Recent Blog Posts in December 2010

First, I'm assuming that Patricia B. is your birth name, or that you had previously obtained a name change whether by court decree or prior marriage. I say this because Family Code section 354 (dealing with marriage licenses) requires a photo ID that accurately lists your given or subsequently legal name so I expect that is what you presented to obtain the license.

Second, your existing marriage to Jill is valid at least as of the date of marriage, for all statewide applications under California law. It is hard to imagine that your post-marriage gender operations (and hence post-marriage gender status as a male) in any way changes that. It makes me wonder what happens to an opposite sex couple where one subsequently completes the procedures that you have undertaken (i.e., opposite genders marry, but then one changes their gender so they are both now the same-sex) - would that invalidate the marriage?  Complicated stuff.

Third, no California statute speaks to gendered changed individuals as qualifying as a man (in your case) for purposes of marriage, where they were born as a woman, for purposes of Family Code 300 or the amendment to the California constitution (Proposition 8) that occurred after your marriage. This means to me that it would require an appellate decision (or legislative enactment) to provide such authority and I can't tell you of any specific California case that has so found but, again, I've not researched it in detail. If California does accept your sex change as legally making you a male this would improve your position under federal law, discussed below. Do you have an affidavit from your doctor verifying that the surgery changed your sex designation? Have you investigated amending your birth certificate? I recommend it. The legal viability of sex change is a matter for states to determine, according to the 10th Amendment of the United States Constitution. 

Fourth, I would be concerned that dissolving your existing marriage without a clear understanding of these issues could place you at risk in the sense that, at least as of today, you can't remarry Jill IF you are legally a woman. Hence, I would be very careful about dissolving your existing marriage. You would have exactly the same rights in California as a same-sex married couple as you would as domestic partners. However, if you dissolved the marriage, didn't entered into a RDP, and then some court ruled later that your remarriage was not legally valid you would have no legal status other than possibly as a "putative" domestic partner or spouse. This could negatively impact your legal rights and responsibilities, and increase litigation costs, should the relationship end.

Fifth, at this time, federal law especially as it relates to tax filing status, isn't bound by any state's statutes and doesn't recognize same-sex marriage for that purpose and a number of others. This results from the Federal Defense of Marriage Act and a history of gender prejudice, among other things.

I also don't know whether federal law recognizes the gender change as making you a male since your sex-change operation (but it might, as discussed above). I am aware of at least one federal administrative case that suggests that if California recognizes your sex change operation, you might qualify as an opposite gendered person under federal law at least for some purposes (i.e., interpreting immigration rules and statutes per In Re Lovo-Lara).

Sixth, I can't see how remarrying under your new name, and post-surgery, would add anything to the mix, legally speaking.  You have changed your name and so Jill is now married to Alex. The only area where it seems it might matter from a legal perspective is qualifying for some status or benefits under federal law. It doesn't add anything in California for you to divorce and remarry under your current name and gender. I recognize you haven't asked about federal legal status and this may be irrelevant to you, and I don't pretend to be an expert on federal law.

______________

I cannot resist speaking to your situation as a metaphor for all of us. My belief is that until we each expand beyond our myopic judgments of what others should choose for themselves our internecine cultural, gender, familial, racial and nationalistic struggles will escalate. Mind you, any student of human history knows that such is part of our collective personality structure - that we ban together against 'outsiders' to protect our group - and possibly this trait is even a reason for our success as a species thus far, if not for the "others" who were sacrificed. In an increasingly crowded and heterogeneous world the things that worked before may presently assure our common peril.

Pioneering such as yours challenges us to rethink our biases, and sometimes even to consider that they might only be artificial points of view 'full of fit and fury, signifying nothing.' We can just as easily hold a belief with righteous self-certainty one day only to hold its opposite to be true with equal earnestness the next (or simply recognize that we were mistaken in the first instance). In my experience as a family attorney who has listened to countless individuals express what they think went wrong with their marriage or domestic partner, and in the course of my own life, I am always humbled how little we and I know 'for sure' and how the "truth" shifts from moment to moment. When we misplace humility we tend to become fixated on forcing others conform to our expectations - inevitably leading to conflict. 

Our brains may actually be hard-wired to hold biases. Most people recognize they have little control over the thoughts that pop into our minds. I suspect that we don't lose biases as an effort of will, but instead that they fall away as part of a larger process. Until they do fall away, the trick may be simply to remember to distrust these thoughts and not to believe they are true simply because they arose. Certainly that strategy might relieve the emotional component to prejudice.

