http://en.wikipedia.org/wiki/Uniform_Child_Custody_Jurisdiction_And_Enforcement_Act
http://en.wikipedia.org/wiki/Joint_custody
http://www.missingkids.com/missingkids/servlet/PageServlet?LanguageCountry=en_US&PageId=1615
http://www.illinois-family-lawyer.com/CM/Articles/Articles15.asp
custody outline:
sorry how the format gets garbled!!!!!
(fine print pdf)
CALIFORNIA FAMILY LAW FOR th
PARALEGALS, 5 Ed. Chapter Three Child Custody
A. INTRODUCTION
Noareaoffamilylawbringstothecourtroomthetension,anxiety,hostility,volatility,andsimpleraw emotion as child custody litigation.
Custodylitigationisthelastbastionof“fault”intheCaliforniafamilycourts. Issuesrelatedtochildrenrequireinquiryintoallaspectsofthelitigant’sbehavior,theonlylimitation
being the requirement that the inquiry must focus upon a determination as to what is in the best interests of the children.
3 1. PRELIMINARY CONSIDERATIONS 1. PRELIMINARY CONSIDERATIONS
FamilyCodesection2010veststhesuperiorcourtwithsubjectmatterjurisdictiontodetermineissues related to the custody of the children and make orders that are appropriate concerning the status of the marriage, the custody and support of minor children of the marriage, and children for whom support is authorized.
Itshouldbenotedthattheexistenceofavalidmarriagebearsabsolutelynorelationshiptothepropriety of a determination as to custody and visitation of minor children.
4 1. PRELIMINARY CONSIDERATIONS 1. PRELIMINARY CONSIDERATIONS
Attheoutset,thepartiesmustdecidewhetherarequestfortemporarycustodybywayofanorderto show cause or an ex parte application is required.
Thenextphaseinthecustodydisputetypicallyinvolvesmediation,counseling,andchildcustody evaluation/investigation.
Mediationisdonetofacilitatethepartiesworkingtogethertobringaboutamutualagreementasto custody, which will almost always be better than one imposed by the court.
5 1. PRELIMINARY CONSIDERATIONS 1. PRELIMINARY CONSIDERATIONS
Thechildcustodyevaluatortypicallywillinterviewtheparentsindividually,together,togetherwiththeir children, individually with their children, at his office, at the home, and conduct interviews with the children independent of the parents (depending, of course, on the child’s age).
Mostexperiencedchildcustodyevaluatorswillproducereportsthatareontheaverageapproximately25 to 50 pages in length.
Thecourtthenhasthisavailableasadditionalevidencetoassistitinmakingthefinaldeterminationasto custody and visitation.
6 2. JURISDICTIONAL CONSIDERATIONS 2. JURISDICTIONAL CONSIDERATIONS
Thejuvenilecourtisaseparateyetequalbranchofthesuperiorcourtwhosefunctionsgenerallytake precedence over family law matters and, in the event of a conflict between the juvenile court and the family law court, will take precedence in making determinations as to custody.
Theseproceedingsfallgenerallywithinthecategoryofwhatisreferredtoasthedependencycourt. 7 2. JURISDICTIONAL CONSIDERATIONS
2. JURISDICTIONAL CONSIDERATIONS
Matters involving the dependency court typically originate when the child is taken out of the home by the County Department of Public Social Services (DPSS) as a result of being advised either by a teacher, a doctor, a police officer, or an otherwise concerned individual that a situation exists that constitutes a danger to a child, which is not being addressed adequately in the family home.
1
Generally, a DPSS social worker will respond to a complaint regarding child abuse or child endangerment by instituting an investigation of the allegations and formulating an opinion as to whether DPSS intervention is required.
8 2. JURISDICTIONAL CONSIDERATIONS 2. JURISDICTIONAL CONSIDERATIONS
Within a very short period of time thereafter, the matter is called before the court much like an arraignment in a criminal court proceeding at which time the court makes a preliminary determination as to whether sufficient facts exist to justify intervention of DPSS and to justify a petition being filed to have the child declared a ward of the court.
9 2. JURISDICTIONAL CONSIDERATIONS 2. JURISDICTIONAL CONSIDERATIONS
Thecourtwillthenmaintainjurisdictionoverthischildandwillmaintainthechild’sstatusasawardof the court for a specific period of time (usually at least one year) and will require that all of the parties return to the court to reevaluate the situation at that time.
Incertaincases,thejuvenilecourthastheauthoritytoterminatetheparentalrightsofthenaturalparents and put the child up for adoption.
10 2. JURISDICTIONAL CONSIDERATIONS 2. JURISDICTIONAL CONSIDERATIONS
11
12
Child custody jurisdiction is based upon the relationship of the state to the child, not to the parents.
Assuming the child is present in the state where the matter is being adjudicated, the court is fully empowered to make whatever orders it deems necessary and in the best interests of the minor child whether or not the parents are subject to the state’s personal jurisdiction.
3. THE UCCJEA
TheUniformChildCustodyJurisdictionandEnforcementAct(UCCJEA)isdesignedtoavoid competition between jurisdictions and conflicts between courts of different states in the resolution of child custody disputes.
TheUCCJEA isalsodesignedtoassurethatthelitigationconcerningcustodytakesplaceinthestate where the child and the family have the most significant contacts (typically where the child lives) concerning the child’s care, protection, training, and personal relationships.
3. THE UCCJEA
It discourages continuing controversies in the area of child custody litigation that might otherwise occur if the parties could run from state to state or from jurisdiction to jurisdiction with impunity and attempt to relitigate the same issues over and over again.
The UCCJEA (or some similar version thereof) has been adopted by all states, the District of Columbia, and the Virgin Islands.
13 3. THE UCCJEA 3. THE UCCJEA
TheUCCJEAissubjectonlytotheprovisionsoftheFederalParentalKidnappingPreventionAct (FPKPA).
ThisfederalactissubstantiallysimilartotheUCCJEAandprimarilymakesmattersinvolvingparental kidnapping a question of “overriding federal policy.”
TotheextentanyoftheprovisionsoftheFPKPAconflictwiththeUCCJEA,thedoctrineoffederal preemption instructs that the FPKPA shall control (since it is federal law, and the UCCJEA is a state law).
14 3. THE UCCJEA 3. THE UCCJEA
The Federal International Parental Kidnapping Crime Act of 1993 makes it a felony to remove or detain a child under the age of 16 outside of the U.S. with the intent to obstruct parental rights.
2
The defenses to a charge of violating this Act include acting pursuant to a valid court order, fleeing to avoid child abuse, and things of this nature.
15 3. THE UCCJEA 3. THE UCCJEA
TheMissingChildrenActcompelstheFBItomaintainanextensivedatabaseofinformationrelated specifically to missing children.
Thisdatabasewillbemadeavailabletoanyparentwhohasreportedamissingchild. TheFederalFugitiveFelonActauthorizestheissuanceofafederalwarrantfortheapprehensionofa
parent who takes a child in violation of any state’s felony child abduction laws and who then crosses state lines with the child to avoid prosecution.
16 3. THE UCCJEA 3. THE UCCJEA
TheHagueConventiongenerallyprovidesamechanismofuniformityinresolvingchild-relateddisputes across international boundaries, much as the UCCJEA seeks to achieve across state lines.
