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Thomas Allen Neil

Thomas Neil’s Answers

586 total


  • Can a person with an adult rape conviction be awarded supervised visitation with his minor child?

    I know an illegal alien from Mexico who was convicted of raping a family member. Despite the fact that the family member went to the DA and said it wasn't rape, they prosecuted and convicted him. He did 3 years in prison, and he has been out for...

    Thomas’s Answer

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    Yes, he could be awarded visitation. His conviction does not bar visitation. The judge has authority to grant him visitation.
    Whether the Judge grants it or not will depend on if the Judge believes it would be in the child's best interest. To help make that decision, the judge will send the parties to mediation. The mediator will talk to both sides and get each parties input. The mediator also will probably contact father's Parol Officer and ask if the terms of father's parol prevent father from being with a child and ask the Parol Officer's opinion on whether it would be safe for him to be with his child. The mediator will then write a report, with recommendations about what should happen regarding custody and visitation, to the Judge to help the judge make the yes/no decision. Judges follow the mediation report's recommendations 80% of the time so what happens at mediation is very important. The best thing to do at mediation is be polite to the other parent, and let the other person speak, don't lie, and have ideas for REASONABLE proposed parenting plans to talk about.

    Thomas Neil, Sacramento family lawyer

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  • Do I have any chance of receiving money awarded to me in divorce court?

    I was divorced in 2006. Our divorce decree states I am entitled to 1/2 his retirement, at the time valued at $26,000. My divorce attorney told me that it would cost me $1000 for her to file a QDRO on my behalf, in addition to the $5k I had alread...

    Thomas’s Answer

    IMMMDIATELY call the employer(s) he was working at while you were married and ask who / what company administers the pension or other retirement benefits he may have had, and ask who to talk to about the pension or other benefits and for that person's name, phone number and address. Then send that person or company a brief letter, perhaps attaching a copy of your Marital Settlement Agreement, and also writing both you and you ex's full name, and date of birth, and where a when he was employed at that employer, AND state in your letter that you are claiming a right to a part of his pension or other benefits. If you do that, then UNLESS husband has already withdrawn all his pension or other benefits, his old employer should either not give your ex his pension, or cease paying him the full amount each month for a while (not forever) to give you time to get a QDRO in place. Then, find an attorney to join the pension (make the pension subject to the court's orders) and to write a QDRO, and to send the QDRO to husband and to the court for their signatures.

    But, If the pension tells you that your ex already took all his pension or other benefits, then see a lawyer regarding obtaining a court order for husband to repay you, the pension money that was yours. NOTE: Keep in mind that your ex would have to be served things so, if you do not know his current whereabouts, it will be more difficult.

    Thomas Neil, Sacramento family lawyer

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  • Ex has being negative and not cooperating regarding children's education, what can I do?

    I have primary custody of the kids, in the order, the joint legal custody part, does say parents need to confer in making decision on enrollment or leaving school or daycare center. Kids all at school, father are on all the contact lists. He has a...

    Thomas’s Answer

    FIRST: You, or a judge, cannot force a father to involve himself at the school.

    SECOND: Carefully read your current custody orders (the order might say it adopts an FCS report. If so read the FCS report also). If the current order DOESN'T say you can't alone, then talk to dad about what you want to do regarding school and, if you two cannot agree on the school decisions, then you can act alone. But then father can also act alone and take the child back out of a program you enroll the child in. In that case you will need to set a "Request for Orders" hearing to ask the judge to decide whether or not the child will attend some school program you like.

    Similarly, if you want father to pay half the cost of some school program, and he doesn't agree to pay half, then you will need to set a "Request for Orders hearing" to ask a judge if he will order father to pay half or some part of the cost. The judge will consider both your and father's income, and the cost of he program and whether the program is worth the cost. A judge will not order a parent who has low income to pay more than basic public school fees.

    Explaining all the forms you need to arrange a "Request for Order" hearing, and how to fill the forms out and file them and serve them is beyond my time and space to write here. If you can afford it, find a local, experienced, family lawyer to at least help you write and serve the forms. Good luck!

    Thomas Neil,
    Sacramento family lawyer

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  • Re-opening a Child Custody Case with new information.. What do I do and how do I do it?

    I was recently awarded custody of my children (Sole Legal with shared Physical Custody. The father was awarded parenting time every other weekend). The father received 1 Felony and has served time in jail during 2012-2013 regarding a Domestic Viol...

