Alameda County Lawyers

Divorce is regarded as one of the most horrible things that may happen to a couple, especially if a misunderstanding is not resolved immediately. Many individuals are filing their petition for divorce with their respective partners because they cannot resolve their differences anymore. They feel that they cannot stand with each other living under the same roof anymore; they are just uncomfortable seeing and being with each other.

Aside from the legal procedure that needs to be followed, the family is also experiencing emotional distress. The atmosphere will not be as friendly as before, because such divorce petition means separation—one moving out of the house while the other will remain. In addition, if they have children, their custody will also be a subject for argument in the family court. That is the saddest part of a couple filing for a divorce—giving the children to whoever has the better right under the family law.

In the case of child custody, many divorcing couples are getting a child custody lawyer aside from the divorce lawyer for their petition. Most of the states in the country have their own regulations with regards to family law. In California, they have their own set of regulations that applies to child custody cases. That is why if you are residing in California and planning to get hold of the custody of your children in case your husband or wife filed a divorce, you need to hire a California-based child custody lawyer.

Your child custody lawyer will be your representative in California family courts. He or she will be the one to explain to you the possibilities of getting the custody of your children based on the circumstances present as well as the laws and regulations covering child custody issues.

As mentioned earlier, California may differ when it comes to custody regulations; that is why you should hire a child custody lawyer that has wide knowledge when it comes to child custody laws in effect within the jurisdiction of the state.

One of these regulations is the awarding of so-called joint custody between the parents of the children. In California courts, judges are not granting equal time share just because one parent have petitioned on it. The custody will be given to either of the parents based on the existing laws as well as the circumstances presented by their child custody lawyers. Children are not considered to be a community property that needs to be divided equally at all times. In most cases, Californian judges usually awards so-called joint legal custody, where the parents will be agreeing on certain main issues that affects the child like religion and education.

Although there are certain provisions on the California Family Law that grants so-called outright legal child custody to mothers designated to be the primary caretaker, your child custody lawyer can still argue on the possibility of granting the custody in favor of the fathers. However, the odds of getting such favorable decision from California judges still depend on the circumstances presented in the family court.

Divorce is a painful experience for couples, so as arguing about the legal custody of their children. As much as possible, all misunderstanding must be resolved inside the family first. If getting to courts are inevitable, plan every action you will take. Let your California child custody lawyer take care of the matters in family courts and air your side and intentions as well in taking your children under your custody.

Originally published here.

This content is provided by Low Jeremy. It may be used only in its entirety with all links included. For more information on child custody & where to find one in your state, please visit http://child-custody.articlekeep.com

The state of New York decriminalized minor traffic offenses in 1934 with the creation of the ‘civil traffic infraction’. New York blazed the legal path that other states quickly followed in decriminalizing minor traffic offense by also adopting the civil traffic infraction.

The creation of the civil traffic infraction allowed the courts to do away with costly jury trials for traffic tickets. The courts reasoned that jury trials were not necessary because the infraction was a ‘civil offense’ carrying only a ’small’ civil fine as a possible penalty and no possibility of jail time.

The next causality of the civil infraction was the prosecutor. Lawyers are expensive and therefore, many states decided that the lawyer/prosecutor was not needed for civil traffic infraction cases — the cop could be the prosecutor. Some other states, such as California, correctly legally rationalized that the cop could not be the prosecutor (People v. Marcroft (1992) 6 Cal.App.4th). However, a California court also (People v. Carlucci , 23 Cal.3d 249) concocted the irrational decision that no prosecutor was necessary to conduct a civil traffic trial.

The decision to make the officer the prosecutor presents a great constitutional problem for traffic courts. Justice and the Constitution demands that courts are to be fair and impartial — not favoring one side over the other. The court, by allowing the state to be represented by a non-attorney (the cop), is favoring the state over the defendant. If the defendant elects to be represented in traffic court, the court demands that the defendant go out and hire a Bar attorney at their expense.. Such treatment of the defendant by the court is indisputably biased and blatantly unfair treatment and is solid grounds for dismissal of the defendant’s traffic case.

Civil traffic cases where there is no prosecutor present in the court are treated by traffic courts much like a small claims court action. In small claims courts both sides simply tell their stories to the judge and are allowed to cross examine one another under oath and the judge is allowed to ask questions of both sides.

Traffic courts treat the traffic court hearing like a small claims court only to the degree that it serves their purpose (collection of revenue). Where it does not serve the court’s purpose (threat of loss of revenue), they treat traffic court cases like a different legal animal altogether. For instance, in a civil small claims court the plaintiff must show up at the time of trial, or the case is dismissed. However, in a traffic trial where there is no prosecutor, the plaintiff (the state or the People) never shows up and never does the court dismiss the case.