ToinvoketheConvention,theaggrievedparentorinterestedpartyfilesanapplicationforassistancewith the “central authority” of the member country that establishes compliance with the Convention’s procedures and an appropriate basis for invocation of its provisions.
17 3. THE UCCJEA 3. THE UCCJEA
As a general rule, the Hague Convention will use the child’s “habitual residence” as the basis for its jurisdiction.
See page 82 for list of countries that are parties to the Hague Convention. The Hague Convention applies to children under 16 years of age only, since these older
children have a strong voice to determine where they wish to live in any event. 18 3. THE UCCJEA
3. THE UCCJEA
The action must be brought within one year of the child’s removal, unless the facts show the child’s whereabouts had been deliberately concealed during that year.
The defenses to a Hague Convention Case are generally as follows: see page 83. The fundamental analysis of a Hague Convention Case follows these lines: see page 83.
19 4. DEFINITIONS 4. DEFINITIONS
a)LegalandPhysicalCustody Theconceptoflegalcustodypertainstotherightandresponsibilityofthelegalcustodiantomakedecisions
relating to the child’s health, education, and welfare. CivilCodesection1714.1makesaparentwhoexerciseslegalcustodyandcontroloveraminorliablefor
up to $10,000 in damages resulting from acts of the minor that caused death, physical injuries, property damage, or defacement of property with paint.
20 4. DEFINITIONS 4. DEFINITIONS
Physicalcustodyreferstowherethechildwillreside. Theparentexercisingphysicalcustodyoverthechildwillbegenerallythoughtasthecustodialparentwhile
the other parent is commonly referred to as the visiting parent. Anawardofphysicalcustodyisoftenconsideredmuchmoresignificantthananawardoflegalcustody
because the parent with whom the child is residing typically will exercise the lion’s share of the decision making in issues pertaining to the child’s health, education, and welfare.
21 4. DEFINITIONS 4. DEFINITIONS
b) Joint and Sole Custody
Solephysicalcustodymeansthatthechildwillprimarilyresidewithandbesupervisedbyoneparticular parent, while the other parent will simply visit.
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Therighttomakedecisionsregardingthechild’sresidence,health,education,andwelfarewillbeshared by both parents if an award of joint legal custody exists.
Solelegalcustodymeansthatoneparentonlyisthedecisionmakingparentconcerningissuesrelatingtothe child’s health, education, and welfare.
22 4. DEFINITIONS 4. DEFINITIONS
Theconceptofjointcustodycanbebrokendownintothreebasiccategories:purejointcustody,jointlegal custody, and joint physical custody.
Inpurejointcustodyneitherparentexercisesexclusivecontroloverlegalorphysicalcustodialrights. Alldecisionsrelatingtothechild’shealth,education,andwelfarearesharedjointlybybothparents,and
the child does not reside at any one parent’s house for significantly more than 50 percent of the time. Underjointlegalcustody,theparentswillshareequallytherightsandresponsibilitiestomakedecisions
regarding the child’s health, education, and welfare. 23 4. DEFINITIONS
4. DEFINITIONS
Jointphysicalcustodycontemplatesthateachparenthasasignificantperiodofphysicalcustody. Thisistypicallythoughtofassharedphysicalcustody,andunderthesecircumstancesthechildwillroughly
split her time between the parents’ respective homes. Thechild’stimedoesnotneedtobedividedabsolutelyequallybetweentheparentsunderajointphysical
custody order. Rather,allthatisnecessaryisthatthecustodymustbesharedinsuchawayastoassure“frequentand
continuing contact” of the child with both parents. 24 5. STATUTORY CONSIDERATIONS
5. STATUTORY CONSIDERATIONS
Thelegislaturemakesitclearthatwhenitcomestoawardingcustodyofaminorchildafundamental aspect of this public policy is to assure frequent and continuing contact of that child with both parents.
Thismandatemaybedisregardedonlyuponafindingthatitscompliancewouldbedetrimentaltothebest interests of the minor children.
Thehistoryofabusebyoneparentagainsttheotherparentisasignificantfactorinthecourt’seyein making determinations as to child custody.
25 5. STATUTORY CONSIDERATIONS 5. STATUTORY CONSIDERATIONS
Family Code section 3040 describes the statutory order of preference with respect to the legislature’s interpretation of the mandate of Family Code section 3011 (that is, making a custody award that is in the best interests of the minor child).
See page 100. 26 5. STATUTORY CONSIDERATIONS
5. STATUTORY CONSIDERATIONS
Thecourtcannotawardcustodytoapersonotherthanaparent,withouttheconsentoftheparents,until and unless it makes a finding “that granting custody to a parent would be detrimental to the child and that granting custody to a nonparent is required to serve the best interest of the child.”
Notethatthisistwoprongtest:Thecourtmustspecificallyfindthatawardingcustodytotheparent would be detrimental to the child and awarding custody to a nonparent would serve the mandate of Family Code section 3011 in the minor child’s best interests.
27 5. STATUTORY CONSIDERATIONS 5. STATUTORY CONSIDERATIONS
Theopinionofateenagechildwillcarrymuchgreaterweightwithrespecttothisissuethanthatofa child under ten.
Itisgenerallythoughtthatbyage12achildcanformandexpressanintelligent,reasonedopiniononthe subject of with whom he or she wishes to live.
Althoughthechilddoesnothavetheunfettereddecision-makingpoweronthisissue,thecourtswillstart to give greater weight to the child’s preference at this more than at an earlier age.
4
28 5. STATUTORY CONSIDERATIONS 5. STATUTORY CONSIDERATIONS
FamilyCodesections3002,3003,3004,3006,and3007setforththesedefinitionsasfollows:seepage 102.
FamilyCodesection3080providesthatuponthemutualagreementofthepartiestoanawardofjoint custody, either in open court or by written stipulation, there shall exist a presumption affecting the burden of proof that joint custody is in the best interests of the minor child.
Assumingjointcustodyisnotfoundtobeinthebestinterestsoftheminorchild,thenthecourtmust choose between the parents in awarding custody.
29 5. STATUTORY CONSIDERATIONS 5. STATUTORY CONSIDERATIONS
FamilyCodesection3040specificallyprecludespreferenceofoneparentovertheothersimplyonthe basis of gender.
Neithercanracenorreligion,inandofthemselves,bethebasisforacceptingorrejectingaparentasthe custodial parent of a minor child.
Similarly,aparent’seconomicstatuswillnotbethedeterminativefactorinthechildcustodyarena. Aparent’sparticularsexualpreferencewillnotnecessarilybrandhimorherasanunsuitablecustodial
parent nor will a physical or mental handicap act in this fashion. 30 5. STATUTORY CONSIDERATIONS
5. STATUTORY CONSIDERATIONS
Finally,adecisionbyoneparenttocohabit(liveinanonmaritalunionwithalover)willnotbedeemeda per se basis for disqualification as a custodial parent.
Thefocusisonthechild’sneedsforemotionalstabilityandtheparent’sabilitytolovethechildandgive the child ethical, emotional, and intellectual guidance.
Whilenotanexhaustivelist,thefollowingsetsforthsomeoftheconsiderationsthecourthavegrappled with in this area of awarding custody and establishing visitation: see pages 105-106.
31 6. MEDIATION AND CONCILIATION 6. MEDIATION AND CONCILIATION
FamilyCodesections3160etseq.establishthestatutoryschemeforthemediationofcontestedchild custody and visitation disputes.
