment.  Any term of custody longer than a year is served in a state prison.
Unless prohibited by statue, a judge is not required to impose jail or prison as a condition of a probation sentence.
A defendant is required to be advised of the maximum sentence that may be received for his case even is he is to be given probation without any custody requirement.  In the event of a proven probation violation, the sentencing judge may continue probation on the same or new conditions or may give a sentence up to the maximum provided for the criminal statute that was the basis for the conviction.
The probation term for a felony may be for a period up to five years.  The probation term and its conditions may be modified based upon a change of circumstances.  Domestic violence cases require a minimum period of probation of three years by statute.
Most urban counties in California have probation departments with specialized domestic violence units which supervise domestic violence probationers closely while maintaining contact with victims to help insure safety.

Anatomy of Domestic Violence Preliminary Examinations in California

Chris Brown is scheduled to attend, on Monday afternoon, a preliminary examination regarding his two felony counts of assault against Rihanna that is alleged to have occurred on February 8, 2009.

This blog posting describes the preliminary hearing process in California.

Most court cases settle. Only about 5% of cases, whether civil or criminal, actually go to a trial.  This figure suggests that there is a strong likelihood that Mr. Brown’s case will settle as well.  Every court appearance is an opportunity for a case to settle regardless of whether the proceeding is a pre-trial or settlement conference.

Since most cases settle, the preliminary examination may be the only opportunity for the public to gain knowledge about the case’s merits through testimony and other forms of evidence including pictures, if available.

There is also a possibility that the case may be continued. Absent an emergency or settlement, the proceeding can be expected to proceed.

Usually continuance requests require a motion which allows review by a judge for the necessity of the continuance.

Under both the Federal and California Constitution, a person accused of committing a felony offense is entitled to either a grand jury indictment or a preliminary examination before being required to face a felony trial and its potential expense and embarrassment. 

A defendant is not entitled to both forms of review. Under the Federal Constitution, a preliminary examination is not specifically required leaving only a grand jury preceding that is defined as a minimum requirement that a state must provide.  The California Constitution allows for either method.  Many states follow the Federal view.

The People have the burden of proof at a preliminary examination. The burden required is probable cause that a felony has occurred and that the accused is the person who committed it.  A judge, sitting as a magistrate, determines if this burden has been met.  If it has not, the defendant is discharged.  The People then have the option of appealing the magistrate’s decision or they are allowed to file the charge a second time.

If the People have met their burden of proof, the defendant is bound over for trial.  The defendant has the right to file a motion testing the magistrate’s finding.  If the motion is granted the defendant is discharged and the People have the right of appeal or to file another petition.

Many people mistakenly believe that the evidence standard at a preliminary hearing is proof beyond a reasonable doubt which is instead the required burden of proof in a criminal trial of the charges.

The people are not required to call the actual victim as a witness in order to prove their case and to meet their burden of proof.  In 1990 state Proposition 115 was passed which made significant changes to the legal scheme of preliminary examinations.

As codified, a preliminary examination is not for defense discovery.  California criminal rules do not allow for depositions or interrogatories so the Proposition changes were very significant ones.

The victim’s statement may be read by a qualified police officer and will suffice as testimony for purposes of proof.  Obviously if this occurs, the defense is unable to cross examine the complaining witness.

In most cases of sexual assault, molest, and domestic violence, the prosecutor will call the actual victim as a witness.  It is realized that if the actual victim does not appear and is therefore not subject to cross examination, it is less likely that the case will settle.

What happens if the alleged victim refuses to testify?  In the past a person could be held in contempt of the court and be taken into custody.  A new law now requires that there be a three day period of delay in the contempt process to allow for appellate review of the court’s order to testify.  Subsequent refusal may result in detention.

If a witness recants, effectively denying what was said to the police, other witnesses may be called to impeach the witness with prior statements made to the police, medical personnel, or others who were present.

The defendant has a right to testify at the hearing but almost always declines to do so. 

Most preliminary hearings end with a finding that the People have met their required burden and the defendant is bound over for trail.

The defendant is again arraigned and this time the charging document is called an information and may contain any charges proved by the evidence given at the preliminary examination.  The ultimate charges may be the same or different from the arrest charges.

The defendant has the right to question the sufficiency of the evidence to support the charges brought by the information by filing a sufficiency motion to strike part or all of the information.

The Brown preliminary examination is estimated to take one half day to conduct.