Skip to main content
Devin Alan Weisberg

Devin Weisberg’s Answers

17 total

  • My ex is ignoring custody court orders. What should I do?

    My ex is ordered to have our 3 kids sleep in their own beds due to past issues with him allowing my boys to sleep in a bed with his girlfriend. He bounces back-and-forth between his mom's home and his girlfriend's home. There is never consistency ...

    Devin’s Answer

    Child custody and visitation awards are subject to modification for as long as the child is a minor. There are two levels of proof that a judge can base his decision on depending on whether the current orders you have are "temporary orders" or part of a "final judgment".

    If your orders are part of a "final judgment" then a judge must base his decision on whether there has been a "substantial change of circumstances." Only if you can show the Judge that there has been a substantial change of circumstances, will he consider your request to modify the custody/visitation orders. The judge will then perform a "best interest of the child" analysis. This analysis can be quite complex and will be based primarily on the factors mentioned in California Family Code Section 3011.

    If your orders are "temporary orders" then a judge will base his decision on what would be in the "best interest of the child." (See Marriage of Lewin (1986) 186 Cal.App.3d 1482 and Family Code Section 3011). There would be no need to show the judge that there has been a "substantial change of circumstances." In other words, it would be easier to modify the orders if they were "temporary orders" because you would only have to prove that a modification is in the best interest of the child.

    Therefore, you will need to first figure out if your existing orders are temporary or final because that will make all the difference in the judge's analysis of your case. You may also consider looking into a "contempt proceeding" which is more typically used when a party wilfully violates a court order.

    See question 
  • My ex-spouse refuses to work. For 9 years, I have paid child support for our two kids. How does the court determine amount

    My ex-spouse has her Dental Hygienist license, but has refused or been unable to keep a job for the past 9 years. We were married for 5 years before that. Does the state determine child support in CA based on what she could be making to contribute...

    Devin’s Answer

    The short answer is yes. The Judge may use imputed income as a basis for calculating guideline child support. The fact that she is a licensed Dental Hygienist will make for a strong argument that she has the ability to become gainfully employed. Absent any other factors, such as the child's need for constant supervision due to health issues etc, a Judge may be inclined to use her "earning capacity" as her income figure. In order to achieve the maximum result in this type of case, you will need a vocational evaluation performed by a "vocational expert" to assist the lawyer and the judge in determining your ex-spouse's earning capacity and ability to work.

    "When child support is at issue, the court may require either parent to attend job training, job placement, vocational rehabilitation, and work programs, as designated by the court, at regular intervals and times and to provide documentation of participation in a format acceptable to the court. The court will specifiy the durations of attendance. The required attendance is to enable the court to make a finding that good faith attempts at job training and placement have been undertaken by the parent." See California Family Code Section 3558

    See question 
  • The amount of rent stated as owed on my 3-day notice and Unlawful Detainer is incorrect - demurrer or quash?

    I believe the amount stated as rent owed on the 3-day notice was incorrect as a review of my account reveals that the total includes past late fees. Is this addressed by Quash or Demurrer and how long do I have to file the appropriate action if t...

    Devin’s Answer

    You may consider doing neither of those. Instead, you may proceed to trial on your case after filing an answer. At trial, you can present evidence that the three-day notice is terminally defective. In the State of California, a three day notice is terminally defective if it includes amounts other than the rent owed or if the rent demanded is overstated. In this example, the three day notice includes late fees. Therefore, a good argument can be made that it is terminally defective. Make an oral motion to dismiss in open court after the plaintiff has presented his evidence and it has been show that the amounts in the three day notice include amounts other than rent. The court should grant your motion to dismiss and you will be the prevailing party.

    Alternatively, you may use it as a bargaining chip prior to trial. An attorney would be best suited to negotiate on your behalf and to best utilize this defect to obtain concessions that would be beneficial to you.