Thedirectiveofthesecodesectionsismandatory. Thepartieshavenochoiceastowhethertogotomediation. TheCodeisquiteclearthatinanycontestedcustodymatter“thecourtshallsetthecontestedissuefor
mediation.” 32 6. MEDIATION AND CONCILIATION
6. MEDIATION AND CONCILIATION
Nothing that occurs in mediation is binding upon the parties. The mediator can only help to affect an agreement and is not empowered to make any orders
on these issues of any kind. The mediation process is provided free of charge through the superior court and is usually
undertaken at the courthouse. 33 7. TEMPORARY CUSTODY AWARDS; MODIFICATION
7. TEMPORARY CUSTODY AWARDS; MODIFICATION
Thecourtsviewthestatusquooftheminorchildasoneofthemostfundamentaldeterminativefactors when approaching custody and visitation disputes.
Thecourtsstressaboveallthingstheabilitytoachieveandmaintainstabilityinthechild’senvironment when determining what is in the best interests of the minor child.
Oneofthebestwaystoachievethisstabilityisbymaintainingthestatusquo. 34 7. TEMPORARY CUSTODY AWARDS; MODIFICATION
7. TEMPORARY CUSTODY AWARDS; MODIFICATION
The parent who is first able to establish a stable and loving living environment for the child
5
is in a much better position than the other parent to obtain permanent custody. Custody determinations are typically not made ex parte. Indeed, section 3064 of the Family Code clearly states that: see page 109.
7. TEMPORARY CUSTODY AWARDS; MODIFICATION
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37
38
7. TEMPORARY CUSTODY AWARDS; MODIFICATION
Itisclearthatonceaninitialcustodydeterminationhasbeenmade,anypartyseekingtochangethat custody determination must carry the burden of proof that a substantial change in circumstances has transpired that warrants reevaluating the earlier custody determination, thus making a new determination based upon the best interests of the child necessary.
Oneofthemostcommonsituationsisthatofthecustodialparentdesiringtorelocatetoanotherareaof the state or country and take the minor child with her.
7. TEMPORARY CUSTODY AWARDS; MODIFICATION
7. TEMPORARY CUSTODY AWARDS; MODIFICATION
Anothersituationthatmaygiverisetoafindingofchangeincircumstancesisamarkedchangeinthe child’s performance at school.
Sometimeseventhepassageoftimemaybesufficient,provideditiscoupledwithsomeothersignificant effects of that passage of time.
Theremarriageofacustodial(ornoncustodial)parentmayalsoprovideabasisforafindingofchanged circumstances, but this is a factual determination made on a case-by-case basis.
7. TEMPORARY CUSTODY AWARDS; MODIFICATION
7. TEMPORARY CUSTODY AWARDS; MODIFICATION
In Burchard v. Garay, the Supreme Court held that when there had been no prior judicial determination on the issue of custody, evidence of a change in circumstances was not required before modifying a preexisting custodial scheme which had been in effect without a court order.
TheCourtcontinued,addingthatalthoughachangeincircumstancesneednotbeprovenintheabsence of a prior court custody order, the benefit to the child of a stable custodial arrangement cannot be ignored.
7. TEMPORARY CUSTODY AWARDS; MODIFICATION
7. TEMPORARY CUSTODY AWARDS; MODIFICATION
TheBurchardCourtalsoemphasizedtheneed,whenthechanged-circumstancesruledidapply,forthe proof of both changed circumstances and proof that change of custody was in the best interests of the child.
TheSupremeCourtplacedtheburdenonthepartyseekingtomodifythatarrangementtoshownotonly that, everything being equal, the child would be better off with him but that the change would be beneficial enough to offset the disruption caused by the modification of custody.
SeeLesterv.Lenaneonpage112. SeeMontenegrov.Diazonpage113.
CALIFORNIA FAMILY LAW FOR th
PARALEGALS, 5 Ed. Chapter Four Child Visitation
A. CHILD VISITATION
FamilyCodesection3100mandatesthatwheneveracustodyorderpertinenttosection3080ismade,“the court shall grant reasonable visitation rights to a parent unless it is shown that the visitation will be detrimental to the best interests of the child.”
Assumingthatvisitationisnotdetrimentaltothebestinterestsofthechild,thenthenoncustodialparent will be allowed such visitation as is deemed to be “reasonable” under all the circumstances, keeping in mind that the Code mandates as much contact with both parents as is reasonably practical.
3 B. VISITATION PLANS B. VISITATION PLANS
Inkeepingwiththeconceptofreasonablevisitation,thefundamentalrequirementistheinstructionof Family Code section 3020 that the children maintain “frequent and continuing contact” with both parents.
Theidealisfora50/50splitoftime. Howevertotheextentthatthiswouldinterfereinthechild’sdevelopmentorschooling,orprovidesimilar
obstacles to establishing stability and continuity in the child’s life, the goal of a 50/50 split is not artificially
imposed for the sake of achieving mathematical equality of time. SeeFreemanorderonpage120.
4 B. VISITATION PLANS B. VISITATION PLANS
This plan works out so that the noncustodial parent has the child approximately 20 percent of the time.
This schedule of visitation is not carved in stone, however, and the parties and the court have great flexibility in working with this schedule as an initial framework in arriving at an ultimately workable (and reasonable) visitation schedule.
5 C. VISITATION RESTRICTIONS C. VISITATION RESTRICTIONS
There are a variety of circumstances in which a restriction can and should be placed on visitation, ranging from financial misconduct to domestic violence.
The party seeking to restrict visitation has the burden of proof on this point, and visitation will not be restricted or denied absent finding of good cause.
See Marriage of Economou on page 122. 6 D. INTERFERENCE WITH CUSTODY AND VISITATION
D. INTERFERENCE WITH CUSTODY AND VISITATION
Ifthechildisateenagerorposessomeotheractualphysicalimpedimenttothecustodialparent’sabilityto exercise sufficient control over that child to ensure that visitation in fact goes as scheduled, then the custodial parent will generally not be held accountable for the child’s failure and refusal to visit.
Ontheotherhand,ifitisarelativelysmallchild,oneoverwhomthecustodialparentcontinuesto exercise substantial control, then the custodial parent will not escape liability for the failure and refusal to permit the visitation.
7 D. INTERFERENCE WITH CUSTODY AND VISITATION D. INTERFERENCE WITH CUSTODY AND VISITATION
In fact, a custodial parent who refuses visitation when the minor child is otherwise inclined to visit runs a very serious risk of losing custody of that child inasmuch as it is the express
1
policy of the legislature to place physical custody of the minor child with the parent who is more likely to allow the visitation to take place.
8 E. RELOCATION E. RELOCATION
Whenfacedwiththerelocatingcustodialparent,thecourtgenerallywillrequirethatparenttogivethe other parent a minimum amount of notice prior to the anticipated move.
Thisnoticegivesthenoncustodialparentanopportunitytogotocourtandseekordersrestrainingthe relocation of their child.
ThisconceptiscodifiedinFamilyCodesection3024,whichprovidesthat:seepages124and125. See“moveaway”casespages125to141.
9 E. RELOCATION E. RELOCATION
AfterLaMusga,theprimaryfocusshallbeonthechild;nottheparents,notthemotivationfortheirmove, not their good faith or bad faith, but on the child.
Thecourtrecognizesthattheburdenofproofisontheparentwhoopposestherelocationtoshowthat the move is not in the child’s best interests, but they also granted the trial court great discretion in its ultimate rulings.
