Lawyers, Answer Questions  & Get Points Log In
Questions Answered by Tobie B. Waxman
2 Answers | Asked in Child Custody and Family Law for California on
Q: Can I move out of state with my children if I have a custody agreement in that state (I have full physical custody)

I have full physical custody of my 2 children but am planning to move out of CA to TN in 6 months. My ex and I share joint legal custody and they have a visitation schedule of one weekend a month plus certain holidays. What legal provisions do I need to take to ensure a smooth moving process. I... View More

Tobie B. Waxman
Tobie B. Waxman
answered on Dec 8, 2023

If you are referring to actual court orders (as opposed to an informal written agreement between you and the other parent), you would need a court order modifying your existing custody orders so that you can "move away" with the minor child. You can do this by filing a motion, or by... View More

View More Answers

2 Answers | Asked in Divorce and Family Law for California on
Q: I wish to divorce my husband but he's not willing. Where or how do I start?

I need a low cost lawyer that can help me.

Tobie B. Waxman
Tobie B. Waxman
answered on Dec 5, 2023

You do not need his permission or consent to proceed with a divorce. You can file the petition and have him served. If he does not respond, you can proceed by default. In terms of finding a "low cost lawyer" - "low" is in the eye of the beholder. You'll need to make... View More

View More Answers

2 Answers | Asked in Civil Litigation and Family Law for California on
Q: California, Family Law. The minute order stated that the court adopted the Family Court Services Recommendations

Judge adopted the Family Court Services Mediation Recommendation and ordered the Recommendation attached to the minute order . Unfortunately the FCS Recommendation never was attached ...... what options are available to force the court to attach the FCS Recommendation to the minute order?

Tobie B. Waxman
Tobie B. Waxman
answered on Dec 5, 2023

Just call the courtroom's clerk and let him/her know that the attachment was missing. You also have the option of obtaining a copy of the stipulated agreement from your mediation and drafting your own Findings and Order After Hearing. But first, just call the clerk. That may resolve your... View More

View More Answers

2 Answers | Asked in Divorce and Family Law for California on
Q: Can you file for spousal support after case closed
Tobie B. Waxman
Tobie B. Waxman
answered on Dec 1, 2023

Depends on what you mean by “case closed”. Dismissed? Or are you now post judgment? If judgment has been entered, whether you can now ask for support depends on what your judgment says. Was support waived? Was the issue of support reserved? Have an attorney review the terms of your... View More

View More Answers

2 Answers | Asked in Divorce and Family Law for California on
Q: Do we still need to fill out financial forms since my husband and I have come up with our own divorce agreement?

I am represented by an attorney and my husband is representing himself.

Tobie B. Waxman
Tobie B. Waxman
answered on Nov 9, 2023

Before any judgement can be entered by the court, there must be a declaration filed with the court stating that each party served at least there "preliminary declaration of disclosure". There is a Judicial Council form that can be used however, for waiving financial disclosures. Both... View More

View More Answers

2 Answers | Asked in Divorce, Family Law, Child Custody and Child Support for California on
Q: I was coerced into signing divorce papers. How hard is it to contest a divorce judgement?

He signed our house over to his brother. Lied about the worth of our company. He made me give him custody of our kids. He also started paying me from the company so it would look like we made the same money. We still lived and work together. Now he wants me to move out after leaving me with... View More

Tobie B. Waxman
Tobie B. Waxman
answered on Nov 9, 2023

"forced" ?? How? There are ways to set aside a judgment when there is proof of fraud, duress, and/or various other statutory grounds. There is a time line (deadline) for seeking such a set-aside. You should consult with an attorney to find out if you have sufficient evidence to... View More

View More Answers

2 Answers | Asked in Divorce and Family Law for California on
Q: California divorce and debt exceeding assets in one persons name. Can I get a judgement against him saying he owes me?

Our credit card debt is in my name only. I have someone who will pay it off for me but I want to get some kind of judgement that shows he owes me for his half. He does not have any money now but will sometime in the future. Is it possible to get a judgement against him in the divorce?

Tobie B. Waxman
Tobie B. Waxman
answered on Nov 3, 2023

Debts incurred during the marriage are community debts, regardless of whose name is on the account. Debts acquired and/or incurred at any time from date of marriage to date of separation are considered debts of the community which are then shared 50/50 between the spouses. The court however, can... View More

View More Answers

2 Answers | Asked in Child Custody, Domestic Violence, Family Law and Civil Rights for California on
Q: where do I file my request for order? The county my childs residency is established? Or where temp order is?