Who is present in court to legally uphold the claim of the state or the People against the defendant when there is no prosecutor? The judge? The Constitution requires the judge to remain fair and impartial. How about the cop? For the reasons explained already, the cop cannot be the prosecutor and in regards to California, an appeals court in the Marcroft case ruled that the cop is the witness, no more, no less.

When there is no prosecutor, there is no one present in court who can legally uphold the claim of the state or the People against the defendant. In this instance, the state or the People (the plaintiff) have legally abandoned their claim against the defendant in the exact manner as a plaintiff in any other civil court proceeding except traffic.

Traffic courts are not concerned with justice or protecting people’s rights under the Constitution, but maximizing the collection of revenue is the traffic court’s real and true agenda. Lest anyone be inclined to believe otherwise, try challenging a traffic court judge sometime by moving to dismiss your traffic case because the state or the People have abandoned their claim against you by not having a prosecutor in court. Watch as the judge’s temperament and demeanor instantly change. The judge will be quick to remind you that the state grants the court the right to try a civil traffic case absent a prosecutor. If that doesn’t immediately shut you up, then the judge will invoke a judicially intimidating tone of voice accompanied by some strong facial expressions, as the judge instructs you to move on to something else.

The abandonment of the state’s or the People’s claim for lack of prosecution is a raw nerve that traffic court judges do not want exposed in open court. Such a claim exposes to everyone the fraud of the court and the court’s mere pretense at justice.

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Originally published here.

Most of us have seen some movie character jump up at his table in the courtroom to bellow, I’ll appeal this all the way to the Supreme Court! Now, that person is you, but you’re not certain whether an appeal makes sense. Or perhaps your adversary is appealing and you simply need to know what to expect. This article addresses five common misconceptions about appeals in California civil cases.

Myth No. 1: An appeal gets your case heard by the Supreme Court.

An appeal is heard before an intermediate appellate court and has only a remote chance of ever getting to the United States Supreme Court or California Supreme Court. You have a right to appeal to the intermediate court, but no right to have your case heard by either supreme court, both of which are very selective about the cases they hear. The percentage of cases that make it to either court is in the very low single digits.

Myth No. 2: An appeal is a second trial of the case.

An appeal does not even remotely resemble a trial. An appeal is decided by three judges who won’t hear any of the witnesses, won’t see the arguments the lawyers made in the trial court, won’t see the parties and won’t form any of the same emotions that the jury did at trial. Their view of the case will be based almost entirely on stacks of paper and written arguments submitted by the parties, with only a brief oral argument (a half hour or less, in most cases).

The judges on the appellate court aren’t there to decide who should have won at trial. They are there only to determine if some error was made in the trial proceedings. Thus, the best a party can expect in the majority of appeals is that the court will send the case back to the trial court for further proceedings, such as a new trial.

Myth No. 3: An appeal will drag the case out for years.

It’s possible, but not necessarily true. The court’s backlog and the amount of extraordinary activity in any given case will determine how long the appeal takes.

Appeals from federal courts in California generally take much longer than appeals from California state courts. While federal appeals often take two years or more, cases in some districts and divisions of the California Court of Appeal can be decided in well under a year from the time the appeal is filed, so long as there is no unusual activity in the case.

The timing of a decision on appeal may be relevant to issues such as settlement, fees, and collateral for the appeal bond. You should ask your appellate lawyer what to expect in your case.

Myth No. 4: You won’t have to pay the judgment while the case is on appeal.

Some people believe that they can forestall the collection of a judgment against them merely by filing an appeal. However, the filing of an appeal does not, in itself, prevent the winner from enforcing a money judgment.

To forestall collection, the party appealing must also post a bond to guarantee the judgment creditor’s ability to collect at the conclusion of the appeal if the judgment is affirmed. The amount of the bond is set by the court and is usually in an amount greater than the judgment to allow for the accrual of interest on the judgment while the case is on appeal. The judgment debtor who appeals must provide collateral for the bond.

Myth No. 5: Your trial lawyer is always the ideal lawyer to handle your appeal.

It’s tempting to think that the best lawyer for your appeal is the lawyer that handled your case at trial. Who knows your case better, after all?

That’s the problem. Your trial lawyer has so much time, energy, and emotion invested in the case, that he can lack the objectivity necessary to identify the best strategy and arguments for appeal. Combined with many critical differences between a trial and an appeal, these factors often make your trial lawyer less than the ideal attorney to handle your appeal.

Could your trial lawyer do a great job on your appeal? Sure, especially if she has experience with appeals. But many trial lawyers who recognize the differences between trials and appeals also recognize that they should refer their clients to appellate counsel, or at least consult with appellate counsel during the course of an appeal.

Originally published here.

Greg May’s law practice, G. T. May Law Offices, focuses on civil and criminal appeals and select civil litigation in state and federal courts throughout California. He authors the appellate law blogThe California Blog of Appeal. He can be reached at greg@gtmay.com. This article is not intended as, nor should it be relied upon, as legal advice.