Themovingpartyneednotprovenecessityforthemoveeither. 10 F. REMEDIES FOR FRUSTRATION OF VISITATION
F. REMEDIES FOR FRUSTRATION OF VISITATION
Avarietyofremediesareavailabletoproviderelieftothenoncustodialparentwhoisintheunhappy position of having his visitation rights frustrated.
Forexample,thenoncustodialparentcancommenceanordertoshowcauseconcerningcontemptinan attempt to have the court levy a monetary fine against the custodial parent if not imprison him altogether for violating the court’s order pertinent to visitation.
11 F. REMEDIES FOR FRUSTRATION OF VISITATION F. REMEDIES FOR FRUSTRATION OF VISITATION
Anotheralternativethenoncustodialparentcoulduseistoaskthecourttoorderthecustodialparentto post a monetary bond to secure performance and compliance with the visitation orders.
Sucharequestwillgenerallynotbegrantedthefirsttimethatthepartiesfindthemselvesincourtonthis issue.
Usually,thenoncustodialparentmustdemonstrateahistoryoffrustrationofvisitationbeforethecourt will require the custodial parent to post such a bond.
12 F. REMEDIES FOR FRUSTRATION OF VISITATION F. REMEDIES FOR FRUSTRATION OF VISITATION
Unjustified interference with visitation, no matter how deliberate, malicious, or motivated by simple evil intent by the custodial parent, will not excuse the withholding of payment of child support by the noncustodial parent.
It is not a defense to an action for enforcement for nonpayment of child support and can provide no basis for modification or termination of child support.
13 F. REMEDIES FOR FRUSTRATION OF VISITATION F. REMEDIES FOR FRUSTRATION OF VISITATION
Additionalremediestoaparentwhosevisitationisbeingfrustratedcanincludeageneralcivillawsuitfor emotional distress, a lawsuit charging interference with the relationship between the parent and the child, and other torts of a similar nature.
Sometimesitistheotherwayaround,anditisthenoncustodialparentwhoisrefusingtovisit. Thereissimplynoauthority,eitherintheCodeorasdefinedbycases,thatallowsittoforceanunwilling
parent to visit with a child. 14 G. NONPARENT ACCESS TO CHILDREN
G. NONPARENT ACCESS TO CHILDREN
Nonparentaccesstochildrenhasbeendramaticallyimpactedbyrecentcourtdecisions,mostnotablythe U.S. Supreme Court decision in Troxel v. Granville.
2
Troxelinvolvedtherightofanaturalparenttokeepeverybodyelseoutoftheaffairsoftheirchildren. TheU.S.SupremeCourtfoundsignificantproblemswithaWashingtonstatute:Thestatutewas
breathtakingly overbroad because it authorized any person at any time to petition for visitation. Thestatutewassimplyfoundtobeunconstitutionalandstricken.
15 G. NONPARENT ACCESS TO CHILDREN G. NONPARENT ACCESS TO CHILDREN
Post-Troxel,then,anystatutethatcreatesarightadversetothedesiresoftheparentwillprobablyhaveto have the following elements to survive a constitutional challenge: see pages 147 and 148.
InlightofTroxel,severalCaliforniastatuteshavebeenheldtobeunconstitutional. Theyareasfollows:seepage148. Section3103hasnotyetbeenheldtobeunconstitutional,butthatcouldbeasmuchamatteroflackof
current opportunity as it could be the statutory construction. 16 G. NONPARENT ACCESS TO CHILDREN
G. NONPARENT ACCESS TO CHILDREN
FamilyCodesections3100establishesthediscretionofthecourttoallowreasonablevisitationrightstoa nonparent, provided simply that such nonparent has “an interest in the welfare of the child.”
Thisisentirelydiscretionaryonthepartofthecourt. Thissubjectof“nonparent”visitationcanbedividedintothreebasicareas:grandparents,stepparents,and
nonparents. Thestateofthelawinthisareaispresentlyinastateofflux,however,withdecisionsaffectingthe
constitutionality of this statutory scheme being decided even as this book goes to print. 17 1. GRANDPARENT VISITATION
1. GRANDPARENT VISITATION
The court may grant grandparents reasonable visitation if it finds that to be in the best interests of the child.
If the child’s parents agree that the grandparent should not be granted visitation rights, then there is a presumption that grandparent visitation is not in the best interests of the minor child.
18 2. STEPPARENT VISITATION 2. STEPPARENT VISITATION
Family Code 3101 provides as follows in the context of stepparent visitation: see page 151. The court may grant reasonable visitation to a stepparent, if visitation by the stepparent is
determined to be in the best interest of the minor child. 19 3. OTHER VISITATION
3. OTHER VISITATION
California,since1994,hashadlegislationinplacethatactedasa“catchall”section,addressingeverybody else who desires, but nevertheless might not otherwise be entitled to, visitation.
FamilyCodesection3102providedasfollows:seepage152. Ifeitherparentofanunemancipatedminorisdeceased,thechildren,siblings,parents,andgrandparentsof
the deceased parent may be granted reasonable visitation with the child during the child’s minority upon a finding that the visitation would be in the best interest of the minor child.
20 4. CURRENT STATE OF THE LAW 4. CURRENT STATE OF THE LAW
InCalifornia,thatstatutoryschemepresentedbyFamilyCodesections3100through3104arenowatrisk for being held unconstitutional.
Section3100,grantingvisitationrightsto(essentially)“anyperson,”isverysimilartotheWashingtonlaw and will most likely be struck down.
Section3101,addressingstepparentvisitationwithabestinterestofthechildstandardofreview,also probably violates Troxel.
Section3102,addressingrelativesofadeceasedparent,isevenmoreremovedandhasbeenruled unconstitutional.
chapter two
CALIFORNIA FAMILY LAW FOR th
PARALEGALS, 5 Ed. Chapter Two Parents and Children
A. INTRODUCTION
Asmentionedearlier,withtheadventoftheFamilyCodein1994camearestructuringofthemany various code sections dealing with the area of family law.
Inthecourseofthisreorganization,thenewFamilyCodewasdividedintomultipleDivisions. FourofthoseDivisionsarediscussedinthisandthefollowingchapters:Division11,“Minors”(sections
6500 to 7143), Division 12, “Parent and Child Relationships” (sections 7500 to 7952), Division 8, “Custody of Children” (sections 3000 to 3465), and Division 13, “Adoption” (sections 8500 to 9340).
B. MINORS Anadultisanyonewhois18yearsorolder,andaminorisanyonewhoisunder18yearsofage. Itisspecificallyexpressedthatthestate,initspositionofparenspatriaeischargedwithacontinuing
interest in the welfare of minor children within its borders. Undertheso-called“birthdayrule,”apersonobtainsacertainageonthefirstminuteofhisbirthday;it
has recently been held that “absent an expression of contrary legislative intent, this rule generally applies to all statutory calculations of age.”
4 1. CIVIL LIABILITY EXPOSURE 1. CIVIL LIABILITY EXPOSURE
Inthecontextofcivilactions,aminorcanprosecuteacivilactiontoenforceherrights,theonlyproviso being that the action must be maintained by the minor’s parent or adult guardian.
Aminorisalsocapableofbeingheldcivillyliableforawrongshemayhavedone,butisonlyliablefor punitive damages if at the time she did the act she knew that what she was doing was wrong.
