Recent Posts in Substance Abuse Category
| April 18, 2012 |
| Divorce and Family Law HORROR STORIES - How the System Is Broken! SHARE Yours With Us? |
| Posted By Thurman W. Arnold CFLS |
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Share Your Family Law Horror Story?
I want to thank all of you who write me about the difficult circumstances and horror stories surrounding your divorce and other family law matters, both in and out of divorce court. I receive dozens of emails each month from non-client readers, many who need help and so have questions, many who are merely venting, and many who have deep problems with how the government sponsored system for resolving family law disputes has unfolded and been applied for them, or misused.
I am not able to respond to every email, and for those who really want was is in effect a consultation with me (by seeking detailed answers to complex questions, for instance) I suggest you consider a phone or Skype conference with me or Mike Peterson at my office. I bill $350/hour for those consults and Mike bills at $250/hour.
However, for those who simply wish to have their often tragic stories heard I've decided to open up a portion of my website for posting them. Your experiences may be useful to others, and I imagine others similarly situated will read them with great interest. I think there should be a forum for people to communicate the good and bad of what they've been through.
Therefore, you must understand that I have a busy law practice along with a website that requires my constant attention and so am practically limited in my time and ability to respond or educate people about the law, your options, tactics you might try to change the course of your case or situation, and so on. I may not be able to enter into an ongoing dialogue with many of you, and don't want you to be offended if my responses are truncated, but if you wish to share your situations and experiences and if they are appropriately written, I will post them in a new section of my website that I am creating.
Your stories - if you'd like me to share them with the world for you - shouldn't simply be rants, but they certainly can express the poignancy of your situation. They need to be coherently (but not perfectly) written, not be abusive, respect other's rights to privacy, and provide enough information that a reader can follow them. I will create editorial guidelines as this concept develops. If you wish to have your story posted you will have to give me the rights to use it as I see fit.
Again, I will refine how this will work. For now I will watch to see whether creating such a forum is something the public really desires - both in terms of people sharing their experience as well as others caring to read about them. Hence, this concept is a work in progress.
If this makes sense to you and is something you wish to undertake, send me your stories at twarnold@verizon.net - don't use my on-line intake forms or blog comments because the length is limited in what I receive.
Thurman W. Arnold, III, C.F.L.S. |
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| December 03, 2010 |
| ELKINS and New FAMILY CODE SECTION 217: How It AFFECTS YOU! |
| Posted By Thurman Arnold, CFLS |
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The most important new rule in decades affecting the experience of California Family Law litigants is set to be unleashed on January 1, 2011.
It promises a radical change in the way that all family court proceedings - whether they be dissolutions, legal separations, annulments, support applications, custody, and modifications of all of the above - are processed and decided by Superior Court judges and commissioners.
This is a result of the Elkins Task Force, which has been quietly operating in the background of the California family law world since roughly August 6, 2007, when the game changing case of Jeffrey Elkins v. Superior Court (2007) 41 Cal.4th 1337 was decided by our California Supreme Court.
Elkins was a landmark decision which held that the Contra Costa County Superior Court could not through its local rules limit parties in marital dissolution actions to introducing evidence in written declaration form that had to be submitted in advance of trial, or prohibiting except in "unusual circumstances" one party from cross-examining the other about the contents of those declarations. Such a rule, intended for the sake of calendar management and judicial economy, not only had the practical if unintended consequence of favoring parties with attorneys who understood how to work with these rules but fundamentally it violated due process by cutting off litigants' abilities to present all relevant, competent evidence on material issues. Judges, as the triers of fact, are not able to assess witness demeanor and credibility without live testimony.
What is earth shattering about this decision in these economic times is that the Contra Costa Superior Court had urged that its policies and local rules were essential for the "expeditious resolution of family law cases." Soon to be former Chief Justice Ronald George rejected this justification:
"We are aware that superior courts face a heavy volume of marital dissolution matters, and the case load is made all the more difficult because a substantial majority of cases are litigated by parties who are not represented by counsel. [Reference omitted]....
In light of the volume of cases faced by trial courts, we understand their efforts to streamline family law procedures. But family law litigants should not be subjected to second-class status or deprived of access to justice. Litigants with other civil claims are entitled to resolve their disputes in the usual adversary trail proceeding governed by the rules of evidence established by statute. It is at least as important that courts employ fair proceedings when the stakes involve a judgment providing for custody in the best interest of a child and governing a parent's future involvement in his or her child's life, dividing all of a family's assets, or determining levels of spousal and child support....
