Recent Posts in Evidentiary Hearings Category

An Overview of the "Hearsay Rule" and Its Applications
to Divorce and Family Law Proceedings

• Party admissions

Admissions are described above.

• Declarations against interest

 A nonparty's out of court statement may be admissible as proof of the matter asserted if certain threshold criteria can be established. The declarant must be unavailable to testify as a witness; they must be shown to have had personal knowledge of the subject matter; the statement must have been against the declarant's interest when it was made (i.e., something that was damaging to them or their interests); and the statement must have other indicia of reliability that the court finds warrants admission.

• Former testimony

Where the declarant has previously testified under oath in another action or proceeding, that testimony may be admitted if certain conditions are met. 

• Prior consistent and inconsistent statements

A witness' out of court statement may be admitted as proof of the matter asserted if it is inconsistent with the witness' testimony at the current proceeding. For instance, assume that "Fred" accompanied Mark, in the example above, to the bank to remove $20,000 from the safe deposit box. Fred confirmed this to wife's best friend Marge a few days after Mark made his admission to wife that he took the money. Wife now wishes to corroborate her story of what Mark said to her and did, because - after all - Mark will deny ever having said or doing any such thing, and this leaves the question open for the trial court to the extent it is a "he said, she said" situation between the two parties. Wife has the burden of proof on the issue, so reliable corroboration may be critical to swinging the judge into finding the money existed and was taken by Mark. Fred is not a party to the action, so his statement does not qualify as an "admission." Fred is called to the stand and is asked "did you accompany Mark to the bank and witness him open the box and remove $20,000?"  [Note - this is objectionable as a compound question, and would be asked the same thing in a series declarative questions to overcome that objection]. Fred answers "no way, I don't know what you are talking about." Wife next calls Marge as a witness, and she recounts what Fred said to her - i.e., that he accompanied Mark, and what Mark did. Fred's earlier, out of court statement to Marge, directly contradicts his trial testimony, and so comes into evidence as a prior inconsistent statement.

• Spontaneous declarations

This exception permits out of court statements to prove the truth of the matter asserted to come into evidence, when certain factors exist that courts assume indicate reliability can be established. Spontaneous declarations purport to narrate or describe or explain an act, condition or event that was witnessed by the declarant. The statement sought to be admitted must have been made "spontaneously" while the declarant was under the stress or excitement caused by such a perception.

Wife and Mark are having an argument at home. Paternal grandmother rents a room. She observes wife slap Mark. That grandmother immediately calls her best friend, Ruth, to ask what she should do - and she is crying and clearly distraught and describes what she saw. Now weeks later, grandmother has returned to her home in Florida and is not available to be called as a witness for Mark at Mark's DV hearing. However, Ruth is. Ruth takes the stand and Mark's attorney attempts to get into evidence what Mark's mother said. It is hearsay. However, Ruth's testimony about what Grandma said may come into evidence as a spontaneous declaration.

• Statements of physical or mental condition

These are distinct from the issue that arises when out of court statements are offered as circumstantial evidence of the declarant's state of mind, discussed above. Instead this exception relates to present or past physical and/or mental conditions or states.

• Business records

This can be a very important exception to know. Business records are admissible for the proof of what is contained in them (a) to prove the occurrence or existence of an act, condition or event recorded in the business record and (b) to prove the nonoccurrence or nonexistence of an act, condition or event not recorded in the record. There are requirements that must be met, which are contained in Evidence Code sections 1271 and  1272.

For instance, wife in our safe deposit box example subpoenas the bank's records to show that Mark accessed the safe deposit box days before separation. The bank produces the sign in sheets containing Mark's signature. This sign in sheet is hearsay - it is being offered to prove the truth of the matter asserted, that Mark accessed the box - which is circumstantial evidence that something was in it that might have been removed. Assuming a proper foundation is laid, the records come into evidence over the hearsay objection as "business records."

• Official records

__________________________

• Is the evidence you want to admit relevant to some issue in the proceedings? If not, it will not be admitted and no further analysis is required.
• Has proper foundation been laid to otherwise get it admitted?
• Is it hearsay?
• If it is hearsay, what exceptions apply?
• Even if it is other admissible, should it be excluded on some other ground set forth in Evidence Code section 352?

Good luck out there!

Marital Privileges Not To Testify Against Spouse or Domestic Partner

Sometimes married persons who are in litigation with third parties (i.e., former spouses and co-parents) are asked to reveal communications in deposition, through written discovery, or at trial between them that are protected from disclosure. It may help you to know when to assert an objection to such inquiries, and how to avoid answering such questions altogether.

California recognizes both a "testimonial privilege" and a privilege protecting "confidential marital communications". These privileges are codified in Evidence Code section 970, Evidence Code section 971 and Evidence Code section 980. They are distinct privileges, and the one that most often applies to family law are sections 970 and 980, where one's current spouse is embroiled, for instance, in litigation with a former spouse (or in paternity cases, the other parent). These privileges apply equally to registered domestic partners pursuant to the general application of Family Code section 297.5. Limitations on the marital privilege are generally found at Evidence Code section 972. 

These privileges serve two important public policy goals: 1) to preserve and promote marital harmony and 2) to encourage and preserve confidences between husband and wife. Essentially, the assumption is that society has more to lose from the disruption of the marital relationship that might be caused by encouraging spouses to testify against one another, or to disclose secrets, than it has to gain by learning what was said. This makes sense - however, unrepresented parties often lack an understanding about their rights and privileges, which can be waived if not properly asserted. Hence today's Blog.

