Recent Posts in Changes in the Law Category

Form 8332 Must Now Be Submitted With Your Return
If A Noncustodial Parent Wishes to Receive the Dependency Exemption for a Child

• The name of the child
• The name and social security number of the noncustodial parent claiming the exemption deduction
• The social security number of the other parent
• The signature of the custodial parent
• The date of custodial parent's signature
• The year(s) for which the claims are released

However, for divorce decrees (or similar orders) issued after 2008, the IRS will no longer accept a divorce decree in lieu of of Form 8332 or the qualifying statement.

For divorce decrees or orders issued before 2009, if the decree or a separation agreement went into effect after 1984 and before 2009, the noncustodial parent can attach certain pages from the decree or agreement instead of Form 8332, provided that these pages provide information that is substantially similar to 8332. However, to be eligible to do this, the divorce decree must state:

• That the noncustodial parent can claim the child as a dependent without regard to any condition (i.e., such as the common language that the claiming parent must first be current on their support obligation)
• That the other parent will not claim the child as a dependent; and
• The years for which the claim is released

The noncustodial parent must attach all of the following pages from the decree or agreement:

• A cover page (that includes the other parent's SSN)
• The pages that included all the items described above
• A signature page with the other parent's signature and the date of the agreement

This means that in every child support order from now on (and before as stated above), particularly where the Court utilizes the guideline formula (Xspouse, Dissomaster, etc.) and in doing makes assumptions about how the dependency claims will be distributed, that there must be additional order directing the custodial parent to sign Form 8332 -and parties will be very well served to have that form with them at the hearing so that they can ask the custodial parent to sign it then and there. Otherwise, a payor noncustodial parent may find that they were ordered to pay more support by the Court than otherwise on the mistaken belief that they would be getting a tax savings, only to find that the IRS disallows it.

Here is Form 8332.

Thanks Brian! By the way, I highly recommend Brian's services as a thorough professional tax preparer, accountant, and CPA.

Rich v. Thatcher (2011) 200 Cal.App.4th 1176 

"Grandmother contends that the trial court erred in applying the clear and convincing burden. We disagree with her and agree with the trial court's legal conclusion. We hold as follows: To overcome the presumption that a fit parent will act in the best interest of the grandchild, a grandparent has the burden of proof and must show, by clear and convincing evidence, that denial of visitation is not in the best interest of the grandchild, i.e., denial of visitation would be detrimental to the grandchild. The fair import of the word "detriment" is damage, harm, or loss. (See American Heritage Dict. (2d college ed. 1982) P. 388, col. 2.) If grandparent visitation is in the grandchild's 'best interest,' it is not 'detrimental.' If grandparent visitation is not in the grandchild's 'best interest,' it is 'detrimental.' [citations omitted].

Until today, no appellate court has expressly held that section 3102 requires clear and convincing evidence to overcome the presumption. 'There is some authority for the proposition that the same test which applies to a custody award to a nonparent should apply to a visitation award to a nonparent that is, that "judicially compelled visitation against the wishes of both parents" "must not be allowed unless it is clearly and convincingly shown that denial of visitation would be detrimental to the child." ( In re Marriage of Gayden (1991) 229 Cal.App.3d 1510, 1517, 1520 ... [involving a motion for visitation by a biologically unrelated person under former Civil Code section 4601 (now Fenn v. Sherriff , supra , 109 Cal.App.4th at p. 1486; see also dictum in In re Marriage of W. , supra , 114 Cal.App.4th at p. 74 ['Where natural parents are unified in opposition, nonparental visitation can be ordered only if such visitation is in the best interest of the child and denial of visitation would be detrimental to the child'].)

'The degree of burden of proof applied in a particular situation is an expression of the degree of confidence society wishes to require of the resolution of a question of fact. (Citation).' [Citations omitted]. There is no question that a grandparent has an important interest in visiting with a grandchild. But the higher degree of the burden of proof that we adopt simply demonstrates that there is a preference in favor of the presumably correct choice of a fit sole surviving parent. Such choice is 'first.'

In formulating our holding, we are guided by and adopt the cogent analysis of Justice Chin in his concurring and dissenting opinion in In re Marriage of Harris, supra, 34 Cal.4th at pp. 247-250; see also the concurring and dissenting opinion of Justice Brown at pages 251-253. To adequately protect a fit sole surviving parent's constitutional right to raise a child, a "mere preponderance" burden as to "best interest" is not sufficient. The "clear and convincing" burden, i.e. evidence "so clear as to leave no substantial doubt," promotes a parent's constitutionally protected "first" choice. The higher evidentiary burden preserves the constitutionality of section 3102 and insures against erroneous fact finding. ( Id., at p. 248.)

The clear and convincing burden is not insurmountable. We can certainly envision a case where a trial court could factually find and rule that grandparent visitation is appropriate over the objection of the fit sole surviving parent. This, however, is not such a case. The trial court did not credit grandmother's testimony.

