“I just got served with a Restraining Order. I can’t go to my house, see my kids, or get my clothes. What do I do?”
Tis the season for family fights, lover’s quarrels and the annual issuance of Domestic Violence Protective Act – Temporary Restraining Orders. Each year around this time, we begin to see more and more these situations where one party has become angry at the other, they high-tail it down to the courthouse and fill out the paperwork for a Temporary Restraining Order (TRO) and before you can say Welcome to Santa Monica, someone has been issued a court order.
By their nature, TRO’s are short, usually lasting less than three weeks, because by law, a hearing must be held within 20 days of issuance and can be obtained by any family member, romantic partners whether or not they live together, or co-parents, by showing “abuse.”
“Abuse” has an amazingly wide definition and is so large that you could fly a 787 through it. The courts define it as “sexual assault, violence resulting in injury, or acts
or statements causing fear of imminent physical injury.” The courts are necessarily liberal in their definition because they want to protect people, and the philosophy is to keep the situation as calm as possible, which it done by keeping people apart.
The problem with this, that I see, is that it is very easy for anyone to “stretch the truth” or outright lie, to get a TRO. Because the courts will issue a temporary order on just one side’s statements, it makes it easy for a party to use a TRO as leverage in a family fight. When you consider that one party could get a “kick-out order” based merely on a statement to a judge that they “saw my roommate break a glass in anger, and I was afraid they were going to attack me” it becomes clear how easy it is to manipulate the law.
People sign declarations ‘under penalty of perjury’ that what they are telling a judge is true. This means that the judge then MUST accept as fact what is in the declaration, at least for the issuance of the TRO phase. Hard as it is to believe, people will lie under oath.
This is not a gender issue, both men and women are completely capable of lying under oath, and do so with surprising regularity. It is a sad truth that people who are angry become irrational, and when in that state, they will do anything. When humans are in fear we are capable of doing the most horrific of acts against others.
That fear can lead to abuse of another type of protection order, one that is less frequently used, it is the Emergency Protective Order. When one party is being physically abused, or faking it, they can call the police. The police are the only ones who can provide this short term protection, but it must be requested by the victim. The responding officers will then speak to a judge and if the judge then find that there is ‘reasonable grounds to believe that an immediate and present danger of domestic violence exists AND that the order is necessary to prevent the occurrence or re-occurrence of domestic violence, he can order an EPO, which is good for 5 court days or 7 calendar days, during which time the victim must apply for the DVPA TRO.
So who gets these orders? Usually women are seeking them against the men that I see in my office. Occasionally we see it the other way around, but for the most part, men do not feel comfortable asking for the assistance of the police or the courts. It has to do with the power dynamics of relationships and the role that men play in society. Most men will feel emasculated asking for this type of help. They think that they don’t need someone else to protect their rights. It’s that whole macho ethic of being able to take care of myself. Sadly his strength is frequently what attracted these couples to each other, and then when the relationship sours, his great strength is his biggest weakness.
Most of the men that come to me after they have been served with a TRO have had more than enough reason to seek their own TROs, but haven’t done so, as they feel that it is ‘unmanly’ and makes them appear weak.
I just don’t agree that getting help makes a man less masculine. The best athletes in the world need coaches, the President has his cabinet, and most superheroes have a partner.

Here’s a great, and I MEAN GREAT article on holding Dads accountable! It’s the best way to increase the rights of fathers and protect fathers interests in raising their children. When more people hold fathers responsible, more fathers will BE EXPECTED to step up, and that will make it easier for all fathers to exercise their rights.

Dads, This Is Your Challenge To Step Up

Parenting has become war for some people. It’s a shame that some people use their children as a means to help make ends meet. I know the custodial parent will say that raising a child costs more than they will ever receive in child support and they are right. But that doesn’t stop some custodial parents from trying to increase their support any way they can.

For others it’s a matter of control. They hate the father. There’s a variety of reasons, from “it was just a one night affair – why wont he go away” to “he’s a low-life scum and I KNOW he’s molesting my baby.”

