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Eric S. Gordon

Eric Gordon’s Answers

5 total

  • Complaint for Divorce was filed in court Nov. 7, 2008 and wondering if this is considered a "Legal Separation" document?

    I left the home Nov. 1st. so does that count as legally separated or does a document stating a legal separation needed? I'm trying to distinguish if we were legally separated because the Complaint was filed in Nov. or due to my physically leaving ...

    Eric’s Answer

    I am a Lawyer licensed to practice in the State of California for the past 28 years. According to California law, and I believe most other States, the simple act of filing a Petition for Dissolution of Marriage or a Complaint for Divorce, does not alone elevate the case or the parties to the status of a "legal separation". Here in California a "legal separation" is a term of art used to accurately define when the Court has granted the parties a "legal separation".

    Now, when you moved out of the family residence with no intention to reunite with your spouse, that would be considered the defining moment of being "separated" - but again, not "legally separated". The "separation" date can be quite important for purposes of defining the duration of the marital period. For example, in California, a marriage of 10 years in duration is considered a "long-term" marriage, and with this goes certain rights and obligations of the parties that do not exist in marriages of shorter duration.

    If the Complaint or Dissolution action is still pending (no Court determination or party agreement), then you are most likely NOT "legally separated".

    A marriage of only 4 months in duration may be subject to other statutory provisions, which may entitle you to a summary proceeding. In such cases, there may be no community property, no community debts and obligations, no retirement plans, no acqusition of marital property so to speak, and therefore, you may be able to Petition the Court for an abbreviated form of Divorce proceeding. This would be particularly true if each of the parties could reach an agreement as to the division of any marital property and the division of any marital debt.

    Please consult the local BAR Association or free legal clinics, as they may provide you with written materials allowing you to represent yourself in such a summary proceeding (no assets, no debts, no children, 4 month marriage)...

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  • Do I need to petition the court for full custody of child if my ex who passed away had primary custody

    my ex has passed away thre weeks ago he had custody of are 10 year old who is now with me full time since his passing do i need to do anything legally

    Eric’s Answer

    This seems like a very simple question, and given certain assumptions, it is a simple question. So, if Mother is a reasonably stable, caring and nurturing parent, with no drugs, alcohol or convictions of crimes in her background, then generally she would be the most likely candidate to become the custodial parent of her own minor child. In such a case, she may or may not be required to file a Petition with the Court having jusrisdaction over the minor child, to determine legal and physical custody. If no individuals or agencies make a challenge to mother's custodial rights, then mother may have no reason to retain a lawyer to seek a Court Order for custody. Since mother already has physical custody, she may have no reason to do anything unless her rights as a custodial parent are challenged.

    If however, someone or some agency, challenges mother's ability to care for the health, safety and welfare of the minor child, then she will be foreced to consult with an experienced and skilled family law attorney to defend her default legal and physical custody of the minor.

    It bears mentioning that just because mother is the biological parent, does not necessarily mean she is the "best" or most "fit" adult to have legal and/or physical custody of her child. If she has emotional problems, drug problems, alcohol problems, health problems, etc., any one of these could severely compromise her ability to properly care for the minor. Thus, others could successfully challenge Mother's ability to provide care for her child, and it could be determined that what she is doing is NOT in the best interests of the minor.

    As you can see, all of the facts of these types of cases must be fully explored and analyzed BEFORE making any impulsive decisions on how to proceed. You must consult an experienced and skilled family law attorney before making any final determination to proceed in Court.

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  • Can the father get total custody of his child before the child is born?

    the baby's mother is 4 months pregnant. I would like to know if i could get total custody of the baby.

    Eric’s Answer

    This sounds like a very simple question, but, it has many underlying sub-parts, that can only be answered if much more information is made available.

    First. When the question is taken "literally", the answer is a resounding "NO". When the child is in the mother's womb, it is obvious that the Father cannot obtain a sole custody order, as it is impossible for anyone but the pregnant mother to have physical custody. Notwithstanding the above answer, if the Father can establish through competent evidence that the mother is compromising the health and welfare of the fetus, he can request the Court to intervene with specific Court Orders that mandate certain healthcare policies and procedures be followed, in order to protect the child/fetus from any potential injury.

