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Eric William Symonds

Eric Symonds’s Answers

21 total


  • I need the right forms Habeas corpus in whitch my lawer did not do her job in a child custody case

    Eric’s Answer

    I do not think that you're asking the right question here,. A writ of habeas corpus (literally to "produce the body") is a court order to a person (prison warden) or agency (institution) holding someone in custody to deliver the imprisoned individual to the court issuing the order.s. This has nothing to do with a lawyer, "not doing her job" in a child custody case.
    My humble advice: if you don't like your lawyer, then hire another one to represent you.
    If you are truly in need of Habeas Corpus relief, then seek counsel as to that issue.

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  • Is hearsay admissible in California family law?

    Eric’s Answer

    Hearsay is not admissible unless it falls within an exception. From what you've told us here, it does not sound like an exception would apply here. That being said, there is no way to "un-ring the bell," as they say. Family Law hearings, especially those where the parties are unrepresented, are frequently inundated with hearsay; the court is not supposed to consider inadmissible hearsay and I would like to think that most do not. If the issue of contention here is property or financials, the Court will be relying on the declarations submitted under penalty of perjury by you the other party. If the issue is child-custody (and I'll bet a nickel it is,) the court will be relying on other factors such as the declarations submitted by the parties and any other relevant evidence (such as evidence of domestic violence.) If necessary, the court has options as far as ordering various evaluations done by professionals who see this kind of thing everyday. Speak with your lawyer concerning your options. If you're unrepresented, a consultation with a family law attorney would be worth the time and money as far as discussing your options.

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  • My ex husband and I live together with our 4 yr old daughter. He has physical custody and we share legal custody. We've been

    Eric’s Answer

    You can file a Request for Order to modify the physical custody orders. Since it appears to have been a significant amount of time since the court has made any orders, you will need to attend mediation. There, you will have an opportunity to agree as to a plan for physical custody, if an agreement is not reached, you'll have a hearing. The court will make physical custody orders based on the "best interests of the children" standard. Thus, you will need to demonstrate to the court why the orders and plan you propose are the best as far as your minor children are concerned. Issues such as getting the children to school and ability to physically care for them will obviously come into play. Since you're both living in the same city, and ostensibly are both good parents, a time share of 50% would not surprise me, but it will of course depend on the facts of your particular circumstance.

    Legal custody refers to who will make "major life decisions" for the children. These would be issues such as school and health care choices. From what you've told me, joint legal custody sounds likely to be awarded. There are no facts given here that would indicate a need for anything different.

    As for the financials, a parent who has the ability to provide health insurance reasonably available at a reasonable cost via his or her employer will likely be ordered to do so. Depending on your situation, you may be the one in the better position to provide health care. Uncovered health care costs are split between the parents.

    I heartily recommend securing legal counsel for yourself in this matter. Remember that you can schedule a consultation with a family law attorney and the advice you're given there is strictly confidential. It sounds like you need to start working on a plan right away. A consultation will likely be a couple hundred dollars and worth every penny.

    Good luck!

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  • Need help with child custody

    Eric’s Answer

    Legal custody refers to "major life decisions" for the children; issues such as schools and doctors are decided by the parent(s) who have legal custody. Physical custody refers to where the children live. Physical custody is what you're addressing here.

    Your first opportunity to address the issue of physical custody would have been in mediation (a/k/a conciliation court). This would have taken place with both parents (usually) in front of a trained mediator right there at the courthouse. It is likely that you remember doing this prior to your first court appearance.

    Your facts do not give any indication as to the orders regarding physical custody of the children. Thus, much more information is needed regarding your scheduled visits and access to the children via telephone.

    The parents can always agree on a change in physical custody. It sounds like your verbal agreement is now not being followed. You can file your own Request for Order with the court and attempt to have a change in physical custody ordered by the court. Your request should be accompanied by a declaration explaining to the court why you think that a change in custody is in the best interests of the children. I definitely recommend that you hire an attorney to assist you in this process.

    If you have genuine concerns about the safety of your children, your attorney can best advise you as to how to deal with the pot smoking and the drinking and driving.

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  • When are orders given verbally in court by a judge enforceable?

    Eric’s Answer

    Unless otherwise specified, the orders of the court are forthwith and enforceable immediately. It sounds like your attorney has done the correct thing by submitting the findings and order after hearing to the opposing counsel. While I cannot speak for your attorney, I will generally send a letter to the other side indicating that I need the order returned (or a request for more time made) within ten court days of the when I mail the Order After Hearing. I would imagine that something very similar has happened in your case. As to the "almost 20 days ago," that is not an enormous amount of time and certainly well within the bounds of reasonable in my opinion. An Order After Hearing can take a few days to prepare, a few more days to send to you, a few more days to be received by the opposing counsel, and a reasonable amount of time for his or her client to review it. If the other side refuses to sign it and does not otherwise object to its form and content, your attorney can file it by declaration. This happens all the time, especially with recalcitrant pro-per litigants who did not get their way in court. In the case of your "ex" he or she may not have fully retained the attorney and that could also very well be holding things up.