Notonlywilltheparentspotentiallybeliableforthetortsoftheirchildren,butthechildrencanbecome liable as well.
5 1. CIVIL LIABILITY EXPOSURE 1. CIVIL LIABILITY EXPOSURE
Generallyspeaking,beforeparentsmaybeheldresponsiblefordamagescausedbyoneoftheirchildren, “it must be shown that the parents as reasonable persons previously became aware of habits or tendencies of the infant which made it likely that the child would misbehave so that they should have restrained him in opposite conduct and actions, that is, the evidence must show that they had a duty as reasonable persons to restrain the child from the use of the implements in question.”
6 1. CIVIL LIABILITY EXPOSURE 1. CIVIL LIABILITY EXPOSURE
7
Mere parenthood alone will not make the parent liable for torts committed by their children, even while in the parent’s control and custody.
Of course, the conduct of the parent in the totality of the circumstances will be reviewed by the trier of fact and, if that conduct is found to be negligent, then the parent himself will face potential liability for his own actions.
2. CONTRACTS
Whilethelawrecognizesaminor’srighttoenterintocontractsthatarelegallybindingonboththeminor and the other party, the minor is given the right to disaffirm that contract, thus terminating his obligation for further performance.
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10
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Thegeneralpurposebehindthislegislationistoprotectminorsfromthemselves,duetotheirassumed lack of experience as well as the perceived tendency of adults to take advantage of minors.
Thecontractmust,however,bedisaffirmedbeforetheminorreachestheageof18or“withina reasonable time afterwards.”
2. CONTRACTS
Aminorisnotallowedtodisaffirmanobligationthatisenteredintoundertheexpressauthorityofa statute and cannot disaffirm a contract for the “necessities of life.”
Thisisgenerallymeanttoincludefood,clothing,shelterandhealthservices. Aspecialgroupofstatuteshasbeenestablishedtoregulateminors’contractsintheareasofart,
entertainment, and professional sports. Becauseofthenatureofthesetypesofcontractsandthepotentialforexploitationofchildreninthose
businesses, this is a heavily regulated subject. 3. MEDICAL TREATMENT
Ingeneral,andsubjecttocertainstatutoryexceptions, aminorisallowedtoconsenttomedicalordental care without first obtaining the consent of a parent or guardian
Beforeaminoriscapableofgivingtheconsentcontemplatedinthesesectionsheorshemust: be15yearsorolder; belivingseparateandapartfromparentsorlegalguardians; and be the sole manager of his or her financial affairs, regardless of the source of those funds.
3. MEDICAL TREATMENT See example on page 39. The providing physician is usually under the expectation to attempt to contact the minor’s
parents, but is not required to do so. The basic purpose is to get these minors the medical and counseling treatment they require
as soon as possible, worrying about the effects of this action on the parents once the needed care has begun.
4. EMANCIPATED MINORS
Inordertobecomeanemancipatedminor,oneofthreecircumstancesmustbepresent:theminorhas entered into a valid marriage, is on active duty in the armed forces, or has received a declaration of emancipation pursuant to the Emancipation of Minors Law.
Assuch,aminorcanbecomeemancipatedeitherbyrequestingsamefromthecourtorbytakinga direction in life (marriage or enlistment) that will result in emancipation.
Theeffectofemancipationisthattheminorisnow,forallpracticalpurposestreatedasanadult. 12 4. EMANCIPATION OF MINORS
4. EMANCIPATION OF MINORS
Apetitionforemancipationispreparedandservedupontheminor’sparents(orlegalguardians),thus giving them notice of the minor’s desire to become emancipated.
Theminoristhepetitioningparty,andthatdocumentmustallegethattheminor(1)isatleast14years old, (2) is living “separate and apart” from his parents, with their consent, and (3) must be managing his own finances.
Ifthefactsareadequatelyproven,thecourtwillissueitsdeclarationofemancipation,whichbecomes conclusive evidence that the minor is emancipated.
13 C. PARENT AND CHILD RELATIONSHIPS C. PARENT AND CHILD RELATIONSHIPS
The legislature has instructed that the state has a duty to protect children from abuses of parental authority and that the rights of parenthood are not absolute and are subject to the
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superior right of the state to intervene and protect the child against the use of parental authority, subject to the caveat that the state may not constitutionally interfere with the “natural liberty of parents to direct the upbringing of their children.”
1. THE PATERNITY ACTION
TheFamilyCodecommencestheinquiryintopaternitybyrecognizinga“conclusivepresumption”of paternity in the husband of a cohabitating wife who, while living with him, gives birth to a child (assuming the husband is neither impotent or sterile).
Interestingly,then,ifawifewhoislivingwithherhusbandentersintoanextramaritalrelationship, becomes pregnant from the affair, and gives birth, her husband will conclusively be deemed to be that child’s father, regardless of the reality of the situation.
1. THE PATERNITY ACTION This situation can have devastating results for both the husband and the natural father. Thenatureofthispresumptionistopreservethe“sanctityofthemaritalrelationshipandtheunified
family.” Theconceptisgenerallyperceivedasbeingsubstantivelyrelatedtothe“fact”thatthechildisconceived
and “brought into” an existing marriage. SeeBrianC.v.GingerK.onpage43.
1. THE PATERNITY ACTION Thispresumptioncangenerallyberebuttedintwoways: 1. The husband may use biological tests to rebut this presumption if he brings the case to do so within
two years of the birth of the child; or 2.Thewifemayusebiologicalteststorebutthepresumptionifthecaseisbroughtwithintwoyearsof
the birth of the child and wife provides an affidavit on who the actual biological father is.
1. THE PATERNITY ACTION Section 7541 of the Code seems to provide some relief in these circumstances. This section authorizes the court to ignore this presumption if the evidence produced by
the use of blood tests demonstrates that the husband is not the child’s father. There are very strict time limitations.
1. THE PATERNITY ACTION Thehusbandmustfilehisnoticeofmotionforbloodtestswithintwoyearsofthechild’sbirth. Ifhewaitsbeyondthisperiodoftime,hewillalwaysbethechild’spresumedfatherandwillbetreated
accordingly (just as the child’s “natural father”). ThewifemayalsoavailherselfofthisCodesection,typicallytorefuteanaturalfather’sattempttogain
recognition or to refute the child’s father. 1. THE PATERNITY ACTION
Another conclusive presumption of paternity is found in Family Code sections 7570 to 7577, which describe the procedure known as establishing paternity by voluntary declaration.
See sections 7570 and 7571 on page 45. The presumption created by this declaration can also be rebutted within three years of its
making, but only by persons contemplated in section 7541, that is, the husband and wife. 1. THE PATERNITY ACTION
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AnadditionalpresumptionofpaternityisfoundinFamilyCodesection7611,whichrecognizesamanas the presumed father of a child if he is found to be so under section 7540 or if he meets any of the following criteria:
Seesection7611onpage46. Thepresumptioncreatedbysection7611ismerely“rebuttable”(not“conclusive),andcannotoperateto
defeat any of the other presumptions discussed above. TheteststodeterminepaternitynowincludeactualgenetictestingoftheDNAofthepertinentparties.