Trial courts certainly require resources adequate to enable them to perform their function. If sufficient resources are lacking in the superior court or have not been allocated to the family courts, courts should not obscure the source of their difficulties by adopting programs that exalt efficiency over fairness, but instead should devote their efforts to allocating or securing the necessary resources."
Justice George ended by directing the California Judicial Council to create a task force (the 'Elkins Task Force) "to study and propose measures to assist trial courts in achieving efficiency and fairness in marital proceedings and to ensure access to justice for litigants, many of whom are self-represented. Such a task force might wish to consider proposals for adoption of new rules of court establishing state wide rules of practice and procedure for fair and expeditious proceedings in family law, from the initiation of an action to postjudgment motions. Special care might be taken to accommodate self-represented litigants. Proposed rules could be written in a manner easy for lay-persons to follow, be economical to comply with, and ensure that a litigant be afforded a satisfactory opportunity to present his or her case to the court." Hence, the Elkins decision is essentially a Jeffersonian ruling that its intended to empower family law litigants and to require counties and courts to adapt.
The Elkins Task force completed its work and has issued lengthy recommendations. The first changes take place on January 1, 2011. Possibly the most important change is embodied in Family Code section 217. It states:
"(a) At a hearing on any order to show cause or notice of motion brought pursuant to this code, absent a stipulation of the parties or a finding of good cause pursuant to subdivision (b), the court shall receive any live, competent testimony that is relevant and within the scope of the hearing and the court may ask questions of the parties.
(b) In appropriate cases, a court may make a finding of good cause to refuse to receive live testimony and shall state its reasons for the finding on the record or in writing. The Judicial Council shall, by January 1, 2012, adopt a statewide rule of court regarding the factors a court shall consider in making a finding of good cause.
(c) A party seeking to present live testimony from witnesses other than the parties shall, prior to the hearing, file and serve a witness list with a brief description of the anticipated testimony.
If the witness list is not served prior to the hearing, the court may, on request, grant a brief continuance and may make appropriate temporary orders pending the continued hearing."
Family Code section 217 will cause a sea-change in day to day family court proceedings across our state, unless family court judicial officers ignore it to the limited extent possible by court rules. It will likely have immense financial and resource consequences upon not only the courts but upon parties to family court proceedings. It will force the state government in coming years to study whole new paradigms for resolving divorce and domestic partnership dissolution outside the adversary template, including those currently practiced in New Zealand and southern Australia.
It will also pressure parties to consider mediation, and collaborative processes which occur outside congested courthouses, much more carefully. The costs of adversary litigation are about to sky-rocket, making mediation even more appealing from a financial perspective (I have written extensively about the emotional and psychological benefits here an elsewhere). There simply is no governmental money available to absorb the coming Elkins Onslaught. For more information about an alternative method for resolving family disputes, please visit us at
www.DesertFamilyMediationServices.com.
At the same time, at least in the short run taken together with some of the other revisions that become effective next month, it may encourage more people to litigate more stubbornly and so make mediation seem less attractive than it did before the changes (just the reverse will be true). Some folks will mistakenly assume that this invites the use of court hearings as a live-testimony forum for sharing unresolved complaints relating to their marriage or domestic partnership dissolution with the other party in open court. Instead, judges will sustain objections to such irrelevant material and parties who seek to use Family Court as a platform to air relationship grievances will find themselves alienating the trier of fact in ways that will have adverse consequences to them beyond just the time and expense of the exercise.
The purpose of today's Blog is to introduce you to section 217 and the new changes. I will follow up with more articles in coming weeks. Without a doubt the new rules will make all the information I provide on my websites more relevant and timely for my readers.
December is new legislation month at the Southern California Family Law Blog presented by Family Law Attorney Thurman W. Arnold. My goal is to inform you well, and early on, on any number of topics that will improve your outcome in family law matters and hopefully help you to reach results that are fair for you, your spouse or ex-partner, your children, and your blended and extended families.
T. W. ARNOLD, III, CFLS
(State Bar of California, Board of Legal Specialization) |
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| June 01, 2010 |
| AFCC Conference in Denver, June 2-5, 2010 |
| Posted By Thurman Arnold |
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I am excited to be attending the 47th Annual Conference of the Association of Family and Conciliation Courts (AFCC) from June 2 to 5, 2010, in Denver, Colorado.