The testimonial and confidential marital communication privileges require the existence of a valid marriage or domestic partnership. Keep in mind that they do not apply between you and the spouse or domestic partner whom you are litigating against - these privileges cease to exist as between parties to a dissolution or related family law proceeding. In addition, where no valid marriage existed (i.e., a marriage that was void at its inception (bigamous, incestuous, lack of proper solemnization and the like)), the privileges never arise. In contrast, where a marriage is voidable (minority, fraud, physical incapacity) the privilege exists unless and until a final judgment of annulment has issued.

Testimonial Privilege

• The privilege applies only during existence of valid marriage or domestic partnership
• A married person has a privilege not to testify against his or her spouse in any proceeding. Evidence Code § 970.
• A married person, whose spouse is a party to a proceeding has a privilege not to be called as a witness by an adverse party without the witness spouse's prior express consent. Evidence Code § 971.
• Both testimonial privileges belong to the witness spouse.
• The 970 privilege permits a spouse to refuse to answer questions requiring testimony about the other spouse, whether or not they are a party to a proceeding.
• The 971 privilege only permits a spouse to refuse to answer (or be called) in proceedings where the other spouse is a party.
• The 970 privilege belongs only to the spouse who has been called as a witness - in such cases (i.e., where the other spouse is not a party) the other spouse has no standing to prevent their spouse from voluntarily testifying.
• The 971 privilege belongs to both spouses. Thus, even if spouse B is willing to answer questions about spouse A in pending proceedings involving spouse A, spouse A can assert the privilege to bar the testimony that otherwise might have been obtained.
• Once the marriage is terminated by Final Judgment (for instance, even a "status termination" on bifurcated proceedings where other issues remain reserved and therefore open - like property division or custody), the privilege evaporates (but see the confidential marital communications privilege below).
• The privileges do not apply to proceedings brought by one spouse against the other.
• They do not apply to certain types of hearing, including competency or commitment/conservatorship proceedings (since alleged mental or physical condition may be in issue).
• These privileges do not apply to juvenile court proceedings. [EC section 972(d)].
• Trial courts are not required to inform spouses of their rights not to testify - being uninformed and then giving testimony that could have been avoided does not operate to permit the testimony to be stricken.
• There are critical exceptions to the privilege that apply in family court proceedings [EC section 972(g)]. These include:
  • A married person cannot claim the testimonial privilege to refuse to answer questions about issues relating to income, expenses, assets, debt and employment of either spouse.
  • An action brought against the spouse by a former spouse to establish, modify or enforce a child, family or spousal support obligation arising from the marriage to the former spouse.
  • An action brought against a spouse by the other parent to establish, modify or enforce a child support obligation for a child of a nonmarital relationship between the parties.
  • In proceedings brought by a guardian of a child against a spouse relating to a child support obligation.
• Note that the testimonial privilege in the exceptions above (disclosure of income and assets, etc.) remains intact if other information is sought beyond the scope of these finance related exceptions, as to the requested disclosure of such other information.
• There are two exceptions in which a spouse may be deemed to have waived their marital privilege to refuse to testify or be called as a witness:
  • Unless erroneously compelled to do so, a married person who testifies in a proceeding to which his or her spouse is a party, or who testifies against the spouse in any such proceeding, waives their section 970 and 971 privileges in those proceedings for all purposes. 'Erroneously compelled' means under circumstances indicating "irresistible force", for instance where a judge orders the spouse to answer the question.
  • A married person cannot assert these privileges in a civil proceeding which they themselves have brought, or are defending, for the "immediate benefit" of his or her spouse, or both jointly. In such cases the privileges are effectively waived. [Evidence Code § 973(b)]. A common example would include an action for personal injury damages against a third party.

Confidential Marital Communications' Privilege

Absent a waiver or an exception, a married person, whether or not they are a party to proceedings, has a privilege to refuse to disclose confidential communications between the married person or their spouse made while they were married or domestic partners. Evidence Code section 980. 

Here are some general points to understand as to the limitations of this privilege:

• There must be a valid marriage or RDP at the time of the communication.
• This privilege survives the dissolution of the marriage itself.
• Each spouse or former spouse holds and can assert the privilege.
• Only "confidential communications" are exempted from disclosure. A "communication" means a written or oral statement or act intended to convey a message.
• As to the existence of assets and debts, it doesn't prevent disclosure of the fact of the existence of same - it only protects communications about those subjects.
• The communication must have been made in a setting that reasonably implies a confidence. There is a presumption that communications between spouses were made in confidence, but that presumption can be overcome upon a proper showing.
• If a third person was present, then there may not be a presumption that the communication was intended to be "confidential" or the presumption may be rebutted.
• The privilege will not exist where the party asserting it is abusing the "mantle of confidentiality", for instance where it is part of an assault by one spouse upon the other.
• It cannot be asserted where its application would serve to enable or aid a crime or fraud that is being attempted (although the privileges under EC sections 970 and 971 may apply).
• It does not apply to proceedings against the spouses themselves, and there are other limited exceptions (juvenile court proceedings, for instance).

Thurman Arnold, CFLS

Working with Family Court Judges

I recently attended this year's annual AFCC (Association of Family and Conciliation Courts) Conference in Orlando. Two Canadian jurists put on a workshop entitled "Dealing With Difficult Judges," and they kindly gave their permission to share their materials with you. Many thanks to the Honorable Carole Curtis and to the Honorable Roselyn Zisman - both family court judges within the Ontario Court of Justice system. I summarize their observations and suggestions here, and add a few of my own.