Is it appropriate for a superior court judge outside of county where childs established residence is to grant a request for emergency temporary custody orders, ex parte? What constitutes an emergency in this situation? And where should I file my DVRO? In my county where child was removed from? Who... View More

Tobie B. Waxman
Tobie B. Waxman
answered on Nov 3, 2023

It sounds like you already have an open/existing case. You say "where temporary order is" - that tells me you have an existing court order. If not, and there is no open case, i.e. no one has filed anything related to this child, then you file in the county where the child lives. You... View More

View More Answers

1 Answer | Asked in Child Custody and Family Law for California on
Q: Which State has Custody Jurisdiction

Mom and Dad’s divorce was finalized in Alaska back in 2022 (dissolution w/ minor). Mom and child moved to California and have been here for one year. Mom would like to file a Motion to change custody orders. Would she need to file the motion in California or Alaska ?

Tobie B. Waxman
Tobie B. Waxman
answered on Oct 23, 2023

Mom probably should have filed a request to modify custody in the Alaska case before moving to California. Assuming Mom had Dad's permission to move with the minor to California, Mom should now file a motion in Alaska requesting change of venue to California.

4 Answers | Asked in Medical Malpractice and Personal Injury for California on
Q: Can a hospital/surgeon be sued for medical negligence?

My aunt was operated in April for a bypass surgery and another heart complication, the combined surgery lasted for about 5 hours. The surgeon and team left a sponge behind. The negligence was detected 3 days later when an X-Ray was done. They had to re-open the incision (around 12 inch) to take out... View More

Tobie B. Waxman
Tobie B. Waxman
answered on Oct 10, 2023

Yes, your Aunt can sue for the negligence resulting from leaving behind a surgical sponge. This is what is known as a "retained foreign body" case. It's not clear from your question whether the subsequent complication had anything to do with the retained sponge. That's... View More

View More Answers

3 Answers | Asked in Family Law and Child Custody for California on
Q: what can/should I do when my ex has disappeared with my two small childern without any communication

my ex is mentally unstable and she has had two children removed from her custody in the past. she is making false, unfounded claims of domestic violence and took my children while violating a t.r.o. and i havent been able to get in contact with her for almost 4

months

Tobie B. Waxman
Tobie B. Waxman
answered on Oct 9, 2023

Contact the District Attorney's child abduction unit in your city/county. File a parentage action (I'm assuming your ex is not your spouse?) and request custody orders and concurrently file an ex parte application to get immediate/emergency orders for custody, no visitation, and for... View More

View More Answers

3 Answers | Asked in Banking, Bankruptcy, Divorce and Family Law for California on
Q: court ordered payments and bankruptcy in california

If the court orders my ex to pay me past due child support (already court ordered), past due unreimbursed medical and dental (already court ordered), sanctions, and lawyer fees...and then my ex goes and files for bankruptcy.....does the bankruptcy wipe out the money that would be due to me? That... View More

Tobie B. Waxman
Tobie B. Waxman
answered on Oct 4, 2023

Under bankruptcy laws, most non-secured debt may be eliminated if you file Chapter 7; child support is the exception to that rule. Whether you are behind one payment, or a full year's payment makes no difference, child support payments must continue even if you file for bankruptcy protection.... View More

View More Answers

3 Answers | Asked in Child Custody, Child Support, Divorce and Family Law for California on
Q: I filed for divorce; will the court handle all proceedings automatically?

I recently submitted form FL-100 along with other required documents to initiate a divorce. Based on the 2013 FCCRC regulations, the court should conclude the divorce process within 18 months. If neither party takes further action:

(1) Will the court automatically schedule hearings for... View More

Tobie B. Waxman
Tobie B. Waxman
answered on Sep 27, 2023

Absolutely not. It is up to you and the other party to take whatever steps are necessary to move your case forward and to its conclusion. There is no automatic anything and you should certainly have no expectation that the matter will conclude on its own or "automatically" within 18... View More

View More Answers

3 Answers | Asked in Medical Malpractice and Wrongful Death for California on
Q: What would be the best type of lawsuit over my daughter's death?

My daughter was stillborn at 40 weeks in California due to a missed diagnosis earlier in the pregnancy. At my anatomy scan, her abnormal umbilical cord insertion was missed and wrongly marked as "normal." The standard of care is to closely follow growth with more ultrasounds in the case... View More

Tobie B. Waxman
Tobie B. Waxman
answered on Sep 18, 2023

It would be wrongful death resulting from medical malpractice. Your problem however is the fact that there is no treatment for abnormal or marginal cord placement. To have a claim based on malpractice, you would have to prove malpractice caused the injury (i.e. your daughter's death). If... View More

View More Answers

2 Answers | Asked in Divorce, Family Law, Child Custody and Child Support for California on
Q: Seeking Wife's Address for IEP and Custody Concerns