    Your attorney would be the best person to answer these questions for you as he or she will know what the status of the Order After Hearing is at this point. You can also likely view your case online (or visit the courthouse) and see what has or has not been filed in your matter. As it sits now, you should really speak with your attorney. I urge you to have some patience with this system though. Unless there is some harm coming to the child(ren), almost 20 days is probably not unreasonable.

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  • Wife wants a divorce, and the house is in trust in my name. Can she take it? or does she have a right to half or what?

    Eric’s Answer

    Your spouse does not have a right to separate property assets. Separate property assets (including money) are things you owned prior to marriage, after the date of separation, were inherited or gifted to you. If your father gave you the house outright, and you are not making payments on it, then it is separate property and your spouse would not have claim to it. However, if you have made any mortgage payments on it, and used community property funds, then your spouse has an interest in the house up to half of the amount of the principle mortgage paid with community property funds.

    Honestly, unless this house is yours outright and you have made no payments on it whatsoever, you are asking a complex legal question that is probably beyond the scope of this forum. Understand that if any money was used to make payments on the house, the source of those funds will come into question as will several other factors. I heartily recommend seeking advice from a family law attorney in your area. A consultation will likely be a few hundred dollars and worth every penny.

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  • 7 day limited custody evaluation

    Eric’s Answer

    I agree with counsel in that the lack of notification may very well be a typo or simple mistake. I would contact the evaluator's office and find out why you were not notified. Obviously, you did learn of this somehow.

    When a party is requesting permission to relocate, the court is going to consider the reason for the relocation and the amount of contact that will still be reasonably permissible between the non-custodial parent and the children. If it appears that your desire to relocate is based on "punishing" the other parent or in some way depriving him or her of access to the children, then a custody evaluation may very well be in order.

    Has a 730 evaluation already been completed? It sounds like it already has, as they generally take 6 months or more (generally more.) If that is the case, it would be unusual for a court to order the shorter, and less involved, evaluation unless there was some evidence that your desire to relocate was not for acceptable reasons such as a better job opportunity, better neighborhood for the children, etc.

    A final thought on the notice issue. Was your attorney notified and did not pass that information along to you? If you are represented, then contact your attorney. if you are not represented, the time and money spent on competent counsel would be well worth it considering all that is at stake.

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  • How can I change custody orders

    Eric’s Answer

    You will need to fie a Request for Order with the family law court in order to get an order changing custody. Keep in mind that the court is going to look at the "best interest" standard when fashioning custody orders. Thus, you will need to demonstrate to the court that mom having overnight visits is somehow detrimental to the child(ren). The simple fact that she was arrested is not enough.

    If she is involved with illegal activities involving narcotics, chances are there are pretty shady people hanging around the residence and that would bolster your argument tremendously. Under those circumstances, you may be in a position to request emergency orders pending a full hearing. Depending on whether or not she is convicted, and what she is convicted of doing, you may consider asking for supervised visitation.

    Much more information is necessary in order to render comprehensive legal advice here. Your next phone call should be to a family law attorney in your area. Give him or her all the facts as you understand them and then make an informed decision as to how best proceed with this matter.

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  • Child has cavities and dad requesting full custody as a result, blaming mom for nursing, but dad has not taken to dentist in yr.

    Eric’s Answer

    I agree with my colleagues on this one. Both parents really need to get it together and coordinate dental visits. Family court's function is not to adjudicate the trivial decisions that parents should be making together. Your child's health is at risk; both parents should communicate with the dentist (or specialist if necessary) and follow the advice given.

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  • Can I still get custody of my children?

    Eric’s Answer

    The court's decision as to child custody is based upon the "best interests" of the children. As far as financial status is concerned, unless you're destitute and unable to put a roof over their heads, etc. financial status alone is not generally a determining factor. Under California Law, each parent has a duty to provide for the support of their children, gender of the parent notwithstanding. The primary function of child support in this State is to ensure that the children live as close to the same home-life with each parent as possible. I would speculate that the outcome of whatever CPS investigation has been, or will be, would have a much greater impact on the court's decision than the fact that you're a full time student. That being said, the fact that you're a student does not obviate the fact that you still have a duty to provide for your children. You can always take the wind out of those sails by getting a job while you're in school.

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