As these two bench officers point out, judges like the rest of us can be difficult and reactive at times, and it can be quite challenging for attorneys and pro se litigants to know how to prepare for, and best behave within, the sometimes edgy or emotional atmosphere of family courtrooms. This tension, if not understood or managed correctly, can have negative consequences in terms of outcomes and more. My intention is not to imply criticism of our bench officers. Being an effective judge day in and day out requires vast knowledge and a patience and equanimity that would challenge even a Mahatma Gandhi.

I hope to have a frank discussion about how lawyers and self-represented parties might consider presenting their cases - or in working with cranky judges - in ways that are dignified and productive. My hope is to improve the civility and professionalism of the family court experience for all affected, and to help unrepresented parties to have a fairer access to justice.

Here are some pointers for how not to aggravate your family court judge or commissioner and a few thoughts about what to do if that happens, despite your best efforts. The opinions expressed herein are not one size fits all. I also want to start a dialogue about how to make the job of family law judges easier for them, or - to put it another way - to discuss a bit about how we might help them to help us.

Suggestions for Interacting With Family Court Judges

• Rule #1: Be Prepared

Judges have little patience with attorneys, and pro pro litigants, who aren't prepared when they enter the courtroom. Many litigants don't seem to know what they are asking the court to do, why they are asking for it, and what the best legal or factual grounds are for the orders requested. Courts everywhere, but particularly here in California with the passage of Family Code section 217 (which requires live testimony hearings upon request), are grossly overburdened. Judicial resources are not sufficient to meet demand in these budgetary times, and this places a pressure and premium on directness and efficiency. Economic limitations can also make judges a lot crankier than if they had reasonable and adequate time and resources to manage their caseload and calendars.

Depending on County size, wealth and population, California Family Law Judges typically have between 20 and 35 or more matters on their morning calendars. In the afternoons they are often holding evidentiary hearings for the more conflicted OSC/Law and Motion litigants, or have blocked off afternoons for trials. If they are to move through these calendars by the end of the morning, brevity and efficiency becomes exceedingly important. When do we expect that they will find the time to read what is contained in possibly more than 30 files before taking the bench to listen to oral presentations and cross-examination? For the more diligent judges the answer may be evenings and weekends. Which is often when hard working lawyers likewise find the extra time that they need to prepare for hearings and trial.

Therefore, one of the biggest mistakes that agitates judges is parties or lawyers who aren't prepared and can't present their cases with clarity. If, as a lawyer who is directly paid to identify and communicate the justness of your client's position, you don't appear to care overmuch about your client's case then why should our judges care? Lack of preparation, especially for lawyers, is a cardinal sin.

• Rule #2: Be Prepared For This Particular Judge

In jurisdictions with direct calendar assignments, where a judge is assigned to a case for all purposes or for all purposes possibly until the case is reassigned for trial, learn about the particular bench officer(s) who presides over your case. The more you know the better. Information allows you to make useful assumptions about a particular judge's attitudes and policies.

As Judges Curtis and Zisman note, the best judicial officers are predictable and consistent in their rulings. "A judge's value to the public as a judge is in direct proportion to the ability of the lawyers who frequent the court to predict how the judge will deal with a particular issue." I find this to be so true in my personal experience. Lawyers who know how judges tend to rule on a given issue can with confidence set their client's expectations realistically. Armed with such knowledge, both sides are in a better position to have productive settlement discussions that avoid a "crapshoot" and the associated risks and expense. Moreover, they don't waste time potentially infuriating bench officers with weak arguments that judges may made known that they rarely accept.

Lawyers who are active practitioners in any given court usually have good insights into local judge's attitudes. They may also be aware of information about a judge that is not generally available to the public, like their expertise, practice focus, and reputation before they took the bench. Knowing that while a lawyer your judge participated in a case that generated a published appellate decision on a move-away case, for instance, could provide you a wealth of ideas on how to tailor your presentation. Likewise, knowing whether a judge has been reversed is useful for making sensitive presentations.

Pro per litigants should consider observing a judge going through her calendar over the course of one or more days. You will learn tons about their judicial attitude from watching them in open court, and indeed you may witness other parties get scolded or reprimanded for missteps and so avoid the same mistakes. A simple but classic example is the family court litigant who brings a small retinue of family members who are there to provide familial support, some of whom cannot sit still without gasping, shaking their heads violently, or sobbing.

• Rule #3: Notify the Court If the Case Will Be Continued the Day Before

Sometimes one or both attorneys or parties intend to seek a continuance of a hearing, possibly because they want to discuss settlement but often because one or both are not ready to proceed or has late papers to submit.

Different judges have very different attitudes towards continuances, particularly where they have already invested the time reading the materials and then are faced with a continuance request. Lawyers who know that a case will not proceed are well advised to contact the courtroom clerk at least a day in advance to give a head's up - otherwise, they may wind up with a judge who justifiably feels "put out" and therefore cranky. Some allow self-represented parties to give advance notice of agreed upon continuances, but the other side will need to confirm it. Often messages must be left on the clerk's answering machine, and you may not know in advance whether they were received or acted upon.

Where both sides have attorneys and a particular judge is known to permit it, counsel should always let the court know one or even two days in advance that the hearing is not expected to proceed that day.