Even if the trial court had erroneously applied too strict of a burden for grandmother, we we would still affirm the order denying visitation based upon the trial court's alternative ruling. As indicated, we commend the trial court for its well-articulated order. First, it ruled that the "clear and convincing" burden was appropriate. This was a debatable issue which we now settle. But it was also prescient in articulating its alternate best interest ruling which is rooted in traditional family law principles. 'We may not reverse . . . simply because [in theory] some of the court's reasoning was faulty, so long as any of the stated reasons are sufficient to justify the order. [Citation.]' ( Kaldenbach v. Mutual of Omaha Life Ins. Co. (2009) 178 Cal.App.4th 830, 844.)"

Note to reader - I've added some emphasis to this.

So, we now have a rule that is clearly intended to honor the constitutional issues addressed to some extent in the U.S. Supreme Court's Troxel decision. But the decision omits to discuss any of the legislative history of Family Code section 3102 as to whether the burden of proof that is associated with it is nearly as hard as what the decision makes it become. While "clear and convincing evidence" is not an "insurmountable burden," practically speaking any lawyer will tell you it almost is. Morever, while the decision admits that grandparents have important interests in visiting with grandchildren, it totally ignores the rights of children to know their families of origin. There is no mention that any lawyer was ever appointed for the minor in this case. 

This decision should also be evaluated in light of a Fourth Appellate District decision issued less than a month ago. In Hoag v. Diedjomajor the Riverside based appellate district upheld a trial court order for visitation after a grandparent's child died. The burden of proof applied by the Court was not discussed, but was implicitly by a "preponderance of the evidence."

The outcome was the opposite than here, but in many ways it is entirely consistent with Justice Yegan's decision - and here is what is interesting for me: If a parent refuses visitation, even if they don't get along, to spite the grandparent, they lose. But if the grandparent seeks visitation after spiting the non-biological surviving parent, they lose.

And, I wonder, how can a "fit" parent (by definition) deny any access at all between their child and that child's grandparents, especially when the intergenerational parent is dead, except under the most outrageous of circumstances? Yet, having said that, I must confess that if a grandparent does behave outrageously, then their rights should be limited or nonexistent. Oy vey, possibly the record that we will never see discloses that such was the case here - but we must take it on faith, apparently, that it was. I don't see how we need to impose a burden of proof by clear and convincing evidence to ensure that bad grandparents are fenced in - I mean "fenced out".

Another question bothers me - the decision points out that there were nine other witnesses who testified at the trial beyond the grandmother in this case. Did these include the maternal grandparents, who possibly were more favorably received? So often these types of litigation wars can only be funded by older people who have accumulated some wealth. Often these family battles include or are really between parents' parents. I notice that the mother in this case appears to have had premiere local counsel, and that must not have been cheap. The paternal grandmother will foot some of their bill in this case since costs were assessed against her.

But then, of course, other losers as a result of this decision are the grandchildren of grandparents who can behave themselves who may be affected by this new burden of proof. IMHO. But you may disagree - please feel free to comment if you do!

Marriage of Guilardi (11/7/11) 200 Cal.App.4th 770

• Rule 5.93 relating to attorney fee and cost applications, which identifies the steps for a litigant or court to take in requesting, responding to a request for, and awarding fees and costs based upon financial need;

• Approve optional form FL-157, Spousal or Partner Support Declaration Attachment, for litigants to use, as an attachment to the Request for Attorney's Fees and Costs Attachment (form FL-319), Declaration for Default or Uncontested Judgment (form FL-170), Application for Order (form FL-310) and Order to Show Cause (form FL-300) or Notice of Motion (form FL-301) to request that the court award, modify a request, or deny a request for spousal or domestic partner support and to provide supporting facts that address the issuesidentified in Family Code section 4320, which are also required in a request for attorney's fees and costs;

• Approve optional form FL-158, Supporting Declaration for Attorney's Fees and Costs Attachment , for litigants to use, as an attachment to Request for Attorney's Fees and Costs Attachment (form FL-319) or Responsive Declaration to Order to Show Cause or Notice of Motion (form FL-320), to provide the court with additional background information either in support of or in opposition to a request for needs-based attorney's fees and costs, such as any history of child support, spousal or partner support, or family support orders;

• Approve optional form FL-319, Request for Attorney's Fees and Costs Attachment, for litigants to use, as an attachment to the Application for Order (form FL-310) and Order to Show Cause (form FL-300) or Notice of Motion (form FL-301), to request that the court award needs-based attorney's fees and costs;

• Approve optional form FL -346 Attorney's Fees and Costs Order Attachment , for the court to use, as an attachment to Findings and Order After Hearing (form FL-340), Judgment (form FL-180), or Judgment (Uniform Parentage-Custody and Support) (form FL-250), to identify court findings and orders with respect to needs-based attorney's fees and costs; and

• Revise mandatory form FL-340, Findings and Order After Hearing , to improve organization and numbering, add clarifying language in item 1, add a reference to "parenting time" in item 2, add "Other" check boxes in items 2-6, add a check box for the court to attach new form FL-346 (see item 5 of this recommendation) in item 6, and add a check box for the court to order a continuance in item 9.

Part One

Lawyers Who Lie

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?

• 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.

• 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.