    Thomas’s Answer

    Arrange a "Request for Orders" hearing to modify custody. Obtain copies of his criminal charges, any other prior criminal history has, and any booking information from the jail to attach as exhibits. The family judge should warn him not to say anything in Family Court because it might incriminate him his criminal case. So, he may not be able to defend himself in family court pending the outcome of the criminal case. Suggest that the judge ordered him supervised visits pending the outcome of the case.

    How to write all the necessary papers to bring a Request for Orders (and possibly for an ex parte if he is likely to be released from jail) is beyond the space of these Avvo short answers. Consult with a local, experienced, family lawyer, to write your papers for you. And then, if you cannot afford more, go to court by yourself. It is more important to have your papers properly written, filed, and served by an attorney then to have the attorney in court with you. Because, if you don't write the right papers, and attach the right evidence, and serve and file the papers properly, then it is too late and an attorney cannot solve these fatal errors in court. And if the judge receives proper papers from you before the hearing, he will understand what you're trying to say even if you cannot speak properly in court.

    Thomas Neil, Sacramento family lawyer

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  • Hello Need divorce advice. My spouse has a restaurant partnership that is run as an S Corp with his brother in Sacramento.

    We were married 18 years at time of separation 2014. They have 6 restaurants and are expanding. Partners get paychecks and the rest goes into S corp account for expansion. I haven't work and we have 2 minor children (I am 48 and husband is 54) ...

    Thomas’s Answer

    I would go to the Secretary of State's office and look for any documents filed on these S Corps. They might give you information about those Corp's income and where it goes that might be useful in requesting attorney fees and dividing those assets. And I would subpoena the Articles of Incorporation and Corporate by laws which might describe what happens if a partner's shares are divided up by divorce. Or it might be a dead end. But you are not working so you have time to do the research.

    Thomas Neil, Sacramento family lawyer

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  • Does My Ex Husband have grounds to seek custody? Cps has been called on him 2 times & is abusive with me, that i can prove.

    My Toxic ex husband has hired an attorney & written me an email stating, he would drop the custody suit if I signed his out laddish contract that would confined my kids & I to one little town in California and if i moved out of the area in the fu...

    Thomas’s Answer

    Your question does not give enough information to say if father has grounds to seek custody: What are the current custody orders? What reason(s) does father's custody suit give for changing custody? How old are the kids? Where do you and he each live? What has been the regular parenting pattern over the past year? Did your move violate a court order? Has there been police or CPS involvement, or restraining orders? Where are you planning to move to, and why?

    If his custody suit states no reason for changing custody (for example, drug use by you, or kids say they want to live with him, etc.), and if the kids have lived with you more than half the hours of the past year, and if you didn't violate some court order, then probably there will be no change in the custody orders.

    You need to consult an experienced, local, family law attorney.

    I suspect, from the lack of facts contained in your question, that this may be a much longer and more complicated fact pattern. An attorney would need to get the whole long history, and ask you many questions.

    Thomas Neil, Sacramento family Attorney.

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  • How do I assert a Marvin Action

    we are non registered domestic partners,and have cohabited for 9 years we have planned a family, gone to adoption and fertility proceedings. She started domestic violence and I did not accept it, she is now evicting me. she does not like my resist...

    Thomas’s Answer

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    You do not have the requisite for a Marvin action; Marvin actions require a clear promise by the other party that, in return for your caring for them they will do something for you or give you something. Before you say, "Yes she made such a promise" it's not that easy. Unless she comes into court and agrees she made such a promise, you would have to have a writing, signed by her, making the promise. And even then, she might deny it was her signature so it better be a notarized signature.

    As for the eviction; I assume, since she is evicting you that you ar not on any deed or lease to the residence. If you have lived their more than 2 weeks, and can prove it with mail or bills to that address, then you can show that to a police officer who asks you to leave and then the officer will back off and your girlfriend will have to go through an eviction proceeding, which takes about a month and a half, to get you to leave. But it will only delay, no stop your eviction. That you are disabled, if you an prove it with some disability findings papers, can slow down the eviction but it will not stop the eviction.

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  • What action to take when ex husband did not visit kid and did not pay childcare fees?

    I am legally separated and have a kid live with me. Child support court ordered kid's father 10% visitation per year as he lives oversea but he has not visited at all after 1 year. There are childcare fees I paid for aftershcool and spring break d...

    Thomas’s Answer

    Regarding visitation. You cannot force the father to visit his children. You can bring a hearing to reduce his parenting time based on his not using the 10% parenting time the court gave him. That also might raise his support obligation IF you already have an order for child support slightly and IF your rspective incomes have not changed.