1. THE PATERNITY ACTION Thedesignationof“presumedfather”containedinsection7611isveryimportant. Withoutsuchadesignation,amanwillbeprecludedfrombringingapaternityaction,regardlessofhis
actual paternal status. Thepaternityactioncontemplatedbythischaptermaybecommencedbythemother,anypresumed(or
potential) father, the child, or (under certain circumstances) the district attorney. 22 2. TERMINATION OF PARENTAL RIGHTS
2. TERMINATION OF PARENTAL RIGHTS
Undercertaincircumstances,ifthemotherwishestoplaceherchildupforadoptionshemust,among other things, notify any individuals who either qualify as presumed fathers or who could in fact be the father of the child prior to allowing the child to be given up for adoption.
Ifthecourtcannotidentifyanypossiblenaturalfatherandnoonehaspresentedthemselvestothecourt claiming to be the natural father, then the court will simply enter an order terminating the unknown father’s parental right, thus allowing the adoption proceeding to go forward.
23 2. TERMINATION OF PARENTAL RIGHTS 2. TERMINATION OF PARENTAL RIGHTS
Seesections7800and7801onpage54. Thecircumstancesunderwhichthistypeofproceedingwouldmostlikelybebroughtarethose
concerning: an abandoned child, neglect or cruel treatment of a child, a parent disabled due to alcohol or controlled substances or “moral depravity,” a parent convicted of a felony, a parent declared developmentally disabled or mentally ill, etc.
Theprocedureforterminatingparentalrightsiscommencedbyapetition,whichisfiledbyeithera private or public adoption agency, including a state or county agency.
24 2. TERMINATION OF PARENTAL RIGHTS 2. TERMINATION OF PARENTAL RIGHTS
Atthehearing,thefundamentalconsiderationofthecourtisthedeterminationofthebestinterestsof the minor child.
Keepinginmindtheageofthechild,thecourtmayconsultwiththechildinchambers(inprivate), provided that he is at least ten years of age, in an attempt to determine the child’s wishes and feelings with respect to this matter.
Onceparentalcareandcontroloftheminorchildhasbeenterminated,thatchildmustbeplacedina foster home or some other suitable placement.
25 3. ADOPTION 3. ADOPTION
Thesuperiorcourthasexclusivejurisdictionoveranadoptionproceeding,theendresultofwhichisto designate a nonparent third party as the minor child’s parent.
Anindividualwhoadoptsaminorchildquiteliterallytakestheplaceofthechild’snaturalparentsand assumes all the rights and obligations pertinent to that relationship.
Thechild’srelationshipwiththenaturalparentissevered,andthatparent’srightsareterminatedfullyand finally forever.
26 3. ADOPTION 3. ADOPTION
Similarly,onceanadoptionhastakenplacethenaturalparenthasnofurtherduty,obligation,orrightto provide support, care, upbringing, or engage in any aspect whatsoever of the minor child’s life.
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Adoptionproceedingscancommenceeitherattherequestofone(orboth)ofthenaturalparentsorcan be instituted by the court (or other governmental agency) by its own motion in proceedings to terminate parental rights.
27 3. ADOPTION 3. ADOPTION
The Family Code specifically grants birth parents the right to relinquish their child for adoption to a licensed adoption agency or adoption department.
These birth parents also have the right to name the person or persons with whom placement by the department or licensed adoption agency is intended.
28 3. ADOPTION 3. ADOPTION
Theprocessofpetitioningthecourtforadoptionisactuallynotcommencedbytheadoptionagency, notwithstanding the fact that it, following relinquishment or termination of parental rights, maintains the exclusive custodial right over the child.
Instead,thepetitiontoadoptachildwhoisrelinquishedtoadepartmentorlicensedadoptionagencyis brought by the prospective adoptive parents with whom the child has been placed.
ThespecificproceduralaspectsoffilingapetitionforadoptionaresetforthinFamilyCodesection8714. 29 4. INDEPENDENT ADOPTIONS
4. INDEPENDENT ADOPTIONS
In contrast to agency adoptions discussed above, Family Code sections 8800 to 8823 set forth the statutes designed to regulate the so-called independent adoptions, which are becoming more and more common in our society.
These independent adoptions are arranged and handled outside the context of the intervention and oversight by a county department or agency; rather, they are typically handled by an attorney.
30 4. INDEPENDENT ADOPTIONS 4. INDEPENDENT ADOPTIONS
Basically, an independent adoption starts with the birth parents’ selection of prospective adoptive parents who are personally known to them.
The appropriate county adoption agency is statutorily mandated to investigate the proposed independent adoption and submit to the court a complete report containing the facts disclosed by their inquiry along with a recommendation regarding the granting of the petition.
31 4. INDEPENDENT ADOPTIONS 4. INDEPENDENT ADOPTIONS
Thecountyadoptionagencywillconductathoroughinvestigationoftheprospectiveadoptiveparents, including an investigation of the adoptive parents’ criminal record, if any.
Undercertaincircumstances,anadoptioncanbevacatedafterthefact. Suchanattempttovacateanadoptionmustbecommencedwithinthreeyearsattheearliestandfiveat
the latest of entry of the court order of adoption. 32 5. ADOPTION OF ADULTS AND UNMARRIED MINORS
5. ADOPTION OF ADULTS AND UNMARRIED MINORS
The adoption of an adult or a married minor is a much less complicated procedure primarily because the prospective adopted “child” is capable of consenting to the adoption himself.
After the adoption, the adopted child and the adoptive parent will maintain the legal relationship as parent and child and have all the rights and be subject to all of the duties of that relationship from then on.
33 5. ADOPTION OF ADULTS AND UNMARRIED MINORS 5. ADOPTION OF ADULTS AND UNMARRIED MINORS
The procedure for an adult adoption generally commences with the preparation of an
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adoption agreement which is executed by the prospective adoptive parent and the prospectiveadoptee,andwhichestablishesthenatureoftheadoptionandtheconsent of all parties thereto.
Thereafter, the prospective adoptive parent and the prospective adoptee will file a petition for approval of the adoption in the superior court.
5. ADOPTION OF ADULTS AND UNMARRIED MINORS
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5. ADOPTION OF ADULTS AND UNMARRIED MINORS
Finally, section 9340 of the Family Code sets forth the right of a person who has been adopted pursuant to this adult adoption procedure, upon notice given to the adoptive parent, to file a petition terminating that relationship with parent and child
At the hearing on that petition, the court will examine the propriety of entering such an order.
6. CHILD ABUSE
6. CHILD ABUSE
Asageneralrule,situationsinvolvingsuspectedchildabusearereferredtoandfallwithintheexclusive jurisdiction of the juvenile court, sometimes referred to as the dependency court.
Theminormaybedeclaredtobeawardofthecourtif: Theminorhassuffered,orthereisasubstantialriskthattheminorwillsuffer,seriousphysicalharm
inflicted non-accidentally upon the minor by the minor’s parents or guardian. Seepage66.
6. CHILD ABUSE
6. CHILD ABUSE
The ultimate goal of the dependency court is to prevent the recurrence of abuse, to eliminate the existence of abusive conditions in the home, and to provide a reunification of the family and the child.
The focus of the dependency court is, of course, on protection of the child, and there are significant jurisdictional protections for both the child and the parent in these circumstances.
6. CHILD ABUSE
6. CHILD ABUSE
Dependency court proceedings are generally conducted in two stages: the jurisdictional phase (when the determination is made whether to take jurisdiction over the minor child), and the disposition phase (the time at which the court decides what to do with the minor child once it has taken jurisdiction over him or her).
