Recent Blog Posts in 2009

Q.  I have two children from a previous marriage.  I remarried two years ago, and my new spouse earns $8,500 month.  While my hours have been reduced during this recession and my monthly gross averages $3,500.  The ex is threatening to take me back to Court to increase child support based upon my new mate's income.  Can she do this?

A.  Of course ex-spouses can always take the other back to court, but that doesn't mean they will win.  We call these support modification proceedings.  In order to obtain a new order, she must prove there has been some material change of circumstances with regard to her needs, the childrens' needs, or your ability to pay a greater sum in support.

The key California statute on when and how new mate income can be considered is Family Code section 4057.5.  The basic rule is that courts cannot consider new mate or nonmarital partner income in the context of making child support or support spousal orders.  This means as a general proposition that your new wife's income of $8,500/month is not to be inputted into the support guideline formulas. 

There are two exceptions where new mate income may need to be disclosed and where it can be considered in setting child support:  1) Where there are "extraordinary circumstances" that would cause the exclusion of this income to create an extreme or severe hardship to a supported child.  However, if this hardship is shown, the court must first consider the effect of inclusion of new mate income on any other children including the new mate's children, and so that their interests trump the hardship to the child for which support orders are being sought.  2) By marrying somebody with high earnings, a spouse will pick up additional taxes based upon the other's income.  Since as far as the IRS and California Franchise Tax Board (FTB) is concerned, you are liable under community property laws for one-half of your new mate's income, regardless whether you file jointly, the added tax consequences upon this additional income can actually be the basis for a downward decrease in child support (County of Tulare v. Campbell) since there is less after tax income available to you from which to pay support.

There are very few reported California appellate decision on new mate income or which explain how FC section 4057.5 is to be applied.  In Marriage of Loh (93 CA4 325) a mother/former spouse convinced a trial court, based upon photos of the father's extravagant lifestyle (homes, cars, etc.) which were funded by his girlfriend's income and assets, to impute income to him for purposes of basing a child support award.  The appellate court reversed, stating "Evidence of lifestyle, particularly a lifestyle subsidized by a new 'nonmarital partner', is not a cheap substitute for proper discovery of income reported on tax returns."

In a very recent appellate decision (Marriage of Knowles (Oct. 2009) 178 CA4 35) a trial court was reversed after it accepted the former wife's argument that the community property income and assets of both he and his new wife should be used to determine his income available for support.  The trial court's mistake was include the half that belonged to the new wife, although it could have included just the half that belong to him.   There was no evidence of extreme hardship that justified considering the new mate's half. 

We’ve waited a long time for another case dealing with consideration of new-mate income under Fam C §4057.5. One of the few cases that has, In re Marriage of Wood (1995) 37 Cal.App.4th 1059 is cited here, but it came down in 1995. Neither the statute nor the cases provide any definitive answer regarding what actually constitutes either an “extraordinary case” or an “extreme and severe hardship,” although Wood seems to say that new-mate income can be considered where one of the parents is voluntarily unemployed or underemployed.

Rather than arguing for NMI (new mate income), a party seeking to have income assigned to a person who has remarried or is living with a nonmarital partner may find more success by arguing that income should be imputed to that spouse on the basis that they have an earning capacity which is not being realized.  For instance, if because your new spouse had sufficient income you chose to quit work or take a lower paying job it might appear you are shirking your support responsibilities.  Rather than charging you with NMI, a trial court could find that you had the ability to earn X dollars a month and so charge you for this phantom income by making that the basis for a support award.  Then, the community property (including your new mate's share) could be tapped to satisfy this obligation.

Incidentally, a California prenup can be an effective way to limit this exposure.

Q.  How are Social Securities Benefits Divided in Divorce?

A.  The Social Security Act of 1935, which as been amended numerous times over the years, is governed solely by the federal law.  States are powerless to effect changes in its rules and procedures.  Social Security benefits are not actually divided in divorce, and California courts do not divide social security rights.  They are not the subject of divorce settlements.  Social security benefits are considered the separate the property of the contributing spouse.  This is odd, since all other retirement plans are considered as part of the marital estate.  Government employees do not contribute to Social Security.  It is wasteful because, as discussed below, multiple former spouses can collect benefits on the same worker's history.  It is unfair because gays and lesbians who are domestic partners under state law gain no rights in the other's work history.