All beings desire peace, and freedom. May each of us find it in our own way. But perhaps the web of our interdependence requires that we allow others to do so, first..., I don't know, dear reader. What makes sense to you?

Q.  My attorney has used the word "tracings" several times, and I really don't understand how this works.  Can you give me a simple explanation?

A.  Unlikely (sorry!).

Tracings may be required by California law in a number of settings in order to find out what each spouse's share of the community property is. They generally show up in several recurring situations, but unfortunately for simplicity's sake there are numerous permutations of where tracings come into play. Chief among them is where cash or assets that was used to purchase property was "commingled" (think tossed salad with separate property lettuce leaves and community property mixed vegetables) at the time it was contributed. Please use the search engine at the upper right to see my Blog Articles for the definitions of community and separate property.

These include:

• Determining the community verses separate property attributes of an asset that was acquired with funds contributed during marriage that were a combination of each (CP and SP). This is called "characterization" - does the asset belong in whole or in part to the community estate, or to one party's separate estate, or both in different degrees? The community component is sometimes earnings that were used to pay down secured debt each month when, for instance, a mortgage principal payment is made for a separate property asset (a Moore-Marsden situation). It can include one time downpayments from joint bank accounts that contain community income or earnings (or separate property accounts that may have been commingled with joint funds or not or community property accounts that include separate property components) further complicated in the case of a refinance, and more.

• It is extremely common that a community property asset (acquired during marriage, possibly but not necessarily in joint names), or improvements to it, traces partly or 100% to a separate property source. Many parents 'gift' their child part or all of  the downpayment for the couple's first home. Or, a separate property asset (acquired during marriage but titled in one spouse's name alone - usually seen with real estate) may be purchased using joint funds.  In either event there is a tracing right of reimbursement per Family Code section 2640 to the respective community or separate property interests that bought it, in the event of a dissolution or legal separation. FC §2640 is in the top five of all California property division statutes and is critical for an understanding of what your legal interests are if either spouse has any colorable claims to separate property used during marriage. Many middle income and high asset property division cases are a puzzle map of assets that are not what they seem at first glance.

• There are a number of situations where reimbursement claims arise from the payment of joint or separate debts using money that the other spouse had an interest in (whether community funds or separate). Under limited situations there may be a right for the community, or the other spouse's separate property, to be reimbursed, but you will be required to trace these funds to claim them.

• Often intended or unintended transmutations have occurred. Family Code section 852 is the chief transmutation statute, and another of the top five California dissolution property statutes. Transmutations involve a change in the character of property, from community to separate or from separate to community or separate to the other party's separate property. These commonly require tracings in order to establish the FC § 2640 interest. For instance, husband and wife own a residence together in joint names. It was purchased during marriage. But there is need for a refinance, and one spouse's credit is bad. The parties agree that husband will borrow the money, and the lender requires that wife sign a quitclaim deed before escrow can close. Husband assures wife 'not to worry.' Wife signs the transfer deed and doesn't seek legal advice. She has unwittingly transmuted her community interest to husband's separate property. Years later the property has appreciated. What is Wife's interest? (Breach of fiduciary duty questions have to be the subject of a separate Blog but, again, please try our search engine for more information!)

Did I say I would give a simple answer?  No?  Good!

In order to unwind transactions during marriage where monies and property with separate and community property attributes have been mixed together, the "separatizer" (the party seeking to establish their separate property contributions to the community or separate property of the other spouse or partner) has the burden of proof to present reliable tracing evidence to the Court. In order to settle even mildly complex dissolutions as between the parties without going to trial, this information must be provided and laid out in a concrete manner to convince the other side that you have the ability to meet your burden.

Here are some of the rules that apply the mechanics of tracings in dissolution actions and legal separations.

If the commingled funds are used to purchase property, the party who deposited the separate funds may attempt to trace the source of the funds used to purchase the property to establish that it is separate because separate funds were used to purchase it. This may overcome the presumption that property acquired during marriage is community. Marriage of Mix (1975) 14 Cal.3d 604.

If separate and community property or funds are commingled in such a manner that it is impossible to trace the source of the property or funds, the whole must be treated as community property. Marriage of Mix, supra.

If the title to the property was taken jointly, tracing cannot be used to overcome the presumption from the form of title. Marriage of Lucas (1980) 27 Cal.3d 808, 813-814.

Direct tracing and tracing through family expenses are two independent methods of tracing to establish that property purchased with commingled funds is separate property.