Seven months ago, my wife, who is originally from Russia, moved to a domestic violence shelter with our child, who is now 4 years and 1 month old and has autism. The police, DCFS, and court found no evidence supporting her claims, but she continues to reside in the shelter. I'm concerned about... View More

Tobie B. Waxman
Tobie B. Waxman
answered on Sep 5, 2023

Domestic Violence shelters' locations are typically kept secret for the protection of their residents. There's nothing you can do about that and you shouldn't try. As you clearly already have court orders, Mom must have an address "of record". That would be the address... View More

View More Answers

2 Answers | Asked in Family Law, Child Custody and Child Support for California on
Q: Question about custody/support modification

I have 50/50 custody of my children, with no child support since their mother and I make the same amount of money. Their mother is now harassing me and saying she is taking me back to court for child support. I went into debt over 20k for our current custody and support agreement. If a judge... View More

Tobie B. Waxman
Tobie B. Waxman
answered on Aug 15, 2023

If she wants to file a motion with the court requesting child support, she can. You can likewise oppose it. You can file a motion to modify your current custody orders so that you get more custody. Sounds to me like they are not well cared for while staying at Mom's residence. Your failure... View More

View More Answers

2 Answers | Asked in Divorce and Family Law for California on
Q: Are my pension benefits for service 1972-1977 available to my ex-wife considering that are marriage date is in 1985.

Through reciprocity I brought back into CalPERS in the 1990’s for my time with Santa Clara County Fire from 1972-1977.

Tobie B. Waxman
Tobie B. Waxman
answered on Aug 10, 2023

The community's interest in your pension is based on contributions made during the marriage and the earnings on those contributions. The terms of marriage is from date of marriage to date of separation. All other contributions and earning on the other contributions would be your separate... View More

View More Answers

2 Answers | Asked in Family Law for California on
Q: The attorney representing the plaintiff purposefully and with malicious intent translated my email.

The attorney representing the plaintiff purposefully and with malicious intent translated my email from Chinese, providing a translation certificate, which was then submitted to the court. Within this translation, she inserted offensive language ("hell") nine times. Additionally, she... View More

Tobie B. Waxman
Tobie B. Waxman
answered on Aug 9, 2023

A better plan would be to respond to this submission with your own certified translation with a declaration advising the court as to the incorrect and improper translation. As far as legal action, I would think it would be against the certified translator; not the attorney who retained him/her.... View More

View More Answers

1 Answer | Asked in Divorce and Family Law for California on
Q: Spousal support. The wife selected to reserve spousal support for later date, and she makes more money than me now.

Do I have anything to worry about since she makes more money than me? For example, if next year I make twice as much money as her can she then go after me for spousal support?

I want to avoid responding to the divorce papers because if I ask for the judge to remove the right for either... View More

Tobie B. Waxman
Tobie B. Waxman
answered on Jul 31, 2023

There are several statutory factors that are considered before spousal support is awarded and which impact the amount and duration of support. One such factor is the life style to which the parties became accustomed during the marriage. Post separation earnings or increases in earnings generally... View More

2 Answers | Asked in Divorce, Family Law and Child Custody for California on
Q: Ex parte for child's urgent dental treament?

We have a temporary emergency custody order in place since my ex-spouse's DVRO was denied due to a lack of credibility. My 3-4 yo child with Autism urgently needs a dental procedure under anesthesia due to cavities, according to our pediatric dentist. I have always brushed his teeth for 10... View More

Tobie B. Waxman
Tobie B. Waxman
answered on Jul 28, 2023

Yes, this may very well be a proper basis for seeking an ex parte order. What do you current custody orders say in terms of legal vs. physical custody. Who has legal custody and who has the ability to make medical decision for this child? If you don't have such orders, it is probably time for... View More

View More Answers

Justia Ask a Lawyer is a forum for consumers to get answers to basic legal questions. Any information sent through Justia Ask a Lawyer is not secure and is done so on a non-confidential basis only.

The use of this website to ask questions or receive answers does not create an attorney–client relationship between you and Justia, or between you and any attorney who receives your information or responds to your questions, nor is it intended to create such a relationship. Additionally, no responses on this forum constitute legal advice, which must be tailored to the specific circumstances of each case. You should not act upon information provided in Justia Ask a Lawyer without seeking professional counsel from an attorney admitted or authorized to practice in your jurisdiction. Justia assumes no responsibility to any person who relies on information contained on or received through this site and disclaims all liability in respect to such information.

Justia cannot guarantee that the information on this website (including any legal information provided by an attorney through this service) is accurate, complete, or up-to-date. While we intend to make every attempt to keep the information on this site current, the owners of and contributors to this site make no claims, promises or guarantees about the accuracy, completeness or adequacy of the information contained in or linked to from this site.