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Divorce Briefs: Tame Your Social Media Use and The Worst States for Divorce

January 27, 2015, by Law Offices of James V. Sansone

facebook-divorces-united-kingdom-2012.jpgThere was an interesting article in Forbes the other day about the increasing importance social media posts play in litigation.

The article pointed to a 2009 case, People v. Franco, in which a jury convicted Franco of vehicular manslaughter with gross negligence.

Threat on Facebook Has Deadly Consequences

In this case, Franco posted on her Facebook page: "If you find me on the freeway and you can keep up I have a really bad habit of racing random people."

The next day, Franco was traveling 75 miles an hour on a freeway when Henry Chavez started to tailgate her. Whenever she changed lanes, he followed her.

Franco testified that she noticed that her speed was increasing so she tapped on her brakes to slow down, ostensibly to avoid getting a ticket. Not expecting her to brake, Chavez veered to avoid a collision with Franco, lost control of his vehicle and died.

This case is a reminder to everyone that what you say on social media, and especially Facebook, can and will be used against you in court.

In fact, what you post on social media can replace the official story you tell a judge in court.

Continue reading "Divorce Briefs: Tame Your Social Media Use and The Worst States for Divorce" »

Elonis Case Tests Boundaries of Social Media Use

December 9, 2014, by Law Offices of James V. Sansone

socialmediaapps.jpgCan you vent anger about your ex-spouse on Facebook, quote song lyrics that appear threatening, and get away with it?

That is the issue before the Supreme Court of the United States.

After Anthony Elonis's wife left him, took their children and secured a restraining order, Elonis decided to share lyrics from an Eminem song on Facebook and direct his post toward his ex-wife.

One interpretation is that he was simply venting his anger. However, his employer decided it didn't want an employee who threatened people on Facebook and fired him.

Four years ago, a jury convicted Elonis of violating 18 U.S.C. Section 875.(c), which criminalizes interstate transmission of communications that threaten to injure another person. (The Facebook post is considered an interstate transmission.)

The jury in that case sentenced Elonis to 44 months of prison and three years probation.

But was Elonis using Eminem lyrics to threaten his wife? Or was he merely expressing his frustration in general? That's what the Supreme Court will need to decide.

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Northern California Man Fakes Bankruptcy to Avoid Child Support

shutterstock_41419909.jpgDo judges take child support seriously? Oh, yeah.

Take the case of a businessman from Northern California who declared bankruptcy and hid assets just to avoid paying child support and alimony.

Steven K. Zinnel and his wife split up in 1999 and a contentious divorce ensued. He declared bankruptcy and it was finalized in 2005. He wasn't really bankrupt; he had moved his assets to shell companies in order to reduce his child support obligations.

The courts don't look lightly on people who hide assets, try to file bankruptcy, and attempt to avoid support payments. In fact, this particular father received a prison sentence of 17 years. In addition, he must pay a $500,000 fine and forfeit assets worth more than $2.8 million.

Call to FBI Leads to Arrest of Zinnel

Zinnel's problems began soon after he contacted the FBI and asked an agent to investigate his ex-wife for trying to get illegal access to his private health insurance information. When the FBI heard his ex-wife's side of the story, they became more interested in Zinnel's bankruptcy than her alleged offense.

The FBI discovered that Zinnel had laundered funds through a company owned by his attorney Derian Eidson. He and Eidson had set up a trust account through which he could essentially launder money from an investment in an electrical firm and some real estate. Furthermore, prosecutors discovered that Zinnel had placed much of his property in other people's names before and after his 2005 bankruptcy.

Continue reading "Northern California Man Fakes Bankruptcy to Avoid Child Support" »

How to Prevent a Custody Battle from Turning Ugly

November 5, 2013, by Law Offices of James V. Sansone

vegetarian-children-custody-battle-537x382.jpgLast week, a 27-year-old man from South Carolina, shot and killed his girlfriend, her parents, two children and then turned on himself. According to authorities, he was enmeshed in a custody battle with his girlfriend over their 7-month-old child and felt he wasn't being allowed to visit their daughter as often as he'd like. He was also facing a jail sentence for a burglary he committed.