• Rule #4: Look At the Local Court Rules, If Any, and the California Rules of Court

Some counties or individual courts have local rules; many do not. Most judges have their own rules and styles, often never to be found in written form. It never hurts to ask the Court clerk, when the judge is off the bench, whether that courtroom follows any specific preferences, customs, or rules of procedures. 

The state-wide source for procedural rules impacting California Family Law (and Juvenile cases) are the California Rules of Court, beginning with Rule 5.100. Rule 5.118 is one of the immediately most important, since it deals with initiating common OSC and Motion requests for custody, support, etc. These rules apply to all family law matters in all California courtrooms.

The Riverside County Local Rules pertaining to Family Law cases can be found here. Start with Title 5. I discuss these in more detail below. The Los Angeles Family Court Rules can be accessed here. Basically you ought to go to the County website where your case is filed and look for the local rules for that particular venue. If they exist you will be well served to review them for relevant tips and local policies. 

• Rule #5: Talk to the Judge, Not the Other Party or Lawyer

The time to discuss your case or argue with the other side is before you enter the courtroom. It drives judges nuts when two lawyers, two pro se parties, or any combination of them begin to argue at counsel table as though the judge was not present. Keep your focus on the judge, and generally avoid looking at the other party except for emphasis. Never address them directly.

A very important related concept is that if you bring witnesses or support people in the courtroom, tell them in advance to keep control of themselves. This means no interruptions, no head shaking or head nodding, no gasps, and no agitated movements. It is natural that the people your bring to the hearing have a some degree of investment in the outcome. However, when these people act in an uncontrolled fashion, that may affect the court's evaluation of you. Thorough lawyers always remind clients and the support people who accompany them to maintain a even demeanor and not to speak unless spoken to.

• Rule #6: Never Assume the Court Has Read the File, and Never Ask

Judges can be easily overwhelmed at times for any number of practical or personal reasons. Never assume the Court has read your pleadings, but at the same time it is pointless to ask him if he has. Asking the question not only embarrasses the court, if they answer that they have not read it and you wind up getting what you wanted, you are inviting an appeal since appellate courts in California have reversed trial courts for ruling on matters where they've admitted on the record they've not read the file.

Instead, start your presentation as though the Judge has not read the materials. Most judges will interrupt you to advise you when they have read it. Be nimble. At the same time, understand that the court only has enough time to listen to summaries of information, not the entire case. You need to know in advance what your highlights are soundbites are, and they should be presented in as orderly a way as possible. Having outlined these in advance is very helpful in the heat of the moment, where you become distracted by some exchange you did not expect and must return your focus to your goals. Outline your highlights on a notepad in a way that a given sentence triggers your memory of the remaining points you wish to make.

• Rule #7: Make It Easy for the Judge

• Rule #8: Avoid Head-Butting With the Judge (and the Other Side)

Whether or not a judge seems difficult or cranky, it does not help to get into a head-butting contest with him or her because you just can't win it. Head-butting may be a "kiss of death" for an advocate; the issues themselves have degenerated into an ego contest, and if you are in court to serve your ego you will likely have an unpleasant outcome. Remember, people are watching, including court staff. The Judge not only knows that she is the supreme power in the courtroom, she has her dignity to protect. Confrontations with judges suggests a battle between equals, and you are not equal. It also implies a winner and a loser. If you head-butt with a Judge, you are asking them to prove to everyone present who is in control. That usually ensures that you will be shown to be the loser for the simple reason that finding in your favor may then imply that you are in control.

Head-butting might well begin with an attitude on the part of the judge. If this occurs, move into "damage control." Immediately lower your tone. Avoid flailing hands or arms. Speak evenly, slowly, and respectfully. This may defuse the situation before it becomes impossible to redeem. As Judges Curtis and Zisman put it "You must do whatever you can to end this contest. Consider a retreat, whatever that means in the circumstances. Move your reaction into this range...:  be calm, be measured, be focused, and be polite (be unfailingly polite)." With a particularly difficult judge, the hotter it gets the calmer you must become.

A cautionary note here: Many judges I know respect an advocate or a person who will stand up to them, and not simply fold because there may be some debate. So much depends upon your tone and style even as you perhaps stubbornly, but calmly, present your arguments or evidence. Hence, do not take these suggestions as meaning that if the judge seems to disagree with you that you should become silent. It is how you convey your message that often matters most.

Be persistent, unless it becomes obvious that the Court has heard enough. Often judges will tell you this.This can become a real problem if you have not had the opportunity to make "a record" for purposes of a possible appeal (something you never want, but sometimes must consider).  If you are foreclosed from making a record, you should note that respectfully before quitting.

Similarly, it is usually pointless to argue with a judge once they have ruled on any given matter, but if you feel there is more to say and you are uncertain whether the judge has heard as much as she will, you might try "Your Honor, before the court moves on, might I add one more thing?" 

• Rule #9: Never Lie to the Court

It is amazing to me how often attorneys will intentionally misstate facts to the court, or create inflammatory arguments that has little basis in fact. I am sad to tell you this happens a lot, and in fact this is one reason why divorce attorneys may be viewed as bottom feeders. Yet, this is only a small, if vocal, segment of the legal practitioner population. Similarly, parties in relationship disputes are highly motivated to misrepresent information for more directly obvious reasons. 