CALIFORNIA FAMILY LAW
CHAPTER 1
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2 A. APPROACH TO FAMILY LAW A. APPROACH TO FAMILY LAW
Most counties have adopted the use of a series of branch courts, located throughout the county, to make the courts easily accessible to all areas in the region.
In Los Angeles, for example, there are 50 separate courthouse locations among 12 branch courts.
3 A. APPROACH TO FAMILY LAW A. APPROACH TO FAMILY LAW
Central(downtownandsurroundingareas),East(Pomonaandsurroundingareas),North(Lancaster), North Central (Burbank, Glendale), North Valley (Chatsworth, San Fernando), Northeast (Pasadena and surrounding communities), Northwest (Van Nuys), South (Catalina, Long Beach and San Pedro), South Central (Compton), Southeast (Norwalk, Whittier and surrounding areas), Southwest (Torrance and nearby communities), West (Beverly Hills, Malibu, Santa Monica and related areas).
4 A. APPROACH TO FAMILY LAW A. APPROACH TO FAMILY LAW
The various branches are defined geographically, with the county being split up (generally by known cities or areas of the county) by territory.
In addition to case opinion and statutory law, there is a panoply of treatises dealing with the subject of family law.
PARALEGALS, 5 Ed. Chapter One Introduction to Family Law
Some of the more popular include: see page 6. 5 B. JURISDICTION, SERVICE OF PROCESS; VENUE
B. JURISDICTION, SERVICE OF PROCESS; VENUE
Of paramount importance regarding basic litigation procedure are the concepts of jurisdiction (over what (and when) is the court empowered to render decisions), service of process (how does the court obtain this jurisdiction), and finally, venue (where should the action be filed and heard).
In addition to these concepts is the related question of the residence of the parties. 6 B. JURISDICTION, SERVICE OF PROCESS; VENUE
B. JURISDICTION, SERVICE OF PROCESS; VENUE
Always ask two questions: (1) Does the court have subject matter jurisdiction, and (2) does the court have personal jurisdiction?
The answer to these questions must always be “yes” for the matter to proceed. If the answer is yes, the subject matter jurisdiction must come from some statute; some
specific source of statutory law must have given the court the power to hear the case. 7 1. SUBJECT MATTER JURISDICTION
1. SUBJECT MATTER JURISDICTION
InCalifornia,pursuanttoFamilyCodesections200and2010,thesuperiorcourthasexclusive jurisdiction to hear all issues arising out of a marital dissolution (or other Family Code) matter.
Specificallystated,allissuesinthefollowingmattersshallbedecided(atthetriallevel)inthesuperior court:
Childcustody,childvisitation,childsupport,spousalsupport,propertydivision,issuesrelatedtoor arising out of the above, and status of the parties as married persons.
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8 1. SUBJECT MATTER JURISDICTION 1. SUBJECT MATTER JURISDICTION
Everyonceinawhile,twodifferentstatesmaybecompetingforsubjectmatterjurisdictionovera dissolution of marriage.
Althoughnotcommon,itdoesoccur,typicallywhereoneofthespouseshasmovedoutofstateand subsequently decides to file for dissolution.
Becausesubjectmatterjurisdictionisgenerallyappropriateinthestateofdomicileofeitherspouse,there can be instances of both parties filing for dissolution at or about the same time, thus vesting subject matter jurisdiction in two different jurisdictions at the same time.
9 1. SUBJECT MATTER JURISDICTION 1. SUBJECT MATTER JURISDICTION
This is easily resolved, however: The state that is first to acquire jurisdiction over the other party by service of process will be the forum for ultimate resolution of the case, regardless of which case was filed first.
It is the first to serve not the first to file that controls. 10 2. RESIDENCE AND DOMICILE
2. RESIDENCE AND DOMICILE
ThereisanadditionalrequirementthatatleastoneofthepartiesmustbedomiciledwithinCalifornia. Thismeansthatatleastoneoftheparties,eitherhusbandorwife,mustbelivinginCaliforniawiththe
intention of making it his or her permanent home. Bydefinition,apersoncanonlyhaveonedomicile. Thiswillcontinuetobethatperson’sdomicileuntilheleavesthestateandestablishesapresenceinsome
other state, with the intent to remain there indefinitely. Mereabsencefromthestatedoesnotdestroyaperson’sstatusasbeingdomiciledthere.
11 2. RESIDENCE AND DOMICILE 2. RESIDENCE AND DOMICILE
A person’s residence, on the other hand, is not thought of in terms so permanent in nature. A residence can be any location where a person lives for any period of time. One can have several residences, but only one domicile.
12 2. RESIDENCE AND DOMICILE 2. RESIDENCE AND DOMICILE
To establish domicile, one must establish intent. This requisite intent can very often be established employing evidence of the following
factors: home (or other property) ownership, voter registration, location of tax filings, where an individual pays state taxes; all of these can help to establish one’s “intent to remain indefinitely” in a particular state.
13 2. RESIDENCE AND DOMICILE 2. RESIDENCE AND DOMICILE
The legal effect of a judgment entered in California when neither party is domiciled here is that it is void; that is, it is not subject to recognition at all and is of no force and effect whatsoever; it is not entitled to full faith and credit (that is, recognition) by other states, and it is susceptible to be challenged either directly by a motion to dismiss, or indirectly by challenging any attempt to enforce its provisions.
14 2. RESIDENCE AND DOMICILE 2. RESIDENCE AND DOMICILE
FamilyCodesection2320setsforththeresidencyrequirementthatmustbemetbeforeentryofadecree of dissolution.
Thissectionrequiresthatatleastoneofthepartiestothemarriagemustbearesidentofthisstateforsix months and of the county in which the action is pending for three months immediately before commencement of the dissolution action.
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Thisrequirementdoesnotapplyinactionsforlegalseparationornullity. 15 2. RESIDENCE AND DOMICILE
2. RESIDENCE AND DOMICILE
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If a party is new to the state and must initiate an action immediately, the next step is to commence an action for legal separation, wait the six-month period mandated in Family Code section 2320 to establish residency, and then amend the Petition to change the request from “legal separation” to “dissolution of marriage.”
3. PERSONAL JURISDICTION The next step in this inquiry is the establishment of the court’s appropriate exercise of
personal jurisdiction over the parties in question. “Traditional notions of fair play and substantial justice” allow a court to exercise personal
jurisdiction on either of the following bases: Physical presence in the state (this assumes personal service of process)
3. PERSONAL JURISDICTION Domicile in the state when the action is commenced Consent to the exercise of personal jurisdiction by the respondent “Minimum contacts” with the forum state See Code of Civil Procedure section 410.10 on page 10.
3. PERSONAL JURISDICTION
Thisconceptistypicallythoughtofastheminimumcontactsrule:Solongasapersonhascertainminimum contacts with the state, and purposefully avails himself of the benefits and protection of California’s law, then personal jurisdiction is appropriately exercised.
Personaljurisdictioncanbeconferredonthecourtsimplybyaparty’sappearanceandconsenttoit. SeeBurnhamv.SuperiorCourtonpage11.
4. SERVICE OF PROCESS The other concept fundamental to this discussion is that of notice and opportunity to be
heard. The notice requirement is satisfied by properly serving the papers involved in the lawsuit on
the opposing party. The main principle of service of process is to advise one’s adversary of the exact details of
what is being requested in the lawsuit. 4. SERVICE OF PROCESS
Caremustbetakentoinsurethatthepetitionthathasbeenservedontherespondentcontainsallthe specifics of the request.