When a father is accused of sexually molesting a  child, it triggers a whole host of problems. Depending on who did the reporting, when it gets investigated by Child Protective Services, the case will either be closed for lack of grounds (this frequently happens when the reporter is the Mom and she is doing it only to cause problems or lay the foundation for Parental Alienation) or investigated further. If a mandatory reporter (doctor, therapist, psychologist, school counselor etc ) does the reporting there is a much greater chance of a full blown investigation because usually the child has said something that has triggered the investigation.

An unemployed dad, who is accused of sexually molesting his child, and who has to pay child support, needs help, badly. The first thing any father who is unemployed should do, is file a Motion to Reduce the Child Support he owes. In California it is called an Order To Show Cause, basically it’s an application for the order, and a declaration under penalty of perjury that your income has dropped and the child support needs to be recalculated.

This is important to do as soon as possible, so that you can get a court date and reserve what is called Retroactivity. That means the court can modify the amount of child support you owe going back to the date you filed – that’s called Retroactive Child Support Modification. This is important because you may not be in front of a judge for 3 months.

You need to do this, because if you are unemployed and facing sexual molestation charges, you need an attorney who specializes in that area, and they will need to be paid up front. This is a VERY very VERY serious matter. I call it the Nuclear Option and more and more moms are using against dads.

That article on 8 budgeting tips is getting picked up ! Alexandra Waddington posted it on her blog :

http://www.augustagadivorcelawyer.com/2009/07/augusta-ga-divorce-lawyer-8-budgeting.html

Keeping things neat and clean is crucial for divorcing couples. “Make copies of everything related to financial issues,” said Santa Monica, Calif.-based family law attorney David Pisarra. “When couples split up, bills are no longer jointly paid so if you are contemplating a divorce it’s critical to acknowledge the financial components that come along with it.”

Here’s a great article WWW.SUNHERALD.COM that takes my advice on record keeping for getting Divorce Ready: http://www.sunherald.com/love/story/1493567.html :

2. Organize important records.

Critical records like your will, birth certificate, passport, 401(k) statements and tax returns, should be stored in a safe and easily accessible spot, such as a safe. Keeping things neat and clean is crucial for divorcing couples. “Make copies of everything related to financial issues,” said Santa Monica, Calif.-based family law attorney David Pisarra. “When couples split up, bills are no longer jointly paid so if you are contemplating a divorce it’s critical to acknowledge the financial components that come along with it.”

Good article on planning and strategy.

Check out this article, she writes about how her brother killed himself, but was a great dad, and maybe the costs of being away from his kids lead to the depression.