As a advocate, one of the most important things that lawyers possess is their reputations. Judges who will talk about it will candidly admit that they are every bit a catty lot as the next person or profession. The talk in chambers, they talk in lunchrooms, they talk in restaurants, they talk in meetings amongst themselves. One of the common topics is about the lawyers who come into their courtrooms. Their views about particular attorneys' reputations can be infectious within the judicial community, which is not to suggest that they do not attempt to remain impartial on a case by case basis. It is true that sometimes it feels that attorneys who too freely spin the facts get away with it. This is one reason I am a proponent of monetary sanctions against attorneys directly, something I suggest in my Davenport Blog. One consequence of unaccountability is that opposing sides, and unrepresented parties, take their cues from the lawyers they come into contact with and mimic bad behavior of those they observe. The behavior of legal professionals matters. terrible message to send. There are so many reasons why it is imperative that lawyers not be deceitful.

Never lie to the Court, whether you are a lawyer or a party. Once a judge gets fixed on the idea that your information is untrustworthy it will pervade his view of you within your case, and is likely to haunt you. There are subtle and not so subtle ways of punishing litigants by imposing outcomes that can be catastrophic for your life, from fixing alimony or support orders above your level to pay to depriving you of time with your children. And, be advised, lawyers love it when the other party lies. This is exactly what can be seized upon to win their client's case, sometimes far more dramatically than when people just admit the weaknesses in their positions and move on.

• Rule #10: Don't Tell the Judge it is Obvious She's Already Made Up Her Mind

It does happen that lawyers and parties may find that the Court has prejudged the case before any oral presentation; an example being the circumstances identified above where the lawyer or litigant has lost all credibility. But at other times it can be very difficult to understand why a bench officer may seem to have already decided your case before you open your mouth.  

This is a tough one there may not be much that you can do about it. The advice of judges Curtis and Zisman is to stay calm and focused, and just keep going. Don't respond with something like well, "I can see your honor has already made up your mind," and don't otherwise communicate this with your body language, glares, or tone. This too can be a tall order. But on balance neither the client nor their case can be served in this fashion. For lawyers, my experience is that clients better appreciate the fact that you remained professional rather than snotty with the judge, because they will watch in real panic as their spokesperson begins to lose his or her poise. Similarly, they will know you did everything you could where you don't pour accelerant on the fire.

Judges Curtis and Zisman suggest that lawyers and parties need to know, under such circumstances, when to fold. They also need to know how to protect the record - that is what is said on the record that is recorded by the court reporter. As with the rude and abrasive judge discussed below, a good record for an appeal may be your only hope especially in jurisdictions that video or audio record the hearing, since tones of voice and sarcasm are often lost in a written hearing transcript. And, beware, I once had this happen with an extremely difficult Juvenile Court Judge (retired some years now) and so made a request for the written transcript (which was all that was available), and when I received it I found that major portions had been edited out entirely. Obviously the judge had instructed the court reporter to falsify the transcript, but how was I to prove it? I did manage to get a Writ of Mandate on appeal that removed the judge from future hearings in the case, and then won it in front of a much better judge at trial. BTW, proof that a judge has doctored the hearing transcript would almost certainly result in judicial discipline if proved, but that is can of worms I do not recommend since if your attack on the court fails that judge might actually make it their mission to ruin an attorney or their case.

• Rule #11: Don't Duke it Out With the Rude and Abrasive Judge

Unfortunately I witness this more than I care to admit as an observer at courthouses, although very rarely in my cases these days and one possible reason is that I usually know when to shut up. Judges Curtis and Zisman state "Some judges are rude, aggressive, even abusive, for no apparent reason, or at least none that justifies this behaviour. It is extremely important for the lawyer (or the party) to be calm, and to remain calm, polite, [and] focused." I quote them directly to reinforce that I am not one lawyer griping about judges; similarly, I have friends who are retired bench officers and they will admit that such conduct occurs, and even that at times they regrettably engaged in it. 

The goal of lawyers in such situations is, above all, to defuse the situation. This may seem an impossible task, particularly when it is our job to protect our clients. If the behavior is really so over the top that our clients are being abused we must object to such behavior.

All I can recommend to nonlawyers is that they not get sucked into such exchanges with the court, but that at the same time they politely and firmly stand their ground.

• Rule #12: Ideas for Coping With Judges Who Do Not Know Family Law

California matrimonial law is immensely complicated. Many lawyers who regularly practice in family court really have little clue what they are doing, in part because the simpler contests arise over and over again and many lawyers learn enough to deal with these simple situations but would be highly stressed on more complicated situations. Likewise, many family court lawyers have very little actual trial or even deposition experience. They don't know how to cross-examine witnesses. They only have a glancing familiarity with rules of evidence. Some of these lawyers actually go on to become judges. Others may be quite skilled in the criminal arena, for instance, where they were once prosecutors or public defenders. These judges were once real trial lawyers, but that doesn't mean they understand family law. Others may have been quite senior civil litigators who nonetheless rarely if ever handled these types of cases. 

Curtis and Zisman point out that this situation is actually more easily remedied than some of the others discussed here. They suggest that particularly when you know that a bench officer is not overly familiar with this area, that you adjust your presentation to ensure that you covering the basics. State what you are asking for, identify any statutory authority, and discuss the legal standards that apply. One of the reasons I blog so much is to popularize information to empower nonlawyers. Lawyers have lots of legal treatises to subscribe to and review (when they bother); the public generally does not have these so nearly accessible. I hope this website aids you. However, please remember, my blogs and articles are intended merely to be educational and it is impossible for me to guarantee their accuracy under any fact pattern. You have to do your own work and draw your own conclusions.