Ifnot,thepetitionermayhavetoamendthepetitiontoreflectthemissingspecificsandre-servethe papers all over again.
Ingeneral,judicialcouncilformsaremandatedforuseinFamilyLawActmatters. Thesearepreprinted“fillintheblanks”typeforms,designedtomaketheprocessmoreaccessibleand
intelligible for the public. 5. VENUE
Offinalconsiderationinthisproceduralsectionisthequestionofvenueor,inotherwords,thequestion of where the action should be entertained.
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PursuanttoCodeofCivilProceduresection395(a),venueinamaritaldissolutionproceedingis appropriate in the county where one of the parties has resided for three months immediately preceding the commencement of the action.
Forgoodcause,thecourtmayrelocatetheproceedingstoadifferentvenueifitwouldservetheinterest of justice by being more convenient for all concerned.
5. VENUE Thisobjectionbasedoninconvenientforumiswaivedifnotraisedatthefirstopportunity. Sometimesasituationariseswhere,afterseparation,thespousesrelocatetodifferentcounties,andthen
each start their own dissolution actions. Inthiscase,thefirsttoservetheotherwillhavethebenefitofhavingthematterheardinthecountyin
which they filed the petition. Notethatitisnotthefirsttofile–itisthefirsttoserve.
23 6. ATTACKING THE JUDGMENT 6. ATTACKING THE JUDGMENT
Generallyspeaking,onceajudgmentinanycivilaction(whichofcourseincludesafamilylawmatter) becomes final, it becomes subject only to modification and enforcement.
Inthecontextofattackingajudgment,therearetwotypesof“attacks”tobementioned:collateraland direct.
Adirectattackisraisedinthecontextoftheproceedinginwhichtheoffensivejudgmentwasrendered; for example, a motion for a new trial or an appeal.
24 6. ATTACKING THE JUDGMENT 6. ATTACKING THE JUDGMENT
A collateral attack, on the other hand, is raised in a separate proceeding whose goal is to demonstrate that the previous judgment is void based on (usually) some jurisdictional basis.
A collateral attack is raised in one of two ways: an action filed to declare the judgment void or by asserting the invalidity of the judgment as a defense to its enforcement.
25 6. ATTACKING THE JUDGMENT 6. ATTACKING THE JUDGMENT
The grounds upon which a judgment is generally attacked include lack of subject matter jurisdiction, lack of personal jurisdiction, lack of notice given to the respondent, judgment entered in excess of the court’s jurisdiction, and other due process violations.
26 C. ETHICS AND THE PARALEGAL C. ETHICS AND THE PARALEGAL
Manyandvariousrulesareassignedtogovernandregulatethebehavioroflicensedattorneysin California.
TheseruleshavebeencodifiedasCaliforniaRulesofProfessionalConduct(CRPC)andarepublishedas part of the California Codes.
ThemandatesfoundinCRPC3-310provideawidebasisforpotentialproblemsforthefamilylaw attorney. (See pages 17 and 18).
Wherethereisnotactualconflictpresent,althoughnotagoodidea,thecourtwillgenerallypermitdual representation.
27 C. ETHICS AND THE PARALEGAL C. ETHICS AND THE PARALEGAL
Thissituationariseswherethepartieshave,infact,resolvedalloftheirdifferencesandareinagreement on all issues.
Inthisoccurrence,afterafulldisclosurebytheattorneyoftheconflictcoupledwithanintelligentand informed waiver of the conflict of interest, the attorney may proceed to represent both sides.
However,ifanyactualconflictarises,thatlawyermustwithdrawimmediatelyfromrepresentationof both of them and cannot continue to represent either of them.
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D. THE FAMILY CODE
EffectiveJanuary1,1994,theCalifornialegislature,recognizingthatthestatutesimpactingonfamilylaw matters were spread out over no less than five separate codes, consolidated the statutes into the Family Code.
TheFamilyCodeisdividedinto17Divisions,eachcontainingvarioussubdivisions,called“Parts,”which are further subdivided into “Chapters,” the final level of division being called “Articles,” depending on the breadth of the subject covered and the need for such detail.
TheDivisionsoftheFamilyCodeareasfollows:seepages21and22. D. THE FAMILY CODE
Familylawisprimarilyacreatureofstatute:Mosteverythingneededtobeknowninfamilylawhasits genesis either in these code sections or in the cases that have interpreted them.
OfparticularnoteintheFamilyCodearesomeofitsexplanatoryprovisions,whichsectionshelporient the reader to the fundamental concepts underlying the laws and provide a theoretical base for the other more specific statutes.
Abriefexampleofsomeoftheseprovisionsfollow:seepages23and24.
D. THE FAMILY CODE Californiaisa“no-fault”statewhenitcomestodissolvingmarriages.
ThisbasicallymeansthatalloneneedstodotoobtainadivorceinCaliforniaistoaskforit. InCalifornia,FamilyCodesection2310codifiesthisnofaultconceptbyprovidingthatdissolutionof
marriage(orlegalseparation)isavailableif“irreconcilabledifferences”exist, whichhavecausedan “irremedial breakdown” of the marriage.
E. VALIDITY OF MARRIAGE 1. Generally Theconsentrequiredpriortobeingabletoenterintoamarriageisthesameasthatrequiredforentering
into any other contract: The parties to the marital contract must both be at least 18 years of age, or entering into the marriage with their parent’s consent unless a minor is an “emancipated minor,” in which event he is treated as an adult for these purposes.
Theconceptofsolemnizationofmarriageliterallyreferstotheceremonyinvolved. ItisnotenoughtosimplygetmarriedinCalifornia;theremustbesome“ceremony”involved.
E. VALIDITY OF MARRIAGE The Family Code, at section 420, provides the essential elements of solemnization as
follows: “No particular form for the ceremony of marriage is required for solemnization of the marriage, but the parties shall declare, in the presence of the person solemnizing the marriage and necessary witnesses, that they take each other as husband and wife . . ..”
E. VALIDITY OF MARRIAGE
A person authorized to solemnize marriage must be a “priest, minister or rabbi of any religious denomination . . . a judge or retired judge, commissioner of civil marriages or retired commissioner of civil marriages . . . a judge or magistrate who has resigned from office . . . .” or one of the miscellaneous other federal and state judges, justices, magistrates, and retired judges, justices and magistrates.
E. VALIDITY OF MARRIAGE
The duties imposed upon the person solemnizing the marriage include conducting the service, insuring the correctness of facts set out in the marriage license, issuance of the
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marriage certificate, and returning the license, endorsed with the fact of the marriage, to the county recorder of the county in which the marriage ceremony was performed.
E. VALIDITY OF MARRIAGE 2. Confidential Marriages The basic condition for obtaining a confidential marriage is that the applicants have been
living together prior to their marriage. All that is required to obtain the issuance of a confidential marriage license is that the
applicants appear personally, pay the required fees, and complete the appropriate application and affidavit.
E. VALIDITY OF MARRIAGE
Once issued, the confidential marriage license is treated basically the same as a “normal” marriage license except that the county recorder maintains these confidential licenses in a special location, and the public is not allowed to inspect them.
Further,thecountyclerkisallowedtosearchtheserecordstoestablishtheexistenceofthemarriage,but no other information (date of marriage, for example) will be made available except upon court order.
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