A spouse of a retired or disabled worker is entitled to derivative social security benefits IF the marriage was at least 10 years in duration.  This is defined as the period between the date of marriage and the date of termination of marital status.  It has nothing to do with periods of physical separation, and is not affected by a decree of legal separation.  It has nothing to do with the filing of a divorce itself.

The Social Security Act originally only covered certain job categories which reinforced traditional stereotyped views of family systems. Women generally qualified for insurance only through their husbands or children.  Amendments in 1939 added women, who became eligible to collect on their own earnings' record and became entitled to collect that or 50% of their husband's.  It was not until 1950 that benefits were extended to former spouses with children.  In 1965, former spouses without children were added but they had to have been married at least 20  years.  In 1977 this time period was reduced to 10 years.

Former spouses married for at least 10 years are now entitled to receive 50% of the Social Security beneficiary's benefits (as either derivative or dependent benefits) without reducing the worker's 100% benefit - in order words, in divorce the working spouse who contributed does not divide or share their retirement benefits and so the derivative benefits for former spouses do not cost either spouse.  They certainly, however, cost the taxpayers.  If the worker spouse dies, a former spouse(s) receives 100% of the benefits of the worker as a surviving former spouse.

This has many strange consequences.  One is that since spouses and state courts cannot divide the benefits, and it costs the working former spouse nothing to allow the other spouse to claim these benefits.  Imagine what hardship this might cause to a spouse whose marriage is terminated 9 years, 11 months, and 355 days after the date of marriage.  They would receive no derivative benefits, period.  It would cost the worker spouse nothing to delay dissolving the marriage one more day.  Many spouses who anticipate a future divorce strategically hold off filing until they are assured this time has passed or will pass, for good reason.  In California marital status cannot be terminated earlier than 6 months after the dissolution is filed and served.  I always alert clients to this area of the law, and have many times recommended patience; it would be attorney malpractice not to.  Sometimes raging working spouses want an earlier divorce just to deprive the other of this benefit.  This can be most unfortunate and downright ugly.  There is a procedure in California for dissolving marital status before a divorce case is completely finished (e.g., where property rights have not been determined) called bifurcation of marital status.  Sometimes a spouse wishes to get divorced immediately so that they can remarry, and this can interrupt the 10 years if the Court approves it.  Courts can order that the bifurcating party indemnify the other out of their own pocket for the loss of benefits, but as a practical matter there is no way for this indemnification to occur.  

Another consequence illustrates a major waste within the Social Security system.  Imagine that Fred marries Nancy the homemaker when they are 19.  After 10 years, they divorce. and Fred marries Jennifer.  After 10 years he moves on, dissolving that marriage and marrying Diane next.  He is now 49 years of age.  With his record, he still may have a couple of more marriages in him.  At this point, assuming that none of these three women have remarried or that they remarry after age 60 (a new marriage before age 60 terminates the right to derivative benefits), each of them are eligible to receive 50% of Fred's benefits while he continues to be entitled to 100%.  This means that 250% worth of benefits will be paid upon Fred's earning history alone.  Even better, if Fred dies before them, each ex-wife is thereupon entitled to receive Fred's 100% - which means 300% will be paid out and, since Fred is a serial monogamist, he will probably leave a widow (Tara) who likewise receives 100%.

Also, note the risks to the women.  If Nancy or Jennifer remarry before age 60 they lose any claims to the benefits generated by Fred and the count begins at zero with their new spouse and are based on the new spouse's earnings record with Social Security (assuming this person is not a government worker).  If their new marriage does not make the 10 year mark, they receive nothing from Social Security from either spouse.  This makes you want to reconsider a second marriage doesn't it - at least if you are a non wage earning wife!  Of course, few people ever think about this because they don't know about it; this is one goal of my website as an informational tool.

California has two state pension plans for government workers which exist outside of Social Security.  These are the Public Employees' Retirement System (PERS) and the California State Teachers' Retirement System (CalSTRS).  There are a number of city and county pension plans.  California teachers, state public safety officers (police and firefighters), and other workers who don't pay into the retirement portion of the Federal Insurance Contributions Act (FICA), do not receive social security benefits once they retire. 

They only may be eligible for some SS benefits based upon their spouse's record or their own earnings from private sector jobs.  However, even these benefits may be reduced under the Windful Elimination Provision (WEP) or the Government Pension Offset (GPO).  These are complicated rules and formulas which are beyond the scope of this answer. 