• Rule #13: What to Do With the Judge Who Hates Family Law

This is usually a function of judges who don't know family law although as you might suspect, a jurist who hates family law is likely not going to bother to learn it. The best way to overcome this problem is to be polite, be brief, and educate the court about what you want and why you are entitled to it. If you have no idea as to either, the judge who hates family law may become an abusive judge as well. Politely and firmly resist being rushed. But get your points in clearly.

• Rule #14: Cite Recent Authority Whenever Possible

A Shifting Judicial Response to Overzealous Advocacy:
Excessively Exuberant and Inflammatory Litigation Tactics
Will Not Be Tolerated in California

F.T. vs. L.J. (2011) 194 Cal.App.4th 1

F.T. v. L.J. is an important opinion for move-away applicants and their attorneys not just because it clarifies existing law and provides guidance on a host of issues commonly encountered in litigation over these arguably unfortunate situations, but it is going to be widely talked about by the mental health community and will influence how  Evidence Code 730 and Family Code section 3111evaluators report to the courts because of this appellate court's attention to the details for what various FCS ("family court service" employees) and MHP's ("mental health professionals") opined. It appears that some of them, including the court mediators, took their eye off the ball as established by earlier legal precedent on this topic and the information presented to them.

The parties in this case dated for five or six months and this brief time together produced a bouncing baby boy in January, 2006. For the first thirteen months of his life, the child lived with Mom. On February 17, 2007, however, Mother burned her baby's arm with a hot curling iron "apparently to each him a lesson by showing him how hot it was." Father picked the boy up that evening, saw the injury, and took him to the hospital. Hospital staff called CPS and the police. Criminal charges were filed against the mother.

The child was placed with Dad and Mother's visitations were ordered supervised. Two weeks later he filed a petition to establish paternity and an OSC requesting orders for sole legal and physical custody. The parties were directed to attend custody mediation through Family Court Services but were unable to reach agreement, and so the mediator recommended that the child's primary residence be with Father and that Mother have supervised visits. In April, 2007, the parents stipulated to the recommended order "without prejudice to either party."

Five months later Father filed an OSC request seeking an order allowing him to move with the child to Texas. The parties were ordered back into mediation. At that time following a custody review hearing, the trial court removed the supervision requirement for Mom's visitation. Once again (surprise!) the parties could not agree in mediation, and the mediator recommended that Father have primary physical custody and that he be allowed to move, noting that in November, 2007, Mother had pleaded guilty to one count of simple battery on the child and was given four years' probation, and that she had an eleven year old child from a previous relationship who lived with the paternal grandparents.

For unknown reasons Father's request went off calendar at the time of the scheduled December, 2007, move-away hearing. In February, 2008, he refiled his application and psychologist Yanon Volcani, Ph.D., was appointed to conduct a psych evaluation of the parents and child. He issued a report in September, 2008.

Volcani recommended against the Father's proposed move to Texas, believing that it would interfere with this 2 1/2 year old's bonding with Mother because of the distance (based upon current best mental health opinions on the developmental stages of children). Volcani concluded that telephone, webcam, and other means of contact would not be well suited for a child this age, and had concerns whether Father would "enthusiastically" support the child's relationship with his mother. He also felt that mother had learned from her experience of burning the child, and while her action was 'rash, impulsive, and insensitive' the data did not suggest a "broader abusive intent." He recommended that Mother's timeshare be incrementally expanded.

On September 18, 2008, the trial court adopted Volcani's proposed parenting plan as a temporary order pending an evidentiary hearing, without prejudice, based upon findings that this was in the best interests of the minor. The matter was then lost in the limbo of hearing continuances and further court services mediations ultimately until March 5, 2010.

By now Father was requesting permission to move to Washington instead of Texas, and was intending on marrying a woman living there. Mother had married. Lynn Waldman, a Family Court services counselor, reported to the Court that she had learned that the minor child in 2009 began exhibiting rage, temper tantrums, and other behavioral issues at school and that this three year old was seeing a counselor who couldn't explain "where [Child's] anger is coming from. She interviewed Dr. Volcani but developed incorrect impressions about whether he'd last met with the parents over the two ensuing years after his initial report, and other misconceptions. She recommended against the move to Washington, but stated that Father should remain in his role as the primary caregiver.

In February, 2010, Volcani issued a report supplementing his opinions from September, 2008. Father by then had married his fiance, who herself had two teenagers. Volcani had re-interviewed the parents, the new spouses, and the minor's preschool teacher and therapist. He noted that since the initial evaluation that the parents had been co-parenting in a "relatively cooperative and stable manner." The minor was continuing to have rage issues (e.g., throwing a chair and punching another student) but these were improving. Still, because of the child's age it was difficult to know what was causing it.

On March 5, 2010, the trial court held a hearing but did not permit live testimony and denied the Father's request to move. The court made a number of findings which were not supported by the record. Chief among them was the conclusion that the parents "are not communicating" - when in fact Dr. Volcani actually stated otherwise and that their communications had vastly improved over the two years that had passed. Moreover, without any rational MHP support, the trial court concluded that the evidence proved the child's rage, speaking out in his sleep, and bed wetting all had to do with the parents' lack of a meaningful dialog. The court stated it "feels that the anger is coming from the tension between the two parties."