Direct Tracing

Separate funds do not lose their separate character when commingled with community funds in a bank account so long as the amount of separate funds can be ascertained and at no time period were the funds spent down below the balance of SP claimed unless replenished with SP instead of CP. Marriage of Mix (1975) 14 Cal.3d 604.

If money is withdrawn to purchase specific property, questions of fact that must be determined include (Marriage of Mix, supra):

• Whether separate funds continue to be on deposit; and

• Whether the drawer intended to withdraw separate funds.

The party seeking to establish a separate interest in presumptive community property must keep adequate records. The party must show the exact amount of money allocable to separate property and the exact amount of money allocable to community property before it can be said that the money allocable to separate property is not so commingled that all funds in the account are community property. Marriage of Frick (1986) 181 Cal.App.3d 997. If the payments claimed to be separate were made periodically, each payment must have been made when separate property funds were in the account and must have been accompanied by an intent to use those funds rather than community funds. Marriage of Higinbotham (1988) 203 Cal.App.3d 322, 329.

Tracing Through Family Expenses

The second method of tracing to establish that property purchased with commingled funds is separate property requires a consideration of family expenses. This tracing method is based on the presumption that family expenses are paid from community funds.

If at the time the property is acquired it can be shown that all community cash and income in a commingled account was exhausted by family expenses, then all funds remaining in the account at the time the property was purchased were necessarily separate funds. Marriage of Mix, supra.

This method can be used only when, through no fault of the spouse claiming separate property, it is not possible to ascertain the balance of income and expenditures at the time property was acquired. See v See (1966) 64 Cal.2d 778, 784.

The spouse claiming separate property must keep adequate records to overcome the presumption that property acquired during marriage is community property. See v See, supra.  Most people don't.

The take-away:  If you are contemplating a divorce and have tracing issues, protect your records now so that they do not 'disappear.'  It can be very expensive to obtain bank statements and canceled checks dating back years, and with all of the bank failures and mergers today these records may become impossible to obtain.  If you cannot meet your tracing burden of proof, you lose on the particular reimbursement issue.

As you probably have guessed, tracings are quite expensive and typically involve the assistance of a forensic accountant. Moreover, not just any attorney will know what to do with this information!

Q.  Thurman - who do you recommend for court reporting services in the Coachella Valley? I work with an insurance defense firm in Sacramento, and we have a case pending in the desert and have a number of people to interview.

Tom H., Sacramento Attorney

A Cautionary Tale:

How Not to Run Your Separation and Custody Battle

"Paging Dr. Freud. Paging Dr. Freud.

* * * This is yet another case that reveals the ineffectiveness of Family Court in a bitter custody/access dispute, where the parties require therapeutic intervention rather than legal attention. Here, a husband and wife have been marinating in a mutual hatred so intense as to surely amount to a personality disorder requiring treatment....

... [I]t is not surprising that Larry and Catherine are having problems, serious problems, regarding the custody of, and access to, their children. The source of the difficulties is hatred: a hardened, harmful, high-octane hatred. Larry and Catherine hate each other, as do Larry and Sam. This hatred has raged unabated since the date of separation. Consequently, the likelihood of an amicable resolution is laughable (hatred devours reason); and, a satisfactory legal solution is impossible (hatred has no legal remedy)."

The decision details allegations of multiple death threats between the parents, between the parents' relatives and the other parent, between the new spouses and the other parent, changed locks on the residence, assault by Van, interferences with visitation, interrogation of children about the other parent, threats of jail, and a stream of abusive texts and phone calls, arguments that the children should be separated and divided between the parents, alienating behaviors even after court mandated counseling sessions, and more.

The court found the mother's behavior to be the more problematic of the two - "Had [mother] fulfilled her dual parental duty to foster and encourage access between [dad] and [the child] and not to speak disparagingly of him in the presence of [the child], I am confident that this case would have unfolded differently."  By the time of the trial the 13 year old daughter was so alienated from her father that the Court felt helpless to devise any remedy to repair the damage.  It made the following findings:

"(1) The alienation was not present before Larry and Catherine separated; (2) This is not a case where Taylor [13 year old daughter] has weighed the good and bad attributes of her father and found him, on balance, to be parentally deficient: she sees Larry as all bad - there is no ambivalence to her feelings; she is not disguising her true feelings; (3) Larry, although well-intentioned, is an inept father, who has not taken steps to identify, and fix, his shortcomings as a parent; nevertheless, the utter rejection of him by Taylor is disproportionate, unfair and unwarranted; (4) . . . Taylor has aligned herself with Catherine whose hate for Larry is palpable; the battle lines are clearly drawn and Taylor knows the side that she wants to be on; (5) I am unable to think of anything that Larry can do to quickly repair the damage in his relationship with Taylor; and, if I could, I have doubts that he has the skill-sets to pull it off; (6) I did not hear evidence of a single instance of Taylor, since separation, expressing love or affection for Larry; (7) Although children are often required by their parents to do things that they do not want to do, obligating Taylor to visit her father or to engage in counseling is considerably more complicated than insisting that she do her homework or go to the dentist; (8) The history of the parties is such that there is no reason to think they would meaningfully take part in, or benefit from, therapy or counseling; (9) While it is Catherine's duty to encourage and support a relationship between Taylor and Larry, that duty has been breached too severely to be remedied by the court; (10) It is not realistic to expect that the parties have the incentive and finances to engage in the extensive therapy and counseling that are needed; (11) Depriving Catherine of custody (sometimes an appropriate way of dealing with an alienating parent) would not benefit Taylor at this point.

It is my view, sadly, that the alienation here is so severe that it is in the best interests of Taylor not to order or enforce access by Larry. If access happens, fine.

Without professional help, Larry is incapable of addressing the breakdown in his relationship with Taylor. Although, as I have said, well-intentioned, he is an ineffective parent and, without counseling and other assistance, he will remain ineffective. While Catherine, aided and abetted by Sam, initiated the alienation of father and daughter, Larry has not improved the situation. But, I emphasize the fundamental fact that Catherine's conduct is the sine qua non of the alienation.

Absent counseling, matters will worsen, not improve. No practical purpose would be served if the court were to decree a schedule of counseling for the parties and the children. The hate and psychological damage that now prevail would require years of comprehensive counseling to undo. The legal system does not have the resources to monitor a schedule of counseling (nor should it do so). The function of Family Court is not to change people, but to dispose of their disputes at a given point in time. I preside over a court, not a church.

Larry might consider some common-sense steps, such as cards, letters or gifts, to show that he is receptive to a relationship with Taylor should she have a change of heart. However, he would be wise to have those steps independently vetted by a responsible person (preferably, a professional in the child-psychology or family-counseling field)."

I have residential property in La Quinta  My wife and I are divorcing and in the process of splitting assets.  She and her parents employed * * * of * * * in Palm Desert to value the property.  I'd like a second opinion regarding its value.  

I need some help in getting an honest appraisal.  What would your fee be to provide some help in finding an appraiser?

Thanks.

Frederic

Thurman

Q.  I have a question about proposing legislation to fill a loophole in the Family Code section 4058 definition of gross income, as it relates to net ERISA disability benefits.  Under Family Code section 4058, gross income includes disability benefits, (including net, untaxable benefits).  Under ERISA, if an insurer denies payment of disability benefits, the insured must file a quasi-administrative appeal of the benefits denial decision to overturn the denial.  If that quasi-administrative appeal is successful, benefits are reinstated, but the insured cannot recover attorney fees expended to successfully prosecute the quasi-administrative appeal.  (If the quasi-administrative appeal fails, one may appeal that decision in federal district court, obtaining attorney fees if successful.)  Because generally, ERISA preempts state law regarding insurance,  one may not sue the insurer for bad faith denial of ERISA disability benefits.

In my case, an insurer denied ERISA disability benefits, a decision I had reversed on quasi-administrative appeal under ERISA.  That appeal cost me 45% of my net disability benefits, as a contingency fee.  The family court commissioner found that the contingency fee merely increased my expenses, but the contingency fee did not reduce my gross income under section 4058, in spite of the fact that I only received 55% of the benefit I would otherwise have received.  Because this result is inconsistent with the definition of gross income under section 4058, subd. (a)(2), (in which a business proprietor's income is defined as gross receipts minus business expenses), inconsistent with appellate decisions defining gross income as income that is actually received, and imposes a double burden on those who lose disability benefits, requiring that child support be paid from unreceived income, I would like to propose legislation to amend the Family Code to fix this inconsistency.  The proposal would merely define section 4058 gross income as including disability benefits, less the attorney fees and costs expended to obtain those benefits.

Do you think that such a change to the Family Code is warranted, and, if so, can you suggest mainstream family law associations that might be willing to consider supporting such legislation?  There are thousands of ERISA disability recipients in California, and practically every employer-sponsored disability insurance benefits policy in California is governed by ERISA.  I appreciate any information you can give me.