Q.  What rights do I have to permanent spousal support?

A.  Permanent spousal support is not usually "permanent," although it can be in cases of very long marriages.  Lawyers and judges also refer to it as post-judgment spousal support, alimony, judgment spousal support, or long term support.

Unlike temporary spousal support, long term spousal support is only issued after a final judgment of Dissolution of Marriage or Legal Separation.  It is equally available to domestic partners.  Also unlike temporary support, it is not based on any computer formula or state or county guideline, but must be determined and fixed depending on the facts of every individual case.  If long term support is important to your future wellbeing, you are going to need an experienced support attorney.

There are several very important rules to keep in mind.  First, a marriage in California which lasts more than 10 years (defined as the time between date of marriage and physical separation), is "long term" marriage.  The general rule is that in marriages which are not long term, spousal support should not be payable for more than one-half the length of marriage - or to put in differently, the law presumes that the recipient spouse should be rehabilitated and so become self-supporting in a period equal to 1/2 the marriage.  However, this presumption becomes less important in cases involving older couples, especially where people can not be realistically expected to re-enter the work force, in cases where there children who remain minors, or where the party asking for support has a debilitating disease or disability.

There is no magic ratio for how long a former spouse might be ordered to pay long term support.  Each case depends upon its own facts, the quality of your attorney, and the attitudes of the family court judge.  Even in cases of long term marriages, the support obligation typically will end at some point in time.  However, if usually will not end on its own - meaning that when a trial court orders long term support it will reserve jurisdiction to continue to extent it, until some time when a party petitions the court to terminate support and a judge finally says "enough is a enough." 

Imputed income is often an important argument in long term support marriages, where one party convinces the court that the other party is shirking or failing to genuinely try to become self-supporting.  It is sometimes necessary to have the supported spouse evaluated by a vocational rehabilitation expert. 

There are four components to an award of of permanent support:  1) Amount; 2) duration; 3) substantive increases or decreases over time; and 4) jurisdictional step downs and ultimately a termination date.

Second, Family Code section 4320 is a critical support statute.  I have provided a link and uploaded it so that you may read it.  Essentially it sets forth all the factors that the court must consider in setting post-judgment support, and you will see that it is not an exhaustive list and the court can consider anything else it deems important to the decision.  Support factors include the extent to which the earning capacity of each party is sufficient to maintain the marital standard of living established during the marriage, considering:  a) the marketable skills of the supported party, the job market for those skills, the time and expense required to train that party including education and b) the extent to which the supported party's present or future income earning ability is impaired by periods of unemployment or were incurred during the marriage to permit that party to devote time to domestic duties.

Another factor is whether the supported party contributed to the attainment of an education, training, license, career, or position by the supporting party. 

Another factor is the ability of the supporting party to pay, taking in account that person's earning capacity, income, and assets and standard of living.

Another very important support consideration is the needs of each party - including both. 

Another factor is the obligations and assets of each spouse, including the separate property which each has or gained upon the dissolution.

Another is the ability of the supported spouse to engage in gainful employment without interfering with the needs of dependent children in their custody.

The age and health of the parties is critical in some cases.  65 years of age is the presumed retirement age for adults today, and courts cannot order a person to continue to be employed beyond that age - but, if they make that choice, their income can be considered.

A documented history of domestic violence can affect the right to receive support or the obligation to pay it.

The tax consequences between the parties must be considered.

And, basically, as I said, any other specific facts that trend one way or another.

The three most common factors are the marital standard of living (MSOL), need and ability to pay, and the assets the parties end up with upon divorcing.

Courts cannot order lump sums for support.  Spousal support is generally taxable to the recipient and deductible to the payor, but there are very specific IRS requirements that must be met for this to actually be so.

Courts are required to state their findings on each relevant issue in writing.  In practice though, most people settle their divorce cases by way of settlement agreements.  Unfortunately, lawyers often leave out these findings so that when a court is asked, down the road, by the payor to terminate or decrease support, or by the payee to increase it, there is no map for the court to use to base its modification findings on.

If support is an issue for you either way, please hire a competent lawyer.  There are many attorneys moving into family law from civil practices who are clueless about these things.  Caveat emptor!