Maybe, but the court didn't pull this conclusion from any evidence before it in terms of an expert assessment and conclusion that this was the case (the child's own therapist couldn't explain the child's behaviors). Some conclusions apparently exceed what common sense would otherwise suggest.

By the way, what is a three year old doing with a therapist?

Anyway, the Court adopted Volcani's conclusion that the child's healthy development was being impeded, although on different grounds than Volcani had expressed. The court concluded "Father's reasons for the move, that is to join a new wife and family, are not sufficient and a new wife and family in Washington is not a sufficiently necessary reason to move the residence of [Child] to Washington...."

Huh?

Moreover, the Court implied that if Father decided to move anyway that the Court would take custody away from dad and give it to mother, a really bad idea under existing caselaw because of its coercive overtones.

Enter the Established Law of Move-Away

This is what makes this case important - a judge that was justifiably bothered by the impact that the relocation would have on the relationship between a parent (mother) and child understandably struggled not to permit the move. But she was wrong and the appellate court scolds her harshly for it. Her decision was not an exercise of informed discretion.

At the same time, some of the Father's arguments were off-track as well. For instance, he argued that he had a presumptive right to move under authority of Family Code section 7501 which states: " A parent entitled to the custody of a child has a right to change the residence of the child, subject to the power of the court to restrain a removal that would prejudice the rights or welfare of the child." The Fourth Appellate District ruled that 7501 only applies to "final" custody determinations, and not those that are "temporary," following the case of Montenegro v. Diaz (2001) 26 Cal.4th 249. Here the parties had lived under a "stipulation" for two years, but had never reduced it to a final agreement and no court had ever ruled as to any contested matter within the context of an evidentiary hearing. This is a rule that most family law attorneys already know well (which is why the smart ones write their orders to declare the custody agreements favoring their clients as "final" orders). The practical effect of this fact in this case was that "Mother did not have an initial burden to show [that] Child would suffer detriment were he to move with Father to Washington." 

Father also argued that because Mother had been convicted of battering her son, a presumption arose under Family Code section 3044 that she should not have custody of the boy that was possibly "conclusive" if not merely rebuttable. While the idea that the presumption might be conclusive based evidently upon the appalling seriousness of intentionally burning a child is ... creative ... it doesn't track in the slightest what California law says on the subject, and was quickly disposed of by the appellate judges. The justices ruled that "[a] section 3044 finding of domestic violence 'in a family law case changes the burden of persuasion as to the best interests test, but it does not limit the evidence cognizable by the court, and it does not eliminate the best interest requirement."  "Nor does the statute establish a presumption for or against joint custody; again, the paramount factor is the child's health, safety and welfare. And where the section 3044 presumption has been rebutted, there is no statutory bar against an award of joint or sole custody to a parent who was the subject of the order. This is particularly important in move-away cases." In this case the trial court had not made any express findings under section 3044 anyway, so on remand that is a subject the court is directed to pick up.

However, what the trial court did wrong is this:

The father had no burden to prove his move was "necessary". When the trial court opined that "Father's reasons for the move, that is to join a new wife and family, are not sufficient and a new wife and family in Washington is not a sufficiently necessary reason to move the residence of [Child] to Washington...." it supplanted the rule of law with an understandable discomfort with the effects the move would have on Mom's relationship with her son. The issue instead was the best interests of the child, and that decision must be considered in light of the established rule that "the paramount need for continuity and stability in custody arrangements - and the harm that may result from established patterns of care and emotional bonds with the primary caretaker [father here] - weigh heavily in favor of maintaining ongoing custody arrangements." 

Hence, Judge Schall's "order denying Father's motion reveals a misunderstanding of the determination a trial court must make in deciding a move-away motion by a custodial parent. In this case, the trial court, in effect, avoided the ultimate question whether a change in custody would be in Child's best interests were the custodial parent (Father) to move to Washington.... The question ... is not whether the parent may be permitted to move; the question is what arrangement for custody should be made [if and when the custodial parent moves]." A custodial parent is not required to show a planned relocation is necessary.

In other words, the trial court has to assume the plan for the proposed move is a serious one, and has to address the issue of custody as though the move will occur. Moreover, and this is the heart of the decision and the basis for reversal, "[t]o the extent the trial court denied Father's move-away motion with the goal of maintaining the status quo and/or coercing Father to abandon his plan to move to Washington, it erred." [Italics added].

Finally, while the effect of a move will naturally be detrimental to the child's relationship with the remaining parent, this is but one factor for the court to consider and cannot be the sole basis for denying a move. The case of Marriage of LaMusga (2004) 32 Cal.4th 1072 (hand's down the most important move-away case to know), establishes a litany of factors for trial courts to consider in their totality - which is the subject for another Blog.

This case is reversed and remanded to the trial court to evaluate all the LaMusga factors and so exercise an informed discretion before summarily denying Father's request to move.

Okay, sorry, I'm tired now - I'll be back to add some more thoughts!

• Exclusive residence possession (kick out orders) [FC §6321]
• Ensuring the other party has limited access to children  [FC §3044]
• Making their own spousal support claims seem more meritorious [FC §4320(i)]
• Anticipating and cutting off an anticipated spousal support request from a lower earner spouse [FC §§ 4320(i) and 4325]

To be fair to judges, these cases are hard to evaluate. The California legislature has set a very low standard of proof and hasn't cleared up inadequacies, ambiguities, and contradictions within our own Family Code statutory scheme and so a default strategy has been assumed that it is appropriate to treat DV offenders, once a finding has been made, quite harshly (a good example of this is that the statutes below reference FC § 6211, when domestic violence is not really defined anywhere in the California Family Code). There are few appellate decisions that guide trial courts, and the ones that exist are based upon bad facts at least as far as the alleged perpetrator is concerned in the sense that the DV offenses were serious. There is no good appellate court case yet on behalf of an alleged abuser who committed a relatively minor infraction (i.e., damage to property with no physical threats or violence), and none that speak to mitigating circumstances.

