Category Archives: Pets

Domestic Violence Restraining Order 101 (The Basics)

There are several kinds of restraining orders, one of which is a domestic violence protective order (DVPO).  There are basically two main requirements to get a DVPO: A Special Relationship and Abuse.

A)      A Special Relationship including:

  1. Dating,
  2. Shared children,
  3. Related by Blood,
  4. Married, or
  5. Cohabitants.
  6. NOTE: If you don’t have one of these special relationships, you may still qualify for a Civil Harassment Protective Order under Code of Civil Procedure § 527.6.

B)      Abuse such as:

  1. Stalking,
  2. Threatening,
  3. Sexual Abuse,
  4. Destruction of Personal Property,
  5. Harassing Phone Calls, or
  6. Physical Violence.

What Constitutes Sexual Abuse?

Sexual abuse is not limited to aggravated rape.  Many women are coerced into sex, give consent while under the influence, or have sex against their will with a physically forceful offender.  Coerced sex is sex involving intimidation or extreme psychological pressure, and is sexual abuse.

What Does a DVPO Do For Me?

DVPO’s can do lots of different things.  Specific remedies depend on the situation, but remedies can include:

  • Keeping the offender away from you
  • Keeping the offender away from other family members
  • Preventing the offender from calling you
  • Kicking the offender out of the house
  • Taking away the offender’s right to possess firearms
  • Making the offender pay certain bills
  • Giving you custody of children
  • Giving you custody of pets
  • Making the offender pay your legal fees related to the proceeding

How Long Does the DVPO Last?

The length of the order is determined by the judge, but can initially be up to 5 years.  Later on, orders can be renewed for even longer if a judge finds there is good reason.

Why Would I Want a Lawyer?

It is possible to get a DVPO without a lawyer, but it can be very helpful to have one.  The entire situation—confronting the abuser in court, testifying about what happened, and being in front of a judge can be very stressful.  Having a lawyer there to guide you through the process and worry about cross-examining the witness can make the entire situation less stressful.  In addition, some conduct not on the court form may be considered abuse and may strengthen your case against the other party.

What Does it Cost?

There are no court filing fees for a DVPO.  Depending on the situation, you may be to force the offender to pay you back the money you spent on a lawyer.  Our fees vary depending on the complexity of the case.  We don’t waste your time, we don’t take unnecessary steps, our billing is fair, and our rates are lower than many other lawyers in the county.

Where Do I Go in the Meantime?

First of all, if you are in danger and need help, call “911.”

 

If you are in Ventura County and need to move away from an abusive spouse and don’t know where to go, please contact Interface Children & Family Services.  Interface is in Camarillo, CA and has a 24 hour Domestic Violence Hotline @ 1 (800) 636-6738.

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Filed under Abuse, Family Law, Pets, Sex

Who gets the family dog upon divorce? (dogs are chairs)

Couples are increasingly treating dogs like their children.  But what happens when couples divorce?  Who gets to keep the family dog?

A recent case in New York illustrates how hotly contested pet custody can be.  Many times one spouse cares more about the dog than who gets to keep the house.  Given the enormous sentimental attachment people have with their pets, many times the uninterested party uses the pet as undue leverage to increase their stake in community property.

 

Best interests?

Some states have turned to “the best interests of the pet” which applies something like the best interests of the child—to pets.  New York is one of those crazy jurisdictions.  California cases have explicitly rejected this view.  In an illustrative unpublished decision, the California Court of Appeals, Second District, rejected the best interests rule, stating, “Wife cites no persuasive authority, and we have found none, to support the proposition that the best interests of Emmit [the beagle] must be considered by the family court”. In re Marriage of Isbell, Willoughby (2005) 2005 WL 1744468 at 1.

 

Dogs are chairs (chattel)

Courts look to property law principles to determine ownership of pets.  New Jersey Superior Court Judge John Tomasello recently stated, “Dogs are chairs; they’re furniture; they’re automobiles, they’re pensions. They’re not kids.”   Eric Kotloff, All Dogs Go to Heaven . . . or Divorce Court: New Jersey Un”Leashes” A Subjective Value Consideration to Resolve Pet Custody Litigation inHouseman v. Dare, 55 Vill. L. Rev. 447 (2010).  How do courts determine who the pet belongs to?

 

Separate property

When a pet was purchased before the marriage, determining custody post-dissolution is rather easy.  The pet is considered that spouses separate property and the other spouse has no right to the pet.  How do you prove dog ownership?  Courts look to see whom “bought and paid for the dog, paid license taxes for keeping it, and procured a collar for it with initials engraved on it.” O’Rourke v. Finch (1908) 9 Cal. App. 324.  The tricky part is that one spouse can transmute their separate property into community property by a signed writing.  So, if the spouse who bought the pet before marriage registers the pet under both spouses names, the other spouse can argue that the registration was a written transmutation of separate property into community property.  There is not yet a case on point.

 

Community property

If the pet was purchased during the marriage and is community property the parties will be urged to come to a settlement agreement regarding the pet.  Some states allow for courts to create a “parenting plan” for the pet, to be enforced by the court, similar to a child custody plan.  California does not provide for such a scheme.  If the pet is community property, usually the parties come to a settlement agreement assigning ownership to one of the parties.  If the parties cannot agree on who gets to keep the family beagle, “the court may submit the matter  to arbitration any time it believes the parties are unable to agree upon division of the property.”  California Family Code § 2554 (b).  So, if the judge thinks you can’t come to a consensus regarding the beagle, he can send it to arbitration.  An arbitrator will most likely dispose of the family beagle to the party with the greatest sentimental attachment.

 

Pet prenup?

If pet ownership is really important to one or both of the spouses, they may want to enter into a pre or post-nuptial agreement detailing who gets pet custody and how.  Courts will generally enforce contractual agreements and such a pre or post-nuptial agreement can even detail a pet parenting plan that California courts are unwilling to come up with on their own.  If one spouse is especially attached to a family pet, making such an agreement may prevent them from giving up large amounts of community property just to get the family pet.

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Filed under Family Law, Pets