    See question 
  • Will my friend go back to jail after breaking into some cars, he has a court date coming in the mail

    he got out of county jail a month ago and is on felony probation. He got charged with 8 felonies before he was put in jail. I want to know if he will have to go to prison for breaking into the cars

    Devin’s Answer

    When a judge sentences you to formal probation, you are required to report to a probation officer at regular intervals (typically, once a month). When probation is ordered, you are required to agree to the terms of probation which include, among other things, 1) obey all laws; and 2) report any new criminal charges. Failure to comply with either of these conditions can result in a violation of probation. If you violate probation, you will be arrested and detained while you wait for a "probation violation hearing". The judge is the one who decides whether a violation has, in fact, occurred. You are not entitled to a jury trial. If the judge finds that you are in violation, he will sentence you to incarceration. The length of incarceration will depend on the amount of jail/prison time that was suspended at the time that probation was granted. The judge may order you to serve the entire time or just a fraction of that time.

    The punishment for violating probation is separate and apart from the punishment you may receive from your new case that led to the violation. That means that, even if you beat your new case and avoid a conviction, you can still be found in violation of probation. Also, if you are found guilty in the new case, you may have to serve time for that crime in addition to the time served for violating probation.

    See question 
  • What is the possibility of having a jury trial for a first offense of petty theft? Thanks!

    What is the possibility of having a jury trial for a first offense of petty theft? Thanks!

    Devin’s Answer

    THIS RESPONSE IS FOR A FIRST OFFENSE PETTY THEFT CASE. A petty theft charge is oftentimes filed as a misdemeanor. However, there are some situations that will result in the offense being charged as an infraction. An infraction can best be described as a "parking ticket" type of charge. In other words, it does not create a "criminal record" and usually results in a small fine of under $200. The factors that could result in the charge being reduced to an infraction are many and can best be analyzed by a criminal defense attorney thoroughly familiar with the facts of your case.

    It is generally correct that an offense charged as a misdemeanor entitles you to a jury trial. However, an offense charged as an infraction does not.

    See question 
  • Domestic Violence

    I am a female and I am curious to know whether or not a few issues that happened in the past with my ex-boyfriend are considred serious domestic violence. In one occasion, my partener got on top and put all his weight on me and covered my mouth an...

    Devin’s Answer

    Domestic Violence is defined very broadly in the law and does include many, if not all, of the events you described. In the Family Law context, domestic violence is usually dealt with by way of a Request for Restraining Orders. A family law judge will only hear argument regarding matters that have been properly submitted in writing and in proper form. If you attempt to bring up your domestic violence incidents during an unrelated hearing, a judge will likely not listen to you.

    Also, domestic violence may be an important issue in the context of child custody and visitation. In that scenario, if you attempt to bring up the incidents orally in court without first having put them in a written declaration filed with the court beforehand, a judge will likely not consider your statements. If you file no declaration at all, a judge has the discretion to not let you speak in court at all. The reason for this is that the law requires that you give your opponent the opportunity to review your contentions and legal arguments with sufficient time to respond. Bringing these issues up for the first time on the day of the hearing does not afford the other side this opportunity.

    Knowing when and how to file a declaration with the court can be a frustrating process. There are many different legal time deadlines and required forms. I highly suggest you seek legal assistance by either hiring an attorney or seeking assistance from a domestic violence clinic.

    See question 
  • Just got my First Offense DUI, my BAC was .13, in Southern California - i need answers!

    I pulled over last night for making a left turn where i wasnt supposed to. The officer had pulled me over and had asked if i had been drinking, i had replied 2 drinks. With complete cooperation i got out of the car like he asked. From then had ...

    Devin’s Answer


    The Penalty you face depends largely on which court your case is out of. Some jurisdictions are notorious for being much tougher (often needlessly) on DUIs than other cases. For instance, the DA in one county will insist on a 6 month DUI program while a DA in another county may be satisfied with a 3 month program. The penalties describe by other lawyers who have responded are generally correct. If you were to take the case to trial and lose, your potential exposure is 6 month in jail. This is often the reason that early negotiations with the DA are essential. Any good lawyer can do this for you.