http://www.cnn.com/2009/LIVING/07/02/sears.family.divorce/index.html

      I was walking my dog in the park last week, when I struck up a conversation with one of the city workers. He’s a young man who was so happy and proud that he just landed a full time position with the Parks and Recreation department. Now he could support his children better. He’s a young man with a couple of kids that he raises with his ex-girlfriend. Together they have worked out a system for childcare and sharing the responsibilities of parenting. It was a pleasant change from what I normally see.
      I was reminded of a day when I had two separate appointments with men, who were trying to work our co-parenting problems with their exes, and were coming to me after the fact to learn the effects of what they had done.
      One man was an older gentleman who’d raised his first son by himself. In this latest marriage the child was conceived by in vitro fertilization, in the first months, after his wife had left him once and returned, because she wanted a baby, and he thought that would fix their problems. As soon as she was definitely pregnant, she left him for good. It was eleven months into the marriage.
      The second man was a youngster, who was in his early 30s and had just been informed by his non-live-in girlfriend that she was pregnant. She told him that she didn’t really want him to be an active father. She did expect him to pay child support, but didn’t think he should have much to do with the pregnancy or the child afterwards. Though she was fine with him paying for her pregnancy classes.
      Neither of these men were stupid, teenagers or generally impulsive. Both seemed like genuinely decent guys who were just caught up in a relationship dynamic that caused them pain. Neither of them thought they had made a mistake, and both men genuinely wanted to be fathers. The younger one, was actually quite excited to be a father, as it would be his first child.
      I think I understand what drove these women to pick these men. Both were intelligent and good looking. One had a good history as a father and was a strong earner. The other was a good genetic catch in his physicality and emotional makeup.
      Each of these men will eventually get to see their children every other weekend, and once or twice a week for dinners. They might get to share holidays and every other birthday.
      If they pay their child support on time, they can avoid being on the latest Lifetime reality show, “Deadbeat Dads.” A show that is under fire from many quarters for its depiction of dads as uncaring and selfish.
      From where I sit, these guys are getting the short end of the stick. They were used as sperm donors and are now being used as ATM’s. But they don’t see it that way. They see that they are being denied the opportunity to be an active participant in their children’s lives; that they are being denied the rights of fathers for millennia to raise their children. They are cut out of their role as father, and then blamed for not being there.
      Which is a crying shame, because both of them would make great dads given half a chance for more interaction with their children.
      It’s ironic that men like these are the ones who are called selfish and uncaring, because it strikes me that the mothers who deny these men the pleasures of fatherhood, also deny their children the benefits of having a devoted and loving father in their lives. It is those women who so desperately want a child that they will deceive a man into impregnating them, without thinking that he might actually want to be a father, that are the most selfish.
      Which is not to say that there aren’t men who want nothing to do with their children, there are. But for those men who actually want to be a father, and there are a lot of them, when they are used as sperm donors, it’s really painful, and selfish. And the crime of it all, is that the child is the one who loses the most in that situation.

David Pisarra is a Divorce Attorney who specializes in Father’s Rights and Men’s Issues with the firm of Pisarra & Grist in Santa Monica. He can be reached at dpisarra@pisarra.com or 310/664-9969.

In August of last year I wrote about my belief that parents should be forced to take an equal division of time in their children’s care. I don’t think it’s fair or equitable that the lion’s share of child rearing falls to the mother. Fathers should be required by law to take their children 50% of the time.

Those Republican poster-children, Bristol Palin and Levi Johnston had a child out of wedlock, and are now going through the negotiation process of how much access Levi is to be allowed to his son. He says that Bristol, she of the “Family Values” family, wont let him take his son. We see this type of controlling behavior is all too often in our practice, and it is a detriment to the father/child bonding.

I understand that the Johnston child is only a few months old, but that is no excuse in this day and age for a father to be denied solo parenting time. Frequently the mom claims that the father is not a good parent, or too immature, or too uneducated on how to provide for a newborn. I think those are weak arguments at best and disingenuous at worst. If a man is old enough to father a child, to be required to pay child support, then he should be old enough to take up the mantel of parenting.

Today, as it stands, fathers who want to obtain, or increase, their visitation and custody orders need to keep in mind the following: Proximity, Paperwork and Persistence. They can make or break your chances of getting the orders issued by the judge. Most fathers start out a custody case at a disadvantage. When dad moves out, the children are left with mom, and that becomes the way the court is inclined to keep the situation. The moment that dad moves out of the family home, is the moment that mom gains an advantage in child custody hearings.

Here’s why, the courts don’t want to upset the children’s living environment. They focus on keeping the child stable, and that means in their historical home.

So how then does a man recover from the mistake of moving out of the house? He must show to the court that he can effectively parent the child, with as little disruption to the child’s routine as possible.

PROXIMITY

This means how far or close dad lives to the child’s home and school. This is a major factor in increasing, or acquiring, custody and visitation. The closer dad is to the home and school, the more easily he can be present for the child, and the courts give this great weight. If the choice is for a child to be in a car for five minutes getting from mom’s home to school or a 25 minute drive from dad’s home, the court is going to prefer mom’s home. It is also more likely that the child’s friends and social network are close to the school they attend, which is a factor for the court.

PAPERWORK

Cases are won or lost on documentation. Dads should keep a Calendar or a diary of all the time that they are with their child. In any contested case, mom has something that she will use to show the court how little time dad spends with the kids.