Earlier this year, an ex-husband's father shot and killed his former daughter-in-law and her friend, and wounded two police officers while at a Delaware county courthouse. They'd arrived there to attend a court hearing on child support payments. Law enforcement officers shot and killed the gunman as well.

Child custody battles tend to be acrimonious. A father can feel jealous about his ex-wife's new boyfriend and seek retribution by demanding physical custody. A mother may be convinced that her ex-husband's payments are low considering his salary and bonus schedule. As the stress mounts and animosity builds, the feelings can explode with the direst of consequences.

Be on Your Best Behavior

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Is Facebook Safe? It might Not Be for Your Teen

February 12, 2013, by Law Offices of James V. Sansone

internetSafety3_frame.jpgIn 2008, the Illinois legislature enacted a law authored by state Sen. John Waterman barring most registered sex offenders from using Facebook or other social networking sites. The law was challenged and upheld by a district court in June 2012.

Displeased with that court's decision, the ACLU of Indiana filed an appeal. The 7th U.S. Circuit of Appeals in Chicago in late January overturned the lower court's decision and ruled that the Indiana law was unconstitutional.

Sen. Waterman has stated he will pursue new measures to protect children online from the dangers of sexual predators.

Sex Offenders Fight Back

Sex offenders have organized legal battles, fighting for their right to be online. They were successful in February 2012 when a federal judge in Louisiana struck down a state law barring sex offenders from using Facebook and other social media on First Amendment grounds.

Efforts to restrict sex offenders across the U.S. seem to reach the same obstacle.

Continue reading "Is Facebook Safe? It might Not Be for Your Teen" »

4 Immediate Actions Every Domestic Violence Victim Should Take

January 22, 2013, by Law Offices of James V. Sansone

index.jpgDomestic violence touches every income strata and race. Judges, lawyers, police officers and even a well-known NFL player - Chad Johnson - have faced charges and made headlines.

Nationally, an estimated 1.3 million women are victims of physical assault by an intimate partner each year and 73% of those victims are female.

Domestic Violence, Battery & Willful Infliction of Bodily Injury

In California, domestic violence is defined as physical abuse committed against someone you know: a spouse, boyfriend, roommate, or someone you're dating. When arrested, abusers face incarceration and a fine.

Battery is any willful use of force or violence against another individual. Generally, the penalty is a year in jail and a $2,000 fine. When committed against someone with a restraining order, a police officer or a probation department employee, the consequences are more severe. In addition, the courts may force defendants to pay an added fee that funds domestic violence prevention programs. (Calif. Penal Code Sections 243, 1463.27)

Willful infliction of bodily injury occurs when abuse results in a wound or injury. Penalties include up to five years in prison, and depending on the circumstances, a hefty fine of up to $10,000.

California Domestic Violence Statistics

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Falsely Accused of Child Abuse: Understanding The CPS Investigation

December 4, 2012, by Law Offices of James V. Sansone

false allegations.jpgAll too often allegations of child abuse get brought up in a highly contested child custody litigation. Too many men have become the targets of false allegations. False allegations of domestic violence. False allegations of sexual assault. And false allegations of sexual abuse.

Getting a phone call from an agent of Child Protective Services (CPS) is frightening. An indictment can result in the loss of your child or the implementation of a service plan that interferes with your relationship. Even unfounded cases can have traumatic effects on your record and your closeness with your family.

Anybody can report suspicions of child abuse. Some medical professionals, educational staff, caretakers and social service providers are required to file a report. CPS has 24 hours to begin an investigation of child abuse or neglect allegations after receiving the initial report. After interviewing all parties and gathering all relevant information, CPS caseworkers must determine whether maltreatment has occurred and can be substantiated. In most States, CPS staff are mandated by law to determine whether the report is substantiated or founded (meaning that credible evidence indicates that abuse or neglect has occurred) or whether the report is unsubstantiated or unfounded (meaning that there is a lack of credible evidence to substantiate child maltreatment--but does not mean it did not necessarily occur). During the investigation, the agent may:

  • Review family history that exists with the CPS
  • Conduct home visits
  • Contact the person who reported the abuse
  • Interview you and other caretakers
  • Question people who may have relevant information -- such as teachers, medical professionals and neighbor

What you should do if contacted by CPS

Continue reading "Falsely Accused of Child Abuse: Understanding The CPS Investigation" »

Proof of Criminal Neglect Is Not Necessary For An Initial Adjudication of Dependency

October 9, 2012, by Law Offices of James V. Sansone

images.jpgIn In re Ethan C. (2012) 54 Cal. 4th 610, 143 Cal. Rptr. 3d 565 , the California Supreme Court held that Welfare & Institutions Code section 300(f), which allows an initial adjudication of dependency if the child's parent caused the death of another child through neglect, does not require proof of criminal neglect. Here, the father's failure to strap his infant into a car safety seat, resulting in her death in a car accident, was a sufficient reason for adjudicating his other children dependent.

Cal Wel & Inst Code § 300(f) provides that any child whose parent or guardian caused the death of another child through abuse or neglect is within the jurisdiction of the juvenile court which may adjudge that person to be a dependent child of the court.

As a matter of background, a father decided that he needed to transport his 18 month old daughter Valerie to the hospital so that she could be examined to determine the nature of an injury to her arm. The father, William, borrowed a car that did not have a child safety seat, and Valerie rode on an adult's lap. On the way to the hospital, another car collided with William's car, killing Valerie. William was not at fault for the accident, but there was evidence that Valerie would not have died had she been secured in a safety seat.

Continue reading "Proof of Criminal Neglect Is Not Necessary For An Initial Adjudication of Dependency" »

What Happens If My Ex Refuses To Obey A Court Order?

September 4, 2012, by Law Offices of James V. Sansone

contempt.jpgIt can be a misdemeanor to disobey a court order. Disobedience of a court order is called contempt. A contempt proceeding is a special proceeding in which, technically speaking, the court and the person charged with contempt are the only parties. However, the person alleged to be aggrieved by disobedience to the order in question is permitted to participate in a role that is, in all but name, that of an amicus curiae. The proceeding is not an adversary proceeding of the usual kind, but courts generally use familiar litigation terms and concepts in discussing contempt proceedings. For example, the California Supreme Court has said that in a prosecution for constructive contempt, the affidavit on which the proceeding is based constitutes the complaint, the affidavit of the defendant constitutes the answer, and the issues of fact are thus framed by the respective affidavits serving as pleadings.

Appellate courts often characterize a civil contempt proceeding as "criminal," "quasi-criminal," or "criminal in nature." However, the proceeding is not a criminal action or a prosecution for crime, although the punishment for civil contempt may be the same as that for a crime: imprisonment or fine, or both. By referring to the proceeding as criminal, the courts mean merely that certain procedural rules applicable in criminal actions also apply in a civil contempt proceeding.

Generally, a person who is convicted of contempt may be punished by a fine not exceeding $1,000 or by imprisonment not exceeding five days, or both. In addition, a contemnor who has violated a court order may be ordered to pay attorney's fees and costs incurred to the party who initiated the contempt proceeding.

There are more specific statutory penalties with regard to contempt of family law orders. In any court action in which a party is found in contempt of court for failure to comply with an order under the Family Code, the court must order the following:

Continue reading "What Happens If My Ex Refuses To Obey A Court Order?" »

California's Safe At Home Program For Victims Of Domestic Violence

dv.jpgThe California Secretary of State Safe at Home program is a special program for victims of domestic violence, stalking and sexual assault.

The Safe at Home program is California's confidential address program. It is a state program under the direction of the California Secretary of State's Office. The primary purpose of the program is to provide a free P O Box to victims of domestic violence, stalking and sexual assault which participants can use in lieu of their residence address with state and local government agencies.

The substitute address helps to protect the participant from future abuse by protecting his or her address information on public records. The address may also be used to receive first-class mail from anyone to whom the participant provides the address. In addition to the P O Box address, participants of the program are eligible for a variety of services to help protect themselves from future abuse or stalking.