    A conviction on a DUI will result in a six month suspended driver's license. This may be confusing for you when you receive a notice of a four month suspension from the DMV. Just understand that the DMV suspends your license for a period of four months (if you lose your DMV hearing) regardless of what happens in your court case. Then, when you are convicted in court your suspension becomes 6 months. You should be able to receive credit for the time your license was suspended administratively. In other words, it won't be a 10 month suspension. The good news is that you will be able to apply for a restricted license immediately after your conviction so long as you enroll in a DUI class, file an SR22, and pay a fee at the DMV.

    See question 
  • Can my sister babys father get full custody if he has a felony and on probation but he is also getting cash aid for the baby?

    This is the Riverside County

    Devin’s Answer

    When determining child custody, a family court judge will have to first determine what is in the best interest of the child. Looking at your issue from this perspective, the main questions that must be addressed are 1) What type of felony conviction does the father have and how recent is it? 2) Is the mother able to provide an environment that is safer and more stable for the child? and 3) Which parent is more likely to ensure that the other parent has frequent and consistent contact with the child by allowing visitation.

    What type of felony does the father have and how recent is it?
    This question is important because a felony, alone, does not preclude a parent from being the sole custodial parent of a child. It is the type of felony that is more telling of the parent's ability to care for the child. For instance, if the parent is convicted of a violent felony, and in particular one involving domestic violence, then the law creates a presumption that that parent should not be awarded sole custody. Of course, there are exception to this rule which involve proving that the parent has been rehabilitated.

    Is the mother able to provide a safe and stable environment for the child?
    This is important because even if it is shown that the father cannot provide a good environment for the child, it is equally as important to show that the mother can provide good schooling, a safe home, etc.

    Which parent will ensure frequent contact between the other parent and the child?
    This is probably the most important factor that people often do not understand. If it is shown that the mother does not allow the father to visit with the child and it is shown to be unreasonable, then the court's can use this factor to change custody to the father. The policy in the State of California is to award custody to the parent that will ensure continuous contact with the other parent and not deny visitation.

    See question 
  • I was supposed to serve my ex and the courts with the findings and order after hearing within "the period prescribed by the

    rules." It has been 10 months since the court date. What can I do to enforce the order for child support and the tax exemption for my child which was granted to me. Is it too late to serve papers on ex and have judge approve the order?

    Devin’s Answer

    The fact of the matter is that there is a minute order out there that reflects the judge's decision in your case. That minute order needs to be reduced to a written order signed by a judge that you can turn around and enforce. Despite the fact that you did not submit a Findings and Order After Hearing within the proscribed time, you may still submit that proposed order at any time and the judge will have to sign it if it conforms with the actual findings and there is no objection from the opposing side.

    Remember, you must serve a copy of your proposed order on the opposing side first to seek their approval. If they fail to return a signed approved copy to you within ten days of mailing, you can then submit the proposed findings and order after hearing along with a proof of service that reflects that you had served the opposing side more than ten days ago.

    This may seem like a complicated task, but it is really quite simple. It may require one hour of attorney time to complete which could run you about $300. Alternatively, if you can show you are indigent, you may qualify for services at the Family Law Facilitator's Office in the courthouse in which your case is being handled.

    See question 
  • What does calcrim Nos. 416-420 mean.

    can you convict somone that testify against a codefendant who's taken the stand against you and has taken the stand several times before in the past with other codefendants to save his behind.

    Devin’s Answer

    I think you are asking whether or not prosecutors can charge someone with a crime for taking the witness stand and committing perjury. If I am correct, then the answer is yes. Perjury is a crime and you can be charged with perjury if you commit that crime. However, perjury is not always easy to prove and unless there is substantial evidence showing that the person who testified lied under oath, the prosecutor's office is not likely to pursue it.

    With regard to your question about CALCRIM No. 416-420, these are jury instructions. Jury instructions are given to the jurors at the conclusion of a trial. They instruct the jury on the law in plain english. Jurors then decide whether or not the elements of a crime have been met and whether or not a defendant will be found guilty or not guilty. Typically, the jury instructions are typed up by the presiding judge. He then gives a copy to the prosecutor and the defense attorney to look them over to see if there are any objections. This is also the opportunity for the lawyers to request specific jury instructions that the judge may have missed that may be helpful to either side's case. In short, jury instructions are a very important part of any criminal case.

    See question