A simple calendar which shows the days that dad took his child, and what they did on those days can make all the difference for a change in custody. If dad keeps the receipts for what he did with his child, it will allow his lawyer to prove that he took the child to see the movie Cars on a day when mom says he didn’t visit. This is a crucial credibility issue, and one that with a little bit of work by dad, can yield big gains. The court will see that dad is truthful, and he’s come a long way towards winning the credibility wars, and that can lead to more time with his child.

PERSISTENCE

The biggest factor that effects whether or not a dad will win more visitation or even equal custody, is his ability to come back, time and time again. The successful dad in family court, is the dad who never gave up, and was willing to do whatever it takes, no matter how difficult it was, or how long it took, to prove to the court that he wants and is capable of being a loving, attentive and present father.

The successful dad who wants to increase his custody and visitation, will live close to his child, keep good records, and never give up when dealt a bad hand.

WHY WOMEN PICK A FIGHT – THE RESTRAINING ORDER!

       The man comes home after a long day at work, usually it’s the last part of the week, when he’s really exhausted. The kids are doing their homework but there’s an air of discontent coming from her. He’s done something wrong, but has no idea what. She starts in on him, attacking him verbally. Getting him angrier and angrier. She screams at him not to yell at her, then it happens, those words, “don’t hit me.”

            The next thing he knows. She’s broken some dishes, thrown food around the kitchen, run to the bathroom with the phone, locked the door, and is calling the police.

            By the time the police arrive, she’s been crying in the bathroom, and prepping her story. She’ll tell the police that there was a fight, he broke the dishes and tossed the food in his angry state. Maybe she’ll have hurt herself to make her story more believable.

            If the police investigate and find that there was some domestic violence, real or faked, the man is going to jail. Next stop – Temporary Restraining Order –ville.

            Why? Because the laws have become such that whoever gets a restraining order first, has an upper hand when it comes to the custody of the children, possession of the house, and psychologically in the divorce process.

            In California Family Code Section 3044 makes it a presumption that if there was domestic violence in the family, the person who was abused, is the preferred party to have custody of the children. With that comes the control of the children’s home location, and an increased amount of child support. That’s what this is all about.

            When a marriage is over, it boils down to money and control. If she gets a restraining order against him, the court will look at him as an abuser. Which means that he is not a good father.

            The provisions of FC 3044 states that for 5 years the domestic violence can be used against the man to show how unfit he is as a parent. It will be used by her  long after the 5 years are up. She’ll throw it into every pleading and declaration she files in court, knowing that it will effect the court’s perception of her ex. She’ll use it to allow her to move out of state, to get more money from him by denying him custody of his children, and to make him feel like an abuser so that he will walk away from more of the assets of the marriage.

            Men can get Temporary Restraining Orders against the women in their lives, just as easily as a woman can. But generally they don’t, because they live under a false impression that doing so makes them weak. Our society says that men should be strong, and “cowboy up”  – which means don’t cry, don’t look to others for help and never appear weak.

            It is a huge mistake in Family Court to live by that false credo. Men need to fight for their rights, and protect themselves in a divorce or custody proceeding. And sometimes, they need the power of the court to protect them also. 

            If a woman is becoming physically violent, there is no shame in the man walking away and calling the police. In fact, it is the smartest thing he can do. For himself, and for his children.

If he has been attacked, in any fashion, he needs to be aware that the groundwork is being laid for him to go to jail. He needs to stop being a nice guy, and recognize that the relationship has changed, and that he and his soon to be ex are no adversaries in a battle of perceptions. If he doesn’t begin to take advantage of every tool the courts have to protect him, he can be sure that she will.

Here I am quoted in an article in the Hartford Courant on the rate of Divorces and Child Custody Disputes in January.

David Pisarra, a Santa Monica, Calif., divorce lawyer, said he believes the sense of a “fresh start” may contribute to the tone of certainty among his January clients.

“When the calendar turns over, they are kind of ready to emotionally clean house,” he said.

Many of his January clients, Pisarra wrote in an e-mail, will “approach an impending divorce in a more positive manner than they do throughout the year, which we attribute to the ‘new beginning’ mentality that surrounds the new year.”