If I know the other party won't answer my discovery request, is it inappropriate to file the motion to compel right away?:
I am in a family law custody case. I requested My ex complete a list of special interrogatories and produce documents. He did not comply within the 30 days. I sent him a meet and confer letter with a two week deadline. The two weeks are not up yet but is it inappropriate to file the motion to compel now if I know he won't comply?
Basically can I file before the two-week grace period is up? He's not going to comply and it's taking up to a week to get a court date right now via E submit and the hearing wouldn't be for a month or two after that. So I'm trying to move this along. If he complies I could with just withdraw the RFO.
Please let me know thank you
Harris’s answer:
Wait and be patient... Send an additional meet and confer letter...
That way when you ultimately do file a Motion to Compel, it is granted by the Court.
And be sure to request your attorney's fees and costs under the California Code of Civil Procedure.
There is a common misconception by some family law attorneys, and bench officers, that equitable family law considerations of need and ability to pay are determinative to discovery motions made under the California Civil Discovery Act in terms of a court awarding, refusing to award, or reducing an award, for attorney fees and costs incurred in the course of motions to compel answers to discovery or further answers. Such awards are in the nature of a "sanction."
Under the Code of Civil Procedure (CCP), attorneys fees as sanctions may be awarded for abuses of the discovery process. CCP section 2023.030 states "(a) The court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney's fees, incurred by anyone as a result of that conduct. The court may also impose this sanction on one unsuccessfully asserting that another has engaged in the misuse of the discovery process, or on any attorney who advised that assertion, or on both. If a monetary sanction is authorized by any provision of this title, the court shall impose that sanction unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust."
Hence, under section 2023.030 the court may order sanctions for general discovery misconduct, but under the various sections dealing with production requests, interrogatories, and requests for admission the court "shall" issue such sanctions, unless the party against whom sanctions are requested acted with substantial justification or other circumstances would make sanctions unjust.
There is no provision for basing such a sanctions award on the parties' relative financial circumstances, as is common in family law proceedings, in the CCP. There is no requirement for submitting income or net worth statements, before determining what sanctions are "reasonable."
So... wait and let it ripen... then file your Motion to Compel and attorney's fees/costs.
If I use private social media posts that my ex has posted, do I need to share the source of the information?:
Hi,
I’m divorced and am dealing with both Custody and Child Support court hearings with my ex. My ex is challenging previous court orders regarding both custody visitation rights and child support payments.
My ex has several social media accounts that are private (Facebook, Instagram, etc). I am not connected to my ex on social media and don’t have direct access to his posts. However, a mutual friend of ours has provided me with screenshots of posts that my ex has made on various webpages which are posts that refute various claims he is making in his declaration and some posts that violate court orders. If I provide copies of my ex’s social media posts will I be required to disclose how I obtained the information? Specifically, will I need to disclose the mutual friend that provided this information? If possible I would like to protect my friend’s identity to avoid them running into problems and dragging them into this mess.
Harris’s answer:
"If I provide copies of my ex’s social media posts will I be required to disclose how I obtained the information? Specifically, will I need to disclose the mutual friend that provided this information?"
No. The fact that these are true and correct posts by him on social media is all you need.
He posted the information and he will have to deal with the consequences.
You will have to lay a foundation to get them admitted, but I don't think you will have to reveal which "mutual friend" of yours gave you the posts.
Child custody?:
I need to get full custody of my son, is it a hard process?
My family and I plan on leaving the country but I want to take my son with me, a great opportunity came to me and I can't say no to it. my son's dad barely picks him up, he can't keep a job for more than 2 months, he lives in the backyard with his parents in a tiny storage with a bed, and has another kid which he can barely raise. I don't think he would be able to raise my son and he is in DACA. What can I do? How do I start the process?
Harris’s answer:
You would need to file a Petition to Establish Paternity. Along with that, you would need to file a Request for Order (FRO) for both Child Custody and a Move-Away request. You would need to get him personally served as well.
You will then attend Family Court Services (FCS) mediation prior to your RFO for child custody and move-away.