    The moment the child is born, however, any father may challenge the mother's ability to properly provide for the health, education and welfare of the minor child. Accordingly, this would be a "fact-driven" type argument to the Court that the "Father" rather than the "Mother" is the parent that would provide the most favorable environment for the child. Absent any competent evidence to prove that the mother is not properly caring for her minor child, the Father would have a very difficult (up-hill battle) legal and factual argument that an infant should be separated from his biological mother.

    Remember, each State has its own statutory basis for viewing parental relationships with their newborn (and unborn) children. Even certain Judges within a County will have differing opinions of how this matter should best be resolved. An experienced and skilled Family Law Attorney in your local area should be consulted and given all the details of the surrounding facts of the case before making any decisions to forge ahead with litigation.

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  • I live in Illinois.. I have a 15 year old and 9 year old.. Their dad has custody of them.. Can he move them 6 hour's away?

    Their dad is wanting to move 6 hour's away to be with his girlfriend.. She lived with him here in Illinois.. The cop's were alway's called to there house.. For domestic battery and other stuff.. I know for a fact that my kid's do not like her.. T...

    Eric’s Answer

    First: You must carefully review the last Court Order and/or Judgment of Dissolution of Marriage for the specific language relating to Custody and Visitation of the minor children. Some of the answers to your questions may be found in the existing Court Order.

    Next, does the 6 hours move-way place your minor children in the State of Illinois or in an adjacent State? This may be important because it will likely determine which State Court you will make application to in an effort to object to your ex-husband's move with the children. It may even determine what State laws will be applicable to your particular case or question.

    Next, do you have any specific or just general visitation rights with respect to the minor children. The Court may make a finding that YOUR rights of visitation are being unjustly interferred with by the ex-husband's taking your children 6 hours away.

    Some Courts in some states force the parent who wants to remove the children, make a compelling argument to the Court that it will be in the children's best interests to make the move 6 hours away. If the move is simply for the whim of the Dad, a Court may find that the balancing test is outweighed in favor of prohibiting the move, thus keeping the Dad and the minor in the same general vicinity as the Mother.

    The fact that there exists a rather extensive history of law enforcement intervention, may make the difference in having a Judge make a discretionary determiniation to keep the minors in the same general location as the Mother. So, if you are really and truly concerned about the health, safety and welfare of the minor children, perhaps YOU should be the first to strike with a Petition or Request to the Court to reconsider the current Court Orders with respect to Custody and Visitation.

    In either event, an experienced Family Law practitioner should be consulted in your area to determine the liklihood of your success in bringing a Motion to prohibit/enjoin the ex-husband's move 6 hours away with the minor children.

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  • Do grandparents who have full custody of 4 kids need an attorney to adopt them if parents arent locateable

    I s the process the same as a custody case, if the mother and multiple fathers whereabouts are unknown the same in an adoption case.

    Eric’s Answer

    First, perhaps the most important issue to determine is the nature of the Grandparents Custody. In other words, has a Court having jurisdiction over the minor children actually awarded the Grandparents either "legal" and/or "physical" custody of the minor children? Assuming the Grandparents have a Court Order awarding them legal and/or physical custody, then this Court Order will suffice for almost all purposes, and there is no emergency to commence a formal Petition for Adoption. Why, because the Grandparents already have the ability (via the Court Order) to guide and control the "health, education and welfare" of the minors, as well as guide and control their physical presence/residence.

    If there is no such Court Order or any other written instrument granting or awarding the Grandparents the legal and/or physical custody of the minors, then a Court Order from the proper Court having jurisdiction over the minor children should be requested immediately. Otherwise, a law enforcement agency, Child Services Agency or other individuals purporting to have an interest in the minor children may make application to obtain legal and/or physical custody of the minors.

    Finally, the test for ascertaining the whereabouts of the parents is probably much more strict that you may think. It will not be enough that you simply call the last telephone number or mail a letter to the last known address. A Court (a Judge) may require much more diligence in searching for the missing parents. For example, I have handled cases in which the Court requires the searching of employment records, voting records, Department of Motor Vehicle records, hiring a private investigator and other such undertakings - to assure the Court that everything reasonable has been attempted to find these missing individuals. This may also include checking with County and local jails, prisons, Federal Bureau of Prisons, hospitals and psychiatric facilities.

    Hopefully, this answer has been of some help and will guide you to the next level of inquiry.

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