Q.  How is temporary spousal support calculated in California?

A.  In order to be entitled to spousal support, parties must be married or be registered domestic partners.  Spousal support (which is not usually referred to alimony in California) is available in dissolution proceedings, actions for legal separation, and in connection with domestic violence applications. 

Spousal support orders may be temporary, or they be what is called permanent.  Different rules apply to how temporary support is figured than to permanent or long-term support.  I address permanent spousal separately.

Temporary spousal support is designed to preserve the status quo pending a final judgment.  Family Code section 3600 provides that during the pendency for dissolution of marriage or legal separation or in any proceeding where there is at issue the support of a minor child, the court may order the husband or wife to pay any amount that is necessary for the support of the husband and wife (subject to limitations contained in FC section 4320 and FC section 4325).  Again, parties dissolving domestic partnerships may also be awarded support.

Temporary spousal support has nothing to do with the length of the marriage.  Courts look at what the spending pattern was pre-separation and issues a spousal support award based upon need.  If there isn't enough money on the basis of need, then an amount is ordered based upon the higher earner's ability to pay.  A party seeking spousal support isn't deprived on the right to receive support even if they have income - the question is the relative income circumstances of the two parties.

Most California counties have formulas that determine temporary spousal support, but the two most important are Santa Clara and Alameda counties.  Essentially the spousal support formula for Santa Clara County - which is the dominant one - is as follows:  From any amount which is not allocated to child support, take 40% from the net income of the payor spouse, less 50% from the net income of the recipient spouse.  The resulting number is the temporary spousal support.  You do not need to have children to be entitled to receive spousal support.

As a practical matter, courts typically use one of two computer programs that generate these numbers:  Either the Dissomaster or Xspouse.  The Indio courts use Xspouse and the Santa Clara guidelines.

Into one of these programs are inputted the respective gross incomes of the parties.  If there are children of the parties, the custodial timeshare in percentages is inputted (because only a party who has physical custody for more than 50% of the year can claim the tax benefits of HH/MLA or head of household status, the programs require one to be considered to have 51% even in true joint custody arrangements). 

Only certain expenses matter for purposes of temporary support in California.  What doesn't matter at all is most personal expenses (like mortgage payments, utilities, debt).  This effectively ignores the entire debt structure of the parties at time of separation.  Health insurance, union dues, and mandatory contributions to retirement (i.e., typically not IRA contributions), and obligations existing to other minor children living in one party's home, or as to which an actual court order requires they make support payments, are also entered.  The support program 'tax effects' these numbers and figures out the net incomes of the parties.  It renders a number that tells the Court how much the higher earning spouse must pay for purposes of a court order.

Since the court determines the support obligation some weeks after a request for support is made (by way of Motion for Order to Show Cause application), it typically makes the support order retroactive to the date of the filing for the request.  Most courts order support payable one-half on the first and fifteenth of the month.  For this reason, if you file for support on the 5th day of the month, the court will not make support retroactive to the 1st but will start of the obligation on the 15th day of the month.

This might sound like temporary spousal support is easy to fix and who needs a lawyer?  This is not at all the case.  The final support numbers depend begin with how much income the Court is attributing to each party.  Each is required to submit before the hearing an Income and Expense Declaration ( form FL-150).

For instance:  A husband's (and wife's) income numbers are usually but not always based upon historical earnings, and the California judicial council form ( FL-150) requires both to set forth there total gross for the past 12 months and also the past month.  The legal assumption is that historical earnings are a reliable guide to future earnings, but this may not be at all true.  Especially in today's economy, historical earnings may not be indicative of what the income stream will be going forward.  This information needs to be credibly presented to the Court.

In cases where one party is a self-employed spouse, their net pre-tax earnings must be determined after deducting business expenses.  This is a common and complex area of dispute, because what is deductible for purposes of Schedule C accompanying a tax return according to the federal government is in no way binding upon California courts for purposes of figuring support.  If somebody works from home and charges part of the mortgage expense as a business deduction, that expense may be added back into the income stream as being available for support.

Another support battleground often involves imputed income.  What if one party refuses to work, or insists on working at a lower paying job?  Perhaps a support recipient believes they will get more money from their spouse if they have no job but if they tried to get one, they could?  What if one party claims that they aren't working and that no jobs are available?  Imputing income cuts both ways, and is extremely sophisticated. I will address another blog to it.

Incidentally, while only temporary alimony is calculated in this way, child support is always figured in this manner regardless whether there is a spousal support obligation.