This year's AFCC Conference is entitled Traversing the Trail of Alientation: Rocky Relationships, Mountains of Emotion, Mile High Conflict.
I am signed up for the following seminars, which I hope to blog in the evenings:
Hot Minds or Hot Heads? How the Brain Reacts to Conflict and How to Use Strategic, Skill-Based Tools to Help Mediation Clients
Family Bridges: Principles, Procedures and Ethical Considerations in Reconnecting Severely Alienated Children with Their Parents
Best Interest Parenting Time Schedules: The Intersection of Developmental Needs and Parenting Style
Evaluating Allegations of Parental Substance Abuse in the Context of Parental Alienation
How Do You Know What You Say You Know? A Family Lawyer's Guide to Confronting Mental Health Evidence
Attachment Relationships in the Courtroom
Getting Real About Parental Alienation
Calm in the Face of the Storm: Spiritual Intelligence and Daily Practice for the Peacemaker
Our goal is always to share whatever information we learn of that may help families and couples in relationship transitions. Hopefully we can do this in real time this week!
T.W. Arnold
www.ThurmanArnold.com
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| April 14, 2010 |
| How Do I Get the Court to Order My Husband to be HAIR FOLLICLE tested? |
| Posted By Thurman Arnold |
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Q. I know my ex-husband uses drugs and I fear for the safety of our children. We are having a custody dispute. Is it possible to have him give a hair follicle sample for drug testing? How do I get a court order for drug testing?
A. It is not possible in California to force another parent or custodian of minor children to take a
hair follicle test for drugs or alcohol absent their agreement to do so.
Family Code section 3041.5 is the direct authority for a court's ability to order drug testing. However, it contains an important limitation: If
substance abuse testing is ordered by the court, the testing shall be performed in conformance with procedures and standards established by the United States Department of Health and Human Services for drug testing of federal employees. These procedures and standards do not presently include hair follicle testing and so a Court cannot order it over a party's objection. As a practical matter, California Family Courts order urine testing. The effectiveness of
urine testing is limited because traces of different substances remain in body for differing amounts of time - traces of drugs remain in hair much longer.
However, hair follicle testing will be ordered where both parties agree or stipulate to it. This is more common that you might expect.
Sometimes this occurs at a court hearing where the Judge turns to each party and says something like 'Mr. Jones, would you be willing to take a hair follicle test: More often the attorney for the accusing party will say something like "your Honor, we are hoping that Mr. Jones will take a hair follicle test so we can put this issue to rest." The Court will turn to Mr. Jones and ask him if he will agree. 7 times out of 10, in my experience, Mr. Jones will say "sure your Honor, I have nothing to hide and she is making this all up."
Why would Mr. Jones agree to do this, when the Court otherwise is powerless to order it? Mr. Jones may not know his legal rights. Mr. Jones may have read on the internet that he can mask his substance abuse and beat the drug testing by using products he can buy on the web or at a health food store. Mr. Jones may have friends who said they beat the test. Mr. Jones may just feel like if he doesn't agree, he
looks guilty. Mr. Jones may have recently
cut his hair short or
shaved his head - which is a good reason to ask the Court order that Mr. Jones not visit a barber until the
hair sample is taken (hair samples can be taken from various other body areas). Mr. Jones may be himself in denial and so might lie easily and from habit.
And, Mr. Jones may think that his hair sample will come back clean because he is not "using" or he used so long ago the drug test will be negative - and he may or may not be right on this point. Traces of drugs may remain in the hair for up to six months. Some Valium to help one sleep taken 3 months ago may be forgotten.
Its a really bad idea to agree to hair follicle testing unless you are absolutely convinced there could be no traces of drugs in your body.
If you use drugs or abuse alcohol, you need to tell your attorney the truth of your situation; most attorneys want to help you overcome that problem early on in a case by directing you to recovery resources and help. Custody disputes actually present an opportunity for people to deal with their
addictions (the same ones that may have lead to the breakup).
I once had a client who insisted her husband was using cocaine regularly, but she claimed she never used it. In her declaration we set forth much evidence of his continued using in excruciating detail. He admitted to having had used in the past, but said he had stopped a few months before.
At our hearing the Court asked both parents if they would agree to take a hair follicle test. Having adamantly stated under penalty of perjury that she never used, my client agreed and I allowed her to because she had told me (in answer to repeated direct questions to her first) that she never used cocaine - even though the Court would not have otherwise ordered it.
