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Questions Answered by Tobie B. Waxman
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

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2 Answers | Asked in Divorce for California on
Q: Ex spouse lied on disclosures and judgement in Defaulted divorce to avoid paying alimony. Can I appeal 3 yrs later?

I'm petitioner and new biased judge unfamiliar with case struck my petition right before trial. Signed judgement exactly as defendant wrote it. Spouse also lied about house equity of $150k and had attorney giving advice and preparing documents while in-pro-per. Cut me off from all money, I... View More

Tobie B. Waxman
Tobie B. Waxman
answered on Sep 17, 2023

Assuming you were served with a copy of the judgment when it was entered, your time to appeal or have the judgment set aside has probably expired.

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2 Answers | Asked in Child Custody and Family Law for California on
Q: CUSTODY HELP

Hello!

My cousin is freshly postpartum with a one-month-old baby in the state of Washington. The father of the child is an alcoholic and he and his family have filed a motion for 50/50 custody after multiple counts of harassment of my cousin, as well as neglect of the newborn child. My... View More

Tobie B. Waxman
Tobie B. Waxman
answered on Sep 12, 2023

Because you asked the question from California, it is posted and seen by California attorneys. If you want it to be seen by attorneys practicing in Washington, you need to repost this question so that you specify the appropriate jurisdction so that it can be seen by lawyers who practice there and... View More

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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

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2 Answers | Asked in Divorce, Family Law, Child Custody and Civil Litigation for California on
Q: Required Judicial Form to Attach with Declaration in Opposition to Motion to Compel?

I recently filed my declaration in opposition to a Motion to Compel Responses to Form Interrogatories in a family law case in Los Angeles County, California. The court clerk denied my filing, stating that I need to attach a form with the Judicial form so they can place their filed stamp on it. What... View More

Tobie B. Waxman
Tobie B. Waxman
answered on Aug 17, 2023

Yes, FL320 is the correct form

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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

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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

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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

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3 Answers | Asked in Divorce and Family Law for California on
Q: I was married for 15 yrs during which time my ex husband was working for the Motion Picture Industry,

He has a MPI retirement plan which he is now claiming, am I mistaken in thinking that I am also eligible for this. He has been trying to hide the fact he is claiming it, when I found out he became quite nasty and send that he needed all the money

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

If he contributed to the plan during the marriage then the plan has a community interest subject to division in your divorce case. MPI pension plans are divided by QDRO.

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2 Answers | Asked in Family Law and Child Custody for California on
Q: My daughter abandoned her 5kids with me for a month we have no idea where she is she just left and never came back

The father is willing to give me temporary garden ship can I use that to put them in school the children have resided with me since birth

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

Yes, legal guardianship will likely enable you to enroll them in school. An informal agreement with the father however will not give you any real power.

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1 Answer | Asked in Family Law and Child Custody for California on
Q: My boyfriend got a restraining order against me and took my biological daughter..he's not her father. How do I get her

I haven't been served with the order. But he told me about it. He included everyone in the house on the order. How can I get my daughter that's not his.

Tobie B. Waxman
Tobie B. Waxman
answered on Aug 1, 2023

This is not an effective forum for getting this type of advice. You need to consult with an attorney directly.

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 and Family Law for California on
Q: what do i need to do about a annulment ,The Reason is i married this man and just found out he never divorced his 1st w
Tobie B. Waxman
Tobie B. Waxman
answered on Jul 30, 2023

You can hire an attorney to handle it for you. Otherwise, the superior court website has a self-help link with the steps to take to file for nullity.

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2 Answers | Asked in Child Custody, Child Support and Family Law for California on
Q: My ex is keeping the kids from me until our hearing and falsely accused me of child abuse. What should I do?

She’s an alcoholic, suicidal, and has a prior coke addiction. I have spanked one of the kids once last year for kicking the brother in the head, but he wears a diaper and I didn’t hit hard. I’m military. She doesn’t work.

Tobie B. Waxman
Tobie B. Waxman
answered on Jul 29, 2023

Retain an attorney. Don't self-represent when the other parent is accusing you of abuse. The court will err on the side of caution to protect the children. You need to know how to respond to these accusations with admissible evidence and you need to know how to present that evidence.

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3 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

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2 Answers | Asked in Divorce and Family Law for California on
Q: Hi, I am representing myself through my divorce and need to send a subpoena. Who do I send it to?

I am representing myself through my divorce and I need to send a subpoena. I am wondering do I send it to my husbands attorney or directly to him?

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

Subpoena for what? Why do you want to serve a subpoena on your spouse or his attorney? Without knowing what it is that you are trying to accomplish it's difficult to say what you should or should not do, or who you should be directing your subpoena to.

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2 Answers | Asked in Family Law for California on
Q: How to get help with grandparents visitation
Tobie B. Waxman
Tobie B. Waxman
answered on Jul 24, 2023

https://selfhelp.courts.ca.gov/grandparent-visitation

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2 Answers | Asked in Child Custody, Family Law and Military Law for California on
Q: Child custody across multiple states: What states does my lawyer need to be licensed in?

This is a child custody case where the divorce and original custody agreement were in Oregon, the mother (60% custody) moved to Alaska, the dad (military, 40% custody) moved to California. We need to modify child custody as well as possibly file for harassment against the mother. What state/s does... View More

Tobie B. Waxman
Tobie B. Waxman
answered on Jul 17, 2023

You case remains in Oregon as filed until a motion to change or transfer venue has been filed and granted. To file a motion to modify your existing custody orders (or judgment), you would file in Oregon under the same case number as was assigned to your divorce case. You would therefore hire... View More

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2 Answers | Asked in Adoption, Child Custody and Family Law for California on
Q: My daughters biological father has zero custody of her and keeps harassing me on talking parents app. What can I do

We went to court 2022 for custody. The judge granted him visitation if he finished reconciliation therapy. He ended up lying and telling me this old man was a reconciliation therapist. And he wasn’t. Ended up causing trauma for my daughter. He hasn’t tried to go back to therapy or complete what... View More

Tobie B. Waxman
Tobie B. Waxman
answered on Jul 13, 2023

He has no custody. Why do you need to do anything? If he's only using Talking Parents to harass you and not using it to communicate with you about your daughter, then don't read his messages and definitely don't respond to them. If you have another hearing, you can print out the... View More

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2 Answers | Asked in Divorce and Family Law for California on
Q: No property settlement in our divorce of 10 years ago. (2013) He promised that he only wanted out of payments.

And put in writing many times that all proceeds would be mine. Now he's saying no to our agreement.

Tobie B. Waxman
Tobie B. Waxman
answered on Jul 12, 2023

Whether that agreement is enforceable depends on the nature of the agreement, what it looks like, what it says and whether it was signed. It also depends on what your divorce judgment says with respect to unresolved issues such as property division.

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