WHAT HAPPENS IF YOU DISOBEY A COURT ORDER TO VACCINATE YOUR CHILD?

Posted February 9, 2018 in Family Law by Gina Policastri.

For many parents, the topic of vaccinations is a very personal one. There are strong stances on both sides of the vaccination divide, with some believing that vaccinations should be mandatory, and others believing that the decision to vaccinate should be their own. While the issue most commonly arises between parents and educational institutions, it is becoming more common for it to arise between separated parents. Although California has yet to decide a case involving violation of a court order for vaccinations, a recent Michigan case sheds some light on how California might rule on this issue.

In general, California has strict vaccination laws. California, along with the other 49 states, requires that school-age children be vaccinated against childhood diseases as a condition to attending school and day care programs. While some states do recognize your right to not vaccinate on religious grounds, and others recognize your right to not vaccinate on moral or philosophical grounds, California is not one of those states. The only permitted exemptions in California are for valid medical reasons. According to the National Vaccine Information Center, to qualify under a medical exemption, a parent or guardian must submit a written statement from a licensed physician (M.D. or D.O.) which confirms that the physical condition or medical circumstances of the child is such that the required immunization is not indicated, states which vaccines are being exempted, whether the medical exemption is permanent or temporary, and the expiration date, if the exemption is temporary.

The list of recognized medical exemptions in California is very narrow. You may find it at the National Vaccine Information Center website. It includes Autoimmune Conditions, Hyper immune conditions, Immune cancers, Immune deficiencies, Genetic SNP’s associated with increased vaccine reaction risk, and vaccine reactions. However, the state will not provide an exemption for ADD, behavior issues, psychiatric diseases, Asperger’s, Autism, neurologic diseases, hypertension, heart disease, liver disease, kidney disease, or adult onset diabetes.

Similarly, California’s contempt statutes contemplate strict compliance with a court order. Under California Civil Procedure Code sections 1218 and 1219, a party subject to a valid court order who, with knowledge of the order and the ability to comply, fails to comply with the terms of the order, is subject to a contempt adjudication and statutory contempt penalties. Under California Penal Code section 166, contempt of court refers to any behavior that is disrespectful to the court process, including but not limited to, willfully disobeying a court order. The consequences of this may include jail time and/or fines.

The recent Michigan case involved a mother who was ordered, through a custody agreement, to maintain the child’s vaccinations. Despite this, the mother told the judge that she was personally opposed to vaccinating her son, and thus would not comply with the court order. This resulted in the mother being held in contempt of court, and the judge ordering her to spend 7 days in jail. The issue at hand was not specifically focused on the child being vaccinated or not, but rather on the mother’s willful disobedience of a clear order to maintain her child’s vaccinations.

The issue of complying with a court order is one that California is clear on. As such, if you are ordered by a court to maintain your child’s vaccinations, you must comply, or risk being held in contempt. However, in the event you are held in contempt of court, you do maintain your due process protections in the contempt proceeding. Contempt proceedings are criminal in nature, which means you have the right to notice, the opportunity to be heard, the right to counsel, the criminal burden of proof (beyond a reasonable doubt), and in some cases, the right to a jury trial.

If you have an issue concerning your rights regarding vaccinations, compliance with court orders, or contempt of court, please contact one of the experienced attorneys at Lonich & Patton. We offer a free half-hour consultations.

Lastly, please remember that each individual situation is unique, and results discussed in this post are not a guarantee of future results. While this post may detail general legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.

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Filing for Divorce After a Temporary Restraining Order

Posted November 3, 2017 in Family Law by Michael Lonich.

For many people in abusive marriages, the question is not whether to file for divorce or stick it out in a violent marriage.  The question is how to file for divorce while remaining physically and financially safe from retaliatory spousal abuse. Audrina Patridge faced this exact question.  Until recently, Audrina was stuck in an abusive marriage where she faced an aggressive, controlling, and physically threatening spouse.  It is reported that Audrina wanted to file for divorce but she was scared that if she did, her husband, Corey Bohan, would retaliate with physical harm to Audrina, their one-year old daughter, or Audrina’s family members.  Like others in similar situations, Audrina was scared to file for divorce without additional protection.  Fortunately, the Family Court can provide additional protections for people in Audrina’s situation.  That additional protection comes in the form of a Domestic Violence Temporary Restraining Order (DVTRO). On September 18, 2017, Audrina was granted a DVTRO against Corey.  Audrina sought the restraining order as a protective measure for herself and her family members while she initiated divorce proceedings against Corey.