I want to be very clear that I abhor domestic violence. But I abhor manipulative litigation strategies just as much - because I believe that domestic violence comes in many forms, and that abusing the system to gain power in legal proceedings is also exactly the type of violence that people, possibly like you, should be protected against. The problem for judges is that it is hard to spot, and making mistakes can result in deaths.

So this is where you are:

California Family Code section 4325 provides:

    "(a) In any proceeding for dissolution of marriage where there is a criminal conviction for an act of domestic violence perpetrated by one spouse against the other spouse entered by the court within five years prior to the filing of the dissolution proceeding, or at any time thereafter, there shall be a rebuttable presumption affecting the burden of proof that any award of temporary or permanent spousal support to the abusive spouse otherwise awardable pursuant to the standards of this part should not be made.

    (b) The court may consider documented evidence of a convicted spouse's history as a victim of domestic violence, as defined in Section 6211, perpetrated by the other spouse, or any other factors the court deems just and equitable, as conditions for rebutting this presumption.

    (c) The rebuttable presumption created in this section may be rebutted by a preponderance of the evidence."

Hence, in the event of a criminal conviction of DV within five years there is a rebuttable presumption of no support, period. However, notice that rebutting this is by the same standard that the judge remarked to you about when he/she issued the restraining orders - in other words, "more probable than not." One hopes that judges apply the same standards to each question they face.

Family Code section 4320(i), regarding post-judgment spousal support, is being interpreted by courts as applying to temporary support order applications as well. It reads:

    "In ordering spousal support under this part, the court shall consider all of the following circumstances:

    * * * (i) Documented evidence of any history of domestic violence, as defined in Section 6211, between the parties, including, but not limited to, consideration of emotional distress resulting from domestic violence perpetrated against the supported party by the supporting party, and consideration of any history of violence against the supporting party by the supported party.

    * * * (m) The criminal conviction of an abusive spouse shall be considered in making a reduction or elimination of a spousal support award in accordance with Section 4325."

4320(i) does not require evidence of any kind of conviction, although of course that would be relevant - and it cuts both ways: It gives the court discretion to award more spousal support just as well as giving the court to deny spousal support, upon "[d]ocumented evidence." Subsection (m) just restates 4325.

Hence, whether a presumption against spousal support attaches per 4325 or is just in the judge's mind under 4320(i), what you need to present is evidence that will overcome the presumption of 4325. This means: Why should the court not follow the legislative directive that presumes you are not entitled to spousal support? There is no case yet that gives trial courts any guidance on this subject (i.e., "what needs to be proved?"), and it will take a dedicated judge who is deeply passionate about the law - and the proper facts - to turn the populist pendulum that is still in reactive mode to the deplorable sins that true DV generates.

I recommend the following arguments for rebutting the presumption, as applicable:

• Assuming that you had a criminal conviction, argue that you served your time
• Assuming that you were ordered to complete a 52-week batterer's program, argue that you complied
• If you have a long term marriage, i.e., for more than 10 years point that out
• Did your Wife allege a single incident or a pattern of incidents? One of the thorny problems concerning domestic violence restraining orders is that so many different types of conduct, ranging from merely annoying to life threatening, can give rise to them. What your wife alleged in terms of the apparent seriousness (or lack of injury) of your offense might mitigate in your favor by a preponderance of the evidence when balanced against your need for support and all other relevant circumstances considered together
• If there is evidence that you and your wife were mutual combatants at any time, i.e., that (as with too many families) you both behaved badly, present that evidence
• Remind the court that at worst you have the same burden to justify support now as your wife had to justify DV orders then
• Point out that you have been deprived of your livelihood by reason of your Wife's conduct, and that she is, as you say, in control of not only your properties, your joint funds, but also your tools
• Demonstrate that your spouse took control of all the assets, even before the DV situation erupted, not to attack the prior court ruling (which your present judge will always assume was valid and binding), and that she has maintained this control to such an extent such that you have been entirely deprived of your community property entitlements (in breach of fiduciary duties owing you from her) but also that you have been deprived of the very items that would allow you to be self-supporting. Where DV is indeed trumped up, the reporting party tends to behave in predictably controlling ways. Point this out together with any relevant conduct on the part of your spouse - has she met her sua sponte disclosure obligations? Has she ruined your credit by not paying some of property creditors that you are obligated on? Has she changed  your mailing address so that you didn't receive information that might impact your livelihood?
• I cannot overstate that the likelihood is that only a breach, or the substantial appearance thereof, of fiduciary duties on the part of your spouse will meet your burden. Fiduciary duties and alleged spousal abuse are linked at the hip....
• Remind the court more than once that you have met your own burden of proof by the same standard that allowed you to get into this mess
• Request an evidentiary hearing to establish all of the foregoing. Remember Family Code section 217! 

This is a difficult situation. We need a good appellate decision on it, or some legislative guidance.

As I come up with other ideas I will come back and supplement this article.

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.

Move-Away Situation  

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. Here, 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, CFLS