The Law Offices of James V. Sansone offers a full range of family law legal services including divorce, paternity, child custody and visitation matters, child support, spousal support, alimony, domestic violence, division of property, grandparent visitation, custody, and has experience with termination of parental rights proceedings. We are located in Santa Rosa, California and serve clients throughout Sonoma County, Mendocino County, and Lake County, including Santa Rosa, Petaluma, Cotati, Rohnert Park, Sebastopol, Healdsburg, Sonoma, Kenwood, Glen Ellen, Windsor, Bodega Bay, Ukiah, Willits, Clearlake, Lakeport, and Kelseyville.

US Supreme Court Holds That Law Enforcement Need A Warrant Before GPS Tracking Can Be Used

January 24, 2012, by Law Offices of James V. Sansone

Electronic-Discovery-and-the-Fourth-Amendment.jpgIn US vs. Jones, the US Supreme Court was asked to decide whether the attachment of a Global Positioning-System (GPS) tracking device to an individual's vehicle, and subsequent use of that device to monitor the vehicle's movements on public streets, constitutes a search or seizure within the meaning of the Fourth Amendment.

The Fourth Amendment provides in relevant part that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated."

In a unanimous decision, the Supreme Court ruled that police cannot attach a GPS device to a criminal suspect's car to track their movements without first obtaining a search warrant.

While the Government contended that no "search" occurred, the Court thought differently. It is beyond dispute that a vehicle is an "effect" as that term is used in the Amendment. United States v. Chadwick, 433 U. S. 1, 12 (1977). Based on this, the Court reasoned that the Government's installation of a GPS device on a target's vehicle, and its use of that device to monitor the vehicle's movements, constitutes a "search."

Associate Justice Antonin Scalia said that the government's installation of a GPS device, and its use to monitor a vehicle's movements, constitutes a search, meaning that a warrant is required.

"By attaching the device to the Jeep" that Jones was using, "officers encroached on a protected area," Scalia wrote.

This is probably not the end of these types of cases making their way to the US Supreme Court because the court did not rule on whether the exact search was reasonable, which means even if the Fourth Amendment applies in cases like this, it's possible that the use of GPS devices may be considered acceptable in some circumstances.

Continue reading "US Supreme Court Holds That Law Enforcement Need A Warrant Before GPS Tracking Can Be Used" »

Contents of MySpace Page Are Sufficient To Establish Its Authenticity

December 20, 2011, by Law Offices of James V. Sansone

online-social-networking-2-320x200.jpgGenerally in court, documentary evidence such as records, letters, bills, contracts, and similar writings have to be authenticated or identified before being admitted in evidence as genuine.

In today's society, information obtained on social networking websites is being used in court as evidence against the party who made the post.

This seemed to have begged the question, how do you properly authenticate a social networking post? That question has been answered in People vs. Valdez.

In Valdez, supra, a jury convicted Vincent Julian Valdez, Jr., of two counts of attempted murder, four counts of assault with a firearm, and two counts of street terrorism (Pen. Code, § 186.22, subd. (a)), arising from two separate drive-by shootings. Valdez asserts challenges to the sufficiency of the evidence to support his conviction of street terrorism by arguing that the trial court erroneously admitted pages from his MySpace social networking site that included his gang moniker ("Yums"), a photograph of him making a gang hand signal, and written notations including "T.L.F.," "YUM $ YUM," "T.L.F.'s '63 Impala," "T.L.F., The Most Wanted Krew by the Cops and Ladiez," and "Yums. You Don't Wanna F wit[h] this Guy."

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Unprotected Sex Is Not Willful and Malicious Act For Purposes of Non-Dischargeability

December 6, 2011, by Law Offices of James V. Sansone

throwing-a-punch.jpgIn the case of Cragen v. Maxwell the plaintiff (Cragen) believed he contracted a sexually transmitted disease from debtor (Maxwell) and threatened to sue her. To avoid suit, Maxwell agreed to pay Cragen $35,000. She signed a promissory note to which the plaintiff agreed to release her from any claims sustained by or resulting from contracting a sexually transmitted disease from Maxwell.