A DVTRO provides the abused spouse immediate, but temporary protection from the alleged abuser.  There are numerous protections available under a DVTRO, protections that go far beyond simply keeping the alleged abuser away from the abused spouse.  Additional available protections include, but are not limited to, child custody and support, an order for the alleged abuser to move out of the residence, orders that specify which spouse must pay debts, and property control.  The myriad protections available under a DVTRO address the reality of domestic violence situations; the abused individual needs to protect their physical and financial safety, as well as that of their children, or other family members, including pets.  For Audrina, the DVTRO enabled her to file for divorce with the confidence that she and her family would be safe from threats or acts of violence from Corey.  With the DVTRO in place, Audrina filed her petition for divorce on September 20, 2017.

When a DVTRO is issued precedent to or simultaneously with a petition for divorce, the terms of the DVTRO necessarily become the status quo at the start of the divorce proceeding.  Thus, it is important that an abused spouse obtain a DVTRO with as many protections as are applicable to their unique situation, as those terms will likely remain in place, regardless of the outcome of the domestic violence proceeding. By example, if the abused spouse requested a “move out” order and/or exclusive use and possession of the family residence, the alleged abuser will have to find alternate housing, and often, the alleged abuser will have to do so even after the DVTRO expires.  When child custody orders originate from a DVTRO, the Court will modify custody orders only in rare instances, and typically it will only do so after numerous court appearances, and/or other ancillary interventions that take place over many months, e.g., the alleged abuser having professionally supervised visitation, parenting/anti-abuse classes, etc.  In light of the above, it is critical that individuals who need a DVTRO to enable them to safely initiate divorce proceedings, consult with an attorney to carefully draft their DVTRO.

For more information about obtaining a DVTRO and/or a divorce in California, please contact our attorneys at Lonich & Patton.  Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results.  While this post may include legal issues, it is not legal advice.  Use of this site does not create an attorney-client relationship.

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How Can Parents Secure Parental Rights in Assisted Reproduction?

Posted June 5, 2017 in Family Law by Mitchell Ehrlich.

Many couples are choosing to begin the expansion of their families later rather than sooner. With this new trend, assisted reproductive technology has gained tremendous popularity in aiding individuals embark on this process.

Assisted reproduction refers to all treatments which involve handling eggs or embryos outside of the body and includes procedures such as: in vitro fertilization, intracytoplasmic sperm injection, donor egg or embryo, surrogacy, gamete intrafallopian transfer, and zygote intrafallopian transfer. As fascinating as these medical processes are, legal considerations need to be addressed when parentage is being determined.

Parentage in the law deals with the legal relationship between parents and a child. We discussed establishing a child’s parentage generally in an earlier blog post here. But the right of parentage earns a new level of complexity when done through assisted reproduction.

Many couples who engage in assisted reproduction use a donated egg or donated semen. And there can be some natural concerns that come up when you are on the side of the donation recipient. Does the donor have rights as the parents-to-be do? How do parents-to-be secure their parentage rights?

Their rights as parents can prevent the donor from seeking parental rights. However, if the sperm donor and the intended parent wants the donor to be treated as the child’s parent then there must be a written agreement stating this prior to conception. Also, if an egg donor wishes to be treated as the child’s parent the court must find satisfactory evidence that the donor and person seeking treatment meant otherwise. This may be demonstrated by the donor taking on a role of raising the child.

Parents using a surrogate may have parentage concerns too, but preparing before birth will ease these anxieties. As long as the parents-to-be sign the appropriate surrogate contracts they shall be the lawful parents of the child.

Ultimately, the ruled and laws regarding assisted reproduction and parentage rights are complex. All relationships are unique and some may not fit perfectly within the box of California law. Moreover, the scientific abilities of reproductive assistance are constantly evolving at a rapid rate. Therefore, it is important to talk with a knowledgeable attorney like those at Lonich & Patton to discuss your specific situation.

If you would like more information about assisted reproduction and parental rights, please contact the experienced family law attorneys at Lonich & Patton.

Lastly, please remember that each individual situation is unique, and results discussed in this post are not a guarantee of future results.  While this post may detail general legal issues, it is not legal advice.  Use of this site does not create an attorney-client relationship.

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What Parents with a Disability Need to be Aware of in a Divorce

Posted June 1, 2017 in Family Law by Michael Lonich.

Parenting while going through a divorce is hard, but also having a disability adds a new level of complexity that makes it is easy to feel overwhelmed and deflated. This is why it is so important to have a competent lawyer who will advocate for your parentage rights effectively and with care.