To my amazement her drug test results came back "dirty" for cocaine, as did her husband's. He now appeared to have been truthful, and she obviously had lied under oath. When I asked what she was thinking her answer was "oh, I used it on my birthday three months ago and was sure that that one time would not show up." The facts turned out to be that she knew all about his drug use because she had used alongside him.
The family judge was really unhappy with her. Because she lied to the Court, she lost all advantage in the custody proceedings and the judge viewed her as untrustworthy from that day forward. And so did I. This also adversely affected the amount of child and spousal support she received. Her husband ended up looking like the good guy, although I suspect he continued to use. Hair follicle tests don't indicate the dates of use, but merely that someone used at some time during some period.
If you have been using drugs, don't agree to a hair follicle test unless you are prepared to be completely honest.
It is possible to get a confidential hair follicle test from an
independent laboratory before you write a declaration or go to a hearing, and then present your clean test to the judge at that hearing
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positive for drugs, you don't need to share it with the Court or anyone else. But in that situation an ethical attorney will not let you make false statements either. You don't need to volunteer certain
evidence, but once you make a statement it better be true.
By the way, I will not tolerate lying by my clients in my family law practice. Ethical lawyers will not aid and abet a client in making false or misleading statements.
In my experience there is always a positive solution presented by bad facts when you are truthful. With drug abuse situations, one solution is a commitment to becoming clean and sober. Judges appreciate people telling the truth who are taking steps to overcome these sorts of challenges.
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| April 14, 2010 |
| Will the Court DRUG TEST My Wife? |
| Posted By Thurman Arnold |
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Q. How do I get a Court Order for drug testing my wife? I know she is using and I fear she is a danger to our son.
A. Your argument for drug and alcohol testing of parents or others having custody or visitation with children in California is found in
Family Code section 3041.5. The statute is only five years old, and before it enactment the only practical way to get drug testing was by the other party's agreement.
It is possible to convince a family court that the other parent should be
tested for drugs or alcohol where you present sufficient evidence that there "is the habitual, frequent, or continual illegal use of controlled substances or the habitual or continual abuse of alcohol by the parent, legal custodian, person seeking guardianship, or person seeking visitation in a guardianship." FC section 3041.5(a).
This evidence includes but is not limited to proof that the other person has been convicted in the past five years of the
illegal use or possession of a controlled substance.
The other important statute you need to cite to the Court is Family Code section 3011(d), which speaks to the requirement in determining what custody and visitation is in the
best interests of children courts must consider evidence of the
habitual use of controlled substances (non-prescription or otherwise) or alcohol - but first you must submit "independent corroboration".
In my experience what often happens when drug allegations are made is that Family Judges prefer to get the parties to agree to drug testing and only order it when they will not (or when recommended by family court services or a mental health professional). If the parties will not agree, judges may order the testing as long as there is some corroboration that a potential drug issue exists. I am always amazed that people who are using (who are
"dirty" as we say) will agree to test when they may not need to because there is insufficient independent proof of the use of drugs. At the same time, maybe this is a good time to "stop"?
Please see my blog on hair follicle testing. |
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| April 07, 2010 |
| Am I LIABLE for my husband's GAMBLING DEBTS? |
| Posted By Thurman Arnold |
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Q. My husband won't stop gambling. Am I liable for his gambling debts?
A. The community property that the two of you own is liable as to satisfy his gambling obligations, assuming there is any left. Whether you are liable to the Indian Casino or Las Vegas hotel beyond your share of the community depends upon whether you have an independent contractual relationship with them - i.e., a line of credit in your name.
As between you and your husband, unless you consented to his gambling he may owe you (if your separate property is somehow attached to satisfy the debt) or to the community estate a reimbursement or indemnification right.
If he is a professional gambler and this is his "work" the outcome would be different. The outcome may also depend on whether the community benefited from the gambling, i.e., if winnings were used to support the community, then a court may deem it fair to share the obligation as to "losings".
This right of reimbursement would similarly exist if he squandered money on drugs, or prostitutes, and so on - assuming you can prove it and trace the money! The question is whether you consented and ripens when you can establish that his conduct violated fiduciary duties owing you. One never knows, however, how a judge will treat this on a case by case basis but the law if moving towards greater accountability.
If his gambling does amount to a breach of fiduciary duties owing you as a result of your marriage or domestic partnership, you have substantial remedies. Try our search at the top right of the page to learn about those topics.
Thurman W. Arnold III |
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