Best regards,

John

John:

This is a penetrating question, a very specialized inquiry, and an unfortunate story - thank you for taking the time to bring it to my attention. I do wonder if I have all the facts, however, because it is also surprising.

My initial response is that the court must have erred, much as you point out.  You mention appellate court rulings that also suggest this - but I understand the point that 'who can afford an appeal' and that these matters are best resolved by providing clear direction to trial courts to they don't make mistakes in the first place (assuming this is indeed true under existing appellate decisions). LOL, eh?  Have you filed for Reconsideration?

It is also a question I've not thought about before, having never faced the issue in my practice. I will have to give you what may be a shallow response, although I plan to look into it and possibly improve this blog soon.
 
One solution would be the changes you propose, or perhaps there needs to be some clarification in Family Code section 4058 that "net benefits" should be charged to the recipient rather than simply "receipts." This could then ignore the attorney fee deduction language component, if legislators were troubled by that remedy, but might open a larger can of worms without language that applied it to disability benefits only. But I don't know if it is the best answer, since letting people deduct attorney fees from income is a broad and difficult task and could create interpretational problems and factual controversies. 

Perhaps legislators might liker the vagueness of adding "net" to "receipts," since trial courts could then evaluate it on a case by case basis. I note that Family Code section 4058(a)(1) has "actually received" language, except that it is within wording that relates to spousal support income from a third party. If the "actually received" language was applied to the overall subparagraph (section 4058(a)(1)), this would resolve the problem. I would have to review the legislative history of section 4058 to offer more.

Family Code section 4058(a)(2) gives trial courts discretion to deduct an arguably similar class of write-offs or deductions from gross income (i.e., "expenditures from the operation of a business") for self-employed people.  Family Code section 4059 speaks in terms of "net disposable income" and an amendment there might be of use - but, 4058 is the biggie for trial courts dealing with child support issues.

As to recommendations about what family law organizations might be available to champion a legislative change, unfortunately other than AARP and your local California assembly person, I have no intelligent recommendations today. But I will endeavor to look into it.  I am hoping in time that legislators will in time read my blogs!

BTW, there may be further facts to your situation that influenced the outcome, since it does seem hard to comprehend. For instance, do you have new-mate income that the court considered in some fashion? Are family members paying for any of your living or residence expenses and was this attributed to you? Was other income imputed? I am assuming that you are tax exempt on this disability income stream, and might the court put you in the support calculator in the nontaxed income column?

A final note - if the time is not up, you might appeal this ruling. Appellate decisions that create unfair results (i.e., refusing to charge you with the net) are an alternate but expensive route to change inequities in our system when they exist, since they are courts telling the legislature - "if you want a different result, you change it."

• Facilitating access to counsel by parties early on in the proceedings should be encouraged, and attorney fee awards help to accomplish this.  This is because cases are more likely to settle when people begin with a parity of access to resources, and settlement is always the ultimate goal.  FC §2030(a). 

• Courts must now make findings on whether an award for attorney fees and costs is appropriate, including based upon the question whether there is a disparity in access to funds to retain counsel, and whether one party is able to pay for the legal representation of both parties.  FC §2030(b).  This revision directs trial courts to apply a variation of the disparity of earnings analysis that was first expressed in Marriage of Hatch (1985) 169 Cal.App.3d 1213, an appellate decision that some trial courts had ignored.  Relative access measured in terms of such disparity is now key.  "Disparity" implies 'a great distance or gap.'

• The California Judicial Council is directed, by January 1, 2012, to promulgate and adopt state-wide court rules in order to implement this directive in terms of what information is to be submitted to court's to support attorney fee requests.

From an experienced family lawyer's point of view, my take on this revision is that its greatest value is in telling family court judges that attorney fee awards in appropriate cases are to be the standard and not the exception.  I suspect, however, that judges and commissioners will remain overly conservative.

From a family sciences point of view I believe it is a significant improvement in the law if we are to equalize power between spouses and, frankly, genders.  More often than not women have been on the losing side of the attorney fee question in the sense that they have not controlled community or other resources to the same extent, and in the same manner, as many of their husbands.  I think that it will advance woman's rights in family law litigation.  

I do not want to overstate the power of this revision.  It is a move in the right direction, but nonetheless something of a baby step.  We will await appellate court pronouncements as to what standards family courts should apply as trial courts are reversed for being too timid or parsimonious, or even too generous.  The California Judicial Council is given to 2012 to propose state wide guidelines that will give direction to courts, and that may help to foster uniformity between different venues, in coming years.