The thought of having parentage rights taken away will make any parent’s heart drop. But the chances of a disabled parent facing this nightmare is almost a guarantee. According to the National Council on Disabilities the removal rates of children from disabled parents are dispiriting. For children with psychiatric disabled parents the removal rates were between 70% and 80%; parents with intellectual disabilities were 80%; and parents with physical or sensory disabilities experienced high removal rates and loss of parental rights, as well.

If you are a disabled parent facing divorce or a child custody battle, it is important to find a lawyer who is sympathetic to your situation, who understands your condition, and will be effective in their advocacy for you. This is crucial because there are many unfortunate challenges a disabled parent can face in court.

Disabled parents may experience bias or speculation regarding best interest determinants. When dealing with a child, the court’s main objective is to produce a result that is in the child’s best interest; and a parent’s disability will be considered.

There is also a “no harm” requirement when determining a child’s best interest scenario, where the court factors the mental and physical health of all individuals involved to determine if there is a potential chance for harm to occur to the child. With this requirement, there is no obligation to show that the parent’s disability is actually causing, or will cause, any harm to the child or their environment. This can clearly disfavor any parent dealing with a disability.

If you are a parent who has a disability and is facing a divorce or custody battle, securing knowledgeable and effective counsel is imperative. There are a few key characteristics you should look for your future lawyer.

Of course, a knowledgeable lawyer in family law and child custody is a must, but you also want one who will focus on your parenting abilities and strengths. Your attorney needs to understand the specifics of your diagnosis in order to better advise and understand you. By being knowledgeable on your disability’s characteristics your lawyer will be more equipped to advocate on your parenting strengths and abilities. Finally, you want to find a lawyer who apprehends the benefits and pitfalls of various parental evaluations. Overall, your lawyer should give you assurance that your parental rights are protected and that you are given a fair opportunity to raise your child.

If you are considering a divorce or legal separation and would like more information about child custody and parental disability, please contact the experienced family law attorneys at Lonich & Patton.

Lastly, please remember that each individual situation is unique, and results discussed in this post are not a guarantee of future results.  While this post may detail general legal issues, it is not legal advice.  Use of this site does not create an attorney-client relationship.

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Parenting Plans for School-Aged Children After Divorce

Posted May 24, 2017 in Family Law by Michael Lonich.

Children are undoubtedly important members to a family, but when they are caught in the middle of a divorce short and long-term consequences can occur.

Since school-aged children are more mindful than younger children, they are more likely to be affected by a divorce. Thus, in order to limit the negative effects a divorce will have on your child, an agreed upon parenting plan is key.

Having your child affected by disagreements with your ex should never be a goal. Therefore, it is helpful for both parents to set out ground rules in advance. Make sure you both come to an understanding for acceptable behavior by each around your child.

Life is also uncertain, so in the event of an emergency is it important that the other parent knows of changes to phone numbers, work information, or home addresses as soon as possible. In addition to being notified of important contact information, each parent should have access to your child’s school and medical records and allowed to be contacted by your child’s school.

Keep one another informed about your child’s life and school. Education, sports, music programs, and other events are important to your child during this age. It is important for you and your ex to agree upon specific school or extracurricular events each will attend; either alone or at the same time. Remember being present at your child’s events will give them a sense of support in an otherwise turbulent time.

Additionally, clarity and order in a schedule is going to become the best asset you can provide your child. Figuring out a schedule on how you and your ex will handle exchanges, custody, and visitation should be a high priority on the list of “To Do.” These situations are stressful, but exchanges and transitions between homes can be especially hard for children when not carefully handled. Create a consistent weekly or monthly schedule in advance. This schedule should be clear on when and where your child is staying including where the child will spend summer vacations and holidays. Having a consistent schedule in advance allows your child to acclimate to this new lifestyle and will help other areas in their life to become less disturbed. Yet, some terms of divorce can make this objective difficult or even impossible to obtain without the aid of attorneys.

Above all, your child’s comfort should be a main objective. Make sure each home the child is staying at is equipped with all their necessities. This will help them feel secure, cared for, and comfortable. Some things to always keep stocked are: extra set of clothes; favorite books, toys, or games; and specific childcare supplies or medication.

If you are considering a divorce or legal separation and would like more information about how to create a parenting plan suited to your child’s needs, please contact the experienced family law attorneys at Lonich & Patton.

Lastly, please remember that each individual situation is unique, and results discussed in this post are not a guarantee of future results. While this post may detail general legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.

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