Enforcing California Child Support and Alimony Orders

Wage Assignments

Support Contempt Proceedings

Writ of Execution/Receiver

Interest; Bankruptcy; Renewal of Judgments in Support Cases

Attorney's Fees in Collecting Unpaid Support

UIFSA in California

Child Support Civil Penalty

Child Support Security Fund

Department of Child Support Services Enforcement

Grandparent Custody and Visitation

Grandparent Custody Statutes

Question:  My wife moved to the desert with our two sons about 5 months ago.  Up to that time, we were living together at our home near Watsonville in Santa Cruz county, where I still live.  Yesterday she served me with a divorce petition filed in Indio, in Riverside County. 

•     The name of each witness for whom it will be inconvenient to testify;

•     The substance of their anticipated testimony;

•     The reasons why it would be inconvenient for the witnesses to appear in that court; and

•     Why the ends 'ends of justice' would be promoted by the requested change of venue.

Q.   My husband and I qualify as common law spouses in Canada, where we lived until 4 years ago when we moved to Palm Desert, CA.  Does this mean anything?

QUESTION:  Is overtime a factor in considering child support?

Q.  Can you please help.  I understand a Moore-Marsden analysis needs to be performed on my house in my pending divorce, but my attorney can't explain it to me. 

Frederic:

Here is an illustration of how the calculation works.  Please see my FAQ on Moore Marsden generally.  As you can see, it is complicated. 

You will need to get some further data: we need to the payoff balances on the date of marriage; the date of the transmutation (when your wife went on title), the date of separation, and the date of trial - which is the final valuation date - once it is set. 

If the transmutation is set aside (based upon a presumption of undue influence that your Wife violated FC section 721(b) which she has the burden of rebutting by establishing a fair consideration for the title change) - it will be a straight Moore-Marsden plus Family Code section 2640 or Epstein reimbursements for certain post DOS expenses.  Therefore, one scenario is:

Assuming                                                                $   54,875     DP and                                                                                6,836     
pre-marital principal reduction (you will need
the actual pay-off information)                                      25,125     pre-marital appreciation (which you can establish with you own
testimony based upon your opinion of value as an
owner) and                                                                (20,197)     principal reduction from the DOM to the DOS (again you will want
to have the actual pay-offs on the alternate dates
but am going with your given assumptions here)
then:                                                                         $54,875 [DP] PLUS $89,803
[SP Loan of $110,000 minus $20,197 CP payments]
= $144,678 DIVIDED BY $164,875 [purchase price]
= 's a 87.75 SP Interest

and                                                

$20,197 divided by $164,875="12.25%" CP interest

NEXT                                                                 $54,875 [DP]
                                                                                   6,836                                   
---  (plus post DOS loan payments which I don't
see broken out so assume zero here)                         $61,711 PLUS                                                                         25,125  (premarital appreciation) PLUS                                                                       315,900     [87.75% of post-DOM appreciation to present assuming $550,000 today
and not the $500,000 equals $550,000 less 164,875
less $25,125="$360,000]" - appreciation percentage of H's SP interest ='s $402,736 (H's SP share)

COMMUNITY:  $20,197 plus 12.25% of 360,000=" $44,100"
plus 20,197="$64,297" TOTAL CP INTEREST BEFORE REIMBURSEMENTS
divided by 2 = $32,148 equalization to W

EXCEPT at a minimum you get FC section 2640 reimbursements for the special assessments meaning deduct one-half of the $11,597 paid out from her equalization.

i would have to do another analysis assuming a valid transmutation.

I hope this helps more than confuses!

Q.  Can the primary physical custodian move away to another city even though my children attended 4 schools in 5 years?

The primary custodian cannot move away if you can convince the Riverside judge that the child/children will suffer a detriment from the move, which is independent of the interference with your custodial time share.  Is any therapist, mediator, child appointed attorney, or evaluator looking at this case?  A 13 year old child is old enough to express a meaningful preference under Family Code section 3042, and you need to get these wishes to the court.  The court evidently is uncomfortable with the move.  You need to ask one or all of these folks be appointed, and you need to ask that legal and physical custody be awarded to the two of you jointly, or solely to you in the alternative.  Please see what I have written here as it may help guide you:

http://www.thurmanarnold.com/Practice-Areas/Relocation-and-Move-Away.aspx

Q.  My Neice has a 1yr old son. She is always gone on drugs and alcohol. Her mother is basically in control of the boy. She cares for him 24/7, takes him to doctors...my niece doesn't seem to care for him. I told my sister in law she needs to get custody of her grandchild ASAP. She is afraid if she calls they will take him away from her. He is in a loving home, has own room and all the care he needs. We would take him but I have 2 boys myself, no room. I know he would be in the "system" until she legally adopts him...what do we do?