    "(a) At a hearing on any order to show cause or notice of motion brought pursuant to this code, absent a stipulation of the parties or a finding of good cause pursuant to subdivision (b), the court shall receive any live, competent testimony that is relevant and within the scope of the hearing and the court may ask questions of the parties.

    (b) In appropriate cases, a court may make a finding of good cause to refuse to receive live testimony and shall state its reasons for the finding on the record or in writing. The Judicial Council shall, by January 1, 2012, adopt a statewide rule of court regarding the factors a court shall consider in making a finding of good cause.

    (c) A party seeking to present live testimony from witnesses other than the parties shall, prior to the hearing, file and serve a witness list with a brief description of the anticipated testimony.

If the witness list is not served prior to the hearing, the court may, on request, grant a brief continuance and may make appropriate temporary orders pending the continued hearing."

Family Code section 217 will cause a sea-change in day to day family court proceedings across our state, unless family court judicial officers ignore it to the limited extent possible by court rules.  It will likely have immense financial and resource consequences upon not only the courts but upon parties to family court proceedings.  It will force the state government in coming years to study whole new paradigms for resolving divorce and domestic partnership dissolution outside the adversary template, including those currently practiced in New Zealand and southern Australia. 

It will also pressure parties to consider mediation, and collaborative processes which occur outside congested courthouses, much more carefully.  The costs of adversary litigation are about to sky-rocket, making mediation even more appealing from a financial perspective (I have written extensively about the emotional and psychological benefits here an elsewhere).  There simply is no governmental money available to absorb the coming Elkins Onslaught. For more information about an alternative method for resolving family disputes, please visit us at www.DesertFamilyMediationServices.com.
  
At the same time, at least in the short run taken together with some of the other revisions that become effective next month, it may encourage more people to litigate more stubbornly and so make mediation seem less attractive than it did before the changes (just the reverse will be true).  Some folks will mistakenly assume that this invites the use of court hearings as a live-testimony forum for sharing unresolved complaints relating to their marriage or domestic partnership dissolution with the other party in open court.  Instead, judges will sustain objections to such irrelevant material and parties who seek to use Family Court as a platform to air relationship grievances will find themselves alienating the trier of fact in ways that will have adverse consequences to them beyond just the time and expense of the exercise. 

The purpose of today's Blog is to introduce you to section 217 and the new changes.  I will follow up with more articles in coming weeks.  Without a doubt the new rules will make all the information I provide on my websites more relevant and timely for my readers. 

• Will it be useful to the court to permit questioning of this child?
• What will be the risks and benefits to a particular child of being permitted to testify in favor or against a parent?
• How shall testimony occur?  Will it be allowed in open court, or in the judge's chambers? 
• Will there be uniformity between jurists or branches or counties in terms of court policies, or will it just be every department decides for itself how and what rules apply?
• Who besides the judge will be allowed to ask questions of the child?  This includes questioning outside the court proceeding, say when a third party is appointed to obtain the information for the court.
• What type of cross-examination will be permitted, since cross-examination is essential to assuring due process within the adversary court setting by testing the credibility and basis for testimony?
• Will any safety measures be adopted, and will there be any sensitivity to the potential consequences to children once kids are drawn into testifying, since they can't possibly have any understanding of how such testimony will affect their parental relationships with the nonfavored parent?
• Should different standards be applied in deciding to allow testimony from children about their parental preference when those requests are made after therapist based or similar recommendations come out and disfavor a party, as opposed to before they recommendations are known?  After all, what is to stop every disgruntled parent from demanding that their child state their preference (which that parent doesn't like or accept) in every case?
• What testimonial facts will be relevant?  A child's stated preference is one thing, but shouldn't a party or their attorney then be permitted to ask questions about parental coaching?  Spoiling and buying kid's loyalty?  Whether the child wants to live with mom or dad because they don't impose rules in their home?
• Does the court even have enough information to answer the threshold question of whether a child should be permitted to testify without first seeking outside assistance?

In order to succeed in achieving a client's goal of hearing from children when it serves that parent's agenda or perceptions, or in limiting either a child's input or damage to the child by having to voice a preference for one parent over another, custody lawyers and self-represented parties will do well to consider these questions in advance of making requests to the court.

It will be interesting to see if some judges effectively nullify the statutory mandate by imposing roadblocks or alternate routes that keep the questioning outside the family court proceeding itself.

Note: The Judicial Council has now, a year after this article was written, adopted Cal.Rules of Court Rule 5.250. Be sure you read and follow it carefully if a child wishes to express a preference.