    Regarding child support and childcare costs: If you do not have an order for him to pay you child support and child care costs, then you must set a "Request for Orders" hearing to ask the court to order that he pay you support and split child care. However, someone, other than you, over 18, MUST serve father a copy of your Request for Order papers by mail. Serving father's attorney the papers will not be sufficient. Do you have an address for father that you can prove to the court is his current address? Also, if father denies having any income, and he lives overseas, can you prove he has income? If he denies he has income then the burden is on you to prove he has income.

    If you get, or already have, an order for father to pay you child support and split child care costs, then the court will order you to provide husband proof of your payments for childcare. NOTE: Providing father checks is not perfect proof to the court that you paid for daycare, because the daycare provider could be your friend who cares for your children and you care for her children etc., and she just pays you back the money you paid her by check. A better way to prove your payments is to send father receipts from your daycare provider, because the provider won't want to give you receipts if she is giving you back the money you give her, because if somehow that money got reported to the IRS then then the daycare provider would have to pay taxes for money she doesn't really get. So, receipts from the daycare provider are very good proof you are paying for daycare and not being repaid the money.

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  • CAN I PETITION FOR CUSTODY OF MY GRANDCHILDREN

    For 9 years, she and my son have been together and apart, there's been domestic violence issues on both sides. She keeps the kids in a filthy hoarder type environment, they have bites, are always sick because she fails to immunize, obtain regular ...

    Thomas’s Answer

    Grandparents can ASK visitation rights. BUT, if BOTH the biological mother and father don't want you to see their child, the court will not grant visitation rights. So, where does your son stand on letting you see the child?

    Even if both parents don't want to see your grandchild, you could still bring a request to be named the child's guardian in probate court. ANYONE can request to be a guardian, even if they have no relation to a child. HOWEVER, courts don't just grant a guardianship over the biological parents objections without a very good reason. The burden would fall on you to show the children need a guardian. I don't mean just going to court and stating your opinion that they are bad parents or doing drugs, because the parents are not going to agree and tell the judge that they are indeed bad parents or doing drugs. When they deny improperly parenting, or doing drugs, then you have the burden of proving your allegations to the court and, if you cannot provide good evidence of you alegations, then you will lose. You would probably need to bring in a doctor's letter saying something is wrong with their parenting, or show criminal convictions of the parents or that they are incarcerated which makes them unfit to parent.

    Or, if you report the parents to CPS, and CPS investigates and decides they are both unfit parents then you could ask for guardianship and you MIGHT get it. Or you might not get it, in which case the children would go to a children's receiving home. Sorry, this is not what you want to hear. But if I don't tell you this, I am not helping you because you could spend a lot of money and time and get no visitation or guardianship unless you can meet your burden of proof.

    Thomas Neil, Sacrament family lawyer

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  • How many people do I have to provide copies of things to?

    I got a letter in the mail from my ex's attorney stating I should be sending her copies of everything I file in court. I have already sent copies of everything filed in court to my ex via PERSONAL service and also filed the POS with the court. She...

    Thomas’s Answer

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    Because your ex has an attorney, you are REQUIRED, BY LAW, to send all papers to this attorney. You can serve your papers directly to your ex, but it will do no good. If you do NOT send the papers to his attorney the court will NOT consider your papers. By serving things directly to your ex, rather than his attorney, you may have missed important deadlines. CONSULT, IMMEDIATELY, WITH A LOCAL, EXPERIENCED, FAMILY ATTORNEY. That you served your papers on your ex by a process server does not help: the law requires that you to serve his attorney not you ex, an says nothing about it being ok to serve your ex directly if served by process server. Finally, if you are paying for a process server to deliver things, you are wasting money. After you serve your ex your initial Summons and Petition, almost all types of papers after that you serve by mail and you do NOT have to personally serve those later papers. Your process server probably should have told you this. And do not mail them to your ex by certified mail because you ex will just not sign for them. Instead, serve them on your ex by regular first class mail. The law says a "A letter properly addressed and stamped is presumed received," so first class postage is fine - and better than by certified mail which your ex can avoid by not signing for your letter. Finally, even with serving by mail, you cannot serve your own papers, a third party, at least 18 years old, must place your papers into an envelope and mail them, and thereafter that third party must fill out a "Proof of Service by mail" form, and you must then file that filled out Proof of Service at the court.

    Tom Neil
    Sacramento Family Lawyer

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