Q.  My girlfriend is having our baby in September, but I don't know if I am the dad.  I really care about her but a friend told me that I need to be careful because if I go to the hospital with her, I have to pay support no matter what.  Is this true?  What is she files a paternity action?

Keith:

California law encourages hospitals to get a signed Voluntary Declaration of Paternity ("VDOP") from the male who appears to be a parent at a time when a mother gives birth.  This is something that is presented to proud fathers at the time of a child's birth, along with information about legal obligations, and that they are asked to sign.  There may be alot of guilt and confusion going on at this time.  Hopefully there is simply pride.

The public policy is that the State wants to identify biological fathers early on, and to encourage them to step up to the plate both financially and in terms of providing emotional parenting to children.  It is also assumed the male who shows up for the birth is most likely the bio dad, and that the parties know it.  Obviously, it is not always true and sometimes a man does not turn out to be the actual father.  Sometimes he believes he is, and sometimes he is told he is.

Children need their biological parents; this is critically important.  Any bio parent who shirks his responsibility out of financial or emotional selfishness lacks integrity, and their decision has serious consequences on other lives that a true parent will recognize and regret one day, unless they are a sociopath or lack any conscience.

BUT the signing of a VDOP has serious important legal consequences.  It is equivalent to a Judgment of Paternity, which may only be set aside for a limited time.  While children deserve parents, whether a man that has sex with a mother before a child is born should be determined based only upon that, and their sense of moral responsibility, and therefore to be adjudged a responsible parent also raises integrity and fairness questions in favor of the alleged parent.  While California law on this subject means well, and may statistically result in the proper outcome more times than not, in my view innocent men who turn out not to be biological parents have rights too.  The law says so too, and the question becomes whether you or not you waive your rights to object in a timely fashion.

So, please understand, if you sign a voluntary declaration of paternity next month, you may be adjudicated the legal father of this child regardless whether you are the bio parent.  That has privileges and it has burdens.  You will have the privilege (assuming the mother does not challenge you before two years after the child's birth) of being a "legal parent" whatever the DNA turns out to be, including rights to custody, visitation, companionship, etc..  You will also have the legal financial burdens which I describe under my support obligations FAQ's.  For a long, long time, and even possibly forever. 

Family Code section 7573 establishes the effect of a VDOP.  Section 7575 allows you to rescind that declaration but only if you do so within 60 days after birth of the child.  Otherwise, after birth, you have a 2 year window to seek paternity DNA testing and an order that you are not, in fact, the bio-dad.  The court has discretion to find you are the de facto parent even if you are not bio-dad, however, so even if DNA is conclusive and you are not otherwise the father - absent another man ready, willing, and able to step up, you may find yourself stuck.

These are weighty matters.  In my experience, and in most judge's experiences, woman know who the dad is.  Still, there are many reasons why a mother might lie - even including trying to insure that some bad person is never adjudicated the dad.  I would never judge your girlfriend and have no opinion on what your status truly is.

So, do what your heart tells you you are the dad, fine.  But consider getting DNA testing immediately before you, or the child and you, form any attachments and that way there will never be any question - nor any need to hire me to dispute paternity! 

Best of luck and, hopefully, congratulations!

TWA

I am a mom in San Diego County.  There are court orders out of El Cajon for joint legal custody and sole physical to me.  The old orders said I could move anywhere within San Diego County.  I just changed our son's school to north county San Diego.  I want to remarry, and have been living with my fiance for 4 years.  I believe the schools are better here.  Now our son's father is trying to force me to keep our son in the old school south of here, or to take custody.  He says the school our son was in is better.  I would have to drive 70 miles for school drop off and pickup.

I have no money for attorney fees because my last lawyer had only a year's experience, and she upset the judge and now I am out $10,000.  We have a hearing in 3 days.  Please help.