11 USC 523(a)(6) provides that debts for willful and malicious injury by the debtor to another can't be discharged in bankruptcy.

Pursuant to Section 523(a)(6), after Maxwell filed for Chapter 7 protection, Cragen filed a complaint alleging his claim was nondischargeable.

He alleged that Maxwell willfully and intentionally exposed him to human papilloma virus by engaging in unprotected sexual intercourse with him without informing him of her diagnosis. Maxwell denied having a past diagnosis and argued that her actions did not rise to the level of willful and maliciousness.

Continue reading "Unprotected Sex Is Not Willful and Malicious Act For Purposes of Non-Dischargeability" »

Drug Dealing Debtor Keeps Discharge - Santa Rosa Bankruptcy

October 4, 2011, by Law Offices of James V. Sansone

drug money.jpgA couple was arrested with possession of and trafficking in heroin and crack cocaine after receiving a Chapter 7 discharge. What is that? It is an elimination of debts as if they never existed. A "discharge," when granted by the Court, terminates all liability for repayment, all obligations, rights and duties associated with the claim.

The U.S. Trustee (UST) attempted to prove that wife and debtor Lisa Shiloh, illicitly sold drugs and profited from doing so in order to revoke her discharge. The debtor was found guilty on six counts of delivery of a controlled substance, one count of criminal conspiracy, four counts of criminal use of a communication facility, and one count of child endangerment.

The UST used evidence documents from the criminal trial that revealed the amount of drugs and the frequency of the purchases but there was no proof of the amount of money Lisa allegedly accrued from the sale of drugs up until the filing of her Chapter 7 petition.

The court said there was testimony regarding the sale of drugs but the UST did not prove that Lisa derived income from the transactions during the prepetition period. The court noted that the state needed to prove only that the debtor sold drugs, not that she earned income from doing so, which they didn't. The moral of the story, even criminals can receive a discharge.

The Law Offices of James V. Sansone is located in Santa Rosa, California and serves clients with their bankruptcy and criminal defense needs throughout the North Bay area of California, including Sonoma County, Mendocino County, Lake County, Santa Rosa, Napa, Petaluma, Cotati, Rohnert Park, Sebastopol, Healdsburg, Sonoma, Kenwood, Glen Ellen, Windsor, Bodega Bay, Ukiah, Willits, Clearlake, Lakeport and Kelseyville.

Former Trustee Sentenced For Fraud - Santa Rosa Bankruptcy

September 27, 2011, by Law Offices of James V. Sansone

FBI_LOGO.pngWell, maybe a bankruptcy trustee can't be sued in state court under an intentional tort theory; this does not mean a trustee can't break the law. Former bankruptcy trustee Marika Tolz was sentenced to 81 months in jail, followed by 18 months of house arrest. In May, Tolz pleaded guilty to one count of conspiracy to commit wire fraud in a $16 million conspiracy. Tolz had been a member of the panel of Chapter 7 trustees for the US Bankruptcy Court, Southern District of Florida, for more than 20 years.

According to court records, Tolz and others conspired to misappropriate money from bankruptcy estates, receiverships, and other matters in which Tolz had been appointed as trustee, receiver, or personal representative, by writing or causing the writing of unauthorized checks from various fiduciary accounts which contained funds she was appointed to safeguard, without authority or legal justification. The money was then used for her own benefit, and to conceal her previous misappropriations by using the money to restore the balance of other fiduciary accounts from which she had previously taken funds.

Debtors are not the only players in the bankruptcy system that have an obligation to be honest. A trustee, obviously, can't rob Peter to pay Paul. The Law Offices of James V. Sansone is located in Santa Rosa, California and serves clients with their criminal defense and bankruptcy needs throughout the North Bay area of California, including Sonoma County, Mendocino County, Lake County, Santa Rosa, Napa, Petaluma, Cotati, Rohnert Park, Sebastopol, Healdsburg, Sonoma, Kenwood, Glen Ellen, Windsor, Bodega Bay, Ukiah, Willits, Clearlake, Lakeport and Kelseyville.