Mellissa

Attorney Fees Question/Assuming There Are Any Further Hearings

You are requesting attorney's fees because the issues involved are some of the most complex in this area of the law (parent relocation), and you are entitled to be on a parity with Mr. Tr xxx, who has been able to retain competent counsel. 

Specifically, tell the Court your request is also made under authority of Alan T.S., Jr. (4/2/09) 172 Cal.App.4^th 238 and In re Marriage of Keech (1999) 75 Cal.App.4^th 860.  Tell the Court that you are in pro per but do not want to be, but that obligation of supporting the child from this marriage plus the financial burden of your other handicapped child, makes it impossible for you to obtain legal representation without an order that Mr. Txxxx pay these fees.

1)      Establish that the final, current order, is for joint legal and sole physical custody to you.  Mr. Txxxx  rights are for visitation only, but not custody, absent a modification of the current orders upon a showing by him of a material change of circumstances.  Your move and the child’s new school is not presumptively, without more, a sufficient change of circumstances to warrant a change of custody even assuming he asked for it (I don’t know if he has).

2)      As the parent entitled to the day to day supervisory control of the child per FC section 3007 (defines sole custody), you had a presumptive right to relocate.  This is the same right codified in FC section 7501.  You have custody; dad has visitation rights.  (Btw, his visitation rights are not being negatively impacted by the move, by his own admission, since his objection only involves relative school ratings).

3)      As to the joint legal custody label, this only grants each of you the rights under FC section 3003 (decisions regarding health, education and welfare) during your respective custody and visitation times.  FC section 3083.  It is does not obligate you and he to agree on schooling absent a court order saying you had to first, per 3083, and it must be specific and mention “schooling” (I assume this is not the case).

4)      Even though you were not required to do it, you gave dad notice per FC section 3024 that you were moving north and changing the child’s schooling.  F’s atty intimidated you into filing a motion for permission to make the move, when they probably were the one’s obligated to file a motion to restrain the change, and so you have acted in good faith.  This is particularly true given the court order from (the ealier date) stating you can relocate anywhere within San Diego County.

5)      It is very important if their responsive declaration did not check the change of custody box, and if their paperwork only asks to restrict the change in schools – you need to be sure you are right about this before making the argument -- BUT if they are not seeking a modification of custody, then you have the right to move [7501] and change schools [3003/3083] and there should be no need for any further hearings and your application must be granted.

6)      Next, ONLY IF THEY’HE REQUESTED A CHANGE OF CUSTODY, then the next analysis is:  That this is not a de facto joint parenting agreement.  This not a Burgess footnote 12 case (which requires a “de novo” best interests of the child hearing only where there is true parenting agreement).  Here the timeshare numbers become important – you want him as low as reasonably possible without sounding incredible.  This is a straight Burgess situation, and therefore you have the presumptive right to move and you do not need to show that the your move was “necessary” or even in good faith, except with the added benefit to you that Burgess involved temporary orders and so the court had to do a best interest of the child analysis, while your case involves “permanent” orders and so that is not a ground for an evidentiary hearing (best interests was previously decided in your favor and the question will be not be reviewed again absent Dad showing a change of circumstances).

7)      Changing schools is not an adequate CoC as recently held by the California Supreme Court in Brown and Yana (2006) 37 Cal..4th 947.  There, like you, a parent with sole physical custody sought to move a much greater distance from the dad – Las Vegas.  Dad’s objection was that the schools in LV were inferior.  He wanted an evidentiary hearing before the move would be allowed, and he sought a change of custody to himself if Mom moved anyway.  The trial court correctly refused to allow an evidentiary hearing because the Father had failed to allege sufficient facts showing a detriment to the child by simply claiming the relative merits of schools.  Courts won’t step into that qualitative battle.  Instead, F needs to show that you are attempting to frustrate contact, which clearly is not the case, or some other “detriment” in his responsive declaration.  His failure to do so means he is not entitled to an evidentiary hearing.

8)      Since he is not entitled to an evidentiary hearing, even though a mediation is appropriate in the next month, it would be improper for this court to issue any orders that restrain your son’s ability to start school on 8/20/09 as planned.

9)      Father has failed to meet his burden.  You need attorney fees to retain competent counsel for any further hearings.

10)    Finally, under FC section 3044 there is a rebuttable presumption that dad is not a fit person to be a joint custodial parent because of the DV orders.

Best of luck on this.  If you get a court order for attorney fees, hire someone!

Thurman Arnold